Opinion
Nos. 05-07-00608-CR, 05-07-00609-CR
Opinion issued March 26, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F05-01604-I and F05-01605-I.
Before Justices WHITTINGTON, RICHTER, and MAZZANT.
OPINION
David Bruce Workman was twice convicted of indecency with a child by contact and sentenced to concurrent terms of five years in prison. In four issues, he argues the trial court erred in refusing to admit lay opinion testimony and the evidence is factually insufficient. For the following reasons, we affirm the trial court's judgments.
Background
According to the record, the complainant, A.W., who was thirteen years old at the time of trial, was born on June 22, 1993. A.W. and her half-sister B.N. lived with their mother and their mother's boyfriend in a town home in Garland, Texas. When she was in the fourth and fifth grades, A.W. and her sister would frequently visit and spend the night in appellant's home in Garland. Appellant was A.W.'s "stepgrandfather." One night in October of 2003, appellant's step son, Barry Brantley Nalls, who was also A.W.'s former stepfather, was at appellant's home playing a video game in the living room. Appellant's wife, Mary, was sitting at a desk in the corner of the bedroom playing a game on her computer. A.W. and B.N. were under the covers in the couple's bed watching television. B.N. had fallen asleep. A.W. recalled that she was "kind of" awake when appellant got into the bed between her and B.N. At some point appellant started to rub A.W.'s vagina, which she called her "front private parts," over her clothing in a circular motion. His hand then gradually moved under her clothing and he began to rub her vagina with his fingers. This made A.W. feel "awkward and confused." When the rubbing stopped, appellant grabbed A.W.'s right hand and placed it on his penis, which was "pulsing" like a heartbeat. Appellant moved A.W.'s hand away from his penis and "put it back" a few moments later, after which he whispered in her ear, "What you touch is yours." Appellant was under the covers with both girls and the lights were turned off. When Nalls walked into the bedroom and said something to appellant about a video game, he "jumped up" and stopped touching A.W. Appellant said "Okay," and got out of bed. A.W. then went into the bathroom and washed her hand, which was covered with a "sticky" substance. She got back into bed and there was no further abuse. A.W. recalled that, during the entire time appellant was touching her, appellant's wife was in the bedroom sitting at the computer desk. She was facing away from the bed and never turned around. A.W. said she did not report the abuse to appellant's wife because "she wouldn't believe me." A.W. also said that she did not think appellant's wife liked her. When asked why, A.W. responded, "I think it was because I was her stepgrandaughter or something." At school the next day, A.W. was "really scared" because she did not want to go back to appellant's house with him present. A.W. eventually told two of her friends, Wendy and Rebekka, what had happened. Rebekka, in turn, told her grandmother, and the matter was later reported to school officials. Within a couple of weeks, A.W. was sent to talk to Rhonda Johnson, the school counselor. A.W. told Johnson about the sexual abuse. She insisted that she told Johnson "the same thing" she told the jury. Johnson testified that A.W. told her about the sexual abuse on December 5, 2003. When A.W. came to her office, Johnson told her "a friend had said something to a grandmother that was concerning." A.W. "hung her head, . . . acted upset," and then told Johnson "the incident that happened." After listening to A.W. describe the offenses, Johnson asked A.W.'s mother, Angela, to come to school. A.W. then told Angela what had happened. Johnson said that A.W. told both her and Angela "the same thing." Angela said that before her daughter told her that she had been sexually abused by appellant, she "didn't have a clue" anything was wrong. She thought the call from Johnson "was because [A.W.'s] grades had been dropping rapidly the last few weeks." After listening to A.W.'s description of the sexual abuse, Angela turned to Johnson and said, "[W]hat do I do?" Johnson told Angela that she could contact either Child Protective Services or the police, and she decided to call the police. One of the Garland police officers who responded to that call, T.G. Franey, remembered that, in addition to the incident in the bedroom, A.W. also described a second incident that occurred on a couch in appellant's home, where appellant picked up A.W.'s feet, placed them on his lap, "and started rubbing his private parts as he was moving around." Irish Burch was a forensic interviewer at the Dallas Children's Advocacy Center (DCAC). She testified that she reviewed A.W.'s videotaped interview at the DCAC, which was played for the jury. Defense counsel asked Burch if she could hear A.W. saying, at the end of the forensic interview, "This is bullshit." Burch said she "didn't see that." At counsel's request, the videotape was replayed twice in the courtroom for Burch's review with "the volume turned up at little bit." Referring to the challenged portion of the videotape, Burch said, "I can't understand her." When asked by defense counsel what it "sounded like," Burch replied, "I can't make it out exactly to what she's saying." After standing closer to the television and watching the videotape for a third time, she said, "I can't understand that." After A.W. made her outcry statement, she participated in seventeen therapy sessions with Melissa Bailey, a registered play therapist with the DCAC, who testified that when A.W. spoke about the offenses she would sometimes "get anxious or tearful." Garland police officer Terry Harrison testified that appellant was arrested on December 10, 2003. Shortly after receiving the statutory warnings, appellant waived his rights and gave a written statement. In the written statement, appellant indicated that, on an unspecified evening prior to the Thanksgiving holiday in 2003, A.W. and B.N. were staying in his home and he got into bed with them. He recalled that his wife was in the bedroom using her computer. He also recalled that Nalls walked into the room to tell him about a computer game. He remembered falling asleep in the bed with both A.W. and B.N., but he did not "remember ever touching either granddaughter or making sexual motions to them ever." He also said that he "would not do that to them or anyone but my wife." After the State rested, the defense called Alta Deann Allen as its first witness. Allen was appellant's step daughter and had been raised by him for twenty-one years. She testified that A.W. was a "whiny . . . tattletale" and could be "very dramatic." She also said that A.W. "would turn something very small into something huge" and that she would sometimes "just tend to blow things up a little." Allen further testified that A.W. was choosing to stay in the house alone with appellant even after the Thanksgiving holiday in 2003. Based on her observations of A.W.'s behavior, Allen believed A.W. acted normally after the date of the offenses and did nothing to suggest she was afraid of appellant or that something was bothering her. The defense then called Cristen Parks, a school psychologist with the Dallas Independent School District. Parks had been appellant's step daughter since the age of five and lived in appellant's home from the ages of five to eighteen and from 2002 until 2004, after she graduated from college. She testified there were no indications in A.W.'s conduct to show she was afraid of appellant or that "something was wrong with her or had been done to her." The defense's final witness was appellant's step son, Nalls. He testified that he had been previously married to A.W.'s mother and that A.W. was his step daughter. B.N. was his biological daughter. He lived in appellant's house after separating from A.W.'s mother. He remembered that appellant would get into bed with A.W. and B.N. on nights the girls spent at appellant's house. Appellant usually laid on top of the bed covers and stayed there until A.W. and B.N. fell asleep. Nalls also testified that in the months leading up to appellant's arrest, he saw nothing in A.W.'s behavior to suggest she was troubled or acting differently. He also saw no change in the way A.W. acted toward appellant. He claimed she never appeared troubled.Discussion
Factual Sufficiency We begin with appellant's third and fourth issues, which claim the evidence in both cases is factually insufficient because (1) the State did not ask A.W. to clarify her alleged "this is bullshit" comment; (2) A.W.'s account of sexual abuse was implausible because other family members were present in the house at the time of the offenses; and (3) A.W.'s behavior after the offenses appeared normal to other family members who observed her. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight is to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). A person commits the offense of indecency with a child by contact if, with a child younger than seventeen years and not the person's spouse, the person engages in sexual contact with the child. Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). The offense is a second degree felony punishable by confinement for two to twenty years in prison and a fine of up to $10,000. Id. §§ 12.33, 21.11(d). The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault or indecency with a child. See Perez v. State, 113 S.W.3d 819, 838 (Tex.App.-Austin 2003, pet. ref'd); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Beginning with appellant's first argument, we note that, when analyzing the sufficiency of the evidence, a reviewing court must consider all evidence, rightly or wrongly admitted, that the trier of fact was permitted to consider. McCelvey v. State, 143 S.W.3d 522, 531 (Tex.App.-Austin 2004, pet. ref'd). In this case, the defense never asked A.W. whether she said, during her interview with the DCAC, "This is bullshit." Although defense counsel asserted during closing his argument that A.W. admitted in the videotaped interview that her story was "bullshit," no witnesses testified that A.W. made that statement. The only witness who testified on this subject heard the videotaped statement several times and said that portion of the tape was inaudible and she could not understand what A.W. was saying. The jury was instructed that, in deciding appellant's guilt, it could not consider any matters not in evidence and that it should disregard any statements made by counsel during the trial that were not supported by the evidence. In addition, the jurors watched the videotape and could determine for themselves what A.W. was actually saying. Finally, even if the jurors believed A.W. said, "This is bullshit," they might have concluded A.W. was simply commenting on the lengthy interrogation process and that she was not admitting her allegations were false. Appellant also suggests A.W.'s story was implausible because he could not have abused A.W. in the manner she described if there were other adults present in the bedroom at the time of the alleged sexual contact. Moreover, appellant claims A.W. never indicated to other adults in appellant's home, from the date of the offenses until the time of her outcry, that she had been abused. Neither argument is persuasive. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The jury was entitled to accept the State's testimony over the testimony presented by appellant, and we will not substitute our own determination for that of the jury. See Marshall, 210 S.W.3d at 625. Viewing all of the evidence in a neutral light, we therefore conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Thus, we conclude the evidence is factually sufficient to support appellant's convictions for indecency with a child. See Watson, 204 S.W.3d at 415. Appellant's third and fourth issues are overruled. Lay Opinion Testimony In his first and second issues, appellant claims the trial court erred by refusing to admit lay opinion testimony from Cristen Parks regarding her observations of A.W.'s behavior during the interview with the DCAC investigator, which was videotaped on the day A.W. made her outcry and played for the jury. At trial, when defense counsel asked Parks whether she noticed "anything strange" about A.W.'s behavior when she viewed A.W.'s videotaped statement, the court sustained the State's objection and concluded no predicate had been established for that line of questioning. Counsel then asked Parks to describe "exactly what her professional duties" were. She explained that she had worked as a school psychologist and that she was responsible for conducting "psychological batteries" of students "to determine their functioning within the school setting." Although as a school counselor Parks did not specifically focus on sexually abused children, she had been trained to spot the "signs of abuse in children." When defense counsel again attempted to ask Parks about A.W.'s videotaped statement, the State objected and the trial court sustained the objection. The trial court excused the jury and held a hearing on defense counsel's offer of evidence. Out of the jury's presence, defense counsel asked Parks whether she had observed anything on the videotape that would indicate A.W. "was not acting normally." Parks testified that while A.W. was normally a "very animated girl," on the videotape "her affect was just flat across the board." She said that portions of the statement "seemed rehearsed." Believing the defense had offered this testimony as expert opinion, the court refused to admit the testimony based on Parks' professional status as a counselor because her profession had nothing to do with determining whether A.W. had been coached in giving her statement. After further inquiry by the trial court, Parks admitted she was not trained to look at a videotaped statement and determine whether a child was telling the truth. The court concluded Parks would not be allowed to testify as an expert regarding A.W.'s truthfulness in making the recorded statement. Defense counsel then changed the offer and claimed Parks would not testify as an expert. He asked Parks whether, based on her knowledge and observations of A.W. on the videotape, she noticed anything that was not normal. Parks replied, "In my opinion of knowing her before and watching the video, she did not appear like it was truthful, in my opinion." The court concluded this testimony was inadmissible, stating, "I'm not going to let her testify to that." Defense counsel then made another offer, asking Parks to focus her testimony on any actions of A.W. that she thought were not the child's "normal" actions. Parks said she believed A.W. used "phrasing" that did not appear normal for her and that she referred to two family members in an unusual manner. The trial court concluded Parks' testimony that A.W. was not using her natural language, although offered as lay opinion, again amounted to testimony that Parks believed A.W.'s statement was false. The court stated, "That still leads to the same thing again, so I'm not going to allow that." We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App. 2006). If the court's decision is within the zone of reasonable disagreement, we will not disturb its ruling. Id. Rule 701 of the rules of evidence applies to the testimony of "traditional" witnesses who personally witnessed or participated in the events about which they are testifying. See Ellison v. State, 201 S.W.3d 714, 723 (Tex.Crim.App. 2006). A witness can testify in the form of an opinion under rule 701 if the opinions or inferences are (a) rationally based on his or her perceptions and (b) helpful to the clear understanding of the testimony or the determination of a fact in issue. Tex. R. Evid. 701; Osbourne v. State, 92 S.W.3d 531, 535 (Tex.Crim.App. 2002). Although lay and expert witnesses may testify to their opinions, "[i]t is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness and such opinion is therefore inadmissible evidence." Blackwell v. State, 193 S.W.3d 1, 21 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (citing Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App. 1997)). This type of testimony is inadmissible "because it does more than `assist the trier of fact to understand the evidence or determine a fact in issue;' it decides an issue for the jury." Yount v. State, 872 S.W.2d 706, 709 (Tex.Crim.App. 1993). Furthermore, in Kirkpatrick v. State, 747 S.W.2d 833, 836 (Tex.App.-Dallas 1987, pet. ref'd), this Court noted that, while expert witnesses may testify to matters within their expertise, expert testimony regarding a witness's propensity to tell the truth is impermissible. This rule applies to expert and lay witness testimony alike. Blackwell, 193 S.W.3d at 21; Fisher v. State, 121 S.W.3d 38, 41 (Tex.App.-San Antonio 2003, pet. ref'd); Arzaga v. State, 86 S.W.3d 767, 776 (Tex.App.-El Paso 2002, no pet.). The record in this case shows that defense counsel made three separate offers of evidence. The defense's first offer was for Parks to testify that, in her expert opinion, A.W. gave a "rehearsed" statement. As Parks freely admitted to the court, however, she was not trained to look at a videotaped statement and determine whether a child was telling the truth. Therefore, we conclude the trial court did not abuse its discretion by finding this testimony inadmissible. The defense's second offer was lay opinion testimony based on Parks' knowledge and observations of A.W. Parks stated that, in her opinion, A.W.'s videotaped statement was not truthful. No expert or lay witness, however, may give an opinion that another witness is telling the truth. See Blackwell, 193 S.W.3d at 21; Fisher, 121 S.W.3d at 41; Arzaga, 86 S.W.3d at 776; Kirkpatrick, 747 S.W.2d at 836. Accordingly, the trial court did not abuse its discretion when it found this testimony inadmissible. The defense's third offer was for Parks to testify that, in her opinion, A.W. used language that seemed unnatural for her. As we understand the defense's offer, the point of this testimony was to suggest to the jury that A.W. was not trustworthy because she either (a) had been coached or (b) rehearsed the videotaped statement. We believe the trial court did not abuse its discretion when it excluded this final offer of lay opinion testimony because it could have reasonably found Parks' testimony indirectly commented on A.W.'s truthfulness. See Kirkpatrick, 747 S.W.2d at 836 (expert should not express, either directly or indirectly, an opinion regarding the credibility of a child's complaint). Furthermore, even if we assume the trial court erred in excluding Parks's offered testimony, the error was harmless. As a general rule, error in the admission or exclusion of evidence does not rise to a constitutional level. Arzaga, 86 S.W.3d at 776; Reyes v. State, 69 S.W.3d 725, 742 (Tex.App.-Corpus Christi 2002, pet. ref'd); see also Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex.Crim.App. 2003) (erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights). With respect to the erroneous admission or exclusion of evidence, constitutional error is presented only if the correct ruling was constitutionally required, because a mere misapplication of the rules of evidence is not constitutional error. See Alford v. State, 22 S.W.3d 669, 673 (Tex.App.-Fort Worth 2000, pet. ref'd); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). In this case, the alleged error was in the exclusion of evidence in violation of the Texas Rules of Evidence. Thus, we apply the harmless error standard found in Texas Rule of Appellate Procedure 44.2(b). Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any non-constitutional error that does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002) (citations omitted). In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla, 78 S.W.3d at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In assessing harm, factors to be considered include the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. See Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Whether the State emphasized the error can be a factor. Motilla, 78 S.W.3d at 356. The weight of the evidence of appellant's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Id. at 359-60. In determining the magnitude of the harm resulting from the exclusion of Parks's offered testimony, we have examined and considered the entire record. To begin with, we note that, contrary to appellant's suggestion, Parks's testimony did not "irrefutably" establish that A.W.'s DCAC interview "was pressured and untrustworthy." Although Parks lived in appellant's home at the time of the offenses, she was not present at the time of the offenses and was not familiar with the circumstances under which those offenses occurred. She never talked to A.W. about her allegations and was not one of the adults to whom A.W. made her outcry. Parks also admitted to the trial judge that she was not trained to look at a videotaped statement and determine whether a child was telling the truth. Moreover, even without Parks's offered testimony, the defense was able to present evidence that rebutted the State's evidence and showed A.W.'s behavior after the alleged offenses was inconsistent with her allegations. The defense's theory at trial was that appellant could not have abused A.W. as charged in the indictments because other individuals were present in appellant's home when those offenses allegedly occurred. The defense also tried to cast doubt on A.W.'s allegations by pointing out that her post-offense behavior in the presence of appellant and other family members undermined her claim that she had been abused by appellant. To rebut A.W.'s allegations, the defense presented testimony from three other family members who observed A.W.'s behavior after the offenses and found no change in her behavior toward appellant or any indication that she had been abused. The defense also presented evidence that A.W. was prone to exaggeration and wanted to be alone with appellant even after the date of the offenses, thereby undermining her testimony that she was afraid of appellant. In addition, defense counsel used his closing argument to assert that A.W.'s behavior undermined her credibility. His closing statement, for example, reminded the jury that an expert in assessing child abuse lived in appellant's home:Let's talk about the home. From all respects, it was a normal household with several people living there. Cristen Parks lived there before she got married. She's seated here in the courtroom. She lived there. She's got a master's degree. What does she do?
Well, she's a counselor, a psychologist for the Dallas Independent School District. What is her job? To go out and counsel and assess whether or not children have been abused or has [sic] psychological problems. She lived there. She was in and out of the room every day.Defense counsel then pointed out that no one in appellant's home saw any signs of the alleged abuse. He also claimed A.W.'s story was farfetched and her behavior in appellant's home after the offenses undermined her allegations:
[A.W.] had her own bedroom. The girls, by the evidence that you've heard — Alta Allen, who was raised by [appellant], her stepfather, was over there almost — and the girls were over there almost daily every week, spending the night, going through normal activities.
You know, did anybody notice anything different in the demeanor of [A.W.] between the supposed time of this outcry and the time she said it happened? The particular thing is, not a single thing was noticed by anybody that was around her. And was she the type that would complain if she didn't like something?
You heard Alta Allen say, yeah, if she didn't like something, she was real quick to spout up about it and say, hey, I didn't like that or that kind of thing. You know, admittedly, this type of allegation is different from a brother or counsin slapping her or something. But still, is she that quiet kind of person where she would tell nobody or exhibit no symptoms of being molested in any respect to anybody that saw her during that period of time?Upon reviewing the entire record, we therefore conclude the trial court's error, if any, did not have a substantial and injurious effect or influence on the jury's verdict. Appellant also argues that, even if Parks's testimony was not admissible under rule 701, the State "opened the door" to such evidence by presenting testimony from A.W.'s mother, her school psychologist, her DCAC psychologist, and the DCAC interviewer, to show that A.W. was credible because she behaved abnormally after the alleged offenses. We need not address this issue. For the reasons stated above, we conclude the trial court's error, if any, was harmless. See Tex. R. App. P. 44.2(b). We overrule appellant's first and second issues. We affirm the trial court's judgments.