KERRY P. FITZGERALD

AFFIRM; Opinion issued July 19, 2012

On Appeal from the 363rd Judicial District Court

Dallas County, Texas

Trial Court Cause No. F09-34085-W and F09-34087-W

OPINION

Before Justices FitzGerald, Murphy, and Fillmore

Opinion By Justice FitzGerald

A jury convicted appellant Joseph George Brucia of two counts of aggravated sexual assault of a child under the age of 14. Appellant elected to be sentenced by the court, and the trial judge sentenced him to two 25-year terms of imprisonment to run concurrently. On appeal he raises four issues, including a challenge to the sufficiency of the evidence and a complaint about the State's closing argument. We affirm.

I. Facts

In August 2009, two indictments were filed against appellant. One accused him of committing aggravated sexual assault against Rick James on or about July 1, 2003, when James was under 14 years of age. The other accused him of committing aggravated sexual assault against James on or about August 1, 2004, when James was still under 14 years of age. Appellant pleaded not guilty, and the two cases were tried to a jury in June 2011.

James was the State's first witness at trial, and he testified to the following facts. He was 19 years old at the time of trial. When he was a child, he and appellant lived in the same neighborhood. James met appellant through appellant's son Joseph, who was about two years younger than James. James and Joseph were friends, and James was at appellant's house "[e]very day." James testified that he viewed appellant more as a friend than a parent figure. James's parents did not like him to spend so much time at appellant's house and at one point forbade him from going there, but after six or seven months James started to go to appellant's house again behind his parents' backs. He liked to go to appellant's house because there he could drink, do drugs, and hang out with his friends-about six or seven guys who were about his age. At first, when he was about 13 or 14, James drank alcohol and smoked marijuana at appellant's house. He also used muscle relaxers and pain killers at appellant's house. Later, when he was around 17, he started taking Ecstasy at appellant's house. Throughout this time, James spent the night at appellant's house whenever he could because there were no rules there, while his parents enforced rules at their house.

James further testified that his first sexual encounter with appellant occurred when James was 11 or 12. James and appellant were alone in appellant's living room, and appellant put a pornographic video on. James began to masturbate, and then appellant sat on the couch next to James and masturbated James with his hands until he ejaculated. James did not say anything about the incident, and it was repeated "[a] lot" after that. Then James started to go into appellant's room at night on occasions when appellant's wife was gone and when everyone else was asleep. James would masturbate, and appellant would take James's penis into appellant's mouth. It also happened that James would masturbate appellant and James would put his mouth on appellant's penis. James estimated that he put his mouth on appellant's penis more than ten times. James was still about 11 or 12 years old when these acts took place. These acts stopped when James was about 15 and realized that those things should not be happening.

James also testified that appellant showed favoritism towards James, even over appellant's own son. Appellant sometimes bought cigarettes for James, took him out for lunch, and allowed James to drive appellant's vehicle. On one occasion when appellant was about 15, appellant, James, and several other boys had gone to the Gaylord Texan and were kicked out of the swimming pool. Appellant was drunk and let James drive appellant's Suburban, and while James was driving appellant poked him in the legs and stomach and said that James could not go straight because he was gay. This made James angry. The incident at the Gaylord Texan was a substantial factor in James's parents telling him not to go to appellant's house any more. But James started going to appellant's house again shortly before James turned 17 because he knew he could do whatever he wanted to at appellant's house, and because he could "threaten [appellant] with what I had against him." At this time James was still getting alcohol, marijuana, painkillers, and muscle relaxers at appellant's house.

James further testified that his parents divorced when he was 17. Soon after that, he got kicked out of his mother's house, stayed with his grandmother for a couple of days, and then moved in with appellant. He stayed with appellant for about a year, then moved back in with his grandmother. James testified that various people asked him over the years if anything was happening between him and appellant, and he always denied it because he did not want to end up testifying in court. When he eventually found himself being questioned by City of Irving police detectives, he did not tell them the truth right away.

On cross-examination, James acknowledged that he did not accuse appellant of molesting him until James was accused of stealing money from appellant. He also acknowledged that he stole $600 from appellant's wallet, and that he sometimes stole drugs from appellant. He testified that during the detectives' questioning, the detectives caught him in a lie, and that is when he decided to tell them about appellant's molesting him. He would not tell them orally, but he wrote it down for the detectives on a piece of paper. James further testified on cross-examination that he was not sure if appellant was circumcised or not, but he did not believe he was. He also did not have any idea whether appellant had any identifying moles or birthmarks.

The State called three other witnesses at the trial, the first being Brent Osborn. Osborn testified that he was a friend of James and that he knew appellant. He testified that he would sometimes hang out at appellant's house when James was there, and that they would drink and do drugs at appellant's house. He also testified that he saw appellant touch James on the face, and the way he did it did not seem normal to Osborn. It was obvious to Osborn that James was appellant's favorite. Osborn also testified that he was among the group that got kicked out of the Gaylord Texan, and he remembered telling the police that he had seen appellant touch James's chest while James was driving everyone home.

Next, the State called Detective Chris Bishop of the Irving Police Department. He testified that he had been an Irving police officer for about 20 years and in the narcotics unit for about 14 and a half years. The first time Bishop talked to James was at his grandmother's house. The second time was at the police station. That is when James wrote down his account for the police. Bishop investigated James's allegations and spoke to 14 people, including appellant. Finally, the State called Felicia Crumedy as an expert witness. The court held a hearing about her qualifications outside the presence of the jury. During the hearing, Crumedy testified about her education and experience in the area of child sexual abuse. She further testified that she expected to testify to her opinions about the issues of delayed outcry, accidental disclosure, process disclosure, the symptoms of sexual abuse, and the ability of people to talk about their abuse as children and later on as adults. Appellant cross-examined Crumedy about her qualifications. At the conclusion of the hearing, appellant objected to Crumedy's being permitted to testify, and the trial judge overruled the objection.

Before the jury, Crumedy explained her background and qualifications. She testified that she has never met James or worked with anybody in connection with this case. She then explained for the jury that sexually abused children often delay in making an outcry about their abuse, sometimes for a very long time. It is not unusual for a child or an adult who was abused as a child to make an outcry through a "process of disclosure," meaning that the victim will not reveal all the details of the abuse right away but instead will tell the story a little bit at a time when the victim finds someone who is supportive. She testified that it can be very difficult for a victim of sexual abuse to talk about it, and sometimes it is easier for them to write about it than to verbalize it. There is not a "normal way" for a victim of child sexual abuse to talk about it after the fact; some people may be extremely shy and timid, while others may give the information with really no affect at all. Crumedy also testified to the variety of symptoms of sexual abuse that children may show, and she said that not all children display all of the symptoms. She testified that a child who is abused by someone of the same sex will often question his or her own sexuality, and she testified that it would be difficult for a victim to remember specific dates and times about incidents that took place seven to ten years earlier. On cross-examination, Crumedy testified that victims of child sexual abuse could have a lot of different reactions to telling about the abuse, and that each child reacts differently. She agreed that confusion about one's sexuality may indicate abuse and it may not. On redirect examination, the State asked Crumedy some hypothetical questions. In response, Crumedy testified that she would not be surprised if someone who was abused when he was about 11 to 13 would want to write down the details of his abuse when he talks about it for the first time. She also testified that it would not surprise her if such a victim at first said the abuse lasted a year and a half and then later said it lasted three and a half to four years.

The State rested, and appellant did not testify or call any witnesses. The jury found appellant guilty of both counts, and appellant elected to have punishment tried to the court. After hearing testimony from several witnesses, the trial judge sentenced appellant to 25 years' imprisonment on each count, with the sentences to run concurrently.

Appellant timely appealed.

II. Analysis

Appellant raises four issues on appeal. First, he challenges the sufficiency of the evidence to support his conviction. Second, he argues that the trial judge erred by admitted Crumedy's testimony. Third, he argues that the trial judge erred by denying his motion for a mistrial after the State allegedly violated an order in limine. Fourth, he argues that the State made an improper closing argument. A. Sufficiency of the evidence

In his first issue, appellant argues that the evidence supporting his conviction was legally insufficient. We examine all the evidence in the record in the light most favorable to verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011). We defer to the jury's credibility and weight determinations, because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Haywood v. State, 344 S.W.3d 454, 459 (Tex. App.-Dallas 2011, pet. ref'd).

Appellant does not contend that the State adduced no evidence of one or more essential elements of the crimes he was charged with. Rather, he argues that the only witness who testified to the elements of those crimes, Rick James, was not a credible witness. He points out that James admitted that he used drugs, stole from appellant, and lied to the police. Appellant also points out that James was not sure whether appellant was circumcised or not and did not remember if appellant had any identifying moles or birthmarks.

Appellant's argument is without merit. The jury was entitled to weigh James's credibility and to believe or disbelieve his testimony. See id.; see also Manivanh v. State, 334 S.W.3d 23, 26 (Tex. App.-Dallas 2008, pet. ref'd) ("We must defer to the factfinder's decisions on credibility and weight."); Marquez v. State, No. 05-07-00635-CR, 2008 WL 2043044, at *3 (Tex. App.-Dallas May 14, 2008, no pet.) (mem. op., not designated for publication) (jury was free to believe witness who was a convicted felon); Douglas v. State, No. 05-06-00198-CR, 2006 WL 3742902, at *2 (Tex. App.-Dallas Dec. 21, 2006, pet. ref'd) (mem. op., not designated for publication) (jury was free to believe witness despite his history of mental illness and factual discrepancies in the evidence). Moreover, "[t]he testimony of a single eyewitness is sufficient to support a felony conviction." 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); see also Propes v. State, No. 05-09-01252-CR, 2011 WL 856906, at *3 (Tex. App.-Dallas Mar. 14, 2011, pet. ref'd) (mem. op., not designated for publication) (State can prove aggravated sexual assault of a child solely through the child's testimony, and it need not present corroborating or physical evidence).

We reject appellant's first argument on appeal. B. Admission of expert-witness testimony

In his second issue, appellant argues that the trial judge erred by admitting the testimony of Felicia Crumedy because she was not qualified to testify as an expert. We review the trial judge's determination that a witness is qualified to testify as an expert for abuse of discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).

Under the Texas Rules of Evidence, a person may be qualified to testify as an expert "by knowledge, skill, experience, training, or education." Tex. R. Evid. 702. Whether a witness is qualified as an expert is an issue distinct from the reliability and the relevance of the person's particular opinions. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). The qualification inquiry involves two parts: whether the witness has a sufficient background in the particular field, and whether that background goes to the very matter on which the witness is to give an opinion. Id. Because the possible spectrum of education, skill, experience, and training is so wide, the trial judge has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a particular topic. Id. at 136. Appellate courts rarely disturb the trial judge's determination. Id.

As to her background, Crumedy testified that she had a bachelor's degree and a master's degree in social work and that she was a licensed social worker in the state of Texas. She attends continuing-education classes to maintain her license and often takes double or triple the required number of continuing-education hours. She has worked as a therapist at the Dallas Children's Advocacy Center for ten years, during which time she has worked with over 250 children. In her work, she has seen both boys and girls who have been sexually abused. She also keeps up with the literature and research in the field of child sexual abuse. As for her specific opinions, she testified on several subjects. She testified that it is not unusual for a sexually abused child to delay making an outcry about the abuse, sometimes for a very long time. She testified that it is also not unusual for an abused child to withhold some details about the abuse at first, and to reveal more details over time. She opined that some abuse victims find it easier to write about their abuse than to verbalize it. She explained that abuse victims present differently when they talk about their abuse, with some appearing shy and timid while others talk about their abuse with no affect at all. She also listed some symptoms of child sexual abuse, adding that not all children display all of the symptoms. She opined that it could be difficult for an abused child to remember specific dates and times about abuse several years after the fact. And she testified that she would not be surprised if an abuse victim were to estimate at first that he was abused for a year and a half and then later say that the abuse lasted three and a half to four years.

We conclude the trial judge acted within the zone of reasonable disagreement in determining that Crumedy's training, education, and experience regarding sexually-abused children qualified her to offer the opinions she did. Appellant points out that Crumedy has not published any literature in the field, never conducted a study, and never been involved in peer review. Despite these facts, the trial judge could reasonably conclude that her education, training, and experience were sufficient to make her opinions useful to the jury. Appellant also argues that our recognizing Crumedy as a qualified expert witness would essentially make every employee of the Dallas Children's Advocacy Center a qualified expert on these matters. This is not a valid objection to Crumedy's qualifications. Whether many or a few people share a witness's qualifications has no bearing on whether she is qualified to give expert opinions under Rule 702. The trial judge is entitled to wide latitude in ruling on a witness's qualifications, and the trial judge in this case did not exceed the bounds of reasonable disagreement in concluding that Crumedy was qualified.

Appellant also argues that Crumedy's testimony should have been excluded on grounds of reliability and relevance. He asserts that Crumedy's testimony was unreliable because she never talked to James and never worked with anybody related to this case. The argument is without merit. An expert witness need not have personal knowledge of all the facts on which she bases her opinion. Henderson v. State, 14 S.W.3d 409, 412 (Tex. App.-Austin 2000, no pet.); see also Tex. R. Evid. 703 (providing that an expert can base her opinions on facts made known to the expert at the hearing).

Finally, appellant argues that Crumedy's testimony was irrelevant because her testimony provided no useful guidance to the jury. He points out that Crumedy testified that different children react differently to sexual abuse, and that she testified mostly in generalities about how sexually abused children behave. We conclude the trial judge did not abuse his discretion in concluding that Crumedy's opinions were relevant. A material issue for the jury's determination was whether James was sexually abused. The jury's determination of this issue could have been affected by factors such as the long delay before he made an outcry, the manner in which he made his outcry, and the way that he divulged more details about appellant's conduct over time. The trial judge could reasonably conclude that Crumedy's testimony that it is not unusual for children who have been sexually abused to behave the way James did was relevant to the jury's assessment of whether James was sexually abused. See Shaw v. State, 329 S.W.3d 645, 651 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) ("[A]lthough a direct opinion on the truthfulness of a child is inadmissible . . ., testimony about the behavior of child sex abuse victims is admissible under Rule 702."); Rivera v. State, No. 05-02- 00837-CR, 2003 WL 1735024, at *3-4 (Tex. App.-Dallas Apr. 2, 2003, no pet.) (not designated for publication) (holding that testimony of therapist about common characteristics of child sexual abuse victims was relevant and helpful to the jury).

We reject appellant's second issue on appeal. C. Motion for mistrial

In his third issue, appellant argues that the trial judge erred by denying his motion for mistrial after the State allegedly violated an order in limine. The issue arose at trial in the following way. Appellant's counsel cross-examined James about the time he drove appellant's vehicle after their group got kicked out of the Gaylord Texan, and specifically about when that incident occurred. James testified that he couldn't remember exactly when it happened. The State's redirect examination of James began as follows:

Q:
Mr. James, you were asked a lot of questions about the Gaylord incident and how old you were, and you remember defense counsel talking to you about a police report?
A:Yes, ma'am.
Q:Let's talk about that. After the Gaylord incident, that's when your parents, we talked about earlier, forb[ade] you from going back over there; is that correct?
A:Yes, ma'am.
Q:In that time that you weren't allowed to go back over there, was there an incident where someone was peeping in on you in your window?
A:Yes, ma'am.
Q:Were the police called as a result of that incident?
A:Yes, ma'am.
Q:Did you know they generate reports for each one of those incidents?
A:I didn't know that.
Q:Have you ever [seen] the report for that incident?
A:No, ma'am.
THE STATE: Your Honor, may I approach the witness?
THE COURT:You may.
THE DEFENSE:Could we approach the bench first, Judge?
THE COURT:Yes.

THE COURT:
Please be seated.
THE DEFENSE:Your Honor, at this time, the Defense would object to the line of questioning that the State was attempting to go into in regards to this defendant in some incident involving an[] alleged peeping Tom.
THE COURT:The jury will disregard all of the testimony beginning with the State's redirect regarding any incident regarding a peeping Tom-involving a peeping Tom.
THE DEFENSE:And, Your Honor, at this time, we would ask the court to give the jury an instruction in regards to the fact that there's never been any charges or any witness that ever alleges that the defendant in this case was in any way involved with or responsible for any allegation that there was ever any peeping Tom whatsoever.
THE COURT:The jury is instructed that this defendant is not in any way related to any incident regarding the peeping Tom.
THE DEFENSE:Your Honor, based upon the previous objections we made, at this time, we must move for a mistrial.
THE COURT:Denied.

At the outset, the record does not support appellant's position that the trial judge actually made a limine order about the evidence in question. Appellant filed a pretrial motion that included a request for a limine order as to evidence of "extraneous transactions" and "prior bad acts," but the record contains no written order on that request. The trial judge held a pretrial hearing on appellant's motion, and the parties discussed some evidence of other acts by appellant, but the peeping-Tom allegation was not discussed. Moreover, the reporter's record does not reflect that the judge expressly granted appellant's limine request, either generally as to other acts by appellant or specifically as to questions or evidence of peeping-Tom behavior.

But even assuming the State violated a limine order by asking James whether someone had peeped at him through his window, we conclude that the trial judge did not err by denying appellant's subsequent motion for a mistrial. When an improper question is asked, a mistrial is required only if the question is clearly prejudicial to the defendant and is of such character as to suggest it is impossible to withdraw the impression it produces on the minds of the jurors. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The asking of an improper question seldom requires a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Id. Similar principles govern motions for mistrial after improper testimony is given. See Young v. State, 283 S.W.3d 854, 877-78 (Tex. Crim. App. 2009) (per curiam) (analyzing case in which witness gave improper and nonresponsive testimony that gun he saw appellant throw away was "a stolen firearm"). A trial judge's denial of a motion for mistrial is reviewed under an abuse-of-discretion standard. Ladd, 3 S.W.3d at 567; see also Young, 283 S.W.3d at 878.

In this case, the trial judge instructed the jury to disregard all testimony about any peeping- Tom incident, and then he went further and instructed the jury that appellant was "not in any way related to any incident regarding the peeping Tom." The question on appeal, under the abuse-of- discretion standard, is whether the trial judge could have reasonably concluded that the peeping-Tom question and answer were not so inflammatory as to be incurable by an instruction to disregard. See Young, 283 S.W.3d at 878. We conclude that the trial judge's decision was not an abuse of discretion. This case is comparable to Young, in which a witness improperly volunteered testimony that a gun thrown away by the defendant in that case was a stolen firearm. See id. at 877. The court of criminal appeals held that this improper testimony did not necessitate a mistrial, noting that the testimony "did not actually assert that the appellant stole the weapon or that he knew it was stolen." Id. at 878. In the instant case, the State's question and James's answer did not identify appellant as the person who allegedly peeped in on James. The trial judge could reasonably have determined that the question and answer were not so inflammatory as to be incurable by an instruction to disregard. See Ladd, 3 S.W.3d at 567 (noting that the harm from unresponsive answers can generally be cured by instruction "except in extreme cases").

We reject appellant's third issue on appeal. D. Closing argument

In his fourth issue on appeal, appellant argues that the State made an improper jury argument during the first phase of the trial. The State opened the final arguments with the following statements:

And let me make this very clear to y'all. You can bring your common sense back there. You can bring your brains back there with your minds with your ability to look at information. And I'm going to make this thing real simple for just a second. I'm not a young man. I'm an older man, but I can tell you this. The first time you hear the words out of me that I took another man's penis into my mouth from a witness stand, in front of people that I don't know and people that are sitting out here, there is no question but that I am telling the truth.

Preservation of error is a systemic requirement that we should review on our own motion, even if it is not raised by the parties. Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009). In this case, appellant failed to preserve the arguments he raises on appeal.

An argument is not preserved if it does not comport with the objection made in the trial court. Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009). Appellant raised no constitutional objection in the trial court, so his due-process complaint is waived. Moreover, appellant's brief contains no substantive argument in support of his due-process complaint, so that complaint is waived for that reason as well. See Tex. R. App. P. 38.1(i); Delapaz v. State, 228 S.W.3d 183, 197 n.20 (Tex. App.-Dallas 2007, pet. ref'd). We also conclude that an objection that argument is "outside the record" does not suffice to preserve an appellate contention that a prosecutor is injecting his personal opinions into the case during closing argument. We so held in Taylor v. State, No. 05- 92-02364-CR, 1995 WL 141650, at *10 (Tex. App.-Dallas Mar. 30, 1995, no pet.) (not designated for publication).

Accordingly, we reject appellant's fourth issue for failure to preserve error.

III. Disposition

For the foregoing reasons, we affirm the trial court's judgments.

KERRY P. FITZGERALD

JUSTICE

Do Not Publish

Tex. R. App. P. 47

110866F.U05

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSEPH GEORGE BRUCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

No. 05-11-00866-CR

Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 34087-W).

Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 19, 2012.

KERRY P. FITZGERALD

JUSTICE

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSEPH GEORGE BRUCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

No. 05-11-01312-CR

Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 34085-W).

Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 19, 2012.

KERRY P. FITZGERALD

JUSTICE