Opinion
NO. 01-11-00109-CR NO. 01-11-00110-CR NO. 01-11-00111-CR
02-23-2012
MAURICE DEAN SCHRUBEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case Nos. 1260196, 1260197 & 1292468
MEMORANDUM OPINION
Maurice Dean Schruben was convicted by a jury of two offenses of aggravated sexual assault and one offense of indecency with a child. The jury assessed punishment in both aggravated-sexual-assault offenses at 20 years' confinement and in the indecency-with-a-child offense at 10 years' confinement, all sentences to run concurrently. In one point of error, Schruben contends the trial court erred in limiting the scope of his expert witness's testimony, violating his Fifth, Sixth, and Fourteenth Amendment rights. We affirm.
The first aggravated-sexual-assault offense was committed on October 10, 2001, trial court case number 1260196 and appellate case number 01-11-00109-CR. Act of May 28, 2003, 78th Leg., R.S., ch. 528, § 1, sec. 22.021(a)(1)(B) (i), (2) (B), 2003 Tex. Gen. Laws 1805, 1806 (former TEX. PENAL CODE § 22.021(a)(1)(B)(i), (2)(B), since amended). The second aggravated-sexual-assault-offense was committed on September 9, 2008, trial court case number 1292468 and appellate case number 01-11-00111-CR. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2011).
The indecency-with-a-child offense was committed on November 4, 2003, trial court case number 1260197 and appellate case number 01-11-00110-CR. Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 2, sec. 21.11(a)(1), (c)(1), 2001 Tex. Gen. Laws 1463, 1463 (former TEX. PENAL CODE § 21.11(a)(1), (c)(1), since amended).
At trial, Schruben called Dr. Carmen Petzold, a psychologist, as an expert witness on child behavior. The trial court allowed Petzold to testify generally that a child can have false memories caused by repeated interviewing in a forensic setting, but barred Petzold from testifying about what happened in the specific interviews. Schruben did not make an offer of proof of Petzold's excluded testimony.
The State argues that Schruben has waived any error by not making an offer of proof of Dr. Petzold's excluded testimony. TEX. R. EVID. 103(a)(2). We agree. Even were the error not waived, an expert may not offer a direct opinion on the truthfulness of a child's testimony. See Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993). Furthermore, Schruben testified that the child complainant lied about the indecency and sexual assault offenses because the complainant was upset Schruben did not allow the complainant to go on a trip to Central America. Without an offer of proof, it is not possible on appeal to determine what harm, if any, the excluded testimony would have caused.
We overrule the sole point of error.
We affirm the judgments of the trial court in appellate case numbers 01-11-00109-CR and 01-11-00110-CR. In appellate case number 01-11-0111-CR, the judgment incorrectly states the following: "The age of the victim at the time of the offense was 14 years." The record reflects that the complainant was 13 at the time of the offense, and this is not disputed on appeal. Accordingly, we modify the trial court's judgment in appellate case number 01-11-00111-CR by replacing "The age of the victim at the time of the offense was 14 years." with "The age of the victim at the time of the offense was 13 years." As so modified, we affirm. See TEX. R. APP. P. 43.2(b).
Jim Sharp
Justice
Panel consists of Justices Keyes, Bland, and Sharp. Do not publish. TEX. R. APP. P. 47.2(b).