Jose Antonio Salazar v. State

Affirmed and Memorandum Opinion filed May 16, 2006 Affirmed and Memorandum Opinion filed May 16, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00613-CR ____________ JOSE ANTONIO SALAZAR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 958,867 M E M O R A N D U M   O P I N I O N Appellant Jose Antonio Salazar was convicted of indecency with a child and sentenced to eighteen years= imprisonment and a $10,000 fine. In two issues, appellant claims the trial court abused its discretion by allowing an expert to testify during the punishment phase of trial (1) about the impact of child sexual abuse on victims generally and (2) that appellant would benefit more from a treatment program offered through prison than one offered through comunity supervision. We affirm. Factual and Procedural Background Appellant is a step-uncle of the victim, S.R. Around May 2, 2003, when S.R. was ten years old, she was watching television by herself at her step-grandparents= house, where she stayed after school while her parents worked.[1] Appellant arrived at the house and began talking to S.R. about school. S.R. told appellant she wanted to try out for cheerleader but did not know how to do a cartwheel. Appellant said he would teach her and began demonstrating cartwheels; between demonstrations, he tickled S.R. and touched her inappropriately twice. The first time, appellant tickled S.R. on the couch and reached under her skirt and inside her underwear, touching her vagina for twenty to thirty seconds. The second time, he tickled her on the floor and put his hand over and outside her underwear for about ten seconds. Appellant=s behavior made S.R. uncomfortable, so she excused herself to the bathroom. Appellant followed her into the bathroom, unzipped his pants, and Aasked if [she] could help him.@ S.R. moved away, and appellant said, APlease.@ S.R. replied, ANo,@ pushed appellant away, and waited outside the house until he left shortly afterward. She then called her mother, Angela, and related what had happened. Angela called the police, who interviewed S.R. About a month later, S.R. was interviewed at the Children=s Assessment Center (AC.A.C.@). Shortly after the offense, appellant scheduled several sessions with a professional counselor, Nancy Morello. During these sessions, he told Morello he was troubled by his sexual thoughts, was Ahypersexual,@ and Ahad touched [S.R.] in inappropriate ways and inappropriate places.@ Around the same time, Lakennia Cole, a Child Protective Services (AC.P.S.@) officer, interviewed appellant to investigate allegations that he sexually abused S.R. Appellant admitted to Cole that he placed his hand on S.R.=s vagina, exposed himself to her in the bathroom, and asked her to help him with his zipper. Cole testified that Aat the time, [appellant] was crying; and he stated that he had some mental illness@ for which he was receiving therapy. The State eventually charged appellant with indecency with a child. During the guilt phase of trial, the State called several witnesses, including Morello, Cole, S.R., and Angela. Appellant also testified and said he Aprobably@ tickled S.R.=s vagina accidentally and that he asked S.R. to A[p]lease help [him] out by letting [him] inside@ the bathroom. He claimed he did not intentionally expose himself to her but said his Azipper might have fallen down a little bit@ from doing cartwheels, possibly exposing his Apubic hair or something else.@ The jury convicted appellant. The State called four witnesses during the punishment phase of trial. The first was Dr. Lawrence Thompson, a clinical psychologist and director of therapy and psychological services at the C.A.C. When Dr. Thompson acknowledged that he had never met appellant or S.R., appellant objected to further testimony Aon the basis of relevance and 403 . . . [because] he has no actual experience with this case.@ The trial court overruled appellant=s objection and granted him a running objection. Dr. Thompson then gave general background information about child sexual abuse victims. He explained that there are no specific symptoms common to such victims, but many are angry, fear being left alone, and experience Adepressive symptomatology, anxious symptomatology, interpersonal difficulties, [and] sexual acting out behaviors.@ Dr. Thompson testified that although treatment may benefit victims, it may not prevent manifestation of symptoms later in life, such as during puberty or after marriage. According to Dr. Thompson, although some victims appear asymptomatic, they may be masking symptoms and Awill have strong feelings about what has happened to them.@ Throughout his testimony, Dr. Thompson did not discuss S.R.=s case specifically. The State also called Angela, who testified that before the offense, S.R. was outgoing, trusting, and frequently smiled, but after the offense, she rarely smiled and was distrustful, impatient, angry, and less affectionate. Angela also described how the incident had disrupted their family. Next, two members of the Rice University Police Department testified about a December 2004 incident in which appellant exposed his penis to a student in a campus library. The student ran away, and appellant re-approached her and apologized, explaining that Ahe had a problem with that.@ The student saw appellant at the same library a couple days later and called the police, who arrested him and ordered him never to return to the Rice campus. Appellant=s mother testified on appellant=s behalf and admitted on cross-examination that he returned to Rice University after his arrest. Analysis A. Victim Impact Evidence In his first issue, appellant complains that the trial court abused its discretion by allowing Dr. Thompson to testify about the impact of child sexual abuse on victims generally. Specifically, he argues that Dr. Thompson=s testimony was irrelevant and unfairly prejudicial because it related to all possible effects of sexual abuse on victims and was not limited to offenses similar in severity to appellant=s. We review a trial court=s decision to admit or exclude expert testimony under an abuse of discretion standard. Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). A ruling within the bounds of reasonable disagreement will not be disturbed on appeal. Id. Article 37.07 of the Texas Code of Criminal Procedure provides that the State and defendant may offer punishment phase evidence as to Aany matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, [and] the circumstances of the offense for which he is being tried.@ Tex. Code Crim. Proc. Ann. art. 37.07 _ 3(a)(1) (Vernon Supp. 2005). The Code does not define Arelevant,@ and the Court of Criminal Appeals has defined relevant punishment evidence as that which helps the jury Atailor the sentence to the particular offense@ and Atailor the sentence to the particular defendant.@ See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (noting that the traditional definition of relevance under Evidence Rule 401 is not a Aperfect fit@ within the punishment context). Victim impact testimony in non-capital felony cases may be admitted if it has some bearing on the defendant=s personal responsibility and moral guilt. See Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002); Boone v. State, 60 S.W.3d 231, 238 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). To be admissible, the testimony must have a Aclose, direct link to the circumstances of the offense.@ See Brooks v. State, 961 S.W.2d 396, 399 (Tex. App.CHouston [1st Dist.] 1997, no pet.). If the defendant should have anticipated the particular effect on the victim or the victim=s family, then the evidence is relevant. Boone, 60 S.W.3d at 238. Victim impact evidence that is relevant may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; Boone, 60 S.W.3d at 239 (noting that A[i]t does appear that victim impact evidence can run afoul of Rule 403@ and noting that the Court of Criminal Appeals has cautioned courts to place appropriate limits on such evidence). Dr. Thompson neither met with S.R. nor addressed the particular facts of this case. Rather, he testified about a range of possible effects of child sexual abuse upon victims generally. Much of his testimony concerned symptoms that S.R. did not exhibit and symptoms that some sexual abuse victims may eventually manifest at later points in their lives. We find this testimony was overly general and not closely linked to appellant=s particular offense, nor was it clear that appellant should have anticipated any or all of this range of possible effects on S.R. See Boone, 60 S.W.3d at 238; Brooks, 961 S.W.2d at 399. Thus, Dr. Thompson=s testimony had little bearing on his personal responsibility and moral guilt and was not relevant in helping the jury tailor his sentence. See Salazar, 90 S.W.3d at 335; see also Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990) (A[O]ne >circumstance of the offense= is degree of injury, even extending into the future, so long as a factfinder may rationally attribute moral culpability to the accused for that injury.@ (emphasis added)). Further, it carried a substantial risk of unfairly prejudicing the jury by suggesting that they speculate about symptoms that S.R. might never exhibit. See Boone, 60 S.W.3d at 239. Under these circumstances, we find the admission of Dr. Thompson=s testimony was erroneous and beyond the bounds of reasonable disagreement. Thus, the trial court abused its discretion by admitting it. Having found error, we must determine whether it warrants reversal. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). A non-constitutional error does not require reversal unless it affects substantial rights by having a substantial and injurious effect or influence in determining the jury=s verdict. Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Substantial rights are not affected if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury or had but a slight effect. Guevara v. State, 152 S.W.3d 45, 53 (Tex. Crim. App. 2004). Given the testimony adduced at trial, we find it unlikely that Dr. Thompson=s testimony could have more than slightly affected the jury=s determination of appellant=s punishment. Dr. Thompson=s testimony about the symptoms experienced by child sexual abuse victims entails just four pages of trial transcript. Aside from this testimony, there was abundant evidence the jury could have considered in assessing appellant=s punishment. S.R. testified about the offense, and Angela described its impact on S.R.=s behavior and on the family. Additionally, Morello and Cole testified that appellant admitted he inappropriately touched S.R. Despite these previous admissions, at trial appellant testified that his touching S.R. and exposing himself to her were accidental. The jury also heard testimony that appellant exposed himself to a Rice University student and returned to campus after being forbidden to do so. Appellant=s repeated exposures of his penis and inconsistent explanations about how he touched and exposed himself to S.R. were relevant to his punishment. See Tex. Code Crim. Proc. Ann. art. 37.07 _ 3(a)(1). Considering this evidence, we find there is at least a fair assurance that Dr. Thompson=s testimony did not influence the jury=s assessment of appellant=s punishment or, if it did, the effect was slight. See Guevara, 152 S.W.3d at 53. Thus, we overrule appellant=s first issue. B. Punishment Recommendation In his second issue, appellant complains that the trial court abused its discretion in allowing Dr. Thompson to recommend imprisonment over probation.[2] Specifically, he argues that expert witnesses are not allowed to recommend a particular punishment. At trial, appellant obtained a running objection to Dr. Thompson=s testimony Aon the basis of relevance and 403.@ However, on appeal, his argument and the cases he cites relate to the prohibition of expert or lay recommendations on punishment, which concern Evidence Rules 701 and 702. See Tex. R. Evid. 701, 702; Sattiewhite v. State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989) (upholding exclusion of opinion testimony of expert as to which punishment was appropriate under Rule 702); Mayo v. State, 861 S.W.2d 953, 955 n.2 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (excluding such testimony from lay witnesses under Rule 701). Because these evidentiary theories differ from appellant=s trial objection, he presents nothing for appellate review. See Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993) (AWhen the complaint on appeal differs from that made at trial, the error is waived.@); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (AAn objection stating one legal basis may not be used to support a different legal theory on appeal.@). Moreover, even if appellant had preserved error on this issue, his argument would fail. Dr. Thompson described the various treatment programs available through prison and community supervision. Such testimony is not impermissible. See Meador v. State, No. 01-02-00505-CR, 2003 WL 21026915, at *5 (Tex. App.CHouston [1st Dist.] May 8, 2003, pet. ref=d) (not designated for publication) (upholding admission of expert testimony describing various treatment options available to sex offenders during incarceration and probation); Najar v. State, 74 S.W.3d 82, 87 (Tex. App.CWaco 2002, no pet.) (noting that the legislature has Aexpressly made community supervision a relevant issue at the punishment phase in a jury trial,@ thus permitting testimony describing prison classification system and rehabilitative programs). Although Dr. Thompson opined that the TDCJ program was more thorough than outpatient treatment programs, he did not specifically mention appellant or recommend a punishment for him. Thus, we overrule appellant=s second issue. We affirm the trial court=s judgment. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed May 16, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The trial testimony indicates that S.R.=s grandparents and several other family members were outside the house while S.R. watched television. [2] Dr. Thompson discussed sex offender treatment programs available through the Texas Department of Criminal Justice (ATDCJ@) and through community supervision. He opined that the TDCJ program is more Athorough@ than outpatient programs because it offers more frequent therapy, individualized treatment plans, and a therapeutic community. He also noted that the TDCJ program incorporates family members, monitors Afantasy material,@ and provides rehabilitation and management plans upon release.