Opinion filed July 14, 2011




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-09-00228-CR
                                         __________

                       MATTHEW JAMES SHARP, Appellant

                                                V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 35th District Court
                                      Brown County, Texas
                                 Trial Court Cause No. CR19700


                              MEMORANDUM OPINION

       Matthew James Sharp pleaded guilty to the offense of indecency with a child by contact,
a second degree felony under TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011). After the
trial court found appellant guilty pursuant to his plea, the jury assessed punishment at
confinement for sixteen years. We affirm.
       Appellant presents three issues relating to the punishment phase of trial. In the first issue,
appellant argues that the trial court abused its discretion in denying a motion for mistrial based
upon a violation of ―the rule,‖ TEX. R. EVID. 614, by the victim and her counselor, Linda Harriss.
Harriss – a registered nurse, licensed professional counselor – had been treating the victim for
about ten months at the time of trial.      The victim in this case delayed her outcry against
appellant, and Harriss testified that she thought the victim still had not disclosed all of the details
of the sexual abuse. On redirect, the State informed Harriss that the victim had testified in court
that appellant had caused her to perform oral sex on him. The State asked Harriss if that
surprised her, and Harriss responded that it did not.                The State then suggested that this
information was new to Harriss, but Harriss stated that, when she saw the victim ―while ago,‖ the
victim ―disclosed that to [her].‖ Appellant objected to the witnesses’ violation of the rule. The
trial court agreed that the rule had been violated but did not believe that any damage had been
done. The trial court directed the State ―to move off of that line of questioning.‖ Appellant then
moved for mistrial.
       A trial court’s denial of a mistrial is reviewed for an abuse of discretion and must be
upheld if it was within the zone of reasonable disagreement. Ocon v. State, 284 S.W.3d 880, 884
(Tex. Crim. App. 2009). A mistrial is an extreme remedy that should be granted ―only when
residual prejudice remains‖ after less drastic alternatives are explored. Id. at 884-85. Though
requesting lesser remedies is not necessarily a prerequisite to a motion for mistrial, when the
movant does not first request a lesser remedy, we will not reverse the trial court’s judgment if the
problem could have been cured by a less drastic alternative. Id.; Young v. State, 137 S.W.3d 65,
70-71 (Tex. Crim. App. 2004). In this case, appellant did not request any lesser remedies, such
as an instruction to disregard, or ask to take the witness on voir dire to determine the extent of
any rule violation. The error in this case was not incurable. Thus, we cannot hold that the trial
court abused its discretion in denying appellant’s motion for mistrial. Appellant’s first issue is
overruled.
       In his second issue, appellant contends that the trial court erred in permitting Harriss to
give her opinion as to whether there were ―still things that [the victim] is holding back.‖
Appellant objected that such testimony was inadmissible under TEX. R. EVID. 702,1 that Harriss
could not testify as to the truthfulness of the victim, and that Harriss could not testify as a
―clairvoyant‖ as to whether the victim had told her everything.                   The trial court overruled
appellant’s objection. Harriss then testified, ―Based upon what she did tell me and what the

       1
           Rule 702 provides:

                If scientific, technical, or other specialized knowledge will assist the trier of fact to
       understand the evidence or to determine a fact in issue, a witness qualified as an expert by
       knowledge, skill, experience, training, or education may testify thereto in the form of an opinion
       or otherwise.

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norm is in victims that I see, especially when it has gone on for four years, and based upon how
she so desperately has struggled through this, I felt like there was more disclosure to come.‖
       Appellant relies on Sessums v. State, 129 S.W.3d 242 (Tex. App.—Texarkana 2004, pet.
ref’d), in support of his argument. In Sessums, expert witnesses directly testified as to the
truthfulness and credibility of the child who was the victim in that case. 129 S.W.3d 247-48.
Such testimony is inadmissible under Rule 702. Yount v. State, 872 S.W.2d 706, 711 (Tex.
Crim. App. 1993). In contrast to the experts in Sessums, Harriss did not testify regarding the
truthfulness of the victim. Under Rule 702, it was permissible for Harriss to testify regarding
behavioral characteristics common among abused children and to give her expert opinion
regarding the victim’s delayed disclosure. See Reyes v. State, 274 S.W.3d 724, 730 (Tex.
App.—San Antonio 2008, pet. ref’d). The trial court did not abuse its discretion in permitting
such testimony. Appellant’s second issue is overruled.
       In his final issue, appellant contends that the trial court erred in permitting improper
testimony from the Child Protective Services caseworker, Amanda Presswood.               Appellant
specifically complains of Presswood’s testimony that appellant failed to follow the ―service
plan‖ and that one of the victim’s younger sisters exhibited conduct suggesting that she had also
been abused. Appellant objected at trial that he had not received notice of the State’s intent to
introduce evidence of his failure to follow the service plan and that his failure to follow the
service plan was irrelevant. The trial court overruled appellant’s objection. Presswood
subsequently testified that the purpose of the service plan, which was instituted after the victim’s
allegation of sexual abuse, was family reunification and that appellant failed to complete the
psychosexual evaluation, the psychological evaluation, the sex offender risk assessment, or
therapy as provided for in the service plan.
       At the punishment phase of trial, evidence may be offered as to any matter the trial court
deems relevant to sentencing, including ―evidence of an extraneous crime or bad act that is
shown beyond a reasonable doubt by evidence to have been committed by the defendant or for
which he could be held criminally responsible.‖ TEX. CODE CRIM. PROC. ANN. art. 37.07,
§ 3(a)(1) (Vernon Supp. 2010). If requested, the State is required to give notice of its intent to
introduce such evidence. Id. Article 37.07, § 3(g).
       The record shows that appellant filed an application for probation. Appellant’s failure to
follow the service plan by refusing any treatment, therapy, or evaluation with respect to his

                                                 3
sexual abuse of the victim was, therefore, relevant to the jury’s determination of whether
appellant was suitable for community supervision. See Ellison v. State, 201 S.W.3d 714 (Tex.
Crim. App. 2006) (suitability for community supervision is a matter relevant to sentencing under
Article 37.07, section 3(a)). Furthermore, the State was not required to give notice under
Article 37.07, section 3(g) because appellant’s failure to follow the service plan did not
constitute an extraneous crime or bad act. See Coffel v. State, 242 S.W.3d 907 (Tex. App.—
Texarkana 2007, no pet.) (the defendant’s technical violations of a previous community
supervision were not extraneous offenses, and pretrial notice was not required).
         With respect to Presswood’s testimony regarding the victim’s sister’s acting out, we note
that appellant did not object at trial to any lack of notice of the State’s intent to introduce that
evidence. Therefore, that complaint has not been preserved for appellate review. TEX. R.
APP. P. 33.1(a). Appellant states in his brief that he objected ―on a number of grounds, including
rule 702.‖ The record shows that appellant objected ―that she is not qualified to answer under
702‖ when the State asked Presswood: ―In your experience, do children always come out and
outcry against the person they love immediately?‖                              The trial court overruled appellant’s
objection. In his brief, appellant fails to present any argument as to Presswood’s qualifications
or Presswood’s testimony being in violation of Rule 702. See TEX. R. APP. P. 38.1(i) (requiring
appellant’s brief to include a clear and concise argument for the contentions made).
Furthermore, Presswood had experience as a CPS caseworker and was asked to answer a
question based upon that experience.                        Appellant has not shown that the testimony was
inadmissible under Rule 702.                   We hold that the trial court did not abuse its discretion in
admitting the complained-of evidence. Appellant’s third issue is overruled.
         The judgment of the trial court is affirmed.




July 14, 2011                                                                               JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b).                                                CHIEF JUSTICE
Panel2 consists of: Wright, C.J.,
McCall, J., and Hill, J.3

         2
           Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         3
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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