Summary
holding appellant failed to preserve error as to his complaint under Shutz that expert improperly commented on complainant's truthfulness because appellant objected in the trial court based on speculation rather than voicing his appellate complaint in the trial court
Summary of this case from Ybarra v. StateOpinion
Nos. 14-02-00097-CR and 14-02-00098-CR.
Memorandum Opinion Filed May 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause Nos. 889,123 and 866,472. Affirmed.
Before Chief Justice BRISTER, Justices HUDSON and FOWLER.
MEMORANDUM OPINION
A jury found appellant guilty of two felony counts of indecency with a child, and assessed punishment at seventy-five years and one day in the Texas Department of Criminal Justice, Institutional Division for each offense. On appeal, appellant complains that (1) the trial court erred by admitting testimony in the punishment phase regarding the future impact of this offense on the complainant, (2) the trial court erred in allowing an expert to testify to complainant's truthfulness, and (3) appellant's attorney committed five acts of ineffective assistance of counsel by failing to object and by eliciting testimony. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant's niece, a minor, came to live with appellant's family. Later, the niece accused appellant of having sexual intercourse with her multiple times. No physical evidence existed to prove the accusations. Therefore, the State called nine witnesses — including two doctors, a psychologist, and a therapist to testify to the possible abuse. The jury found appellant guilty of two counts of indecency with a child. During the punishment phase, the State called only one witness — the complainant's therapist. The jury sentenced appellant to seventy-five years and one day for each offense.DISCUSSION
Appellant raises seven points of error. First, appellant contends the trial court abused its discretion in the punishment phase by allowing an expert to testify to the future impact of this offense. Second, appellant argues one expert improperly commented on complainant's veracity. Combined in his next five points of error, appellant contends he received ineffective assistance of counsel because his attorney failed to object and elicited testimony from the State's witnesses who commented on the complainant's veracity and because his attorney failed to object that prosecutor commented on appellant's right to a jury trial.I. Expert Testifying to Complainant's Future Abuse
We first address appellant's claim that the expert should not have been able to testify in the punishment phase to the future impact of this offense on the complainant. As we explain below, this complaint fails. First, appellant's objection at trial did not comport with his issue now on appeal. We will not overturn a trial court's decision to admit or exclude testimony except for a clear abuse of discretion. See Fairow v. State, 943 S.W.2d 895, 901 (Tex.Crim. App. 1997). To provide evidence of a clear abuse of discretion and to preserve a complaint for review, appellant must have presented a timely and specific objection. TEX. R. APP. P. 33.1(a). If the objection at trial does not comport with the issue on appeal, appellant has not preserved error. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999). At trial, appellant's counsel objected to the testimony, explaining that it called for the witness to speculate. However, on appeal appellant claims this testimony was inadmissible victim impact testimony. Because the objection at trial does not mirror his issue raised on appeal, this issue is overruled.II. Speculation Objection to the Veracity of the Complainant
Next, we address appellant's argument on appeal that the trial court erred because it allowed an expert to comment on the complainant's veracity. Whether the psychiatrist's testimony crossed the line from permissible testimony that would assist the jury in deciding the case to impermissibly telling the jury he thought the complainant was telling the truth is a close question. See Schutz v. State, 957 S.W.2d 52 (Tex.Crim.App. 1997); Yount v. State, 872 S.W.2d 706 (Tex.Crim.App. 1993). However, as we explain below, here we do not have that issue here because, again, appellant's objection does not comport with the issue now raised on appeal. The testimony and objection are set out below:Q. Dr. Frank, obviously, you cannot tell this Jury whether [the complainant] was sexually abused, can you?
A. No, I can't.
Q. Is the [Post Traumatic Stress Disorder] that you observed in her — in her a consistent symptom that you sometimes see in victims of sexual abuse?
A. Yes, it is.
Q. Dr. Frank, did you ever question [the complainant] about the allegation she was making or about the abuse?
A. No, I did not.
Q. Did you ever refer to it or at least allude to it in your discussions?
A. In the discussion with her, it was alluded to in that the mention of her the second time, that her uncle would — would come and get her again. And asked what she meant and, you know, she referred back to the rape that had happened to her.
Q. And, Doctor, in either of the two evaluations or in anything — any of your conversations or discussions with [the complainant], did you ever observe or hear anything that — that, let's say, no one gave you cause to doubt your diagnosis?
A. No.
Q. And number two, gave you reason to look more skeptically at the allegation of sexual abuse?
MR. BROOKS: Your Honor —
MR. TRENT: It's a poor way of asking the question. Let me rephrase.
THE COURT: Sustained.
MR. TRENT: Let me rephrase.
Q. Doctor, did anything you observed or hear or see in your discussions and treatment of [the complainant] — should say evaluation instead of treatment, give you any reason to believe she had not been sexually abused?
MR. BROOKS: Calls for speculation, Your Honor. I object.
THE COURT: Overruled.
A. Nothing gave me reason to doubt anything.As stated earlier, we will not overturn a trial court's decision to admit or exclude testimony without a clear abuse of discretion. See Fairow, 943 S.W.2d at 901. To show the trial court abused its discretion, the appellant must object. TEX. R. APP. P. 33.1(a); Ibarra, 11 S.W.3d at 197. At trial, appellant's counsel objected that the testimony was speculative. However, on appeal, appellant argues that the doctor improperly commented on the complainant's truthfulness. The two are fundamentally different objections. True, one of the reasons for not allowing a psychiatrist or psychologist to state whether someone is telling the truth may be based in part on a sense that it may be speculation. However, the real reason to exclude this testimony is that it invades the jury's province. Schutz, 957 S.W.2d at 59-74. It is for the jury, not an expert, to decide if a witness is telling the truth. The expert's responsibility is to assist the jury in reaching that decision, not to tell the jury what its decision should be. See TEX. R. CRIM. EVID. 702. For these reasons, a simple speculation objection did not inform the court of the complaint made on appeal, and it did not give the trial court an opportunity to consider the issue appellant now brings on appeal. See Kipp v. State, 876 S.W.2d 330, 336 (Tex.Crim. App. 1994) (stating appellant's point of error regarding an improper opinion on the credibility of complainant is different from the speculation objection made at trial). Because appellant's objection does not comport with his point of error, appellant has not preserved this issue for appeal. See Penry v. State, 903 S.W.2d 715, 763 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 977 (1995). We overrule appellant's second issue.