Nos. 05-02-00837-CR, 05-02-00838-CR.
Opinion Issued April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-31944-ST and F00-31945-ST. Affirmed.
Before Justices MORRIS, JAMES, and FITZGERALD.
Opinion By Justice MORRIS
This is an appeal from two convictions for aggravated sexual assault of a child. On appeal, Juan Rivera contends the trial court erred in failing to instruct the jury on the lesser included offense of indecency with a child, in admitting evidence of extraneous offenses, and in admitting certain expert testimony. Rivera further contends his sixty-year sentence is disproportionate under the Texas and United States constitutions and the trial court abused its discretion by failing to grant a mistrial after the State allegedly made an improper suggestion to the jury. Concluding there is no merit in Rivera's arguments, we affirm the trial court's judgments.
Factual Background
In early 2000, Juan Rivera lived in Irving, Texas and worked at a video arcade called Beltline Station. While working at the arcade, Rivera became friends with several young boys including R.C., M.A.H., and T.F. Both R.C. and M.A.H. lived near Rivera. All three boys spent a great deal of time at Rivera's home. R.C. stated they would look at pornography at Rivera's house and Rivera provided them with cigarettes. At the time, all three boys were under 14 years of age. M.A.H. was nine years old. R.C. testified at trial that one time Rivera took him, M.A.H., and T.F. to a concrete "tunnel" by a shopping mall. While in the tunnel, Rivera told R.C. there was "no such thing as gay," and pulled down R.C.'s pants. Rivera then put R.C.'s penis in his mouth. Rivera kept R.C.'s penis in his mouth for five to ten seconds and then stopped. R.C. stated Rivera also performed oral sex on M.A.H. and T.F. and either M.A.H. or T.F. masturbated Rivera. M.A.H. confirmed that Rivera performed oral sex on him in the tunnel and also stated that Rivera put his penis in M.A.H.'s "butt." M.A.H. remembered Rivera performing oral sex on T.F., but he could not remember who else was there. In addition to the sexual acts in the tunnel, R.C. testified Rivera performed oral sex on him at a later date in his home. Both M.A.H. and T.F. were there at the time. R.C. stated he thought he saw Rivera perform oral sex on M.A.H. too, but it might have been T.F. M.A.H. testified that Rivera performed oral sex on him, and on T.F., many times in his home. Although T.F. originally told police officers that Rivera had "sucked his penis," he stated at trial that he never participated in any sexual activity with Rivera. T.F. also denied seeing Rivera perform oral sex on anyone else. T.F. testified he didn't remember what he told the police but that he essentially told the police what he thought they wanted to hear. The State called Cindy Alexander as an expert witness to testify about child sexual abuse and the way children react to such abuse. Alexander was, at the time, the clinical director of the Dallas Children's Advocacy Center supervising the therapy staff. Alexander stated that some children recant their statements about abuse and repress thoughts of it because it is painful. Alexander also testified that it is more difficult for pre-adolescent males to disclose abuse by a man because of issues of masculinity and the fear of being thought to be gay. Rivera presented several witnesses, including T.F.'s mother and sister, who testified that Rivera was a family friend who treated children in a safe and moral way. T.F.'s mother stated Rivera was very helpful to her family and he counseled T.F. when he had problems. She felt that Rivera was like a big brother to T.F. After hearing the evidence, the jury convicted Rivera of sexually assaulting R.C. and T.F. The trial court sentenced Rivera to sixty-years' confinement in the state penitentiary. Rivera brought this appeal asserting six points of error. Discussion
In his first point of error, Rivera contends the trial court erred in refusing to include the lesser included offense of indecency with a child in the court's charge to the jury. The test for determining whether a charge on a lesser included offense must be given is whether (1) proof of the lesser offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim. App. 1993). We note that Rivera's objection to the charge at trial related solely to the offense against T.F. Accordingly, Rivera has waived any objection to the court's failure to include a lesser included offense instruction with respect to R.C. In making his objection to the charge at trial, Rivera argued the evidence included testimony that T.F. masturbated Rivera. Because such masturbation would constitute indecency with a child, Rivera argued he was entitled to submission of the lesser included offense. The trial court disagreed, as do we. Although R.C. testified he saw either T.F. or M.A.H. masturbate Rivera in the tunnel, he did not testify that this was the only sexual activity between T.F. and Rivera that night. R.C. clearly testified that he also saw Rivera perform oral sex on T.F. Accordingly, R.C.'s testimony does not support the conclusion that Rivera is guilty only of indecency with a child. In response to the State's evidence, Rivera points to T.F.'s testimony that nothing sexual occurred between them. Rivera argues that this contradictory testimony might have led the jury to reach a "compromise determination" that Rivera committed only the offense of indecency with a child. Charges on lesser included offenses, however, are not intended to accommodate "compromise determinations." If the defendant presents evidence that he committed no offense at all, the issue then is whether he is guilty of the charged offense or not guilty of any offense. Marles v. State, 919 S.W.2d 669, 673 (Tex.App.-San Antonio 1996, pet. ref'd). A charge on a lesser included offense is not required in such situations. Id. We resolve Rivera's first point of error against him. In his second point of error, Rivera contends the State failed to provide him with sufficient notice of its intent to introduce evidence of extraneous offenses. Pursuant to rule 404(b) of the Texas Rules of Evidence, the State must, upon timely request by the accused in a criminal case, provide reasonable notice in advance of trial of its intent to introduce evidence of other crimes, wrongs, or acts in its case in chief. See Tex. R. Evid. 404(b). Absent a timely request, however, the State has no obligation to provide the defendant with any notice. See Espinosa v. State, 853 S.W.2d 36, 39 (Tex.Crim.App. 1993). In this case, the State produced to Rivera a "Notice of Extraneous Offenses" on January 24, 2002, four days before trial. Rivera complains the notice sent by the State was not "reasonable" under rule 404(b) because it was produced only four days before trial and was not sufficiently specific as to the dates and locations of the offenses. The record does not reflect, however, that Rivera requested a notice of extraneous offenses from the State before the date the State produced it. Because Rivera did not make a rule 404(b) request before the State provided the notice, the notice the State sent voluntarily did not have to meet the requirements of rule 404(b). See id. In other words, the requirements of rule 404(b) were not triggered at the time the State sent its notice of extraneous offenses because Rivera had not made a timely request. If Rivera felt the notice provided by the State was unreasonable, he was required to make a timely request for "reasonable notice" pursuant to the rule. Rivera ultimately filed a request for notice on the first day of trial. A request made on the first day of trial, however, is not timely. See id. In addition to his reasonableness of notice argument, Rivera contends the trial court erred in failing to instruct the jury that it was not allowed to consider evidence of an extraneous offense unless it believed beyond a reasonable doubt the defendant committed the offense. The jury charge in the record clearly includes this instruction. Accordingly, we overrule Rivera's second point of error. In his third point of error, Rivera contends the trial court abused its discretion by allowing M.A.H. to testify about a second event of sexual activity with Rivera after the "tunnel incident." Rivera argues evidence of this extraneous offense with M.A.H. was not admissible because M.A.H. was not a complainant in the case and the offense was not sufficiently similar to the charged offense. Before M.A.H. was called as a witness, however, R.C. testified about the same incident of sexual activity between M.A.H. and Rivera. Rivera raised neither of the above objections when R.C. testified about this event. It is well settled that "inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove." See Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App. 1991). Accordingly, even if M.A.H.'s testimony was inadmissible, any error in admission was harmless due to R.C.'s earlier testimony. We overrule Rivera's third point of error. Rivera's fourth point of error asserts the trial court abused its discretion in admitting the expert testimony of Cindy Alexander. Rivera argues Alexander did not establish her expertise or demonstrate how her testimony was relevant to this case. At trial, Alexander testified she was the clinical director of the Dallas Children's Advocacy Center supervising the therapy staff in the area of child abuse. Alexander has a master's degree in social work and is licensed by the State of Texas as a social worker and advanced clinical practitioner. Alexander stated she had been working with families for over twenty-eight years and had supervised over four thousand cases. Alexander also stated she had testified in many sexual abuse cases. Alexander's testimony in this case concerned the methods sexual offenders use to gain access to children, problems children have with disclosing sexual abuse, and reasons why children sometimes recant their disclosures. Alexander also testified about children's ability to recall the specifics of sexual abuse and the particular problems faced by adolescent boys when disclosing sexual abuse. All of Alexander's statements were based on her personal experience working with families and victims of childhood sexual abuse as well as research on disclosure of sexual assaults. Alexander conceded she had met neither of the complainants in this case, nor had she ever met Rivera. When dealing with the admissibility of nonscientific expert testimony, the questions that must be asked are (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert's testimony is within the scope of that field, and (3) whether the expert's testimony properly relies upon or utilizes the principles involved in the field. See Campos v. State, 977 S.W.2d 458, 463 (Tex.App.-Waco 1998, no pet.). Rivera does not dispute that child sexual abuse therapy is a legitimate field of expertise. Rivera's arguments focus on the fact much of Alexander's testimony fell into the realm of criminology or psychiatry and the State did not show she was qualified to testify as an expert in those areas. The testimony about which Rivera complains concerned the methods used by sexual abuse offenders, the various stages of child sexual abuse, the specific challenges facing pre-adolescent males who are victims of abuse, and how children may perceive abuse. Contrary to Rivera's assertions, these areas of testimony fall within the scope of Alexander's field of expertise. Alexander did not purport to testify about any scientific theories relating to the behavior of perpetrators or their victims. She merely testified about common characteristics and situations she had observed and studied in her lengthy experience as a child abuse therapist. These characteristics and situations were similar to those at issue in this case, and, therefore, her testimony was relevant and helpful to the jury. We conclude the trial court did not abuse its discretion in admitting Alexander's testimony. We overrule Rivera's fourth point of error. In his fifth point of error, Rivera contends the sixty-year sentence imposed on him by the trial court violates the prohibitions against cruel and unusual punishment found in the Texas and United States constitutions. The sixty-year sentence falls within the range of punishment prescribed by the Texas Legislature. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003). Nonetheless, a claim that a sentence is grossly disproportionate may be asserted despite the fact that the punishment assessed is within the range established by the legislature. See Buchanan v. State, 68 S.W.3d 136, 141 (Tex.App.-Texarkana 2001, no pet.). Punishment is grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. See Baldridge v. State, 77 S.W.3d 890, 893 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). After the trial court announced Rivera's sentence, Rivera made no objections. Accordingly, Rivera failed to preserve his disproportionality complaint for appellate review. See Jackson v. State, 989 S.W.2d 842, 844 (Tex.App.-Texarkana 1999, no pet.). Even if he had preserved his complaint, the evidence shows that Rivera won the trust and friendship of two young boys and then sexually assaulted them. Nothing in this case compels the conclusion that the sentence was grossly disproportionate to the crime. We overrule Rivera's fifth point of error. Finally, in his sixth point of error, Rivera contends the trial court erred in failing to grant a mistrial in response to a question posed by the State. During the State's examination of T.F., the prosecutor asked him whether he knew where Rivera had gotten the suit he was wearing. T.F. responded that Rivera had gotten the suit from his friend Richard. The State then asked T.F. if he was with Rivera that morning when Richard had brought Rivera the suit. Defense counsel objected to the question on the grounds that it suggested matters outside the permissible scope of examination. The court sustained the objection and instructed the jury to disregard the testimony. Defense counsel then made a request for a mistrial, which was denied. Rivera argues on appeal that the State's question to T.F. impermissibly suggested that Rivera had been wearing jail clothes before trial and this suggestion was sufficiently harmful to necessitate a mistrial. The asking of an improper question seldom requires a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial is necessary only when the improper question is clearly prejudicial to the defendant and is of such a character as to suggest the impossibility of withdrawing the impression from the minds of the jurors. Id. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Id. When assessing the efficacy of a curative instruction, we look at the persistence of the prosecution in making the erroneous statement or suggestion, the flagrancy of the comment or question, the instruction given, the weight of the evidence, and the severity of the punishment. See Fletcher v. State, 852 S.W.2d 271, 275 (Tex.App.-Dallas 1993, pet. ref'd). Here, once Rivera's objection to the question was sustained, the State did not pursue the area of questioning or raise the topic again. The question itself was directed more toward the continuing relationship between T.F. and Rivera than the specifics of Rivera's clothing. The instruction to disregard given by the trial court was direct and immediate. And finally, although the evidence presented at trial was contradictory, the amount of evidence against Rivera was substantial. Because the jury did not assess punishment in this case, the severity of the punishment is not relevant to our analysis. Based on the foregoing, we conclude the trial court did not abuse its discretion in refusing to grant a mistrial. We resolve Rivera's sixth point of error against him. We affirm the trial court's judgments.