Charlie Mac Cunningham v. State

Opinion filed June 22, 2006

Opinion filed June 22, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00150-CR

                                                    __________

                           CHARLIE MAC CUNNINGHAM, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 32nd District Court

                                                          Nolan County, Texas

                                                   Trial Court Cause No. 9902-A

                                                                   O P I N I O N

The jury convicted Charlie Mac Cunningham of three counts of aggravated sexual assault,  two counts of indecency with a child by exposure, and three counts of indecency with a child by contact.  The trial court assessed punishment at seventy years confinement for each of the  aggravated sexual assault convictions, ten years confinement for each of the indecency with a child by exposure convictions, and twenty years confinement for each of the indecency with a child by contact convictions.  We affirm.

There is no challenge to the sufficiency of the evidence.  The victim testified that appellant, her stepfather, touched her on her Aprivate places.@  The victim stated that appellant touched her Aprivate places@ with his Atongue, his penis, and sometimes his finger.@  The victim further stated that, when appellant touched her, his penis, finger, and tongue went Ainside@ of her.  Patti Henry, a nurse who examined the victim, testified that the victim said appellant put Ahis pee pee@ in her Aprivate.@ Henry further testified that the victim=s Ahymen@ was missing and that A[t]hat=s the number one indication of sexual abuse in the child.@

In his sole point of error, appellant complains that the trial court erred in refusing to admit his expert=s testimony.    We review the trial court=s decision to admit or exclude evidence under an abuse of discretion standard.  Green v. State, 934 S.W.2d 92, 101‑02 (Tex. Crim. App. 1996);  Montgomery v. State, 810 S.W.2d 372, 379‑80 (Tex. Crim. App. 1991).  A reviewing court should not reverse a ruling which was within the Azone of reasonable disagreement.@ Green, 934 S.W.2d at 101‑02.

Appellant called Dr. Jerome Eugene Smola, who was not designated as an expert witness, to testify.  Appellant argued that he was offering Dr. Smola=s testimony to rebut Henry=s testimony.    Appellant stated that Henry testified Ato certain facts concerning . . . some anecdotal information about a woman that had children who had babies at 15 years of age and their hymens totally intact.  That=s something [he] couldn=t have foreseen that she was going to say in testimony here.@ Appellant further stated that Henry testified about the Aanterior hymen being present and undamaged.@   The State responded that Henry testified that she Adid not check [the victim=s] anterior hymen.@   The State further argued that Athe fact that it=s highly unlikely that someone could give birth to a baby and still have their hymen intact doesn=t rebut what [Henry] says. [Henry] said there are documented cases of it.@

The trial court found that appellant had not designated Dr. Smola as an expert pursuant to the State=s request and that Dr. Smola=s testimony Ais not in line of direct rebuttal of the testimony of Patti Henry.@ The trial court allowed appellant to present Dr. Smola=s testimony as a bill of exception, outside the presence of the jury, at the conclusion of the case.   Appellant argues on appeal that the trial court denied him his Sixth Amendment right to present a defense.  After viewing the record, we agree with the trial court=s finding that Dr. Smola=s testimony was not direct rebuttal to Henry=s testimony.  Dr. Smola=s testimony was on a collateral issue.  Tex. R. Evid. 401 defines relevant evidence as Aevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@  For evidence to be relevant, it should be Ahelpful in determining the truth or falsity of any fact that is of consequence to the lawsuit.@ Montgomery v. State, 810 S.W.2d at 376; see Felan v. State, 44 S.W.3d 249, 255 (Tex.App.CFort Worth 2001, pet. ref=d).  The trial court did not abuse its discretion in excluding the testimony and did not deny appellant his right to present a defense.  Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

June 22, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.