      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00479-CR



                                 John Everett Fitch, III, Appellant

                                                   v.

                                    The State of Texas, Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-09-0984, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                             MEMORANDUM OPINION


                John Everett Fitch, III appeals his conviction for the offense of indecency with a child

by contact. In three points of error, Fitch asserts that his trial counsel rendered ineffective assistance

by failing to object to the State’s elicitation of inadmissible expert opinion testimony and that the

trial court erred in admitting hearsay statements during the guilt/innocence phase and in considering

the State’s improper closing argument during the punishment phase of trial. We will overrule Fitch’s

points of error and affirm the judgment of conviction.


                                           BACKGROUND

                A grand jury indicted Fitch for the felony offense of indecency with a child by

contact. The question of Appellant’s guilt or innocence was submitted to the jury.

                At trial the complainant testified that Fitch started fondling her breasts when she was

twelve years old. She testified that on several occasions, usually while she was wearing pajamas
without a bra, Fitch would lift up her shirt, squeeze her breasts, and compliment her on them. He

continued this touching over a period of almost a year, during his off-and-on relationship with the

complainant’s mother, when he intermittently resided with the complainant and her mother. The

complainant also testified that, on occasion, Fitch also tried to look down her pants by tugging at

her waistband.

                 The complainant’s mother testified as an outcry witness and corroborated the

complainant’s testimony. Witnesses also included the two police officers who first responded to the

report of abuse and the child-abuse investigator. Fitch fled to Mexico on the second day of trial.

The trial proceeded, and the jury convicted Fitch in absentia. Fitch was arrested in Mexico and was

returned to Texas. The punishment phase of trial was submitted to the trial court, after which Fitch

was sentenced to twenty years’ imprisonment.


                                             DISCUSSION

Ineffective assistance of counsel

                 Fitch’s first point of error alleges that his trial counsel rendered ineffective assistance

by failing to object to testimony from the child-abuse investigator, Detective Jeri Skrocki. The

alleged errors arise from the State’s line of questioning seeking Skrocki’s opinion about why some

children make a delayed outcry. After a lengthy hearing outside the jury’s presence, the trial court

sustained Fitch’s objection and restricted the State to asking questions such as: whether Skrocki

considered what the complainant’s motivation might have been; whether there were any events that

may have been motivating factors for the outcry; and what might have been the greatest motivating




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factor in this case. The trial court summarized its ruling: “What you cannot ask is [Skrocki’s]

ultimate opinions as to why [the complainant] came forward.”

               Immediately after this hearing, the jury was brought back in, and the State continued

the direct examination of Skrocki. After asking Skrocki about whether she had investigated the

possibility of malicious motivations for the complainant’s outcry and her conclusions about such

motives in this case, the State elicited the following testimony:


               State:          Okay. Did you look at - - we had talked earlier about
                               perpetrators having greater access to a child at a
                               certain point in time. Did you look at that as possibly
                               being a potential motivator in this case [for the
                               complainant] coming forward?

               Witness:        Yes, I did.

               State:          And what, if any, conclusion did you come to with
                               regard to that as a potential motivator?

               Witness:        I thought that could be possible, yes, ma’am.

               State:          And what in particular with regard to this defendant
                               did you - - was the motivator that you knew about
                               through your investigation?

               Witness:        That he was going to have access by moving into the
                               residence on a full-time basis.

               State:          Okay. Relatively close in time to [the complainant’s]
                               outcry?

               Witness:        Yes, ma’am.


Defense counsel did not object to the above testimony, and it is such failure that Fitch alleges

amounted to ineffective assistance. Fitch claims no other errors by his trial counsel.

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               A defendant in a criminal case is entitled to reasonably effective assistance of counsel.

Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). There is a “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance,” and the

defendant has the burden to overcome the presumption that the challenged action was part of

counsel’s sound trial strategy. Strickland v. Washington, 466 U.S. 668, 689 (1986). The test for

ineffectiveness requires a two-step analysis: First, did the attorney’s acts or omissions fall below an

objective standard of reasonableness under prevailing professional norms? If so, was there

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different? See Strickland, 466 U.S. at 690, 695; Hernandez v. State,

726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). An isolated failure to object generally will not

constitute ineffective assistance. Hicks v. State, 837 S.W.2d 686, 692-93 (Tex. App.—Houston [1st

Dist.] 1992, no writ).

               Based on this record, which is silent as to trial counsel’s strategy, and in light of the

presumption that counsel’s representation was competent, we conclude that Fitch has not met his

burden to show that his counsel’s one failure to object was outside the range of reasonable

professional assistance. After a lengthy hearing in which trial counsel zealously advocated to keep

Skrocki’s opinion testimony from being admitted, the trial court specifically approved of the line of

questioning in which the prosecution subsequently engaged. The State’s questions and Skrocki’s

responses fell appropriately within the trial court’s ruling and were not inadmissable expert opinion

testimony on the complainant’s state of mind. Specifically, the testimony was a clarification of how




                                                  4
the generic potential motivator of a perpetrator having greater access to a child applied to the specific

facts of this situation and was necessary to assist the jury’s understanding of Skrocki’s investigation.

                However, even if the State’s questions were improper and defense counsel failed to

meet objective standards of professionalism in failing to object, we cannot conclude that the result

of the proceedings would have been different but for the error. Fitch argues that this prong has been

met because Skrocki’s testimony improperly “bolstered” the complainant’s credibility. Undoubtedly,

an expert’s direct testimony as to the truthfulness of a witness is inadmissible, as it does more than

assist the trier of fact to understand the evidence or to determine a fact in issue and, rather, decides

an issue for the jury. Yount v. State, 872 S.W.2d 706, 709-10 (Tex. Crim. App. 1993). However,

Skrocki did not testify directly or indirectly about the complainant’s credibility, nor

was her testimony offered solely to enhance the complainant’s credibility. See Rivas v. State,

275 S.W.3d 880, 886 (Tex. Crim. App. 2009). We overrule Fitch’s first point of error.


Hearsay

                Fitch’s second point of error asserts that the trial court improperly admitted the

complainant’s hearsay statements to Detectives Brandon Hale and Kenneth Carpenter, who were the

responding officers to the complaint of sexual abuse.

                We review a trial court’s decision to admit evidence over objection, including alleged

hearsay evidence, for an abuse of discretion. Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex. Crim.

App. 1994). An abuse of discretion occurs “only when the trial judge’s decision was so clearly

wrong as to lie outside that zone within which reasonable persons might disagree.” Zuliani v. State,

97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

                                                   5
              The record reflects the following with respect to the State’s direct examination

of Hale:


              State:         Now Detective Hale, you said that you - - at some
                             point you were speaking with [the complainant] about
                             what?

              Defense:       Objection, Your Honor.

              State:         It’s just generally, not saying what she said
                             specifically.

              Defense:       Again, Your Honor, I will object to hearsay.

              Court:         It’s overruled. Just speaking generally, the general
                             subject of your conversation.

              Witness:       About her being touched by an individual.

              State:         And through your continued investigation were you
                             able to ascertain any information that led you to a
                             suspect in this case?

              Witness:       Yes. She identified the - -

              Defense:       Your Honor, I’m going to object to hearsay here.

              Court:         Overruled.

              Witness:       She identified the subject as—touched her as
                             Mr. Fitch, her boyfriend—her mother’s boyfriend.


              We conclude that the above-referenced testimony was not hearsay because it was

not offered to prove the out-of-court statement. See Tex. R. Evid. 802; Schaffer v. State,

777 S.W.2d 111, 114 (Tex. Crim. App. 1989). The trial court did not abuse its discretion in

admitting the testimony because the evidence could reasonably be construed to have been offered

                                               6
to prove how Hale’s investigation led him identify the defendant as a suspect and inform his

determination of how to further investigate the complaint. See Dinkins v. State, 894 S.W.2d 330,

347 (Tex. Crim. App. 1995); McCreary v. State, 194 S.W.3d 517, 521 (Tex. App.—Houston [1st

Dist.] 2006, no pet.).

               Furthermore, the improper admission of evidence does not constitute reversible error

if the same facts are proved by other properly admitted evidence. Leday v. State, 983 S.W.2d 713,

718 (Tex. Crim. App. 1998). Besides Hale’s testimony, both the complainant and her mother, the

outcry witness, testified without objection to the same evidence about which Fitch complains: that

Fitch was identified by the complainant as her assailant. Thus, even if Hale’s testimony were

inadmissible hearsay and the trial court abused its discretion in admitting it, such admission does not

constitute reversible error.

               In the same point of error, Fitch complains that the following testimony of Detective

Carpenter was also hearsay:


               State:          Okay. And let’s talk about physical evidence. You
                               were aware of what the allegations entailed in this
                               case, right?

               Witness:        Yes.

               State:          And what was your understanding of what the
                               allegations were?

               Witness:        It was inappropriate contact.

               State:          With what?

               Witness:        A child.



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               State:          Okay. By doing what, do you recall?

               Witness:        Touching - -

               Defense:        Your Honor, I’m going to get - - I have an objection.
                               This is hearsay because this all - -

               ....

               Court:          Wait. Okay. Stop. The objection is hearsay. It’s
                               overruled.

               State:          What was your understanding of the type of touching
                               that was alleged?

               Witness:        Contact of [the complainant] under her shirt, touching
                               her breasts.

               State:          Okay. So you say that you have had some training
                               with regard to sex offenses against children. Okay. If
                               someone touches a child’s breasts with their hands,
                               tell this jury what kind of physical evidence are you
                               going to have to collect.

               Witness:        From the time the offense occurred and the time that
                               we were taking the report, absolutely none.


               As with Hale’s testimony, we conclude that the trial court could reasonably have

concluded that Carpenter’s testimony was offered not to prove the truth of the matter asserted (that

Fitch touched the complainant’s breasts), but to explain the type of physical evidence they would

expect to find. The admissibility of Carpenter’s testimony was within the “zone of reasonable

disagreement,” and the trial court did not abuse its discretion in admitting it. Furthermore, as with

Hale’s testimony, even if the trial court erred in admitting Carpenter’s testimony, such error is not

reversible because substantially the same facts were proven by the unobjected-to testimony of the



                                                 8
complainant and her mother. See Burks, 876 S.W.2d at 898. Accordingly, we overrule Fitch’s

second point of error.


Improper closing argument regarding defendant’s alleged lack of remorse

               Fitch’s third point argues that the trial court erred in considering the State’s closing

argument during the bench trial on punishment that Fitch had not shown remorse for his conduct,

which argument he alleges was equivalent to an impermissible comment on his constitutional

privilege against self-incrimination. See Tex. Const. art. I, § 3; Tex. Code Crim. Proc. art. 38.08.

The State contends that Fitch’s objection was not specific enough to inform the trial court of the

nature of the objection; the argument was not improper; and in any case, there was no harm because

the argument was made to the trial judge rather than a jury.

               Fitch complains about the following closing argument:


               State:         A couple of things, Your Honor. First of all, I mean
                              look at him. When he came to trial he was gray
                              headed and he had a gray beard. You can look at him
                              and see that he dyed his hair. He dyed his beard. You
                              can see where it’s even growing out. That again goes
                              to show his intent to hide himself and to secrete
                              himself away from justice.

                              And what you can consider - - what any court can
                              consider in determining punishment is the same things
                              that any jury can consider. You can consider his
                              criminal history. That’s significant. This man is a
                              predator on children in both physical abuse and sexual
                              abuse he has inflicted on children.

                              You can consider his actions. He fled during the
                              middle of his trial. He purposely tried to secrete
                              himself away. He stands here silent while his counsel

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                               tells you that he did it because he was afraid. Well, he
                               may well have been afraid of facing the music for
                               what he did. That’s what you should assume.

               Court:          So we’re clear, he was talking about what a witness
                               said, not that his client said.

               Defense:        That’s correct, Your Honor.

               State:          You can also consider his lack of remorse. He
                               showed no remorse during the whole entirety of his
                               probation period for the injury to a child. He has
                               shown no remorse whatsoever to - -

               Defense:        Your Honor, I will object to speculation on that. I
                               mean where is counsel getting that statement?

               Court:          We are in argument. I’m going to overrule all of your
                               objections. I was there. I’ve done this before. I
                               understand what argument is and I understand what
                               the facts are. Objection, overruled.

                               You can proceed.

               State:          He’s shown - - he’s shown no remorse for anything
                               that he’s done. He’s shown no rehabilitation. In fact,
                               he went on to commit even more heinous crimes after
                               he completed his probationary period.


               Earlier during the State’s argument, the trial judge expressed his concern with the fact

that Fitch had fled to Mexico during the guilt/innocence phase of the trial and, after Fitch stipulated

to that fact, the judge stated that he would make his “own determination” about Fitch’s

“consciousness of guilt.” The State argued about the conclusions one might draw from Fitch’s flight




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and entered into evidence criminal records showing Fitch’s prior felony conviction for injury to a

child by breaking a two-year old’s femur. The State urged for the maximum sentence of

twenty years.

                We agree with the State that Fitch’s trial objection as to “speculation” was not

specific enough to preserve the error he now raises alleging impermissible comment on his failure

to testify. See Tex. R. App. P. 33.1(a); Earnhart v. State, 582 S.W.2d 444, 449 (Tex. Crim. App.

1979) (objection of “not a proper argument” held not specific enough to preserve complaint that

argument was comment on defendant’s failure to testify); Sloan v. State, 515 S.W.2d 913, 915-16

(Tex. Crim. App. 1974) (objection that no witness could rebut defendant’s alleged statement held

not sufficient to preserve complaint about comment on failure to testify); Levingston v. State,

651 S.W.2d 319, 323 (Tex. App.—Dallas 1983, writ ref’d) (per curiam) (objection to closing

argument must inform trial court of basis of objection, affording judge opportunity to rule and cure

any harm). A plain reading of the transcript reveals that Fitch’s objection was to “speculation,” that

is, to the State’s alleged attempt to inject facts not properly admitted into evidence. We cannot

conclude that Fitch’s objection as presented on appeal was apparent from the context. Moreover,

the trial court’s response and ruling reveals no indication that the trial court interpreted the

defendant’s objection as involving his constitutional privilege to be free from self-incrimination, and

we note that defense counsel did not seek to clarify the grounds for his objection, redirect the court’s




                                                  11
attention to a different ground, or press for further relief.1 Therefore, Fitch has not preserved the

error for our review, and we accordingly overrule his third point of error.


                             CLERICAL ERROR IN JUDGMENT

               Lastly, we observe that the judgment of conviction contains a clerical error.

Specifically, the judgment erroneously identifies the defendant as “John Everett Fitch” instead of

“John Everett Fitch, III.” This Court has the authority to modify incorrect judgments when the

necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State,

865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment of conviction

to reflect that the defendant’s name is “John Everett Fitch, III” and affirm the judgment as modified.


                                          CONCLUSION

               For the foregoing reasons, we overrule all three of Fitch’s points of error, modify the

judgment of conviction as noted above, and affirm the judgment as modified.




       1
          Additionally, we observe the argument here was made to the judge, not a jury, and we must
presume that it could not have been calculated to inflame the mind of the judge, a person whom
we must presume was well informed of the defendant’s constitutional privilege against
self-incrimination.

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                                           _____________________________________________

                                           Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Modified and, as Modified, Affirmed

Filed: February 26, 2014

Do Not Publish




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