     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00015-CR



                            Charles Richard Willits, Jr., Appellant

                                               v.

                                  The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
          NO. 0994567, HONORABLE JON N. WISSER, JUDGE PRESIDING



                 A jury found appellant Charles Richard Willits, Jr. , guilty of one count of

indecency with a child by exposure, two counts of indecency with a child by contact, and six

counts of sexual assault of a child. See Tex. Penal Code Ann. §§ 21. 11(a), 22.011(a)(2) (West

Supp. 2000). The district court assessed punishment at imprisonment for ten years for the first

count, and at imprisonment for fifteen years for the remaining counts. We affirm the judgments

of conviction.

                 Appellant was the youth pastor at a large Austin church. The complainant began

attending youth services and participating in other youth activities at the church in 1994.

Appellant befriended the boy, who had recently moved to Austin with his mother and sister

following the divorce of his parents. Their relationship became sexual during the summer of

1995, when the complainant was fourteen. Appellant took the complainant on an overnight trip

to Arlington for a baseball game. Appellant “cuddled” with the complainant in their motel room,
lying on top of the boy and hugging him for about ten minutes while both were fully clothed.

Appellant began to purchase gifts for the complainant, and took him to movies and dinner on a

regular basis. The complainant said that appellant’s attention made him feel “privileged” and

“special.” The complainant often spent the night at appellant’s house. After appellant’s wife

went to sleep, he and the boy would “cuddle” in the spare bedroom, now without their clothing.

Appellant and the complainant fondled and masturbated each other, and on a few occasions

engaged in oral sex. Once, appellant placed his penis in the complainant’s anus. The complainant

estimated that he and appellant engaged in sexual activities at least twenty times.

               Appellant ended the sexual relationship with the complainant in January 1996.

Appellant told the complainant that he, the complainant, was “not in a good relationship with

God” and they could no longer be close. Appellant also told the complainant that church members

“wouldn’t believe in God any more” if the complainant told them about appellant’s conduct.

Needless to say, the complainant’s experiences with appellant left him confused, agitated, and

depressed. In April 1998, he told his mother and several friends what had happened.

               Appellant contends the district court should have granted a mistrial when the

complainant referred to extraneous misconduct during his testimony. The complainant was asked

by the prosecutor why he was “here today talking about this embarrassing subject.” He answered,

“I’m here today because . . . who knows what other people he could have done this to. And I

know that I’m probably not the only one. I mean, I don’t know, but it just seems to me that it

could easily have happened to somebody else.”           Appellant objected to the complainant




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“speculating” and testifying about alleged extraneous conduct. The objection was sustained and

the jury was instructed to disregard, but appellant’s motion for mistrial was overruled.

               A mistrial is called for when there is error so prejudicial that continuation of the

trial would be futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). As a general

rule, testimony erroneously referring to or implying extraneous offenses can be rendered harmless

by an instruction to disregard. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992).

An instruction will be insufficient only if the evidence was so clearly calculated to inflame the

minds of the jury or is of such damning character as to suggest the impossibility of removing the

harmful impression from the jurors’ minds. Id. The denial of a mistrial motion is reviewed for

an abuse of discretion. Ladd, 3 S.W.3d at 567.

               The complainant did not state as a fact that appellant had engaged in similar conduct

with other persons, but merely indicated his suspicion that appellant might have done so. The

remark, if improper, was not so inflammatory or unfairly prejudicial as to be incurable by the

court’s instruction to disregard. The court did not abuse its discretion by overruling the motion

for mistrial. Issue one is overruled.

               Appellant also moved for a mistrial during the testimony of Kathlene Mann, one

of the first persons to whom the complainant described his activities with appellant. Mann was

asked if she noticed any “distressing behavior” on the complainant’s part after his outcry. She

answered, “A great deal. I mean, he was—
                                       he was very upset at the thought that—
                                                                            that this had to

become public knowledge.” Appellant objected on the ground of hearsay. Once again, the




                                                 3
objection was sustained and the jury was instructed to disregard, but appellant’s motion for

mistrial was overruled.

               A statement of the declarant’s then existing state of mind or emotion is admissible

as an exception to the hearsay rule. Tex. R. Evid. 803(3). Moreover, both the complainant and

other witnesses testified to the anguish felt by the complainant, his depression, and his erratic

behavior both before and after the sexual abuse became public. Reversible error is not presented.

Issue two is overruled.

               Appellant brings forward two issues regarding the testimony of Kenneth Lanning,

a Supervisory Special Agent with the Federal Bureau of Investigation. For the past twenty years,

Lanning has been assigned to the National Center for the Analysis of Violent Crime, where he

specializes in the study of sexual victimization of children. Lanning testified that his studies and

experience have led him to classify persons who sexually victimize children into two broad

categories: (1) situational offenders, who victimize children because they are weak or available;

and (2) preferential offenders, who have a true sexual preference for children.             Among

preferential offenders, the most common behavioral pattern is the seduction type. According to

Lanning, a seduction type preferential offender seduces, or grooms, his child victim in the same

manner a man might seduce a woman. After finding a child to whom he is attracted, the offender

will shower the child with attention and affection, while gradually seeking to lower the child’s

inhibitions and manipulating the child into sexual activity. Lanning believes that boys between

the ages of ten and sixteen are the most susceptible to such seduction.




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               Lanning testified that seduction type offenders usually have very good interpersonal

skills, particularly with children, and often choose a hobby or occupation that will put them in

contact with children who fit their age and gender preference. Such offenders tend to be of above

average intelligence and from higher socioeconomic backgrounds. It is not uncommon for them

to be married. Their sexual preference for children reveals little about their personality, and they

rarely fit the stereotype our society has of child sexual abusers.

               Appellant first contends that Lanning’s testimony was inadmissible under Texas

Rules of Evidence 702. Rule 702 provides for the admission of expert testimony when “scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue.” 1 The proponent of scientific or technical evidence under rule 702

has the burden of demonstrating by clear and convincing evidence that the evidence is both reliable

and relevant. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Appellant does not

question Lanning’s expertise and concedes that Lanning’s testimony was reliable. Appellant urges

that Lanning’s testimony was not relevant. In differentiating relevance from reliability, the Texas

Court of Criminal Appeals stated:


                Relevance is by nature a looser notion than reliability. Whether evidence
        “will assist the trier of fact” and is sufficiently tied to the facts of the case is a
        simpler, more straight-forward matter to establish than whether the evidence is
        sufficiently grounded in science to be reliable. This is not to say that the relevancy
        inquiry will always be satisfied. . . . The expert must make an effort to tie
        pertinent facts of the case to the scientific principles which are the subject of his
        testimony. Establishing this connection is not so much a matter of proof, however,
        as a matter of application.

    1
      Appellant also cites rule 402, which generally provides for the admission of all relevant
evidence and the exclusion of irrelevant evidence. Tex. R. Evid. 402.

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Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996).

               Appellant argues that Lanning’s testimony was not adequately tied to the facts of

this case. Lanning did not read the offense report or witness statements, did not hear any of the

testimony, and was not asked any hypothetical questions based on the facts of this case. His

testimony was based solely on his study and experience over the course of his career. Lanning

expressed the hope that his testimony would give the jurors “ some insight and understanding about

certain kinds of offenders” that would help them assess and evaluate the evidence before them.

Appellant points out, however, that the prosecutor had questioned the jurors during voir dire

regarding the characteristics and methods of sex offenders. Appellant argues that the jurors were

shown to have a good understanding of child sexual abuse and did not need further information

of the sort provided by Lanning.

               The issue in Jordan was the admissibility of a defense expert’s testimony regarding

the reliability of eyewitness testimony. As appellant does here, the State argued against the

admission of the proffered testimony on the ground that the subject matter was within the common

knowledge of the jurors. See id. at 556. The court of criminal appeals answered that argument

as follows:


       While jurors might have their own notions about the reliability of eyewitness
       identification, that does not mean they would not be aided by the studies and
       findings of trained psychologists on the issue. If the scientific basis of [the
       expert’s] testimony is sound (an issue not now before us and one we do not now
       decide), it could have aided the jury by either validating or calling into question
       their own inclinations. If a juror’s “gut” or common sense beliefs about certain
       factors were to be called into question by [the expert’s] testimony on the issue, the
       juror would be prompted to reconsider preconceived notions that he might
       otherwise have been unaware of when reviewing the facts of the case. On the


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       other hand, if a juror’s preconceived notions were confirmed by [the expert’s]
       testimony on the issue, the juror could proceed with greater confidence on that
       issue.


Id.   In the same way, Lanning’s testimony validated, challenged, or supplemented any

preconceptions the jurors in this cause might have had regarding child sexual abuse and child

sexual abusers. We also note, although this argument is not specifically raised by appellant, that

Lanning’s testimony sufficiently “fit” the facts of this case. See id. The district court did not

abuse its discretion by overruling appellant’s objection to the relevance of Lanning’s testimony.

               Alternatively, appellant urges that Lanning’s testimony should not have been

admitted because its relevance was outweighed by the danger of unfair prejudice. See Tex. R.

Evid. 403. Appellant argues that the testimony added little to what the jury already knew about

child sexual abuse, and therefore was not needed by the State. We have already explained,

however, that Lanning possessed an expertise concerning the behavior of sexual victimizers of

children that could have assisted the jury in understanding and evaluating the evidence. See Nenno

v. State, 970 S.W.2d 549, 562 (Tex. Crim. App. 1998). Appellant asserts that Lanning’s

testimony raised the possibility that the jury would vote to convict because appellant “fits the

description of a sex offender. ” Lanning repeatedly testified that there was no single “profile” by

which to identify those who sexually victimize children. We are not persuaded that Lanning’s

testimony had an undue tendency to suggest decision on an improper basis. See Cohn v. State,

849 S.W.2d 817, 820 (Tex. Crim. App. 1993). No abuse of discretion is shown. Issue three is

overruled.




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                In issue four, appellant contends the district court erred by refusing to give this

limiting instruction regarding Lanning’s testimony:


                You have heard evidence in this cause from Special Agent Kenneth Lanning
        of the FBI. You are instructed that his testimony was not intended and may not be
        used by you to determine whether [the complainant’s] claims are true. You are
        further instructed that Agent Lanning’s testimony was not intended and may not be
        used by you as any evidence of the character of the Defendant in this cause.


Appellant relies on Texas Rule of Evidence 105(a), which provides that when evidence is

introduced for a limited purpose only the court should instruct the jury to restrict its consideration

of the evidence to its proper scope.

                We understand appellant to argue that Lanning’s testimony was evidence of “other

crimes, wrongs or acts” that was not admissible to prove his character, although it may have been

admissible for another purpose. See Tex. R. Evid. 404(b). This argument fails because Lanning

did not testify to other acts committed by appellant, and there is no indication in the record that

Lanning’s testimony was offered for a limited purpose. Appellant cites no authority supporting

the notion that a trial court should instruct the jury not to consider relevant evidence in

determining the defendant’s guilt. Under the circumstances shown, it would have been improper

for the court to single out Lanning’s testimony and comment on it in a special instruction. See

Caldwell v. State, 818 S.W.2d 790, 799 (Tex. Crim. App. 1991); Tex. Code Crim. Proc. Ann.

art. 36.14 (West Supp. 2000). Issue four is overruled.

                Appellant’s next issue concerns this portion of the State’s opening jury argument

at the guilt stage of trial:



                                                  8
               And so a 13-year-old kid from a Kansas farm comes to the big city, and he
       gets all the answers [to his questions about religion] from this person right here.
       It comes right out of his mouth. The same person that will put his hands on his
       face and baptize him in the name of the Father and the Son and the Holy Ghost
       will use those same hands to touch him, the same mouth that he speaks to him with
       with Biblical [sic] to seduce him and touch him with his mouth. I can’t stand to
       be in the room with him myself.


(Emphasis added.) Appellant objected to the prosecutor’s personal remark. The prosecutor

apologized and asked the court to instruct the jury to disregard. The court gave the instruction,

then overruled appellant’s motion for mistrial. The State concedes that the prosecutor’s remark

was improper.

                An instruction to disregard improper jury argument is generally sufficient to cure

the error. See Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000) (arguing facts not

in record); Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) (attack on defense

counsel); Long v. State, 823 S.W.2d 259, 269-70 (Tex. Crim. App. 1991) (comment on

defendant’s failure to testify). In the opinions on which appellant relies, defense objections to

improper arguments were overruled and no instructions to disregard were given. See Wilson v.

State, 938 S.W.2d 57, 58-59 (Tex. Crim. App. 1996); Bray v. State, 478 S.W.2d 89, 90 (Tex.

Crim. App. 1972). We believe the district court’s admonition was sufficient to cure the error and

overrule issue five.

                Appellant orally moved for a mistrial while the jury was deliberating his guilt. The

basis for the motion was alleged jury misconduct. At a hearing on the motion, a person who had

attended the trial testified that she overheard a conversation between jurors Sodaquist, Stovall, and

Taylor during a break in which one of them said, “They’re grasping or they’re grabbing at straws


                                                 9
now and they don’t have very many left. ” Defense counsel’s legal assistant also testified at the

hearing. She said she overheard juror Stovall tell jurors Sodaquist and Gutman during a break

following the testimony of appellant’s wife, “You know that bitch was suspicious.” The motion

for mistrial was overruled.

               After appellant had been convicted and sentenced, he filed a written “ motion for

mistrial and arrest of judgment” again raising the alleged improper jury conversations. A hearing

was held on the motion at which jurors Gutman, Sodaquist, and Stovall testified. Gutman did not

recall having any conversation with Sodaquist and Stovall regarding any suspicions appellant’s

wife might have had, and believed it unlikely that the alleged statement was made. Sodaquist and

Stovall testified that they did not remember any conversation during which the phrase “grasping

at straws” was used. Neither was asked about the other alleged remark. The district court

overruled the motion at the conclusion of the hearing. Appellant subsequently filed a motion for

new trial citing the alleged jury misconduct and other grounds. This motion was overruled by

operation of law.

               In issue six, appellant contends the court erred by overruling the oral motion for

mistrial. Appellant’s brief does not present any argument or cite any authority in support of this

contention. See Tex. R. App. P. 38. 1(h) (appellant’s brief must contain argument and authorities

for contentions made). Issue six is overruled as inadequately briefed. See Dunn v. State, 951

S.W.2d 478, 480 (Tex. Crim. App. 1997).

               Issue seven complains of the overruling of the written motion for mistrial and of

the motion for new trial. Appellant had the burden of proving the alleged misconduct. See



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Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000). Because there was conflicting

testimony as to whether the alleged conversations occurred, there was no abuse of discretion in

overruling the motions on that ground. See id.

              Among the other grounds alleged in the motion for new trial was the contention that

the court materially erred by admitting FBI Agent Lanning’s testimony. Appellant reurges this

contention on appeal, but merely refers us to the argument under issue three. Having overruled

that issue, we need not discuss the matter further. Appellant also contended that he was denied

effective assistance of counsel when he was arrested during trial for an offense committed in

another county. While appellant repeats this contention on appeal, he offers no supporting

argument and cites no authorities. See Dunn, 951 S.W.2d at 480. Issue seven is overruled.

              The district court prepared separate judgments for each count. The judgments of

conviction are affirmed.




                                            Jan P. Patterson

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

Affirmed

Filed: January 25, 2001

Do Not Publish



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