William Umphres v. State ( 2004 )


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  •                                      NO. 07-02-0420-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL B
    JUNE 25, 2004
    ______________________________
    WILLIAM UMPHRES,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    _________________________________
    FROM THE 221ST DISTRICT COURT OF MONTGOMERY COUNTY;
    NO. 01-03-02060-CR; HON. SUZANNE STOVALL, PRESIDING
    ________________________________
    Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
    In six issues, appellant William Umphres challenges his two convictions for
    aggravated sexual assault of a child. Two different children were involved. Through his
    issues, he contends that 1) he did not open the door to the admission of an extraneous
    offense, 2) the trial court erred in admitting evidence of an extraneous offense that occurred
    more than 25 years earlier, 3) the trial court erred in failing to instruct the jury on the burden
    of proof for admission of extraneous offenses during the punishment phase, 4) the trial
    court erred in admitting photographs of the genitalia of the two complainants, 5) the trial
    court erred in admitting hearsay testimony of an outcry witness, and 6) he received
    ineffective assistance of counsel. We affirm the judgment of the trial court.
    Issues One and Two - Admission of Extraneous Offense
    In his first two issues, appellant complains of the admission into evidence of rebuttal
    testimony from his adult daughter indicating that he had inappropriate sexual contact with
    her when she was a child. He contends he never “opened the door” to the admission of
    this testimony and that the offense is too remote to qualify for admission. We overrule the
    issues.
    Appellant was charged with sexually assaulting two young sisters who were living
    or staying next door to him. During appellant’s testimony at the guilt/innocence phase of
    the trial, he was asked whether he had “any idea why the girls would tell these stories about
    you?” He responded by saying: “No, sir, I really don’t. I have never had this in my life, and
    I am 69 now.” By this response, the trial court determined that appellant had “opened the
    door” to the testimony by his daughter.
    On appeal, appellant claims that the statement was “ambiguous and not specific
    enough to open the door to the admission of any extraneous offense.” [Emphasis in
    original]. He also complains that the extraneous offense was too remote in time. However,
    neither of those grounds were mentioned at trial. Indeed, from the conversation between
    counsel and the trial court after the prosecutor first asked to approach the bench, defense
    counsel said, “I know what they are going to say” and “I have also told him not to do it, and
    he does.” When the matter was again broached during cross-examination of appellant,
    defense counsel stated, “I am going to object,” and when told by the trial court that the
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    “door has been opened by that comment,” he replied, “[b]y my incompetent client.” Again,
    nowhere did he posit that the door had not been opened, that the comment was too
    ambiguous, or that the extraneous conduct was too remote. Nor can we say that those
    grounds were part of or implicit in the general objection actually uttered. Indeed, it appears
    that counsel felt the evidence inadmissible because the statement was made by an
    incompetent person, not because the door had not been opened.
    In sum, a party’s complaint on appeal must comport with that uttered at trial; when
    it does not, then the complaint is waived. Turner v. State, 
    805 S.W.2d 423
    , 431 (Tex. Crim.
    App.), cert. denied, 
    502 U.S. 870
    , 
    112 S. Ct. 202
    , 
    116 L. Ed. 2d 162
    (1991); Harnett v.
    State, 
    38 S.W.3d 650
    , 661 (Tex. App.–Austin 2000, pet. ref’d); Brown v. State, 
    6 S.W.3d 571
    , 582 (Tex. App.–Tyler 1999, pet. ref’d). Since appellant’s complaint on appeal does
    not comport with that uttered at trial, he failed to preserve the alleged error.
    Issue Three - Instruction on Extraneous Offense
    Via his third issue, appellant complains that the trial court failed to provide a limiting
    instruction with respect to the burden of proof on extraneous offenses during the
    punishment phase of the trial. We overrule the issue.
    During the punishment hearing, the State may offer any evidence of an extraneous
    crime or bad act that is shown beyond a reasonable doubt to have been committed by the
    defendant or for which he could be held criminally responsible. TEX . CODE CRIM . PROC .
    ANN . art. 37.07 §3(a)(1) (Vernon Supp. 2004). Due to art. 37.07 §3(a)(1), the trial court is
    obligated to instruct the jury about its need to conclude that the extraneous matter
    occurred, beyond reasonable doubt, before it can consider it. Huizar v. State, 
    12 S.W.3d 479
    , 483 (Tex. Crim. App. 2000). And, although appellant did not request such an
    3
    instruction to be included in the jury charge here, neither a request nor an objection is
    necessary to preserve the error. 
    Id. Finally, whether
    omitting the instruction caused harm
    and, therefore, warrants reversal is dependent upon the application of the harmful error
    standard enunciated in Almanza v. State, 
    686 S.W.2d 157
    , 171 (Tex. Crim. App. 1985).
    Huizar v. 
    State, 12 S.W.3d at 484
    . So, given the lack of a request or objection, we must
    decide whether the error was so egregious and created such harm that appellant did not
    have a fair and impartial trial. Almanza v. 
    State, 686 S.W.2d at 171
    .
    Though appellant fails to expressly mention the particular extraneous offense in
    question, we assume it to be that involving the assault upon his own daughter some 23
    years earlier. Furthermore, the evidence first appeared in the guilt/innocence phase of the
    trial, and when charging the jury during that phase, the trial court included the instruction
    required by art. 37.07 §3(a)(1). So, the jury had been previously informed of the need to
    first conclude that appellant committed the offense, beyond reasonable doubt, before
    considering it.   More importantly, when undergoing cross-examination during the
    punishment phase of the proceeding, appellant stated that he was both “sorry” for and
    “embarrassed” about what he did to his daughter. That testimony is tantamount to an
    admission that he committed the bad act. In other words, the factfinder reasonably could
    have concluded that one cannot be sorry for or embarrassed by what he did not do, and
    because appellant was sorry and embarrassed, he must have committed the act. Given
    these circumstances, we cannot say that the failure to inform the jury that they must first
    find that the bad act occurred was so egregious as to have denied appellant a fair and
    impartial trial. Thus, reversal of the judgment is not required.
    Issue Four - Admission of Photographs
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    Appellant argues in his fourth issue that the trial court should not have permitted the
    State to introduce photographs of the genitalia of the two victims. We overrule the issue.
    The photographs were offered into evidence during the testimony of Dr. Sheela
    Lahoti, who physically examined both victims for sexual abuse. Photographs were made
    of the genitalia of the children with a culpascope which magnifies the area from four to 25
    times. The examination of one child showed a deep notch to the vaginal area which was
    indicative of penetrating trauma while the examination of the other child revealed no
    abnormalities. At trial, appellant objected to the admission of the photographs and
    requested that the court conduct a balancing test under Texas Rule of Evidence 403 due
    to their prejudicial nature. The trial court overruled the objection.
    Although relevant, evidence may be excluded if its probative value is substantially
    outweighed by the danger of unfair prejudice. TEX . R. EVID . 403. We review the trial court’s
    admission of the photographs under the standard of abused discretion. Wyatt v. State, 
    23 S.W.3d 18
    , 29 (Tex. Crim. App. 2000); Sonnier v. State, 
    913 S.W.2d 511
    , 518 (Tex. Crim.
    App. 1995). Furthermore, pictures are generally admissible if verbal testimony of the
    matters depicted is also admissible, unless their probative value is outweighed by their
    prejudicial effect. Ramirez v. State, 
    815 S.W.2d 636
    , 647 (Tex. Crim. App. 1991); Potter
    v. State, 
    74 S.W.3d 105
    , 112 (Tex. App.–Waco 2002, no pet.). Finally, the trial court does
    not abuse its discretion in admitting photographs if they will help the jury to understand
    verbal testimony such as technical language used by a medical doctor in describing injuries
    sustained. Hernandez v. State, 
    118 S.W.3d 469
    , 478 (Tex. App.– Eastland 2003, pet.
    ref’d).
    5
    Two photographs of each child were admitted. They were taken from different
    positions. Though one could find them and the mode by which they were obtained
    distasteful, the photographs were not in and of themselves gruesome. Rather, they had
    a clinical appearance. So too did they actually serve a medical purpose since they helped
    explain and illustrate the doctor’s findings, i.e. that one child suffered “penetrative vaginal
    trauma.” Moreover, while the pictures of the one victim did not indicate any abnormalities,
    they nonetheless could have been utilized by the jury for comparison purposes, that is, as
    visual assistance in illustrating and perceiving the trauma suffered by the other child. Next,
    in view of the nature of the trauma being investigated and the relatively small size of the
    genitalia subjected to it as a result of vaginal penetration, a legitimate reason existed to
    enlarge the photographs. Under these circumstances, the trial court’s decision to overrule
    the Rule 403 objection and admit the pictures fell within the zone of reasonable
    disagreement and, therefore, did not constitute an instance of abused discretion. See
    Wyatt v. 
    State, 23 S.W.3d at 29-30
    (holding that two autopsy photos showing blood at the
    opening of the victim’s anus were not particularly offensive and did no more than portray
    the nature of the injuries inflicted); Ashcraft v. State, 
    918 S.W.2d 648
    , 656 (Tex. App.–
    Waco 1996, pet. ref’d) (holding that a photograph of the victim’s vagina was not of the type
    to shock or horrify the jury, had probative value, and had a benign tendency to present a
    danger of unfair prejudice).
    Issue Five - Outcry Witness
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    In his fifth issue, appellant argues that the trial court erred in allowing Nicole
    Pizzoferrato, the victims’ stepmother, to testify as the outcry witness. We overrule the
    issue.
    A statement that describes the alleged offense of aggravated sexual assault made
    by a child against whom the offense was allegedly committed to the first person over 18
    years of age, other than the defendant, is not inadmissible because of the hearsay rule.
    TEX . CODE CRIM . PROC . ANN . art. 38.072 §2 (Vernon Supp. 2004). Appellant’s complaint
    here is that Pizzoferrato was not the first person to whom one of the children made an
    outcry statement. It is undisputed that the child first told Mary Ann Benson that appellant
    had “touched” her. However, according to the record, the description of the “touching” or
    assault were not imparted by the child until Pizzoferrato began questioning her. Given this,
    it fell within the realm of reasonable disagreement for the trial court to hold that the
    comment to Benson about simply being “touched” did not make Benson the outcry witness.
    Schuster v. State, 
    852 S.W.2d 766
    , 768 (Tex. App.–Fort Worth 1993, pet. ref’d) (holding
    that simply because the victim told the first adult that she was “touched” did not make the
    first adult the outcry witness); accord Garcia v. State, 
    792 S.W.2d 88
    , 91-92 (Tex. Crim.
    App. 1990) (holding that a Child Protective Services worker was the proper outcry witness
    when the complainant told her teacher only that something had happened at home relating
    to child abuse); Josey v. State, 
    97 S.W.3d 687
    , 693 (Tex. App.–Texarkana 2003, no pet.)
    (holding that to qualify as an outcry witness, the child must describe the alleged offense in
    some discernable way and must do more than generally insinuate that sexual abuse has
    occurred).
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    Nevertheless, appellant argues that because Benson was also present when the
    child described the details of the alleged offense, she was the proper outcry witness.
    However, Pizzoferrato testified that she (Pizzoferrato) was the one who asked the child
    questions which elicited the details of the offense. And, she allegedly did so because
    Benson was “too upset.” Under these circumstances, the State could have chosen either
    person as the proper outcry witness, and the court did not abuse its discretion in allowing
    Pizzoferrato to testify as such. Yebio v. State, 
    87 S.W.3d 193
    , 198 (Tex. App.–Texarkana
    2002, pet. ref’d).
    Issue Six - Ineffective Assistance
    In his final issue, appellant contends he received ineffective assistance of counsel
    because his counsel 1) failed to clearly object to the extraneous offense (assaulting
    appellant’s daughter) during the guilt/innocence phase of the trial, 2) failed to object to the
    extraneous offense during the punishment phase, 3) failed to object to the remoteness of
    the extraneous offense, 4) failed to object that the extraneous offense was offered to show
    “character conformity,” 5) failed to request a “Montgomery” hearing once the extraneous
    offense was admitted, 6) failed to request a balancing test to determine if the extraneous
    offense was admissible, 7) failed to request a limiting instruction in the charge or when the
    extraneous offense was admitted into evidence, and 8) failed to make a proper objection
    under Montgomery v. State, 
    810 S.W.2d 372
    (Tex. Crim. App. 1991). We overrule the
    issue.
    Assuming arguendo that the instances mentioned evinced less than reasonable
    conduct on the part of counsel, nowhere does appellant attempt to explain or show how
    8
    there existed a reasonable probability that but for the alleged mistakes the outcome would
    have differed. See Bone v. State, 
    77 S.W.3d 828
    , 833 (Tex. Crim. App. 2002) (stating that
    the appellant has the burden to prove deficient conduct and a reasonable probability that
    but for the conduct the result would have differed). Instead, he opines that the “admission
    of the extraneous offense was absolutely critical” and that it was ”the ‘gasoline’ thrown on
    the fire that resulted in showing that [appellant] may have committed these acts all of his
    life and certainly as far back as 1977.” Yet, nothing is said about how this “gasoline” made
    the fire any more destructive than the “gasoline” appearing in the form of evidence
    illustrating how he sexually molested his two neighbor children. Indeed, the quantum or
    quality of that evidence goes unquestioned by appellant. Nor does he cite us to anything
    of record suggesting, much less proving, that the jury would have assessed a lesser
    sentence for sexually imposing himself on the two female children had his counsel sought
    harder to have (or succeeded in having) the extraneous evidence excluded. In short, his
    conclusions about the extraneous offense being “absolutely critical” and “‘gasoline’ thrown
    on the fire” are just that, conclusions. And, without attempting to prove the effect, if any,
    the extraneous evidence had upon the verdict and sentence, appellant cannot, and did not,
    carry his burden of proof. Ladd v. State, 
    3 S.W.3d 547
    , 570 (Tex. Crim. App. 1999), cert.
    denied, 
    529 U.S. 1070
    , 
    120 S. Ct. 1680
    , 
    146 L. Ed. 2d 487
    (2000) (rejecting the claim of
    ineffective assistance because “appellant . . . made no effort to prove the prejudice prong
    of the Strickland test”).
    Accordingly, the judgment of the trial court is affirmed.
    9
    Brian Quinn
    Justice
    Do not publish.
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