Galen Dwayne Baugus v. State ( 2017 )

ACCEPTED
09-16-00495-CR
NINTH COURT OF APPEALS
BEAUMONT, TEXAS
12/13/2017 3:26 PM
CAROL ANNE HARLEY
CLERK
NO. 09-16-00495-CR
IN THE COURT OF APPEALS FOR THE 9TH FILED IN
DISTRICT OF TEXAS AT BEAUMONT 9th COURT OF APPEALS
BEAUMONT, TEXAS
12/13/2017 3:26:17 PM
CAROL ANNE HARLEY
GALEN DWAYNE BAUGUS, Appellant, Clerk
v.
THE STATE OF TEXAS, Appellee.
Arising from:
Cause No. 14-07-08281-CR
IN THE 221ST DISTRICT COURT,
MONTGOMERY COUNTY, TEXAS
STATE’S APPELLATE BRIEF
BRETT W. LIGON
District Attorney
Montgomery County, Texas
NANCY HEBERT
Assistant District Attorney
Montgomery County, Texas
BRENT CHAPELL
Assistant District Attorney
Montgomery County, Texas
T.B.C. No. 24087284
207 W. Phillips, Second Floor
Conroe, Texas 77301
936-539-7800
936-788-8395 (FAX)
brent.chapell@mctx.org
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2, the State hereby supplements the
appellant’s list of parties to this appeal with the names of all trial and appellate
counsel for the State:
District Attorney: BRETT W. LIGON
District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
Counsel for the State in the trial court: NANCY HEBERT
JEFF HOHL
Assistant District Attorneys
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
Counsel for the State in the appellate courts: BRENT CHAPELL
Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................v
STATEMENT OF THE CASE...................................................................................1
STATEMENT OF FACTS .........................................................................................1
SUMMARY OF THE STATE’S ARGUMENT.........................................................4
ARGUMENTS AND AUTHORITIES ......................................................................6
I. The trial court did not reversibly err by denying the
appellant’s motion for continuance to allow an expert more
time to review inconsequential DNA findings. .............................................6
II. The trial court did not abuse its discretion by admitting
evidence related to an extraneous sexual assault of a child
under article 38.37.........................................................................................8
A. The appellant sexually assaulted K.B. when she was a
child. ....................................................................................................10
B. The appellant failed to preserve his constitutional claims. ................. 11
C. Courts have consistently upheld article 38.37 in the face
of constitutional challenges. ................................................................12
III. The trial court did not abuse its discretion by concluding that
the probative value of the extraneous offense evidence was
not substantially outweighed by the danger of unfair
prejudice. .....................................................................................................14
iii
IV. The trial court did not abuse its discretion by permitting Dr.
Lawrence Thompson’s testimony. ...............................................................16
A. Dr. Thompson is qualified to testify as an expert about
child sexual abuse................................................................................17
B. Any error in allowing Dr. Thompson to quantify the
frequency in which he experiences children falsely
alleging sexual abuse was not preserved and did not harm
the appellant. .......................................................................................18
V. The trial court did not reversibly err by exempting an expert
from “The Rule.”.........................................................................................21
VI. The evidence is sufficient to support the jury’s verdict based
on K.G.’s testimony and other corroborative evidence. .............................24
CONCLUSION AND PRAYER ........................................................................27
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ....................................28
CERTIFICATE OF SERVICE ...........................................................................28
iv
INDEX OF AUTHORITIES
Cases
Allen v. State, 436 S.W.3d 815 (Tex. App.—Texarkana 2014, pet. ref’d) ...............23
Alvarez v. State, 491 S.W.3d 362
(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) ...............................................12
Barshaw v. State, 342 S.W.3d 91 (Tex. Crim. App. 2011).......................................21
Belcher v. State, 474 S.W.3d 840
(Tex. App.—Tyler 2015, no pet.) .............................................................. 9, 13, 14
Bezerra v. State, 485 S.W.3d 133
(Tex. App.—Amarillo 2016, pet. ref’d) ........................................................ 13, 14
Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990) ....................................9, 12
Briones v. State, No. 14-07-01047-CR, 2009 WL 2356626
(Tex. App.—Houston [14th Dist.] July 30, 2009, pet. ref’d)...............................18
Burdick v. State, 474 S.W.3d 17
(Tex. App.—Houston [14th Dist.] 2015, no pet.) ..................................................8
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) .............................................9
Caston v. State, No. 01-16-00260-CR, 2017 WL 3298320
(Tex. App.—Houston [1st Dist.] Aug. 3, 2017, no pet.) ......................................13
Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012)..........................................12
Dowling v. United States, 493 U.S. 342 (1990) .........................................................9
Drillex Sys., Inc. v. Flores, 1 S.W.3d 112 (Tex. 1999) .............................................22
Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007)..........................................17
Gaytan v. State, 331 S.W.3d 218 (Tex. App.—Austin 2011, pet. ref’d)..................15
Giglioblanco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006)..............................14
Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) ..................................6, 7
v
Harris v. State, 475 S.W.3d 395
(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) ............................................13
Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................24
Jones v. State, 428 S.W.3d 163
(Tex. App.—Houston [1st Dist.] 2014, no pet.) ...................................................25
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ....................................20
Long v. State, 742 S.W.2d 302 (Tex. Crim. App. 1987).............................................9
Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012) .......................................25
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) .........................................20
Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015) ......................................24
Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013) .......................................15
Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006) ...................................7, 8
Robisheaux v. State, 483 S.W.3d 205
(Tex. App.—Austin 2016, pet. ref’d) ............................................................ 13, 15
Russell v. State, 155 S.W.3d 176 (Tex. Crim. App. 2005) ................................ 22, 23
Shaw v. State, 329 S.W.3d 645
(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) ............................................20
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) ........................................9
Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991) ........................................19
Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006) ............................................17
Webb v. State, 766 S.W.2d 236 (Tex. Crim. App. 1989) ..........................................22
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) ......................................25
vi
Statutes
Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2017) ......................................25
Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp. 2017) ......................................10
Tex. Penal Code Ann. § 12.42 (West Supp. 2017).....................................................1
Tex. Penal Code Ann. § 22.021 (West Supp. 2017).............................................1, 25
Rules
Fed. R. Evid. 414 .....................................................................................................13
Tex. R. App. P. 33.1............................................................................................11, 19
Tex. R. App. P. 44.2..................................................................................................20
Tex. R. Evid. 403............................................................................................... 14, 16
Tex. R. Evid. 614......................................................................................................22
Tex. R. Evid. 702......................................................................................................17
vii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
STATEMENT OF THE CASE
The appellant was charged by indictment with aggravated sexual assault of a
child 1 (C.R. 30, 398). For purposes of punishment enhancement, the indictment
further alleged that the appellant previously pleaded guilty to committing the
felony offense of sexual assault (C.R. 30, 398). The jury found the appellant guilty
and, after hearing additional evidence, found the enhancement paragraph to be true
and assessed the appellant’s punishment at imprisonment for life2 (C.R. 465).
STATEMENT OF FACTS
K.G. and her brother often visited their grandparents and stayed with them
for several weeks at a time (5 R.R. 31; 6 R.R. 148). During one of those visits,
K.G.’s aunt—Angela Havard—planned on taking K.G., K.G.’s brother, and some
of their cousins—Arthur, Braeden, and Baileigh—to a local waterpark called
Splashtown (5 R.R. 42, 94; 6 R.R. 150). April Havard is the mother of Braeden
and Baileigh, and the appellant is April’s fiancé (5 R.R. 23; 7 R.R. 153). The night
before Angela took the kids to Splashtown, K.G. and her brother slept over at
April’s house with Braeden and Baileigh (6 R.R. 153).
1
See Tex. Penal Code Ann. § 22.021(a)(1)(B) (West Supp. 2017).
2
Given the finding of “true” to the enhancement allegation, the appellant
was subject to an automatic sentence of life imprisonment. See Tex. Penal Code
Ann. § 12.42(c)(2)(B)(ii) (West Supp. 2017).
1
The next morning, April went to work and left the kids under the appellant’s
supervision, despite the fact that he was serving deferred adjudication community
supervision for committing sexual assault and was not supposed to be around
children other than April’s (5 R.R. 33; 7 R.R. 198). Baileigh had basketball camp
that morning, so the appellant drove her in his Chevrolet Silverado to the
basketball camp at a nearby high school, and K.G. rode along with them (6 R.R.
157; 7 R.R. 230). K.G. was wearing pajamas and one of Baileigh’s robes (6 R.R.
154–55). After dropping off Baileigh, the appellant asked K.G. to sit in the front
seat, so she relocated there from the back seat (6 R.R. 158).
K.G. testified that on the short drive back to April’s house, the appellant
stopped at a stop sign, told K.G. to open her legs, moved her shorts and panties to
the side, and used his finger to touch “inside” K.G.’s vagina, “where [her] hole is,”
“past the fatter outer lips” (6 R.R. 159–63, 164–65). The appellant moved his hand
“up and down” while asking K.G., who was nine years old, “do you like that?” (6
R.R. 167). K.G. eventually told the appellant to stop, and he replied “do you want
to try anything else?” (6 R.R. 167). When K.G. declined, the appellant drove them
back to April’s house and instructed K.G. to take a shower (6 R.R. 167, 169). K.G.
recalled that her vagina “stung” when she urinated, and she hypothesized that
something was on the appellant’s hands (6 R.R. 169). When Angela arrived to take
2
the kids to Splashtown, she noted that K.G. had just taken a shower and had wet
hair, which was odd given that they planned to go to the pool (5 R.R. 101–02).
After the assault, K.G. felt “nervous” and “embarrassed,” and she hesitated
to tell anyone about it because she “didn’t want to ruin anyone’s day” (6 R.R. 168,
172). But “the whole thing” was on K.G.’s mind throughout the day (6 R.R. 173).
That night, after returning from Splashtown, K.G. got into bed with her
grandmother and told her what had happened (6 R.R. 178). This revelation
included details such as the appellant’s questions to K.G. during the assault, where
the assault occurred, where the appellant put his finger inside K.G.’s vagina, and
that the appellant told K.G. to take a shower (5 R.R. 150–51). K.G.’s grandparents
called her mother, Wendy Gonzales, and K.G tearfully told Wendy what had
happened (5 R.R. 49; 6 R.R. 180). Based on that conversation, Wendy and K.G.’s
father—who was then estranged from Wendy—immediately drove in the middle of
the night from San Antonio to the grandparents’ house in Porter (5 R.R. 47).
K.G.’s parents reported the outcry to police (5 R.R. 53), and Detective Todd
Hoff of the Montgomery County Sheriff’s Office set up a forensic interview and
sexual assault nurse examination (SANE) for K.G. and her brother (6 R.R. 63, 65,
73). Hoff confirmed from K.G.’s brother’s interview that K.G. had taken a shower
after dropping off Baileigh at basketball camp with the appellant (6 R.R. 91–93).
3
Hoff also swabbed for potential DNA several portions of the appellant’s truck and
the robe K.G. wore during the assault (6 R.R. 95–96, 98).
The SANE nurse testified that, during the examination, K.G. relayed that
“[the appellant] touched me with his finger in the girl’s part right there” while
pointing to female genitalia on a diagram (7 R.R. 128). K.G. further recalled that
“[the appellant] pulled my shorts over and my panties and started digging”; and he
asked if she liked it and whether she wanted to try something else (7 R.R. 128).
K.G. also conveyed that it hurt while she urinated after the assault (7 R.R. 128).
SUMMARY OF THE STATE’S ARGUMENT
Reply to Point of Error One: The trial court did not reversibly err in
denying the appellant’s motion for continuance to allow a defense expert more
time to review the DNA findings. The appellant has shown neither what further
review would have revealed nor how more time would have benefitted his defense,
especially given that the State agreed and presented to the jury that the DNA
findings did not implicate the appellant in this case.
Reply to Point of Error Two: The appellant failed to preserve his
constitutional challenge to article 38.37, section 2(b) of the Code of Criminal
Procedure, because the appellant never argued at trial that the admission of
evidence that he sexually assaulted another child violated his right to due process.
4
And even if error had been preserved, this Court need not stray from its sister
courts in upholding the constitutionality of section 2(b).
Reply to Point of Error Three: The appellant’s main defensive theory at
trial was that K.G. fabricated the allegations of sexual assault. Thus, evidence that
the appellant sexually assaulted another child was relevant to show that K.G. was
not lying, and therefore, that the appellant sexually assaulted K.G. in this case.
Given the procedural safeguards limiting the prejudicial impact of such evidence,
the trial court did not abuse its discretion in overruling the appellant’s Rule 403
objection.
Reply to Point of Error Four: Dr. Lawrence Thompson, Jr., is educated and
trained in the area of child sexual abuse, has vast clinical experience in treating
child sexual abuse victims, and has testified as a child sexual abuse expert in
numerous cases. Thus, he is well qualified to provide expert testimony in cases
involving child sexual abuse. And insofar as the appellant preserved error, any
error in allowing Thompson to quantify—based on his clinical experience—the
occurrence of false allegations in child sexual abuse cases was harmless.
Reply to Point of Error Five: Any error in allowing K.G.’s counselor, Jacy
Palmitier, to remain in the courtroom during the testimony of K.G. and Dr.
Thompson did not have a substantial and injurious effect on the jury’s verdict.
Palmitier’s testimony merely recalled her conversations with K.G. and did not
5
reference anyone else’s testimony, and K.G.’s account of the sexual abuse was
consistent and unwavering from her first outcry through her testimony at trial.
Reply to Point of Error Six: K.G. unequivocally testified, consistent with
her prior statements to other witnesses, that the appellant inserted his finger inside
K.G.’s vagina when she was nine years old. Thus, the jury could reasonably find
K.G. to be credible, and the evidence is sufficient to support the appellant’s
conviction for aggravated sexual assault of a child.
ARGUMENTS AND AUTHORITIES
I. The trial court did not reversibly err by denying the appellant’s motion
for continuance to allow an expert more time to review inconsequential
DNA findings.
The appellant’s first point argues that the trial court erroneously denied his
motion for continuance, thus denying him the opportunity to investigate potential
DNA issues with the case (Appellant’s brief at 8–9). This request stems from the
appellant’s inability to obtain portions of the DNA analysis records until the time
of trial.
To show reversible error predicated on the denial of a pretrial motion for
continuance, “a defendant must demonstrate both that the trial court erred in
denying the motion and that the lack of a continuance harmed him.” Gonzales v.
State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). The resolution of a pretrial
motion for continuance for the purpose of securing expert assistance is
6
“particularly within the discretion of the trial court.” Id. at 843–44 (emphasis in
original). And a defendant must show “specific prejudice to his defense” to
establish that the trial court abused its discretion in refusing to grant a continuance.
Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006).
The DNA evidence in this case did not inculpate the appellant—the swabs
taken from the robe K.G. wore during the assault excluded the appellant as a
contributor, and the swabs taken from the truck excluded K.G. as a contributor (7
R.R. 152–54). It is unclear what the appellant seeks to glean from expert review of
the entirety of the DNA records. Moreover, the record does not show that the
appellant made any effort to have an expert review the data after the trial, and the
contents of such a review are not before this Court.
The appellant’s claims of prejudice are general and lack the level of
specificity required to entitle him to a new trial. See Gonzales, 304 S.W.3d at 842
(discussing “considerable specificity” required to establish harm due to the denial
of a continuance). The appellant has suggested actual prejudice because “no
independent review of the underlying DNA data was able to be conducted”
(Appellant’s brief at 12), but the appellant has not suggested how or why such
review was necessary to further his defense. Rather, the appellant appears to
concede that any potential benefit is merely speculative: “In truth, because the trial
court denied Appellant’s continuance, it is unknown what information might have
7
been gleaned from the independent expert’s review of the DNA files” (Appellant’s
brief at 12) (emphasis added).
Such a generalized showing—without any suggestion of what the expert’s
review would have uncovered—fails to establish that the trial court abused its
discretion by denying the motion for continuance. See Renteria, 206 S.W.3d at
699; see also Burdick v. State, 474 S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (finding no reversible error in denial for continuance where the
additional evidence the defendant sought was not material to his case). Because
the appellant has failed to show that the trial court abused its discretion by denying
his motion for continuance on the week of trial, this Court should overrule the
appellant’s first issue.
II. The trial court did not abuse its discretion by admitting evidence related
to an extraneous sexual assault of a child under article 38.37.
The appellant’s second point argues that the trial court erred by admitting
evidence during the guilt phase of trial related to the appellant’s sexual assault of
another child, K.B. (Appellant’s brief at 12–13). The appellant does not suggest
that the nature of the extraneous crime does not fall within the purview of article
38.37 of the Code of Criminal Procedure, but instead argues that the admission of
such evidence violated his constitutional rights to due process and the due course
of law (Appellant’s brief at 13). The appellant contends that the trial court’s ruling
8
deprived him of the right to an impartial jury by infringing on the presumption of
innocence and lowering the State’s burden of proof (Appellant’s brief at 13).
The due process clause requires the State to prove every element of a
charged crime beyond a reasonable doubt. Byrd v. State, 336 S.W.3d 242, 246
(Tex. Crim. App. 2011). Generally, the State must try an accused only for the
charged offense and not for a collateral crime or being a criminal generally.
Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). The essential
guarantee of due process is that the government may not imprison or otherwise
physically restrain a person except in accordance with fair procedures. Long v.
State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987), overruled on other grounds,
Briggs v. State, 789 S.W.2d 918, 921 (Tex. Crim. App. 1990). To establish a due
process violation, the appellant must show “that the challenged statute or rule
violates those ‘fundamental conceptions of justice which lie at the base of our civil
and political institutions and which define the community’s sense of fair play and
decency.’” Belcher v. State, 474 S.W.3d 840, 843 (Tex. App.—Tyler 2015, no pet.)
(quoting Dowling v. United States, 493 U.S. 342, 353 (1990)).
Article 38.37 provides that in trials for certain sexual offenses:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
subject to Section 2-a, evidence that the defendant has committed a
separate offense described by Subsection (a)(1) or (2) [including
sexual assault of a child] may be admitted in the trial of an alleged
offense described by Subsection (a)(1) or (2) [including aggravated
sexual assault of a child] for any bearing the evidence has on relevant
9
matters, including the character of the defendant and acts performed
in conformity with the character of the defendant.
Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b) (West Supp. 2017). Section 2-a
provides a procedural safeguard by requiring the trial court, before admitting
evidence described by section 2, to: (1) determine that the evidence likely to be
admitted will be adequate to support a finding by the jury that the defendant
committed the separate offense beyond a reasonable doubt; and (2) conduct a
hearing outside the presence of the jury for that purpose. Id. art. 38.37, § 2-a.
A. The appellant sexually assaulted K.B. when she was a child.
In a hearing outside the presence of the jury, the State proffered evidence
regarding an extraneous offense committed by the appellant against K.B. 3 That
evidence showed that in 2003, when K.B. was sixteen years old and the appellant
was an adult, K.B. went to a bonfire party where she drank alcohol and met the
appellant (4 R.R. 4; 3 MAJ R.R. 16–17). K.B. rode a four-wheeler with the
appellant and at some point stopped and got ants all over her pants (4 R.R. 5; 3
3
K.B. testified extensively in a motion to adjudicate hearing stemming from
a separate sexual assault case, in trial court cause number 08-12-11826-CR, and in
which the appellant previously pleaded guilty in exchange for the State’s
recommendation of community supervision. The adjudication hearing took place
the week prior to trial in this case. The trial court allowed the State to proffer the
same evidence in this case and specifically referred back to the court’s knowledge
of the testimony from that hearing (4 R.R. 4–5). Accordingly, the State has filed in
this Court a motion to consider the record from the adjudication hearing for
purposes of deciding this appeal. This brief designates citations to the record of
the adjudication hearing as “MAJ.”
10
MAJ R.R. 18). When K.B. removed her pants in an attempt to shake off the ants,
the appellant and his friend came over and started touching her (4 R.R. 5; 3 MAJ
R.R. 20). The appellant touched K.B.’s vagina while his friend fondled her breasts
(3 MAJ R.R. 20). K.B. told them to stop and asked to go back to the bonfire (3
MAJ R.R. 21).
But when they arrived at the bonfire, no one else was there, so K.B. told the
appellant to take her home (3 MAJ R.R. 21–22). The appellant took K.B. to his
house, and at that point, she started to “black out” (3 MAJ R.R. 22). K.B.
remembered the appellant telling her she could not ride in his truck while she was
“filthy” (3 MAJ R.R. 22–23). K.B. also remembered waking up in the shower,
naked, while the appellant and his friend stared at her (3 MAJ R.R. 23). K.B.
remembered next lying on the appellant’s bed, and the appellant was on top of her,
“raping [her,]” by having vaginal intercourse (4 R.R. 6; 3 MAJ R.R. 24). As he
molested K.B., the appellant looked back at his friend and told him that K.B. had
“a nice tight ass” (3 MAJ R.R. 24). K.B. woke up the next morning and asked the
appellant to take her home, but the appellant dropped K.B. off about three blocks
from her destination (3 MAJ R.R. 25).
B. The appellant failed to preserve his constitutional claims.
A party must timely and specifically object to preserve error for appeal. See
Tex. R. App. P. 33.1(a)(1)(A). Even constitutional errors—including due process
11
and due course of law challenges—may be forfeited by failing to object at trial.
See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (failure to object
to violation of due process right to fair trial waived error); Briggs, 789 S.W.2d at
924.
Here, the appellant did not object on grounds that the trial court’s admission
of the evidence related to his sexual assault of K.B. violated his right to an
impartial jury, infringed upon the presumption of innocence, or lowered the State’s
burden of proof. He instead limited his objections to article 38.37 and Rule of
Evidence 403 (6 R.R. 225). These objections did not preserve his claim on appeal
that the admission of extraneous offense evidence violated his constitutional rights
to due process and the due course of law. See Alvarez v. State, 491 S.W.3d 362,
368–69 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (failure to raise due
process challenge to art. 38.37, § 2(b), at trial did not preserve claim on appeal).
C. Courts have consistently upheld article 38.37 in the face of
constitutional challenges.
Even if this Court assumes for argument’s sake that the appellant preserved
his constitutional claims, multiple courts of appeals have held that article 38.37,
section 2 does not violate a defendant’s rights to due process and due course of law.
For example, in Belcher, the Twelfth Court of Appeals addressed the
constitutionality of article 38.37, section 2, of the Code of Criminal Procedure. See
Belcher, 474 S.W.3d at 843. The court reviewed the history of character-
12
propensity evidence and the fact that a federal statute with “virtually the same
effect has been upheld in the face of constitutional challenges.” See id. at 846
(discussing Fed. R. Evid. 414(a)). In rejecting the defendant’s constitutional
challenge, the court noted the unique evidentiary concerns in child sexual abuse
cases, and ultimately reasoned that section 2(b) is more narrowly drawn than its
federal counterpart and has several procedural safeguards that “protect the
defendant against the admission of evidence that is so prejudicial as to deprive the
defendant of a fair trial.” Id. at 847. Several other intermediate courts of appeals
have addressed similar constitutional challenges to section 2(b) and have uniformly
upheld its constitutionality. See, e.g., Caston v. State, No. 01-16-00260-CR, 2017
WL 3298320, at *8 (Tex. App.—Houston [1st Dist.] Aug. 3, 2017, no pet.) (not yet
published); Bezerra v. State, 485 S.W.3d 133, 139–40 (Tex. App.—Amarillo 2016,
pet. ref’d); Robisheaux v. State, 483 S.W.3d 205, 209 (Tex. App.—Austin 2016,
pet. ref’d); Harris v. State, 475 S.W.3d 395, 403 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d).
The appellant has not raised novel arguments to convince this Court to stray
from its sister courts. Thus, article 38.37, section 2(b), does not deprive the
appellant of his right to due process, and this Court should reject his constitutional
challenge.
13
III. The trial court did not abuse its discretion by concluding that the
probative value of the extraneous offense evidence was not substantially
outweighed by the danger of unfair prejudice.
The appellant’s third issue argues that evidence of the extraneous sexual
assault of K.B. was inadmissible under Rule of Evidence 403.
One of the procedural safeguards of article 38.37 is that evidence admitted
pursuant to section 2(b) is still subject to a Rule 403 analysis. See Belcher, 474
S.W.3d at 847. Rule 403 provides that a trial court may exclude otherwise relevant
evidence if the probative value of that evidence is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury, undue
delay, or the needless presentation of cumulative evidence. Tex. R. Evid. 403.
When conducting a Rule 403 analysis, the trial court must balance:
(1) the inherent probative force of the proffered item of evidence
along with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis, (4)
any tendency of the evidence to confuse or distract the jury from the
main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate the probative
force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat
evidence already admitted.
Giglioblanco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Rule 403
favors the admission of relevant evidence, and there is a presumption that relevant
evidence will be more probative than prejudicial. Bezerra, 485 S.W.3d at 140. An
14
appellate court reviews a trial court’s Rule 403 ruling for an abuse of discretion.
Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013).
Evidence that a defendant has sexually abused another child is relevant to
whether the defendant sexually abused the child victim in the charged case. See
Robisheaux, 483 S.W.3d at 220–21; Gaytan v. State, 331 S.W.3d 218, 228 (Tex.
App.—Austin 2011, pet. ref’d) (holding that defendant’s extraneous commission of
sexual offenses against two other children was “straightforward and directly
relevant to the only issue in the case, namely whether [the defendant] abused [the
complainant]”). Thus, evidence that the appellant previously sexually assaulted
K.B. was relevant to whether he sexually abused K.G.
Moreover, the appellant’s primary defensive theory at trial was that K.G.
fabricated the allegations of abuse, so the appellant’s propensity to sexually assault
children was highly probative in determining K.G.’s credibility. Likewise, no
medical or physical evidence specifically corroborated K.G.’s account of the abuse,
so the need for the extraneous evidence was significant. On the other hand, the
trial court limited the potential for unfair prejudice by instructing the jury in
accordance with article 38.37 and by allowing the defense to present a rebuttal
witness—out of order and immediately after K.B. testified—to call K.B.’s account
into question.
15
Although K.B.’s testimony was likely prejudicial to the appellant’s defense,
the legislature has specifically allowed such evidence in difficult cases such as
those involving child sexual abuse, and the standard for error requires the potential
prejudice to “substantially outweigh” the probative value of the evidence. See Tex.
R. Evid. 403. Given the statutory safeguards employed by the trial court, the
appellant has failed to establish that the trial court acted outside the zone of
reasonable disagreement by concluding that the extraneous sexual assault was
admissible over the appellant’s Rule 403 objection.
This Court should overrule the appellant’s third point of error.
IV. The trial court did not abuse its discretion by permitting Dr. Lawrence
Thompson’s testimony.
The appellant’s fourth point argues that the trial court erred by allowing Dr.
Thompson to testify as an expert on child sexual abuse (Appellant’s brief at 26).
The appellant also specifically challenges Thompson’s testimony that less than
three percent of the cases in his clinical experience involve the child making a false
allegation (Appellant’s brief at 26, 44).
A party may challenge expert testimony on at least three specific grounds:
(1) the expert lacks qualification due to inadequate knowledge, skill, experience,
training, or education in the subject matter of the expert’s testimony; (2) the
testimony’s subject matter is inappropriate because it is unreliable; and (3) the
testimony will not assist the fact-finder in deciding the case. Vela v. State, 209
16
S.W.3d 128, 131 (Tex. Crim. App. 2006); see Tex. R. Evid. 702. Courts commonly
refer to these three requirements as qualification, reliability, and relevance. Vela,
209 S.W.3d at 131. The appellant in this case objected to Thompson’s testimony
on the grounds of qualification and relevance (5 R.R. 243–44).
A. Dr. Thompson is qualified to testify as an expert about child
sexual abuse.
To be a qualified expert, a witness must have a sufficient background in a
particular field; and the trial judge must determine whether that background “goes
to the very matter on which [the witness] is to give an opinion.” Id. at 131. The
proponent must also establish that the expert has “knowledge, skill, experience,
training, or education” regarding the specific issue before the court which would
qualify the expert to give an opinion on that particular subject. Id. at 132. An
appellate court reviews a trial court’s decision to allow expert testimony for abuse
of discretion. See Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007).
Here, Thompson’s curriculum vitae was admitted as evidence and shows that
he earned a master’s degree in clinical psychology and a doctoral degree in clinical
psychology (10 R.R. 57–58). He testified that he is the director of therapy and
psychological services at the Harris County Children’s Assessment Center, where
he has been employed for sixteen years, and his primary clinical focus is children
who have been physically or sexually abused (5 R.R. 219–21). Thompson had
testified in court several times as an expert in the area of child sexual abuse, the
17
opinions he relied upon are generally accepted in his profession, and he had
reviewed peer-reviewed studies and articles on the topic (5 R.R. 222, 227).
Thompson’s doctoral dissertation dealt with child sexual abuse, and he had
recently published an article in the same area, although he could not remember the
specific title of the article or the specific journal in which it appeared (5 R.R. 230–
31). Based on this evidence, the trial court did not abuse its discretion in
determining that Thompson had the necessary specialized knowledge and training
to testify as an expert in the area of child sexual abuse. See, e.g., Briones v. State,
No. 14-07-01047-CR, 2009 WL 2356626, at *3 (Tex. App.—Houston [14th Dist.]
July 30, 2009, pet. ref’d) (mem. op., not designated for publication) (“Dr.
Thompson’s academic and professional background focusing on the treatment and
observation of child victims of sexual abuse appropriately matches the subject
matter of his testimony focusing on the behavioral patterns of child victims of
sexual abuse.”).
B. Any error in allowing Dr. Thompson to quantify the frequency in
which he experiences children falsely alleging sexual abuse was
not preserved and did not harm the appellant.
The appellant’s relevance argument rests on the following exchange:
[The State]: Okay. Now, with regard to false allegations, based
on your clinical experience, how often does a child
make a false allegation?
[The appellant]: Your Honor, I object. This witness has just said he
doesn’t do research.
18
[The State]: Your Honor, she has opened the door to this line of
questioning and I’m asking about his clinical
experience.
THE COURT: If he’s familiar though his clinical experience or
though studies or literature that he’s read, I will
allow the witness to answer the question, if he’s
familiar.
[Thompson]: I am definitely familiar with my own clinical
experience. And my estimation is that it is a rare
occurrence. It is possible, you-all, but it is a rare
occurrence. In my clinical experience, you know,
certainly less than 3 percent of the cases that I have
somehow been involved in have involved the child
making a false allegation. But again, rare, but it is
possible.
(6 R.R. 55–56). Assuming without conceding that such testimony was
inadmissible, any error was not reversible.
1. The appellant’s non-legal objection failed to adequately inform
the trial court of the legal grounds entitling him to relief.
To preserve error for appellate review, a party must make a timely, specific
objection on the record and receive an adverse ruling on that objection. See Tex.
R. App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).
To satisfy the specificity requirement, the party must “let the trial judge know what
he wants, why he thinks himself entitled to it, and . . . do so clearly enough for the
judge to understand him at a time when the trial court is in the proper position to
do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App.
19
1992). Despite the absence of an express objection, error may be preserved if a
specific objection was apparent from the context. Shaw v. State, 329 S.W.3d 645,
655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
Here, the appellant’s objection of “[t]his witness has just said he doesn’t do
research” did not sufficiently apprise the trial court that the appellant challenged
the relevance of the potential answer to the State’s question of how often children
falsely allege sexual abuse. At best, the objection addressed whether the elicited
answer was within Thompson’s personal knowledge, not whether the answer
would assist the trier of fact. And although the appellant previously challenged the
relevance of the entirety of Thompson’s testimony, the trial court did not then have
reason to believe that Thompson’s testimony would include a quantification of the
frequency of false allegations in child sexual abuse cases. The trial court was not
in the “proper position to do something about it” until the specific issue arose, but
at that time, the appellant did not properly object. He has therefore failed to
preserve error.
2. If the appellant had preserved error, any error was harmless.
The admission of irrelevant evidence under Rule 702 is non-constitutional
error which must be disregarded unless it affected the appellant’s substantial rights.
See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App.
2002). An appellate court should not overturn a conviction for non-constitutional
20
error if, after examining the record as a whole, the court has fair assurance that the
error did not influence the jury, or had only a slight effect. Barshaw v. State, 342
S.W.3d 91, 93 (Tex. Crim. App. 2011).
Here, the State elicited Thompson’s quantification of how often children
falsely allege sexual abuse in response to the appellant’s introduction of evidence
on cross-examination that Thompson had previously testified that false allegations
are “extremely rare” (see 6 R.R. 41). It is highly unlikely that Thompson’s specific
quantification as to what “extremely rare” meant had a substantial effect on the
jury’s verdict even though the State referred to such testimony in closing argument.
Importantly, Thompson did not specifically relate his testimony to the facts of this
case, and this case involved a consistent, detailed, and corroborated account by a
child regarding a specific act of sexual abuse by someone she knew. This strong
evidence of guilt cures any potential error in admitting the challenged testimony.
This Court should overrule the appellant’s fourth point of error.
V. The trial court did not reversibly err by exempting an expert from “The
Rule.”
The appellant’s fifth point complains of the trial court’s decision to allow
Jacy Palmitier to sit in the courtroom during the testimony of K.G. and Dr.
Thompson (Appellant’s brief at 46). Palmitier is a licensed professional counselor
who provided K.G. with therapy services because K.G. experienced nightmares,
21
sleeping issues, anxiety, and other ailments after the appellant molested her (6 R.R.
289; 7 R.R. 16, 44–45).
Rule of Evidence 614, also known as “the Rule,” prevents witnesses from
remaining in the courtroom during the testimony of other witnesses. See Tex. R.
Evid. 614. The Rule is designed to prevent witnesses from altering their testimony,
consciously or not, based on the testimony of another witness. See Webb v. State,
766 S.W.2d 236, 239 (Tex. Crim. App. 1989). The Rule exempts from courtroom
exclusion “a person whose presence a party shows to be essential to presenting the
party’s claim or defense.” Tex. R. Evid. 614. This often includes experts, but the
designation as an expert does not automatically exempt a witness from the Rule.
See Drillex Sys., Inc. v. Flores, 1 S.W.3d 112, 116–18 (Tex. 1999). The party
seeking to exempt an expert witness from the Rule’s sequestration requirement
bears the burden to establish that the witness’s presence is essential. Id.
However, a violation of the Rule is an evidentiary ruling that is subject to the
harm analysis for non-constitutional error. Russell v. State, 155 S.W.3d 176, 181
(Tex. Crim. App. 2005). “The question in assessing harm of allowing [a witness]
to remain in the courtroom is whether he was influenced by the testimony he
heard.” Id.
If this Court assumes that the State failed to meet its requisite burden of
proof, any error in allowing Palmitier to remain in the courtroom was harmless.
22
The appellant claims harm on the basis that Palmitier heard the testimony of two
key witnesses, and her testimony corroborated their claims (Appellant’s brief at
49). But this is insufficient to show that the trial court’s alleged error had a
substantial and injurious effect on the jury’s verdict. See Russell, 155 S.W.3d at
181; Allen v. State, 436 S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref’d).
In Allen, for example, the Sixth Court of Appeals addressed the trial court’s
decision to allow the executive director of the local Children’s Advocacy Center to
be present in the courtroom for the testimony of the victim and the medical doctor
who examined the victim in an aggravated sexual assault of a child case. See 436
S.W.3d at 822. The defendant’s principal argument as to harm was that the
witness’s testimony corroborated that of the witnesses she heard testify. See id. at
823–24. But the court of appeals rejected this claim, reasoning that the witness’s
testimony “added nothing to the child’s trial testimony with respect to the sexual
assault” at issue; the child victim was twelve years old at the time of trial, and her
clearly-articulated testimony was consistent, strong, and unwavering; the witness
admitted that the victim could have been lying; and the witness’s testimony did not
contradict the victim’s prior outcry. See id. at 824–25. Thus, because the witness
merely recalled her conversation with the victim, and did not appear to glean
anything from the victim’s testimony, any error in violating the Rule was harmless.
See id. at 825.
23
Similarly, here, Palmitier’s testimony merely recounted her conversations
with K.G. and added no meaningful details to K.G.’s account of sexual abuse; K.G.
was detailed and consistent throughout her statements to various individuals
regarding the sexual abuse; K.G. was eleven years old at the time of trial and
clearly articulated, without wavering, that the appellant digitally penetrated her
vagina. Moreover, the appellant has not alleged how Palmitier’s presence in the
courtroom during other witness’s testimony had any specific effect on Palmitier’s
subsequent testimony. Given the strength of corroborating evidence separate from
Palmitier’s testimony, this Court should be confident that allowing Palmitier to
remain in the courtroom did not substantially influence the jury’s verdict.
The appellant’s fifth point of error should be overruled.
VI. The evidence is sufficient to support the jury’s verdict based on K.G.’s
testimony and other corroborative evidence.
The appellant’s final point argues that the evidence is insufficient to support
his conviction for aggravated sexual assault of a child (Appellant’s brief at 14).
In reviewing the sufficiency of the evidence, an appellate court determines
whether, viewing “all the evidence in the light most favorable to the verdict, any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). The sufficiency
standard requires deference to the jury’s role as the sole judge of the witnesses’
24
credibility and the weight to be given their testimony. Winfrey v. State, 393 S.W.3d
763, 768 (Tex. Crim. App. 2013). When the record supports conflicting inferences,
the court must presume that the jury resolved the conflicts in favor of the verdict
and defer to that determination. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex.
Crim. App. 2012).
A person commits the offense of aggravated sexual assault of a child, as
relevant in this case, if the person intentionally or knowingly causes the penetration
of the sexual organ of a child by any means, and the victim is younger than
fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp.
2017). It is well settled that a child sexual abuse victim’s uncorroborated
testimony is sufficient to support a conviction for aggravated sexual assault of a
child. See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2017); Martinez v.
State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005). “The State has no burden to
produce any corroborating or physical evidence.” Jones v. State, 428 S.W.3d 163,
169 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Additionally, courts liberally
construe the testimony provided by child victims of sexual abuse: “as long as the
child communicates to the jury that the touching occurred on a part of the body
within the definition of the statute, the evidence will be sufficient.” Id.
In this case, K.G. unequivocally testified that she was only nine years old
when the appellant waited until they were alone in his truck, asked K.G. to ride in
25
the front seat, and sexually assaulted her when they paused at a stop sign after
taking K.G.’s cousin to basketball camp. K.G. explicitly recalled that the appellant
put his finger inside her vagina, moved it up and down, and asked whether she
liked it and wanted to try something else. After her rejection, the appellant ordered
K.G. to take a shower, and it hurt K.G. when she urinated. This evidence alone is
sufficient to establish that the appellant caused the penetration of K.G.’s vagina by
inserting his finger.
Yet, additional evidence corroborated the circumstances surrounding the
assault. Although some of the corroborative testimony relied on K.G.’s outcry, the
consistency of K.G.’s detailed report of the sexual abuse throughout the ensuing
investigation indicates that K.G. was telling the truth. Moreover, several witnesses
confirmed many of the facts surrounding K.G.’s account of the assault, including
that K.G. rode with the appellant in his truck to take Baileigh to basketball camp,
K.G. was wearing pajamas and Baileigh’s robe, K.G. took a shower when they
returned, the kids went to Splashtown later that day, and K.G.’s demeanor changed
after the assault. This corroborative evidence showing the appellant’s access and
opportunity to molest K.G. supports the jury’s determination that K.G. was
credible, and this Court should not invade the jury’s role to make such credibility
determinations. So the evidence was sufficient to support the appellant’s
conviction, and this Court should overrule his sixth point of error.
26
CONCLUSION AND PRAYER
It is respectfully submitted that all things are regular and the judgment of the
trial court should be affirmed.
BRETT W. LIGON
District Attorney
Montgomery County, Texas
/s/ Brent Chapell
BRENT CHAPELL
T.B.C. No. 24087284
Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
936-539-7800
936-788-8395 (FAX)
brent.chapell@mctx.org
27
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
I hereby certify that this document complies with the requirements of Tex. R.
App. P. 9.4(i)(2)(B) because there are 6,482 words in this document, excluding the
portions of the document excepted from the word count under Rule 9.4(i)(1), as
calculated by the Microsoft Word computer program used to prepare it.
/s/ Brent Chapell
BRENT CHAPELL
Assistant District Attorney
Montgomery County, Texas
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was
served via efile.txcourts.gov to Inger Chandler, counsel for the appellant, at
inger@ingerchandlerlaw.com on the date of the submission of the original to the
Clerk of this Court.
/s/ Brent Chapell
BRENT CHAPELL
Assistant District Attorney
Montgomery County, Texas
28