Joseph Kevin Adamick v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00108-CR
____________________
JOSEPH KEVIN ADAMICK, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 16-07-08376-CR
________________________________________________________ _____________
MEMORANDUM OPINION
In four appellate issues, Joseph Kevin Adamick contends his conviction for
continuously sexually abusing a child should be reversed. Adamick argues (1) the
trial court abused its discretion by admitting evidence about two extraneous offenses,
which he claims violated his right to due process; (2) the trial court should have
excluded the evidence about the extraneous offenses because it was more prejudicial
than probative; (3) the trial court should have excluded the testimony of the State’s
expert, who has a doctorate in clinical psychology, because his testimony was not
1
relevant to the facts at issue in Adamick’s case; and (4) the State failed to produce
enough evidence to support the jury’s finding that he was guilty of the offense for
which he was tried. For the reasons explained below, we affirm.
Sufficiency of the Evidence
Because granting Adamick the relief he would be entitled to receive should
we find that his fourth issue has merit would result in a judgment of acquittal, we
review that issue before reviewing Adamick’s first three issues.1 In issue four,
Adamick argues the evidence admitted in his trial fails to support the jury’s verdict
finding him guilty of committing the alleged continuous sexual assault of the
children, who are identified in Adamick’s indictment. The standard of review that
applies to Adamick’s fourth issue is the standard established by the United States
Supreme Court in Jackson v. Virginia. 2 In reviewing whether sufficient evidence
was admitted to support a jury’s verdict, Jackson requires that appellate courts view
the evidence the jury considered “‘in the light most favorable to the verdict and
determine whether, based on the evidence and reasonable inferences therefrom, a
1
See Tex. R. App. P. 43.3 (requiring that appellate courts render judgment in
an appeal unless a remand is necessary); Campbell v. State, 125 S.W.3d 1, 4 n.1
(Tex. App.—Houston [14th Dist.] 2002, no pet.) (explaining the reviewing court
should first address the complaints that would afford the defendant the greatest
relief).
2
See 443 U.S. 307, 319 (1979).
2
rational juror could have found the essential elements of the crime beyond a
reasonable doubt.’” 3 In conducting our review, we must keep in mind that “[t]he jury
is the sole judge of credibility and weight to be attached to the testimony of
witnesses.”4 In its role as the factfinder in the case, the jury may choose to believe
all, some, or none of the testimony admitted into evidence during the trial. 5 And the
jury may draw multiple inferences from the evidence as long as the inferences that
it drew were reasonable and they were supported by the evidence admitted during
the trial. 6 If the record reveals that the jury could have drawn inconsistent inferences
from the evidence, we still must presume the jury resolved any such conflicts in a
manner that favors the jury’s verdict, and we must defer to the ultimate conclusion
the jury reached in the dispute if its resolution was reasonable based on the evidence
that was before it in the trial.7 “Under this standard, evidence may be legally
insufficient when the record contains either no evidence of an essential element,
3
Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting
Jackson, 443 U.S. at 318-19).
4
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing
Jackson, 443 U.S. at 319).
5
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
6
Temple, 390 S.W.3d at 360 (citing Jackson, 443 U.S. at 319).
7
Id.3
merely a modicum of evidence of one element, or if it conclusively establishes a
reasonable doubt.”8
Under Texas law, a person seventeen years of age or older commits the crime
of continuous sexual abuse of either a young child, or children, if, during a period of
thirty days or more, the person commits two or more acts of sexual abuse against
one or more children who are not yet fourteen. 9 The crime of continuous sexual
abuse, given the statute’s definition of “sexual abuse,” includes indecency with a
child by contact, sexual assault, and aggravated sexual assault. 10, 11
8
Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing
Jackson, 443 U.S. at 320).
9
See Tex. Penal Code Ann. § 21.02(b) (West Supp. 2018).
10
Id. § 21.02(c) (West Supp. 2018).
11
Adamick’s indictment alleged that between May 20, 2014, and October 8,
2014, a period that was thirty days or more in duration, he committed two or more
acts of sexual abuse against (1) “Tracy,” a child younger than 14 years of age,
namely by crimes that involved both touching her in various places and by
penetrating various parts of her body, and against (2) “John,” a child younger than
fourteen years of age, by having him touch the sexual organ of another child,
“Molly,” and against (3) Molly, a child younger than six years of age, by having her
touch John’s sexual organ with her hands and mouth, and by penetrating Molly with
his sexual organ. We also note that Adamick’s indictment employs “on or about”
language regarding the dates the alleged offenses occurred. Therefore, any testimony
in the record showing that Adamick sexually abused the children in the ways alleged
in the indictment is evidence the jury could have used to find Adamick guilty, so
long as the testimony concerned incidents of sexual abuse that occurred before July
21, 2016, the date the grand jury indicted him. See Thomas v. State, 444 S.W.3d 4,
4
In issue four, Adamick claims the jury could not reasonably rely on what he
characterizes as “bare allegations by [“Tracy,” “Molly” and “John”]12 of alleged
sexual abuse” at his hands. But the evidence before the jury contains more than their
bare allegations, since Tracy and John testified in the trial and there were adults who
testified that the children told them about Adamick’s acts of sexual abuse. While
Adamick concedes in his brief that the uncorroborated testimony of a child who is
the victim of sexual abuse is sufficient to support a conviction for aggravated sexual
assault, he contends that the testimony before the jury was insufficient because the
accounts the children gave about the abuse, whether in court or to adults who
testified about what the children told them, were not reasonably credible.13
9 (Tex. Crim. App. 2014) (explaining that when the indictment employs the phrase
“on or about” and the evidence admitted shows the defendant committed an offense
on a date that differs from that dates in the indictment, “the offense took place ‘on
or about’ the date alleged in the indictment” so long as the conduct proven in the
trial occurred before limitations for that crime expired). We further note that no
statute of limitations exists for the crime of continuous sexual abuse of a child. Tex.
Code Crim. Proc. Ann. art. 12.01(1)(D) (West Supp. 2018) (we cite the current
version of the statute because the changes the Legislature made to the limitations
periods in section 12.01 are not relevant to the issues in Adamick’s case).
12
To protect the privacy of the children, their mother, and one of the other
witnesses who is discussed in the opinion, we have chosen to identify them by using
pseudonyms instead of using their names. See Tex. Const. art. I, § 30(a)(1) (granting
crime victims “the right to be treated with fairness and with respect for the victim’s
dignity and privacy throughout the criminal justice process”).
13
See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2018).
5
Under the standards set out in Jackson, it is not the appellate court’s role to
re-evaluate the weight or credibility the jury assigned to the testimony and to the
exhibits the jury considered during a defendant’s trial. 14 “As factfinder, the jury is
entitled to judge the credibility of witnesses, and [it] can choose to believe all, some,
or none of the testimony presented by the parties.”15 Accordingly, under the Jackson
standard, the jury was entitled to reject Adamick’s alternative hypothesis claiming
that another of the children’s relatives might have committed the sexual abuse that
the witnesses described in Adamick’s trial. 16
In deciding what evidence that it found believable, the jury was also entitled
to reject both Adamick’s testimony and the testimony of the witnesses he called,
who suggested that Adamick never had the opportunity to be alone with Tracy,
Molly, or John when the sexual abuse at issue occurred. Under the Jackson standard,
we need not decide “what happened;” but instead must only be satisfied that the
evidence allowed a reasonable jury to find Adamick guilty of the crime of continuous
14
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
15
Chambers, 805 S.W.2d at 461.
16
Ramsey v. State, 473 S.W.3d 805, 808 n.3 (Tex. Crim. App. 2015)
(explaining the reasonable-hypothesis construct and that it was rejected in 1992).
6
sexual abuse under a standard of beyond reasonable doubt.17 Thus, when evaluating
whether there is enough evidence in the record to support the jury’s verdict, we must
decide whether the logical force of all the evidence, both direct and circumstantial,
allowed the jury to reasonably determine that Adamick was guilty of the crime of
continuous sexual abuse based on the acts alleged in his indictment.18
Applying the Jackson standard to the evidence before the jury in Adamick’s
case, we conclude the jury could have reasonably found, beyond reasonable doubt,
that Adamick sexually abused Tracy in the manner alleged in the indictment at least
two times prior to the day the grand jury indicted him. The jury heard Tracy testify
during the trial that Adamick sexually abused her on three occasions. 19 Tracy, who
17
Merritt v. State, 368 S.W.3d 516, 527 (Tex. Crim. App. 2012) (stating that
an appellate court acts improperly “as a thirteenth juror when it speculate[s] and
focuse[s] on the existence of a reasonable hypothesis inconsistent with the guilt of
the accused”); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(explaining that in conducting a sufficiency review, the appellate court cannot use a
divide-and-conquer approach, and that instead, it must “consider the combined and
cumulative force of the evidence and view the evidence in the light most favorable
to the jury’s guilty verdict”).
18
Tate v. State, 500 S.W.3d 410, 417 (Tex. Crim. App. 2016) (citing Thornton
v. State, 425 S.W.3d 289, 305 (Tex. Crim. App. 2014).
19
Of the children identified in the indictment, only Molly was not called to
testify during Adamick’s trial. Molly was four years old when the abuse alleged in
the indictment occurred, and she was six when the case was tried.
7
was nine years old when the trial occurred, explained that she was scared to testify,
but that she was there because Adamick had abused her. According to Tracy, one of
the acts of sexual abuse occurred in her home on the day that Adamick picked her
up from school. Tracy testified the day the abuse occurred was the same day that she
had been suspended from her school. Tracy’s school records, which were admitted
into evidence during the trial, show that Tracy was suspended from school on
February 28, 2014, and on May 20, 2014. Both of Tracy’s suspensions occurred on
dates before the grand jury indicted Adamick for continuous sexual abuse. Following
the first incident of abuse, Tracy claimed that Adamick sexually assaulted her “[t]wo
more times.” She described one of the later incidents as having occurred at
Adamick’s house after her mother, “Stephanie,” left her there so that she could
accompany Adamick’s ex-spouse to the hospital. As to the last incident, Tracy
claimed the abuse occurred at her house when she was nearly eight, but she could
not remember the details about what happened then.
Adamick contends that no reasonable jury could have found Tracy’s
testimony or the testimony about what she told others credible. According to him,
Tracy’s testimony is not supported by the investigation the State did in the case. He
notes that the State, during its investigation of his case, failed to find any physical,
forensic, or medical evidence to corroborate Tracy’s claims. Nonetheless, when a
8
child who the State has alleged is the victim of the defendant’s sexual abuse testifies
in the defendant’s trial, the child’s testimony will support a jury’s verdict even if the
testimony is not corroborated with other evidence that supports it.20 And, the absence
of physical, forensic, or medical evidence is but one of the factors that a jury may
consider in weighing the evidence, but the lack of such evidence does not render a
jury’s finding insufficient to support the jury’s verdict even when the verdict is based
on the victim’s testimony alone.21
Here, the jury could have concluded that Tracy did not tell Stephanie the truth
when Stephanie first asked whether Adamick ever touched her on her private parts
because Tracy, who was seven-years-old at that time, did not want to get in trouble
with her mother. The jury could also have reasonably determined that any lack of
physical, forensic, or medical evidence resulted from the delays that occurred
between the date the sexual abuse occurred and the date the State first learned that
Tracy was claiming that Adamick had sexually abused her.
20
See Tex. Code Crim. Proc. Ann. art. 38.07; Garner v. State, 523 S.W.3d
266, 271 (Tex. App.—Dallas 2017, no pet.).
21
See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.]
2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006).
9
We must defer to the jury’s verdict when the evidence in the trial shows that
the conclusion the jury reached was reasonable. 22 As was its role, the jury assessed
Tracy’s credibility when she testified and decided that it believed Tracy was telling
the truth when she testified that Adamick sexually abused her three times. Tracy
specifically described where two of the incidents occurred, and she told the jury
about the sexual contact those two incidents involved.23 Finally, although Adamick
presented alibi witnesses in presenting his defense, the jury clearly rejected the
testimony of his alibi witness when it found Adamick guilty. To prove that Adamick
was guilty, the State was not required to exclude every conceivable alternative to its
claim that Adamick committed the crime of continuous sexual abuse.24 Generally,
juries have the right to give the testimony of alibi witnesses, like any other witness
who testifies in a trial, no weight.25
22
See Temple, 390 S.W.3d at 360 (citing Jackson, 443 U.S. at 318-19).
23
Id.24
Merritt, 368 S.W.3d at 525 (citing Turro v. State, 867 S.W.2d 43, 47 (Tex.
Crim. App. 1993) (explaining that “the evidence is not rendered insufficient simply
because appellant presented a different version of the events”)).
25
See Temple, 390 S.W.3d at 363 (noting that “[t]he jury was able to assess
the credibility and demeanor of the witnesses who testified at trial”).
10
In addition to Tracy’s testimony, Stephanie’s testimony provides additional
support for the jury’s verdict. During the trial, Stephanie testified that Tracy told her
that Adamick sexually assaulted her “[t]he last time I was suspended.” While
Stephanie acknowledged that Tracy initially denied that Adamick ever touched her
private parts when she first asked Tracy whether Adamick had ever touched her
inappropriately, Stephanie also testified that Tracy later revealed what Adamick had
done to her. Tracy also told Stephanie about the manner she was abused.26 While
Adamick argues that Tracy’s testimony is not credible because she initially denied
the abuse, but the fact that a witness equivocates about a defendant having
committed a crime does not prevent a jury from finding the victim’s testimony to be
trustworthy. 27 Significantly, the testimony of an outcry witness like Stephanie is
testimony that is considered as competent evidence to support a jury’s verdict.28 As
26
Stephanie testified that she told Tracy that “she was not going to be in
trouble and that she could tell me the truth no matter what the answer was.”
27
See Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991)
(explaining that the appellate court “does not have the power to step in and
reevaluate the probity of an individual item of evidence in its review of the
sufficiency of the evidence” in a case where the defendant’s wife recanted about
having previously made incriminating, out-of-court, statements to officers when she
testified in the defendant’s trial).
28
See Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005);
Rodriguez v. State 819 S.W.2d 871, 873-74 (Tex. Crim. App. 1991).
11
such, Stephanie’s testimony about what Tracy told her offers additional support for
the jury’s finding that Adamick sexually abused Tracy more than once. 29
The sexual assault nurse who examined Tracy testified without limitation or
objection during Adamick’s trial. She examined Tracy in November 2014. The nurse
testified that when she examined Tracy, Tracy told her:
[Adamick] is sick. And he’s been touching me a lot on my
privates. Mommy and daddy weren’t there because they were at work.
My older brother was at school. He blindfolded me with a rag so I can’t
see. He touches back here -- points to the buttocks -- with his private
part. He makes me lay on the floor. I sit down on the floor and he sits
down on the floor. He does it at my house. It hurts. Mommy and daddy
aren’t there. He makes me do it. He puts it in my hiney and my mouth,
all the way in and I choke. It tastes all wet. He’s been doing it to my
sister, too. I have seen him do it to her before, to [Molly].
The nurse’s testimony, quoted above, provides additional support for the jury’s
conclusion that Adamick committed at least two acts of sexual abuse against Tracy
prior to the day the grand jury indicted him for continuous sexual abuse. 30
Because the State was required only to prove that Adamick committed two or
more acts of sexual abuse that lasted for a period of thirty days or more during a
period prior to his indictment, and we have determined that evidence addressing
29
See id.30
See Klein v. State, 273 S.W.3d 297, 318 (Tex. Crim. App. 2008); Hammock
v. State, 46 S.W.3d 889, 893-95 (Tex. Crim. App. 2001).
12
Tracy’s abuse does that, we need not address whether the evidence also shows that
Adamick sexually abused John or Molly to uphold the jury’s verdict.31 For the
reasons we have explained, we overrule Adamick’s fourth issue.
Evidence of Sexual Assault in 2000
“Alice” was twenty-one years old when Adamick stood trial. 32 During the
trial, she testified that she was fourteen years old when Adamick moved into her
home, where he lived with her family for two or three months.33 Alice explained that
Adamick raped her twice while he was living at her family’s home. Nonetheless, she
admitted during her testimony that she first told her parents about the two rapes
nearly two years after they occurred.
31
See Tex. R. App. P. 47.1 (allowing the Court’s opinion to be no longer than
necessary to advise the parties of the court’s decision and the basic reasons for it);
see also Tex. Penal Code Ann. art. 21.02(b) (requiring the State to establish that the
defendant committed two or more acts of sexual abuse in a period that is 30 days or
more to prove the defendant guilty of the crime of the continuous sexual abuse of a
child) (emphasis added).
32
The evidence before the jury shows that Adamick was born on December
28, 1990, so he was twenty-six when the trial occurred.
33
It appears that Adamick would have been approximately nineteen years
old when Alice lived in his home, a date we must approximate because Alice did
not testify about the specific months that she lived in Adamick’s home.
13
Prior to allowing the jury to hear Alice testify, the trial court conducted a
hearing to determine whether the jury should hear Alice testify. 34 During the hearing,
Adamick objected to Alice’s testimony on the basis that the State failed to provide
him with proper notice that it intended to present Alice as a witness regarding the
alleged rapes. The State, however, advised the trial court that it did notify Adamick
of its intent to call Alice to testify about the rapes. The trial court ruled that the State
gave Adamick adequate notice, and it then heard Alice testify in the hearing about
the two rapes.
After finding the State had given Adamick adequate notice about Alice’s
testimony, Alice then testified in the hearing conducted outside the presence of the
jury so the trial court could determine whether the jury could find from the evidence
the State desired to introduce in the trial that Adamick had committed the rapes.35
After finding the evidence sufficient for that purpose, the trial court allowed Alice
to testify before the jury in the trial.
34
See Tex. Code Crim. Proc. Ann. art. 38.37, §§ 2, 2-a (West 2018) (requiring
the trial judge before allowing a jury to consider evidence about extraneous offenses
to determine whether the evidence likely to be admitted about the extraneous
offenses would allow the jury to find, beyond reasonable doubt, that the defendant
committed the extraneous offenses).
35
Id.
14
In issues one and two, Adamick complains the trial court erred by admitting
Alice’s testimony that he raped her. For convenience, we discuss Adamick’s second
issue before addressing issue one. In issue two, Adamick complains the trial court
abused its discretion by admitting Alice’s testimony about the alleged rapes under
article 38.37 because the evidence was more prejudicial than probative to proving
him guilty on a crime in which Alice was in no way involved. The record before us
in the appeal, however, reveals that Adamick never objected that Alice’s testimony
would be more prejudicial than probative when his case was tried. 36
To preserve a complaint for appellate review, the record is generally required
to show that the appellant complained about an alleged error by lodging a timely
objection that stated the grounds for the ruling the defendant wanted the trial court
to make. 37 “The objection must be sufficiently clear to give the judge and opposing
counsel an opportunity to address and, if necessary, correct the purported error.”38
“A complaint will not be preserved if the legal basis of the complaint raised on
36
See Tex. R. Evid. 403 (Excluding Relevant Evidence for Prejudice,
Confusion, or Other Reasons).
37
Tex. R. App. P. 33.1(a).
38
Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016).
15
appeal varies from the complaint made at trial.” 39 We conclude the complaints that
Adam makes in his second issue were not preserved for the purpose of appellate
review. 40
In issue one, Adamick argues the trial court’s decision to rely on article 38.37,
section 2, of the Texas Code of Criminal Procedure violated his constitutional right
to receive due process. But Adamick also failed to preserve this objection for our
review. Generally, errors trial courts make when admitting evidence are subject to
procedural default, regardless of the constitutional right that might be involved.41
Adamick’s objection at trial concerned an alleged lack of adequate notice, but he did
not complain that admitting Alice’s testimony that he raped her violated his right to
due process. We overrule issues one and two because the record demonstrates that
Adamick failed to preserve either issue for our review. 42
39
Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009).
40
Id.41
Darcy v. State, 488 S.W.3d 325, 329 (Tex. Crim. App. 2016) (a complaint
regarding evidence obtained in violation of the right to counsel is subject to
procedural default).
42
See Tex. R. App. P. 33.1.
16
Expert Testimony
In issue three, Adamick argues the trial court abused its discretion by
admitting the testimony of a psychologist, Dr. Lawrence Thompson Jr., because his
testimony was not relevant to explaining the evidence when he testified as the first
witness in the trial. The trial court conducted a hearing outside the presence of the
jury to consider Adamick’s objections to Dr. Thompson’s testimony. During the
hearing, Adamick agreed that Dr. Thompson would be testifying using a valid
underlying scientific theory and that there was a valid technique to applying the
theory. Adamick’s objection in the hearing addressed only whether Dr. Thompson
had properly applied the accepted scientific theories in his field to the facts of
Adamick’s case.43 At the conclusion of the hearing, and after the trial court heard
Dr. Thompson testify about how Dr. Thompson applied the theory in Adamick’s
case, the trial court found that Dr. Thompson was qualified to testify as an expert
witness.44 In ruling on Adamick’s objection, the trial court noted that psychology is
a “soft science,” so the State needed to show only that the subject matter of the
doctor’s expected testimony would be based on the doctor’s training in a legitimate
43
See Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).
44
See Tex. R. Evid. 702.
17
field of expertise, that his testimony was in the scope of the field of child psychology,
and that the doctor had relied properly on the principles in his field of expertise to
form the opinions he intended to express in the trial.45
While we have explained what Adamick complained about during the hearing,
he never objected to Dr. Thompson’s testimony on the basis that the testimony was
irrelevant to Adamick’s case. When the State called Adamick in the trial, Adamick
objected to Dr. Thompson testifying as the first witness because the jury, at that
point, had not yet heard any evidence in his trial. His objection suggests the trial
court should have required Dr. Thompson to testify after other witnesses had
testified about the facts of Adamick’s alleged crime.
The trial court overruled Adamick’s objections to taking Dr. Thompson out
of order. After that, Dr. Thompson testified about his education, training,
employment, and credentials, and he stated that he never reviewed any documents
or offense reports created by others in Adamick’s case. Next, he explained the
concept of grooming in general terms, and why, in his experience with children,
children often do not tell others that a trusted adult abused them shortly after the
abuse occurred. He also explained that older relatives, such as a child’s uncle, can
use their knowledge about a child’s relationship with that relative to allow the
45
See Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998).
18
relative to take advantage of the child. Dr. Thompson, however, never testified that
he thought Adamick had taken advantage of his relationship with Tracy, John, or
Molly based on the facts proven during Adamick’s trial.
In his brief, Adamick argues the State failed to tie the pertinent facts in his
case to the scientific principles that Dr. Thompson described when he testified before
the jury in the trial. Nonetheless, the facts the State presented during the trial were
tied to some of the general principles that Dr. Thompson addressed when he testified.
For example, his testimony was helpful to the jury regarding the testimony that
Rachel McConnell gave in the trial. McConnell conducted interviews of the children
the State claimed that Adamick had sexually abused. She explained that in the first
of the interviews she conducted with each child, neither John, nor Molly, ever told
her that they had been sexually abused. McConnell explained, however, that Tracy
described how Adamick sexually abused her.
Thus, Dr. Thompson’s testimony, although general, about why children often
do not immediately tell someone that they have been abused, is testimony that is
generally relevant to the evidence the State introduced before the jury in the course
of Adamick’s trial.46 For instance, his testimony added context that allowed the jury
46
Tex. R. Evid. 401 (Test for Relevant Evidence), 402 (General Admissibility
of Relevant Evidence).
19
to consider whether the delays in the outcries the children made about being sexually
abused were due to circumstances like the ones he discussed.
When the relevance of the evidence at issue depends on whether a fact exists,
proof must be introduced in the trial that is sufficient to support the trial court’s
implied finding that the fact does exist.47 The trial court may, however, admit
evidence out of order, contingent upon the party who is sponsoring the evidence
introducing enough evidence later in the trial to show that the predicate required to
make the evidence at issue relevant has been fulfilled. 48
Here, the relevance of Dr. Thompson’s testimony was established by other
evidence introduced after Dr. Thompson testified. Even if the trial court admitted
Dr. Thompson’s testimony out of order, it had the discretion to do so given the fact
that the evidence the jury heard during the trial made Dr. Thompson’s testimony
relevant to a disputed fact—why children make delayed outcries after being abused
by an adult to whom the children are related. Moreover, even were we to find the
trial court abused its discretion by allowing Dr. Thompson to testify out of order,
47
See Tex. R. Evid. 104(b).
48
Id.20
that error, if any, has not been shown to have prejudiced any of Adamick’s
substantial rights.49
For these reasons, we overrule Adamick’s third issue. Having considered all
Adamick’s issues, we affirm the trial court’s judgment.
AFFIRMED.
______________________________
HOLLIS HORTON
Justice
Submitted on December 5, 2018
Opinion Delivered February 27, 2019
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
49
See Tex. R. App. P. 44.2(b).
21