Paul Edward Smith v. State ( 2004 )

NO. 07-03-0300-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 26, 2004

______________________________



PAUL EDWARD SMITH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 46,011-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Following his plea of guilty before a jury, appellant Paul Edward Smith was convicted of possession of marihuana and punishment was assessed at 12 years confinement and a $10,000 fine. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. We affirm and grant counsel's motion to withdraw.

In support of her motion to withdraw, counsel has certified that she has diligently reviewed the record and, in her opinion, the record reflects no reversible error or grounds upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Thus, she concludes the appeal is frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that she sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that she notified appellant of his right to review the record and file a pro se response if he desired to do so. Appellant did not file a response and the State did not favor us with a brief.

On April 13, 2002, appellant was stopped for speeding by a DPS trooper. Appellant was driving a rented van and gave the trooper conflicting information regarding who rented the van. After being issued a warning for speeding, appellant consented to a search of the van. Upon opening the hatch, the trooper observed four very large suitcases and also detected an odor of marihuana. A search of the suitcases revealed over 300 pounds of marihuana packaged in vacuum sealed bricks. Appellant was arrested and tried for possession of 2,000 pounds or less but more than 50 pounds of marihuana. After a jury was empaneled, however, appellant chose to plead guilty. Evidence was presented and the jury was charged to find appellant guilty and assess his punishment.

By the Anders brief, counsel raises two arguable issues and then candidly concedes that no reversible error is presented. The issues are whether the trial court (1) abused its discretion in not allowing defense counsel to pose questions to the venire which were proper questions concerning a proper area of inquiry, and (2) erred in denying defense counsel's challenges for cause regarding venire members Bass and Koonce because they were, as a matter of law, biased against the law applicable to the case and upon which appellant was entitled to rely.

During voir dire defense counsel asked the venire members if they could consider two years probation for an individual convicted of possession of 2,000 pounds of marihuana. After a lengthy exchange of questions and answers, venire members Bass and Koonce voiced their refusal to consider two years probation for an individual convicted of possessing 2,000 pounds of marihuana. Later, defense counsel asked Bass if he could consider two years probation for someone convicted of possessing 1900 pounds of marihuana. The State's objection to defense counsel's attempt to commit a potential juror to a specific fact circumstance was sustained, and defense counsel's motion to strike Bass for cause for refusing to consider the full range of punishment was denied.

Upon reviewing the list of potential jurors, the defense exercised a peremptory strike on Koonce. After defense counsel explained to the trial court that he was forced to use a peremptory strike on Bass that was originally designated for another objectionable juror, the trial court gave the defense an additional peremptory strike.

A trial court has broad discretion over voir dire, including the propriety of particular questions. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Cr.App. 2002). A trial court abuses its discretion only when a proper question about a proper area of inquiry is prohibited. Id. The following question was not permitted by the trial court following the State's objection that defense counsel was attempting to commit a juror to a specific fact circumstance:

I just want to ask you, 1,900 pounds of marijuana, you find somebody guilty and convict them of possession of 1,900 pounds of marijuana, any way you can consider two years probation?

Hypothetical questions which attempt to commit prospective jurors to a certain punishment verdict based on facts peculiar to the case on trial are improper. Chimney v. State, 6 S.W.3d 681, 690 (Tex.App.-Waco 1999, pet. ref'd), citing Williams v. State, 481 S.W.2d 119, 120-21 (Tex.Cr.App. 1972); see generally Standefer v. State, 59 S.W.3d 177, 179-83 (Tex.Cr.App. 2001) (explaining commitment questions). Moreover, assuming arguendo that the trial court erroneously prohibited defense counsel from questioning prospective jurors, no harm resulted. Voir dire is harmful when a defendant (1) exhausts all his peremptory challenges, (2) requests additional peremptory challenges, (3) has his request denied, and (4) identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge. Anson v. State, 959 S.W.2d 203, 204 (Tex.Cr.App. 1997). Here, defense counsel asked and was granted an additional peremptory strike with which to remove an objectionable juror. Thus, we agree with appellate counsel that the trial court did not abuse its discretion during voir dire and that no reversible error is presented by these arguable issues.

We have also made an independent examination of the entire record to determine whether there are any other arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). We have found no non-frivolous issues and agree with counsel that the appeal is without merit. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

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NO. 07-08-0198-CR, 07-08-0199-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JANUARY 31, 2010

______________________________

RICHARD RANDALL DRAKE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NO. 7329; HONORABLE LEE WATERS, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

            By separate indictments, appellant Richard Randall Drake was charged with aggravated sexual assault¹ and indecency with a child.² A jury convicted him of both offenses and sentenced him to terms of imprisonment of thirty years and ten years respectively.  The court imposed concurrent sentencing.  Through three issues, appellant appeals his convictions.  We will affirm.

Background

            The State alleged appellant engaged in the charged conduct with S.S., the ten-year-old daughter of his cousin.  The actionable events occurred while appellant baby-sat S.S. and her younger brother, or on an occasion that S.S., and her female friends J.M. and S.M., spent the night with appellant at his television repair shop. 

            Evidence at trial included a statement appellant gave police through which he admitted having oral sex with S.S. and exposing himself to her.  At trial, he recanted the statement on the ground it was false, the product of his desire to protect S.S.  J.M. testified she played with S.S. at her house and appellant was usually there.  Once, after S.S. showered, J.M. observed appellant remove the towel covering S.S. and begin “licking [S.S.] between her legs.”  She also testified appellant masturbated as he watched though a hole in the bathroom wall as the girls bathed.  S.M. testified she saw S.S. urinate in appellant’s mouth during the overnight stay at appellant’s shop.  S.S. testified to an act of oral sex, apparently the one described by J.M., and to urination in appellant’s mouth.  However, she could not recall if appellant showed her “his private part.”

            After hearing the evidence, the jury returned a verdict convicting appellant of the charged offenses.  Appellant timely appealed.

Discussion

            In his first issue, appellant complains the trial court erred by overruling his hearsay objection to the State’s question of what S.S. told a professional about appellant’s conduct.

            During its case-in-chief, the State presented a forensic interviewer with a children’s advocacy center who interviewed S.S.  The following exchange occurred during this testimony:

Q. [by the prosecutor]:                     Now, during the interview, what did [S.S.] tell you about what happened to her?

[appellant’s counsel]:                      Objection; that calls for hearsay.

Q. [prosecutor]:                                 Your Honor, we would ask that the Court recognize an exception to the hearsay rule under 803(4).

The Court:                                         Overruled.  Go ahead.

            The witness then explained how S.S. described appellant’s exposure of his genitals. Without further objection, the State next questioned the witness about other events S.S. recounted during the interview.  Through this testimony, the witness stated that according to S.S., appellant refused S.S. and her friends food unless they allowed him to lick their genitalia. 

            On cross-examination, the witness acknowledged she did not provide medical treatment for S.S. nor did she make a medical diagnosis.  Appellant then moved for an instruction requiring the jury to disregard the testimony of the witness from the point the State urged admission according to Rule 803(4).  The court took up the matter at a hearing outside the presence of the jury and after hearing the arguments of counsel denied appellant’s request but granted a running objection.

            Addressing appellant’s issue requires division of the challenged testimony into two blocks.  The first is the colloquy quoted above and the second the ensuing direct examination testimony which was admitted without objection. 

            We turn first to the second block of testimony.  Appellant did not lodge an objection to this testimony and even now on appeal does not particularize the questions he believes sought responses transgressing the rule against hearsay. 

Under Texas law, if, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection.  A proper objection is one that is specific and timely.  Further, with two exceptions, the law in Texas requires a party to continue to object each time inadmissible evidence is offered.  The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury.

Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003).

            Concerning the questions following the court’s ruling on appellant’s hearsay objection and spanning the remainder of the direct examination of the forensic interviewer, appellant did not continue objecting, did not obtain a running objection, and did not request a hearing outside the presence of the jury. As for this block of testimony, therefore, nothing is preserved for our review.  See Tex. R. App. P. 33.1(a).  We note, however, that admission of the testimony was not harmful.  It did no more than reiterate facts admitted elsewhere and even included testimony supportive of the defense.³

            We now consider the court’s ruling on appellant’s hearsay objection, quoted above. The State urges the ruling was proper because the testimony came within the hearsay exception of Rule of Evidence 803(4) or was a prior consistent statement, admitted as non-hearsay under Rule 801(e)(1)(B).  Tex. R. Evid. 801(e)(1)(B) & 803(4).

            The standard of review for admission or exclusion of evidence is abuse of discretion.  Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App. 1993).  A trial court does not abuse its discretion unless it has “acted arbitrarily and unreasonably, without reference to any guiding rules and principles.”  Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.–Amarillo 1991, pet. refused). As long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion and the trial court's ruling will be upheld.  See Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App. 1996). 

            Moreover, to constitute reversible error, the improper admission of the forensic interviewer’s statement that S.S. told her appellant exposed himself must have been harmful to appellant.  Tex. R. App. P. 44.2(b); see Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998) (applying non-constitutional harm analysis). Non-constitutional error “must be disregarded” unless it affected the “substantial rights” of the accused.  Tex. R. App. 44.2(b).  The substantial rights of an accused are affected “when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Any error in admitting evidence is cured if the same evidence is admitted elsewhere without objection.Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). See also Anderson v. State, 717 S.W.2d 622, 627 (Tex.Crim.App. 1986) (“If the fact to which the hearsay relates is sufficiently proved by other competent and unobjected to evidence, . . . the admission of the hearsay is properly deemed harmless and does not constitute reversible error”).  “This rule applies whether the other evidence was introduced by the defendant or the State” and whether the evidence was received before or after the challenged ruling.  Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998). 

            Assuming, without deciding, that it was inadmissible hearsay, we find the substance of the complained-of testimony of the forensic interviewer was admitted elsewhere without limitation or an objection preserved on appeal.  J.M. testified that appellant masturbated while watching through a hole in the bathroom wall as she and S.S. bathed. The jury had before it appellant’s hand-written statement in which he recalled, “I masturbated in front of [S.S.] several times satisfing (sic) her curiosity.”  Also in evidence was appellant’s electronically recorded statement in which he stated S.S. had seen him “totally naked.”⁴ On cross-examination, a psychologist called by the State testified that S.S. told him appellant “had shown his privates to her.”  The error, if any, of the trial court in admitting the statement of the forensic interviewer did not affect a substantial right of appellant and must be disregarded.  We overrule appellant’s first issue.

            By his second issue, appellant contends the trial court erred by allowing a psychologist to express an implied opinion S.S. was truthful in her report of sexual abuse.  On direct examination by the State, the psychologist testified he was not surprised that S.S. was vague in her description to him of what happened. When asked why, he provided the following explanation, the admission of which is the subject of appellant’s issue:

Victims tend to minimize. That is, they–they tend not to want to talk about things that have happened.  They tend not to–they tend to rationalize what happens.  They tend to make it okay in their mind so they’re not at fault and so they don’t feel bad about it, so they don’t feel guilty, so they don’t look like they had a part to do with it.  They tend to deny some things on occasion after they once have admitted them, admitted acts.

            Expert testimony is admissible only if it assists the trier of fact to understand the evidence or determine a fact in issue.  Tex. R. Evid. 702; Duckett v. State, 797 S.W.2d 906, 914 (Tex.Crim.App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.App. 1993).  Expert testimony assists the trier of fact when the jury is not qualified to determine the particular issue “intelligently and to the best possible degree.” Duckett, 797 S.W.2d at 914.  Expert testimony that identifies certain physical or behavioral manifestations of sexual abuse and relates these characteristics to the complainant is admissible even if the complainant has not been impeached.  Yount v. State, 872 S.W.2d 706, 708-09 (Tex.Crim.App. 1993); Cohn, 849 S.W.2d at 818-19.  On the other hand, “[e]xpert testimony does not assist the jury if it constitutes ‘a direct opinion on the truthfulness’ of a child complainant’s allegations.”  Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App. 1997) (quoting Yount, 872 S.W.2d at 708).  Testimony of this nature “crosses the line” by deciding the issue for the jury rather than assisting its understanding of the evidence or determination of a fact in issue.  See Yount, 872 S.W.2d at 709; Duckett, 797 S.W.2d at 914-15.⁵ Parson v. State, illustrates this distinction.  193 S.W.3d 116 (Tex.App.–Texarkana 2006, pet. refused). There, a licensed professional counselor opined that the trial testimony of the defendant’s wife and stepson differed from their earlier statements and testimony because they suffered “‘battered woman’s syndrome.’” Id. at 126.  The counselor opined of the effect of this condition on the truthfulness of those so diagnosed but she rendered no direct opinion of the truthfulness of the witnesses.  Id. The court of appeals found no error in allowing the testimony.  Id.

            We find the psychologist here, in the complained-of portion of his testimony, did no more than express his expert opinion concerning the coping means employed by victims of sexual assault.  On direct examination, he offered no opinion that S.S. was truthful in recounting the events of which she complained.  His testimony in that regard may be compared with that of the forensic interviewer in Fuller v. State, who was asked directly whether she had formed an opinion whether the child she interviewed “was being truthful with you.”  224 S.W.3d 823, 835 (Tex.App.–Texarkana 2007, no pet.).  In the present case, the psychologist’s testimony, if believed, would assist the jury’s evaluation of the testimony of S.S.  See Duckett, 797 S.W.2d at 914 (expert testimony must aid and not supplant the jury).  We find no abuse of discretion by the trial court in admitting the statement of the psychologist of which appellant complains.⁶  Appellant’s second issue is overruled.

            In his third issue, appellant complains the State injected evidence of improper character conformity, that is “pedophilia” with attraction to children of both genders.  The complaint arises from the following exchange during the cross-examination of appellant:

Q. [by the prosecutor]:                     You [appellant] enjoyed playing with those little girls in the swimming pool, didn’t you?

A. [appellant]:                                    Yes, and the–and the young boys.

Q.                                                        Oh, you like boys, too?

A.                                                        Yes.

Q.                                                        So you also–

[appellant’s counsel]:                      Object to the sidebar remark.

[prosecutor]:                                      I was merely clarifying, Your Honor, his statement.

[appellant’s counsel]:                      It was intended as a sidebar.

[prosecutor]:                                      No, Your Honor.

The Court:                                         Overruled.

            The State argues the claimed error was not preserved as the prosecutor’s question, “Oh, you like boys, too?” was not an improper side bar remark.  “Side bar remarks are remarks of counsel that are neither questions to the witness nor comments addressed to the court.”  Brokenberry v. State, 853 S.W.2d 145, 152 (Tex.App.–Houston [14th Dist.] 1993, pet. refused).  We necessarily view the complained-of question in the context afforded by the record.  The words of the prosecutor apparently were perceived by the witness as the State’s next question, which he answered.  The side bar objection followed the response as the prosecutor began another question.

            But assuming, arguendo, appellant preserved the issue he presents on appeal, we nevertheless find it without merit.  On appeal, appellant characterizes his answer “Yes, and the – and the young boys” as “innocent.”  He asserts the State’s next question obviously and improperly implied that his response was an admission of a sexual interest in all children, boys and girls.  The appellate record, on which we must base our judgments and which here records merely the words said, does not permit us to engage in the kind of characterizations necessary to the conclusions appellant asserts.  How appellant’s volunteered reference to young boys and the prosecutor’s next question are to be interpreted depends much on demeanor and inflection of voice.  Consideration of these and other physical factors falls naturally within the sound discretion of the trial court as it controls the conduct of trial.  The permissible scope of cross-examination is wide-ranging, extending to any matter relevant to the issues.  Woodall v. State, 216 S.W.3d 530, 536-537 (Tex.App.–Texarkana 2007).  The conduct of cross-examination is committed to the sound discretion of the trial court. Sterns v. State, 862 S.W.2d 687, 690 (Tex.App.–Tyler 1993, no pet.).  From the record before us we perceive no abuse of discretion in the trial court’s overruling of appellant’s objection.  We overrule appellant’s third issue.

Conclusion

            Having overruled appellant’s three issues, we affirm the judgment of the trial court.

                                                                                                James T. Campbell

                                                                                                          Justice

Do not publish. 

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¹ Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2009).

² Tex. Penal Code Ann. § 21.11 (Vernon 2003).

³ According to the witness, during the interview S.S. denied that anyone touched or contacted her “private places.”

            ⁴ At trial, appellant objected to the admission of his written and recorded statements on the ground they were the product of coercion.  The objections were overruled and of these rulings appellant does not complain on appeal.

            ⁵ This dichotomy was succinctly noted in Rodriquez v. State, 741 P.2d 1200, 1204 (Ak.Ct.App. 1987) (quoted in Duckett v. State, 797 S.W.2d 906, 915 (Tex.Crim.App. 1990)):

It appears to us that there is a significant distinction between presenting a witness, such as a polygraph operator, to testify that a person is telling the truth, and presenting a witness who can state that the behavior of a witness falls within a common pattern.

* * * * *

Testimony by an expert witness that purports to establish by scientific principles that another witness is telling the truth treads on dangerous legal ground.  On the other hand, testimony by an expert witness which provides useful background information to aid the jury in evaluating the testimony of another witness is admissible.

            ⁶ Moreover, direct inquiry concerning S.S.’s truthfulness came during cross-examination of the psychologist.  Counsel for appellant inquired whether factors or indicia were available to detect “lying”; whether the psychologist could determine the truthfulness and honesty of S.S.; whether it was possible S.S. was not telling the truth. The court sustained the State’s objection when appellant inquired what was necessary for the psychologist to determine if S.S. fabricated some or all her story.