Teczar v. State

Full title: THOMAS H. TECZAR, Appellant v. STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eleventh District, Eastland

Date published: Oct 16, 2008

No. 11-07-00075-CR (Tex. App. Oct. 16, 2008)

Opinion

No. 11-07-00075-CR

Opinion filed October 16, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(B).

On Appeal from the 91st District Court, Eastland County, Texas, Trial Court Cause Nos. CR-20006, CR-20007, CR-20008, CR-20009.

Panel consists of: McCALL, J., STRANGE, J., and BOYD, S.J.³

3 John T. Boyd, Retired Chief Justice, Court of Appeals, 7th District of Texas at Amarillo sitting by assignment.

MEMORANDUM OPINION

JOHN T. BOYD, SENIOR JUSTICE.

After a bench trial, Thomas H. Teczar was convicted of three aggravated sexual assault of a child offenses and one indecency with a child offense. In each of the aggravated sexual assault cases, his punishment was assessed at confinement for twenty-five years. In the indecency with a child offense, his punishment was assessed at confinement for fifteen years. These cases have been consolidated for our consideration on appeal. In contending that those convictions must be reversed, appellant presents five issues for our disposition. He argues: (1) that he was denied his Fourteenth Amendment due process rights because one of the prosecuting attorneys had represented the complaining witness in a suit for damages against appellant and the Catholic Diocese of Fort Worth; (2) that the trial court erred in admitting the testimony of David Lewcon as an expert in the psychology and behavior of those who commit child sexual abuse and their victims; (3) that the trial court erred in admitting testimony that appellant had committed uncharged acts of sexual abuse against David Lewcon when Lewcon was a child; (4) that the trial court erred in admitting testimony by David Lewcon that appellant had committed numerous acts of child sexual abuse against others over a period of several decades; and (5) that the trial court erred in admitting into evidence records of the Catholic Diocese of Fort Worth containing memoranda, correspondence, press documents, and other materials related to allegations that appellant had committed numerous uncharged acts of child sexual abuse. We reverse the judgment of the trial court and remand for a new trial. The nature of the questions raised in this appeal requires a fairly detailed resume of pertinent portions of the trial testimony. From the late 1980s until early 1993, appellant was a priest at Saint Rita's Catholic Church in Ranger, Texas, which was part of the Catholic Diocese of Fort Worth. He lived in the rectory adjacent to the church building. The complaining witness in this matter was Billy Ray Swiney. In 1990, when Swiney was eleven years old, he moved with his mother and sister into a house across the street from the church. One day soon after his arrival, Swiney saw appellant waving at him from across the street, and he went across the street to say hello. He then invited appellant to come over to his house and meet his mother and sister. He averred that, during the following months, he and appellant became closer. He liked appellant because A[h]e let me drink alcohol, smoke cigarettes, stuff like that." Appellant also gave him advice and explained to him "how to be a man and how to just do things that normally I wouldn't do." Appellant also let Swiney drive his Mercedes automobile. It was during that same period of time that Swiney met Daniel Hawley, a young man who worked at the convenience store managed by Swiney's mother. Hawley took him fishing, boating, shooting guns in the country, and "do[ing] all kinds of stuff." At that time, Hawley was in his "[m]id-twenties, somewhere in there." Swiney's mother allowed him to spend nights at Hawley's house where they would watch pornographic movies, drink alcohol, and smoke cigarettes and marihuana. Eventually, during Swiney's third sleepover at Hawley's house, while they were watching pornographic movies and with the comment that "that's what men do," Hawley began masturbating and touched and stroked Swiney's penis. Later, sometime in July of 1990, Hawley inserted his penis into Swiney's anus. Swiney continued to visit and spend nights with Hawley. About a week or two later, they picked appellant up and took him to Hawley's house. At that time, Swiney averred, Hawley fellated appellant and asked Swiney to masturbate in their presence, which he did. Later the same month, appellant took Swiney and Hawley flying in a small, single-engine plane. While they were doing so, Swiney again witnessed Hawley perform fellatio on appellant. They then returned to Hawley's house where Hawley anally penetrated appellant, and appellant helped Swiney to masturbate. Two weeks later, Swiney returned to Hawley's house where he, Hawley, and appellant smoked marihuana and drank alcohol provided by appellant and, after which, appellant attempted to anally penetrate Swiney until he was told to stop because it was too painful. Swiney never permitted appellant to attempt anal intercourse again, but he continued to go over to Hawley's house and did allow appellant on several occasions to perform fellatio on him. Swiney said he attempted to perform fellatio on appellant but gagged and could not continue although he did anally penetrate appellant one time. Swiney also said that appellant warned him not to mention their activities because "people didn't understand, that he could have me taken away from my mother, put in a bad place, have my mother embarrassed and fired from her job, and that he has put away children before." Swiney identified a number of other boys and young men who had visited Hawley's house during that time and who had joined him, Hawley, and appellant boating on Lake Leon. He also described photographs taken by appellant of himself and other boys when they were naked and sexually aroused. Later, Hawley became the subject of a criminal investigation that resulted in his conviction for sexually molesting young teenage boys, including Swiney. Swiney cooperated in the investigation and gave a statement describing Hawley's criminal activities, but he did not mention appellant. When queried as to why he did not refer to appellant, his reply was:

They never asked me, and all I could hear was my mother crying, and I wanted to leave as soon as possible. And I was worried about what Teczar told me, about putting me away or taking me away from my mother, so I just wanted to leave as soon as possible.

Swiney said that, after he left the police station, his mother had a nervous breakdown. Subsequent to the time of the investigation, he never saw appellant again and never discussed with anyone what appellant had done to him until some ten years later when he received a telephone call from David Lewcon who asked him if he knew appellant and if appellant had sexually abused him. Lewcon told him that appellant had abused him when he was younger. Swiney averred that this surprised him as he had thought that he had been the only one abused by appellant. Because of this, Swiney decided to sue appellant and was referred to an attorney by Lewcon. As it becomes necessary, additional portions of Lewcon's testimony will be referred to in our discussion of appellant's second, third, and fourth issues on appeal. Reiterated, appellant's first issue is that he was denied due process of law because of the appointment of a special prosecutor who had a personal financial interest in the outcome of this case because she was representing the complaining witness in a civil lawsuit against appellant and the Catholic Diocese of Fort Worth. A special prosecutor is an attorney who, with the consent of the district attorney, assists that district attorney in the investigation and prosecution of a particular case. However, the district attorney remains responsible for the prosecution, control, and management of the case. The special prosecutor need not be appointed by the trial court and is not required to take the constitutional oath of office in instances, such as this one, in which she acts with the permission of the district attorney. Stephens v. State, 978 S.W.2d 728, 731 (Tex.App.-Austin 1998, pet. ref'd). Here, the record shows that the civil suit in question was settled in early April 2005, nearly two years before the commencement of this trial on March 6, 2007, and there is nothing else in the record that shows she had any financial interest in the outcome of this criminal prosecution. Additionally, other than her presence at the counsel table, the record does not show that she participated in the direct or cross-examination of any witness or the introduction or exclusion of any other evidence or that she participated in any conferences with the trial court. Under these circumstances, we do not find that her participation violated any principle of due process and, thus, presents no reversible error. Accordingly, appellant's first issue on appeal must be and is, hereby, overruled. Because of their close relationship, we will consider appellant's next three issues together. In his second issue, appellant challenges the admission of the testimony of Lewcon as an expert on the psychology and behavior of those who commit child sexual abuse and their victims. A trial court's decision relating to the admission or exclusion of evidence is evaluated on appeal for an abuse of discretion. Williams v. State, 535 S.W.2d 637, 639-40 (Tex.Crim.App. 1976). That means that the trial court's ruling will be upheld if it is within "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App. 2001). In the seminal case of Vela v. State, 209 S.W.3d 128 (Tex.Crim.App. 2006), a unanimous court had occasion to give a detailed explanation of the conditions regarding the admissibility of expert testimony in a criminal case. Because of that somewhat unusual unanimity, we will refer to that case and its guidance in some detail. In the course of its explication, the court noted that, in determining admissibility, a trial court must make three separate inquiries before admitting such testimony. Those inquiries are (1) whether the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) whether the subject matter of the testimony is an appropriate one for expert testimony; and (3) whether admitting the expert testimony will actually assist the factfinder in deciding the case. Vela, 209 S.W.3d at 131. The court referred to those inquiries as (1) qualification, (2) reliability, and (3) relevance. Id. In determining whether a trial court abused its discretion in evaluating a witness's qualifications as an expert, the high court instructed three determinations to be made, namely: (1) whether the field of expertise is complex, (2) how conclusive is the expert's opinion, and (3) how central is the area of expertise to the resolution of the case. Id. In its ongoing discussion, the Vela court referenced the requirement of TEX. R. EVID. 705(c) in regard to the reliability of expert testimony and its requirement that, if "the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, ¹ the opinion is inadmissible." Id. at 133. The Vela court then referenced its explanation in the Kelly case² in regard to scientific evidence that, before such evidence is admissible, it must meet three criteria to be sufficiently reliable, namely: (1) the underlying scientific theory must be valid, (2) the technique applying the theory must be valid, and (3) the technique must have been properly applied on the occasion in question. Id. at 133. However, the court went on to recognize and explain that, in some cases, the reliability of scientific knowledge might not be in issue and that, in those cases, "the relevant reliability concerns may focus upon personal knowledge or experience." Id. at 134. In such cases, the proponent must establish some foundation for the reliability of an expert's opinion. Id. In explicating this caution, the court noted that "[e]xperience alone may provide a sufficient basis for an expert's testimony in some cases, but it cannot do so in every case." Id. In a case such as this one that involves the reliability of "soft" science evidence, the requisite reliability may be established by showing (1) the field of expertise is a legitimate one, (2) the subject matter of the expert's testimony is within the scope of that field, and (3) the expert's testimony relies upon or utilizes the principles involved in that field. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). To the extent that Lewcon's testimony attempted to profile the psychology and behavior of child sexual abusers and their victims, it was presented as the testimony of an expert, and its admissibility is governed by the rules pertaining to the admission of such "soft" science evidence. Parenthetically, the Vela court cautioned that, to qualify a witness as an expert by practical experience alone, the trial court must "fully explore that witness's experience in the particular field in which the witness intends to give an expert opinion." Vela, 209 S.W.3d at 135. In support of his expertise, Lewcon averred that he was a member and cofounder of the New England Chapter of the Survivors Network of those Abused by Priests (SNAP). He also was a founder and member of a small nonprofit organization called Advocates for Change. It is an organization that raises funds for efforts to assist clergy abuse victims or efforts in organizing seminars. At one time, he was listed on the SNAP website as a victim advocate and was available to consult with other victims of sexual abuse by priests. In that role, he consulted with more than 500 such victims. Lewcon also testified that he was a coactive coach, which he defined as someone who has acquired some skills through seminars to be able to be more effective in identifying with clergy abuse victims. Moreover, he had operated a suicide hotline and had consulted with "between 50 to 100" on that line. Lewcon had additionally been a victim of clergy abuse. He had also taken seminar courses through a company by the name of Coaching Training Institute that offered courses in "how to be more effective on the subject of coaching." He spent five weekends in taking those seminars, which cost him a total of $4,000. He studied "mostly liberal arts courses" in college and had studied only the "first level" of psychology, which, he said, was lower than Psychology 301. He had never received or applied for any kind of license as an expert on clerical abuse of children. In considering the reliability and sufficiency of Lewcon's qualifications, we also must bear in mind the Vela court's reminder that, as a component of the qualification prerequisite, "the expert's background must be tailored to the specific area of expertise in which the expert desires to testify." Id. at 133. Lewcon testified in some detail about the psychology of child sexual abuse, including the methods and practices of those who commit such abuse, the consequential psychological consequences for the victims, and the reasons why victims such as Swiney might be reluctant to make outcry about such abuse especially from an authority figure such as a priest. That reluctance was especially strong, he said, to testify against a priest because A[t]here is a tremendous amount of respect for this position, whether one is Catholic or not." We can only conclude that Lewcon's testimony on the general behavior of sexual predators or their victims amounted to a generalization from his own personal experience and the personal experiences of an undisclosed number of other persons who claimed to be victims of sexual abuse. He had a lack of actual institutional instruction in that field, other than the five weekend seminars. Under this record, we can also conclude that Lewcon lacked the qualifications to testify as an expert and that his testimony was not supported by evidence of any scientific theory, soft or otherwise. Accordingly, the admission of his testimony as that of an expert was error. Appellant's second issue is sustained. In his third issue, appellant postulates that the admission of Lewcon's testimony that appellant had committed uncharged acts of sexual abuse against him when he was a child, which were similar to the acts of sexual abuse about which Swiney testified appellant committed on him, was error. That challenge again requires us to discuss Lewcon's testimony in some detail. Lewcon averred that, as he was growing up, he had few friends. He met appellant at Saint Mary's Catholic Church in Massachusetts. He said appellant was aware that he had an interest in the Catholic priesthood. Appellant took him on trips, including one to appellant's family estate in Cape Cod. They developed a growing friendship because appellant would give Lewcon alcohol and because they would sit around, talk, and listen to music. Appellant would use biblical verses to show Lewcon that he should be a more loving person. After this had continued for a period, appellant talked the witness into giving him a back rub. Later, while the two were in the church rectory, appellant "insisted to give [Lewcon] a back rub." As he did so, appellant eventually disrobed Lewcon and started "masturbating" him. Lewcon averred similar occurrences happened about four times in the Massachusetts church rectory. Later, Lewcon went to the Cape Cod residence where appellant supplied him and some other young men with alcohol and marihuana. As the group moved out to the front porch, some remark was made about a gun. The remark frightened Lewcon, and he went back inside. Appellant followed him into the residence and invited him to appellant's Worcester, Massachusetts, house. Upon their arrival there, Lewcon said that he went to bed. He was awakened in the morning with appellant performing oral sex on him and masturbating him. Lewcon, who was fifty-two at the time of his testimony, was sixteen at the time and said he tried to stop appellant. During the period of their acquaintance, Lewcon had a telephone conversation with appellant during which appellant told him that he was masturbating as he was talking to Lewcon. The witness also said that appellant would tell him of sometimes not wearing anything under his robe because it "felt good to wear nothing." Lewcon averred that he did not realize that he had suffered sexual abuse until mid-1993 when he saw a television news report about clergy abuse. He then later realized he had been a victim of clergy abuse, and it had Aa real shocking effect." Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401; Corley v. State, 987 S.W.2d 615, 618 (Tex.App.-Austin 1999, no pet.). In criminal cases such as this one, evidence of extraneous offenses is not admissible to prove the character of a person in order to show action or conformity therewith. TEX. R. EVID. 404(b). However, it may be admissible for other purposes, such as proof of some element of the charged offense, most commonly identity, intent, motive, opportunity or knowledge. Id.; Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App. 1991). It is the State's argument that Lewcon's testimony was necessary to prove appellant's identity in the case. This is so, it contends, because of the conflict between testimony by the victim that appellant had taken him on a ride in a small Taylorcraft airplane during which some sexual acts were committed and that of appellant's brother in which he denied that appellant had ever taken flying lessons or flown as a pilot. The State also references statements during appellant's closing argument claiming that the victim must have been mistaken in his identity of appellant in this regard because there was evidence that a priest other than appellant owned a Taylorcraft and that perhaps the victim had "confused his version of events" that took place in the plane. The State also points to Lewcon's testimony as referring to similarities in the techniques used by appellant in seducing him and the victim here. Those similarities included that appellant went out of his way to make Lewcon "feel real special," that appellant wanted to help Lewcon feel more loving, that appellant needed to express his love physically, that appellant introduced him to the use of marihuana and would give him alcohol, and that appellant used Bible verses to talk to the witness about love. All of these are techniques that Swiney had testified were used by appellant on him. Thus, the State argues that such detailed testimony was not elicited to show conformity but was, rather, introduced to prove that it was appellant who committed the charged abuse of this victim. Rule 404(b) provides that evidence about other crimes, wrongs, or acts is not admissible unless it makes more or less probable some element of the charged offense, most commonly identity or intent, or some evidentiary fact. See also Montgomery, 810 S.W.2d at 387-88. Thus, the admissibility of Lewcon's rather detailed testimony must be assessed in light of the trial as a whole. In particular, appellant's identity was not really a disputed issue in the case. The defense did not claim, nor does the evidence suggest, that Swiney was not acquainted with appellant prior to the time of the alleged offenses or that they were committed under circumstances that made it difficult or impossible for him to identify the person abusing him. Of course, had that been the case, arguably, proof of appellant's extraneous seductions would have been admissible to establish identity. Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996); Ransom v. State, 503 S.W.2d 810, 812 (Tex.Crim.App. 1974). That, however, was not the case here. Additionally, the defense did not claim, nor does the evidence suggest, that appellant might have committed the acts with which he was charged, accidentally or without the intent to arouse or gratify someone's sexual desire. See Clark v. State, 726 S.W.2d 120, 124 (Tex.Crim.App. 1987). That being so, there is nothing in the evidence from which it could be inferred that, if the alleged crimes were committed, they were committed without the culpable mental state required by law. Thus, the mental culpability required for conviction was inferrable with high confidence from the conduct itself. See Morgan v. State, 692 S.W.2d 877, 881 (Tex.Crim.App. 1985). Because Swiney's testimony was the only evidence that established the elements of the alleged crime, Lewcon's testimony describing the extraneous misconduct by appellant could only have been admissible against appellant if it was necessary to overcome the implication that Swiney was lying or mistaken in his testimony. Thus, Swiney's credibility literally determined the outcome of the trial. In such instances, because the credibility of a witness to a large degree is determinable by the factfinder from an observation of his demeanor while testifying, the parties are entitled to offer evidence that impeaches the credibility of a witness, and the trier of fact may take such evidence into account in making a determination as to the veracity of the witness's testimony. State v. Ross, 32 S.W.3d 853, 857 (Tex.Crim.App. 2000); Koehler v. State, 679 S.W.2d 6, 9-10 (Tex.Crim.App. 1984). Even so, in the absence of such impeaching evidence, the witness's credibility may not ordinarily be bolstered with otherwise irrelevant testimony that only serves to support or reinforce the veracity of the witness. Rousseau v. State, 855 S.W.2d 666, 681 (Tex.Crim.App. 1993). Here, Swiney's testimony was not impeached. The only evidence that would perhaps undermine the credibility of his testimony was the evidence that appellant cannot fly an airplane and that Swiney may not correctly have described the appearance at the time of the abuse of appellant's penis when compared with its present appearance. The description of appellant's penis had little probative value because of the undisputed length of time since Swiney had had an opportunity to observe it. Whether or not appellant could fly an airplane is not a credibility dispute that can be resolved by evidence that appellant sexually abused other children unless that abuse occurred while appellant was flying a plane, which is not Lewcon's testimony. In addition, the abuses committed upon Lewcon occurred some twenty years prior to the time the offenses were allegedly committed upon Swiney. Under this record, those offenses were too remote to have probative value here. See Corley, 987 S.W.2d at 620-21. Lewcon's testimony about the extraneous offenses committed by appellant was not necessary to prove his identity or intent nor did it logically rehabilitate an impeached witness. We can only conclude, therefore, that such testimony would only show that it was consistent with appellant's character to abuse children, that he was thus a criminal, and that he must be guilty of the offenses charged against him. That is an impermissible purpose. TEX. R. EVID. 404(a); Robles v. State, 85 S.W.3d 211, 213 (Tex.Crim.App. 2002). Appellant's third issue is sustained. In his fourth issue, appellant argues that the admission of Lewcon's testimony about uncharged acts of sexual abuse against others over the course of several decades was error. TEX. R. EVID. 602 provides that A[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." That evidence may come from a variety of possible sources in addition to that of the witness himself. But, unless the witness is testifying as an expert or giving a lay opinion based on his own perceptions, he may not report anything but his own personal observations and experiences. Bigby v. State, 892 S.W.2d 864, 889 (Tex.Crim.App. 1994). Lewcon testified that appellant had also sexually abused as many as nine other children in both Massachusetts and Texas although there was no showing that he had personal knowledge of these occasions. For the reasons we have previously expressed, Lewcon was not entitled to the expert witness exemption from the personal knowledge requirement provided in Rule 602 nor was there any other showing that those references were admissible. Therefore, they only served to show that appellant was a child molester generally. As we noted in our discussion of the preceding issue, that is an impermissible purpose. Rule 404(a). Appellant's fourth issue is sustained. Our sustention of appellant's second, third, and fourth issues necessitates that we determine if those errors require a reversal and remand for retrial. In making that determination, we may no longer presume that, in the case of a bench trial, the trial court will disregard any inadmissible evidence. See Gipson v. State, 844 S.W.2d 738, 740-41 (Tex.Crim.App. 1992). Furthermore, we must bear in mind that a nonconstitutional error that does not affect substantial rights must be disregarded and that a criminal conviction should not be overturned for nonconstitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the factfinder or had but a slight effect. See TEX. R. EVID. 103(a); TEX. R. APP. P. 44.2(b); Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Swiney was the only witness who testified and had, as the victim, personal knowledge of appellant's sexual abuse of him while he was a minor. Much of the other evidence dealt with the circumstances surrounding appellant's activities with Hawley and others that would not have been relevant except as a basis for Lewcon's expert inferences that that behavior was consistent with the behavior of sexual predators in general. As we discussed above, Lewcon was not qualified as an expert to advance those conclusions. Moreover, Lewcon's testimony about appellant's activities with him was not only remote in time, but would only show that appellant was a bad person generally who used his position as a priest to seduce underage adolescents in cases other than the one for which he was on trial and would not aid the factfinder in resolving any issue actually contested in this trial. Lewcon's testimony about the extraneous acts of sexual assault on him and other children was sufficiently extensive, detailed, and vivid as to make an indelible impression on the mind of any trier of fact. Suffice it to say, under this record, we cannot say with any fair degree of assurance that the error did not influence the factfinder or that it had only a slight effect or that the error did not affect appellant's substantial rights. We must, therefore, reverse the judgment of the trial court. See Johnson, 967 S.W.2d at 417. The decision that we have made obviates the necessity for discussion of appellant's fifth issue as it concerns an evidence question that may not reoccur in a new trial. TEX. R. APP. P. 47.1. In sum, for the reasons we have expressed above, the judgment of the trial court is reversed, and the cause is remanded to the trial court for a new trial.

1 TEX. R. EVID. 702, 703.

2 Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992).