Richard Anton Kiolbassa v. the State of Texas ( 2021 )

NUMBER 13-19-00362-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RICHARD ANTON KIOLBASSA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Richard Anton Kiolbassa challenges his conviction for indecency with a
child by contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1).
Kiolbassa received a twenty-year term of confinement. By three issues that we have
renumbered and reorganized, Kiolbassa contends that the (1) evidence is insufficient to
satisfy the element of “intent to arouse,” (2) trial court designated the improper outcry
witness, and (3) trial court’s admission of the State’s expert witness’s testimony violated
Rule 702 and constituted improper bolstering. We affirm.
I. BACKGROUND
E.B. testified that on June 25, 2018, he allowed Kiolbassa to stay at his residence
overnight.1 According to E.B., he awoke when he heard his child, A.B., crying; when he
went to check on her, he found Kiolbassa “touching her leg . . . touching her thigh . . . right
above the knee.” E.B. stated that Kiolbassa claimed he was comforting A.B. because she
had a nightmare. E.B. allowed Kiolbassa to remain in the home, but he told him to get
away from A.B. According to E.B., A.B. did not immediately talk to him about the incident.
E.B. stated that he became aware that A.B. had made an outcry of sexual abuse
on July 18, 2018, after a detective came to his home and informed him that A.B. told her
school counselor that Kiolbassa had touched her. E.B. said that A.B. did not tell him what
had happened because the child was “afraid” that he would be angry at her. According to
E.B., the detective instructed him not to discuss the situation with the child because doing
so “could be considered coaching.”
On cross-examination, E.B. testified that when he found Kiolbassa in the child’s
bedroom, he did not suspect that Kiolbassa had committed any sexual assault. E.B.
reiterated that he learned of A.B.’s sexual assault claim when the detective told him about
her statement to her school counselor.
Kelly Pape-Sims, A.B.’s school counselor, testified that A.B. said that her father’s
1 We use initials to protect the identity of the child complainant. See TEX. R. APP. P. 9.8(b) & cmt.
(“This rule does not limit an appellate court’s authority to disguise parties’ identities in appropriate
circumstances in other cases.”).
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friend had “touched her inappropriately” when he was “having a stay-over or a sleep-over
with them . . . . [A.B. said that h]e pushed down her skirt and her shorts and touched her
in the private areas.” The trial court admitted a drawing A.B. made for Pape-Sims showing
where she claimed that Kiolbassa touched her.
A.B., an eight-year-old child at the time of trial, testified that “whenever my siblings
were sleeping, and he touched me under the clothes on my private right here, and my
dad caught him doing it.” A.B. indicated that Kiolbassa touched her vagina. A.B. identified
Kiolbassa as the person who touched her. A.B. acknowledged that she reported the
incident to her school counselor and stated that she did not like Kiolbassa after what he
had done. A.B. testified that she told her counselor about the incident prior to telling her
father.
On cross-examination by Kiolbassa, A.B. denied that she had a nightmare or that
she was upset by a dream prior to the incident. Kiolbassa asked A.B. if she told E.B. what
had occurred when it happened. A.B. replied, “No.” A.B. stated that she told E.B. about
the incident a couple of nights later. Kiolbassa’s trial counsel asked, “[S]o your dad knew
already by, let’s say, June 26th or 27th; is that correct, two days after it happened?” A.B.
said, “I don’t remember how many days.”
Kiolbassa testified that on the night of the incident, he went to the bathroom and
smelled urine as he passed A.B.’s room so he asked her if she peed the bed. According
to Kiolbassa, A.B. did not respond but appeared “very mad.” Kiolbassa said he told A.B.
to tell her parents if she peed her bed. Kiolbassa denied ever being with any of E.B.’s
children without one of the parents present. Kiolbassa claimed he was “very surprised”
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that an allegation that he was next to A.B.’s bed had been made because “that never
happened.” Kiolbassa stated that he spent the night at E.B.’s home and left the next day.
Kiolbassa said, “So I don’t know what [E.B.] was talking about him getting mad. None of
that ever even happened ever.” Kiolbassa testified, “I was never mentioned about no
nightmare [sic]. I never was caught touching his daughter. None of that ever even
occurred.” Kiolbassa’s trial counsel asked if he thought A.B. was mad at him. Kiolbassa
replied:
I don’t know. I have been blessed to be around a lot of children, and this is
the first one I have ever . . . I don’t even know how to say it but evil. She
disliked me from the get-go. I can’t see the hatred out of children like this. I
have never seen it before.
On cross-examination, the State asked Kiolbassa about his use of the word “evil.”
Kiolbassa replied, “I wouldn’t have any other word for it because I serve Christ, and I
believe in evil and good.” Kiolbassa said, “What would you call it, brother? She flat out
lied.”
The jury found Kiolbassa guilty. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, Kiolbassa challenges the “intent to arouse” element of indecency
with a child by contact.
A. Standard of Review and Applicable Law
In determining the sufficiency of the evidence, we consider all the evidence in the
light most favorable to the verdict and determine whether a rational fact finder could have
found the essential elements of the crime beyond a reasonable doubt based on the
evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d
4159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim.
App. 2010) (plurality op.). The fact finder is the exclusive judge of the facts, the credibility
of witnesses, and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We
resolve any evidentiary inconsistencies in favor of the judgment. Id.Sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.
Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a
charge [is] one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.
A person commits indecency with a child if the person engages in sexual contact
with a child younger than seventeen or causes the child to engage in sexual contact.
TEX. PENAL CODE ANN. § 21.11(a)(1). “Sexual contact” means any touching by a person,
including touching through clothing, of the anus, breast, or any part of the genitals of a
child if committed with the intent to arouse or gratify the sexual desire of any person. See
id. § 21.11(c). The specific intent required for the offense of indecency with a child may
be inferred from a defendant’s conduct. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—
Fort Worth 2010, pet ref’d) (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim.
App. 1981)).
A complainant’s testimony alone is sufficient to support a conviction for indecency
with a child. Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi–Edinburg
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2008, no pet.); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth 2007, no
pet.); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d), overruled
on other grounds by Taylor v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008); see
TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (requiring no corroboration of a child
victim’s testimony when defendant violated § 22.021 of the penal code); Tear v. State, 74
S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d). Furthermore, corroboration of the
victim’s testimony by medical or physical evidence is not required. Soto, 267 S.W.3d at
332; Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi–Edinburg 2006,
no pet.); see TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1).
B. Discussion
Kiolbassa claims that an accidental touching does not support a finding “that [he]
touched [the child] with the intent to arouse or gratify [his] sexual desire” and “[t]he
evidence in this case failed to provide a rational basis for the jury to infer that [he] had
any intent to gratify himself or become aroused when he interacted with A.B.” Kiolbassa
argues that he denied E.B.’s version of events and that he testified that another of E.B.’s
male friends also spent the night at E.B.’s home on the night of the incident. Kiolbassa
states, “If the lights were out during the middle of the night, there is no way to know if any
touching was a mere accident or the touching was done by [E.B.’s] other house guest.”
Kiolbassa also points out that none of the “other children [in the home] were interviewed
or presented as witnesses,” E.B.’s wife did not testify, he had no history of sexual abuse,
“his daughter testified to this at sentencing, and the record was clear that [he] was upset
to have been accused of such an act.” Finally, according to Kiolbassa, “If there was any
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touching, it is highly likely that it was accidental in the middle of the night, not done with
the requisite specific intent to arouse.”
We reject Kiolbassa’s arguments. His attacks on the evidence presented are
misplaced as those issues were for the jury to decide, and his testimony that he did not
commit the offense was clearly rejected by the jury. As the sole judge of the credibility of
witnesses, the jury was free to accept or reject any or all of the evidence presented by
either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Therefore,
even if Kiolbassa is correct that there were inconsistencies in the testimony presented
and other conclusions could be inferred from the evidence, it was up to the jury to decide
whether to believe or disbelieve such testimony. See id. Moreover, the jury was free to
accept or reject some, all, or none of the child’s testimony in this case. Here, A.B. testified
that Kiolbassa touched her vagina while she lay in her bed at night, and E.B. testified that
he was asleep when he heard A.B. crying, went to her room, and found Kiolbassa in
A.B.’s room rubbing her leg.
Kiolbassa’s “intent to arouse or gratify [his] sexual desire” can be inferred from the
“conduct, remarks, [and] all the surrounding circumstances.” See Jimenez v. State, 507
S.W.3d 438, 440 (Tex. App.—Fort Worth 2016, no pet.). Kiolbassa’s conduct of sneaking
into A.B.’s room and touching her vagina, and the circumstances of doing so while
everyone in the home was asleep and then claiming that he chose to “comfort” A.B.
instead of calling her parents when he supposedly heard her crying would have justified
an inference of his intent to arouse or gratify his sexual desire. See Tienda v. State, 479
S.W.3d 863, 870 (Tex. App.—Eastland 2015, no pet.) (finding that, although complainant
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and defendant were clothed, the evidence was sufficient to show an intent to arouse when
the appellant touched his penis to complainant’s pelvis on her bed while her mother was
away). We overrule Kiolbassa’s first issue.
III. OUTCRY WITNESS
By his second issue, Kiolbassa contends that the trial court abused its discretion
by allowing Pape-Sims to testify as the outcry witness.
A. Standard of Review and Applicable Law
Hearsay is an out-of-court statement “offered in evidence to prove the truth of the
matter asserted.” Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011) (citing
TEX. R. EVID. 801(d)). An exception to the hearsay rule is found in article 38.072 of the
Texas Code of Criminal Procedure which allows admission of certain out-of-court “outcry”
statements that, among other things, describe the alleged offense and were made by a
child victim who is younger than fourteen years of age if the defendant is charged with
certain enumerated offenses. TEX. CODE CRIM. PROC. ANN. art. 38.072, §§ 1, 2(a)(1)(A),
(a)(1)(B)(ii), (a)(2). Indecency with a child by contact is one of the enumerated offenses
listed in article 38.072. Id. at 38.072, § 1(1).
The trial court has broad discretion to determine which of several witnesses is an
outcry witness. Chapman v. State, 150 S.W.3d 809, 812–13 (Tex. App.—Houston [14th
Dist.] 2004, pet. ref’d). We will not disturb the trial court’s ruling absent a clear abuse of
discretion. Zarco v. State, 210 S.W.3d 816, 830 (Tex. App.—Houston [14th Dist.] 2006,
no pet.). The outcry witness must be the first person who is eighteen years or older “to
whom the child makes a statement that in some discernible manner describes the alleged
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offense” and provides more than “a general allusion that something in the area of child
abuse was going on.” Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); see
TEX. CODE CRIM. PROC. ANN. art. 38.072; Chapman, 150 S.W.3d at 812.
B. Pertinent Facts
In the trial court, when the State asked Pape-Sims to repeat what A.B. told her,
Kiolbassa objected on the basis of hearsay because Pape-Sims was not the proper outcry
witness pursuant to article 38.072 of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. § 38.072. The trial court held a hearing on Kiolbassa’s objection
outside the presence of the jury. Pape-Sims testified outside the presence of the jury that
A.B. said she had previously told her mother what had occurred, and A.B.’s mother cried.
Pape-Sims also stated that A.B. said she told E.B., and E.B. told her not to say anything.
The State asked Pape-Sims if she was the first person who A.B. told about the abuse,
and Pape-Sims replied, “Yes, I believe so.”
Kiolbassa argued that Pape-Sims was not the proper outcry witness because A.B.
told her that prior to telling Pape-Sims, she informed E.B. about the incident. The State
then resumed its direct examination of Pape-Sims. However, when the State asked Pape-
Sims to tell the jury what A.B. told her about the incident, the trial court sustained
Kiolbassa’s hearsay objections. So, Pape-Sims did not testify at this time as to what A.B.
told her about the incident.
After Pape-Sims’s testimony, E.B. testified. E.B. claimed that A.B. did not tell him
what had occurred. He said that she never mentioned anything about the incident to him
at the time that it occurred on June 25, 2018. According to E.B., he did not learn of the
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sexual abuse allegation until July 18, 2018, when “the detective showed up at the door
while my kids were at school . . . [and the detective] said that my daughter went to the
counselor and had claimed that [Kiolbassa] had touched her.” The State asked, “So you
were not the first person to hear about this?” E.B. replied, “No.” E.B. also said, “No” when
the State asked, “Was your wife told?” The State asked: “Did [your wife] find out the same
time you found out?” E.B. replied, “Yes.” Then he responded, “Yeah” to the State’s
question: “In the same way?” According to E.B., once he found out about the incident, he
“confronted [A.B.] and asked her why she didn’t tell [him] or her mother, and she was
afraid that I would be angry with her.” E.B. testified that he “stayed away” from the subject
because the detective advised him that “could be considered coaching.”
On cross-examination, Kiolbassa’s trial counsel asked, “Now, it’s not exactly true
what you said a while ago, sir, that you had not heard about it until you heard about it
from the school. Your daughter told you . . . that she felt she had been touched . . . .” E.B.
responded, “No, she didn’t.” Kiolbassa pressed E.B. regarding whether he had called
Kiolbassa after the incident occurred on June 25. E.B. replied that he had and
acknowledged that he trusted Kiolbassa at that point because “I didn’t know anything
about it.” E.B. explained:
I didn’t know [about A.B.’s outcry] until a month later about . . . anything
[that] had happened, and [Kiolbassa] had been at my house multiple times
in between. . . . June 25th and July 18th he was at my house multiple
times . . . I did not find out until [the detective] came and knocked on my
door at 11:00 in the morning.”
On redirect examination, E.B. reiterated that he maintained a friendship with Kiolbassa
after June 25, 2018, until July 18, 2018, but he ended the friendship when the detective
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informed him of A.B.’s outcry to Pape-Sims.
After hearing E.B.’s testimony, the trial court stated, “The Court finds that [Pape-
Sims] qualifies as the outcry witness under 38.072.” The State then recalled Pape-Sims,
and the trial court permitted her to testify as to the details of A.B.’s outcry.
C. Discussion
The trial court heard conflicting evidence regarding who was the first person
eighteen years or older to whom A.B. made a statement that in some discernible manner
described the alleged offense. See Garcia, 792 S.W.2d at 92. Pape-Sims claimed that
she was the first person whom A.B. told, and Pape-Sims also stated that A.B. said she
told E.B. about the incident prior to telling her. E.B. consistently denied that he heard
about the incident from A.B. and instead insisted he and his wife (A.B.’s mother) learned
that A.B. claimed Kiolbassa sexually abused her from a detective on July 18, 2018.
Moreover, E.B. testified that although he discussed the incident with A.B., he “stayed
away” from the topic because he did not want allegations of coaching to occur. E.B. stated
that he asked A.B. why she did not tell him or her mother about the incident and that she
told him she was scared.
The evidence presented to the trial court supports the trial court’s finding that E.B.
and his wife were not the first persons over eighteen that A.B. told Kiolbassa committed
the offense. See Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000)
(“Determinations of historical fact and assessment of witness credibility and believability
are left almost entirely to the discretion of the trial judge, and where there is conflicting
evidence there is no abuse of discretion . . . .”). The evidence also supports the trial
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court’s finding that Pape-Sims was therefore the proper outcry witness. Moreover, Pape-
Sims did not testify about what A.B. supposedly told her parents; thus, there is nothing in
the record supporting a conclusion that A.B. provided any details of the alleged offense
to E.B. or her mother prior to A.B.’s outcry to Pape-Sims. See id.; see also TEX. CODE
CRIM. PROC. ANN. art. 38.072; Chapman, 150 S.W.3d at 812. Accordingly, we cannot
conclude that the trial court clearly abused its discretion in determining that Pape-Sims
was the proper outcry witness. We overrule Kiolbassa’s second issue.
IV. ADMISSION OF TESTIMONY
By his third issue, Kiolbassa contends that the trial court improperly allowed the
State’s expert witness, Sonia Eddleman, to opine “concerning areas outside her field of
expertise, such as the child psychology behind delayed outcries in sexual abuse cases.”
Specifically, Kiolbassa argues that the trial court should have excluded Eddleman’s
testimony because she was not qualified to testify as an expert pursuant to Rule 702 and
because her testimony constituted improper bolstering. See TEX. R. EVID. 702. The State
responds that Kiolbassa failed to preserve this issue for our review by failing to object on
the basis that the Eddleman was not qualified to testify as an expert witness or on the
basis that her testimony constituted improper bolstering.
We agree with the State. At trial, when the State asked Eddleman to explain why
a child would make a delayed outcry, Kiolbassa objected as follows: “Your Honor, I would
object to this line of questioning because she doesn’t know anything about this child, and
didn’t interview this child. Whatever she says would attribute to this child would be nothing
more than speculation.”
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Kiolbassa did not object to Eddleman’s qualification as an expert witness pursuant
to Rule 702. The “three requirements of expert testimony are commonly referred to as (1)
qualification, (2) reliability, and (3) relevance,” which “raise distinct questions and issues,
and an objection based on one of these requirements does not preserve error as to
another.” Shaw v. State, 329 S.W.3d 645, 655 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d) (citing Turner v. State, 252 S.W.3d 571, 584 n.5 (Tex. App.—Houston [14th
Dist.] 2008, pet. ref’d)). “Similarly, if a party objects to expert testimony without identifying
one or more of these issues, no error is preserved for our review.” Id. (citing Gregory v.
State, 56 S.W.3d 164, 182 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d)); see TEX.
R. APP. P. 33.1. Therefore, because Kiolbassa objected on the basis that Eddleman’s
testimony would be speculation and did not object based on Rule 702, he did not preserve
this argument for our review. See Shaw, 329 S.W.3d at 655.
In addition, Kiolbassa did not object to Eddleman’s testimony based on bolstering.2
See TEX. R. APP. P. 33.1. Instead, Kiolbassa only objected to Eddleman’s testimony
based on speculation. Thus, his objection at trial does not comport with his argument on
appeal. Therefore, we conclude that this issue is not preserved for our review. See Reyes
v. State, 267 S.W.3d 268, 274 (Tex. App.—Corpus Christi–Edinburg 2008, pet. ref’d)
(concluding that bolstering complaint was waived on appeal because appellant’s
objections at trial did not comport with bolstering argument on appeal); see also Darcy v.
2 See Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993) (“[B]olstering occurs when
one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached
piece of evidence offered by the same party.”) (internal quotation marks omitted); see also Rivas v. State,
275 S.W.3d 880, 886 (Tex. Crim. App. 2009) (“The law of ‘bolstering’ existed before . . . Rules of Evidence
were adopted,” but that term “failed to survive the adoption of the Rules, [and is] slowly dying as an objection
on its face”).
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State, 488 S.W.3d 325, 327 (Tex. Crim. App. 2016) (noting that preservation of error is
systemic requirement on appeal); Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim.
App. 2012) (explaining that we should not address the merits of an issue that has not
been preserved for appeal). We overrule Kiolbassa’s third issue.
V. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
18th day of November, 2021.
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