      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00628-CR



                                 Kelly James McCarty, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
         NO. 30842, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Kelly James McCarty was indicted for three counts of indecency with a

child by contact. See Tex. Penal Code § 21.11. The charges arose from allegations made by three

children who had been campers at a summer camp where the Appellant had worked as a counselor.

The Appellant’s first trial ended in a mistrial after the jury was unable to reach a verdict. The jury

in the Appellant’s second trial convicted him of the first and third counts of indecency with a child

by contact but acquitted him of the second count. The Appellant was sentenced to five years’

imprisonment for the first count and ten years’ community supervision for the third count. After filing

an untimely appeal that was dismissed for lack of jurisdiction, the Appellant filed an application for

habeas corpus relief to file an out-of-time appeal. See Tex. Code Crim. Proc. art. 11.07. The Court

of Criminal Appeals granted the Appellant leave to file an out-of-time appeal as to Count I but

denied relief as to Count III.
                 The Appellant now appeals his conviction as to Count I, contending the trial court

erred by: (1) admitting evidence of unnoticed extraneous bad acts; (2) admitting the State’s expert

testimony but excluding his expert’s testimony; and (3) submitting an improper jury charge. As the

parties are familiar with the facts and applicable standards of review, we will not recite them here

except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex.

R. App. P. 47.4. We will affirm the trial court’s judgment.


                          ADMISSION OF EXTRANEOUS BAD ACTS

                 In his first point of error, the Appellant contends the trial court erred by admitting

evidence he characterizes as “extraneous bad acts” without the prosecution having provided him

timely notice of their intent to use such evidence in response to his request under Texas Rule of

Evidence 404(b). The first two alleged extraneous acts we address involve the Appellant’s conduct

with two of the minor complainants. First, a camp counselor testified during the State’s case-in-chief

that—sometime before the events giving rise to Count I of the indictment involving camper number

2004-23— he observed camper 2004-23 and the Appellant alone in a cabin sitting on a bed together

and talking.1 The second incident involved another complainant, camper number 2004-25, who

testified during the State’s case-in-chief that the Appellant told him—sometime before the events

giving rise to Count III of the indictment—that he needed to be more comfortable being naked and

that his prior group of campers had initially been afraid to be naked but by the end of the term, they

were having “naked concerts in their bathroom . . . playing penis guitar and banging their butts as


        1
            At trial, the minor complainants were referred to by their camp numbers to protect their
identity.

                                                   2
drums.” The Appellant complains these were unnoticed extraneous bad acts admitted in violation

of Rule of Evidence 404(b). See Tex. R. Evid. 404(b) (evidence of other crimes, wrongs, or acts not

admissible to show character conformity but is admissible for other purposes, provided that upon

timely request by the accused in a criminal case, reasonable notice is given in advance of trial of

intent to introduce such evidence in State’s case-in-chief).

               But in sexual abuse cases involving minors, Article 38.37 of the Texas Code of

Criminal Procedure provides that evidence of crimes, wrongs, or acts committed by the defendant

against a child who is the victim of the alleged offense shall be admitted for its bearing on relevant

matters, including the state of mind and previous relationship between the defendant and child.

Tex. Code Crim. Proc. art. 38.37. Article 38.37 is an evidentiary rule and by its express terms

supercedes in certain sexual abuse cases the application of Texas Rule of Evidence 404(b). See

Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. ref’d). Further, the State is only

required to provide prior notice of their intent to use such evidence if the defendant makes a specific

request for such information pursuant to Tex. Code Crim. Proc. art. 38.37. See id. (request for

notice pursuant to Rule 404(b) does not entitle the defendant to prior notice of the State’s intent to

use evidence admissible under Article 38.37).2 Here, the State argued this evidence was admissible

because it showed a pattern of grooming the complainants for sexual abuse, and the discovery order


       2
          Hitt v. State interprets a prior version of the statute that was in effect when the criminal
proceedings against the Appellant commenced. See Act of June 7, 1995, 74th Leg., R.S., ch. 318,
§ 48, 1995 Tex. Gen. Laws 2734, 2748 (amended 2013) (current version at Tex. Code Crim. Proc.
art. 38.37). The current version of the statute provides that in criminal proceedings commenced
after September 1, 2013, “the state shall give the defendant notice of the state’s intent to introduce
in the case in chief evidence described [by Art. 38.37] no later than the 30th day before the date of
the defendant’s trial.”

                                                  3
identified in the Appellant’s brief failed to request notice under Article 38.37. Accordingly, we

cannot conclude the trial court abused its discretion in overruling the Appellant’s 404(b) objection

and admitting the testimony. See id. (witness’s unnoticed testimony that he had seen defendant and

minor complainant alone on bed together admissible where defendant had requested notice under

Rule 404(b) but had failed to request notice under Art. 38.37).3

               The Appellant further contends the State improperly introduced rebuttal evidence of

an unnoticed extraneous offense during the punishment phase of trial. During sentencing, however,

a defendant is only entitled to pretrial notice of extraneous offenses or bad acts the State intends to

offer in its case-in-chief. See Tex. Code. Crim. Proc. art. 37.07. The State is not required to give

notice of other offenses or bad acts introduced in rebuttal to the defendant’s mitigation evidence.

Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002); Washington v. State, 943 S.W.2d 501, 505

(Tex. App.—Fort Worth 1997, pet. ref’d) (op. on reh’g). In this case, the Appellant’s defensive

theory at sentencing was that he should receive a recommendation for probation because he was a

suitable candidate for community supervision. In rebuttal, the State called a probation officer who

had met with the Appellant prior to trial. The officer testified, based on her conversation with the




       3
           Appellant additionally complains that a witness was permitted to testify—without prior
notice—that he observed the Appellant lying on a bed with a camper who has not made any
allegations of misconduct against the Appellant and is not a complainant in this suit. The witness
testified that there were other people in the cabin at the time he observed this conduct and did not
allege that he observed any misconduct. “To constitute an extraneous offense, the evidence must
show a crime or bad act, and that the defendant was connected to it.” Moreno v. State, 858 S.W.2d
453, 463 (Tex. Crim. App. 1993). Assuming this is evidence of a crime or bad act as contemplated
by Texas Rule of Evidence 404(b), the Appellant has not shown how his defense was injuriously
affected by the State’s failure to provide reasonable notice of this testimony. See Hernandez v. State,
176 S.W.3d 821, 826 (Tex. Crim. App. 2005).

                                                  4
Appellant, that she understood he had been working as a referee for a children’s soccer league since

his arrest. The officer further testified that, at a prior hearing, the Appellant had told the trial court

that the officer had misunderstood him because he was actually working as a referee for a women’s

soccer league. The officer testified that she did not believe she was mistaken that he had initially

said it was a children’s league.4 As the challenged testimony was offered in rebuttal to the Appellant’s

mitigation evidence, we cannot conclude the trial court abused its discretion by admitting the

testimony without notice. See Jaubert, 74 S.W.3d at 4.

                The Appellant also complains that the State improperly impeached him during trial

with an unnoticed extraneous offense during the State’s cross-examination of the Appellant. The

record reflects the trial court ruled during a bench conference that the State would be permitted to

impeach the Appellant on cross-examination with evidence showing he had lied to his bond officer

about residing out of the state. After reviewing the record, however, the State never impeached the

Appellant with this information during open court in front of the jury. Accordingly, there is nothing

to review. For the foregoing reasons, we overrule the Appellant’s first point of error.


        4
          On cross-examination, Appellant expanded the scope of the probation officer’s testimony
by asking whether in her professional experience she had known any offenders on probation for
sexual offenses against children and whether there were specialized probation officers to supervise
such offenders. She answered yes to both questions. On redirect, the State asked the officer questions
related to her experience working with pedophiles on probation, including whether the probation
office could guarantee that an offender would not abuse another child while on probation and
whether it was important for an offender to admit guilt for successful rehabilitation. In his fourth
point, the Appellant complains the trial court erred by allowing the probation officer “to offer expert
testimony about pedophilia.” We disagree. The Appellant first asked the probation officer questions
related to her professional expertise and on redirect the State was entitled to ask questions to explain
the probation officer’s answers given on cross-examination from which erroneous inferences might
be drawn by the jury. See Rogers v. State, 815 S.W.2d 811, 816 (Tex. App.—Amarillo 1991, no
pet.); see also Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006) (probation officer
qualified in punishment phase to give opinion on defendant’s suitability for probation).

                                                    5
                                      EXPERT TESTIMONY

                In his second point of error, the Appellant contends the trial court erred by both

excluding testimony from his expert witness and admitting testimony from the State’s expert

witness. For expert testimony to be admissible under Texas Rule of Evidence 702, the party offering

the scientific expert testimony must demonstrate by clear and convincing evidence that such

testimony “is sufficiently reliable and relevant to help the jury in reaching accurate results.” See

Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). Here, the Appellant does not attack

the reliability of the State’s expert testimony but only its relevance to the issues at trial. Relevance,

rather than reliability, was also the basis for the trial court’s exclusion of the Appellant’s proffered

expert testimony. Accordingly, our analysis focuses on the relevance of the expert testimony at issue.

                We will first address the testimony of the State’s expert witness, Dr. Ferrera,

who testified during the guilt/innocence phase of trial regarding the conduct of child molesters.

Dr. Ferrera testified that child molesters often groom children for sexual contact and described

common practices frequently used by sex offenders to groom children. In response to hypothetical

questions mirroring the facts of this case, Dr. Ferrera then testified that the scenarios depicted were

consistent with the practices he had described and were typical grooming behavior of an experienced

male pedophile. The Appellant contends the trial court erred by admitting Dr. Ferrera’s testimony

because grooming was not a fact issue for the jury and the testimony was not relevant because there

was no evidence that the Appellant was engaged in grooming. We disagree. The Court of Criminal

Appeals has recognized that grooming of children for sexual molestation, as a phenomenon, is a

legitimate subject of expert testimony. Morris v. State, 361 S.W.3d 649, 656 (Tex. Crim. App.



                                                   6
2011). Further, the trial court was within its discretion in finding the evidence was relevant because

Dr. Ferrera sufficiently tied his testimony regarding grooming to the specific facts of the case. See

Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996). Accordingly, we cannot conclude

the trial court abused its discretion by admitting the State’s expert testimony.

               With regard to the Appellant’s expert witness, Mark Steege, the trial court permitted

the expert to rebut Dr. Ferrera’s testimony on grooming. The Appellant, however, also attempted

to proffer testimony from Steege during trial regarding his assessment of the Appellant’s sexual

interests. Outside the presence of the jury, Steege—a psychotherapist—testified that he had conducted

a clinical evaluation of the Appellant and had administered two exams designed to test the sexual

interest of a person, the Abel Assessment for Sexual Interest Test and the Sexual Adjustment

Inventory.5 Based on his clinical evaluation and the exam results, Steege testified outside the

presence of the jury that in his opinion the Appellant was a “normal sexual young man, with normal

ideas about sexuality, with no problems with drugs or alcohol, [and] with no significant interest in

being sexual with someone other than appropriate partners.” The trial court excluded the testimony

on the grounds that it was not helpful to the jury in determining an ultimate fact at issue.

               Based on the record before us, we cannot conclude the trial court abused its discretion

by excluding the testimony. An intent to arouse and gratify the sexual desire of any person is an

element of the offense of indecent conduct with a child. See Tex. Penal Code § 21.11. The Appellant

offered Steege’s expert testimony to show that generally he does not have sexually deviant


       5
          The reliability of the Abel Assessment for Sexual Interest Test and the Sexual Adjustment
Inventory were not challenged by the State at the trial court or on appeal. As we determine the trial
court did not abuse its discretion by excluding the testimony as irrelevant, we express no opinion as
the reliability of the expert’s opinions.

                                                  7
preferences and therefore could not have had the requisite intent to commit the charged offense. The

use of expert testimony, however, must be limited to situations in which the expert’s knowledge and

experience on a relevant issue are beyond that of an average juror. Yount v. State, 872 S.W.2d 706,

711 (Tex. Crim. App. 1993). Here, the trial court was within its discretion in finding that a

determination of whether the Appellant had the intent to sexually gratify himself by touching a

camper’s penis required no special knowledge or experience.6 See In re J.G., No. 03-97-00217-CV,

1998 WL 271053, at *2 (Tex. App.—Austin May 29, 1998, no pet.) (mem. op.) (expert testimony

that appellant was generally not sexually aroused by young girls not relevant in helping jury

determine whether appellant had the requisite intent to be sexually gratified by touchings at issue).

Further, Steege made no “effort to tie the pertinent facts of the case to the scientific principles which

[were] the subject of his testimony.” See Jordan, 928 S.W.2d at 555; see also Williams v. State, 895

S.W.2d 363, 366 (Tex. Crim. App. 1994) (expert testimony that defendant’s psychological profile

was not compatible with profile of type of person who would have committed offense not helpful

when expert failed to connect generic testimony to facts of case). Accordingly, we cannot conclude

the trial court abused its discretion in determining that the Appellant failed to demonstrate by clear

and convincing evidence the relevance of Steege’s excluded testimony. See Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (as long as trial court’s ruling on relevance of evidence

is “at least within the zone of reasonable disagreement, the appellate court will not intercede”).


        6
         With regard to Count I of the indictment, the camper involved testified that the Appellant
had asked him to lay down on his bed and then started “masturbating” the boy’s penis for
approximately five minutes while breathing heavy, despite the boy saying that he wanted to leave.
The boy further testified that after he left the bed, the Appellant told him to not tell the other camp
counselor what had occurred.

                                                   8
                Appellant additionally complains the trial court wrongfully excluded Steege’s

testimony during the punishment phase of trial. Appellant called Steege during the punishment

phase to give his expert opinion on Appellant’s risk of future dangerousness and suitability for

community supervision. During direct examination, Steege testified to the jury that: (1) in the

profession of psychology there are certain characteristics mental health professionals use in

determining the risk associated with a sexual offender; (2) that he had tested the Appellant according

to that criteria using multiple psychological testing methods; and (3) that he did not discover that the

Appellant possessed any characteristics associated with a predatory, or risky, sex offender. The

Appellant contends that the trial court wrongfully excluded Steege’s opinion that the Appellant

presented no risk to the community as long as he was under community supervision. All of the

evidence presented in the Appellant’s bill of exception, however, was presented to the jury. The

fact that Steege was prevented from giving an opinion as to whether this evidence shows that the

Appellant was a suitable candidate for probation does not mean the jury was prevented from

considering and giving effect to this evidence in their determination of sentencing. See Reyes v. State,

84 S.W.3d 633, 639 (Tex. Crim. App. 2002) (no abuse of discretion where trial court permitted

expert to present mitigating evidence but precluded expert from testifying as to his opinion that

such evidence was mitigating). Finding no abuse of discretion, we overrule Appellant’s second

issue on appeal.


                                          JURY CHARGE

                In his third point of error, the Appellant contends the trial court committed reversible

error by submitting a jury charge that erroneously defined the term “sexual contact” in the abstract

                                                   9
portion of the charge. In this case, the Appellant was charged with three counts of indecency with

a child by contact. The penal code defines this offense as engaging in sexual contact with a child

or causing a child to engage in sexual contact with the intent to arouse or gratify the sexual desire

of any person. Tex. Penal Code § 21.11. “Sexual contact” is defined as including “any touching . . . of

the anus, breast, or any part of the genitals of a child” if the act is “committed with intent to arouse

or gratify the sexual desire of any person.” See id. The Appellant’s indictment for Count I, however,

limited the charged offense by specifying that the Appellant had engaged in sexual contact with

Burnet Co. Buck 2004-23 to gratify his own sexual desire. See Crenshaw v. State, 378 S.W.3d 460,

465 (Tex. Crim. 2012) (state is bound by allegations in charging instrument because criminal

defendant is entitled to fair notice of the specific charged offense).

                In the jury charge, the application paragraphs correctly tracked the indictment’s

language verbatim. Specifically, the application paragraphs instructed the jury:


                Now bearing in mind the foregoing instructions, if you believe from the
        evidence beyond a reasonable doubt that the defendant . . . , as alleged in the
        indictment, did then and there, with the intent to arouse and gratify the sexual desire
        of said defendant, intentionally or knowingly engage in sexual contact with Burnet
        Co. Buck 2004-23, by touching the genitals of Burnet Co. Buck 2004-23, a child
        younger than 17 years of age and not the spouse of the defendant, you will find the
        defendant guilty of the offense of Indecency with a Child by Contact and so say by
        your verdict in Count One, but if you do not so believe, or if you have a reasonable
        doubt thereof, you will acquit the defendant and say by your verdict “Not Guilty.”


The preceding abstract paragraph of the charge, however, defined sexual contact—using the

definition from the penal code—as “any touching of the anus, breast, or any part of the genitals of




                                                  10
another person with intent to arouse or gratify the sexual desire of any person.” See Tex. Penal Code

§ 21.11 (emphasis added).

                The Appellant contends it was reversible error for the trial court to abstractly instruct

the jury regarding the penal code definition for “sexual contact” because it authorized a conviction

without requiring the jury to specifically find that “they believed that the defendant [acted] with the

intent to arouse or gratify his own sexual desire.” We disagree. In determining whether there is

charge error, we must examine the charge as a whole and consider the interplay between the abstract

or definitional part of the charge and the application portion of the charge that applies the law to the

facts of the case. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other

grounds, Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). Generally, reversible error occurs

in the giving of an abstract instruction only when the instruction is an incorrect or misleading

statement of the law that the jury must understand in order to implement the commands of the

application paragraph. Crenshaw, 378 S.W.3d at 466. This is true because an abstract statement of

the law that goes beyond the allegations in the indictment is ordinarily “effectively restricted by

the charge’s application of the law to the facts, which should limit the jury’s deliberations to the

allegations in the indictment supported by the evidence.” See Sandig v. State, 580 S.W.2d 584, 586

(Tex. Crim. App. 1979).

                In this case, although the abstract portion of charge included the full statutory

definition of “sexual contact,” the application paragraphs properly authorized conviction only if

the jury found beyond a reasonable doubt that the Appellant—as alleged in the indictment—acted

with the intent to arouse and gratify his own sexual desires. Accordingly, the application paragraph



                                                   11
properly limited the jury’s deliberations to the allegations in the indictment. Further, even if we were

to find error, such error would not be reversible because the Appellant has not shown that he was

sufficiently harmed. When an appellant properly objects to a jury charge, as here, we may reverse

only if we find “some harm” from the jury charge error. See Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g). Here, the Appellant contends he was harmed because the

charge permitted the jury to convict him of an offense not charged in the indictment, but we have

already overruled this argument. Further, reviewing the record of the trial as a whole, there was no

evidence or argument that the Appellant had engaged in these acts to satisfy the sexual desire of any

person other than himself. See id. at 171 (actual degree of harm arising from jury charge error must

be “assayed in light of the entire jury charge, the state of the evidence, including the contested issues

and weight of probative evidence, the argument of counsel and any other relevant information

revealed by the record of the trial as a whole.”). Therefore, even if we found error, we cannot

conclude the Appellant suffered harm requiring reversal of his convictions. See Ramirez v. State,

967 S.W.2d 919, 922 (Tex. App.—Beaumont 1998, no pet.) (including full statutory definition of

“sexual contact” in abstract portion of jury charge harmless when application paragraph limited

circumstances upon which jury was authorized to convict to circumstances alleged in indictment).

Accordingly, we overrule Appellant’s third point of error.


                                           CONCLUSION

                For the foregoing reasons, we affirm the judgment of the trial court as to Count I.




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                                           ____________________________________________

                                           David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: April 15, 2014

Do Not Publish




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