                         NO. 07-08-0198-CR, 07-08-0199-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL D

                                JANUARY 31, 2010
                         ______________________________

                      RICHARD RANDALL DRAKE, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

              FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                    NO. 7329; HONORABLE LEE WATERS, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                              MEMORANDUM OPINION


      By separate indictments, appellant Richard Randall Drake was charged with

aggravated sexual assault 1 and indecency with a child. 2 A jury convicted him of both

offenses and sentenced him to terms of imprisonment of thirty years and ten years




      1
          Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2009).

      2
          Tex. Penal Code Ann. § 21.11 (Vernon 2003).
respectively.     The court imposed concurrent sentencing.         Through three issues,

appellant appeals his convictions. We will affirm.


                                        Background


         The State alleged appellant engaged in the charged conduct with S.S., the ten-

year-old daughter of his cousin. The actionable events occurred while appellant baby-

sat S.S. and her younger brother, or on an occasion that S.S., and her female friends

J.M. and S.M., spent the night with appellant at his television repair shop.


         Evidence at trial included a statement appellant gave police through which he

admitted having oral sex with S.S. and exposing himself to her. At trial, he recanted the

statement on the ground it was false, the product of his desire to protect S.S. J.M.

testified she played with S.S. at her house and appellant was usually there. Once, after

S.S. showered, J.M. observed appellant remove the towel covering S.S. and begin

“licking [S.S.] between her legs.”      She also testified appellant masturbated as he

watched though a hole in the bathroom wall as the girls bathed. S.M. testified she saw

S.S. urinate in appellant’s mouth during the overnight stay at appellant’s shop. S.S.

testified to an act of oral sex, apparently the one described by J.M., and to urination in

appellant’s mouth. However, she could not recall if appellant showed her “his private

part.”


         After hearing the evidence, the jury returned a verdict convicting appellant of the

charged offenses. Appellant timely appealed.




                                              2
                                      Discussion


       In his first issue, appellant complains the trial court erred by overruling his

hearsay objection to the State’s question of what S.S. told a professional about

appellant’s conduct.


       During its case-in-chief, the State presented a forensic interviewer with a

children’s advocacy center who interviewed S.S.      The following exchange occurred

during this testimony:


       Q. [by the prosecutor]:          Now, during the interview, what did
                                        [S.S.] tell you about what happened to
                                        her?


       [appellant’s counsel]:           Objection; that calls for hearsay.


       Q. [prosecutor]:                 Your Honor, we would ask that the
                                        Court recognize an exception to the
                                        hearsay rule under 803(4).


       The Court:                       Overruled. Go ahead.


       The witness then explained how S.S. described appellant’s exposure of his

genitals. Without further objection, the State next questioned the witness about other

events S.S. recounted during the interview. Through this testimony, the witness stated

that according to S.S., appellant refused S.S. and her friends food unless they allowed

him to lick their genitalia.


       On cross-examination, the witness acknowledged she did not provide medical

treatment for S.S. nor did she make a medical diagnosis. Appellant then moved for an



                                          3
instruction requiring the jury to disregard the testimony of the witness from the point the

State urged admission according to Rule 803(4). The court took up the matter at a

hearing outside the presence of the jury and after hearing the arguments of counsel

denied appellant’s request but granted a running objection.


       Addressing appellant’s issue requires division of the challenged testimony into

two blocks. The first is the colloquy quoted above and the second the ensuing direct

examination testimony which was admitted without objection.


      We turn first to the second block of testimony.         Appellant did not lodge an

objection to this testimony and even now on appeal does not particularize the questions

he believes sought responses transgressing the rule against hearsay.


       Under Texas law, if, on appeal, a defendant claims the trial judge erred in
       admitting evidence offered by the State, this error must have been
       preserved by a proper objection and a ruling on that objection. A proper
       objection is one that is specific and timely. Further, with two exceptions,
       the law in Texas requires a party to continue to object each time
       inadmissible evidence is offered. The two exceptions require counsel to
       either (1) obtain a running objection, or (2) request a hearing outside the
       presence of the jury.


Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003).


       Concerning the questions following the court’s ruling on appellant’s hearsay

objection and spanning the remainder of the direct examination of the forensic

interviewer, appellant did not continue objecting, did not obtain a running objection, and

did not request a hearing outside the presence of the jury.          As for this block of

testimony, therefore, nothing is preserved for our review. See Tex. R. App. P. 33.1(a).

We note, however, that admission of the testimony was not harmful. It did no more than


                                            4
reiterate facts admitted elsewhere and even included testimony supportive of the

defense. 3


       We now consider the court’s ruling on appellant’s hearsay objection, quoted

above. The State urges the ruling was proper because the testimony came within the

hearsay exception of Rule of Evidence 803(4) or was a prior consistent statement,

admitted as non-hearsay under Rule 801(e)(1)(B). Tex. R. Evid. 801(e)(1)(B) & 803(4).


       The standard of review for admission or exclusion of evidence is abuse of

discretion. Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App. 1993). A trial court

does not abuse its discretion unless it has “acted arbitrarily and unreasonably, without

reference to any guiding rules and principles.” Breeding v. State, 809 S.W.2d 661, 663

(Tex.App.–Amarillo 1991, pet. refused). As long as the trial court’s ruling was within the

“zone of reasonable disagreement,” there is no abuse of discretion and the trial court's

ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App. 1996).


       Moreover, to constitute reversible error, the improper admission of the forensic

interviewer’s statement that S.S. told her appellant exposed himself must have been

harmful to appellant. Tex. R. App. P. 44.2(b); see Johnson v. State, 967 S.W.2d 410,

417   (Tex.Crim.App.     1998)   (applying   non-constitutional    harm    analysis).   Non-

constitutional error “must be disregarded” unless it affected the “substantial rights” of the

accused. Tex. R. App. 44.2(b). The substantial rights of an accused are affected “when

the error had a substantial and injurious effect or influence in determining the jury’s


       3
        According to the witness, during the interview S.S. denied that anyone touched
or contacted her “private places.”



                                             5
verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Any error in

admitting evidence is cured if the same evidence is admitted elsewhere without

objection.Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). See also Anderson

v. State, 717 S.W.2d 622, 627 (Tex.Crim.App. 1986) (“If the fact to which the hearsay

relates is sufficiently proved by other competent and unobjected to evidence, . . . the

admission of the hearsay is properly deemed harmless and does not constitute

reversible error”). “This rule applies whether the other evidence was introduced by the

defendant or the State” and whether the evidence was received before or after the

challenged ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998).


         Assuming, without deciding, that it was inadmissible hearsay, we find the

substance of the complained-of testimony of the forensic interviewer was admitted

elsewhere without limitation or an objection preserved on appeal. J.M. testified that

appellant masturbated while watching through a hole in the bathroom wall as she and

S.S. bathed. The jury had before it appellant’s hand-written statement in which he

recalled, “I masturbated in front of [S.S.] several times satisfing (sic) her curiosity.” Also

in evidence was appellant’s electronically recorded statement in which he stated S.S.

had seen him “totally naked.” 4      On cross-examination, a psychologist called by the

State testified that S.S. told him appellant “had shown his privates to her.” The error, if

any, of the trial court in admitting the statement of the forensic interviewer did not affect

a substantial right of appellant and must be disregarded. We overrule appellant’s first

issue.

         4
         At trial, appellant objected to the admission of his written and recorded
statements on the ground they were the product of coercion. The objections were
overruled and of these rulings appellant does not complain on appeal.



                                              6
       By his second issue, appellant contends the trial court erred by allowing a

psychologist to express an implied opinion S.S. was truthful in her report of sexual

abuse.   On direct examination by the State, the psychologist testified he was not

surprised that S.S. was vague in her description to him of what happened. When asked

why, he provided the following explanation, the admission of which is the subject of

appellant’s issue:


       Victims tend to minimize. That is, they–they tend not to want to talk about
       things that have happened. They tend not to–they tend to rationalize what
       happens. They tend to make it okay in their mind so they’re not at fault
       and so they don’t feel bad about it, so they don’t feel guilty, so they don’t
       look like they had a part to do with it. They tend to deny some things on
       occasion after they once have admitted them, admitted acts.


       Expert testimony is admissible only if it assists the trier of fact to understand the

evidence or determine a fact in issue. Tex. R. Evid. 702; Duckett v. State, 797 S.W.2d

906, 914 (Tex.Crim.App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d

817, 819 (Tex.Crim.App. 1993). Expert testimony assists the trier of fact when the jury

is not qualified to determine the particular issue “intelligently and to the best possible

degree.” Duckett, 797 S.W.2d at 914. Expert testimony that identifies certain physical

or behavioral manifestations of sexual abuse and relates these characteristics to the

complainant is admissible even if the complainant has not been impeached. Yount v.

State, 872 S.W.2d 706, 708-09 (Tex.Crim.App. 1993); Cohn, 849 S.W.2d at 818-19. On

the other hand, “[e]xpert testimony does not assist the jury if it constitutes ‘a direct

opinion on the truthfulness’ of a child complainant’s allegations.” Schutz v. State, 957

S.W.2d 52, 59 (Tex.Crim.App. 1997) (quoting Yount, 872 S.W.2d at 708). Testimony of

this nature “crosses the line” by deciding the issue for the jury rather than assisting its



                                             7
understanding of the evidence or determination of a fact in issue. See Yount, 872

S.W.2d at 709; Duckett, 797 S.W.2d at 914-15. 5 Parson v. State, illustrates this

distinction.    193 S.W.3d 116 (Tex.App.–Texarkana 2006, pet. refused).              There, a

licensed professional counselor opined that the trial testimony of the defendant’s wife

and stepson differed from their earlier statements and testimony because they suffered

“‘battered woman’s syndrome.’” Id. at 126. The counselor opined of the effect of this

condition on the truthfulness of those so diagnosed but she rendered no direct opinion

of the truthfulness of the witnesses. Id. The court of appeals found no error in allowing

the testimony. Id.


       We find the psychologist here, in the complained-of portion of his testimony, did

no more than express his expert opinion concerning the coping means employed by

victims of sexual assault. On direct examination, he offered no opinion that S.S. was


       5
        This dichotomy was succinctly noted in Rodriquez v. State, 741 P.2d 1200,
1204 (Ak.Ct.App. 1987) (quoted in Duckett v. State, 797 S.W.2d 906, 915
(Tex.Crim.App. 1990)):

           It appears to us that there is a significant distinction between presenting
           a witness, such as a polygraph operator, to testify that a person is telling
           the truth, and presenting a witness who can state that the behavior of a
           witness falls within a common pattern.

           *****

           Testimony by an expert witness that purports to establish by scientific
           principles that another witness is telling the truth treads on dangerous
           legal ground. On the other hand, testimony by an expert witness which
           provides useful background information to aid the jury in evaluating the
           testimony of another witness is admissible.




                                                8
truthful in recounting the events of which she complained. His testimony in that regard

may be compared with that of the forensic interviewer in Fuller v. State, who was asked

directly whether she had formed an opinion whether the child she interviewed “was

being truthful with you.” 224 S.W.3d 823, 835 (Tex.App.–Texarkana 2007, no pet.). In

the present case, the psychologist’s testimony, if believed, would assist the jury’s

evaluation of the testimony of S.S. See Duckett, 797 S.W.2d at 914 (expert testimony

must aid and not supplant the jury). We find no abuse of discretion by the trial court in

admitting the statement of the psychologist of which appellant complains. 6 Appellant’s

second issue is overruled.


       In his third issue, appellant complains the State injected evidence of improper

character conformity, that is “pedophilia” with attraction to children of both genders. The

complaint arises from the following exchange during the cross-examination of appellant:


       Q. [by the prosecutor]:           You [appellant] enjoyed playing with
                                         those little girls in the swimming pool,
                                         didn’t you?


       A. [appellant]:                   Yes, and the–and the young boys.


       Q.                                 Oh, you like boys, too?


       A.                                 Yes.


       6
         Moreover, direct inquiry concerning S.S.’s truthfulness came during cross-
examination of the psychologist. Counsel for appellant inquired whether factors or
indicia were available to detect “lying”; whether the psychologist could determine the
truthfulness and honesty of S.S.; whether it was possible S.S. was not telling the truth.
The court sustained the State’s objection when appellant inquired what was necessary
for the psychologist to determine if S.S. fabricated some or all her story.


                                            9
      Q.                                 So you also–


      [appellant’s counsel]:             Object to the sidebar remark.


      [prosecutor]:                      I was merely clarifying, Your Honor, his
                                         statement.


      [appellant’s counsel]:             It was intended as a sidebar.


      [prosecutor]:                      No, Your Honor.


      The Court:                         Overruled.


      The State argues the claimed error was not preserved as the prosecutor’s

question, “Oh, you like boys, too?” was not an improper side bar remark. “Side bar

remarks are remarks of counsel that are neither questions to the witness nor comments

addressed to the court.”       Brokenberry v. State, 853 S.W.2d 145, 152 (Tex.App.–

Houston [14th Dist.] 1993, pet. refused).       We necessarily view the complained-of

question in the context afforded by the record. The words of the prosecutor apparently

were perceived by the witness as the State’s next question, which he answered. The

side bar objection followed the response as the prosecutor began another question.


      But assuming, arguendo, appellant preserved the issue he presents on appeal,

we nevertheless find it without merit. On appeal, appellant characterizes his answer

“Yes, and the – and the young boys” as “innocent.”         He asserts the State’s next

question obviously and improperly implied that his response was an admission of a

sexual interest in all children, boys and girls. The appellate record, on which we must

base our judgments and which here records merely the words said, does not permit us



                                           10
to engage in the kind of characterizations necessary to the conclusions appellant

asserts. How appellant’s volunteered reference to young boys and the prosecutor’s

next question are to be interpreted depends much on demeanor and inflection of voice.

Consideration of these and other physical factors falls naturally within the sound

discretion of the trial court as it controls the conduct of trial. The permissible scope of

cross-examination is wide-ranging, extending to any matter relevant to the issues.

Woodall v. State, 216 S.W.3d 530, 536-537 (Tex.App.–Texarkana 2007). The conduct

of cross-examination is committed to the sound discretion of the trial court. Sterns v.

State, 862 S.W.2d 687, 690 (Tex.App.–Tyler 1993, no pet.). From the record before us

we perceive no abuse of discretion in the trial court’s overruling of appellant’s objection.

We overrule appellant’s third issue.


                                        Conclusion


         Having overruled appellant’s three issues, we affirm the judgment of the trial

court.




                                                        James T. Campbell
                                                             Justice


Do not publish.




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