Kyle Edric Walker v. State ( 2010 )

Opinion issued October 21, 2010

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-09-00195-CR

01-09-00196-CR

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Kyle Edric Walker, Appellant

V.

THE State of Texas, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Case Nos. 07CR3178 & 07CR3179

MEMORANDUM OPINION

          A jury found appellant, Kyle Edric Walker, guilty of two offenses of aggravated sexual assault of a child younger than fourteen years old.  See Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2010).  During the punishment phase, appellant pleaded true to the enhancement paragraphs alleging two prior felony convictions.  The trial court assessed punishment at sixty years’ imprisonment for each offense to run concurrently.  Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2010).  In two points of error, appellant asserts the trial court erred by (1) admitting the curriculum vitae of the State’s expert into evidence, and (2) failing to comply with the procedural requirements of article 36 of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 36.01(a) (Vernon 2007).  We affirm.

Background

In September 2007, Priscilla Walker was informed that her daughter, L.H., had told friends that her stepfather, appellant, was sexually abusing her.  Ms. Walker brought L.H. to the Texas City Police Department and filed a report with Officer José Saldivar.  As part of the investigation, L.H. underwent a forensic interview and examination at the Child Advocacy Center (“CAC”).  Appellant was arrested and charged with two offenses of aggravated sexual assault of a child following the investigation. 

I. Admission of Expert Witness’s Curriculum Vitae

At trial, the State called Dr. Ralph Noble, a supervising physician at the CAC where L.H. was examined and interviewed.  The State offered Dr. Noble’s curriculum vitae (“C.V.”) into evidence and requested permission to publish the exhibit to the jury.  Defense counsel objected to the admission of the evidence and offered to stipulate to the expert’s qualifications.  The court overruled the objection and admitted the exhibit.

Appellant argues that the trial court abused its discretion by admitting the C.V. into evidence.  Specifically, appellant argues the evidence was “irrelevant” because he offered to stipulate to Dr. Noble’s qualification as an expert and no objection was made as to his qualifications.  We construe appellant’s first issue as a “bolstering” argument.

A.      Standard of Review

We review a trial court’s decision on the admissibility of evidence under an abuse-of-discretion standard of review.  See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).  An abuse of discretion occurs where a trial court’s decision lies outside the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).  In determining whether a trial court has abused its discretion, we consider whether the court acted arbitrarily or unreasonably, or without reference to the guiding rules or principles.  Id. at 380.

B.      Applicable Law

The law of “bolstering” existed before this State’s evidentiary rules were adopted.  See Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009).  As the law evolved, however, most of our evidentiary terms became codified—first in the Texas Rules of Criminal Evidence in 1985, and finally, in the unified Texas Rules of Evidence, promulgated in 1998.  Id.  While the term “bolstering” is slowly dying as an objection on its face, it has not yet expired, despite the fact that the term itself failed to survive the adoption of the rules.  Id.

The Texas Court of Criminal Appeals observed that bolstering occurs when irrelevant evidence, which does not “make the existence of [a] fact that is of consequence to the determination of the action more or less probable,” is offered for the sole purpose of adding credence or weight to some earlier unimpeached piece of evidence offered by the same party.  Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993); Sledge v. State, 686 S.W.2d 127, 129 (Tex. Crim. App. 1984) (citing Pless v. State, 576 S.W.2d 83, 84 (Tex. Crim. App. 1978)).  Cohn instructs that the source of the prohibition on bolstering is Rule 401; evidence solely for bolstering purposes does not meet Rule 401’s definition of “relevant evidence.”  Cohn, 849 S.W.2d at 819; see also Tex. R. Evid. 401 (defining “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”).  As a general rule, “[a]ll relevant evidence is admissible” and “[e]vidence which is not relevant is inadmissible.”  Tex. R. Evid. 402. Accordingly, evidence that corroborates another witness’ story or enhances inferences to be drawn from another source of evidence is relevant evidence in the sense that it has an incrementally further tendency to establish a fact of consequence, and should not be considered bolstering.  Cohn, 849 S.W.2d at 820.

Before an expert may testify, the trial court must make a preliminary finding that the expert witness is “qualified.”  The trial court must be satisfied that three conditions are met: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.  See Tex. R. Evid. 702; Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). 

Even after the trial court makes an initial determination that the expert is “qualified,” the jury must determine the weight to be given to his testimony. “Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.”  See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). 

C.      Analysis

Here, Dr. Noble’s C.V. was relevant evidence and properly admitted.  Appellant offered to stipulate to Dr. Noble’s qualifications, but a C.V. serves more than merely to qualify an expert.  After the trial court determines an expert to be qualified, a jury determines the weight to give to the expert’s testimony.  A jury’s consideration can be based on any relevant evidence; namely any evidence that makes a fact of consequence more or less probable.  See Cohn, 849 S.W.2d at 819–20.  Dr. Noble based his testimony and opinions on his experience and training as a physician at the CAC.  His educational and professional background was relevant to prove his expertise in the evaluation and treatment of child victims and to lay the predicate for his testimony.  Evidence, like the C.V., admitted to assist the jury in making its determination serves a relevant purpose beyond solely bolstering the witness.

Appellant also failed to show harm as a result of the admission.  Erroneous evidentiary rulings rarely rise to the level of constitutional error. See Potier v. State, 68 S.W.3d. 657, 663 (Tex. Crim. App. 2002).  An appellate court considers non-constitutional error by examining the record as whole and asking if by “fair assurance that the error did not influence the jury, or had but a slight effect.”  Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003) (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)).  Dr. Noble’s professional experience was relevant as a context and predicate to his testimony.  Any extraneous information included on the C.V. had only slight effect.  Specifically, listing church and volunteer activities on a sixteen-page document detailing professional experience was not harmful.  Appellant also made no objection to the substance or basis of Dr. Noble’s testimony.  Without evidence of harm, we defer to the trial court’s discretion in the admission of relevant evidence.  We overrule appellant’s first issue.

II. Punishment Hearing

In his second issue, appellant argues that the trial court erred in allowing the State to read the enhancements after it rested.  During the punishment phase, tried to the bench, the State announced that it rested before reading the enhancement paragraphs from the indictment.  The court reminded the State it needed to “read the enhancements first,” and appellant’s trial counsel responded that it was “too late.”  The trial court allowed the prosecutor to read the enhancements, and appellant pleaded true to the enhancement paragraphs.  Appellant argues that it was reversible error to allow the State to read the enhancement paragraphs.

Appellant cites article 36.01(a) of the Code of Criminal Procedure to support his argument.  Article 36.01(a), however, only requires the indictment or information be read to the jury at the beginning of trial.  See Tex. Code Crim. Proc. Ann. art. 36.01(a) (Vernon 2007).  With regard to enhancement paragraphs, the provision requires the enhancement portion of the indictment not be read until the hearing on punishment is held as provided in article 37.07.  Id. Article 37.07 does not require that the enhancements be read to the appellant when the trial court assesses punishment.  See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (Vernon Supp. 2010).  Appellant’s argument is therefore misplaced.  The guilt/innocence phase of his trial was over and the jury was released and excused.  His punishment was assessed by the trial court; no jury was involved.

This Court has rejected the very argument appellant presents, holding that “[w]hen the trial court alone assesses a defendant’s punishment, the court is not required to read the enhancement paragraphs or the findings to the defendant.” Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Garner v. State, 858 S.W.2d 656, 659 (Tex. App.—Fort Worth 1993, pet. ref’d)).  “Although it is preferred that trial courts read the enhancement paragraphs orally and find them to be true or not true on the record, a trial court does not err by not doing so.”  Seeker, 18 S.W.3d at 39 (citing Garner, 858 S.W.2d at 600); see also Simms v. State, 848 S.W.2d 754, 755 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (holding that article 36.01 does not require reading of enhancement portion of indictment to defendant in penalty stage of bifurcated trial before court alone).  Here, appellant’s punishment was assessed by the trial court; therefore, it was not necessary for the State to read the enhancement paragraphs.

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court. 

                                                                   Margaret Garner Mirabal

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Massengale and Mirabal.[1]

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

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[1]           The Honorable Margaret Garner Mirabal, Senior Justice, Court of Appeals for the First District of Texas, participating by assignment.