                                                                                  ACCEPTED
                                                                             14-14-00263-CR
                                                               FOURTEENTH COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                        1/20/2015 7:45:03 PM
                                                                         CHRISTOPHER PRINE
                No. 14-14-00263-CR                                                    CLERK




                            In the
                                                           FILED IN
                  Court of Appeals                  14th COURT OF APPEALS
                           For the                     HOUSTON, TEXAS
                                                    1/20/2015 7:45:03 PM
           Fourteenth District of Texas             CHRISTOPHER A. PRINE
                          At Houston                         Clerk
                  
                       No. 1373854
                     nd
            In the 262 Criminal District Court
                  Of Harris County, Texas
                  

           LEONARD CHARLES HICKS
                           Appellant
                              V.
              THE STATE OF TEXAS
                      Appellee
                  

           STATE’S APPELLATE BRIEF
                  

                                 DEVON ANDERSON
                                 District Attorney
                                 Harris County, Texas
                                 BRIDGET HOLLOWAY
                                 Assistant District Attorney
                                 Harris County, Texas
                                 Texas Bar No. 24025227
                                 holloway_bridget@dao.hctx.net
                                 ERIN EPLEY
                                 Assistant District Attorney
                                 Harris County, Texas
                                 Harris County Criminal Justice Center
                                 1201 Franklin, Suite 600
                                 Houston, Texas 77002
                                 Tel.: 713·755·5826

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
                 STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if appellant requests oral argument.


                         IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Complainant, victim, or aggrieved party:

             Minor child

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County
             Bridget Holloway  Assistant District Attorney on appeal
             Erin Epley  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Leonard Charles Hicks

      Counsel for Appellant:

             Kenneth McCoy  Attorney at trial
             Michael P. Fosher —Attorney on appeal

      Trial Judge:

             Honorable Denise Bradley  Presiding Judge



                                                 i
                                                   TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .......................................................... i
IDENTIFICATION OF THE PARTIES ................................................................................ i
TABLE OF CONTENTS........................................................................................................... ii
INDEX OF AUTHORITIES ................................................................................................... iii
STATEMENT OF THE CASE ................................................................................................. 1
STATEMENT OF FACTS ........................................................................................................ 1
SUMMARY OF THE ARGUMENT ..................................................................................... 3
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED ................................................ 4
 Standard of Review ................................................................................................................ 4
 Analysis ..................................................................................................................................... 5
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED........................................... 8
 Analysis ..................................................................................................................................... 9
REPLY TO APPELLANT’S THIRD ISSUE PRESENTED.............................................. 11
 Analysis ................................................................................................................................... 12
CONCLUSION ........................................................................................................................ 14
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ........................ 15




                                                                       ii
                                         INDEX OF AUTHORITIES

CASES
Adames v. State,
  353 S.W.3d 854 (Tex. Crim. App. 2011)........................................................................... 4

Bartlett v. State,
  270 S.W.3d 147 (Tex. Crim. App. 2008) .......................................................................... 4

Campos v. State,
  589 S.W.2d 424 (Tex. Crim. App. 1979) ....................................................................... 10

Clayton v. State,
  235 S.W.3d 772 (Tex. Crim. App. 2007).......................................................................... 5

Curry v. State,
  30 S.W.3d 394 (Tex. Crim. App. 2000) ........................................................................... 5

Duncan v. State, .
  95 S.W.3d 669
  (Tex. App. —Houston [1st Dist.] 2002, pet. ref’d) ...................................................... 11

Jackson v. Virginia,
   443 U.S. 307, 99 S.Ct. 2781 (1979) ..................................................................................... 4

Jones v. State,
   428 S.W.3d 163
   (Tex. App. —Houston [1st Dist.] 2014, no pet.) ........................................................... 6

Kemp v. State,
  846 S.W.2d 289 (Tex. Crim. App. 1992) ....................................................................... 10

Ladd v. State,
  3 S.W.3d 547 (Tex. Crim. App. 1999) ............................................................................ 10

Lancon v. State,
  253 S.W.3d 699 (Tex. Crim. App. 2008) ..................................................................... 5, 8



                                                             iii
Leday v. State,
  983 S.W.2d 713 (Tex. Crim. App. 1998) .......................................................................... 11

Lee v. State,
  176 S.W.3d 452
  (Tex. App. —Houston [1st Dist.] 2004) ......................................................................... 6

Martines v. State,
  371 S.W.3d 232
  (Tex. App. —Houston [1st Dist.] 2011, no pet.); ........................................................... 6

Martinez v. State,
  178 S.W.3d 806 (Tex. Crim. App. 2005) .......................................................................... 6

Osbourn v. State,
  92 S.W.3d 531 (Tex. Crim. App. 2002) .......................................................................... 12

Sharp v. State,
  707 S.W.2d 611 (Tex. Crim. App. 1986) ........................................................................... 5

Simpson v. State,
   119 S.W.3d 262 (Tex. Crim. App. 2003) ........................................................................ 10

Tear v. State,
  74 S.W.3d 555
  (Tex. App. —Dallas 2002, pet. ref’d) ........................................................................... 6, 7

Williams v. State,
  235 S.W.3d 742 (Tex. Crim. App. 2007) ..................................................................... 5, 7

Wood v. State,
  18 S.W.3d 642 (Tex. Crim. App. 2000) ......................................................................... 10




                                                          iv
STATUTES
TEX. CODE CRIM. PROC. ANN.
  art. 38.07(a) (Vernon Supp. 2014)..................................................................................... 6
TEX. PENAL CODE ANN.
  § 22.021(a)(l)(B)(i) (Vernon Supp. 2014) ................................................................... 5, 6



RULES
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i
TEX. R. APP. P. 39.1 ....................................................................................................................... i
TEX. R. APP. P. 9.4(g) .................................................................................................................. i




                                                                      v
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE

      Appellant, Leonard Charles Hicks, was charged by indictment aggravated

sexual assault of a child.    The charge was enhanced with two prior felony

convictions for delivery of a controlled substance and burglary of a habitation.

(CR at 23). Appellant entered a plea of “not guilty” to the offense. (RRIII at 11). A

jury found appellant guilty as charged and later assessed his punishment at

confinement for 65 years. (RRVI at 22, 46). A written notice of appeal was timely

filed. (CR at 133).

                       


                             STATEMENT OF FACTS

      Janet Green and her partner, Pamela Richardson, received a phone call in

January 2012 to see if they could take in appellant’s three-year-old daughter, the

complainant, who needed a home and someone to care for her. (RRIII at 13-14, 23,

54). The ladies took the complainant in, as well as her three-year-old sister seven

months later. (RRIII at 15). While the complainant was very smart and talkative,

the women noticed behavior that was inappropriate for her age. (RRIII at 15, 18).

For example, the complainant once dressed in a tutu skirt and high heels and

danced “like you would see somebody in a strip club doing.” (RRIII at 18, 55). The
complainant also frequently used hard objects between her legs to masturbate.

(RRIII at 19, 55). When asked where she learned to do that, the complainant said

“daddy.” (RRIII at 58). The complainant’s younger sister also exhibited similar

behavior. (RRIII at 19).

       In addition to being afraid of men, the complainant was frightened of the

police, afraid of going to jail, and of being shot by a gun. (RRIII at 26). She talked

about killing herself and preferring it instead of being killed by her parents.

(RRIII at 27). The complainant stated she liked that Janet and Pam did not get

mad at her when she was in the bathroom and “snatch her off the toilet and put

[her] on [their] lap and go up and down with [her].” She said her dad, while

naked, would do that with her. (RRIII at 59). She said that one time her mother

put ointment on her “tu-tu” because it bled after her dad stuck his finger in it.

(RRIII at 60). She also mentioned that Hide-and-Go-Seek was a game her family

played at home where she would hide and “they” would play with her “tu-tu”

when they found her. (RRIII at 24, 61). She claimed that her older brother did not

like playing with her “tu-tu” when her mom and dad told him to. (RRIII at 61).

The complainant referred to her female genitalia as her “tu-tu.” (RRIII at 60; RRIV

at 78, 91, 122).

                        




                                          2
                        SUMMARY OF THE ARGUMENT

State’s Reply to Appellant’s First Issue:

      Because the complainant testified that appellant sexually assaulted her, and

because physical evidence is not required in a sexual assault case, the evidence is

sufficient to support appellant’s conviction.



State’s Reply to Appellant’s Second Issue:

      Any deduction that the complainant’s sexual conduct was due to appellant

was not so prejudicial, in light of other evidence, as to require a mistrial. The trial

court, therefore, did not abuse its discretion by denying the motion for mistrial.



State’s Reply to Appellant’s Third Issue:

      Because Janet was not offered as an expert witness at trial, but was a lay

witness capable of expressing an opinion on the complainant due to her personal

experience and knowledge, the trial court did not err by admitting her opinion.

                        




                                          3
              REPLY TO APPELLANT’S FIRST ISSUE PRESENTED

      In his first issue presented on appeal, appellant argues the evidence is

insufficient to support the jury’s verdict. Specifically, appellant complains that the

State failed to meet its burden of proof because of inconsistent evidence and no

physical evidence that the complainant was assaulted. Because the complainant

testified that appellant sexually assaulted her, and because physical evidence is

not required in a sexual assault case, the evidence is sufficient to support

appellant’s conviction.

                                STANDARD OF REVIEW

      When reviewing the sufficiency of the evidence, the evidence is seen in the

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

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Adames v. State, 353

S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only

standard to use when determining sufficiency of evidence). The jurors are the

exclusive judges of the facts and the weight to be given to the testimony. Bartlett v.

State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury, as the sole judge of

credibility, may accept one version of the facts and reject another, and it may reject

any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.

                                           4
App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App. —Houston [1st

Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve witness even when

witness’s testimony is uncontradicted). This Court may not re-evaluate the

weight and credibility of the evidence or substitute its own judgment for that of

the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Almost complete deference is afforded to the jury’s credibility determinations. See

Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). Any inconsistencies in

the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007) (“When the record supports conflicting inferences, we presume that

the factfinder resolved the conflicts in favor of the prosecution and therefore defer

to that determination.”).

                                     ANALYSIS

      To establish that appellant committed the offense of aggravated sexual

assault of the complainant, as charged in the indictment, the State had to prove

that appellant intentionally or knowingly penetrated the complainant’s sexual

organ with his finger. See TEX. PENAL CODE ANN. § 22.021(a)(l)(B)(i) (Vernon

Supp. 2014). A conviction for aggravated sexual assault of a child is “supportable

on the uncorroborated testimony of the victim of the sexual offense.” TEX. CODE


                                         5
CRIM. PROC. ANN. art. 38.07(a) (Vernon Supp. 2014); Martinez v. State, 178 S.W.3d

806, 814 (Tex. Crim. App. 2005) (noting that article 38.07 “deals with the

sufficiency of evidence required to sustain a conviction for” certain sexual

offenses) (emphasis in original).       The State has no burden to produce any

corroborating or physical evidence. Martines v. State, 371 S.W.3d 232, 240 (Tex.

App. —Houston [1st Dist.] 2011, no pet.); see also Lee v. State, 176 S.W.3d 452, 458

(Tex. App. —Houston [1st Dist.] 2004) (“The lack of physical or forensic evidence

is a factor for the jury to consider in weighing the evidence.”), aff’d, 206 S.W.3d 620

(Tex. Crim. App. 2006). Likewise, a child victim’s outcry statement alone can be

sufficient to support a sexual assault conviction. See Jones v. State, 428 S.W.3d 163,

169 (Tex. App. —Houston [1st Dist.] 2014, no pet.); Tear v. State, 74 S.W.3d 555, 560

(Tex. App. —Dallas 2002, pet. ref’d).

      Here, the complainant identified appellant as her father and testified he

“dug in [her] tu-tu” twice while she was at her cousin’s house. (RRIV at 121, 130,

134). The complainant identified her vagina as her “tu-tu.” (RRIV at 122). The

complainant testified to the essential elements of aggravated sexual assault of a

child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i). Her testimony, standing

alone, is sufficient to sustain appellant’s conviction. See TEX. CODE CRIM. PROC.

ANN. art. 38.07(a) (Vernon Supp. 2014); Jones, 428 S.W.3d at 169; Martines, 371

S.W.3d at 240; Lee, 176 S.W.3d at 458.
                                           6
      Moreover, the evidence further showed that the complainant made an

outcry to Janet that her dad liked to play with her “tu-tu.” (RRIII at 24). And, she

told Pamela that one time he made her “tu-tu” bleed after sticking his long finger

nails in her “tu-tu.” (RRIII at 60). She further told her pediatrician that her dad

rubbed her front with his finger. (RRIV at 32-33). The complainant’s outcry

statement is also sufficient, standing alone, to sustain a sexual assault conviction.

See Jones, 428 S.W.3d at 169; Tear, 74 S.W.3d at 560.              Additionally, the

complainant’s brother, appellant’s son, testified he saw his dad touch the

complainant’s “middle part,” also known as “tu-tu.” (RRIII at 78-79).

      In arguing that the State failed to present sufficient evidence, appellant

points to the lack of physical evidence and the “number of inconsistencies” (not

noted in his argument, just stated as fact). In sexual assault of a child cases, the

State has no burden to present any corroborating or physical evidence of the

abuse. Jones, 428 S.W.3d at 169; Martines, 371 S.W.3d at 240; Lee, 176 S.W.3d at 458.

The 5-year-old complainant, while not forthcoming at first, testified that appellant

committed acts constituting aggravated sexual assault, and her testimony alone is

sufficient to support the conviction. See, e.g., Jones, 428 S.W.3d at 169. Her brother

testified to witnessing the abuse. The jury heard the evidence, credited their

testimony, and found appellant guilty. See Williams, 235 S.W.3d at 750; see also




                                          7
Lancon, 253 S.W.3d at 705 (stating that the court affords almost complete

deference to jury’s credibility determinations).

      Viewing the evidence in the light most favorable to the verdict, sufficient

evidence was presented to support appellant's conviction for aggravated sexual

assault of a child. Appellant’s first issue presented on appeal should be overruled.

                           


            REPLY TO APPELLANT’S SECOND ISSUE PRESENTED

      In his second issue presented on appeal, appellant argues the trial court

abused its discretion in denying his request for a mistrial after the jury heard the

following from the complainant’s therapist regarding the complainant’s

“regression:”

                [State]:    Anything about your experience with [the
                            complainant] lead you to have concerns about her
                            psychological well-being?

                [Therapist]: Sometimes, uh-huh.

                [State]:    How so?

                [Therapist]: When I start seeing her kind of regressive, starting
                             to have problems or behaving in certain ways, I get
                             concerned.

                [State]:    And regressing in what way?

                [Therapist]: She may go back to having problems with sleep,
                             ignoring totally what you asked her to do, those
                             kind of things.
                                            8
             [State]:     And in the year of seeing her, does her regression,
                          did it seem to be tied to anything in specific?

             [Therapist]: The last time I remember was when she saw her
                          little brother, she was very happy to see the little
                          boy, but after she went home and she lives with
                          another sibling and immediately they became so
                          sexually [sic] between the two of them that it was
                          almost impossible to dismount them one from the
                          other.

(RRIV at 56). Appellant objected to hearsay, and the State agreed and pointed out

that was not the answer it was expecting. The trial court sustained the objection,

instructed the jury to disregard, and denied appellant’s request for a mistrial.

(RRIV at 57). Any deduction that the complainant’s sexual conduct was due to

appellant was not so prejudicial, in light of other evidence, as to require a mistrial.

The trial court, therefore, did not abuse its discretion by denying the motion for

mistrial.

                                      ANALYSIS

      Appellant argues on appeal that the testimony of the complainant’s prior

sexual conduct was introduced for the sole purpose of inflaming the jury by

“asking them to deduce that [the complainant’s] sexual conduct with other




                                          9
siblings was due to her sexual conduct with [him].”1 The record, however, shows

that the State had no purpose for the unsolicited hearsay and it was not so

prejudicial as to require a mistrial.

          The trial court’s denial of a motion for mistrial is reviewed for an abuse of

discretion. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).

Mistrial is appropriate for a narrow class of “highly prejudicial and incurable

errors[,]” and may be granted when the court is “faced with error so prejudicial

that ‘expenditure of further time and expense would be wasteful and futile.’” Id.

(quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). Instructing

the jury to disregard will generally cure error associated with testimony referring

to an extraneous offense. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.

1992); Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979). When, as here,

a trial court instructs a jury to disregard certain testimony, it is presumed that the

jury followed the trial court’s instructions. Ladd v. State, 3 S.W.3d 547, 567 (Tex.

Crim. App. 1999).

          Here, the trial court sustained appellant’s objection and immediately

instructed the jury to disregard the testimony.          In addition, the jury heard




1
    Appellant’s Brief at 32.

                                            10
testimony that the complainant frequently masturbated with hard objects and

that appellant made the complainant’s brother play in her vagina. See Leday v. State,

983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Duncan v. State, 95 S.W.3d 669, 672

(Tex. App. —Houston [1st Dist.] 2002, pet. ref’d) (Improper admission of evidence

is not reversible error if the same or similar evidence is admitted without objection

at another point in the trial.). Any deduction that the complainant’s sexual

conduct was due to appellant was not so prejudicial, in light of other evidence, as

to require a mistrial. The trial court, therefore, did not abuse its discretion by

denying the motion for mistrial.

      Appellant’s second issue presented on appeal should be overruled.

                       


             REPLY TO APPELLANT’S THIRD ISSUE PRESENTED

      In his third issue presented on appeal, appellant complains the trial court

erred in allowing Janet, over objection, to give an “expert opinion” that there was

nothing inherently wrong with the complainant. Because Janet was not offered as

an expert witness at trial, but was a lay witness capable of expressing an opinion

on the complainant due to her personal experience and knowledge, the trial court

did not err by admitting her opinion.




                                         11
                                     ANALYSIS

      Generally, “observations which do not require significant expertise to

interpret and which are not based on a scientific theory can be admitted as lay

opinions if the requirements of Rule 701 are met. This is true even when the

witness has experience and training.” Osbourn v. State, 92 S.W.3d 531, 537 (Tex.

Crim. App. 2002). Moreover, a lay witness with sufficient personal experience

and knowledge may be qualified to express an opinion on a matter outside the

realm of common knowledge with respect to events not normally encountered by

most people in everyday life. Id. “It is only when the fact-finder may not fully

understand the evidence or be able to determine the fact in issue without the

assistance of someone with specialized knowledge that a witness must be

qualified as an expert.” Id.

      On cross-examination, Janet was questioned about the complainant’s

therapist and that the complainant was put on medication to “calm her down.”

(RRIII at 44). Janet was then questioned about the complainant’s diagnosis,

which Janet testified was “ADD, ODD, and ADSD (later corrected to PTSD).”

(RRIII at 46). Based upon that testimony, the State asked Janet, on redirect, if she

had an opinion as to whether something was inherently wrong with the

complainant; Janet responded “no.” (RRIII at 49-50). Her testimony required no

expertise, but was her lay opinion after her personal experience with, and

                                        12
knowledge of, the complainant. It was not outside of the zone of reasonable

disagreement for the trial court to conclude that Janet’s opinion might be helpful

to the jury. The trial court did not abuse its discretion by admitting Janet’s

testimony.

      Appellant’s third issue presented on appeal should be overruled.

                      




                                       13
                                 CONCLUSION

      It is respectfully submitted that all things are regular and that the

conviction should be affirmed.

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ Bridget Holloway

                                              BRIDGET HOLLOWAY
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.755.5826
                                              Texas Bar No. 24025227
                                              holloway_bridget@dao.hctx.net




                                     14
        CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE

      This is to certify: (a) that the word count of the computer program used to

prepare this document reports that there are 3328 words in the document; and (b)

that the undersigned attorney requested that a copy of this document be served to

appellant’s attorneys via TexFile at the following email on January 20, 2015:



      Michael P. Fosher
      Attorney for Appellant
      Email: (not listed in brief, will use one, if any, on file with TexFile)




                                                    /s/ Bridget Holloway

                                                    BRIDGET HOLLOWAY
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    713.755.5826
                                                    Texas Bar No. 24025227
                                                    holloway_bridget@dao.hctx.net




                                          15
