Opinion
No. 05-03-01833-CR
Opinion issued January 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-01278-LU. Affirmed.
Before Justices MORRIS, WHITTINGTON, and MAZZANT.
OPINION
In this case, James David Smith appeals his conviction for aggravated sexual assault of a child. He asserts four points of error on appeal. He first claims the evidence against him is factually insufficient. He further claims the trial court erred by refusing to order a psychiatric evaluation of the complainant, in admitting hearsay testimony at trial, and by allowing the jury a nine-day break in deliberations. We conclude appellant's complaints are without merit and affirm the trial court's judgment.
Factual Background
The complainant testified that she was eight or nine years old when appellant married and moved in with her mother. She explained that appellant wanted the family to be "close." Appellant would walk around the house unclothed in front of the complainant and her mother. He made the complainant nervous because he would watch her go to the bathroom. He watched her take showers and, when her mother was not home, would take showers with her, washing her entire body. On other occasions, he would attempt to touch her bottom or chest. Appellant protested to the complainant's mother that the complainant treated him like a stranger and was not sufficiently affectionate. The complainant's mother told her that appellant was a "very touchy" person and that she needed to be more affectionate with him. Later on, the complainant started waking up in the middle of the night with bruises and a "gross, gross, gross feeling." As the complainant got older, she began to realize appellant was entering her bedroom at night and sexually assaulting her. When she was approximately eleven years old, she woke up one night and saw appellant next to her bed masturbating. She woke up on another occasion and found appellant on top of her. He was naked and sexually assaulting her. The complainant recalled appellant licking her neck and his beard on her face and neck. She recalled nights when she was twelve years old, closing her eyes and feeling so much pain from the sexual assaults that she wanted to pass out. The complainant testified that appellant told her no one would believe her if she revealed what was happening. She claimed he threatened that it would be "worse the next time" and "he could hurt [her] mother" if the complainant told what was happening. The complainant believed appellant's threats because he drank at night and there were times he pushed and shoved her mother. The complainant testified that the sexual assaults occurred many times. To cope, she started cutting herself on her stomach and legs when she was approximately twelve and drinking when she was approximately thirteen. At about that time, she experienced what she later believed to be a miscarriage; she experienced pain and severe bleeding she had never experienced before. When she was fourteen years old, she used a chair to block her bedroom door. The next morning, appellant was very upset with her. The complainant's mother told her she would have to remove the chair. The complainant did not tell her mother appellant was sexually assaulting her because she felt trapped and guilty. When the complainant was fourteen, she had sex with someone other than appellant for the first time. After having run away several times, she told her mother she would never return if her mother did not leave appellant. The complainant's mother then divorced appellant. When the complainant was eighteen, she finally told an adult about the sexual assaults. Her boyfriend at the time, who is now her husband, could not understand why she would cry and feel pain when they had sexual intercourse. Before she met her boyfriend, she had never engaged in sexual intercourse without being intoxicated. Slowly, over the course of their relationship, she began to reveal to her boyfriend what had happened with appellant. She started seeing a counselor, Dr. Timothy Lane, at her college. She was too embarrassed to tell Lane everything that had happened, but she did not want to be depressed any longer. Lane recommended that she see a psychiatrist at the health center and start taking antidepressants. The complainant has been taking them ever since. She continued to see Lane for three to four months. She never completely opened up to him because she did not think he would believe her and did not want to say aloud what had happened to her. After she stopped seeing Lane, she went to a group therapy program through her college, but she could not handle listening to the other people talk about their difficulties. The year before she married her boyfriend, the complainant finally told her family what appellant had done to her. She first told her father's sister, who was very supportive. She told her mother next. At first her mother was upset and cried. Afterward, she told the complainant that appellant was a "very sexual person," that she was "misinterpreting his advances," that he took showers with his other children, and that she "was not special." Later, the complainant began seeing Raquel Goranson at an organization for women in abusive households. She felt very comfortable with Goranson as her counselor and continued to see her for over two years. The complainant testified that appellant's acts had drastically affected her ability to relate to men. She cannot handle smelling alcohol on her husband's breath or men's cologne because they remind her of the sexual assaults. She also cannot stand the feel of facial hair against her skin because it brings back memories of appellant. For years, she felt that if she did not "pay enough attention," someone was going to rape her. At one point when she first started dating her husband, the complainant worried she was going to lose him to his mother. She explained that she has had panic attacks since childhood where she hears voices and loses vision. When the sexual assaults started happening, one of her theories was that she was being abducted by aliens. Dr. Lane testified for the State. He confirmed that he started seeing the complainant her for depression and for "having difficulty with school, with relationships and with family issues." Later she reported that she was having dreams about her stepfather. Still later, she indicated to Lane that appellant had "touched her, fondled her and required her to touch him." The complainant was not comfortable discussing the sexual issues with Lane. Nevertheless, he could tell she had a lot of fear and anger associated with appellant. Lane testified that he did not have the "full picture" of what had happened to the complainant before she stopped seeing him. On cross-examination, Lane testified that the complainant had indicated she had suffered panic attacks from the time she was four years old. She heard voices during the panic attacks. When she was young, the voices soothed her, but when she was a teenager, the voices were threatening to her. Lane stated that some of the complainant's symptoms met the characteristics of a borderline personality disorder, though they could have been symptoms of another disorder instead. He testified that a person with a borderline personality disorder can perceive things that did not happen as being real. During the time he saw the complainant, however, Lane did not believe she suffered from a borderline personality disorder. The complainant's mother testified that when she and appellant were married, he wanted the complainant to sit in his lap and tell him goodnight. She did not remember appellant walking around the house naked. She denied seeing appellant watch the complainant while she showered. She stated that she did not know at the time that appellant was taking showers with the complainant. She also denied knowing the complainant had cut herself. She recalled the argument appellant and the complainant had over the complainant blocking her bedroom door with a chair. In the mother's recollection, appellant gave the complainant "a very harsh look like he could kill her." She also knew the complainant had told her father she ran away because she did not trust appellant. The complainant's father testified that, due to his extensive business travel, he was unable to allow the complainant to live with him at the time appellant was living with her mother. He had no idea appellant was sexually assaulting the complainant. He now understands why the complainant acted as she did when she was young. On cross-examination, the complainant's father admitted he never saw bruises or cuts on her when she visited him every other weekend. Next, the complainant's husband confirmed that she acted strangely when they began to attempt sexual intercourse. She seemed petrified at the time and would be distant and crying afterwards. Eventually, she revealed to her husband that appellant had sexually assaulted her when she was young. The complainant told him that appellant watched her use the restroom and shower. She also said that appellant showered with her, washing her body. The complainant told her husband that appellant tried to fondle her breasts and butt and tried to kiss her, using his tongue. Over time, the complainant told her husband about nighttime incidents of appellant masturbating by her bed, licking her neck, and lying on top of her. She revealed to him that she had awoken with bruised thighs and had bled from her vagina spontaneously. The complainant's husband confirmed that the complainant absolutely could not stand to be kissed by him if he let his beard grow at all because it reminded her of appellant trying to kiss her. For the same reason, she would not kiss her husband if he had alcohol on his breath. She still has "extreme negative associations" with male genitalia and aggressiveness. She told her husband she recalls bleeding excessively when she was approximately twelve years old and believes she possibly had a miscarriage. The complainant's husband testified that the sexual part of their relationship is troubled. He clarified, "I have to be extremely careful. Anything dealing with sex, the subject of sex, anything about it, I have to be very, very careful." He cannot initiate sex with the complainant; it has to be initiated by her. The complainant's husband did not recall her telling him she had ever had auditory hallucinations. Dr. Barbara Hoffman, an obstetrician and gynecologist, testified that she saw the complainant for a yeast infection when the complainant was thirteen years old. She saw her one more time that year. When Hoffman examined the complainant, she did not see any physical signs of sexual abuse. The complainant told her she was not sexually active. Hoffman explained that even if a child is being sexually abused, evidence of such abuse may not be present at the time of a physical examination. Raquel Goranson testified that she is the youth education and prevention services therapist at The Family Place, a domestic violence agency. The complainant started seeing Goranson because she had been sexually abused by appellant. Goranson saw in the complainant symptoms of post traumatic stress reaction. The complainant has difficulty sleeping, severe and vivid nightmares, self-blame, numbness, hyperarousal, and panic attacks. She feels fear and anxiety if her husband does not let her know he is present in a room before he touches her. In Goranson's opinion, the complainant will probably suffer from some form of sexual dysfunction the rest of her life. Goranson also testified that the complainant had told her how she had cut herself. Cutting is a form of self-mutilation that is generally a manifestation of self-hate accompanied by depression. It is seen to a higher extent in people who have experienced incest, particularly in young teenage girls. Goranson explained that when a child is experiencing sexual abuse, it is not uncommon for the child to use magical thinking and imaginary thoughts to explain what is happening to her. For the complainant, it was easier for her to imagine that she was being attacked by aliens than to comprehend that she was being attacked by her stepfather, especially because she was afraid people would not believe her if she reported what was happening. On cross-examination, Goranson testified she was not aware that the complainant had started having panic attacks at the age of four. She confirmed that the complainant's grandfather had died at the Terrell State Hospital. Goranson acknowledged that the complainant had dreams about an ex-boyfriend with whom she had a very violent sexual relationship. She sometimes had constant thoughts about this ex-boyfriend. At that time, Goranson believed, the complainant was having irrational beliefs because of her condition. The complainant had reported to Goranson that she had been involved in over ten abusive sexual relationships. In Goranson's opinion, the complainant did not show characteristics of a borderline personality disorder. Goranson stated that many of the complainant's memories were "recovered memories," a memory where the subject remembers some parts of the event and then later is able to fill in details. Goranson testified that she has heard of people being mistaken in what they thought were recovered memories. She does not believe the complainant is mistaken in her memories of appellant's sexual abuse because her recollections of the events have been very consistent. For the defense, psychiatrist Jay Crowder testified that he had reviewed Lane's notes, the complainant's medical history, and all the notes on the complainant from The Family Place. In addition, Crowder was able to observe all the testimony leading up to his. Crowder did not examine the complainant or speak to her personally. Nevertheless, he believed she suffered from borderline personality disorder. Crowder described borderline personality disorder as characterized by unstable and intense relationships, unstable emotions, chronic anger, suicidal ideation and self-mutilation, and fear of abandonment. People with the disorder tend to have transient psychotic or paranoid episodes during which they are excessively suspicious or they block out part of reality. Crowder admitted he was reluctant to say the complainant met the criteria for the disorder because he had not done a personal examination. He stated, however, that "there's a high level of consistency and there's a high index of suspicion for borderline personality disorder based on the information that I have." Crowder explained his tentative diagnosis in the following way: The complainant fears her boyfriend will choose his mother over her and generally fears abandonment. She has been fearful of some type of supernatural presence. She has unstable, intense personal relationships. For instance, she was very attached to her mother at one point but then stopped speaking to her. She was once angry with her father but now has a positive relationship with him. She fantasized about leaving her husband for a more intense relationship. She had identity disturbances characterized by inability to choose a college major and desire to leave her husband for a sexually violent man. In addition, in Crowder's opinion, the complainant demonstrates impulsive and potentially self-damaging behavior. When she was young, she drank and used drugs. She was recurrently suicidal, and she self-mutilated. Crowder also believed the complainant has affective instability — a lot of highs and lows. She was considered for a diagnosis of bipolar II disorder, an illness in which people have high periods and major depressive periods. The diagnosis, however, was never made. Crowder also noted the complainant's chronic feelings of loneliness and disconnectedness. As another characteristic, Crowder cited the complainant's excessive anger at her mother, appellant, her husband, and her father. Finally, Crowder noted, the complainant has displayed transient paranoia over dissociative periods. Crowder stated that there were several mentions of dissociation in the records of Lane and Goranson. Crowder additionally noted that he has "trouble" with recovered memories because they are potentially susceptible to suggestion and may not be accurate. Crowder testified that the significance of the complainant having a borderline personality disorder is that people with the disorder tend to relate to the world through being victims and control other people in relationships by saying they are victims. There are reports of people with the disorder pathologically lying about sexual abuse. Crowder explained that those people with borderline personality disorder are suggestible and will conclude in many circumstances that they have been victims when that may not be true. They sometimes have distorted memories of being victims that are not objectively true. Crowder admitted he was paid for his testimony. He also admitted that all the characteristics he described as consistent with borderline personality disorder are also "potentially consistent" with a victim of child abuse. Appellant testified in his defense. He denied walking naked through the house, kissing the complainant on the mouth, inappropriately touching the complainant, showering with the complainant, or sexually assaulting her. He claimed he never went into her bedroom at night and masturbated over her or lay on top of her. He claimed the only affection he wanted from the complainant was the "affection of a daughter to a father." Appellant stated that the complainant would pull away from him "even if [he] wanted to just have a good night hug." He believes the complainant rebelled against him because he was the disciplinarian in the home. He admitted to consistently having facial hair, wearing Lagerfeld cologne, and drinking scotch when he was living with the complainant. Appellant testified that he had a vasectomy before he married the complainant's mother. The State stipulated to medical records showing the vasectomy had been performed on appellant. Various friends of appellant also testified that he had a good reputation and properly treated young children when they were present.Discussion
In his first point of error, appellant complains the evidence against him is factually insufficient. He argues that the complainant's version of events conflicts with medical evidence in addition to the testimony of her mother, her father, and appellant. In addition, he argues that Crowder thought the complainant was suffering from a borderline personality disorder that could cause her to fabricate events that never happened. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient when, considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or when contrary evidence exists that is strong enough the beyond-a-reasonable-doubt standard could not have been met. See id. at 484-85. The complainant testified that appellant sexually abused her over a period of years. She, her husband, and her counselors explained how the sexual abuse affected the rest of the complainant's life. It was the jury's role to weigh the credibility of the complainant and the other witnesses at trial, to believe or disbelieve the witnesses' testimony, and to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). After reviewing all the evidence, we conclude it is factually sufficient to support appellant's conviction for aggravated sexual assault. We overrule appellant's first point of error. In his next point of error, appellant complains the trial court reversibly erred when it failed to order an independent psychiatric evaluation of the complainant. Before trial, the defense requested that Crowder be permitted to examine the complainant. The trial court ruled that the complainant could agree to such an examination but the court would not order her to submit to the examination. The complainant refused to be examined by Crowder. Neither the Texas nor the United States Constitution contains a general right to discovery in a criminal case. State ex rel. Wade v. Stephens, 724 S.W.2d 141, 144 (Tex.App.-Dallas 1987, orig. proceeding). Article 39.14 of the Texas Code of Criminal Procedure constitutes a comprehensive pretrial discovery statute. Accordingly, criminal discovery orders must fall within the confines of that article's limited authorization. Id. Under article 39.14, upon motion of the defendant showing good cause and notice, the trial court:may order the State before or during trial of a criminal action . . . to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case . . .), books, accounts, letters, photographs, objects or tangible things not privileged which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies.Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon Supp. 2004-05). An order requiring the complainant to submit to a psychiatric examination would clearly exceed the scope of discovery authorized by article 39.14. See Wade, 724 S.W.2d at 144; see also State ex. rel. Robinson, 116 S.W.3d 115, 118 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding). Accordingly, the trial court did not err in denying appellant's request to order the complainant to submit to an examination by Crowder. We overrule appellant's second point of error. Appellant next complains in his third point of error that the trial court erred by permitting the complainant's husband to offer hearsay testimony as an outcry witness. The State offered the husband's testimony under the outcry witness exception to the hearsay rule, which provides that testimony may be excluded from the hearsay rule in a case involving an assaultive offense committed against a child twelve years of age or younger. See Tex. Code Crim. Proc. Ann. art. 38.072, § 1 (Vernon Supp. 2004-05). For the outcry exception to apply, the statement must be made by the child against whom the offense was committed and be made to the first person, eighteen years or older (other than the defendant), to whom the child made a statement about the offense. Id., § 2(a). In addition, the State must give notice of its intent to offer the statement, the trial court must find, in a hearing outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement, and the child must testify or be available to testify at trial. Id., § 2(b). In this case, the complainant's husband was the first person over age eighteen to whom she made a statement about the sexual assaults. She did not, however, tell him about the sexual assaults until she was eighteen years old. Regardless of whether article 38.072 applies in this case, however, the husband's hearsay testimony regarding what the complainant said to him about the sexual abuse was harmless to appellant. Non-constitutional error that does not affect an appellant's substantial rights must be disregarded. Tex.R.App.P. 44.2(b). Here, the husband's testimony basically repeated the claims the complainant already made in her testimony. Nothing in the husband's testimony meaningfully added to the accusations the complainant had already leveled against appellant. Appellant argues that the husband's testimony made the complainant's evidence more dramatic and the complainant more sympathetic. But even if the husband had not been permitted to testify about what the complainant told him, the jury would still have been aware of the complainant's claims of abuse and the fact that she shared those claims with her husband. The jury would have heard of the complainant's reporting the abuse to her counselors. The jury would also have heard from both the complainant and her husband how the sexual abuse affected their relationship and how they persisted to marry and stay together in spite of the difficulties. Even if we assume the trial court erred in admitting the outcry testimony, appellant was not harmed by its admission into evidence because the husband's hearsay testimony was merely cumulative of other evidence at trial. We overrule appellant's third point of error. In his final point of error, appellant complains that the trial court erred by excusing the jury from November 21, 2003 to December 1, 2003. The jury deliberated from the close of evidence on November 20, 2003 to the next day, at which time the jurors indicated to the trial court that they desired to continue working. The trial court admonished the jurors that if they were to separate until December 1 for a Thanksgiving holiday, the jurors could not discuss the case with anyone outside the jury, including their families. The jurors indicated they understood the trial court's admonitions. That same day, the jury indicated that it was headed in the direction of a mistrial. Nevertheless, when the trial court inquired how the jury wished to proceed, the jury indicated it wished to continue working. Before excusing the jury for the Thanksgiving holiday, the trial court noted for the record that the jury had not at that point indicated it was deadlocked. On December 1, 2003, however, the jury sent out a note indicating it was deadlocked. The trial court gave the jury an Allen charge, and some time afterward, the jury convicted appellant. Under article 35.23 of the code of criminal procedure, a trial court may permit the jurors to separate after the charge is given, provided that one of the parties has not requested that the jury be sequestered. See Tex. Code Crim. Proc. Ann. art. 35.23 (Vernon Supp. 2004-05). Absent a motion to sequester, it is within the trial court's discretion to permit the jury to separate. Gregg v. State, 881 S.W.2d 946, 950 (Tex.App.-Corpus Christi 1994, pet. ref'd). Despite appellant's contentions that he objected to the long separation for the Thanksgiving holiday, he cannot point to a place in the record where he requested that the jury be sequestered. Given that the timing of the holiday was — in the words of appellant's trial attorney — "no one's fault," we conclude the trial court did not abuse its discretion in giving the jurors a nine-day holiday break in deliberations after admonishing them not to discuss the case. We overrule appellant's fourth point of error. We affirm the trial court's judgment.