Opinion
No. 05-03-01630-CR
Opinion Filed November 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-73689-QV. Affirm.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
James Russell Thomas, Jr. appeals from his conviction for aggravated sexual assault. Thomas challenges the factual sufficiency of the evidence to support his conviction, and he argues the trial court erroneously admitted expert testimony from a non-licensed counselor. For the reasons that follow, we affirm the judgment of the trial court. Thomas's indictment charged him with causing contact and penetration of his five-year-old niece's sexual organ with his own sexual organ. The niece testified at trial, consistent with her outcry statement to her mother. She stated that while she was watching television with her younger cousins, Thomas pulled down both her shorts and underwear and his own pants and underwear and touched her vagina with his penis. Thomas's factual sufficiency argument is really a collection of reasons why his niece's statement should not be believed: she said her young cousins were in the room when it happened; she waited more than a year before making her outcry; during the intervening time, she was around Thomas on other occasions and did not demonstrate signs of fear; there was testimony she did not exhibit certain signs of an abused child, including problems with school work. Thomas also points to his wife's testimony that he was never alone with the children during this time period. In a factual sufficiency review, we view all of the evidence in a neutral light, and we will not reverse unless the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). In this case, the child testified to conduct constituting aggravated sexual assault by Thomas. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann art. 38.07 (Vernon Supp. 2004); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Thomas offered contradictory evidence: his wife testified that the children were never left alone with her husband. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Tear, 74 S.W.3d at 559. Jurors were free to believe the child and disbelieve the defendant's wife. The remainder of the evidence — including testimony about signs of abuse the child did and did not exhibit, about who was present at the time of the purported assault, about how long it took the child to report the assault — were factors the jury could consider in deciding whom to believe. However, we conclude that the evidence of appellant's guilt, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt. We further conclude that the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. The evidence is factually sufficient to support the jury's verdict. We decide Thomas's first issue against him. Thomas's second issue complains the trial court admitted improper expert testimony. The State offered testimony from Kaylyn Hickey, a play therapist, who was working with Thomas's niece at the time of trial. Thomas objected to Hickey's offering expert opinions because she was not a licensed therapist. The determination of a witness's expert qualifications rests largely in the trial court's discretion; we will not disturb the court's decision absent a clear abuse of discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). The rules of evidence provide that the specialized knowledge required for expert qualification may be acquired through knowledge, skill, experience, training, or education. Tex. R. Evid. 702; see also Wyatt, 23 S.W.3d at 27 ("The special knowledge which qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things."). Hickey testified that she had earned both a bachelor's degree and a master's degree in education and had taught elementary school for ten years. She was working on her master's degree in counseling at the time she began working with Thomas's niece. By the time of trial, she had graduated and was employed as an elementary school counselor. "[L]icensure or certification in the particular discipline is not a per se requirement" for an expert witness. Harnett v. State, 38 S.W.3d 650, 659 (Tex.App.-Austin 2000, pet. ref'd). We find no abuse of discretion in admitting Hickey's testimony. We decide Thomas's second issue against him as well. We affirm the judgment of the trial court.
Ms. Hickey explained that "play therapy" involves facilitating an environment in which children feel safe expressing and dealing with their feelings through play, rather than verbally.