Jeffie Melder v. State ( 2014 )

NO. 12-12-00400-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JEFFIE MELDER, § APPEAL FROM THE 411TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § TRINITY COUNTY, TEXAS
MEMORANDUM OPINION
Jeffie Melder appeals his convictions for aggravated sexual assault of a child, sexual
performance by a child, and indecency with a child. He raises six issues on appeal. We affirm.
BACKGROUND
Appellant and Shelly Melder had a tumultuous marital relationship. They married,
divorced, remarried, and have since divorced again. Three children were born during their
relationship. One of the children, an eight year old at the time of the offenses, is the victim.
Appellant worked as a tug boat operator. As part of his job, he worked in two week shifts
away from home. While he was away at work, Shelly, while intoxicated, told Vanessa Hale that
Appellant forced her to perform oral sex on the victim. Hale, who was Shelly’s friend, asked the
victim about the abuse, and he stated that Shelly performed oral sex on him. Appellant
discovered that Shelly had disclosed this information, and he reported the abuse to Texas Child
Protective Services (CPS). As part of their investigation, CPS and law enforcement agencies
were informed that Appellant told the victim to take off his clothes, come in the bedroom, and
allow his mother to perform oral sex on him. Shelly also performed oral sex on Appellant.
Although the various descriptions of the abuse differed as to when the abuse occurred and
exactly how it transpired, the victim stated that during at least one episode of abuse, Appellant
forced him to engage in anal sex with Shelly.1
The authorities arrested Appellant and Shelly. Shelly negotiated a plea bargain for ten
years of imprisonment in exchange for her testimony against Appellant. Appellant was indicted
for aggravated sexual assault of a child, sexual performance by a child, and indecency with a
child.
At trial, Appellant did not deny that the abuse occurred. Rather, he claimed that Shelly
was solely responsible for the abuse. He asserted that Shelly wanted to deflect responsibility for
the offenses in order to avoid a harsh punishment, as well as to obtain revenge against Appellant
because of the strife and discord in their marriage.2
When Shelly told her friend about the abuse, she claimed that Appellant held the victim
in place while some of the abuse occurred. But when asked at trial, Shelly could not remember
whether she told Hale that Appellant held the victim in place because she was intoxicated when
she disclosed the abuse. However, she was adamant that Appellant orchestrated the abuse. The
victim and the outcry witnesses testified similarly. The victim’s testimony was recorded and
played for the jury. Defense counsel asked the victim to retell the story of the abuse on several
occasions during his testimony. Although the frequency of the abuse and minor details varied as
he described the abuse, the victim consistently stated that Appellant forced him to receive oral
sex from his mother and forced him to perform anal sex on her. The primary outcry witness, a
forensic interviewer, included the recorded transcript of her interview with the victim, which was
consistent with the victim’s testimony at trial.3
The jury found Appellant guilty of all three offenses, and Appellant elected that the trial
court assess his punishment. After a hearing, the trial court assessed Appellant’s punishment at
1
In one version, it was alleged that Appellant engaged in anal sex while Shelly performed oral sex on the
victim, and Appellant instructed them to ―switch‖ so that Shelly performed oral sex on Appellant while the victim
engaged in anal sex with Shelly. In another version, Shelly performed oral sex on the victim while Appellant waited
and watched, and then the victim was forced to engage in anal sex with Shelly while she performed oral sex on
Appellant. We note that the victim stated that the abuse occurred on several different occasions.
2
At trial, evidence was developed that Appellant often violently assaulted Shelly, including that he would
choke her until she lost consciousness, strike her repeatedly, and had even ―put her head through a wall.‖ She
claimed that Appellant choked her until she lost consciousness during one of the episodes of abuse with the victim
present, and that she awoke with the victim’s penis in her mouth.
3
The forensic interviewer and Shelly’s friend to whom she disclosed the abuse were allowed to testify as
outcry witnesses. Although defense counsel initially objected, he ultimately agreed to allow both to testify as outcry
witnesses.
2
sixty years on the aggravated sexual assault of a child count, sixty years on the sexual
performance by a child count, and ten years on the indecency with a child count. The trial court
ordered that Appellant serve the sentences consecutively ―if allowed by law.‖ The trial court’s
written judgment reflects that the sentences are to be served consecutively. This appeal
followed.
SUFFICIENCY OF THE EVIDENCE – SEXUAL PERFORMANCE BY A CHILD
In his second issue, Appellant argues that the evidence is insufficient to support his
conviction for the sexual performance by a child count. Specifically, he contends that the State
was required to prove a sexual performance as opposed to sexual conduct, and it failed to do so.
Standard of Review and Applicable Law
A person commits the offense of sexual performance by a child if, ―knowing the
character and content thereof, he employs, authorizes, or induces a child . . . to engage in sexual
conduct or a sexual performance.‖ TEX. PENAL CODE ANN. § 43.25(b) (West 2011). ―Sexual
conduct‖ includes, among other things, sexual contact, deviate sexual intercourse, or lewd
exhibition of the genitals. Id. § 43.25(a)(2). ―Deviate sexual intercourse‖ and ―sexual contact‖
have the meanings assigned by Texas Penal Code Section 43.01. Id. § 43.25(a)(7). That section
defines ―deviate sexual intercourse‖ as ―any contact between the genitals of one person and the
mouth or anus of another person.‖ Id. § 43.01(1) (West 2011). ―Sexual contact‖ is defined in
relevant part as ―any touching of . . . any part of the genitals of another person with intent to
arouse or gratify the sexual desire of any person.‖ Id. § 43.01(3).
―Sexual performance‖ means any performance or part thereof that includes sexual
conduct by a child younger than eighteen years of age. Id. § 43.25(a)(1). ―Performance‖ means
any play, motion picture, photograph, dance, or other visual representation that can be exhibited
before an audience of one or more persons. Id. § 43.25(a)(3).
Discussion
Appellant argues that ―[b]ecause [the victim] was [Appellant’s child], the statute requires
that there be a sexual performance, and in this case there was a lack of proof of any recording[,
play, motion picture, photograph, or other visual representation] which would meet the definition
of a sexual performance.‖ However, this interpretation ignores that the statute punishes not only
3
sexual performances, but also inducing, authorizing, or employing a child to engage in sexual
conduct. See id. § 43.25(b).
Section 43.25 ―criminalizes the inducement of a child’s sexual conduct regardless of
whether it amounts to a sexual performance.‖ Dornbusch v. State, 156 S.W.3d 859, 870 (Tex.
App.—Corpus Christi 2005, pet. ref’d); see also Emenhiser v. State, 196 S.W.3d 915, 930 n.4
(Tex. App.—Fort Worth 2006, pet. ref’d); Summers v. State, 845 S.W.2d 440, 442 (Tex. App.—
Eastland 1992, no pet.). Specifically, the statute states that a person commits the offense if he
induces the child to ―engage in sexual conduct or [separately,] a sexual performance.‖ TEX.
PENAL CODE ANN. § 43.25(b). We note that the definition of sexual ―performance‖ includes
photographs, videos, recordings, or plays. See id. § 43.25(a)(3). But when the allegation arises
from inducing a child to engage in sexual conduct, recording the event through media or acting
out a play or performance is not required. See id. § 43.25(a)(2), (3); Emenhiser, 196 S.W.3d at
930.
Nevertheless, as part of his argument, Appellant seems to contend that Section 43.25
requires crimes committed under the statute by parents to be categorized as ―sexual
performances‖ other than through sexual conduct. This interpretation stems from a sentence in
the statute that states ―[a] parent or legal guardian or custodian of a child . . . commits an offense
if he consents to the participation by the child in a sexual performance.‖ TEX. PENAL CODE ANN.
§ 43.25(b). The legislature did not include ―sexual conduct‖ in that sentence. The logical
extension of Appellant’s argument would mean that parents cannot be criminally responsible
under the statute for authorizing, employing, or inducing their own child to engage in sexual
conduct that does not meet the definition of a sexual performance. We conclude, however, that
the legislature did not intend this result.
In construing a statute, we must seek to effectuate the collective intent or purpose of the
legislators who enacted the legislation. Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App.
2011). We look first to the statute’s literal text, and we read words and phrases in context and
construe them according to the rules of grammar and usage. Id. We must presume that every
word in a statute has been used for a purpose and that each word, phrase, clause, and sentence
should be given effect if reasonably possible. Yazdchi v. State, No. PD-0007-13, 2014 WL
1375461, at *4 (Tex. Crim. App. Apr. 9, 2014). When statutory language is clear and
unambiguous, we give effect to its plain meaning unless to do so would lead to absurd
4
consequences that the legislature could not have possibly intended. Id. Ambiguity exists when
the statutory language may be understood by reasonably well-informed persons in two or more
different senses. Id. Conversely, a statute is unambiguous when it permits only one reasonable
understanding. Id.
With respect to this dispute, giving effect to each word, phrase, clause, and sentence in
Section 43.25, the only reasonable understanding is that a person, including a parent of the child,
can be guilty of sexual performance by a child if he induces the child to engage in sexual
conduct, regardless of whether the action amounts to a sexual performance. See TEX. PENAL
CODE ANN. § 43.25. Specifically, a ―sexual performance‖ can include ―sexual conduct,‖ but as
those terms are defined in the statute, ―sexual conduct‖ need not amount to a ―performance‖ or
―sexual performance‖ in order to constitute an offense. See id.; Dornbusch, 156 S.W.3d at 870;
Emenhiser, 196 S.W.3d at 930 n.4; Summers v. State, 845 S.W.2d at 442.
The indictment in this case alleges that Appellant ―did then and there intentionally or
knowingly authorize or induce [the victim] to engage in sexual conduct, to wit, Shelly Melder by
touching the genitals of [the victim] with the intent to arouse or gratify the sexual desire of
[Appellant] and/or Shelly Rene Melder.‖ The statute supports the charging instrument.
Therefore, the State was required to prove ―sexual conduct,‖ not ―sexual performance.‖
Appellant’s second issue is overruled.
SUFFICIENCY OF THE EVIDENCE
In Appellant’s first issue, he argues that the evidence is insufficient to support the verdict
on all three offenses because the only supporting evidence came from Shelly, and she admitted
falsifying the allegations in Defense Exhibit 11.
Standard of Review
The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S.
Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); see also Brooks v. State, 323 S.W.3d 893, 917
(Tex. Crim. App. 2010) (plurality opinion). Evidence is not legally sufficient if, when viewing
the evidence in a light most favorable to the verdict, no rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; see also Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Under
5
this standard, a reviewing court does not sit as a thirteenth juror and may not substitute its
judgment for that of the fact finder by reevaluating the weight and credibility of the evidence.
See Brooks, 323 S.W.3d at 899; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
Instead, a reviewing court defers to the fact finder’s resolution of conflicting evidence unless that
resolution is not rational in light of the burden of proof. See Brooks, 323 S.W.3d at 899–900.
The fact finder is entitled to judge the credibility of witnesses and can choose to believe all,
some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459,
461 (Tex. Crim. App. 1991).
The duty of a reviewing court is to ensure that the evidence presented actually supports a
conclusion that the defendant committed the crime. See Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). ―Our role on appeal is restricted to guarding against the rare occurrence
when a factfinder does not act rationally.‖ Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
Applicable Law
A person commits the offense of aggravated sexual assault of a child if he intentionally or
knowingly causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual
organ of another person, including the actor. TEX. PENAL CODE ANN. § 22.021(b)(iii) (West
Supp. 2013). A person commits the offense of sexual performance by a child if, ―knowing the
character and content thereof, he employs, authorizes, or induces a child . . . to engage in sexual
conduct or a sexual performance.‖ TEX. PENAL CODE ANN. § 43.25(b) (West 2011). ―Sexual
conduct‖ includes, among other things, sexual contact, deviate sexual intercourse, or lewd
exhibition of the genitals. Id. § 43.25(a)(2). ―Deviate sexual intercourse‖ and ―sexual contact‖
have the meanings assigned by Texas Penal Code Section 43.01. Id. § 43.25(a)(7). That section
defines ―deviate sexual intercourse‖ as ―any contact between the genitals of one person and the
mouth or anus of another person.‖ Id. § 43.01(1) (West 2011). ―Sexual contact‖ is defined in
relevant part as ―any touching of . . . any part of the genitals of another person with intent to
arouse or gratify the sexual desire of any person.‖ Id. § 43.01(3). A person commits the offense
of indecency with a child if he intentionally or knowingly exposes any part of his genitals
knowing that a child is present. Id. § 21.11(a)(2)(A) (West 2011).
A person may be convicted as a party if the offense is committed by the conduct of
another for which he is criminally responsible. Id. § 7.01(a) (West 2011). A person is
6
criminally responsible for the conduct of another if ―acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other
person to commit the offense. . . .‖ Id. § 7.02(a)(2) (West 2011). Mere presence of a person at
the scene of a crime either before, during, or after the offense, or even flight from the scene,
without more, is insufficient to sustain a conviction as a party to the offense. Thompson v. State,
697 S.W.2d 413, 417 (Tex. Crim. App. 1985). However, combined with other incriminating
evidence, it may be sufficient to sustain a conviction. Id. In determining whether a defendant
participated as a party in the commission of an offense, the jury may consider events that
occurred before, during or after the offense, and may rely on acts that show an understanding and
common design. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (op. on reh’g);
Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.—Fort Worth 2001, pet. ref’d) (noting that
agreement to act together in a common design is seldom proven by direct evidence, but by
circumstantial evidence). Evidence that a defendant was physically present at the commission of
the offense and encouraged the commission of the offense either by words or agreement is
legally sufficient to support his conviction as a party to the offense. Cordova v. State, 698
S.W.2d 107, 111 (Tex. Crim. App. 1985).
In sexual abuse cases involving a child, the testimony of the victim alone is sufficient to
support a conviction. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2013); Martinez
v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005); Garcia v. State, 563 S.W.2d 925, 928
(Tex. Crim. App. 1978). Moreover, a child victim’s outcry statement alone can be sufficient to
sustain a conviction for a sexual offense. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
App. 1991). Further, the jury is the sole judge of the credibility of witnesses and is free to accept
or reject some, all, or none of the evidence presented by either side. Lancon v. State, 253
S.W.3d 699, 707 (Tex. Crim. App. 2008).
Discussion
Appellant argues that the only evidence establishing the elements of the offenses came
from Shelly’s testimony. He contends that a letter she wrote to him while he was in jail (Defense
Exhibit Number 11) shows that she had a motive to fabricate her story, namely, to deflect
attention from her participation in the offenses and obtain a more lenient sentence. Finally,
Appellant argues that there is no evidence the victim was capable of performing or participating
in the acts the State alleges.
7
However, the victim testified that Appellant forced him to take off his clothes and get on
the bed while Shelly performed oral sex on him, and that Appellant told him to ―switch,‖ so that
the victim would perform anal sex on Shelly. There were two outcry witnesses: Vanessa Hale,
one of Shelley’s friends, and Kandice Kimmel, the lead forensic interviewer at Texarkana
Children’s Advocacy Center.4 Shelly confided to Hale about the abuse, but disclosed only that
Appellant forced her to perform oral sex on the victim. She did not disclose the other acts of
abuse that occurred. Hale asked the victim about the abuse, but he was reluctant to say anything
because ―daddy would get mad.‖ According to her testimony, he eventually told her that
―mommy put her mouth on his pee-pee.‖
The victim gave much more detailed statements to Kimmel concerning the abuse. The
victim told her that Appellant was ―weird,‖ that he would make him take off his clothes, and lie
in bed while Shelly engaged in oral sex with him, and then that he would have to perform anal
sex on Shelly. The victim told the story in different ways, and some minor details of the abuse
varied when he recounted the episodes of abuse. He was clear, however, that Appellant played
an active role in orchestrating the abuse, that Shelly performed oral sex on him, and that he
performed anal sex on Shelly.
In Defense Exhibit Number 11, Shelly wrote that ―Hell hath no fury like a woman
scorned!!!‖ Appellant argues that this letter necessarily leads to the conclusion that Shelly
falsely accused him of participating in the abuse. She explained at trial that this meant Appellant
―got himself,‖ because he is the one who called the authorities, but his plan to deflect the blame
onto her ―backfired.‖ In any event, as we have stated, the jury is the judge of the credibility of
the evidence and the witnesses. Lancon, 253 S.W.3d at 707. Also, the testimony of the victim
alone and the testimony of the outcry witnesses alone can be sufficient to support the verdict of
guilt. See TEX. CODE CRIM. PROC. ANN. art. 38.07; Martinez, 178 S.W.3d at 814; Rodriguez,
819 S.W.2d at 873.
Appellant was charged with aggravated sexual assault of a child under the law of parties.
With the testimony that Appellant ―forced‖ and ―made‖ the victim and Shelly engage in these
acts, the jury could have reasonably concluded that Appellant encouraged, directed, or aided in
4
Shortly after the victim made an outcry to Hale, Shelly took the victim to live with her at Shelly’s parents’
home in Linden, Texas. Once the investigation began in Northeast Texas, the child made a more detailed outcry to
Kimmel at the Texarkana CAC.
8
the commission of the offense, thereby making him criminally responsible for the abuse. See
TEX. PENAL CODE ANN. § 7.02(a)(2).
With regard to the sexual performance of a child count, the evidence must show that
Appellant’s conduct brought about the victim’s sexual conduct through his persuasion or
influence. See Bell v. State, 326 S.W.3d 716, 720–21 (Tex. App.—Dallas 2010, pet. dism’d);
see also Dornbusch, 156 S.W.3d at 866. The exercise of parental authority in requiring the child
to engage in sexual conduct is sufficient to support the verdict on this offense. See Baker v.
State, No. 10-11-00449-CR, 2012 WL 5458474, at *11 (Tex. App.—Waco Nov. 8, 2012, no
pet.) (mem. op., not designated for publication) (holding evidence is sufficient to show that
parent induced child to have sex with him through exercise of parental authority). With the
evidence that the victim’s father forced him to engage in these acts, the jury could have likewise
reasonably concluded that Appellant utilized his authority as a parent to induce the victim to
engage in these acts.
With respect to the indecency with a child count, the indictment alleged that Appellant
intentionally or knowingly exposed his genitals to the child victim. There is ample evidence,
including the testimony from the victim and Kimmel’s testimony about the victim’s statements
to her, that Appellant was present during the abuse, and that he received oral sex and performed
anal sex while the victim was in the opposite position. The victim also testified that he saw
―white stuff come out of [Appellant’s] weenie.‖ From this evidence alone, the jury could have
reasonably concluded that Appellant committed the offense of indecency with a child.
Appellant’s first issue is overruled.
EXPERT TESTIMONY
Appellant argues in his third issue that Karrah Dickeson, a licensed professional
counselor (LPC), was not qualified to render a diagnosis that the victim suffered posttraumatic
stress disorder (PTSD) as a result of the abuse, and that the cognitive behavioral therapy
technique utilized by Dickeson was unreliable.
Standard of Review and Applicable Law
No rigid formula exists for determining whether a particular witness is qualified to testify
as an expert. Matson v. State, 819 S.W.2d 839, 852 n.10 (Tex. Crim. App. 1991). The inquiry is
―a flexible one.‖ Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594, 113 S. Ct. 2786,
9
2797, 125 L. Ed. 2d 469 (1993). Therefore, we review a court’s decision to admit expert
testimony based upon an abuse of discretion standard. Carrasco v. State, 154 S.W.3d 127, 129
(Tex. Crim. App. 2005). An appellate court must uphold the trial court’s ruling if it is
reasonably supported by the record and is correct under any theory of law applicable to the case.
Id. Because the possible spectrum of education, skill, and training is so wide, a trial court has
great discretion in determining whether a witness possesses sufficient qualifications to assist the
jury as an expert on a specific topic in a particular case. Rodgers v. State, 205 S.W.3d 525, 527-
28 (Tex. Crim. App. 2006).
A party may challenge expert testimony on at least three specific grounds. First, a party
may allege that the witness does not qualify as an expert because the witness lacks the requisite
knowledge, skill, experience, training, or education in the subject matter of the expert’s
testimony. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see TEX. R. EVID. 702.
Second, a party may allege that the subject matter of the testimony is inappropriate because it is
unreliable. Vela, 209 S.W.3d at 131, 133–34; see TEX. R. EVID. 705(c); see also Kelly v. State,
824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Third, a party may allege that the testimony will
not assist the fact finder in deciding the case. Vela, 209 S.W.3d at 131; see TEX. R. EVID. 401,
702. Respectively, these three requirements of expert testimony are commonly referred to as (1)
qualification, (2) reliability, and (3) relevance. Vela, 209 S.W.3d at 131. The three requirements
raise distinct questions and issues, and an objection based on one of these requirements does not
preserve error as to another. Turner v. State, 252 S.W.3d 571, 584 n.5 (Tex. App.—Houston
[14th Dist.] 2008, pet. ref’d) (holding that an objection based on the expert’s qualifications did
not preserve the reliability issue).
Discussion
Dickeson is an LPC who treated the victim after the abuse was disclosed. She testified
that the victim suffered PTSD as a result of the abuse. As part of her testimony, she testified that
her credentials allow her to diagnose mental and emotional disorders such as PTSD. Appellant
objected to her qualifications and attempted to show that state law does not allow her to make
such a diagnosis. This argument stems from provisions in the Texas Occupations Code
regulating LPCs that prevent them from practicing medicine and from diagnosing a ―physical
condition or disorder.‖ See TEX. OCC. CODE ANN. §§ 503.003(b)(1)-.004 (West 2012).
10
However, when these provisions are read in context, it is apparent that LPCs may not
diagnose physical conditions or physical disorders, but an LPC who has the requisite training
may diagnose mental and emotional disorders. Specifically, the statute authorizes LPCs to
assess, evaluate, and treat mental, emotional, or behavioral disorders. Id. § 503.003(a)(2)-(4).
As part of these capabilities, the LPC may plan, implement, and evaluate treatment plans,
including the ―assessment‖ of mental, emotional, or behavioral disorders. Id. § 503.003(a)(4).
―Assessment‖ means the ―selection, administration, scoring, and interpretation of an instrument
designed to assess an individual’s . . . mental, emotional, and behavioral disorders, and the use of
methods and techniques for understanding human behavior that may include the evaluation,
assessment, and treatment by counseling methods, techniques, and procedures for mental and
emotional disorders . . . .‖ Id. § 503.003(b)(1).
The Texas Board of Examiners of Professional Counselors, the agency responsible for
regulating LPCs, has clarified that LPCs may diagnose mental or emotional disorders that are not
physical conditions or physical disorders. Specifically, the Board enacted a regulation stating
that
[t]he use of specific methods, techniques, or modalities within the practice of professional
counseling is limited to professional counselors appropriately trained and competent in the use of
such methods, techniques, or modalities. Authorized counseling methods techniques and
modalities may include, but are not restricted to, the following:
...
diagnosing mental disorders; but does not permit the diagnosis of a physical condition or physical
disorder . . . .
22 TEX. ADMIN. CODE § 681.31(16) (2013) (Tex. Bd. of Prof’l Counselors, Counseling Methods
and Practices). PTSD is a recognized mental disorder. Taylor v. State, 268 S.W.3d 571, 588
(Tex. Crim. App. 2008). Consequently, Dickeson, as an LPC, was qualified to make the PTSD
diagnosis.
Also as part of this issue, Appellant appears to argue that cognitive behavioral therapy is
unreliable, or that the State failed to prove its reliability. Dickeson testified that cognitive
behavioral therapy is a relatively new technique, but has become the most utilized and peer-
reviewed technique in treating child sexual abuse cases. She stated that she implemented the
technique here as part of treating the victim’s PTSD. However, Appellant did not object to the
11
reliability of this technique, and has thus waived review of that issue on appeal. 5 See Turner,
252 S.W.3d at 584 n.5.
Appellant’s third issue is overruled.
IMPROPER JURY ARGUMENT
In his fourth issue, Appellant argues that the State improperly argued to the jury that
Appellant failed to produce evidence, which amounted to a comment on his failure to testify.
However, he did not object to the State’s argument.
When a defendant fails to object to a jury argument or fails to pursue an objection to a
jury argument to an adverse ruling, he forfeits his right to complain about the jury argument on
appeal. Sanchez v. State, 120 S.W.3d 359, 366-67 (Tex. Crim. App. 2003); Cockrell v. State,
933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
The court of criminal appeals reaffirmed that the holding in Cockrell remains the law,
notwithstanding the claim that the offending argument was ―manifestly improper.‖ Threadgill v.
State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004). This rule applies even where the improper
argument allegedly violates certain constitutional rights, such as the Fifth Amendment privilege
against self-incrimination. See, e.g., Calderon v. State, 950 S.W.2d 121, 137 (Tex. App.—El
Paso 1997, no pet.) (objection required where prosecutor commented on defendant’s failure to
testify); Cacy v. State, 942 S.W.2d 783, 784 (Tex. App.—Waco 1997, pet. ref’d) (refusing to
address merits of unobjected to jury argument that commented on defendant’s failure to testify).
Appellant’s fourth issue is overruled.
CONSECUTIVE SENTENCES
In his fifth issue, Appellant contends that the trial court abused its discretion in ordering
that his sentences be served consecutively because the total sentence imposed exceeds the
5
We note that although Appellant generally objected to Dickeson’s qualifications to make a diagnosis, he
did not specifically argue in any detail in his brief that she lacked the requisite training to diagnose the victim with
PTSD. Appellant does appear to attack Dickeson’s qualifications to perform cognitive behavioral therapy.
However, therapy concerns treatment, which is distinct from Dickeson’s qualifications to diagnose PTSD.
Moreover, Appellant’s brief is unclear as to how Dickeson’s treatment methodology for the victim is relevant on
appeal. See TEX. R. APP. P. 33.1; Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009) (―Whether a
party’s particular complaint is preserved depends on whether the complaint on appeal comports with the complaint
made at trial.‖).
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maximum sentence under Apprendi v. New Jersey.6 As part of this issue, Appellant also argues
that a separate factual finding was required by the jury to support the consecutive sentences, even
though the trial court assessed his punishment. In a related sixth issue, Appellant argues that the
trial court was without authority to cumulate the sentence for indecency with a child with the
sentences for the other offenses. Because these issues are related, we address them together.
Standard of Review and Applicable Law
The trial court has the discretion to order that the sentences for aggravated sexual assault
of a child, sexual performance of a child, and indecency with a child run concurrently or
consecutively, even if the offenses arise out of the same criminal episode. TEX. PENAL CODE
ANN. § 3.03(b)(2)(A) (West Supp. 2013); TEX. CODE CRIM. PROC. ANN. art. 42.08 (West Supp.
2013). The trial court is free to make this determination as long as the individual sentences are
not elevated beyond their respective statutory maximums. Barrow v. State, 207 S.W.3d 377, 382
(Tex. Crim. App. 2006).
Discussion
First, we note that Appellant failed to make an Apprendi objection at trial and thus
waived his complaint. See White v. State, No. 02–02–00143–CR, 2003 WL 865351, at *2–3
(Tex. App.—Fort Worth Mar. 6, 2003, pet. ref’d) (mem. op., not designated for publication)
(holding that appellant waived his Apprendi complaint by not objecting on those grounds at
trial); see also Lacy v. State, Nos. 14–05–00775–CR, 14–05–00776–CR, 14–05–00777–CR, 14–
05–00778–CR, 2006 WL 2862156, at *2 n. 1 (Tex. App.—Houston [14th Dist.] Oct. 10, 2006,
no pet.) (mem. op., not designated for publication) (holding complaint waived but noting split in
intermediate courts on whether defendant waives Apprendi complaint by failing to object in trial
court).
Second, even if no objection was necessary to preserve this issue, the trial court’s
decision to cumulate his sentences does not violate Apprendi. The Apprendi line of cases holds
that any finding of fact, other than a prior conviction, that increases the maximum punishment
which can be assessed for an offense must be made by the jury and proved beyond a reasonable
doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d
435 (2000); see also Alameda v. State, 235 S.W.3d 218, 224 (Tex. Crim. App. 2007); Barrow,
207 S.W.3d at 380. Apprendi and its progeny deal with the upper-end extension of individual
6
See generally, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
13
sentences when that extension is contingent upon findings of fact that were never submitted to
the jury. See Alameda, 235 S.W.3d at 224; Barrow, 207 S.W.3d at 380.
Apprendi does not address a trial court’s authority to cumulate sentences for more than
one offense when that authority is provided by statute and is not based upon discrete factfinding,
but is wholly discretionary. See id. Thus, Apprendi is inapplicable in that circumstance. Both
federal and state courts have found no Apprendi violation where a trial court orders the
cumulation of sentences that individually lie within the statutory range of punishment but for
which the cumulative total exceeds the prescribed statutory maximum for any single offense.
See, e.g., United States v. McWaine, 290 F.3d 269, 276 (5th Cir. 2002); Baylor v. State, 195
S.W.3d 157, 160 (Tex. App.—San Antonio 2006, no pet.); Tyson v. State, 172 S.W.3d 172, 176-
77 (Tex. App.—Fort Worth 2005, pet. ref’d); Marrow v. State, 169 S.W.3d 328, 330-31 (Tex.
App.—Waco 2005, pet. ref’d).
In the instant case, the trial court did not impose punishment beyond the statutory range
for any of Appellant’s convicted offenses. Rather, the court remained within the statutory
maximum in assessing punishment at sixty years for each of the first degree felonies, and ten
years for the indecency with a child count. The court, under the relevant statutes, exercised its
discretion to determine that Appellant consecutively serve his sentences. See TEX. PENAL CODE
ANN. § 3.03(b)(2)(A); TEX. CODE CRIM. PROC. ANN. art. 42.08. Accordingly, that Appellant’s
cumulative jail time exceeds the statutory maximum for each of his individual offenses does not
constitute an Apprendi violation.
Appellant also seems to argue as part of this issue that, under Apprendi, since the total
sentence exceeds that of a first degree felony, a separate factual finding was required by the jury
to support his consecutive sentences. However, the Texas Court of Criminal Appeals directly
addressed this question under these circumstances, and determined that the decision to cumulate
sentences does not turn on a finding of fact, but on the exercise of the court’s discretion by
statute. Barrow, 207 S.W.3d at 380; Alameda v. State, 235 S.W.3d 218, 224 (Tex. Crim. App.
2007). So even if the jury assesses the sentences, a trial judge may order that the sentences run
consecutively without the need to submit the issue to the jury. See id.
Appellant contends further that under Texas Penal Code Section 3.03, the pertinent
statute giving the trial court the discretion to cumulate sentences, ―cumulation is not possible for
[the indecency with a child count] which alleged a violation of § 22.11[, because it] is not one of
14
the enumerated penal code violations which may be cumulated.‖ However, indecency with a
child is found within Section 21.11 of the Penal Code, not Section 22.11. Section 3.03
specifically authorizes the trial court to cumulate the sentence for an offense under Section 21.11
(indecency with a child) with sentences for other sexual offenses. See TEX. PENAL CODE ANN.
§ 3.03(b)(2)(A).
Appellant’s fifth and sixth issues are overruled.
DISPOSITION
Having overruled Appellant’s six issues, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered May 14, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
15
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 14, 2014
NO. 12-12-00400-CR
JEFFIE MELDER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 411th District Court
of Trinity County, Texas (Tr.Ct.No. 9863-A)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.