Opinion
No. 14-05-01129-CR.
Judgment rendered and Opinion filed January 25, 2007.
On appeal from the 228th District Court of Harris County, Texas, Trial Court Cause No. 991,259.
Panel consists of Chief Justice HEDGES, and Justices YATES and SEYMORE.
OPINION
A jury found appellant, Charles Scott, guilty of aggravated sexual assault of a child and sentenced him to seventy-five years' confinement. In four issues, appellant contends the trial court erred by (1) excluding testimony from a witness about the complainant's reputation for untruthfulness, (2) allowing a witness to provide expert testimony although she had not been listed as an expert, (3) ruling that a witness was not the outcry witness, and (4) admitting a video statement as an outcry statement. We affirm.
I. BACKGROUND
On June 9, 2004, complainant, A.S., who was seven years old at the time, visited Cathy McIlveen's home to play with her children. At one point, McIlveen asked A.S. if she would miss her father, appellant, when she went to visit her mother the following Saturday. A.S. replied, "no." When McIlveen asked A.S. why she would not miss him, A.S. said, "Because he hurts me." When asked how, A.S. cuffed her hand around McIlveen's ear, and spelled out "S-E-X." McIlveen instructed A.S. to not tell her anymore. That evening, McIlveen told her husband about A.S.'s revelation. The next morning, they called a police officer about the situation. Following the officer's directions, McIlveen took A.S. that day to the Children's Assessment Center in Houston.
A.S. was interviewed on videotape by Lisa Holcomb, a forensic interviewer at the Children's Assessment Center, and the videotape was subsequently admitted at trial. A.S. was also examined at Hermann Hospital by Pamela Stahner, a forensic nurse. At trial, Stahner testified A.S. had a narrowed hymen. Based on the physical examination, she concluded A.S. suffered "sexual assault by history."
A.S. testified that on numerous occasions since she was four-years old, appellant caused her to participate in various forms of sexual activities with him, including sexual intercourse, anal intercourse, and oral sex. In addition, Dr. Barbara Matthews, a licensed clinical psychologist who saw A.S. weekly in psychotherapy since June 2004, testified A.S. had said her father had "S-E-X" with her, it hurt a lot, and she did not want to talk about it anymore.
II. TESTIMONY OF MICHELLE HAYLOCK
In all of his issues, appellant challenges evidentiary rulings by the trial court. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Goff v. State, 931 S.W.2d 537, 553 (Tex.Crim.App. 1996). We will not disturb the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991).
First, appellant asserts the trial court erred by excluding testimony from a witness, Michelle Haylock, regarding A.S.'s reputation for truthfulness. Texas Rule of Evidence 608(a) provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
TEX. R. EVID. 608(a) (emphasis added).
During appellant's direct examination of Haylock, the following exchange occurred:
Q. Do you have an opinion regarding [A.S.'s] reputation for telling the truth?
A. Yes, I do.
Q. Is that opinion good or bad?
A. Bad.
Q. Is it such that she should be believed under oath?
[THE STATE]: I'm going to object.
THE COURT: That's sustained. Disregard that. That's not a proper question, sir. Do not ask it again.
Appellant contends the last question was a proper question because the witness had already testified as to A.S.'s general reputation for truthfulness and it was proper to ask a further question as to reputation. In contrast, the State suggests the third question implicitly required the witness to opine as to whether the complainant lied under oath. We disagree. The answer to the first question established that the witness had an opinion as to the complainant's reputation for telling the truth. The answer to the second question established that the witness believed the complainant's reputation was "bad." The third question was posited, "is it such that she should be believed under oath?" Appellant's counsel employed the definite article, "it." Accordingly, we conclude he was referring to complainant's reputation.
A. Case law prior to the promulgation of Texas Rule of Evidence 608(a)
In support of his argument that the last question was proper, appellant cites two Court of Criminal Appeals cases decided before the Texas Rules of Evidence were promulgated, both considering questions asking whether a witness was worthy of belief under oath.
First, in Parasco v. State, a witness was asked if he knew the general reputation of two witnesses for truth and veracity and whether it was good or bad. 168 Tex. Crim. 89, 323 S.W.2d 257, 258 (1959), overruled on other grounds by Carey v. State, 537 S.W.2d 757, 758 (Tex.Crim.App. 1976). The witness was then asked, "`In your opinion is the testimony of either one of them under oath worthy of belief?'" Id. Applying common law evidence, the court held that this second question was improper because "` a party is not entitled to ask if such impeached witness is worthy of belief, as this form of question calls for the private opinion of the witness.'" Id. at 259 (quoting 1 Branch's Ann. P.C. (2d ed.), p. 234, sec. 206) (emphasis in original). However, the court recognized, "[a]fter a witness testifies that the general reputation of another witness is bad for truth, he may be asked if that general reputation is such as to entitle him to belief on oath.'" Id.
Subsequently, in Sanne v. State, the court addressed the following exchange:
Q: Sergeant Sanchez, would you tell the jury whether you know the general reputation for truth and veracity, in the community where he is best known, of Mr. Charles Victor Sanne?
A: Yes, sir.
Q: Is that reputation good or is it bad?
A: Bad.
Q: Is that reputation such as would entitle Mr. Sanne to be believed under oath?
Sanne v. State, 609 S.W.2d 762, 772 (Tex.Crim.App. 1980). Citing Parasco, the court
noted that the form of the last question was correct. Id. at 772 n. 5. Appellant asserts and we agree the last question in Sanne is in the same form as the last question in this case.
Both of these decisions were issued before the promulgation of the Texas Rules of Evidence. Since the promulgation of the rules of evidence, the Court of Criminal Appeals has not addressed whether the promulgation of the rules affects these particular holdings.
Effective September 1, 1983, the Texas Supreme Court promulgated the Texas Rules of Civil Evidence. Effective March 1, 1998, the Texas Supreme Court and the Court of Criminal Appeals jointly promulgated the uniform Rules of Evidence to govern both civil and criminal cases.
Before the rules of evidence were promulgated in Texas, at common law a character witness's testimony had to concern the "pertinent character trait-truthfulness" and could not "advert to other characteristics of the fact witness." Steven Goode, Olin Guy Wellborn, III M. Michael Sharlot, Guide to the Texas Rules of Evidence, at 718B19 (1 Texas Practice, 3d ed. 2002). Goode, Wellborn, and Sharlot further explain the relationship between common law evidence and Rule 608 as follows:
Rule 608(a) breaks with common-law tradition, however, by permitting a character witness to relate her opinion regarding the fact witness's character for truthfulness. While superficially a dramatic change, it has not had a significant impact in practice. Two factors, explain this. First, as numerous commentators noted, reputation testimony often was little more than a badly-disguised form of opinion testimony. Second, to a limited extent pre-Rules Texas courts had blurred the reputation/opinion distinction by permitting character witnesses, after testifying that the fact witness's reputation for veracity was bad, to respond to questions such as "In view of such reputation, is he worthy of belief?" Regardless of whether a character witness testifies as a reputation or opinion witness, she may testify only about the fact witness's character. Rule 608 does not authorize a witness to testify that another witness is telling the truth or lying.
We note that Weinstein's Federal Evidence treatise made a similar observation as to Federal Rule of Evidence 608: "The lifting of the ban on opinion evidence has had only a minimal effect on lay testimony. Most courts had rather illogically, but pragmatically, allowed a reputation witness to be asked whether based upon his or her knowledge of the reputation of the principal witness, he or she would believe the principal witness under oath, even though such a question obviously called for a conclusion by the reputation witness. A witness may now be asked directly to state his or her opinion of the principal witness's character for truthfulness and may answer, for example, I think X is a liar.'" 4 Jack B. Weinstein Margaret A. Berg, Weinstein's Federal Evidence, § 608.13[2] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 1997).
Steven Goode, Olin Guy Wellborn, III M. Michael Sharlot, Guide to the Texas Rules of Evidence, at 719 (1 Texas Practice, 3d ed. 2002) (emphasis added). Goode, Wellborn, and Sharlot cite to Parasco and Sanne as examples of cases in which "pre-Rule Texas courts had blurred the reputation/opinion distinction" under common law evidence. Id. at 719 n. 7.
In a treatise on the Texas Rules of Evidence, Cathy Cochran has also explained
[L]ike the analogous federal rule, Rule 608(a) allows the character of a witness to be impeached or supported with opinion as well as reputation testimony. The rule expands prior Texas law, which confined character impeachment to reputation testimony. This expansion is merited because witnesses who testify about the general reputation of another witness for veracity are actually expressing their personal opinions of the witness, and the jury takes it as such. Witnesses may now be asked to state their opinion of the fact witness's character for truthfulness, and the witness may answer: "In my opinion X is a liar," or "In my opinion X is a truthful person."
CATHY COCHRAN, TEXAS RULES OF EVIDENCE HANDBOOK at 595 (5th ed. 2003) (emphasis added).
Because pre-Rule courts blurred the common law distinction between opinion and reputation and now Rule 608 allows witnesses to testify with opinion as well as reputation testimony, it appears the holdings in Parasco and Sanne are not affected by the promulgation of Rule 608 and the last question in this case is correct. We believe the question, "Is it such that she should be believed under oath?" is a further question as to reputation based on the witness's opinion, which is allowed under Rule 608. Accordingly, we find the question was proper and the trial court erred by not allowing the question to be answered.
B. Harm Analysis
However, the error was harmless. Texas Rule of Appellate Procedure 44.2(b) provides that errors in criminal cases which do not affect substantial rights are to be disregarded on appeal. TEX. R. APP. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). "A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as [a] whole, has found assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). In assessing the likelihood that the jury's decision was adversely affected by the error, we examine the record as a whole. Id. We should consider everything in the record "including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case." Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000).
We have reviewed the entire record and find that the jury was not adversely affected by the trial court's exclusion of Haylock's answer to the question whether A.S. should be believed under oath. Because Haylock had already testified that A.S. had a bad reputation for truthfulness, the jury could have reasonably inferred that the reputation was such that she should not be believed under oath without Haylock actually answering the question at issue. Furthermore, prior to Haylock's testimony, two school nurses, Kathy LaBrode and Kathy Jenkins, both testified that A.S. had a bad reputation for truthfulness.
In addition, after reviewing the record as a whole, we find significant evidence from which the jury could have concluded the incident occurred as described by A.S. notwithstanding the unanswered question. First, Cathy McIlveen testified that A.S. said her father had "S-E-X" with her. Pamela Stahner, the forensic nurse who examined A.S., testified A.S. suffered a history of sexual assault based on her physical examination of A.S. indicating a narrowed hyman. Lisa Holcomb, the forensic interviewer at the Children's Assessment Center, testified that A.S. was "very detailed" during the interview in both her verbal statements and non-verbal actions. At trial, Holcomb recited specific examples of detailed statements and actions by A.S. regarding the sexual assault. The jury also viewed the video interview conducted by Holcomb. Accordingly, we find the trial court's error to be harmless. Appellant's first issue is overruled.
III. TESTIMONY OF CLINICAL PSYCHOLOGIST AS LAY WITNESS
Appellant contends the trial court erred by allowing Dr. Barbara Matthews to testify as a lay witness when appellant's counsel objected to her testimony because she was not listed as an expert. Appellant argues that Dr. Matthews, who was allowed to testify as a lay witness because her name was not on the expert list, testified in an "expert manner" causing the jury to give her testimony inappropriate weight. We disagree.
A. Dr. Barbara Matthews's testimony
The State called Dr. Barbara Matthews to testify. She testified without objection she was a licensed clinical psychologist and had experience counseling with people who had been traumatized. She further testified she had been seeing A.S. weekly in psychotherapy since June 2004, described what types of therapy she used with A.S. in the sessions, and stated A.S. had said that her father had "S-E-X" with her, it hurt a lot, and she did not want to talk about it anymore.
Appellant then asked whether Dr. Matthews was offered as an expert and took her on voir dire to inquire about her qualifications. After the jury was retired, appellant said Dr. Matthews was a "total surprise" because she was not listed as an expert on appellant's expert list. The State said Dr. Matthews had been on the State's subpoena list since April. The trial judge concluded due to the "notice issue," Dr. Matthews could testify as a lay witness, instead of as an expert witness.
Dr. Matthews then testified A.S. had been referred to her by Victim Services in Big Spring and she had seen A.S. fifty to sixty times since June 2004. The State asked, "Can you think of a reason, just as a regular person, why a child in an abusive relationship . . . whether it be sexual or physical, might not tell about it right away?" After an objection from appellant, the trial court asked the State to lay a foundation for Dr. Matthews to answer the question on a non-expert basis. Dr. Matthews testified as to her experience with children outside of work and explained that they tend to not come forward and talk about bad things that happened to them right away. Afterwards, the trial court ruled that Dr. Matthews could answer based on her work as well. Dr. Matthews then testified: "Children don't talk about things that trouble them unless they feel safe. And usually they're scared to death of talking about something that might get the person who's hurting them in trouble because they're attached to that person. . . . Especially if it is a caregiver." Based on this testimony, appellant contends the jury gave Dr. Matthews's testimony more weight than a lay witness because she had been presented as a person with specialized training as a doctor and therapist.
Pursuant to Texas Rule of Evidence 701, a lay witness may testify in the form of opinions or inferences if they are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. See TEX. R. EVID. 701. Pursuant to Texas Rule of Evidence 702, an expert witness may testify in the form of an opinion if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact issue" and the witness is qualified as an expert by "knowledge, skill, experience, training, or education." TEX. R. EVID. 702.
An expert witness may qualify to give opinion testimony under both Texas Rule of Evidence 702, governing expert testimony, and Texas Rule of Evidence 701, permitting non-expert or lay opinion testimony. Osbourn v. State, 92 S.W.3d 531, 536 (Tex.Crim.App. 2002). When a witness who is capable of being qualified as an expert testifies regarding events which he or she personally perceived, the evidence may be admissible as both Rule 701 opinion testimony and Rule 702 expert testimony. Id. A person with specialized knowledge may testify about his or her own observations under Rule 701 and may also testify about the theories, facts, and data used in his or her area of expertise under Rule 702. Id. (holding police officer's testimony as a lay witness that he smelled marijuana was admissible); see also Harnett v. State, 38 S.W.3d 650, 659 (Tex.App.-Austin 2000, pet. ref'd).
However, not all observations by witnesses with experience and training can be admitted as lay opinion testimony. See Osbourn, 92 S.W.3d at 537 (discussing Emerson v. State, 880 S.W.2d 759, 763 (Tex.Crim.App. 1994), which held officer's opinion based on observations while administering the horizontal gaze nystagmus (HGN) test, a test based on a scientific theory, could only be admissible as expert testimony under Rule 702). Generally, "observations which do not require significant expertise to interpret and which are not based on a scientific theory can be admitted as lay opinions if the requirements of Rule 701 are met. This is true even when the witness has experience and training." Osbourn, 92 S.W.3d at 537 (emphasis added). Moreover, a lay witness with sufficient personal experience and knowledge may be qualified to express an opinion on a matter outside the realm of common knowledge with respect to events not normally encountered by most people in everyday life. Id. "It is only when the fact-finder may not fully understand the evidence or be able to determine the fact in issue without the assistance of someone with specialized knowledge that a witness must be qualified as an expert." Id.
In addition, Rule 701's requirement that the opinion or inference of a lay witness be "rationally based on the perception of the witness" has two elements. Harnett, 38 S.W.3d at 657,658 (citing 2A Steven Goode, Olin Guy Wellborn, III M. Michael Sharlot, Courtroom Handbook on Texas Evidence, ch. 5, art. VII, at 413 (Texas Practice 2000)). The first element is personal knowledge gained by perception of fact by the senses of the witness, including what was seen, heard, smelled, tasted, touched, or felt. Id. at 658 (citing Bigby v. State, 892 S.W.2d 864, 889 (Tex.Crim.App. 1994)). The second element is the opinion must be one that a reasonable person could draw from the underlying facts. Id. (citing Fairow v. State, 943 S.W.2d 895, 900 (Tex.Crim.App. 1997)).
Appellant complains of Dr. Matthews's testimony stating, "Children don't talk about things that trouble them unless they feel safe. And usually they're scared to death of talking about something that might get the person who's hurting them in trouble because they're attached to that person. . . . Especially if it's a caregiver." We find Dr. Matthews's testimony to be that of a lay witness because it satisfies the requirements of Rule 701. First, Dr. Matthews's opinion was rationally based on her perceptions. Dr. Matthews testified she had experience both with children whom she was treating in the context of her practice and children outside the context of her practice, giving her personal knowledge gained by her own observation and interaction with children. Further, her opinion is one that a reasonable person could draw based on the facts because it was one that any reasonable person who has spent a significant amount of time around children could draw. Second, her opinion was helpful to the jury's understanding of her testimony, but it was not based on a scientific theory and did not require significant expertise to interpret. See Osbourn, 92 S.W.3d at 537. Therefore, the trial court did not abuse its discretion by admitting Dr. Matthews's testimony as lay testimony.
B. Jury Instructions
Appellant also asserts the trial court erred by not giving the jury a limiting instruction as to Dr. Matthews's testimony. Specifically, appellant argues the trial court should have instructed the jury that Dr. Matthews's opinions were not opinions of an expert witness and should not be considered as expert opinions. Appellant does not specify when the trial court should have given the jury a limiting instruction. Because he cites to portions of Dr. Matthews's testimony and to proceedings prior to the time the jury charge was read to the jury, we assume he means the instruction should have been given when Dr. Matthews testified and recited when the charge was given to the jury.
A party opposing evidence has the burden of requesting the limiting instruction at the introduction of the evidence. Hammock v. State, 46 S.W.3d 889, 892 (Tex.Crim.App. 2001) (citing Garcia v. State, 887 S.W.2d 862, 878 (Tex.Crim.App. 1994)). Once evidence is received without a limiting instruction, it becomes part of the general evidence and may be used for all purposes. Id. To be effective, a limiting instruction must be given when the evidence is admitted. Id. at 894 (citing Rankin v. State, 974 S.W.2d 707, 713 (Tex.Crim.App. 1998) (op. on reh'g)). A limiting instruction cannot be given for the first time at submission of the jury charge, because it would allow the jury to "consider the evidence in an inappropriate manner during the trial." Id. at 893. Therefore, limiting instructions should be given to the jury twice: once when the evidence is admitted and again in the jury charge. Id. at 895 (citing Rankin, 974 S.W.2d at 712 n. 3)).
The record reflects at the time of Dr. Matthews's testimony, appellant never requested a limiting instruction as to Dr. Matthews's testimony. During Dr. Matthews's testimony, appellant objected because she was not listed as an expert. Appellant further objected to Dr. Matthews testifying in any capacity. At the conclusion of the direct examination appellant's counsel said: "At this time I'm going to ask that the Court instruct the jury that they should disregard any testimony from Dr. Barbara Matthews." We find appellant's request that the trial court instruct the jury to disregard any testimony is not the same as asking for a limiting instruction. Because appellant did not timely ask for a limiting instruction, the trial court was not required to include a limiting instruction in the jury charge. We find the trial court did not err by refusing to give the jury a limiting instruction relative to Dr. Matthews's testimony.
We note prior to the jury charge being read, appellant told the trial court he wanted to submit an "instruction" as to Dr. Matthews's testimony. The trial judge told appellant he could submit the "instruction" after lunch. After the recess, the trial judge said, "Let the record reflect I included an admonishment in the jury charge regarding expert witnesses." There was no objection by appellant after the trial court's statement. The clerk's record does not include a written request for an instruction from appellant. Therefore, it is not clear whether the "expert witness" instruction was what appellant submitted to the court. The instruction in the jury charge as to expert witnesses was only a general instruction to the jury on expert witness testimony. Nevertheless, because appellant failed to request a limiting instruction at the time of Dr. Matthews's testimony, the trial court did not err by refusing to give the jury a limiting instruction relative to Dr. Matthews's testimony.
Accordingly, we overrule appellant's second issue.
IV. OUTCRY WITNESS
We address appellant's third and fourth issues together. In his fourth issue, appellant contends the trial court erred by admitting video interview of A.S. by Lisa Holcomb in its entirety as the outcry statement. Instead, appellant argues that Cathy McIIveen was the proper outcry witness because she was the first person to whom A.S. made a statement about the offense. The State contends Holcomb was the proper outcry witness. We agree.
Hearsay evidence is not admissible except as provided by statute or the rules of evidence. See TEX. R. EVID. 802. However, hearsay outcry statements made by a child victim twelve years of age or younger describing the offense are admissible as substantive evidence when the statements (1) were made by the child against whom the offense was allegedly committed and (2) were made to the first person eighteen years of age or older, other than the defendant. See TEX. CODE CRIM. PROC. ANN. Art. 38.072, §§ 1-2(a) (Vernon 2005); Garcia v. State, 792 S.W.2d 88, 90,91 (Tex.Crim.App. 1990); Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).
Furthermore, the statement "must be more than words which give a general allusion that something in the area of child abuse was going on." Garcia, 792 S.W.2d at 91 (emphasis added) (finding teacher was not outcry witness where complainant only told teacher that "something" had happened at home but did not provide any specific details); Hayden, 928 S.W.2d at 231 (holding the first person complainant told about the sexual abuse was not the outcry witness because there was "no evidence that the complainant described to her the details of the alleged abuse").
In this case, the trial court correctly ruled Holcomb was the proper outcry witness because A.S. did not describe details of the offense to McIlveen. See Garcia, 792 S.W.2d at 91; Hayden, 928 S.W.2d at 231. Accordingly, the trial court did not abuse its discretion by admitting the video of A.S. by Holcomb as an outcry statement. We overrule appellant's fourth issue.
In his third issue, appellant contends the trial court erred by also admitting McIlveen's testimony regarding A.S.'s hearsay statements after ruling that Holcomb, not McIlveen, was the outcry witness. However, we find McIlveen's testimony was not hearsay. The statement was not offered to prove the truth of the matter asserted. Instead, it was offered to show the circumstances under which McIlveen called the police. See Cano v. State, 3 S.W.3d 99, 110 (Tex.App.-Corpus Christi 1999, pet. ref'd) (holding police officer's testimony he had received information that drugs were being dealt from appellant's residence prior to the arranged buy was not offered to prove drugs were actually being dealt from the residence at that time, but rather was offered to show why the investigation had focused on the appellants). Accordingly, the trial court did not abuse its discretion by admitting Cathy McIlveen's testimony regarding A.S.'s statement. We overrule appellant's third issue.
Accordingly, the judgment of the trial court is affirmed.
Publish C TEX. R. APP. P. 47.2(b).