Opinion
No. 06-07-00158-CR
Date Submitted: April 7, 2008.
Date Decided: June 10, 2008. DO NOT PUBLISH.
On Appeal from the 159th Judicial District Court, Angelina County, Texas, Trial Court No. CR-26520.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
V.W., eight years of age, did not choose her relatives. She did, however, choose to level accusations at one of her close relatives, Gerald Edwin Williams, Sr. V.W. accused Williams of penetrating her vagina with his finger and of causing his penis to contact her mouth. We affirm Williams' two jury convictions for aggravated sexual assault of a child, because (1) the trial court did not abuse its discretion by excluding the testimony of Deputy Carlton Carrington, (2) the trial judge's error in failing to preside over the offer of proof was harmless, and (3) the evidence is legally and factually sufficient.
(1) The Trial Court Did Not Abuse Its Discretion by Excluding the Testimony of Deputy Carrington
Williams claims that the trial court erred in excluding the testimony of Carrington. Carrington's testimony was intended to challenge the credibility of V.W.'s mother, who testified of V.W.'s outcry concerning the alleged assaults. Williams contends V.W. was influenced by her mother to make the allegations against him. V.W.'s mother denied these contentions. Williams called the mother as a witness and asked her on direct examination, "You haven't sexually acted out in public?" On redirect, Williams asked her, "You haven't sexually acted out in front of anybody else?" The mother answered, "[n]o" to both questions. Williams then called Carrington to the stand. The State objected. After a brief discussion, the trial court ruled that Carrington's testimony was inadmissible. During Williams' offer of proof, Deputy Carrington stated that V.W.'s mother had masturbated in view of others while in jail on charges of public intoxication. We review the admission or exclusion of evidence for an abuse of discretion. Dixon v. State, 940 S.W.2d 192, 197 (Tex.App.-San Antonio 1996, no pet.). We will reverse the trial court's determination only when its decision is "so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). The Texas Rules of Evidence generally favor the admission of all relevant evidence at trial. "All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority." Tex. R. Evid. 402. "Relevant evidence" means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Tex. R. Evid. 401. A party, however, may not ordinarily introduce extrinsic evidence to impeach a witness with specific instances of conduct. Tex. R. Evid. 608(b); Martinez v. State, 17 S.W.3d 677, 688 (Tex.Crim.App. 2000). Because Carrington's testimony wholly concerned specific instances of conduct intended to attack the witness' credibility, the testimony was prohibited by Rule 608(b) of the Texas Rules of Evidence. The trial court did not abuse its discretion in excluding the testimony.(2) The Trial Judge's Error in Failing to Preside Over the Offer of Proof Was Harmless
After the trial court ruled that Carrington's testimony was inadmissible, Williams requested an opportunity to make an offer of proof. The State objected: "Well — but you're the trier of fact. That doesn't make any sense." The trial judge agreed to leave the courtroom. Williams argues the trial judge erred in leaving the courtroom and not presiding over the offer of proof. We agree; but the error was harmless. "[T]he judge's place is on the bench and in full charge of all proceedings at all stages of the trial, none of which should be conducted in his absence." Pennell v. State, 164 Tex. Crim. 401, 299 S.W.2d 699, 700 (1957) (temporary absence during jury selection). It was error for the trial judge not to have presided over the offer of proof. Such an error, however, is reversible only if "injury or prejudice is shown to have resulted therefrom." Bright v. State, 165 Tex. Crim. 291, 306 S.W.2d 899, 900-01 (1957) (temporary absence during preliminary questioning of prospective jurors). As discussed above, the trial court did not abuse its discretion in excluding the testimony of Carrington. Therefore, the error of failing to preside over the offer of proof regarding Carrington's testimony is clearly harmless. See Tex. R. App. P. 44.2(b).(3) The Evidence Is Factually and Legally Sufficient
Williams contends the evidence is legally and factually insufficient. V.W. claimed that Williams made her suck his sexual organ until "globber" came out and that he had inserted four fingers into her vagina. Williams argues the evidence conclusively established he is medically incapable of ejaculation or obtaining an erection. According to Williams, the evidence established the damage to V.W.'s hymen was inconsistent with her testimony. In addition, Williams claims the evidence established reasonable doubt that V.W.'s mother had influenced V.W. to make the allegations. In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In a factual sufficiency review, we review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). V.W. testified that Williams had sucked her "titties" and her "pee-pee." Demonstrating some reluctance, V.W. testified Williams put his fingers inside her "pee-pee." V.W. testified she "had to suck [Williams' sexual organ], like once or twice; and it tasted nasty." When asked if something came out of Williams' "pee-pee" (referring to Williams' sexual organ), V.W. testified "[i]t was something like gooey or slime." V.W. testified the assaults occurred when she was seven and eight years old. The State presented the testimony of Amy Donahoe, a forensic interviewer for the Angelina Alliance for Children, who had interviewed V.W. concerning the molestation. During the interview, V.W. stated Williams had made her suck his "pee-pee" with her mouth. When asked if anything came out of Williams' "pee-pee," V.W. stated "globber came out." V.W. described the color as "white or yellow." V.W. further stated Williams "stuck his whole hand in [her vagina] except his thumb." V.W.'s allegations were consistent with her prior allegations to Donna Tubb, an investigator for Child Protective Services. Stacy Hamilton, a sexual assault examining nurse, testified she examined V.W.'s hymen and discovered notching at three, five, seven, and nine o'clock. Hamilton testified the notching indicated there had been "some kind of trauma or entry into her vaginal opening." Hamilton testified V.W. made allegations during the examination that Williams penetrated her vagina with his tongue and fingers. V.W. also alleged Williams put his "pee-pee" in her mouth and forced her to suck until "globber" came out. To prove aggravated sexual assault of a child as alleged by Count I of the indictment, the State was required to show Williams intentionally and knowingly penetrated the female sexual organ of V.W., a child under fourteen, with his finger. To establish guilt under Count II of the indictment, the State was required to show Williams intentionally and knowingly caused the mouth of V.W., a child under fourteen, to contact his sexual organ. Viewed in a light most favorable to the prosecution, a rational fact-finder could have concluded beyond a reasonable doubt that Williams was guilty. The evidence was legally sufficient. In conducting a factual sufficiency review, we must consider the evidence that, according to the appellant, most tends to undermine confidence in the verdict. Curiel v. State, 243 S.W.3d 10, 16 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). The record contains some such evidence contrary to the verdict. Williams argues he is medically unable to perform the acts described by V.W. and that V.W.'s injuries are inconsistent with her description of the assault. When asked whether his "male apparatus" acts "like it['s] supposed to," Williams replied, "Lord, no." Williams testified its dysfunction was due to diabetes and stated, "If I didn't have to pee, I wouldn't need it." The fact-finder was entitled to reject in whole or in part Williams' testimony. Even if believed, Williams' testimony does not establish he was unable to ejaculate or have some emission of semen. Further, the State was not obligated to prove there was an emission of semen. We cannot say that the contrary evidence is so strong that the jury's verdict is against the great weight and preponderance of the evidence. Hamilton testified that she would have expected more severe injuries if an entire hand had been inserted into V.W.'s vagina. Williams argues Hamilton's testimony establishes that V.W.'s description is false. Williams suggested at trial that the injuries to V.W.'s hymen were caused by V.W. masturbating. Williams claimed the mother encouraged V.W. to learn how to masturbate. The mother denied this. V.W.'s father testified that the mother had masturbated in the same room as V.W., but insisted that V.W. was asleep at the time. The statement relied on by Williams, though, concerned an entire hand, not four fingers as described by V.W. Further, while Hamilton testified that the size of the entry to an immature vagina is small, Hamilton testified the vaginal entry could accommodate multiple fingers. The fact-finder could have concluded Williams penetrated V.W.'s vagina as described by V.W. without inserting his entire hand. Further, the State was not required to prove Williams inserted four fingers. Williams testified he believed that V.W.'s mother influenced her to make the allegations against him. Williams testified that the mother had previously accused V.W.'s father of molesting V.W. While denying she had "used the word `molested,'" the mother admitted that, during the course of her divorce, she had accused V.W.'s father of conduct which "bothered" the mother. The mother admitted to having been diagnosed with manic depression and having previously been hospitalized for a nervous breakdown. The mother admitted she had discussed the allegations of sexual abuse with V.W.'s father in front of V.W. Tammy McDonald, V.W.'s former pre-school teacher, testified that V.W.'s mother had accused V.W.'s father of molesting V.W. The father testified that, during the time he and V.W. lived with Williams, he never knew of any type of abuse. Viewed in a neutral light, the contrary evidence is not strong enough for us to develop the high level of skepticism necessary for the evidence to be factually insufficient. The fact-finder was entitled to believe the testimony of V.W. V.W.'s father testified V.W. was generally truthful and had remained consistent with the allegations for almost two years. As far as the father knew, the only person V.W. has accused of molesting her was Williams. The contrary evidence is not so strong that the fact-finder's verdict is against the great weight of the evidence. "Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur." Roberts, 220 S.W.3d at 524. The evidence is factually sufficient. Because the testimony of Carrington concerned specific instances of conduct being used to attack the mother's credibility, the trial court did not abuse its discretion in excluding the testimony. Since the trial court did not err in excluding the testimony, the error committed by the judge in not presiding over the offer of proof was harmless. Finally, the evidence is legally and factually sufficient. We affirm the judgment of the trial court.Although it is generally impermissible to impeach a witness with specific instances of conduct, impeachment may be permitted if a witness creates a false impression. See Lopez v. State, 928 S.W.2d 528, 531-32 (Tex.Crim.App. 1996); see also Hall v. State, 161 S.W.3d 142, 157 (Tex.App.-Texarkana 2005, pet. ref'd). Williams, though, confines his argument to relevance under Rules 401 and 402. See Tex. R. Evid. 401, 402. Williams does not argue that V.W.'s mother created a false impression with her testimony. As such, the issue of whether a false impression was created is not assigned for our review.
"When evidence is excluded, the right to make an offer of proof or perfect a bill of exceptions is absolute." Hambrick v. State, 11 S.W.3d 241, 243 (Tex.App.-Texarkana 1999, no pet.). An offer of proof can be made either in the form of a concise statement (formerly referred to as an informal bill of exceptions) or in question-and-answer format (also referred to as a formal bill of exceptions). Because Williams requested to make an offer of proof using the formal method, the trial court was "required to direct the making of the offer of proof in question and answer form." Id. at 243 n. 1.
See Fletcher v. 3M, 57 S.W.3d 602, 606 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (offer of proof should be made to trial court); Smith v. Smith, 143 S.W.3d 206, 211 (Tex.App.-Waco 2004, no pet.) ("A secondary purpose [of an offer of proof] is to permit the trial judge to reconsider his ruling in light of the actual evidence"); Goode, Wellborn Sharlot, Guide to the Texas Rules of Evidence § 103.3 (3rd ed. 2002) ("A secondary purpose is to permit the trial court to reconsider his ruling. . . ."); 43A Dix Dawson, Texas Practice: Criminal Practice and Procedure § 42.193a (Supp. 2007) (Rule 103 requires offer of proof, before submission to jury, to allow trial court to "take remedial action if the judge decides, based on the offer, that the evidence should have been admitted.").