AFFIRMED and Opinion Filed May 3, 2019




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        No. 05-18-00314-CR

                              TRACY DEMOND SIMS, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F-1576138-Y

                              MEMORANDUM OPINION
                         Before Justices Whitehill, Molberg, and Reichek
                                  Opinion by Justice Whitehill
       Appellant was indicted and tried for continuous sexual abuse of a child, but a jury found

him guilty of the lesser-included offense of aggravated sexual assault of a child. The court assessed

punishment at thirty years in prison.

       Appellant argues that the evidence was insufficient to support his conviction and the trial

court erred by allowing the state’s expert to opine on the child’s truthfulness. As discussed below,

we affirm the trial court’s judgment.

                                         I.   Background

       DM testified that appellant, her uncle, sexually abused her multiple times over many years

beginning when she was twelve years old and in the fifth grade. In 2014, DM told her brother
about the abuse, who in turn told her father. Her father reported the alleged abuse to the police.

DM was nineteen years old when the case was tried to a jury.

       DM testified about the abuse. And Leslie Boutte, the Assistant Clinical Director for the

Dallas Children’s Advocacy Center (DCAC) testified as a State’s expert. Boutte reviewed DM’s

DCAC therapy services records and testified about the characteristics and symptoms of children

who have been sexually abused. According to Boutte, the clinical diagnosis from DM’s initial

DCAC assessment reflected “child sexual abuse and child physical abuse.”

       DM’s mother, Kimberly Sims, testified for the defense. Sims characterized DM as a

defiant teenager who had problems with Sim’s discipline, described altercations with DM, and

claimed that her ex-husband was forcing DM to lie. She also said that DM lied in a letter written

to a judge on another matter.

       The jury was charged on continuous sexual abuse, aggravated sexual assault by contact

with DM’s mouth and appellant’s sexual organ, and indecency with a child. Initially, the jury

found appellant guilty of two of the lesser-included offenses—aggravated sexual assault and

indecency with a child.

       After speaking with counsel, the judge instructed the jury that the multiple verdicts did not

comport with the court’s charge and sent them back for further deliberations. The jury then found

appellant guilty of aggravated sexual assault of a child by contact with DM’s mouth. The court

entered judgment accordingly and sentenced appellant to thirty years in prison. This appeal

followed.




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                                           II. Analysis

A.     First Issue: Do complainant’s credibility issues render the evidence insufficient to
       support the conviction?

       Appellant’s first issue argues the evidence was insufficient because DM was not credible.

Specifically, he argues that the verdict must have been based on speculation because the jury

rejected the continuous sexual abuse charge as well as two of the alleged predicate offenses.

       We review the sufficiency of the evidence to support a conviction by viewing all of the

evidence in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979). This standard gives full play to the fact finder’s responsibility

to resolve testimonial conflicts, weigh the evidence, and draw reasonable inferences from basic

facts to ultimate facts. Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015).

And the fact finder is the sole judge of the evidence’s weight and credibility. See TEX. CODE CRIM.

PROC. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

       Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of the factfinder’s. See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine

whether the necessary inferences are reasonable based upon the evidence’s cumulative force

viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume

that the factfinder resolved any conflicting inferences in the verdict’s favor and defer to that

resolution. Id. at 448–49.

       To convict appellant of aggravated sexual assault in this particular case, the State had to

prove that appellant intentionally or knowingly caused the mouth of DM, a child under the age of

fourteen, to contact appellant’s sexual organ.        TEX. PENAL CODE § 22.021(a)(1)(B)(v).        A

conviction for aggravated sexual assault of a child is supportable on the uncorroborated testimony
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of the child victim. TEX. CODE CRIM. PROC. art. 38.07(a), (b)(1); see also Jones v State, 428

S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

         DM testified about multiple acts of sexual abuse by appellant beginning when she was

twelve years old and in elementary school when appellant lived with them at the Rosemont

apartments. On the first occasion, appellant took her into the laundry room of their home, touched

her breasts over her clothes, took his penis out of his pants, and touched DM’s mouth with his

penis. On another occasion, DM was asleep in the living room when appellant awakened her by

fondling her breasts and vagina. When asked if appellant touching her happened in one month or

if it just kept happening, DM said, “It kept happening.”

         At some point appellant moved in with his girlfriend Pamela Lockett and DM spent time

there because Lockett would braid her hair. Appellant continued to abuse DM, and would “touch

on” her when he had the chance. On one occasion at Lockett’s house, DM and appellant were

alone in the living room and appellant touched her “down low area,” her breasts, and her “vagina

area.”

         The last instance of appellant touching DM inappropriately also occurred at Lockett’s

house. DM was asleep, and awakened when appellant pulled down her pants. He put his penis in

her, then took it out and left. DM did not know how much time elapsed between the laundry room

incident and this incident, but she was in “a different grade” [at school].

         On cross-examination, DM said that appellant touched her “private area” over her clothes

a “couple of times” and removed her clothes and “felt on” her a couple of times. DM could not

recall when this occurred. DM never told anyone about the incidents until she told her brother.

         Appellant argues that the jury could have found DM was not a credible witness because:

(i) her father did not report the allegations for six months after she told him; (ii) her mother did not

believe her; (iii) DM lied to the court on a previous unrelated matter; (iv) DM was angry with her

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mother for disciplining her; and (v) DM did not have much of a relationship with her father until

she wanted to move out of her mother’s home. The issue however, is not whether there was

conflicting evidence or different inferences that might be made. We presume that any such

conflicts were resolved in the prosecution’s favor and defer to that resolution. Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009). Our task is to “determine whether the necessary

inferences are reasonable based on the combined and cumulative force of all of the evidence when

viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007).

       Here, in addition to DM’s trial testimony, the jury heard evidence concerning DM’s clinical

diagnosis, assessment, and symptoms. There was also testimony from her father and the CPS

investigator. This evidence was consistent with DM’s version of events.

        That the jury was initially confused about the verdict form and concluded that appellant

committed both aggravated sexual assault and indecency with a child does not render the evidence

insufficient to support the aggravated sexual assault offense. Likewise, it does not establish that

the jury did not believe DM.

       On this record, viewing the evidence in a light most favorable to the verdict, we conclude

that the evidence is sufficient to support appellant’s conviction. We resolve appellant’s first issue

against him.

B.     Second and Third Issues: Did the trial court erroneously allow expert testimony that
       the complainant is truthful?

       Appellant’s second and third issues argue that the trial court abused its discretion by

overruling his objection to a hypothetical question posed to the State’s expert, Boutte. Specifically,

appellant argues that the question sought to elicit an impermissible credibility opinion and invaded

the jury’s province. The State responds that the issues were not preserved for our review because

appellant’s trial objection does not comport with the issues raised on appeal. See Yazdchi v. State,
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428 S.W.3d 831, 844 (Tex. Crim. App. 2014). Giving appellant the benefit of the doubt on

preservation of the alleged error, we conclude that the trial court did not abuse its discretion by

allowing the testimony and the testimony did not invade the jury’s province.

       A trial court’s evidentiary decision is reviewed for an abuse of discretion. Cameron v.

State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). The abuse of discretion test is not whether, in

our opinion, the facts presented an appropriate case for the trial court’s action; rather, it is a

question of whether the trial court’s decision was within the “zone of reasonable disagreement.”

See Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018).

       Generally, an expert witness may testify if her scientific, technical, or other specialized

knowledge will assist the trier of fact in understanding the evidence or in determining a fact in

issue. TEX. R. EVID. 702. The expert’s testimony must aid the trier of fact and not supplant its

determination. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). However, expert

testimony that provides useful background information to aid the jury in evaluating the testimony

of another witness is admissible. Pavlacka v. State, 892 S.W.2d 897, 902 n.6 (Tex. Crim. App.

1994) (providing that expert testimony may aid a factfinder by providing information that sexually

abused children sometimes offer conflicting accounts).

       Expert testimony that a child exhibits behavioral characteristics empirically shown to be

common among children who have been sexually abused is relevant and admissible as substantive

evidence under rule 702. See TEX. R. EVID. 702.4; see also Yount v. State, 872 S.W.2d 706, 709

(Tex. Crim. App. 1993); Cohn v. State, 849 S.W.2d 817, 819–21 (Tex. Crim. App. 1993) (such

testimony not objectionable as “bolstering”). An expert may also give an opinion on facts made

known to him at trial via hypothetical questions, so long as the facts used in the hypotheticals are

admitted into evidence or are related to the theory of the case. Matson v. State, 819 S.W.2d 839,

852–53 (Tex. Crim. App. 1991). But an expert witness may not testify directly that a particular

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witness is truthful, or that a class of persons to which the witness belongs is truthful. Yount, 872

S.W.2d at 711.

       Appellant characterizes the prosecutor’s question as one that directly asked if DM’s

difficulty remembering events discredited DM. We disagree with appellant’s characterization.

Prior to the complained-of testimony, Boutte responded to hypothetical questions concerning (i)

general characteristics shared by child sexual abuse victims, including feelings of guilt and

confusion, (ii) the length of time it takes for a child to outcry when she knows the abuser, and (iii)

vulnerability to further abuse by other abusers. After she explained the normalization of sexual

behavior in some children, the following exchange occurred:

       State: So duck-tailing off of that, if I were to again tell you hypothetically a victim
       is having trouble recalling specific details about any assaults, do you feel that that
       discredits them, or is there an explanation for that?

       Boutte: No, it’s - -

       Appellant: Judge, I would object that this is a conclusion of an issue before the
       Court. And she can - - I don’t think she can testify as to any conclusion as evidence.

       Court: I am going to overrule that objection.

       Boutte: So children already have a difficult time when they’re young making a
       timeline of events, and so they have a hard time pulling out specific times that things
       happened. So if you were to ask a young child when was the last time this happened
       or when was the last time you felt angry, they may have a hard time pulling or
       making a cohesive timeline. And when you add trauma along with that, then it
       makes memories be more fragmented. And so it’s very had to make a cohesive
       story about a traumatic event, which is part of the reason that we do a trauma
       narrative in therapy, to try to help a child make sense of a story.

       So, unless an event sticks out more than another, they’re going to have a hard time
       pulling out this happened on this day, and this happened on this day versus their
       brain lumping all of it together.

       As reflected above, the question was posed as a hypothetical, and did not directly inquire

about DM’s truthfulness. Moreover, although Boutte answered “no” to the portion of the question

about whether a child’s inability to recall details “discredits them,” her answer was curtailed by

the objection. After the objection was resolved, Boutte did not elaborate on the “discredits” aspect
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of the question, but instead provided a general explanation of why young children generally have

difficulty with constructing a timeline of events.        This testimony, (which responded to a

hypothetical question based on facts that were admitted into evidence and concerned

characteristics common among sexually abused children) was permissible. See Gonzalez v. State,

4 S.W.3d 406, 418 (Tex. App.—Waco 1999, no pet.), and is the type of specialized knowledge

that is helpful to the jury. See Vasquez v. State, 975 S.W.2d 415, 417 (Tex. App.—Austin 1998,

pet. ref’d). Because Boutte did not opine about DM’s truthfulness or decide an ultimate fact for

the jury, the trial court did not abuse its discretion by overruling appellant’s objection. Appellant’s

second and third issues are resolved against him.

                                         III.   CONCLUSION

       Having resolved all of appellant’s issues against him, we affirm the trial court’s judgment.




                                                    /Bill Whitehill/
                                                    BILL WHITEHILL
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47
180314F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 TRACY DEMOND SIMS, Appellant                     On Appeal from the Criminal District Court
                                                  No. 7, Dallas County, Texas
 No. 05-18-00314-CR       V.                      Trial Court Cause No. F-1576138-Y.
                                                  Opinion delivered by Justice Whitehill.
 THE STATE OF TEXAS, Appellee                     Justices Molberg and Reichek participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 3, 2019




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