Derrick Dewayne Jernigan v. State ( 2008 )

Opinion filed August 14, 2008

Opinion filed August 14, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-07-00028-CR

                                                     __________

                          DERRICK DEWAYNE JERNIGAN, Appellant

                                                             V.

                                        STATE OF TEXAS,  Appellee

                                         On Appeal from the 244th District Court

                                                           Ector County, Texas

                                                 Trial Court Cause No. C-31,597

                                             M E M O R A N D U M   O P I N I O N

The jury convicted Derrick Dewayne Jernigan of sexual assault.  Upon appellant=s plea of Atrue@ to the State=s enhancement allegation, the jury sentenced appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of thirty years. Appellant challenges his conviction in two issues.  We affirm.

                                                               Background Facts

We note at the outset that appellant does not challenge the sufficiency of the evidence supporting his conviction.  The victim, B.C., had recently broken up with her boyfriend.  Appellant was a friend of her boyfriend.  B.C. testified that appellant called her in the early morning hours of November 5, 2002, to see if he could come by her apartment to check on her.  She advised appellant that he did not need to do so.  B.C. testified that appellant, accompanied by a friend called ASkeet,@ subsequently entered her apartment while she was asleep.

Appellant sat down on a couch where B.C. and her five-year-old son were sleeping.  B.C. testified that appellant Awanted to be with her@ but that she refused his advances.  When appellant attempted to pull B.C.=s shorts off, she asked him if he was going to Arape her@ in front of her son.  B.C. testified that appellant responded by carrying her into a bedroom whereupon he had sexual intercourse with her despite her repeated objections.

Appellant testified on his own behalf during the guilt/innocence phase.  He admitted at trial to calling B.C. and having sexual intercourse with her.^[1] However, appellant asserted that the sex was consensual.  Appellant denied attempting to pull off B.C.=s shorts or carrying her away from her son into a bedroom.  He testified that they had sex because A[they] both had the look in [their] eye.@

                                                                         Issues

In his first issue, appellant challenges the admission of testimony from a nurse examiner that performed a sexual assault examination of B.C. after the incident.  Appellant=s second issue concerns a juror that informed the trial court after the jury was selected and sworn that he knew B.C.=s husband.  Appellant contends that the trial court erred in denying his motion for mistrial in light of the juror=s disclosure.

                                                       Nurse Examiner=s Testimony

Cecelia Marie Wilmes, a registered nurse, testified that she has received specialized training as a Sexual Assault Nurse Examiner (SANE) and that she has conducted at least 427 sexual assault examinations.  She examined B.C. within a few hours after the incident.  Wilmes began her examination by taking the following history from B.C.:

[H]e came over to talk to me and I was sitting on the couch.  When he pulled meBmy shorts down and he picked me up with my back to him.  He took me out to the bed.  I told him to quit, but he bent my head down and hurt my neck.  He tried to enter me from behind, but couldn=t, so he rolled me over.  I was fighting him. . . . I kept telling him to quit. Then he did it, he stuck his penis in my vagina and then he just laid there for awhile and got up and left.

Wilmes subsequently conducted a physical examination of B.C.  The prosecutor asked Wilmes a  series of questions about her findings from the physical examination.^[2] On at least seven occasions, Wilmes testified without objection that her physical findings were consistent with the history that B.C. provided.  Late during Wilmes=s direct examination, the prosecutor asked her the following question: A[Y]our findings, here, [do they] lean more or less towards non-consensual sex?@  Appellant objected to this question on the basis that it called for speculation.  Appellant additionally objected to the question on the basis that Wilmes was not qualified as an expert to answer the question.  The trial court overruled both objections.  Wilmes answered the question by stating, AThe findings I find from the examination I gave her are consistent with her history.@  Wilmes subsequently testified again without objection that her findings were consistent with B.C.=s history.   Appellant argues on appeal that the challenged question and answer exceeded the scope of Tex. R. Evid. 702 and 704 because they constituted improper opinion testimony regarding B.C.=s truthfulness.  See Yount v. State, 872 S.W.2d 706, 710 (Tex. Crim. App. 1993) (An expert is not permitted to give a direct opinion on the truthfulness of a witness because this is not a subject on which an expert=s testimony would assist a factfinder.).  Appellant=s objection at trial did not comport with his complaint on appeal.  Thus, appellant has waived this complaint.  Tex. R. App. P. 33.1; Smith v. State, 176 S.W.3d 907 (Tex. App.CDallas 2005, pet. ref=d).  Moreover, Wilmes offered the same testimony on seven previous occasions and on one subsequent occasion without objection from appellant.  The improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence that is not challenged.  Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998).

Even if we assume that appellant preserved his appellate complaint, we conclude that Wilmes=s testimony was proper.  Expert testimony is admissible if it helps the factfinder understand the evidence or determine a fact in issue.  See Rule 702; Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim. App. 1994).  However, it must be limited to situations in which the expert=s knowledge and experience on a relevant issue are beyond that of an average juror.  Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990), overruled on other grounds by Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993).  Expert testimony, by nature, may tend to show whether another is telling the truth. This alone will not render that testimony inadmissible.  See Duckett, 797 S.W.2d at 914.  In this instance, Wilmes did not offer direct evidence regarding B.C.=s truthfulness.  To the contrary, Wilmes=s testimony was limited to her expert opinion on the physical findings that she observed.  Moreover, we use an abuse of discretion standard in reviewing a trial court=s determination of a witness=s qualifications as an expert and its judgment regarding the admission of any expert testimony.  Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006).  The record does not  contain any evidence that would support a finding that the trial court would have abused its discretion in allowing Wilmes=s testimony if it had been presented with a proper objection.  Appellant=s first issue is overruled.

                                                                 Juror Disclosure

During voir dire examination, the prosecutor identified B.C. as a witness in the case by using her surname at the time the offense occurred, i.e. B.H.  No one on the jury panel stated that they knew B.H.  The prosecutor called B.C. as a witness during the State=s case-in-chief by referring to her as AB.H.@  B.C. stated at the outset of her direct testimony that her name is AB.C.@  Later in her direct testimony, B.C. stated that she is currently married to K.C. and that she married him after the incident occurred.  At the next break, Juror Randy Smith advised the trial court that he knew K.C. through work.  Juror Smith further advised the court that he did not know K.C.=s wife (B.C.) and that he did not have any knowledge of the case prior to his service as a juror.  When asked by the trial court if his familiarity with K.C. would influence his decision in the case, Juror Smith stated: ANo, I don=t think so.@

Upon Juror Smith=s disclosure of his familiarity with B.C.=s husband, appellant moved for a mistrial.  Appellant=s trial counsel advised the court in presenting the motion that she did not know that B.C. had remarried until B.C. testified.  The prosecutor advised the court  that he was aware that B.C. had a new surname but that he knew her by her previous surname.  The trial court subsequently denied appellant=s motion for mistrial.

The denial of a motion for mistrial is reviewed for abuse of discretion.  Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).  In cases where a juror has revealed some knowledge of a witness after selection of the jury or commencement of trial, it has been held that no error exists if the juror did not intentionally conceal knowledge and is able to state that he or she can be unbiased.  Hill v. State, 493 S.W.2d 847, 848 (Tex. Crim. App. 1973). Appellant concedes that there is no evidence that Juror Smith intentionally withheld information during voir dire because B.C. was not identified by her correct surname and her husband=s name was not disclosed.  However, appellant contends that the trial court should have granted a mistrial because the prosecutor was aware of B.C.=s correct surname and Juror Smith was equivocal in stating his ability to be impartial.  We disagree.

Appellant has not cited any authority supporting the contention that the State=s knowledge of a witness=s name is comparable to a situation where a juror intentionally withholds material information during voir dire.  Furthermore, the undisclosed information was not material in that Juror Smith=s relationship with the complainant was only as a work acquaintance.  Juror Smith stated that he had no prior knowledge of the case and could be fair and impartial.  The trial court was in the best position to evaluate Juror Smith=s sincerity and ability to be fair and impartial when he replied, ANo, I don=t think so,@ when the trial court asked him if his familiarity with B.C.=s husband would affect his impartiality.  See Mount v. State, 217 S.W.3d 716, 722 (Tex. App.C Houston [14th Dist.] 2007, no pet.).  Accordingly, we give great deference to the trial court in matters concerning the sincerity of a juror=s answers.  Id.  We conclude that the trial court did not abuse its discretion in denying appellant=s motion for mistrial. Appellant=s second issue is overruled.

                                                               This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

August 14, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

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^[1]Appellant denied having sex with B.C. when police officers initially interviewed him.  He subsequently admitted having sex with B.C. when the police confronted him with DNA evidence confirming that he had had sexual intercourse with B.C.

^[2]These findings included vaginal abrasions that Wilmes observed.