Michael Lawrence Conti v. State ( 2011 )

Affirmed and Memorandum Opinion filed November 3, 2011.
In The
Fourteenth Court of Appeals
NOS. 14-10-00632-CR, 14-10-00633-CR
MICHAEL LAWRENCE CONTI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause Nos. 08CR3363, 08CR3364
MEMORANDUM OPINION
Appellant Michael Lawrence Conti challenges his convictions for indecency with
a child by contact and indecency with a child by exposure, raising three issues on appeal:
(1) whether the State failed to provide notice of its intent to introduce extraneous-offense
evidence at the guilt-innocence phase of trial; (2) whether the trial court erred in allowing
the State to introduce testimony of the child-complainant’s reputation for truthfulness;
and (3) whether the trial court erred in allowing the State to elicit expert-opinion
testimony about the child-complainant’s truthfulness. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with the offenses of indecency with a child
by contact and indecency with a child by exposure, both of which involved his fourteen-
year-old stepdaughter, Mary.1 Appellant pleaded ―not guilty.‖ Appellant elected for a
jury to assess his punishment. The jury found appellant guilty of both offenses. For each
offense, appellant was sentenced to ten years’ confinement, probated for ten years, with
the sentences to run concurrently.
ANALYSIS
Did appellant preserve error as to his first issue?
In his first issue, appellant asserts that the State did not provide notice of intent to
introduce extraneous-offense evidence of his prior sexual misconduct with Mary when
she was younger. Specifically, appellant complains of the unobjected-to testimony from
three witnesses: Mary’s youth pastor, Mary’s therapist, and Mary. Each witness made
reference to appellant’s sexual misconduct with Mary when she was about seven or eight
years old. According to appellant, even though the State filed two notices of intent to
introduce extraneous-offense evidence, neither notice referred to the extraneous-offense
evidence regarding appellant’s misconduct with Mary when she was younger.
To have preserved error on his complaint for inadequate notice regarding the
State’s intent to introduce evidence pertaining to appellant’s prior misconduct with Mary,
appellant should have made a timely, specific objection in the trial court. See TEX. R.
APP. P. 33.1; Gregory v. State, 56 S.W.3d 164, 176 (Tex. App.—Houston [14th Dist.]
2001, pet. dism’d) (overruling complaint that State’s notice of intent to use extraneous
offenses was inadequate because accused failed to lodge a timely, specific objection).
The record does not reflect that appellant lodged any objection to the alleged lack of
notice regarding the proffered evidence. See Gregory, 56 S.W.3d at 176. Although
1
To protect the privacy of the child complainant in this case, we refer to the complainant by a
pseudonym, ―Mary.‖
2
appellant objected to the relevance of the therapist’s testimony about how Mary’s
feelings towards her mother had changed, appellant failed to object to the admission of
any testimony that made reference to appellant’s sexual conduct with Mary when she was
younger. An appellate contention must comport with the specific objection made at trial.
See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection stating
one legal theory may not be used to support a different legal theory on appeal. See
Brozton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Because appellant failed
to voice his complaint in the trial court, he has failed to preserve this complaint for
appellate review. See TEX. R. APP. P. 33.1; Gregory, 56 S.W.3d at 176.
Appellant asserts that he was not required to preserve error in the trial court
because the alleged error caused him egregious harm. Appellant relies upon Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). But the Almanza
analysis does not apply unless a court first determines that there is error in the jury
charge. See Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998). Appellant is not
asserting that there was charge error; therefore, Almanza does not apply. See id. None of
the cases cited by appellant support the proposition that error preservation was
unnecessary as to his first issue, and this court has held to the contrary. See Gregory, 56
S.W.3d at 176. Accordingly, we overrule appellant’s first issue.
Did the trial court err in allowing the State to introduce testimony of the child-
complainant’s reputation for truthfulness?
In his second issue, appellant asserts that the trial court erred in allowing the
prosecutor to elicit testimony from Mary’s close friend, Ashley,2 about Mary’s reputation
for being truthful when appellant claimed that he had not attacked Mary’s character for
truthfulness. We review a trial court’s decision to exclude or admit evidence under an
abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 379–80 (Tex. Crim.
2
To protect the privacy of the child complainant in this case, we refer to this minor witness by a
pseudonym, ―Ashley.‖
3
Ohio App. 1990) (op. on reh’g). The trial court’s ruling will not be reversed as long as the
ruling is within the zone of reasonable disagreement. Id. at 391.
Texas Rule of Evidence 608, entitled ―Evidence of Character and Conduct of
Witness,‖ provides in part that ―evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.‖ TEX. R. EVID. 608(a)(2). Appellant claims that, at the time
Ashley testified about Mary’s reputation for truthfulness, he had not yet attacked Mary’s
character for truthfulness. The test for determining whether a witness’s credibility has
been attacked, such that reputation testimony is proper, is whether a reasonable juror
would believe that the witness’s character for truthfulness has been attacked by evidence
from other witnesses or statements of counsel during voir dire or opening statements. See
Michael v. State, 235 S.W.3d 723, 725–26, 728 (Tex. Crim. App. 2007).
In opening statements, appellant’s trial counsel referred to Mary as changing her
story and offering contradictory accounts of the offense such that the allegations of
misconduct ―have grown exponentially over a period of time.‖ Trial counsel argued that
after the allegations came to light, Mary sometimes denied that the conduct occurred in
her conversations with a youth pastor and a counselor at the Child Advocacy Center.
Trial counsel argued that Mary then made allegations about appellant’s attempts to have
contact with her, which then, over time, grew into allegations of exposure and eventually
allegations of physical force. Trial counsel argued that Mary’s allegations were
inconsistent as to when the conduct occurred—whether it occurred every day or a few
times a week over the period of a couple of months; some of the conduct was alleged to
have occurred during a time when Mary’s half-sister was visiting and sharing a bedroom
with Mary. Trial counsel claimed that Mary had given contradictory statements,
claiming, at times, that she had never seen appellant naked and, at other times, claiming
that she saw a ―little bit‖ when appellant ―kind of pulled it half way out one time, but
that’s all.‖ Appellant noted that the jury should observe Mary’s demeanor when she
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recounted the specific events, referring to her demeanor as a ―concern‖ because Mary
was ―flat‖ and ―unemotional.‖ Appellant’s counsel claimed that the evidence would
show that it is unreasonable to believe Mary’s testimony.
A reasonable juror could interpret appellant’s opening arguments as attacking
Mary’s credibility. See id.; see also Alberts v. State, 302 S.W.3d 495, 508 (Tex. App.—
Texarkana 2009, no pet.) (concluding that trial counsel was not deficient for failing to
object to rebuttal evidence of the child complainant’s reputation for truthfulness from the
child’s mother because counsel’s opening statements could be interpreted as an attack on
the child’s credibility when he argued that the child was coached by adults to fabricate
and lie about an incident that did not occur). Because the child-complainant’s character
for truthfulness was attacked in appellant’s opening statements, Texas Rule of Evidence
608 would allow rebuttal evidence of the witness’s good character. See TEX. R. EVID.
608(a)(2); Michael, 235 S.W.3d at 725. Therefore, the trial court did not err in allowing
this testimony.3 See Michael, 235 S.W.3d at 725.
Appellant also claims he was denied the opportunity to take Ashley on voir dire to
test her qualifications before she offered an opinion as to Mary’s reputation for
truthfulness. The record reflects that prior to asking Ashley her opinion of Mary’s
truthfulness, the trial court conducted a bench conference. At the bench, the prosecutor
indicated that because in his opening statement appellant’s counsel had attacked Mary’s
credibility, the prosecutor sought to ask Ashley’s opinion of Mary’s truthfulness.
Appellant objected to that line of questioning, but the trial court overruled the objection.
On direct examination, in response to the prosecutor’s question, Ashley expressed her
opinion of Mary’s reputation in the community for truthfulness. After objecting to the
testimony as ―improper bolstering,‖ appellant asked to take Ashley on voir dire after
3
Even if the trial court had erred in allowing this testimony, after considering the record,
including the testimony and evidence, the nature of the evidence supporting the verdict, the character of
the error in relation to other evidence, jury instructions, theories espoused by the parties, and arguments to
the jury and relevant voir dire, we conclude any error was harmless. See TEX. R. APP. P. 44.2(b); Schutz
v. State, 63 S.W.3d 442, 444–45 (Tex. Crim. App. 2001).
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Ashley already had answered the question. To be considered on appeal, an objection to
the admission of evidence must be made when the evidence is offered, and not after it has
been introduced. See Burnett v. State, 842 S.W.2d 296, 298 (Tex. App.—Fort Worth
1992, pet. ref’d). Based on the parties’ arguments at the bench conference, appellant had
notice that the prosecutor planned to ask Ashley about her opinion of Mary’s truthfulness.
But, at no time before the prosecutor asked the question or Ashley answered it did
appellant ask to take Ashley on voir dire. On this basis, appellant’s request for voir dire
was not timely, and therefore preserved nothing for appellate review. See id.
Finally, appellant claims that Ashley’s testimony, along with the testimony of
Mary’s brother and youth pastor, both of whom also testified about Mary’s reputation for
truthfulness, was improper ―since none of the three witnesses’ testimony was based on a
discussion with others, or hearing others discuss, the complainant’s reputation.‖ The
record does not reflect that appellant objected to any of the witnesses’ testimony on this
ground. See TEX. R. APP. P. 33.1 (requiring an accused to lodge a timely, specific
objection in the trial court in order to preserve a complaint for appellate review).
Appellant objected to the brother’s testimony as ―nonresponsive.‖ Appellant objected to
Ashley’s testimony as ―improper bolstering.‖ Nonetheless, on cross-examination, Ashley
testified that she based her opinion of Mary’s reputation for truthfulness on her
conversations with mutual friends. As for the youth pastor’s testimony, appellant
objected on unspecific grounds and asked to take the witness on voir dire. The record
does not reflect that appellant objected to the witnesses’ testimony on the grounds now
asserted on appeal. An objection stating one legal theory may not be used to support a
different legal theory on appeal. See Brozton, 909 S.W.2d at 918. Because appellant did
not voice this complaint in the trial court, appellant has failed to preserve error for
appellate review. See TEX. R. APP. P. 33.1. We overrule appellant’s second issue.
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Did the trial court err by allowing the State to elicit expert-opinion testimony about
the child-complainant’s truthfulness?
In his third issue, appellant claims the trial court erred in allowing the State to
introduce testimony of the child-complainant’s truthfulness. Appellant complains of
testimony from a sexual-assault nurse examiner, who testified that she referred Mary to
counseling because she was ―certain something had happened based on‖ the information
Mary had given during an examination. Appellant also complains of testimony from
Mary’s therapist. Although the therapist initially testified that she believed Mary was
telling the truth, the trial court sustained appellant’s objection to this statement and
instructed the jury to disregard that testimony. Appellant complains of the following
testimony from the therapist, as emphasized by appellant:
Q: What was [Mary’s] demeanor in the beginning of the therapy session?
A: Her emotion was pretty flat. She had subtle signs of depression and
anxiety which is why I only gave her adjustment disorder. But she was
very forthright almost as if she was reciting the details of a movie.
Q: What is the significance of that demeanor?
A: A child that was trying to convince me of something would be very
emotional.
Defense Counsel: Objection, Your Honor, nonresponsive.
Trial Court: Overruled.
Q: Please continue.
A: She, they give a lot of detail but they also put a lot of emotion behind it
to be convincing, whereas someone who has truly gone through a traumatic
event tend[s] to be flat….
Appellant characterizes the testimony from both witnesses as vouching for the
child-complainant’s veracity. We review a trial court’s decision to admit or exclude
expert testimony under an abuse-of-discretion standard. See Gallo v. State, 239 S.W.3d
7
757, 765 (Tex. Crim. App. 2007). An expert’s testimony may be admissible when a jury
is not qualified ―to the best possible degree‖ to intelligently determine an issue without
the testimony.‖ See TEX. R. EVID. 702; Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim.
App. 1997). An expert may provide testimony, as substantive evidence, that a child
exhibits symptoms consistent with sexual abuse. See Cohn v. State, 849 S.W.2d 817,
819–20 (Tex. Crim. App. 1993). But an expert is not permitted to offer a ―direct opinion
on the truthfulness‖ of a child-complainant’s allegation. Yount v. State, 872 S.W.2d 706,
708 (Tex. Crim. App. 1993).
Although the record reflects that the therapist originally offered a direct opinion on
Mary’s truthfulness, appellant objected to that testimony, and received a favorable ruling
from the trial court and an instruction to the jury to disregard the testimony. In the
absence of evidence that the jury members failed to do so, we presume the jury followed
the trial judge’s instruction to disregard. See Colburn v. State, 966 S.W.2d 511, 520
(Tex. Crim. App. 1998) (presuming the jury generally follows the trial court’s instruction
unless appellant presents evidence to rebut presumption). Because appellant received a
favorable ruling, we find neither error nor harm as to the therapist’s direct opinion as to
Mary’s truthfulness. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008)
(requiring a party to obtain adverse ruling by trial court in order to preserve error for
appellate review). As for the remaining challenged testimony of the two experts, neither
of these experts expressed an opinion as to Mary’s propensity for truthfulness. See
Johnson v. State, 970 S.W.2d 716, 720 (Tex. App.—Beaumont 1998, no pet.)
(concluding expert did not express an opinion as to the credibility of any witness). Thus,
this testimony provides no ground to find error.
Even if we were to indulge appellant’s characterization of the remaining testimony
as an improper comment on Mary’s propensity for truthfulness, appellant has waived the
issue by failing to object to the complained-of testimony. To preserve a complaint for
appellate review, a party must present to the trial court a timely request, objection, or
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motion with sufficient specificity to apprise the trial court of the complaint. TEX. R. APP.
P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim. App. 2002). Appellant
has not cited and we have not found any place in the appellate record reflecting that
appellant objected to the experts’ opinion testimony on this ground. Therefore, appellant
has failed to preserve his complaint for appellate review. We overrule appellant’s third
issue.
Having overruled each of appellant’s issues, we find no basis to disturb the
judgments. Accordingly, the trial court’s judgments are affirmed.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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