Ronnie Bush v. State

AFFIRMED as MODIFIED and Opinion Filed March 27, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00076-CR
RONNIE BUSH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1875228-R
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Evans
Opinion by Justice Evans
Ronnie Bush appeals from the trial court’s judgment convicting him of
indecency with a child. In four issues, appellant contends that the trial court abused
its discretion by overruling his objections to the State’s expert witness testimony. In
two additional issues, appellant argues that the judgment should be reformed to
reflect the correct offense name and applicable statute. We agree, and the State does
not dispute, that the judgment should be reformed. We affirm the judgment as
modified.
BACKGROUND
The grand jury indicted appellant for continuous sexual abuse of a child under
fourteen years of age. During the trial, the State called Karen Esposito, a therapist
at Dallas Children’s Advocacy Center with ten years’ experience, to testify. The
trial court designated Esposito as an expert in child abuse without objection.
Esposito testified that she had no actual involvement with the parties at issue in this
case. During Esposito’s testimony, the following exchange took place:
[State’s attorney]: How are you, why did I call you today?
[Esposito]: I think usually to discuss the dynamics of child abuse and
what contributes to that and how children react.
[State’s attorney]: Start at the beginning. Who can be a perpetrator – ?
[Defense attorney]: Your Honor, I agree she’s an expert in this
particular field. I don’t feel as if she can offer anything relevant to this
case being that she would only be testifying kind of more generally
instead of specifically.
I think there’s a high propensity for any testimony that she can offer to
be more prejudicial than probative. And in that case confuse the jury
because she’s not had the occasion to being the therapist seeing the
children.
If the state wants to produce someone who actually saw the children
that would be different.
[Court]: I’ll overrule the objection.
[State’s attorney]: So who are the perpetrators of child abuse?
[Esposito]: They tend to be someone the child knows and trusts, so 9
out of 10 cases that’s the case. They can be men, women, young, old.
You cannot tell by looking at them obviously whether they’re a
perpetrator, which is how they’re able to do what they do.
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Esposito went on to testify that most children do not immediately report the abuse,
often because they worry they will not be believed, the subject matter is
embarrassing, or they do not want to get themselves or the abuser into trouble. The
following exchange then took place:
[State’s attorney]: Would it make a difference if a child did tell once
and wasn’t believed?
[Esposito]: If a child told and wasn’t believed I imagine they would
hold that secret in and not tell again.
[State’s attorney]: If a sibling or close family member saw that the
original child wasn’t believed would that child be affected as well?
[Defense attorney]: Your Honor, I object. It seems as if now all we’re
doing is speculating what could happen and once again I believe this is
more prejudicial than probative.
I would ask if the Court plans to overrule that I do have a running
objection for the entire line of questioning.
[Court]: All right. I’ll overrule the objection. I’ll give you a running
bill, counsel. Go ahead.
***
[State’s attorney]: How might one child seeing another not being
believed affect the second child?
[Esposito]: Are you saying the second child believed the abuse
happened? Is the child aware that it happened? It varies.
[State’s attorney]: Tell me how it varies first.
[Esposito]: Sometimes when the abuse happens most often it’s done in
secret. The perpetrator does that. They want to do what they want to
do. Other people in the house don’t know what is going on. Therefore
if there was another child in the home and the sibling outcried there’s
gonna be a lot of confusion and questions.
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[State’s attorney]: If the child didn’t see the abuse but did see the other
abused child outcry that weren’t believed [sic] how might it affect the
one who saw these things?
[Esposito]: Are you saying a case where the sibling witnessed the
abuse?
[State’s attorney]: Didn’t witness but witnessed the outcry and not
being believed.
[Esposito]: Child’s gonna have a lot of questions. Be confused.
The jury returned a guilty verdict for the lesser included charge of indecency
with a child by contact. The trial court sentenced appellant to eight years’
imprisonment in the Texas Department of Criminal Justice.
ANALYSIS
A. Expert Witness Testimony
In four issues, appellant contends the trial court abused its discretion in
overruling objections to the State’s expert witness. In issues one and two, appellant
contends the trial court erred in allowing Esposito’s testimony about who can be a
perpetrator because the testimony was (1) irrelevant and (2) more prejudicial than
probative. In issues three and four, appellant contends the trial court erred in
admitting Esposito’s testimony about the effect of a child’s outcry after observing
that a sibling’s prior outcry was not believed because the testimony was (1)
speculative and/or (2) more prejudicial than probative.
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i) Standard of Review
The admission of expert testimony is reviewed on appeal for an abuse of
discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). Absent a
clear abuse of that discretion, the trial court’s decision to admit or exclude testimony
will not be disturbed. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006).
ii) Perpetrator testimony
In his first two issues, appellant argues that Esposito’s testimony regarding
who can be a perpetrator was irrelevant and more prejudicial than probative. Even
assuming, without deciding, that the testimony was inadmissible and was
erroneously admitted, such a breach of the evidentiary rules does not raise
constitutional concerns and must be disregarded unless the erroneously admitted
testimony affected appellant’s substantial rights. See TEX. R. APP. P. 44.2; Sandoval
v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no pet.) (Erroneous
admission of evidence is non-constitutional error and non-constitutional error
requires reversal only if it affects the substantial rights of the accused). A substantial
right is affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. Brown v. State, 580 S.W.3d 755, 765 (Tex. App.—
Houston [14th Dist.] 2019, pet ref’d). If the improperly admitted evidence did not
influence the jury or had but a slight effect on its deliberations, such error is
harmless. Id.
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In determining the likelihood that the jury’s decision was improperly
influenced, we may consider, among other things: (1) the strength of the evidence
of the defendant’s guilt; (2) whether the jury heard the same or substantially similar
admissible evidence through another source; (3) the strength or weakness of an
expert’s conclusions, including whether the expert’s opinion was effectively refuted;
and (4) whether the State directed the jury’s attention to the expert’s
testimony during arguments. Id. at 765–66. Applying the different factors to the
evidence in this case, we conclude that the admission of Esposito’s testimony was
harmless.
Regarding the first factor, we observe that both the complainant and her sister
testified in detail how appellant sexually abused each of them. Complainant’s sister
testified that she was afraid to say anything about the abuse because appellant was
abusive toward her mother. Complainant’s sister also saw appellant sexually
assaulting her sister. The girls’ mother testified that both sisters told her about the
abuse and when she confronted appellant, he kept saying “I’m sorry, sorry, we can
work this out.” Bernadette Yupit-Martinez, the forensic interviewer at the Dallas
Children’s Advocacy Center, testified that she interviewed complainant and she was
able to provide sensory details. Kim Skidmore, the director of forensic services at
the Dallas Children’s Advocacy Center, also interviewed complainant and testified
that complainant provided sensory and peripheral details as well as a consistent
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outcry of abuse. Accordingly, there was sufficient evidence for appellant’s
conviction.
With regard to the second issue, there was no additional testimony about who
potential perpetrators could be in this case so the jury did not hear the same or
substantially similar admissible evidence through another source. Accordingly, this
factor weights in favor of appellant.
In the third factor, we look to the strength or weakness of an expert’s
conclusions. Id. at 765. Here, Esposito testified that perpetrators “tend to be
someone the child knows and trusts, so 9 out of 10 cases that’s the case. They can
be men, women, young, old. You cannot tell by looking at them obviously whether
they’re a perpetrator, which is how they’re able to do what they do.” In arguing
about the relevance of such testimony, appellant notes that “this general testimony
made it no more or less likely that Appellant, as opposed to anyone else, was the
perpetrator in this case.” Appellant also argues that Esposito’s testimony “did not
describe any characteristics of who a perpetrator can be that link Appellant to being
a perpetrator of child abuse.” Thus, appellant’s own statements tend to support the
conclusion that Esposito’s generalized statements do not support a finding of harm.
The last factor—whether the State directed the jury’s attention to
the expert’s testimony during arguments—also weighs in the State’s favor since the
State did not reference Esposito’s testimony in its closing argument. In fact,
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Esposito’s testimony came at the end of the trial and the State did not reference it
again.
Examining the relevant factors, we conclude that, in the context of the entire
record, the trial court’s admission of Esposito’s testimony regarding who can be a
perpetrator did not have a substantial and injurious effect or influence in determining
the jury’s verdict. Id. at 765. Accordingly, we overrule appellant’s first and second
issues.
iii) Outcry testimony
In his third and fourth issues, appellant asserts that Esposito’s testimony
regarding a child’s outcry was speculative and more prejudicial than probative.
Once again, assuming, without deciding, that the testimony was inadmissible and
was erroneously admitted, appellant cannot demonstrate harm.
During the trial, there was testimony that complainant’s sister made an outcry
of abuse about appellant but was not believed. The complainant testified that she
was confused about what had happened with her sister and appellant and did not
know if her sister was lying or telling the truth. Complainant also testified that after
appellant began abusing her, she then suspected that her sister had been telling the
truth. When asked why she did not tell her mother about the abuse, complainant
testified that “[a]fter the situation with my sister I was just you know afraid to tell
her.” Later in the trial, Esposito was asked what effect it would have on a sibling if
a child was not believed after making an outcry of abuse. After overruling
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appellant’s objections, Esposito testified that the child would “be confused” and
“have a lot of questions” after witnessing her sibling make an outcry and not being
believed.
As set forth above, we again apply the four factors to determine whether
appellant suffered harm. Sandoval, 409 S.W.3d at 293–94. For the reasons stated
above, the first factor weighs in favor of the State because there was sufficient
evidence for appellant’s conviction. With regard to the second issue, the jury did
not hear the same or substantially similar admissible evidence through another
source. The third factor we look to is the strength or weakness of an expert’s
conclusions. Brown, 580 S.W.3d at 765. Here, Esposito’s conclusions were general
and not particularly powerful. As summarized above, Esposito simply concluded
that a child would “be confused” and “have a lot of questions” after witnessing her
sibling make an outcry and not being believed. It is unclear how this general
conclusion could have caused appellant any harm. Finally, the last factor—whether
the State directed the jury’s attention to the expert’s testimony during arguments—
again weighs in the State’s favor since the State did not reference Esposito’s
testimony again or in its closing argument. After a review of the relevant factors,
we conclude that, in the context of the entire record, the trial court’s admission of
Esposito’s testimony regarding the effect of a sibling’s prior outcry did not have a
substantial and injurious effect or influence in determining the jury’s verdict. Id.
Accordingly, we overrule appellant’s third and fourth issues.
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B. Reformation of Judgment
In issues five and six, appellant requests that this Court reform the judgment
because it incorrectly states the offense name and statute. The judgment reflects a
conviction for continuous sexual abuse of a child but the jury returned a guilty
verdict for the lesser-included offense of indecency with a child by contact. In
addition, the judgment reflects the statutory provision for the offense as section
21.02 of the penal code but the correct statute is section 21.11 of the penal code. In
cases such as these, where the necessary data and information is available, we have
the authority to modify the incorrect judgment. See TEX. R. APP. P. 43.2(b); Estrada
v. State, 334 S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet.) (“This Court has the
power to modify an incorrect judgment to make the record speak the truth when we
have the necessary information to do so.”); Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993). Accordingly, we sustain appellant’s fifth and sixth issues
and modify the judgment to reflect that appellant was convicted of indecency with a
child by contact and that the statute for the offense is section 21.11 of the Texas
Penal Code.
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CONCLUSION
Based on the foregoing, we reform the trial court’s judgment to reflect that
appellant was convicted of indecency with a child by contact and that the statute for
the offense is section 21.11 of the Texas Penal Code. As modified, we affirm the
trial court’s judgment.
/David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
190076F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RONNIE BUSH, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-19-00076-CR V. Trial Court Cause No. F18-75228-R.
Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee Justices Partida-Kipness and Nowell
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED to reflect that appellant Ronnie Bush was convicted of indecency with
a child by contact and that the statute for the offense is section 21.11 of the Texas
Penal Code.
As REFORMED, the judgment is AFFIRMED
Judgment entered March 27, 2020.
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