Kevin Manderscheid v. State ( 2013 )

Affirmed and Memorandum Opinion filed December 5, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00579-CR
KEVIN MANDERSCHEID, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1290929
MEMORANDUM OPINION
Appellant Kevin Manderscheid appeals his conviction of aggravated sexual
assault of a child. In eight issues he argues the trial court erred in (1) permitting
the State to ask commitment questions during voir dire; (2) failing to hold a
hearing pursuant to article 38.072 of the Texas Code of Criminal Procedure; (3)
failing to grant a mistrial due to a witness’s reference to appellant as an “ex-con”;
(4) admitting victim-impact evidence; (5) failing to grant a mistrial after the
prosecutor commented on appellant’s failure to testify; (6) failing to grant a
mistrial when the prosecutor argued outside the record; (7) violating appellant’s
right to testify; and (8) engaging in cumulative error. We affirm.
BACKGROUND
The complainant’s parents divorced when she was an infant. When the
complainant was approximately thirteen years old, her mother and appellant lived
together. The complainant lived with them for a period of time, and her mother
later permitted the complainant to live alone in a nearby apartment. Over the
course of approximately one year, appellant gave the complainant drugs and
alcohol and engaged in sexual intercourse with her.
When the complainant was seventeen years old, she was living with her
father in Colorado. The complainant had become angry and rebellious, and she
often engaged in alcohol abuse and missed curfew. On one occasion, the
complainant arrived at her father’s home intoxicated and after curfew. During the
conversation with her father that night, the complainant disclosed the sexual abuse.
Appellant was convicted of aggravated sexual assault and sentenced to twenty
years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice. He does not challenge the sufficiency of the evidence to support
his conviction.
ANALYSIS
I. Voir dire
In his first issue, appellant contends the trial court erred in permitting the
State to ask irrelevant, non-qualifying commitment questions in voir dire.
Appellant alleges the State was permitted to ask the following questions:
1. What do you think a child molester looks like?
2
2. Is a child more likely to be molested by someone they know or a
stranger?
3. Is a child more likely to be molested in a broken home or a stable
home?
Prior to conducting its voir dire, the State shared with appellant a
PowerPoint presentation that the prosecutor intended to use as a visual aid during
voir dire. Appellant objected to certain questions and phrases contained in the
presentation. Appellant first objected to the State’s use of the term “child
molester” because it was not the term used in the Penal Code. The court instructed
the State to “choose another word.” The State did so. During voir dire, the State
asked “What does someone that commits aggravated sexual assault of a child look
like?” Appellant did not object at the time the State asked the question.
With regard to the remaining two voir dire questions, appellant objected that
the questions did not bear on the veniremembers’ ability to “sit and serve” on the
jury. Appellant objected to the relevance of the questions and stated that they were
“akin to getting into the facts of the case.” When the State asked the questions
during voir dire, appellant did not object.
On appeal, appellant argues the prosecutor’s questions were impermissible
commitment questions. Appellant failed to preserve his complaint that they were
commitment questions because he did not make that objection at trial. To preserve
an issue for appellate review, there must be a timely objection specifically stating
the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim.
App. 1990). An objection based on one legal theory may not be used to support a
different legal theory on appeal. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim.
App. 1993). The complaint appellant now raises does not comport with the
objection he voiced at trial; therefore, appellant waived his complaint that the
prosecutor’s questions were commitment questions.
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Appellant also contends that the State’s questions were irrelevant. As
explained above, the State rephrased the first question in response to appellant’s
objection, and appellant made no further objection to that question. Accordingly,
no complaint regarding that question is preserved for our review. As to the second
and third questions, we hold the trial court did not abuse its discretion in overruling
appellant’s relevance objection.
A trial court has broad discretion over the process of selecting a jury, and we
will not reverse the trial court’s decision on the propriety of a particular voir dire
question absent an abuse of discretion. Sells v. State, 121 S.W.3d 748, 755 (Tex.
Crim. App. 2003). A trial court abuses its discretion if it allows the State to ask an
improper question. Atkins v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997).
A question is improper if it (1) attempts to commit the juror to a particular verdict
based on particular facts; or (2) is so vague or broad in nature as to constitute a
global fishing expedition. Sells, 121 S.W.3d at 756. A question is proper if it
seeks to discover a juror’s views on an issue applicable to the case. Id. Generally,
questions that are not clearly improper on some other basis may be asked for the
purpose of intelligently exercising peremptory challenges. Barajas v. State, 93
S.W.3d 36, 39 (Tex. Crim. App. 2002).
In this case, the State’s questions regarding whether a child is more likely to
be assaulted by someone he or she knows and whether a child is more likely to be
assaulted in a broken home sought information that would allow the State to use its
peremptory strikes intelligently. Because the complainant had lived with
appellant, the State may have wanted to explore whether any of the veniremembers
thought it was unusual for a member of the complainant’s household to commit
sexual assault. In addition, because the complainant’s parents were divorced, the
State may have wanted to identify any bias by the veniremembers toward children
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from a “broken home.” The trial court did not abuse its discretion in permitting the
State to ask these questions to aid its use of peremptory challenges. Appellant’s
first issue is overruled.
II. Hearsay
In his second issue, appellant contends the trial court erred in denying his
request for a hearing pursuant to article 38.072 of the Texas Code of Criminal
Procedure. In a case alleging aggravated sexual assault, article 38.072 permits the
first adult to whom a child made an outcry statement describing the alleged offense
to testify about the statement if certain requirements are met. Tex. Code Crim.
Proc. art. 38.072 § 2. One of the statutory requirements is that the trial court must
hold a hearing outside the presence of the jury to determine whether the statement
is reliable based on time, content, and circumstances of the statement. Id. In this
case, appellant objected to the trial court’s failure to conduct a hearing with regard
to the testimony of the complainant’s father.
The complainant’s father was the first witness at trial. Prior to his
testimony, appellant requested a hearing outside the presence of the jury to
determine the admissibility of outcry testimony under article 38.072. The
prosecutor explained that she only intended to elicit testimony that the abuse was
disclosed to the father, and she did not intend to ask the details of the
complainant’s statement. Therefore, the prosecutor argued, the father’s testimony
was not hearsay because it was not being offered for the truth of the matter
asserted—i.e., to prove that sexual abuse occurred. Rather, it was offered to show
the father’s reaction to the statement. The trial court overruled appellant’s
objection.
The father later testified as follows:
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Q. (By [the prosecutor]) So you say [the complainant] came home
drunk?
A. Yes, ma’am.
* * *
Q. Eventually, does she talk to you?
A. Yes, ma’am.
Q. And, again, we can’t get into the specifics of what she said.
A. Yes, ma’am.
Q. But during that conversation, does she disclose any type of sexual
abuse?
[Defense Counsel]: Objection again pursuant to the previous raised
objection, Your Honor, under 38.07(2), [sic] failure to hold a hearing
outside the presence, and hearsay.
THE COURT: Overruled. That’s either “yes” or “no.”
A. Could you restate your question, please, ma’am?
Q. (By [the prosecutor]) Yes, sir. Again, without going into any
specifics of what she said, during that conversation, did she disclose
any type of sexual abuse to you?
A. Yes, ma’am.
Q. When she told you that, how did you feel?
A. Shocked, hurt, angry, like a failure as a father.
We review a trial court’s decision on the admissibility of evidence under an
abuse of discretion standard, and we will not reverse that decision if it is within the
“zone of reasonable disagreement.” Tillman v. State, 354 S.W.3d 425, 435 (Tex.
Crim. App. 2011). We conclude the trial court did not abuse its discretion by
declining to hold a hearing under article 38.072 because the record does not show
that the complainant’s statement to her father qualifies as an outcry statement.
Article 38.072 is an exception to the hearsay rule. Chapman v. State, 150
S.W.3d 809, 812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). To fall
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within the exception, the child’s statement must describe the alleged offense in
some discernible manner and must be more than a general allusion to sexual abuse.
See Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). Here, there is no
evidence that the complainant described to her father any details of the alleged
abuse. See Hayden v. State, 928 S.W.2d 229, 231 (Tex. App.—Houston [14th
Dist.] 1996, pet. ref’d) (holding trial court did not abuse discretion in concluding
teacher was not outcry witness where there was no evidence complainant described
to her the details of the abuse); Garibay v. State, 787 S.W.2d 128, 129–30 (Tex.
App.—Corpus Christi 1990, pet. ref’d) (holding trial court did not abuse discretion
in concluding teacher was not outcry witness where complainant told teacher only
that appellant abused her). Thus, the father’s testimony about the statement is not
admissible under article 38.072, and no hearing to determine the statement’s
reliability was required.
Because the article 38.072 exception does not apply, the question remains
whether the father’s testimony that the complainant disclosed sexual abuse to him
was hearsay. Hearsay is a statement, other than one made by the declarant while
testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.
R. Evid. 801(d). Testimony not offered for the truth of the matter asserted is not
hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). For
example, a statement offered to show the effect on the listener is not hearsay. In re
Bexar County Criminal Dist. Attorney’s Office, 224 S.W.3d 182, 189 (Tex. 2007).
Here, the prosecutor argued that the father’s testimony was being offered to show
his reaction to the complainant’s statement. In addition, the father did not name
appellant as the abuser; rather, his testimony was part of a narrow line of inquiry
showing how the alleged abuse came to be investigated years after it occurred.
Under these circumstances, the trial court could reasonably have concluded that the
7
father’s statement was not offered for its truth. The court’s decision to overrule the
hearsay objection was therefore within the zone of reasonable disagreement.
Appellant’s second issue is overruled.
III. Mistrial
In issues three, five, and six, appellant contends the trial court abused its
discretion in denying his motions for mistrial when (1) a State’s witness identified
appellant as a former convict; (2) the prosecutor improperly commented on
appellant’s failure to testify; and (3) the prosecutor argued outside the record.
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). A
mistrial is a device used to halt trial proceedings when error is so prejudicial that
expenditure of further time and expense would be wasteful and futile. Ladd v.
State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Whether a given error requires
a mistrial must be determined by examining the particular facts of the case.
Hernandez v. State, 805 S.W.2d 409, 413–14 (Tex. Crim. App. 1990).
A. Admission of extraneous offense evidence
The complainant’s mother testified during the State’s case-in-chief. During
her testimony about the dissolution of her relationship with appellant, the
complainant’s mother testified as follows:
Q. Why did it end?
A. He had been up for, I think, five days. The Adderall kept him
awake, I guess kept him going. He took—we argued, we fought, and
he threatened to take my daughter with him, like, “I’m going to leave
and I’m taking [the complainant] with me.” I thought he meant like a
parent.
Q. At the time, that’s what you thought?
A. Yeah. I said, “Don’t you threaten me with my child. There’s no
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way. You are an ex-con.” Sorry. “But there’s no way anybody
would let you have her.” He was angry and left. I guess he—when he
drove off, he said he was going to clean the bank account out, he was
leaving me, and he drove off.
Q. This was all right before his accident, you said?
A. Yeah.
Q. You-all broke up then?
A. I don’t know if it was official, but it was pretty bad. He said, “I’m
leaving.”
[Defense counsel]: Judge, may we approach?
THE COURT: Yes.
(Whereupon counsel approached the bench out of the hearing of the
jury.)
[Defense counsel]: Now, what I don’t want to hear is this delayed
reaction on my part. The prosecution has assured me, and I am not in
any way suggesting that they on their part—that they had coached her
clearly not to mention anything about this man having been to prison
or anything else. Yet, in total non-response to a question, she has
injected extraneous matters in front of this jury that he was an ex-con.
I object to the answer first and foremost as being nonresponsive. I
would ask the Court for a ruling and a motion to disregard, and then
it’s my intention to move for a mistrial because I don’t think that can
be cured.
After further discussion, the trial court sustained the objection and instructed the
jury that the sentence, “That there’s no way. You are an ex-con,” should be
disregarded and not considered as evidence. The court denied appellant’s motion
for a mistrial.
Though the mother’s statement that appellant had previously been
incarcerated was inadmissible under Texas Rule of Evidence 404(b), it “is well-
settled that testimony referring to or implying extraneous offenses can be rendered
harmless by an instruction to disregard by the trial judge, unless it appears the
evidence was so clearly calculated to inflame the minds of the jury or is of such
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damning character as to suggest it would be impossible to remove the harmful
impression from the jury’s mind.” Kemp v. State, 846 S.W.2d 289, 308 (Tex.
Crim. App. 1992) see also Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App.
2000) (“Ordinarily, a prompt instruction to disregard will cure error associated
with an improper question and answer, even one regarding extraneous offenses.”).
This case is indistinguishable from a line of cases in which witnesses have
made similarly inappropriate, but unembellished, references to the appellant’s prior
incarceration. See Kemp, 846 S.W.2d at 308 (witness disclosed that appellant “had
recently been released from the penitentiary”); Nobles v. State, 843 S.W.2d 503,
513 (Tex. Crim. App. 1992) (witness testified that appellant “didn’t want to go to
the hospital because he didn’t want to go back to prison”); Tennard v. State, 802
S.W.2d 678, 685 (Tex. Crim. App. 1990) (witness stated that he saw appellant
“[w]hen he first got out of the penitentiary”); Gardner v. State, 730 S.W.2d 675,
696 (Tex. Crim. App. 1987) (witness revealed that appellant had experienced
health problems “when he was in the penitentiary”); Barney v. State, 698 S.W.2d
114, 125 (Tex. Crim. App. 1985) (witness testified that victim did not like
appellant “because he was an ex-con”).
In each of these cases, the trial court instructed the jury to disregard the
prejudicial testimony. Kemp, 846 S.W.2d at 308; Nobles, 843 S.W.2d at 514;
Tennard, 802 S.W.2d at 685; Gardner, 730 S.W.2d at 696; Barney, 698 S.W.2d at
125. And in each of these cases, the Court of Criminal Appeals held the
instruction to disregard was sufficient to cure any harm. Kemp, 846 S.W.2d at
308; Nobles, 843 S.W.2d at 514; Tennard, 802 S.W.2d at 685; Gardner, 730
S.W.2d at 697; Barney, 698 S.W.2d at 125.
In this case, the statement by complainant’s mother that appellant is an “ex-
con” is no more inflammatory or prejudicial than the statements by the witnesses in
10
the cases cited above. The trial court’s instruction to disregard the testimony
properly admonished the jury not to consider the comment as evidence.
Accordingly, the trial court did not abuse its discretion in denying appellant’s
motion for mistrial.1 Appellant’s third issue is overruled.
B. Closing argument
In his fifth issue, appellant contends the prosecutor improperly commented
on appellant’s right to remain silent. During closing argument, appellant largely
focused on the complainant’s credibility. Appellant described the complainant as
“belligerent, defiant [and] manipulative.” In response, the prosecutor argued:
If this was a lie, [the complainant] wouldn’t have had a single
problem up there on that witness stand, but it wasn’t. You saw how
she reacted. You saw her body trembling when she talked about what
happened.
Folks, don’t you know that he was trembling, too. Don’t you know it
was hard for him to listen to her get up there on that witness stand and
tell you exactly what happened between the two of them?
[Defense counsel]: Your Honor, I’m going to object to that last
comment. That is a clear, blatant comment on my client’s exercising
his right not to testify.
THE COURT: Sustained.
[Defense counsel]: Your Honor, I would ask the Judge to instruct this
jury to disregard that last comment for any and all purposes.
THE COURT: All right. The jury will disregard the last statement by
the prosecutor.
[Defense counsel]: Your Honor, as a matter of law, I would ask the
Court for a mistrial.
1
On appeal, appellant also argues the trial court erred in denying his motion for mistrial
because the probative value of the evidence was outweighed by its prejudicial effect. See Tex.
R. Evid. 403. Appellant did not object on the basis of Rule 403 below, however, so that
complaint is not preserved for our review. See Cook, 858 S.W.2d at474 (objection based on one
legal theory may not be used to support a different legal theory on appeal).
11
THE COURT: That will be denied.
The United States and Texas Constitutions guarantee that a defendant in a
criminal trial shall not be compelled to give evidence against himself. See U.S.
Const. amend. V; Tex. Const. art. I. The failure of a defendant to testify on his
own behalf shall not be taken as a circumstance against him and shall not be
alluded to or commented on by counsel. Tex. Code Crim. Proc. art. 38.08. It is
improper for either the State or the trial court to comment on the defendant’s
failure to testify. See Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App.
2001) (citing Davis v. United States, 357 F.2d 438, 441 (5th Cir. 1966)).
To determine whether an improper comment occurred, the offending
language must be viewed from the jury’s standpoint and the implication that the
comment referred to the defendant’s failure to testify must be clear. Bustamante,
48 S.W.3d at 765. It is not sufficient that the language might be construed as an
implied or indirect allusion. Id. The test is whether the language used was
manifestly intended or was of such a character that the jury would necessarily and
naturally take it as a comment on the defendant’s failure to testify. Id. In applying
this standard, we analyze the context in which the comment was made to determine
whether the language used was of such character. Cruz v. State, 225 S.W.3d 546,
548 (Tex. Crim. App. 2007). A jury argument is improper where it calls the jury’s
attention to the absence of evidence that only the defendant’s testimony could
supply. See Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983); Crocker
v. State, 248 S.W.3d 299, 304 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
Appellant argues that the prosecutor’s remark “called for the jurors to
speculate on how the Appellant would respond/answer when Appellant was
exercising his Fifth Amendment rights under the United States Constitution.”
However, in its context, the prosecutor’s argument that it was hard for appellant to
12
listen to the complainant’s testimony was in response to appellant’s argument that
the complainant was not credible. We conclude that this remark was not one that
the jury would necessarily or naturally take as a comment on appellant’s decision
not to testify. See Bustamante, 48 S.W.3d at 765; cf. Ortiz v. State, 144 S.W.3d
225, 235 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (State argued that
there was no testimony about particular kind of gun and that if other gun had been
present, defendant would have said so; court held that in context, comment referred
to defendant’s pretrial statements already in evidence, not to defendant’s failure to
testify); Villarreal v. State, 79 S.W.3d 806, 812–13 (Tex. App.—Corpus Christi
2002, pet. ref’d) (comment that defendant had not offered reasonable explanation
for evidence was in answer to defendant’s jury argument and was at most indirect
allusion to failure to testify); Kan v. State, 4 S.W.3d 38, 45 (Tex. App.—San
Antonio 1999, pet. ref’d) (“What did Defendant put on there to show that sexual
contact did not happen?” held to be rhetorical question that did not necessarily call
to jury’s attention to lack of evidence only defendant could provide). Appellant’s
fifth issue is overruled.
In his sixth issue, appellant contends the trial court erred in denying his
motion for mistrial after the prosecutor argued outside the record. Appellant
complains of the following argument:
Now, no matter how much therapy [the complainant] goes through,
this defendant is going to be with her for the rest of her life. No
matter how hard she tries, she’s never going to be able to forget what
he did to her. One day when she falls in love and has sex with
someone for the first time, he’s going to be there. When she gets
married —
[Defense counsel]: Your Honor, I object to the prosecution testifying.
She is going into facts not in evidence.
THE COURT: All right. Sustained.
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[Defense counsel]: I ask the jury be instructed to disregard the last
comments of the prosecutor.
THE COURT: Please disregard the last comment of the State’s
attorney.
[Defense counsel]: Your Honor, based upon her previous —
THE COURT: Denied.
[Defense counsel]: — improper conduct in, I would ask for a mistrial.
THE COURT: Denied.
[Prosecutor]: Folks, based on your own common sense, you know that
this is going to be there forever, and you don’t need me to stand up
here to tell you that.
It is the duty of trial counsel to confine his or her argument to the record;
reference to facts that are neither in evidence nor inferable from the evidence is
improper. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
Proper jury argument generally falls within one of four general areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3)
answer to argument of opposing counsel; and (4) plea for law enforcement.
Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). Error occurs when
facts not supported by the record are interjected into the argument, but such error is
not reversible unless, in light of the record, the argument is extreme or manifestly
improper. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).
In argument counsel may draw from the facts in evidence all inferences that
are reasonable, fair, and legitimate and will be afforded latitude so long as the
argument is supported by the evidence and offered in good faith. Griffin v. State,
554 S.W.2d 688, 690 (Tex. Crim. App. 1977). An inference is a conclusion
reached by considering other facts and deducing a logical consequence from them.
See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007). Here, although the
trial court sustained appellant’s objection, it could also reasonably have found it
14
logical to deduce that a childhood sexual assault can have long-term effects on the
victim. This reasonable deduction tends to show that the prosecutor’s comment
was not so improper as to require reversal. See Belton v. State, 900 S.W.2d 886,
899 (Tex. App.—El Paso 1995, pet. ref’d) (holding argument that victim would be
in wheelchair for the rest of her life did not require reversal); McGee v. State, 852
S.W.2d 551, 559–60 (Tex. App.—Tyler 1992, pet. ref’d) (holding argument that
victim’s family would have to live with his death for the rest of their lives was not
improper).
In most instances, an instruction to disregard an improper jury argument will
cure any error. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
Only offensive or flagrant error will mandate reversal after a trial court’s
instruction to disregard. Id. at 116. Here, the trial court quickly sustained
appellant’s objection and instructed the jury to disregard the State’s comments.
While the prosecutor should not have followed up on her statement that the
complainant would suffer long-term effects from the assault after the trial court
sustained appellant’s objection, the prosecutor’s comments “were not so highly
inflammatory that a jury could not ignore them.” Phillips v. State, 130 S.W.3d
343, 356 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 193 S.W.3d 904 (Tex.
Crim. App. 2006). Appellant’s sixth issue is overruled.
IV. Victim impact evidence
In his fourth issue, appellant contends the trial court permitted inadmissible
victim impact evidence during the guilt-innocence phase of trial. The State
introduced the expert testimony of Dr. Lawrence Thompson during its case-in-
chief. Dr. Thompson testified to the effects of sexual assault on other family
members:
Q. Sexual assault of a child, does it also affect the non-offending
15
caregiver, as well as the child?
A. It can.
Q. In what way?
A. It depends on the non-offending caregiver. To the extent, though,
that that non-offending caregiver —
[Defense counsel]: Judge, I’m going to object to this. I fail to see its
relevance at all.
THE COURT: Overruled.
A. To the extent that the non-offending caregiver, they love their
child, they care for their child, they can certainly be hurt and upset
and even traumatized by the fact that their child has been abused.
[Defense counsel]: Judge, again, just for the record, I amend my
objection.
THE COURT: Approach the bench.
(Whereupon counsel approached the bench out of the hearing of the
jury.)
[Defense counsel]: Judge, I believe this at best is not only not
relevant, but it is tantamount to and appears to me to be victim impact
testimony. The last time I checked, that’s only relevant at
punishment.
THE COURT: I think there was evidence concerning the non-offender
and what she did and what she did not do, whether or not the victim
told her mother about the abuse. So I think it is relevant as it relates
to the testimony that I’ve heard during this trial concerning the non-
offender, who is [the complainant’s mother].
[Defense counsel]: Okay.
[Prosecutor]: Thank you, Judge.
(Whereupon the following proceeding is held in the hearing of the
jury.)
Q. (By the prosecutor) Doctor, is it possible that sexual abuse can
affect the entire family unit?
A. Yes, it is possible . . . .
As noted above, we review a trial court’s decision to admit evidence under
16
an abuse-of-discretion standard. Appellant argues this irrelevant “victim-impact”
evidence was improperly admitted at the guilt-innocence phase of trial. We
disagree.
Victim impact evidence is evidence of the effect of an offense on people
other than the victim. Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App.
2007). Such evidence generally is excluded as irrelevant to the issues at the guilt-
innocence phase of a trial, but it can be admitted if it tends to make a fact of
consequence to the determination of guilt more or less probable. E.g., Love v.
State, 199 S.W.3d 447, 457 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d);
Petruccelli v. State, 174 S.W.3d 761, 768 (Tex. App.—Waco 2005, pet. ref’d).
Here, the trial court could reasonably have determined that: (1) Dr. Thompson’s
generalized testimony was not typical victim impact evidence because it did not
address specifically how the complainant’s family members were affected by
appellant’s actions; and (2) that his testimony was relevant at the guilt-innocence
phase because it tended to corroborate the victim’s testimony by showing that her
mother’s behavior was consistent with that of a non-offending caregiver of a child
who has been sexually assaulted. Accordingly, the trial court did not abuse its
discretion in overruling appellant’s objection to Dr. Thompson’s testimony.
Appellant’s fourth issue is overruled.
V. Defendant’s right to testify
In his seventh issue, appellant contends the trial court erred in violating his
right to choose whether to testify under the Fifth and Fourteenth Amendments to
the United States Constitution. After the State rested, appellant recalled the
complainant’s mother to testify. After her testimony, appellant’s counsel
explained to the court that he and appellant disagreed as to whether appellant
should testify. The trial court allowed appellant five minutes to decide whether he
17
was going to testify. After a brief recess, appellant’s counsel advised the court that
“we are ready to proceed in front of the jury.” Following that announcement,
appellant’s counsel rested his case.
In a motion for new trial, appellant argued that he received ineffective
assistance of counsel because his trial counsel failed to allow him to testify. The
trial court denied this motion, and appellant does not reurge his ineffective
assistance complaint on appeal. Rather, appellant claims on appeal that the trial
court denied him the right to testify. We disagree.
The record shows that the trial court gave appellant five minutes to decide
whether to testify. Appellant did not object that this time period was inadequate.
On appeal, appellant argues that the trial court had a duty to inquire whether he
was voluntarily and knowingly waiving his right to testify. But in a case that
neither party brought to our attention, the Court of Criminal Appeals rejected such
a duty, and the overwhelming majority of courts around the country have done
likewise. Johnson v. State, 169 S.W.3d 223, 232–34 (Tex. Crim. App. 2005).2 We
therefore overrule appellant’s seventh issue.
VI. Cumulative error
In his eighth issue, appellant contends the trial court’s aforementioned error
resulted in cumulative harm. A number of errors, even if harmless when separately
considered, may be harmful in their cumulative effect. Chamberlain v. State, 998
2
See also, e.g., United States v. Ly, 646 F.3d 1307, 1314–15 (11th Cir. 2011); United
States v. Brown, 217 F.3d 247, 258 (5th Cir. 2000), vacated on other grounds sub nom. Randle v.
United States, 531 U.S. 1136 (2001); United States v. Leggett, 162 F.3d 237, 246–47 (3d Cir.
1998) (collecting cases); Brown v. Artuz, 124 F.3d 73, 78–79 (2d Cir. 1997) (collecting cases);
Zamora v. State, No. 12-09-391-CR, 2010 WL 4259176, at *1 (Tex. App.—Tyler Oct. 27, 2010,
no pet.) (mem. op., not designated for publication); Bean v. State, No. 04-03-114-CR, 2003 WL
23095725, at *3 (Tex. App.—San Antonio Dec. 31, 2003, pet. ref’d) (mem. op., not designated
for publication).
18
S.W.2d 230, 238 (Tex. Crim. App. 1999); Melancon v. State, 66 S.W.3d 375, 385
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Non-errors, however, may not
cumulatively produce harm. Hughes v. State, 24 S.W.3d 833, 844 (Tex. Crim.
App. 2000). Because appellant has shown no error by the trial court, there can be
no cumulative error or harm. Appellant’s eighth issue is overruled.
The judgment of the trial court is affirmed.
/s/ J. Brett Busby
Justice
Panel consists of Justices Boyce, Jamison, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).
19