Opinion
Nos. 14-07-00906-CR, 14-07-00907-CR
Opinion filed March 31, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause Nos. 1114708, 1114709.
Panel consists of Justices FROST, BROWN, and BOYCE.
MEMORANDUM OPINION
Appellant Larry Lee Wagner appeals two convictions for aggravated sexual assault against two children, claiming the following: (1) the younger complainant lacked competency to testify, and, therefore, her testimony should have been excluded; (2) the trial court erred in excluding a forensic interviewer's prior inconsistent statement, and, therefore, denied appellant the opportunity to confront and cross-examine his accuser; (3) the trial court committed reversible error in allowing representatives from Child Protective Services and the Children's Assessment Center to offer purported opinions on the child complainants' credibility; (4) the State failed to show that a prior out-of-state judgment was available for enhancement of appellant's punishment for his convictions in this case; and (5) the trial court erred in cumulating the sentences without a written order. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
By two separate indictments, appellant was charged with aggravated sexual assault of a child, involving two sisters, Anna and Betsy. Both complaints alleged that appellant placed toys inside their vaginas, which the girls referred to as their "coo-coos." The conduct was alleged to have occurred on or before June 21, 2005. Shortly thereafter, on June 30, 2005, the children participated in a forensic interview with employees from the Children's Assessment Center. At that time, Anna, the older girl, was five years old and Betsy, the younger, was three years and four months old. Neither child made outcry that appellant sexually abused them; however, Betsy answered affirmatively when asked if a grown-up had sexually abused them and responded that "somebody" had sexually abused her. In another forensic interview conducted three and a half months later, on October 13, 2005, both girls disclosed that appellant had placed toys in their "coo-coos." Appellant pleaded "not guilty" to the charged offenses. Appellant stood trial on both charges in a single trial in September 2007, following a hearing to determine the children's competency to testify at trial. The jury found appellant guilty as charged for each indictment. The indictment for each charge contained an enhancement paragraph alleging a prior out-of-state conviction for corruption of a minor. After finding the enhancement paragraph in each case true, the jury assessed appellant's punishment at confinement for life for each offense. The trial judge ordered the sentences to run consecutively. In five issues, appellant now challenges his convictions.II. ISSUES AND ANALYSIS
A. Was the younger child complainant competent to testify?
In his first issue, appellant complains that Betsy, the younger child, was not competent to testify about the sexual abuse and that her testimony should have been excluded. Though appellant does not challenge Anna's competency, appellant argues that Betsy's two 2005 forensic interviews, conducted when she was between three and four years old, as well as her testimony at the competency hearing and at trial, when she was five years old, demonstrated that she was incompetent to testify about the alleged incident of sexual abuse. Appellant complains Betsy could not recall significant information about the time frame of the charged offense and that the trial court abused its discretion in determining that she was competent to testify. Prior to voir dire, appellant moved for the trial court to assess the children's competency to testify about the alleged sexual abuse. Each child testified briefly at the pre-trial hearing. The trial court then reviewed videotapes of the children's interviews conducted in June 2005 and October 2005 by forensic investigators at the Children's Assessment Center. After reviewing videotapes and after hearing the children's pretrial testimony, the trial court found that both Anna and Betsy were competent to testify at trial. Both girls testified at trial. A trial court's determination of whether a child witness is competent to testify will not be disturbed on appeal absent an abuse of discretion. Dufrene v. State, 853 S.W.2d 86, 88 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). A reviewing court must review the child's entire testimony to determine if the trial court abused its discretion. Id. As a general rule, a witness is presumed to be competent to testify. TEX. R. EVID. 601; Dufrene, 853 S.W.2d at 88. A child is not competent to testify when, after an examination by the trial court, the child does not appear "to possess sufficient intellect to relate transactions" to which the child will testify. TEX. R. EVID. 601(a)(2); Dufrene, 853 S.W.2d at 88. When, as in this case, a party challenges the competency of a child witness, the trial court must be assured that the child has (1) the ability to intelligently observe the events in question at the time of the occurrence, (2) the capacity to recollect events, and (3) the capacity to narrate the events. Dufrene, 853 S.W.2d at 88-89. With respect to the child's capacity to narrate events, the child witness must be able to understand the questions asked and to frame intelligent answers to those questions. See Watson v. State, 596 S.W.2d 867, 870 (Tex.Crim.App. 1980); Hollinger v. State, 911 S.W.2d 35, 39 (Tex.App.-Tyler 1995, pet. ref'd). Although the child need not understand the "obligation of the oath," the trial court must impress the child with the duty to be truthful. See Dufrene, 853 S.W.2d at 88. There is no precise age under which a child is deemed incompetent to testify. See Fields v. State, 500 S.W.2d 500, 502-03 (Tex.Crim.App. 1973). Competency is determined on a case-by-case basis. Appellant complains of Betsy's competency to testify based on her forensic interviews in June 2005 and October 2005, citing Betsy's alleged "habit of giving fanciful responses." For example, appellant complains of the following responses, among others, in the June 2005 interview:$ Betsy responded that she was three days old when asked about her age;
$ Betsy said she lived with her mother, but could not give her mother's name;
$ When asked to give an example of a girl, Betsy was non-responsive;
$ Betsy appeared overwhelmed and non-responsive when asked about differences between a truth and a lie;
$ When asked if someone touched her in a private place, Betsy stated that her sister, Anna, had done so;
$ Betsy claimed her brother touched her "coo-coo," the term she uses for her vagina, with a belt;
$ She denied that any grown-up had touched her "coo-coo;" although she asserted that her brother made her private parts bleed, then he pushed her leg and it bled again.In the first forensic interview, conducted in June 2005, Betsy confirmed her name and age of three. Although her responses, at times, were difficult to discern, she explained with whom she lived, stated that she attended day care, and named some of the activities in which she participated while in day care and at home. Betsy and the interviewer discussed the differences between truthful statements and lies. Though Betsy correctly identified the characterization that she is a girl as being "true," she incorrectly said that a statement identifying her by her own name was false. She also said that appellant was her father, even though he was only the boyfriend of Betsy's mother. She identified parts of the body on a doll, naming the "coo-coo" as the part of the body "where you pee." She indicated that her brother and Anna each had touched her "coo-coo." She nodded affirmatively when asked whether a grown-up touched her "coo-coo." She did not name the person who touched her, indicating only that "somebody" touched her. She followed with a narrative of how her private parts hurt and bled and recounted how her brother (who is four years older) pushed her leg and spanked her. In a second forensic interview, conducted in October 2005, Betsy discussed the differences between truthful statements and lies and agreed to talk only about true things. When asked, she responded correctly with her name and age. She talked about two events involving her sister and mother. When she talked about appellant, she repeated several times that he put toys in her "coo-coo" and indicated that he put "a lot of them" in her "coo-coo." She showed the interviewer, using dolls, the body parts she called the "coo-coo" and "booty." Although her narrative of the events, at times, was difficult to understand, she recounted that "Larry" placed toys in her "coo-coo" and indicated Anna was involved, too. In reference to her "coo-coo," she said she screamed and hollered. She indicated her "booty" still hurt. She talked about Anna extensively in the interview, indicating that Anna was mean and hit her, touched her "booty," and engaged in fights. Betsy explained that when she got in trouble at her mother's house, she "got a whipping." When she talked about appellant, she stated several times that she "whupped" him. At the September 18, 2007 pre-trial competency hearing, Betsy indicated that she was five years old and attended kindergarten, naming both her school and teacher. She demonstrated that she was able to distinguish the difference between a truth and a lie, correctly characterizing the answer to each question posed to her as being true or a lie, and then explaining why. She acknowledged that at home she would get in trouble for telling lies and agreed to talk about only truthful things in court. On cross-examination, Betsy indicated that when she was four years old, she attended school at Oakwood, and she lived with her "nanna." Before living with her "nanna," she recalled living at Janice's [her mother's] house when she was three and attending day care at the time. She indicated that Janice took her to day care. Betsy also indicated that Janice was someone who put toys in her "coo-coo." Betsy recalled that she lived with Janice, appellant, and her brother and sister in Janice's home. Betsy testified that she did not remember a number of things including her day-care teachers' names, a man named "Tim," who is purportedly her father, or the name of a friend with whom she used to live. At the trial, Betsy again demonstrated her understanding of the difference between the truth and a lie and agreed to discuss only truthful matters. Betsy indicated on a doll the parts she refers to as a "coo-coo," and "butt," which she affirmed were the private body parts no one should touch. She identified appellant in court and explained how he put a "Barbie" doll, a doll's head, and a "Dora the Explorer" doll in her "coo-coo," and she bled afterward. She indicated that Anna witnessed the incident, that appellant also put toys in Anna's "coo-coo," and that Anna cried. She indicated that Janice, her mother, was present during the incident and that Janice took her to day care. She testified that appellant, whom she referred to as her father, did not live with her at the time. She indicated no one else put toys in her "coo-coo." On cross-examination, Betsy recounted how she used to live with Janice and that she attended day care at that time. Betsy did not remember her teachers' names at day care and testified that she did not know how she arrived at day care. She named appellant as her father, but she also indicated that "Tim," her purported father, lived with her at that time. She recalled that during that time in her life when she attended Oakwood, she had a room to herself at Janice's house. Betsy testified that it was in this room that the toys, including a doll head and a "Dora the Explorer" doll, were put in her "coo-coo," although she could not remember whether it was daytime or nighttime when the incident occurred. Betsy testified that Anna and Janice witnessed the incident. She could not recall whether any abuse against Anna happened before or after appellant's conduct with her. Although some of Betsy's responses showed some conflict and confusion, her testimony overall indicated sufficient accuracy in her recollection in that she was able to recall and narrate details of the event, by giving specific testimony about the location, timing, and details. See Long v. State, 770 S.W.2d 27, 29 (Tex.App.-Houston [14th Dist.] 1989), rev'd on other grounds, 800 S.W.2d 545 (Tex.Crim.App. 1990); see also A.R.S. v. State, No. 14-00-00237-CV, 2001 WL 930806, at *4 (Tex.App.-Houston [14th Dist.] Aug. 16, 2001, no pet.) (not designated for publication). Inconsistent testimony about a specific event affects the child's credibility, but not the child's competency. See De Los Santos v. State, 219 S.W.3d 71, 81 (Tex.App.-San Antonio 2006, no pet.); see also A.R.S., 2001 WL 930806, at *4. Furthermore, although Betsy had difficulty answering questions pertaining to collateral matters, a child's inability to testify to collateral matters does not affect the child's competency. See Clark v. State, 659 S.W.2d 53, 54-55 (Tex.App.-Houston [14th Dist.] 1983, no pet.) (providing that three-year-old child's testimony demonstrated she understood the incident well enough to describe it even if she did not use sophisticated language and had difficulty answering questions pertaining to collateral matters). In light of Betsy's answers to the qualification questions, in the videos and during the proceedings, and her testimony as a whole, the record demonstrates that Betsy adequately observed the events she described, recalled the incident with detail, and sufficiently related the events. See Dufrene, 853 S.W.2d at 88-89; Long, 770 S.W.2d at 29; see also A.R.S., 2001 WL 930806, at *4. Accordingly, the trial court did not abuse its discretion in determining that Betsy was competent to testify. See Dufrene, 853 S.W.2d at 88-89. But even if she were not, any error in deeming her competent to testify at trial would be harmless given the other evidence presented at trial. Assuming arguendo that Betsy was not competent to testify, on this record we could find no harm as a result of the trial court's decision to allow her testimony because the same facts were established by other admissible evidence introduced without objection. See Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App. 1986) ("Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove."). The record reflects that just before Betsy testified, Anna testified without objection, giving a detailed account of appellant's conduct with both Anna and Betsy. Anna testified that she saw appellant put a "Barbie" doll in Betsy's "private part," just as appellant did with Anna. Anna described how Betsy screamed and how appellant's actions drew blood. Anna's testimony, to which appellant did not object, established the same information regarding appellant's conduct with Betsy. See id. Therefore, error, if any, in admitting Betsy's testimony was harmless. See id. We overrule appellant's first issue.
B. Did the trial court err in excluding evidence of a witness's prior inconsistent statements?
In appellant's second issue, he complains that the trial court erred in limiting the direct examination of a forensic interviewer, Susan Odhiambo, regarding her interview with Anna in January 2005. In that interview, Anna made outcry of sexual abuse against her minor brother. Anna made no mention of any sexual abuse by appellant in that interview. Appellant complained that the interviewer's testimony would demonstrate that as early as January 2005, the child "had denied that appellant had abused her in any way." According to appellant, by not permitting appellant's trial counsel to question the forensic interviewer on this matter, the trial court violated the Texas Rules of Evidence and denied appellant the opportunity to confront and cross-examine his accusers under the state and federal constitutions. We review a trial court's ruling on the admissibility of a prior inconsistent statement under an abuse-of-discretion standard. Lopez v. State, 86 S.W.3d 228, 230 (Tex.Crim.App. 2002). Under this standard, as long as the trial court's ruling is within the zone of reasonable disagreement, a reviewing court will not reverse the trial court's decision. See id. Appellant called Odhiambo as an adverse witness. As a forensic interviewer with the Children's Assessment Center, Odhiambo testified that she interviewed Anna and Betsy on June 30, 2005, for the first time; neither child disclosed any sexual abuse by appellant during this interview. According to Odhiambo, the children disclosed allegations of sexual abuse by appellant in an October 2005 interview. In response to a question from appellant's trial counsel, Odhiambo denied interviewing the children in January 2005. After some discussion regarding whether she previously had interviewed Anna, the trial court instructed Odhiambo to return the next day after determining whether she interviewed the children in January 2005. When appellant's attorney attempted to question Odhiambo regarding Anna's allegations about her brother in the January 2005 interview, the State objected to the relevance of the allegations, and the trial court sustained the objection. At trial the next day, appellant's trial counsel made a bill of exception regarding Odhiambo's recollection of the January 2005 interview. Odhiambo admitted, after having reviewed her records, that she had interviewed Anna in January 2005, after the child made outcry that she had licked her minor brother's penis at her mother's direction. According to Odhiambo, in this January 2005 interview, Anna stated that her brother touched her vagina. Appellant complains Anna denied abuse by appellant as early as January 2005, based on the following exchange:[DEFENSE ATTORNEY]: And did [Anna] make an allegation against any adult person relating to any sexual abuse?
[WITNESS]: No, she did not.
[DEFENSE ATTORNEY]: Did she talkBdid she ever say that her natural father, [Tim], was a person that touched her coo-coo in an inappropriate way?
[WITNESS]: I don't recall anything about her father touching her.
[DEFENSE ATTORNEY]: Did you say something about her brother touching her in an inappropriate way in her coo-coo?
[WITNESS]: She did.
. . .
[DEFENSE ATTORNEY]: Did she make any mention at that point in time about the defendant, Larry Lee Wagner?
[WITNESS]: I believe she said she had two dads and she named Tim and Larry and that's about it.
[DEFENSE ATTORNEY]: And did she make any assertion that Larry Lee Wagner at this point in time had abused her in any way?
[WITNESS]: No, she did not.
[DEFENSE ATTORNEY]: Did you give her a chance to make any accusations about Larry Lee Wagner and her father with regard to sexual abuse, without leading her?
[WITNESS]: I asked her if anyone had touched her, and she only mentioned [Anna's brother].Appellant's attorney argued, "There is a report and this establishes that pursuant to 38.07(1) and the rules of evidence, her statements to this witness is [sic] inconsistent with the theory of the State's case. And as a matter of impeachment and as a matter of inconsistent statements, as a matter of 38.07(1) proffers, this evidence should go before the jury for its consideration." The trial court ruled that Odhiambo should not be questioned about any previous outcry made by Anna in the January 2005 interview involving allegations of abuse by her brother, whether Anna made outcry against appellant at that time, or when Odhiambo first saw Anna in January 2005. Texas Rule of Evidence 613(a) permits a party to impeach a witness with a prior inconsistent statement. TEX. R. EVID. 613(a); Lopez, 86 S.W.3d at 230. In order for a statement to be admitted under Rule 613(a), the trial court must be persuaded that a previous statement of a witness was inconsistent with her trial testimony. Lopez, 86 S.W.3d at 230. According to Odhiambo, in the January 2005 interview with Odhiambo, Anna identified her minor brother as a person who engaged in sexual activity with her. When asked if anyone had touched her, Anna mentioned that her brother had touched her, she did not address whether appellant had touched her or whether any person other than her brother had touched her. Therefore, appellant is incorrect in asserting that, in January 2005, Anna "denied that appellant had abused her in any way" and "stated that no adult had sexually abused her." Appellant has not demonstrated how Anna's statements to Odhiambo are inconsistent with Anna's statements at trial and in the videotaped interviews. After reviewing her records, Odhiambo admitted interviewing Anna in January 2005 for reasons unrelated to the charged offense. Odhiambo's testimony regarding Anna's statement in January 2005 that her brother had touched her inappropriately was not inconsistent with her statements in October 2005 and at trial that appellant touched her sexually. See Lape v. State, 893 S.W.2d 949, 955 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd) (overruling a complaint that trial court forbade questions of a police officer regarding the complainant's mother's prior accusations that other people, in addition to the accused, sexually abused the child complainant). If taken as true, at most, the testimony about the January 2005 interview may reflect that Anna's minor brother also had touched her in an inappropriate way. See Lape, 893 S.W.2d at 955. Moreover, to the degree that appellant complains Anna's outcry to Odhiambo in January 2005, regarding her brother, is evidence that Anna previously had accused another, prior disclosure of incidents of sexual abuse by a victim are not admissible unless they have been proven false. See id. at 955-56. Nothing in the record suggests that Anna's January 2005 outcry contained false allegations or discredits her in any way. See id. at 955. If a trial court's evidentiary ruling is reasonably supported by the record and is correct under any theory of law, then the ruling is within the zone of reasonable disagreement and should be upheld. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). Therefore, the trial court did not abuse its discretion in denying appellant's request to admit Odhiambo's testimony regarding her January 2005 interview with Anna. See Lopez, 86 S.W.3d at 231; see also Lape, 893 S.W.2d at 955-56 (providing that, even if taken as true, an officer's testimony regarding other allegations of sexual abuse at the hands of people other than the accused does not establish that the accusations were false nor would the officer's testimony discredit the complainant's testimony); Bargas v. State, 252 S.W.3d 876, 899 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Accordingly, we overrule appellant's second issue.
C. Did the trial court err in allowing witnesses to offer opinions that purportedly speak to the complainants' truthfulness or constitute "bolstering"?
In his third issue, appellant complains that, despite his objections, three witnesses each offered an opinion as to the child complainants' truthfulness, which appellant characterizes as "bolstering." Under Texas Rule of Evidence 702, if a witness possesses scientific, technical, or other specialized knowledge that will assist a fact finder, and if the witness is qualified as an expert by knowledge, skill, experience, training, or education, then that expert may testify with an opinion. TEX. R. EVID. 702; see Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App. 1997). An expert's testimony is admissible when a jury is not qualified "to the best possible degree" to intelligently determine an issue without the testimony. See Schutz, 957 S.W.2d at 59 (quoting Duckett v. State, 797 S.W.2d 906, 914 (Tex.Crim.App. 1990)). As such, expert testimony is intended to aid, rather than supplant, a jury's decision. Id. However, Rule 702 does not permit an expert to give an opinion that a complainant or a class of persons to which the complainant belongs is truthful. Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App. 1993). Therefore, expert testimony that offers a direct opinion on the truthfulness of a child complainant's allegations is not admissible under Rule 702. Id. We review a trial court's decision as to whether to allow an expert opinion for an abuse of discretion. See Gallo v. State, 239 S.W.3d 757, 765 (Tex.Crim.App. 2007). "Bolstering" is evidence used solely for the purpose of improperly adding credence or weight to a particular witness or source of evidence "without substantively contributing to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." See Cohn v. State, 849 S.W.2d 817, 819-20 (Tex.Crim.App. 1993); see Rivas v. State, 275 S.W.3d 880, 886-87 (Tex.Crim.App. 2009) (indicating that "bolstering" has ties to Texas Rule of Evidence 613(c), which involves prior consistent statements, and reiterates principles of hearsay). When the additional evidence makes a substantive contribution, corroborates other evidence, or has an "incrementally further tendency to establish a fact of consequence," that evidence does not constitute bolstering. See Cohn, 849 S.W.2d at 819-20. Accordingly, as substantive evidence, an expert may testify that a child exhibits symptoms consistent with sexual abuse, but that expert witness may not offer an opinion as to the child's truthfulness. Id. at 819. Appellant first complains of testimony by Rhonda Washington, a supervisor with Child Protective Services, who was involved in the case. Washington testified that after the June 2005 forensic interview, the children were acting out sexually, making allegations and outcries of sexual abuse, and disclosing the identity of the abuser. For this reason, she ordered a second forensic interview to be conducted in October 2005. Appellant complains of the following exchange during her testimony at trial:[PROSECUTOR]: Now, at that point in time, did [Child Protective Services] also make a finding in the case?
[WITNESS]: Yes.
[PROSECUTOR]: And what was that?
[WITNESS]: That sexual abuse did occur.
[PROSECUTOR]: By the?
[WITNESS]: The perpetrator known as [appellant]C
[APPELLANT'S TRIAL COUNSEL]: I object. This invades the province of the jury and is certainly hearsay.
[TRIAL COURT]: Overruled.
[PROSECUTOR]: You may answer the question. What was the finding that [Child Protective Services] made?
[WITNESS]: We had reason to believe — what happens when a referral comes in, it's either "reason to believe," "unable to determine." We noted it as "reason to believe" that sexual abuse did occur, and the perpetrator noted by the children was [appellant].Appellant characterizes Washington's testimony as vouching for the complainants' veracity by her testimony that the agency made a finding that the children told the truth. Washington did not vouch for the children's truthfulness in their allegations or express her opinion as to whether sexual abuse had occurred. See Johnson v. State, 970 S.W.2d 716, 720 (Tex.App.-Beaumont 1998, no pet.); see also Bowers v. State, No. 02-02-00250-CR, 2003 WL 22026428, at *6 (Tex.App.-Fort Worth 2003, pet. ref'd) (concluding "reason to believe" language did not comment on the complainant's truthfulness). Furthermore, she did not offer her opinion that appellant was the person who had abused the children. See Johnson, 970 S.W.2d at 720. Rather, Washington testified that her agency's investigation resulted in a conclusion that, based on the girls' accounts, there was "reason to believe" that appellant had sexually abused the children. See id.; see also Bowers, 2003 WL 22026428, at *6. In her testimony, Washington provided the agency's conclusion in the case and indicated the basis for the conclusion; however, Washington did not express an opinion as to the girls' truthfulness. See Johnson, 970 S.W.2d at 720 (concluding that expert did not express an opinion as to the credibility of any witness); see also Bowers, 2003 WL 22026428, at *6. Moreover, this testimony could assist a trier of fact in determining an issue for which the jury was not qualified to the "best possible degree" in deciding whether the alleged events occurred. See Johnson, 970 S.W.2d at 720, 721. Therefore, the trial court did not abuse its discretion in admitting Washington's testimony. See id. at 721. Appellant next complains of testimony from two therapists at the Children's Assessment Center who testified that Anna and Betsy each offered consistent accounts of the charged offenses. This testimony occurred after each child testified about the abuse. Natalie Mohashami, Betsy's play therapist, testified that Betsy's account of the abuse was consistent throughout the entire time she treated Betsy, as reflected in the following exchange:
[PROSECUTOR]: Did [Betsy] have the ability to convey what had occurred to her?
[WITNESS]: Yes.
[PROSECUTOR]: Has she been consistent during the entire time with her?
[APPELLANT'S TRIAL COUNSEL]: I object. This is just — this type of testimony —
[TRIAL JUDGE]: Legal objection only.
[APPELLANT'S TRIAL COUNSEL]: I object. It's based on — it's based on hearsay and it's not an exception and it's —
[TRIAL JUDGE]: Overruled.
[PROSECUTOR]: Has she been consistent with you the entire time that you saw her?
[WITNESS]: Yes.Following this exchange, the State passed the witness. To the extent that appellant complains Mohashami's testimony constitutes hearsay, the witness did not recount what Betsy said during the therapy sessions. See Head v. State, 4 S.W.3d 258, 262 (Tex.Crim.App. 1999) (involving an officer's testimony that other witnesses' statements were consistent with the complainant's account). The witness's statements did not lead to any conclusions regarding the substance of Betsy's out-of-court statements made to Mohashami during therapy. See id. The witness revealed only that Betsy recounted the same facts about what occurred; she did not reveal the substance or details of what the facts were or how Betsy's account was consistent. See id.; see also Gauna v. State, No. 03-04-00721-CR, 2006 WL 3841235, at *8-9 (Tex.App.-Austin Dec. 29, 2006, no pet.) (mem. op., not designated for publication) (concluding that testimony that complainant's account was consistent, as told to both an investigator and forensic interviewer, did not violate hearsay prohibition). To the degree that appellant claims Mohashami's testimony constituted a comment on Betsy's truthfulness, thereby bolstering the child complainants' credibility, we consider this argument along with disputed testimony from another therapist, Sally Totenbier, who affirmed that Anna was consistent in naming her abuser. Appellant characterizes the testimony from both therapists, in commenting on the children's consistency, as offering an opinion and direct comment as to the complainants' truthfulness. Appellant complains of testimony from Totenbier, Anna's dance therapist at the Children's Assessment Center, in the following exchange:
[PROSECUTOR]: During the time that you had with [Anna], did she understand what she was there to receive therapy for?
[WITNESS]: Oh, yes. Actually one of her first comments was that.
[PROSECUTOR]: Okay. Now, has she been consistent the entire time with you regarding the abuse and everything else?
[WITNESS]: Yes, she has.
[APPELLANT'S TRIAL COUNSEL]: I object. I withdraw the objection.
[PROSECUTOR]: Okay. Has she been consistent with you?
[WITNESS]: Yes, she has.
[PROSECUTOR]: Has she been consistent with [you] about whom her abuser was?
[APPELLANT'S TRIAL COUNSEL]: I object. I object. This goes to the ultimate question. I object to this witness being solicited for expert testimony thereon.
[TRIAL JUDGE]: Overruled.
[PROSECUTOR]: Has she been consistent with whom her abuser was?
[WITNESS]: Yes.The State passed the witness. Expert testimony may provide useful background information to aid a jury in evaluating the testimony of another witness — for example, by explaining that children who have been sexually abused sometimes offer conflicting accounts — as a way of assisting a factfinder in determining the impeachment value of a complainant's prior statements. See Pavlacka v. State, 892 S.W.2d 897, 903 n. 6 (Tex.Crim.App. 1994). In this case, the therapists' testimony did not disclose what the children said in therapy or the name of the abuser; rather, the testimony indicates that the children offered the same facts in their accounts of the abuse during therapy. See Head, 4 S.W.3d at 262 (overruling hearsay complaint to testimony regarding the consistency of a complainant's account); Gauna, 2006 WL 3841235, at *7 (determining experts' testimony of complainant's consistency in describing abuse is relevant evidence, not unfairly prejudicial, and not inadmissible hearsay). The therapists did not express an opinion that the children were abused or that the children were truthful in their allegations. See Cohn, 849 S.W.2d at 818. The primary purpose of their testimony was to provide useful background information for the jury to consider, based on the therapists' interactions with the children in therapy, and did not take the place of a factfinder. See Cohn, 849 S.W.2d at 818; see also Pavlacka, 892 S.W.2d at 903 n. 6 (providing that expert testimony may aid a factfinder by providing information that sexually abused children sometimes offer conflicting accounts). Although an expert witness may not directly comment on a complainant's truthfulness, an expert witness may testify to aspects of a complainant's demeanor that may suggest the complainant was subject to manipulation. See Burns v. State, 122 S.W.3d 434, 437 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (concluding that expert's testimony regarding psychological test results, which suggested victim answered questions in an open, non-defensive, and truthful manner, did not constitute an impermissible comment on the victim's truthfulness); see also Darling v. State, 262 S.W.3d 920, 924 (Tex.App.-Texarkana 2008, pet. ref'd) (providing that an expert witness's opinion testimony that a child does not exhibit signs of having been coached or manipulated to make a false accusation of sexual abuse does not amount to a comment on the child's truthfulness). In this case, the therapists indicated only that the children consistently offered the same facts of the alleged abuse, but the therapists did not attempt to suggest the children were truthful or that the children's allegations were true. See Burns, 122 S.W.3d at 437. Therefore, presuming that appellant voiced his appellate complaints regarding the therapists' testimony in the trial court, these complaints lack merit because the therapists' testimony that the children offered consistent accounts is not a comment on the children's truthfulness. Accordingly, we overrule appellant's third issue.
D. Did the State establish that a prior out-of-state conviction was available for enhancement of appellant's sentence?
Appellant complains that evidence of a prior Ohio conviction, involving corruption of a minor, was submitted to the jury for enhancement of his sentence, arguing (1) the State did not satisfy the business-record exception to the hearsay rule in tendering a multi-document exhibit, State's Exhibit 9, which contains references to the prior Ohio conviction; and (2) the State offered insufficient information to prove that the Ohio offense was substantially similar to Texas's statutory definition of "sexual assault," and, therefore, the State failed to show that the Ohio conviction was available for enhancement under Texas Penal Code section 12.42(c)(2)(B). Did the State satisfy the business-record exception to the hearsayrule? Appellant's complaint under the business-record exception centers on State's Exhibit 9, comprised of multiple documents from appellant's sex-offender records in Texas. These documents include appellant's sex-offender registration and verification forms and acknowledgment, updated forms for changes in address or employment, officers' field notes detailing appellant's contact with the county's sex-offender registration unit, and registration receipts and permits. Appellant's signature and fingerprints are contained within the documents along with information citing a prior Ohio conviction including a cause number, punishment, and county. When the State asked the trial court to admit Exhibit 9 into evidence as a business record, appellant objected to its admission, arguing that the witness, a sheriff's deputy who is a supervisor and custodian of records at the sex-offender registration unit of the sheriff's department, lacked personal knowledge regarding the Ohio conviction as reflected in Exhibit 9 to satisfy an exception to the hearsay rule. The trial court overruled appellant's objection. Through the testimony of another witness, three other evidentiary exhibits were subsequently admitted into evidence. These three exhibits were certified copies of judgments stemming from a conviction in Ohio for corruption of a minor. The witness connected appellant to the Ohio conviction by verifying that the Ohio cause number contained in Exhibit 9 was the same cause number listed for the three Ohio judgments. Appellant complains that without the deputy's personal knowledge of the Ohio conviction in creating Exhibit 9, the State had not laid the proper predicate for Exhibit 9 as a business record, and, therefore, the three exhibits from the Ohio conviction lacked relevance. The trial court overruled appellant's objection. Appellant argues on appeal that without Exhibit 9, the record lacks sufficient evidence to link him to the Ohio offense, and evidence of the Ohio conviction would not have been available for enhancement purposes, and, therefore, such evidence should not have been considered by the jury for enhancement. We review a trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999). If the trial court's ruling was within the zone of reasonable disagreement, we must affirm. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). The predicate for introducing a document under the business-records exception to the hearsay rule requires proof that (1) the record was made at or near the time of the activity by or from information transmitted by a person with knowledge of the events or conditions recorded, (2) the record was kept in the course of regularly conducted business activity, and (3) the record was made as part of a regular practice of the business activity. See TEX. R. EVID. 803(6); Shaw v. State, 826 S.W.2d 763, 765 (Tex.App.-Fort Worth 1992, pet. ref'd). The rule does not require that a witness laying the predicate for introduction of the business records to have created the records or even to have been an employee of the same business. See Shaw, 826 S.W.2d at 765. A qualified witness does not need to have personal knowledge regarding the contents of the records; rather, the witness must have knowledge of the mode of preparation of the records. Id. In this case, the sheriff's deputy testified that the county's sex-offender registration unit received appellant's criminal records from another agency, the probation department, and from the Ohio court. The deputy testified that sheriff's office personnel printed the information and researched it for accuracy. Specifically, the deputy testified that her agency confirmed that appellant was convicted of a sexual offense out of state by calling a probation officer who faxed the Ohio court papers to the sheriff's office. Sheriff's department personnel verified facts within the record with appellant, who signed many of the registration documents containing reference to the Ohio cause number. The deputy affirmed that this method is the usual practice of sheriff's department employees in confirming information of an offender and the records were kept in the regular course of business of her agency. Texas Rule of Evidence 803(6) does not require that employees of a sheriff's office have personal knowledge of the information transmitted to them by others. See Webb v. State, 840 S.W.2d 543, 547 (Tex.App.-Dallas 1992, no pet.) (involving jail cards containing prior criminal history that were used to link the accused to prior offenses); see also Jennings v. State, No. 01-94-00204-CR, 1994 WL 362706, at *3 (Tex.App.-Houston [1st Dist.] July 14, 1994, pet. ref'd) (not designated for publication) (concluding that sheriff's office personnel do not need personal knowledge of information received from court that is included in jail cards). In this case, the deputy who laid the predicate for introduction of Exhibit 9 as a business record demonstrated she had personal knowledge of the mode of preparation of the records.See Webb, 840 S.W.2d at 547. Therefore, the trial court did not abuse its discretion in admitting Exhibit 9 into evidence.See id.Did the State establish that the prior Ohio conviction was availablefor enhancement under Texas Penal Code section 12.42(c)(2)(B)? To the extent appellant argues that the Ohio statutes defining "corruption of a minor" and "sexual conduct," furnished by the State to the trial court, were insufficient and either outdated or too recent to enable the trial court to determine that appellant's 1995 Ohio conviction was substantially similar to a Texas offense, appellant has not preserved this argument for appeal. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004); Rezac v. State, 782 S.W.2d 869, 871 (Tex.Crim.App. 1990); see also Randolph v. State, No. 06-08-00058-CR, 2008 WL 5058597, at *2 n. 3 (Tex.App.-Texarkana Dec. 2, 2008, no pet.) (mem. op., not designated for publication) (noting that appellant did not object at trial, under Rule of Evidence 202, that the State offered insufficient information to enable the trial judge to take judicial notice of a foreign jurisdiction's statute). At trial, appellant complained that the Ohio conviction was different and not the same as or similar to "sexual assault" as defined by Texas's penal statutes. However, on appeal, appellant complains that the State did not offer sufficient information to enable the trial court to make its determination because the furnished Ohio statutes were either outdated or too recent for the trial court to consider the similarities of the 1995 Ohio conviction. Appellant's complaint on appeal does not comport with his objection at trial; therefore, the complaint is not preserved for appellate review. See Heidelberg, 144 S.W.3d at 537; Rezac, 782 S.W.2d at 871; see also Hill v. State, No. 05-94-00625-CR, 1995 WL 110573, at *5 (Tex.App.-Dallas Mar. 9, 1995, pet. granted, judgm't vacated) (mem. op., not designated for publication) (involving failure to preserve error as to judicial notice involving an evidentiary exhibit when objection at trial did not comport with argument on appeal). Accordingly, any such complaint is waived. However, appellant objected at trial and complains on appeal that the State did not show that a 1995 conviction in Ohio for corruption of a minor is available for enhancement of punishment within the purview of Texas Penal Code subsection 12.42(c)(2)(B). At a hearing outside of the jury's presence, the trial court considered whether an Ohio offense for corruption of a minor was substantially similar to an offense within the Texas Penal Code. The State furnished copies of two Ohio statutes, Ohio Revised Code sections 2907.04 and 2907.01. The record reflects that the trial court took judicial notice of the Ohio Revised Code section 2907.04, which contained elements of the offense of corruption of a minor, and subsection (A) of Ohio Revised Code section 2907.01, defining "sexual conduct." The trial court found that the Ohio conviction for corruption of a minor was substantially similar to the offense of sexual assault under section 22.011 of the Texas Penal Code. The two Ohio statutes, as offered by the State as Exhibits 16 and 17, were not included in the record and were not admitted into evidence. Therefore, in our review, we, too, take judicial notice of the Ohio statute setting forth the offense of corruption of a minor, as effective at the time of appellant's initial December 4, 1995 Ohio conviction. See TEX. R. EVID. 202; see also Gette v. State, 209 S.W.3d 139, 144 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (providing that courts may take judicial notice, under Rule of Evidence 202, of ordinances from another state). Ohio Revised Code section 2907.04, effective July 24, 1990, through July 1, 1996, provides in relevant part:(A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows other such person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.
(B) Whoever violates this section is guilty of corruption of a minor, a felony of the third degree. If the offender is less than four years older than the other person, corruption of a minor is a misdemeanor of the first degree.OHIO REV. CODE ANN. § 2907.04 (West 1990). Ohio subsection 2907.01(A), effective January 1, 1991, through July 1, 1996, defines "sexual conduct," as provided below,
vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.Id. § 2907.01(A) (West 1991). We review the trial court's interpretation of the Ohio and Texas statutes under a de novo standard. See Prudholm v. State, 274 S.W.3d 236, 238 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd). Subsection 12.42(c)(2)(B) of the Texas Penal Code requires punishment by imprisonment for life for certain repeat offenders. See TEX. PENAL CODE ANN. § 12.42(c)(2)(B) (Vernon Supp. 2008). We first consider whether the 1995 Ohio conviction was governed by subsection 12.42(c)(2)(B) of the Texas Penal Code as a previous conviction for an offense committed "under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv)." See TEX. PENAL CODE ANN. § 12.42(c)(2)(B)(v); Ex parte White, 211 S.W.3d 316, 318 (Tex.Crim.App. 2007). The trial court found that the Ohio statute contained substantially similar elements to section 22.011 of the Texas Penal Code. Subparagraph 12.42(c)(2)(B)(i) identifies "sexual assault" under Texas Penal Code section 22.011, among other offenses, as a prior conviction to be used for enhancement for life imprisonment. See TEX. PENAL CODE ANN. § 12.42.(c)(2)(B)(i); Ex parte White, 211 S.W.3d at 318; see also TEX. PENAL CODE ANN. § 22.011 (Vernon 2008) (providing elements of the offense of sexual assault). We consider whether the elements of the Ohio conviction are "substantially similar" to the elements of an offense within the purview of subsection 12.42(c)(2)(B)(iBiv). See TEX. PENAL CODE ANN. § 12.42.(c)(2)(B); Ex parte White, 211 S.W.3d at 318. Elements of another state's law are considered substantially similar to elements of an offense listed in section 12.42(c)(2)(B)(iBiv) when the elements of the other state's law parallel the elements of a single Texas offense. See Prudholm, 274 S.W.3d at 239. Under Ohio law, a person is guilty of the felony of corruption of a minor when that person engages "in sexual conduct with another, who is not the spouse of the offender, when the offender knows other such person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard." OHIO REV. CODE ANN. § 2907.04. "Sexual conduct" as contemplated by the Ohio statute, provided above, includes, among other conduct, vaginal and anal intercourse, fellatio, cunnilingus, and penetration of a person's vaginal or anal opening. See id. § 2907.01. In Texas, a person commits the offense of sexual assault of a child as contemplated by section 22.011(a)(2)(A) if that person intentionally or knowingly "causes the penetration of the anus or sexual organ of a child by any means." See TEX. PENAL CODE ANN. § 22.011(a)(2)(A). Under subsection 22.011(c), a "child" is defined as "a person younger than seventeen years of age who is not the spouse of the actor." Id. § 22.011(c) (Vernon Supp. 2008). Both the Ohio statutes and the Texas statute contemplate that an offense is committed when penetration of a child's anus or sexual organ occurs. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (defining "sexual assault" as penetration of a child's anus or sexual organ); id. § 22.011(c) (defining a "child" as a person who is under seventeen years of age); OHIO REV. CODE ANN. § 2907.01 (defining "sexual conduct" as including penetration of one's anus or vaginal opening); id. § 2907.04 (defining "corruption of a minor" as sexual conduct with another person "when the offender knows other such person is thirteen years of age or older but less than sixteen years of age"); see also Prudholm, 274 S.W.3d at 239 (providing that "substantially similar" elements of different statutes will "parallel" each other). We conclude the elements of the Ohio offense for which appellant was convicted are substantially similar to the elements of an offense listed in subparagraph (i) of subsection 12.42(c)(2)(B), specifically sexual assault of a child, as reflected in section 22.011(a)(2)(A) of the Texas Penal Code. See Ex parte White, 211 S.W.3d at 318 (holding Delaware offense of unlawful sexual contact is substantially similar to Texas offense of indecency with a child); see also Randolph, 2008 WL 5058597, at *2 (determining Minnesota offense of criminal sexual conduct was substantially similar to an offense in Texas of aggravated sexual assault of a child). Because of his prior conviction in Ohio, appellant has been "previously convicted," under the laws of another state of an offense containing elements that are substantially similar to the elements of an offense listed in subparagraph 12.42(c)(2)(B). See TEX. PENAL CODE ANN. § 12.42(c)(2)(B)(v); Ex parte White, 211 S.W.3d at 318. Accordingly, the trial court did not err in making the determination that the elements of the Ohio statute were substantially similar to an offense listed under section 12.42(c)(2)(B) of the Texas Penal Code. See Randolph, 2008 WL 5058597, at *2. Appellant complains that "the State did not show whether the State of Ohio in 1995, viewed the probation imposed in Case Number 95 CR 06572 as available for use in an enhancement allegation." According to appellant, if Ohio did not view a conviction for corruption of a minor as available for use of enhancement, then use of the Ohio conviction for enhancement under Texas Penal Code section 12.42(c)(2)(B) presents an issue under the ex post facto clause of the United States Constitution. As a general rule for purposes of subsection 12.42(c)(2), "a conviction under the laws of another state for an offense containing the elements that are substantially similar to the elements of an offense listed under Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B)," thereby making such an offense available for enhancement. TEX. PENAL CODE ANN. § 12.42(g)(1) (Vernon Supp. 2008); TEX. PENAL CODE ANN. § 12.42(c)(2)(B); see also Prudholm, 274 S.W.3d at 240 ("The Court of Criminal Appeals [in Ex parte White] did not emphasize the point, but it is significant that a person guilty of the Delaware law would also be guilty under Texas law."). Appellant's argument, regarding how Ohio viewed a conviction for corruption of a minor as available for enhancement, lacks merit because it is not necessary to determine whether an originating jurisdiction, in which a prior conviction occurred, considered the prior conviction to be available for use in the future as an enhancement.See Ex parte White, 211 S.W.3d at 320 n. 4. Furthermore it is not necessary to determine the effect of finality of a prior conviction in a foreign jurisdiction on enhancements in Texas. Id. As long as the record contains proof of a prior foreign conviction for an offense containing elements that are substantially similar to the elements of an offense listed under subsection 12.42(c)(2)(B), that prior foreign conviction may be used to enhance punishment under subsection 12.42(c)(2). See id. at 320. Because appellant previously was convicted under the laws of another state for an offense that is substantially similar to the elements of an offense listed in subparagraph 12.42(c)(2)(B), appellant's Ohio prior conviction was available to enhance punishment of the charged offenses. See TEX. PENAL CODE ANN. § 12.42(c)(2)(B)(v); Ex parte White, 211 S.W.3d at 318. Therefore, we overrule appellant's fourth issue.