Opinion
No. 04-02-00520-CR.
Delivered and Filed: August 29, 2003. DO NOT PUBLISH.
Appeal From the 23rd Judicial District Court, Brazoria County, Texas, Trial Court No. 41,425, Honorable Robert E. May, Judge Presiding. Affirmed.
Sitting: ALMA L. LOPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Jeffery Scott Henrichsen ("Henrichsen") appeals his jury conviction of aggravated sexual assault of a child. Henrichsen contends that the trial court's comments during voir dire denied him a fair trial. Henrichsen also contends that the trial court erred in his evidentiary rulings disqualifying the victim's treating psychiatrist from offering certain expert testimony and in sustaining the State's objection to a question asked of a registered nurse. Because the issues in this appeal are settled by existing precedent, we affirm the trial court's order in this memorandum opinion. Tex.R.App.P. 47.4.
Trial Court's Comments During Voir Dire
In his first issue, Henrichsen complains of general opening statements made by the trial court to the jury during voir dire, including the following:The Defendant in any criminal case is not required to prove himself or herself innocent. If the Defendant does not choose to testify, you may not consider that fact as evidence of guilty nor may you in your deliberations comment or in any way allude to that fact.
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You can-and there are many-may be several reasons why it might be in your best interest in a given trial, if evidence goes a certain way, not to testify. Do you understand that? That's a decision that you have an absolute right, if you choose not to testify, that can't be used against you. Okay.
And if you think it through, logically if the State had proven the case beyond a reasonable doubt, there would be no reason why a defendant would testify. Does that make sense to you? I think where it's tough is where maybe the case is a little bit less clear. Maybe they have, maybe they haven't. But is there anybody here that would — and I don't know if the Defendant's going to testify or not, but is there anybody here who would hold it against any defendant if they chose to exercise their right not to testify since they have no burden of proof in the case?
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But on the question, let me give you the example. We talked about a speeding case. Let's say the State forgot to prove the speed that the guy was going. I mean, they don't — they can either do it two ways. You can either say the guy was going faster than the posted speed limit, or I guess you could say the guy was going faster than was prudent. If it was a rain-slick road and some guy was driving a certain speed, I guess he could be charged with that. But let's say they forgot to — the district attorney was brand-new, he was nervous, and he put on evidence that the person was driving on a public highway in Brazoria County, Texas, but they just forgot to put on the evidence of speed. Do y'all see how it would not be right if the Defendant-the State rested, the Defendant right after that, it was their time to put their evidence forward, the Defendant rested, it would not be right for the — it would not be smart for the Defendant to get up and testify because if he gets up and testifies, he can then be asked questions that could fill in what was not proven. Y'all understand that?(Emphasis added). Henrichsen did not object to any of these statements at trial. Generally, when no objection is made to the trial court's comments, nothing is preserved for appeal. Williams v. State, 622 S.W.2d 116, 119 (Tex.Crim.App. 1981); see generally Tex.R.App.P. 33.1. Henrichsen asserts that the trial court's comments improperly called attention to his silence, and amounted to fundamental error of constitutional magnitude, requiring no objection to preserve error. Tex.R.Evid. 103(d). For support, Henrichsen cites Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000) (plurality op.) He further urges that reversal is proper because the trial court's comments wrongly conveyed to the jury that if a defendant does not testify, the defense must believe the State has proven their case, and the guilty defendant will not testify because he will only aid the State in proving their case against him. The State disagrees and argues the error was waived. We agree with the State. We do not consider Blue binding precedent because it is a plurality opinion. See Rabago v. State, 75 S.W.3d 561, 563 (Tex.App.-San Antonio 2002, pet. ref'd); see also Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001). In addition, we would distinguish the trial court's remarks in Blue from the remarks in the instant case. In Blue, the trial court explained that a defendant, though innocent, might not testify. Blue, 41 S.W.3d at 133 (Mansfield, J., concurring). The trial court, however, also commented extensively to the jury that trial was being delayed because Blue could not make up his mind whether or not to plead guilty, and that the trial court believed Blue should plead guilty in order to save the court's time. Id. at 133-34. The trial court's remarks could reasonable be interpreted as a predetermination of Blue's guilt. Id. at 134-35. In the instant case, the trial court was attempting to instruct the jury that they could not use Henrichsen's failure to testify against him. The trial court stated that "logically if the State had proven the case beyond a reasonable doubt, there would be no reason why a defendant would testify." The trial court then presented limited reasons a defendant might choose to not testify at trial. The trial court never said his examples were the only reasons a defendant would not testify. In addition, the trial judge carefully used an example of a traffic case, unrelated to the actual matter on trial, to illustrate his point. The trial court's comments did not "rise to a level as to bear" on Henrichsen's presumption of innocence or vitiate the jury's impartiality. See Jasper, 61 S.W.3d at 421. The trial court's inclusion of examples designed simply to illustrate to the jury the reasons why a defendant may not testify does not rise to the level of constitutional error. See Taylor v. State, 109 S.W.3d 443, 451 (Tex.Crim.App. 2003). Consequently, any error by the trial court was waived by Henrichsen's failure to object. We overrule Henrichsen's first issue.
Evidentiary Rulings
In his second and third issues, Henrichsen complains that the trial court erred in its evidentiary rulings disqualifying the victim's treating psychiatrist from offering certain expert testimony and in sustaining the State's objection to a question asked of a registered nurse. He contends the trial court's rulings limited his defensive theory. The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App. 1990). Accordingly, we review the trial court's exclusion of evidence under an abuse of discretion standard. Id. at 379-80. At trial, Henrichsen's defensive theory was that the victim was fabricating her story. In support of this theory, Henrichsen sought to have Dr. Saeed, the victim's treating psychiatrist, recognized as an expert in children's issues with regards to what motivates a child to lie and to elicit Dr. Saeed's testimony on these matters. The trial court refused to allow the testimony based on the court's conclusion that Dr. Saeed did not have sufficient data on which to base his opinion. Henrichsen contends the testimony should have been admitted to show that the victim's poor relationship with her mother motivated her to fabricate the allegation of sexual assault and thereby gain her mother's attention. Expert testimony is admissible if the witness is qualified and the testimony will assist the jury. See Tex.R.Evid. 702. In this case, Dr. Saeed affirmatively disqualified himself as an expert on what motivates a child to lie. In a hearing outside the presence of the jury, Dr. Saeed testified that he did not have enough data to answer one way or another if the victim's need for attention would motivate her to make a false report of sexual abuse. He further testified that he was not an expert on sexual abuse and had a limited role as a counselor for the victim. He testified he could not state whether the victim could or could not have lied and he could only testify that it was within the realm of "possibility" that children might lie to get attention. We conclude the trial court did not abuse its discretion in excluding the testimony. See Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992). Henrichsen's second issue is overruled. Henrichsen also complains the trial court erred in sustaining the State's objection to a question posed to the admission assessment nurse, Gracie Richardson, who was being offered as a fact witness. Henrichsen sought to question Richardson regarding her opinion on the victim's negative response to whether she has been sexually assaulted in the past.Q. But considering that [the victim] had already told the police, friends, parents, does that surprise you that she wouldn't admit it in this situation?The State objected to this question and after some discussion the objection was sustained. Henrichsen contends Richardson's opinion was admissible under Rule 701, which allows witnesses to give opinion or inference testimony provided that the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. Tex.R.Evid. 701. We first note that Henrichsen did not make an offer of proof indicating Richardson's response to the question, and has thus failed to preserve error. Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App. 1998) (per curiam). In addition, whether an opinion meets the fundamental requirement of Rule 701 is within the sound discretion of the trial court and its determination will not be reversed absent a clear abuse of discretion. Fairow v. State, 943 S.W.2d 895, 901 (Tex.Crim.App. 1997). The proponent of lay-opinion testimony has the burden of demonstrating that the witness has personal knowledge of events upon which his opinion is based. Id. at 898. If the proponent of the opinion cannot establish personal knowledge, the trial court should exclude the testimony. Id. Here, the question itself is not seeking an opinion drawn from Richardson's own experiences or observations obtained during the admission process with the victim. Instead, the question asks the nurse to accept as true something the victim may have told other people at another time and then comment on that. The trial court did not abuse its discretion in excluding the testimony. Henrichsen's third issue is overruled.