Nos. 05-07-01302-CR, 05-07-01303-CR
Opinion Filed March 6, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F07-00376-WI; F07-00406-WI.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
Opinion By Justice MOSELEY.
After a consolidated trial, a jury convicted Jon Benedict Hales of sexual assault of a child in two cases. The jury assessed punishment in the first case at ten years' imprisonment, found Hales had never been convicted of a felony and recommended community supervision. In the second case, the jury assessed punishment at two years' imprisonment. The trial court suspended sentence in the first case and placed Hales on community supervision for ten years and sentenced him to two years' imprisonment in the second case. The sentences run concurrently. Hales appeals, arguing in four points of error the trial court erred by allowing the State's expert witness to testify regarding the truthfulness of the complainant, by excluding Hales's expert witness on the accuracy of memory, and that the evidence was legally and factually insufficient to support the convictions. For the reasons explained below, we overrule the points of error and affirm the trial court's judgments.
Background
The complainant, L.K., was Hales's step-daughter. She was twenty-six at the time of trial. L.K.'s parents were divorced and she lived with her mother, but continued to spend time with her biological father. For a time, her biological father was married to a woman named Laura who worked in the defense industry and on confidential government programs. L.K.'s mother met Hales when L.K. was about two years old. Her mother worked with Hales at the same company for several years and they married in 1991 when L.K. was about ten years old. Hales also worked on government programs and had a security clearance. L.K. testified the family enjoyed watching The X-Files television show. L.K. said Hales told her he believed in aliens. During her freshman year in high school, when she was fifteen, Hales began telling L.K. that her former stepmother, Laura, had enrolled her in a secret government program and that a "chip" had been placed inside her. One night, Hales told L.K. the government had contacted him and wanted him to get the chip back because she was getting too old for the program. Hales told her the chip was located in the back of her cervix. He told her to close her eyes and then he put his fingers inside her vagina. After a while, he said his fingers were tired and he was having a hard time getting the chip out. He asked her to put her fingers inside to see if she could get the chip. She did as he requested but could not find anything. She testified the activities occurred several times during her first two years in high school, more frequently in the beginning and gradually tapering off. Sometimes Hales used his fingers to try to retrieve the chip from the closed-eyed L.K. and other times he told her he used a penis-shaped "tool" provided by the government. She described one incident in the bathroom when they were interrupted by a sound on the stairs. She peeked and was surprised to see Hales completely naked and his penis erect. She did not see anything that looked like a strapped-on tool. When she told him what she had seen afterwards, he asked if she had seen the clear straps holding the tool onto him. L.K. remembered the day she was supposed to take the PSAT test at school; Hales told her not to go to school or the government would abduct her. She was afraid and stayed home. Hales called in sick to work and told L.K. to get ready to retrieve the chip. This meant she was to remove her shorts and underwear, lie down and close her eyes. She complied and he got on top of her and put his penis in her vagina, but he told her he was using the penis-shaped tool. Hales also told her repeatedly that she could not tell anyone because the government was watching her and would harm her or her mother if she told anyone. L.K. testified she did not tell anyone about the incidents until much later because she was afraid and because she was naive and did not understand the sexual nature of the events until later when she became sexually active with her future husband. During the time her husband was stationed in Germany, she began seeing a counselor because she was not sleeping and was afraid. She came to realize that Hales's actions were sexual and were causing her emotional problems. She decided to bring charges against him to help resolve the emotional issues and because she was afraid her husband's nieces would be in danger if they visited her mother while Hales was there. Hales testified he never sexually assaulted L.K., and that she made up the events because he filed for divorce from her mother after L.K. married and left home. He first learned of the accusation at a divorce hearing when he was arrested. Hales presented expert testimony of a psychologist who specializes in treating and evaluating sex offenders. The psychologist performed a series of psychological and physical tests on Hales and concluded he has a normal sexual interest, no mental or personality disorders, and no pattern of cognitive distortions frequently present with sex offenders. Hales also presented the expert testimony of a psychiatrist for a California state hospital for sex offenders. The psychiatrist testified generally about the difficulty of proving sexual assault because of the lack of objective corroborating evidence. He also reviewed the notes of L.K.'s treatment in Germany, which diagnosed her with post-traumatic stress disorder and dissociation. He explained that people with symptoms of dissociation are very suggestible and prone to fantasy. Such people are susceptible to hypnotic hallucinations that occur right as they awake from deep sleep. They tend to be convincing because they believe they are describing real events. Discussion
A. Testimony of State's Expert on Truthfulness
In his fourth point of error, Hales argues the trial court erred by allowing the State's expert, Ellen Elliston, to testify as to the truthfulness of L.K. See Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App. 1993) (en banc); Wilson v. State, 90 S.W.3d 391, 392 (Tex.App.-Dallas 2002, no pet.) ("rule 702 does not allow an expert to testify, in the form of an opinion or otherwise, whether the complainant or a class of persons to which the complainant belongs is truthful"). The record indicates the trial court conducted a hearing outside the presence of the jury where Hales questioned Elliston about her qualifications and her proposed testimony. However, Hales did not object to the expert's testimony at the hearing. Before the jury, the prosecutor asked Elliston, based on her training and experience and knowledge of the case, "do you believe [L.K.] to be credible?" Elliston testified that she did and that L.K.'s experience was consistent with that of a victim of child abuse. Hales did not object to this testimony. We conclude Hales has not preserved any complaint about the expert's testimony for review. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1); Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App. 2000). We overrule Hales's fourth point of error. B. Exclusion of Hales's Expert on Memory
In his third point of error, Hales argues the trial court erred by excluding the testimony of his expert, Charles Weaver, regarding memory and its accuracy or inaccuracy. The trial court held a hearing outside the presence of the jury on the qualifications and reliability of the proposed expert testimony. Weaver has a Ph.D. in cognitive psychology and is a professor at Baylor University. He had reviewed the police report, timetables prepared by L.K., a lengthy document written by L.K. in Germany describing her memories, and the indictments. He was prepared to testify about how memory works, various factors that influence memory, and several articles he had read about false memories. For example, he discussed a study using manipulated photographs of a subject's past to depict an event which had not occurred; half of the subjects said they recalled memories of the falsified event. He discussed that people with high dissociative experience scores or people diagnosed with some dissociative disorder were more susceptible to created false memories. He reviewed articles about memory distortion in people reporting abduction by aliens or paranormal beliefs, and related that subjects who tested highest for false memories were those that also tested highest for paranormal beliefs. He also testified about studies performed by others of faulty eyewitness identifications resulting in innocent people being convicted. The State objected to Weaver's testimony on the basis of relevance and that it invaded the province of the jury in determining the credibility of the complainant. The trial court sustained the State's objection. We review rulings on the admission or exclusion of evidence for an abuse of discretion. See McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005) (trial court's decision to admit or exclude evidence reviewed under abuse of discretion standard). Before admitting expert testimony under evidence rule 702, the trial court should determine the expert is qualified, the opinion is reliable, and the evidence is relevant. See Tex. R. Evid. 702; Vela v. State, 209 S.W.3d 128, 131 (Tex.Crim.App. 2006). In reviewing the relevancy of proffered expert testimony, we consider whether the scientific principles will "assist the trier of fact" and are "sufficiently tied" to the facts of the case. Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App. 1996). The question is whether the expert "took into account enough of the pertinent facts to be of assistance to the trier of fact." Id. at 556. We examine whether the expert made an adequate effort to tie the pertinent facts of the case to the scientific principles about which he was to testify. Morales v. State, 32 S.W.3d 862, 866 (Tex.Crim.App. 2000). An expert's opinion must be tailored to the facts of the case in order to be helpful to the jury. See Baldree v. State, 248 S.W.3d 224, 230 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). General statements about a particular topic are not helpful to the jury and the trial court does not abuse its discretion by excluding such testimony. See Morales, 32 S.W.3d at 866. Weaver would have testified in general about memory and how it can be faulty or distorted, but he would not have tied that opinion to a material fact at issue in the case. He never met with L.K. and there is no showing the types of tests used in the studies and articles he described were ever performed on L.K. Some of his testimony would have been about eyewitness identification, an issue not involved in this case. L.K. knew Hales and clearly and repeatedly identified him as the person attempting to retrieve the chip. Moreover, Hales was able to develop similar testimony about persons with dissociation with his other expert witness. Weaver's testimony was "offered purely as educational material for the jury, which is insufficient to demonstrate that the scientific principles `will assist the trier of fact' in this case or are `sufficiently tied' to the pertinent facts of the case." Baldree, 248 S.W.3d at 230 (citing Jordan, 928 S.W.2d at 555-56). We conclude the trial court did not abuse its discretion by excluding Weaver's testimony. We overrule Hales's third issue. C. Legal and Factual Sufficiency
Hales's first and second points of error challenge the legal and factual sufficiency of the evidence to support the convictions. His argument under these points, however, indicates his complaint is that the evidence is insufficient because L.K.'s testimony was "prejudicially bolstered by improperly admitted testimony" of Elliston. We reject these points of error to the extent Hales is arguing we must exclude certain evidence from consideration in performing a sufficiency review. In reviewing the legal or factual sufficiency of the evidence, we review all the evidence presented to the jury, whether properly admitted or not, under the appropriate standard. See Garza v. State, 213 S.W.3d 338, 344 (Tex.Crim.App. 2007) (factual sufficiency); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999) (legal sufficiency). We apply the appropriate standards of review. See Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (legal sufficiency). See also Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007) (factual sufficiency); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006) (factual sufficiency). A person commits sexual assault of a child if he intentionally or knowingly causes the penetration of the anus or sexual organ of the child by any means. Tex. Penal Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2008). For purposes of this section, a child is a person under the age of seventeen and not the actor's spouse. Id. § 22.011(c)(1). The indictments in these cases alleged Hales caused the penetration of L.K.'s female sexual organ by use of his fingers and by his sexual organ or an unknown object. The testimony of a child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). L.K. testified she was about fifteen years of age when the assaults occurred and that she was not married to Hales. As described above, she detailed the incident when Hales used his fingers to attempt to retrieve the chip from inside her, and the incidents where he used his sexual organ or some other object to do so. After considering all of the evidence in the record, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found appellant guilty of the elements of sexual assault of a child beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We overrule Hales's first point of error. Hales argues the evidence is factually insufficient because L.K.'s testimony was not credible and she was angry at Hales for divorcing her mother. He points to the more fantastic events she described, such as an incident when she felt strange hands-like she imagined an alien's hands would feel like-touching her legs and pulling at her shorts. And another incident in the bathroom when she peeked and saw Hales changing from the tall, large man he was into a smaller, skinny man. In a factual sufficiency review, we review all the evidence in a neutral light. Roberts, 220 S.W.3d at 524. Although an appellate court 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. Id.; Watson, 204 S.W.3d at 417; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex.Crim.App. 1997). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Hales's arguments go to L.K.'s credibility, which was extensively tested through the evidence presented in this case. After reviewing all the evidence in a neutral light, we conclude the jury could rationally evaluate all the evidence-including defense counsel's vigorous cross-examination of L.K. and argument regarding the unusual features of her testimony and the timing of the accusations in relation to the divorce-and reach a verdict finding all the elements of the offenses beyond a reasonable doubt. See Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d at 10-11. Evaluating all of the evidence under the factual sufficiency standard, we cannot say that the verdict is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; Cain, 958 S.W.2d at 407, 410. We overrule Hales's second point of error. Conclusion
Having overruled all of Hales's points of error, we affirm the trial court's judgments.