Nos. 05-06-00529-CR, 05-06-00591-CR
Opinion issued July 19, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause Nos. F05-72077-NH F05-72079-NH.
Before Justices MORRIS, WRIGHT, and FITZGERALD.
JOSEPH B. MORRIS, Justice.
In a single trial, a jury convicted Stacy Laron Montgomery of aggravated sexual assault of a child and indecency with a child. In these appeals, appellant challenges the factual sufficiency of the evidence supporting his convictions. He additionally complains the trial court erred in denying his motion for mistrial and in admitting and excluding certain evidence. In his final issue, he complains of the cumulative effect of all the other alleged errors. Concluding appellant's arguments are without merit, we modify the trial court's judgments to reflect that appellant is required to register as a sex offender and affirm the judgments as modified.
Factual Background
The complainant in this case testified that appellant sexually assaulted her on several occasions when she was approximately eight to ten years old. The complainant specifically recounted one occasion where appellant had her lie down on a bed while he held her knees to her chest and forced his penis into her vagina. The complainant said that the encounter had hurt, although appellant had told her that it would not. She claimed she bled after the assault and had to throw her underwear into a dumpster so her mother would not find them because she had not yet started menstruating. She described other occasions where appellant felt her breasts and vagina under her clothing while he put his hand in his pants and moved it around. Other times, he went into the bathroom while the child was showering and put his hand inside her vagina. The complainant testified she did not report the sexual acts to her mother because appellant threatened to "do stuff" to her older sister and she was afraid her mother would be upset with her. Childhood friends of the complainant confirmed that she had told them something upsetting about appellant when they were young. The friends did not tell anyone what the complainant had said because they promised her they would not. The complainant ultimately told her older sister about what appellant had done when the sister asked the complainant why, as a teenager, she now thought of herself as gay. The complainant, sixteen years old at the time of trial, testified she viewed herself as gay because she felt "that if . . . a man, a grown man [would] do something like that to me, what would a little boy do to me. And that's all they really want to do is just stick their stuff in a girl, that's it." When she was younger, the complainant dressed in a way that was traditionally female, but she now prefers to dress like a boy. The police officer who interviewed the complainant after she had disclosed the sexual abuse to her family testified that the complainant became "very upset" as she described what had happened. The officer stated, "[The complainant] was crying, it was very hard. She had to stop. It's not because she was thinking. She was stopping because she was so upset. She demonstrated what had happened. She would cry and then that was basically it." The complainant gave graphic sensory details about the sexual abuse. The complainant's mother also testified about the complainant's outcry concerning the abuse. The mother admitted she had been convicted of welfare fraud, forgery, and forgery of a check. An expert on child abuse therapy testified for the State. She explained that children often delay disclosing sexual abuse. According to the expert, only approximately two to eight percent of child sex abuse allegations are false. In most cases of false allegations, the child has either been coached due to a contested custody case or an adolescent child is angry at his or her caregiver. The expert testified she had never been involved in a case where a child had actually been molested by one person and accused a different person. Appellant testified in his defense. He denied ever having inappropriate sexual contact with the complainant. He admitted he had lived with the complainant's family during the time when the alleged sexual acts had occurred. He was distantly related to the complainant's mother and had a good relationship with the complainant's family up to the time she made the sexual abuse allegation. Appellant claimed he never knew the investigating police officer had tried to contact him on his cell phone because he does not always answer the phone and "hardly" checks his voicemail. He claimed his phone periodically erases accumulated voicemail messages, regardless of whether they have been retrieved. Discussion
In his first two issues, appellant complains the evidence against him is factually insufficient to support his convictions for aggravated sexual assault of a child and indecency with a child. He specifically contends the "State's witnesses are not worthy of credence," the record lacks physical evidence, and the record is "bankrupt of evidence regarding motive." Appellant argues that the record makes clear the complainant had a "powerful overarching" motive to fabricate her allegations against him because of her desire to explain her homosexuality. Under the standard of review for challenging the factual sufficiency of the evidence, we determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt by viewing the evidence in a neutral light. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, "albeit to a very limited degree." See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), pet. for cert. filed, ___U.S.L.W.___ (U.S. March 13, 2007) (No. 06-11318). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. Here, the complainant detailed appellant's sexual improprieties with her in specific, sensory terms. She revealed the abuse to her family years after he had stopped living with them and with nothing to gain from falsely accusing him. Other witnesses confirmed she had admitted appellant was doing something bad to her at a young age. Appellant asserts that the "most telltale clue" that the complainant lied "is found in the logical impossibility of her twin recitations that at the time of the abuse she was not menstruating but that she nonetheless had breasts." Although appellant asserts that this contradiction between the complainant's "physiological account" and her "chronological account" renders her molestation claims a "virtual nullity," he fails to support this alleged medical fact with any scientific evidence in the record, or even with a reference to a medical text. After reviewing all the evidence under the appropriate standard, we conclude it is factually sufficient to support appellant's convictions for aggravated sexual assault of a child and indecency with a child. We resolve appellant's first two issues against him. In his third issue, appellant complains the trial court erred by failing to grant his motion for mistrial when the State elicited evidence from the complainant's mother that the complainant's character for being a truthful person was good. We review a trial court's denial of a mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Ordinarily, a prompt instruction to disregard by the trial court will cure any error associated with an improper question, answer, or argument. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). A mistrial should be granted only when the error is "highly prejudicial and incurable." Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). At appellant's trial, the complainant's mother was permitted by the court to give her personal opinion about the complainant's character for being a truthful person. She stated it was good, then the trial court reversed its previous ruling on the testimony, sustained appellant's objection to the testimony, and instructed the jury to disregard the testimony. The court denied appellant's motion for mistrial. Any error from this testimony occurred only one time, and the jury was specifically instructed to disregard the mother's testimony. Moreover, the testimony did not contribute in any meaningful way to the mother's previous testimony, and we do not perceive that testimony by the complainant's mother vouching for the veracity of her own daughter to be highly prejudicial and incurable. We conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. We resolve his third issue against him. In his fourth issue, appellant complains the trial court erred in permitting expert testimony on the credibility of child complainants. He specifically complains about the child abuse expert testifying that the majority of children do not lie about sexual abuse and that only about two to eight percent of child abuse allegations are false. This testimony was in response to a question by defense counsel during cross-examination. Counsel did not object that the testimony was non-responsive to his question of whether the only situation where the expert had seen a false accusation of child abuse was where the child was in a contested custody situation. The law of invited error estops an appellant from complaining of trial error for an action he induced. See Druery v. State, No. AP-74912, 2007 WL 984548, at *10 (Tex.Crim.App. Apr. 4, 2007). Here, because appellant elicited the child abuse expert's testimony and failed to object on the basis of a non-responsive answer, he is precluded from complaining about the testimony on appeal. See Tennard v. State, 802 S.W.2d 678, 684 (Tex.Crim.App. 1990); Stanberg v. State, 989 S.W.2d 847, 848 (Tex.App.-Texarkana 1999, pet. ref'd). Moreover, appellant's complaint on appeal that the trial court erred by admitting improper expert testimony does not comport with his running relevancy objection at trial. The claimed error is not preserved for our review. See Tex. R. App. P. 33.1(a)(1). We resolve appellant's fourth issue against him. In his fifth issue, appellant complains the trial court erred by denying his request to cross-examine the complainant's sister with evidence of a juvenile adjudication. Essentially, appellant complains he was not permitted to reveal for the jury that the sister was still serving probation for the juvenile offense and therefore had some motive to testify falsely. As the State notes in its brief, the record does not reflect that appellant made any objection to the omission of this evidence. Accordingly, this argument is also not preserved for our review. See id. We resolve appellant's fifth issue against him. In his sixth and seventh issues, appellant complains the trial court erred by admitting into evidence "backdoor hearsay" that the complainant told her sister and a friend about matters involving appellant. We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). If the trial court's decision was within the "bounds of reasonable disagreement," we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). The State elicited testimony from the complainant's sister that she and the complainant had a discussion about why she had distanced herself from men. The complainant told her sister what was "wrong" with her. Appellant objected to the sister's testimony that the conversation involved appellant, but the objection was overruled. The sister did not discuss any of the details of her conversation with the complainant. She stated that the complainant was emotional and upset during the conversation. Afterward, the girls called their mother and stepfather. The State also elicited testimony from one of the complainant's childhood friends. The friend stated that she and the complainant had a conversation about appellant when they were approximately six and eight years old. The court overruled appellant's objection to the question eliciting the fact that the conversation between the girls concerned him. The friend did not discuss the conversation in any further detail. She testified she was "shocked" by what the complainant had told her. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The State contends the complainant's disclosure to her sister was relevant and necessary to explain the complainant's late outcry and to show how the information ultimately came to light in her family. The fact of the complainant's discussion with her sister may well have been admitted into evidence to clarify these matters, rather than to prove an implied statement to the sister that appellant had molested the complainant. Given the relevance of the evidence for other purposes, we cannot conclude the trial court abused its discretion in admitting it. We resolve appellant's sixth issue against him. Next, we address the complainant's discussion with a young friend about appellant. The "shock[ing]" disclosure to the friend, years before she revealed the abuse to her family, was relevant to the State's assertion that she had not recently fabricated the allegation to make an excuse for her homosexuality. In addition, the State elicited testimony from another of the complainant's friends that when the two were in the sixth grade together, the complainant told her that something had happened to her involving the appellant. The friend was shocked but felt she knew what the complainant was going through because she herself had been molested two years earlier. Appellant did not object to this testimony, and it is substantially similar to the evidence of the implied molestation discussion that took place when the complainant was eight years old. Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998). Accordingly, because substantially similar testimony was admitted into evidence without objection, appellant cannot show how he was harmed by the admission of testimony implying an outcry by appellant to her young friend when she was eight. We resolve appellant's seventh issue against him. In his final issue, appellant complains that the "cumulative effect of the foregoing errors warrants a reversal." A number of errors may be harmful in their cumulative effect. Feldman v. State, 71 S.W.3d 738, 757 (Tex.Crim.App. 2002). Nevertheless, after evaluating all of appellant's complaints, we conclude that cumulative error has not been shown here. We resolve appellant's eighth issue against him. We note the trial court judgments in the cases contain recitations that appellant does not have to register as a sex offender for the offenses because the complainant was seventeen years old or older at the time of the offenses. These recitations do not accurately reflect the facts of the cases or the applicable law. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A) (Vernon 2006). We have the power to modify judgments where we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We therefore modify the judgments to reflect that appellant is required to register as a sex offender. As modified, we affirm the trial court's judgments.