Todd Snodgrass v. State

11th Court of Appeals Eastland, Texas Opinion Todd Snodgrass Appellant Vs. No. 11-02-00104-CR B Appeal from Collin County State of Texas Appellee The jury convicted Todd Snodgrass of the aggravated sexual assault of a child.[1] The trial court assessed his punishment at confinement for 40 years. We affirm. The Indictment The indictment charged that, on or about October 9, 2000, appellant intentionally caused the penetration (by appellant’s tongue and finger) of the female sexual organ of A.H., a child younger than 14 years of age and not his spouse. The indictment also charged that appellant intentionally caused the penetration (by appellant’s male sexual organ) of the child’s mouth. Points of Error Appellant presents four points of error. First, he argues that the trial court erred in allowing a therapist to “testify as to the credibility” of the child (Point of Error No. 1) and in “failing to make a determination” that the child was competent to testify (Point of Error No. 2). Appellant claims in Point of Error No. 3 that he was denied his “sixth amendment right to effective assistance of counsel.” Finally, he argues in Point of Error No. 4 that the evidence was “factually insufficient” to support his conviction. The Therapist’s Testimony Shirley Diane Robbins testified that she was a therapist, that she had a master’s degree in counseling and a doctorate in psychology, that she had a specialty with children and adolescents, and that A.H. was brought to her for therapy when the child was 11 years old. Dr. Robbins was told that A.H. had some learning disabilities, that she was in special education classes, and that the family was having some problems with her. Dr. Robbins said that those problems were not unusual and that they were “pretty characteristic” of children who have been abused or who have experienced some disruption in parental care. Dr. Robbins said that A.H. told her that she had not reported the abuse to her mother because she was afraid that her mother would not believe her because she had “told so many lies in the past.” Dr. Robbins said that she had A.H. work with a children’s activity book that helps children “unfold their story as they go through the book,” that she could tell that A.H. was uncomfortable, that A.H.’s demeanor changed as they started working with the book, that A.H. became more subdued, that A.H.’s face would get very red, that A.H. would put her head down, that her teeth would be clinched, and that tears would come to her eyes. Dr. Robbins said that A.H. said that appellant would “touch her in places that he shouldn’t be touching her” and that appellant would have her “rub his penis and put his penis in her mouth.” A.H. also talked about the “yucky white stuff” that came out. Dr. Robbins said that A.H. “talked about some details that most children her age wouldn’t normally have been exposed to” and that she was having nightmares. Dr. Robbins said that A.H. had posttraumatic stress syndrome. Other portions of the therapist’s testimony read as shown: Q: Based upon your [weekly visits with A.H. for almost a year], do you think she has the mental capacity to make up something, a story and stick with it for a year and a half and be consistent about that if she didn’t experience something herself? [DEFENSE COUNSEL]: Objection, Your Honor. Again, that is not an issue for this witness....Your Honor, I need to make another objection. This is not for expert testimony. This takes away the province of the jury to make the determination about the - - THE COURT: Do you offer this witness as an expert in this area of testimony? [PROSECUTOR]: I’ve offered her as both [fact witness and expert witness], but yes, she’s an expert. * * * THE COURT: I’m going to allow her to testify as an expert. Your objection is overruled. A: Yes, [A.H.] was given [an intelligence] test at the beginning of this school year and the results of that show that she is in the borderline range of intelligence. And taking that into consideration as well as immaturity, as well as her demeanor and the way she presented herself throughout the sessions, I don’t think that she’s sophisticated enough to have pulled together the number of characteristics that are very much a part of Posttraumatic Stress Syndrome and to be able to be as convincing as she is on each one of them throughout this course of time. (Emphasis added) The testimony from the therapist which came in over appellant’s objection was admissible under TEX.R.EVID. 703 (Bases of Opinion Testimony by Experts). It showed the “facts or data...relied upon” by an expert in making a diagnosis of the posttraumatic stress syndrome.[2] See Osbourn v. State, 92 S.W.3d 531, 536-37 (Tex.Cr.App.2002), where the court said: When a witness who is capable of being qualified as an expert testifies regarding events which he or she personally perceived, the evidence may be admissible as both Rule 701 opinion testimony and Rule 702 expert testimony. A person with specialized knowledge may testify about his or her own observations under Rule 701 and may also testify about the theories, facts and data used in his or her area of expertise under Rule 702. * * * The admissibility of evidence is within the discretion of the trial court and will not be reversed [unless there is] an abuse of discretion. We note that Schutz v. State, 957 S.W.2d 52, 60 (Tex.Cr.App.1997) (Schutz I), discussed the “fine but essential” line between helpful expert testimony and “impermissible comments on credibility.” Other testimony from Dr. Robbins had already been admitted without objection, and much of it is summarized above. Even if the trial court erred in overruling the objection when it was made, the jury had already heard most of the testimony from Dr. Robbins. See Schutz v. State, 63 S.W.3d 442, 444 (Tex.Cr.App.2001)(Schutz II), where the court said: We have held that we will not overturn a criminal conviction for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or influenced the jury only slightly. (Emphasis in original) We have made a “harm analysis” pursuant to TEX.R.APP.P. 44.2(b). From our examination of the entire record, this court “has fair assurance” that the claimed error did not influence the jury or that it influenced the jury only slightly. Point of Error No. 1 is overruled. Competency of Child Appellant argues in his next point of error that the trial court erred in “failing to make a determination that [A.H] was competent to testify.” Appellant claims that the State failed to show that A.H. understood “her burden to tell the truth.” The reporter’s record shows that A.H. was 12 years old at the time of trial; that her birthday was July 28, 1989; that she was reading at the second grade level; and that she was in special education classes for reading, science, and social studies. After A.H. identified appellant as her “step-dad” and said that she and her mom lived with him while they were in Texas, relevant portions of the reporter’s record read as shown: Q: Now, [A.], when we talked yesterday, what did we talk about was the most important thing that we have to do in the courtroom? A: Tell the truth. Q: And when you talk about [appellant], you promise to tell the truth? A: Yes. Q: Now, [A.], did something happen with [appellant] that you weren’t happy about? A: Yes. Q: And what did [appellant] do that made you unhappy? A: He touched me in the wrong places. Q: When you say the “wrong places,” what do you mean by that? A: He touched me in my boobs and in my private spots. Q: When you say your “private spots,” what do you mean by that? A: He touched me where I use the bathroom. Q: [A.], when did this start, how old were you? A: When I was in 2nd grade. Q: When you said he touched your boobs and touched your private where you go to the bathroom, did he touch your front privates or your back privates? A: Both. * * * Q: And what else would happen when you would be there? A: He would make me touch his private spots. * * * Q: Would anything happen when you would move your hand? A: His penis would get very hard. Q: Anything else? A: White stuff would come out. [A.H. testified that she decided to tell someone when appellant told her that he wanted to “put it in” her when she was old enough; shortly after that, she told the school counselor.] Q: When his penis touched your mouth, can you explain a little more how that happened? A: He would make me put my mouth over his penis. * * * Q: His mouth touched your private? A: Yes. Q: Can you explain how that happened? A: He licked my private. * * * Q: [A.], all this stuff that you told us about, did it happen just one time or more than one time? A: More than once. Q: And when this first started happening to you, how come you didn’t tell your mom or someone? A: I was afraid she wouldn’t believe me. Q: Okay. And was the school counselor the first person that you told? A: Yes. (Emphasis added) Point of Error No. 2 is overruled. A.H.’s testimony shows that she knew that “the most important thing” that she had to do in the courtroom was to “tell the truth” and that she promised to tell the truth. A.H.’s testimony also shows that she appeared to “possess sufficient intellect to relate transactions” with respect to which she was interrogated. See TEX.R.EVID. 601(a)(2). Further, there was no timely objection; consequently, the claimed error was not preserved for appellate review. See TEX.R.APP.P. 33.1(a)(1); see and compare Hill v. State, 3 S.W.3d 249, 253 (Tex.App. - Waco 1999, pet’n ref’d). Assistance of Counsel In discussing a defendant’s right to assistance of counsel under U.S. CONST. amend. VI and TEX. CONST. art. I, § 10, the court said in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986), that Texas “will follow in full” the standards which were established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “for determining ineffectiveness of counsel and for ascertaining when such ineffectiveness is prejudicial.” The court quoted Strickland in Hernandez v. State, supra at 55: [T]he proper standard for attorney performance is that of reasonably effective assistance....When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness....A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance....The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. * * * The defendant must [also] show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Emphasis added) See also and compare Tompkins v. State, 869 S.W.2d 637 (Tex.App. - Eastland), pet’n dism’d, 888 S.W.2d 825 (Tex.Cr.App.1994). Appellant has not shown ineffective assistance of counsel, nor has he shown that the results of his trial would probably have been different if his trial counsel had made objections to the testimony of the State’s witnesses concerning the credibility of A.H. or if he had objected to the State’s failure to have a competency hearing before A.H. testified. Point of Error No. 3 is overruled. Sufficiency of the Evidence We have reviewed appellant’s claim that the evidence is “factually” insufficient to support his conviction pursuant to the test discussed in Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002): [W]e look at all of the evidence in a neutral light, and will reverse only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Although a reviewing court has, in a factual sufficiency review, some authority to disregard evidence that supports the verdict, it must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. The reviewing court should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. See also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Cr.App.2001). The jury is the “exclusive judge of the credibility of witnesses,” and the reconciliation of conflicts in the testimony is within the “exclusive province of the jury.” Jones v. State, 944 S.W.2d 642, 647 (Tex.Cr.App.1996), cert. den’d, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). Relevant Testimony We have reviewed all of the evidence; it is neither “so obviously weak” nor “so greatly outweighed” by evidence to the contrary that the jury’s finding of guilt is clearly wrong or manifestly unjust. The testimony by the therapist and the child which has been discussed above is also supported by testimony from the “outcry witness” (the school counselor). As noted in Tear v. State, 74 S.W.3d 555, 560 (Tex.App. - Dallas 2002), cert. den’d, U.S. , 123 S.Ct. 1753, 155 L.Ed.2d 517 (2003), “testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault,” and the “victim’s outcry statement alone can be sufficient to support a conviction for aggravated sexual assault.” Point of Error No. 4 is overruled. This Court’s Ruling The judgment of the trial court is affirmed. BOB DICKENSON SENIOR JUSTICE June 12, 2003 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and Dickenson, S.J.[3] [1]See TEX. PENAL CODE ANN. § 22.021 (Vernon 2003) which defines the offense, a felony of the first degree. [2]See also TEX.R.EVID. 701, 702, 704, & 705. [3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.