









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-07-00175-CR

______________________________



ROGER DALE GENTRY, Appellant

 
V.


THE STATE OF TEXAS, Appellee





On Appeal from the 5th Judicial District Court

Cass County, Texas

Trial Court No. 2006F00129






Before Morriss, C.J., Moseley and Cornelius,* JJ.

Memorandum Opinion by Justice Cornelius


________________________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION


	Roger Dale Gentry appeals from his conviction by a jury for aggravated sexual assault of a
child.  See Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii) (Vernon Supp. 2008). (1)  The jury assessed
his punishment at life imprisonment and a $5,000.00 fine.  Gentry has two other convictions
currently on appeal before this Court. (2)
	Gentry's first four points of error contend he was denied his right of confrontation of
witnesses when the trial court refused to allow him to cross-examine witnesses and the child victim,
H.G., about statements H.G. allegedly made to a schoolmate in which H.G. described Gentry as
having come to her house and raped her.
	In two related points, Gentry contends the trial court erred in allowing a State's expert witness
to testify, although the State allegedly had failed to comply with a discovery order to give Gentry
notice of the data on which the expert's opinion was based; and the trial court erred in partially
closing the courtroom when the child victim testified.  In Gentry's final point, he contends the trial
court erred in allowing the State to introduce evidence of an extraneous offense committed by
Gentry.  We overrule all these points and affirm the judgment.
FACTUAL BACKGROUND
	H.G.'s parents divorced when H.G. was an infant.  H.G. testified that, when she was six years
old and went to visit her father, she would often spend time with her aunt, Sue Gentry, and Sue's
husband, Gentry, the appellant here.  Sue Gentry was the sister of John Garrett, H.G.'s father.  Garrett
and Gentry both worked for the Cass County Sheriff's Department.  H.G. called Gentry "Uncle
Dale."
	H.G. made outcries to three persons about three different incidents.  Gentry does not
complain about the admissibility of the outcry statements.  H.G. testified that, when she would visit
the Gentrys, "Uncle Dale" would take care of or watch over her and they would spend time together
while no one else was around.  She said that, one day, Gentry laid her on the hood of a car, pulled
down her shorts and panties, and licked her privates.  She said the Gentrys had a long driveway that
enabled one to see a car approaching from a distance and that Gentry stopped this conduct when he
saw H.G.'s father coming up the driveway. 
	H.G. said Gentry would sometimes let her sit on his lap as he drove, and she would help him
steer the vehicle.  She said that, one day while doing this, Gentry reached down and unzipped his
pants, allowing his sexual organ to come out.  Gentry then sat her in the middle of the seat, forced
her head down, and put her mouth on his sexual organ.  H.G. also described a time she and Gentry
went to a pond behind Gentry's house.  While there, Gentry laid her on a log, removed her shirt, and
touched her breasts.
	Gentry's first four points concern several statements allegedly made by H.G. about which
Gentry wanted to cross-examine witnesses.  The report of Ranger Jay Womack's investigation of this
matter contains a reference to a statement allegedly made by H.G. to a schoolmate, A.H., that Gentry
would spy on H.G. through her bedroom window, then come into her room and get on top of her. 
Both H.G. and her mother said Gentry had never been to the Garrett home.  At trial and at oral
argument before this Court, the State and the defense agreed that, if asked, H.G. would deny saying
this to A.H. and that H.G. had denied this statement at a prior trial in this case.  H.G. also described
a "tattoo" Gentry purchased at a Shell service station and then put on his penis.  But when Ranger
Womack showed H.G. a condom and stick-on tattoos, H.G. said neither was what she had been
talking about.  The statement about Gentry spying on her and coming into her room was not allowed
before the jury, but the story about the tattoo, as well as evidence that H.G. told the Ranger that
Gentry had sexually assaulted two other girls, Jennie and Kayla, when he had not, did come before
the jury.  Also, H.G. testified that one time Gentry took her to a dog pen near his house and put her
in the pen with the dogs until her aunt Sue came.  Gentry and his wife, Sue, both testified there was
no dog pen on their property and no such incident happened.  H.G.'s school counselor, to whom H.G.
made an outcry, testified that H.G. left her a note saying that Gentry pushed her head under water.
Gentry's counsel told the court, outside the presence of the jury, that H.G. also said she inflated
"floaties" on her arms to keep from going under.  Sue testified she had never seen evidence, when
H.G. was at their house, that H.G. had been put in water.
	Gentry contends the trial court erred in limiting his ability to cross-examine the State's
witnesses regarding the statements allegedly made by H.G. to A.H.
LIMITATION OF CROSS-EXAMINATION OF STATE'S WITNESSES
 State's Expert Laura Greuner
	Laura Greuner, a therapist specializing in child sexual abuse and child trauma, testified for
the State.  She testified about common behavior exhibited by children who have been the victims
of sexual abuse.  She said typical behavior or characteristics include acting out, low grades,
nightmares, anxiety, and pseudomaturity.  The State's counsel asked her about other characteristics
of abused children and Greuner acknowledged them.  Greuner said that H.G.'s theft of a cell phone
and falsely saying two classmates had also been sexually assaulted by Gentry were not unusual for
victims of sexual assault.  Ranger Womack had said that, while H.G. had told him about two
classmates, in his investigation, he found that one, Jennie, had not been assaulted, and the second,
Kayla, was a name made up by H.G.  Greuner said such actions were consistent with abused children
because they need to find a variety of ways to tell what happened to them.  Greuner said that H.G.'s 
theft of a cell phone from a teacher, where H.G. had no prior history of such conduct, was consistent
for a child sexual assault victim, in that the act could reflect anger, frequently seen in such victims.
	Gentry argues that the trial court violated his cross-examination and confrontation rights in
refusing to allow him to cross-examine Greuner on whether she was aware that H.G. had previously
stated that Gentry came to her house at night, spied on her while she took a bath, and raped her.
	We review evidentiary rulings under an abuse of discretion standard.  Salazar v. State, 38
S.W.3d 141, 153-54 (Tex. Crim. App. 2001).  The trial court abuses its discretion when it acts
without reference to any guiding rules and principles, or acts in an arbitrary or capricious manner.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).  A trial court does
not abuse its discretion if its ruling is at least within the zone of reasonable disagreement.  Salazar,
38 S.W.3d at 153-54.
	With respect to both the Confrontation Clause and the general principle of permitting the
impeachment of the credibility of any witness, the trial court retains broad discretion to impose
reasonable limits on cross-examination in order to avoid harassment, prejudice, confusion of the
issues, possible danger to the witness, and the injection of cumulative or collateral evidence.  Lopez
v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).  The rights of confrontation and impeachment
guarantee only an opportunity for effective cross-examination, not cross-examination that is effective
in whatever way and to whatever extent the defense may wish.  Del v. Van Arsdall, 475 U.S. 673,
679 (1986); Delaware v. Fernsterer, 474 U.S. 15, 20 (1985); see also Booker v. State, 929 S.W.2d
57, 65 (Tex. App.--Beaumont 1996, pet. ref'd).  The Texas Court of Criminal Appeals has
recognized both the right and the limitations on the right of cross-examination.  Issues regarding the
Confrontation Clause must be examined on a case-by-case basis, taking into account both the
defendant's right of cross-examination and the risk factors associated with the admission of the
evidence.  When there is a conflict between the Confrontation Clause and the Texas Rules of
Evidence, the Constitution must control, but where possible, such inconsistency should be removed
by reasonable construction.  Lopez v. State, 18 S.W.3d at 222-23.
	Rejecting Gentry's objection, the trial court stated:
		The fact that an expert may have and review the Ranger's report doesn't
necessarily mean that everything in the report then becomes admissible into evidence
and subject to cross examination of the expert.  . . .  The fact that an expert may
reasonably rely upon the conduct of a child victim, discussing what happened to her
with other playmates is one thing.  To then say that she can be cross examined about
a statement allegedly made by the victim to another playmate that the victim denies
making, to me, strains the reach of Rule 703.

The trial court clearly made its decision with reference to guiding rules and principles, and did not
act in an arbitrary or capricious manner.  See Lam v. State, 25 S.W.3d 233, 236-37 (Tex.
App.--San Antonio 2000, no pet.).
	Gentry cites Wheeler v. State for the proposition that an opposing party is always entitled to
cross-examine an expert witness concerning the facts and data on which the expert relied in forming
a conclusion or opinion, and also about information of which the expert was aware but on which she
did not rely.  Wheeler v. State, 67 S.W.3d 879, 883 (Tex. Crim. App. 2002).  The decision in
Wheeler v. State is not on point with the case before us.  In Wheeler v. State, the Texas Court of
Criminal Appeals ruled that the trial court had the discretion to allow the cross-examination of the
expert because she had "opened the door" to the evidence.  In our case, the question to be decided
is whether the trial court had the discretion to refuse to allow the cross-examination because of the
danger of unfair prejudice, harassment, confusion of issues, and the injection of cumulative or
collateral evidence.  We conclude that the trial court did have such discretion.
	If it can be considered that the trial court erred in this regard, we conclude, beyond a
reasonable doubt, that any error was clearly harmless and did not contribute to the conviction or
punishment or affect Gentry's substantial rights.  The trial court stated its reasons for not allowing
Gentry to question Greuner on this collateral issue.  Additionally, we note that Greuner was privy
to and testified about other statements and conduct by H.G. that called into question H.G.'s
credibility, e.g., that H.G. had falsely said that Gentry had also abused two schoolmates of hers,
"Jennie" and "Kayla" and that H.G. stole a teacher's cell phone.
 Limitation of Cross-Examination of Child Victim, H.G.
	The trial court refused to allow Gentry to bring up H.G.'s purported statement to A.H. when
H.G. was testifying.  Later, Gentry announced that he intended to call A.H. to testify, whereupon the
trial court ruled it would not allow such testimony. (3)  Gentry made an offer of proof as to what he
anticipated A.H. would say if called, that is, she would say that H.G. told her that Gentry came to
H.G.'s house to spy on H.G., came into H.G.'s room, took his clothes off, and raped H.G.  Gentry told
the trial court he wanted to question H.G. and A.H. about the statements contained in the Ranger's
report in order to impeach H.G.'s credibility.  Gentry argued that the alleged statement of H.G. to her
schoolmate A.H. about Gentry spying on her at her home and coming into her room and raping her
was inconsistent with her allegations of sexual assault and indecency by Gentry.  Gentry contended
that this qualified as an inconsistent statement because both H.G. and her mother would testify that
Gentry had never been to their house.
	When considering his ruling on Gentry's request to question H.G. and A.H. about this
purported statement, the trial court took the position that the statement was conduct and would be
inadmissible for impeachment purposes under Rule 608(b) of the Texas Rules of Evidence.  See
Tex. R. Evid. 608(b).  The trial court stated, "The conduct is the lie.  . . . that's what 608(b)
specifically prohibits."  We have held that a victim's false allegation of sexual misconduct against
a person other than the defendant could not be inquired into in a sexual assault case to impeach the
victim's credibility because, among other reasons, it constituted conduct within the meaning of Rule
608(b) of the Texas Rules of Evidence.  Benjamin v. State, No. 06-01-00022-CR, 2002 Tex. App.
LEXIS 3289 (Tex. App.--Texarkana May 10, 2002, pet. ref'd) (not designated for publication).  We
also find several other proper legal bases the trial court could have found that support its exclusion
of this cross-examination.
	We reiterate the standards and citations referred to above regarding the trial court's discretion
in the admission or exclusion of evidence.  The trial court retains broad discretion to impose
reasonable limits on cross-examination to avoid harassment, undue prejudice, confusion of the
issues, endangering the witness, and the injection of cumulative or collateral evidence.  Moody v.
State, 827 S.W.2d 875, 891 (Tex. Crim. App. 1992).
	We find the trial court here did not abuse its discretion in excluding this evidence.  We reach
this decision after considering the trial court's substantial discretion regarding the admission or
exclusion of evidence, as well as its discretion to limit cross-examination and to avoid allowing the
proceeding to devolve into a trial of multiple sub-issues on collateral matters.  Additionally, we point
out there are other allegedly inconsistent or incredible statements by H.G. that were before the jury
that militated against her credibility, such as the statement describing a "tattoo" Gentry put on his
penis; her fictionalization of a child named "Kayla," and her allegation that Gentry had assaulted that
child and another of H.G.'s schoolmates; H.G.'s claim that Gentry put her in a dog pen, where there
was testimony no dog pen existed; and H.G.'s statement that Gentry put her head under water,
disputed by Sue Gentry who said she would have noticed if H.G. had shown evidence of having been
put under water.  The fact that substantial evidence casting doubt on H.G.'s veracity was put before
the jury lessens any potential value of this excluded "impeachment" evidence and lends support to
the trial court's exercise of discretion in excluding it.  If the trial court's action in excluding the
evidence was error, we find the error was harmless beyond a reasonable doubt, because this
additional "impeaching statement" of H.G. would not likely have added to the weight or force of the
other impeachment evidence already before the jury.
 Cross-Examination of H.G.'s School Counselor
	Gentry also asserts the trial court violated his constitutional confrontation right when it
refused to allow Gentry to cross-examine school counselor Cassandra Rhone about a statement
purportedly made by H.G. to a schoolmate.  Rhone testified she gave H.G. some paper and a pencil
to "sort of jot down things . . . ."  After that, H.G. began leaving notes to Rhone under Rhone's door. 
One of the notes said, "[H]e's pushing me in the water."  There was some question whether this had
happened.  Rhone also testified H.G. told her about a time when she and Gentry went out to see a
dog pen where they were going to feed the dogs, but that Gentry fooled her because he had already
fed the dogs.  H.G. said she screamed and Sue Gentry came out.  Sue testified there was no dog pen
on the property, and she was equivocal as to whether H.G. had ever screamed and drawn her outside.
	Gentry wanted to cross-examine Rhone about the purported statements by H.G. to A.H. in
order to impeach her credibility.  We note that Rhone, like Greuner, was privy to and testified about
other statements or conduct by H.G. that adversely reflected on H.G.'s credibility.  Thus, the jury was
presented with evidence that potentially impeached H.G.'s credibility.  Reviewing the totality of the
testimony, we conclude that the trial court did not abuse its discretion in precluding Gentry from
further questioning Rhone about these statements.
ALLOWING STATE'S EXPERT MOORE TO TESTIFY
	Gentry also complains of the trial court's allowing the State to present expert testimony from
Deborah Moore.  Moore testified that she worked with males who had undergone surgical
procedures to remove their prostate glands.  Moore testified that, even if a male could not achieve
an erection, a common result of the surgical removal of the prostate, the inability did not preclude
the person from committing a sexual assault.  Gentry claimed he had his prostate gland surgically
removed, and as a result, could not achieve an erection.
	Gentry's complaint is that the trial court entered, in January 2007, a discovery order requiring
the State to provide Gentry the name and address of any State expert to be used in the trial, as well
as the underlying facts and data for the experts' opinions.  See Tex. R. Evid. 705.  Before trial, the
State furnished Gentry notices identifying the experts it would present, but did not furnish any
specific facts or data on which Moore would rely in her testimony.  The trial court asked the
prosecutor if Moore had been provided with anything that had not previously been furnished to
defense counsel, and the prosecutor said she had not.  The trial court overruled Gentry's objection
to Moore's testimony.
	Gentry was allowed a running objection to Moore's testifying, whereupon defense counsel
questioned Moore on voir dire.  Moore was asked what facts or data she relied on in reaching her
opinions.  She said, "Twenty-five years of experience working with sexual offenders who have had
various medical conditions resulting in an inability to achieve an erection."  When asked to tell what
documentation she relied on, she said, "I have seen medical reports.  I have relied on sexual histories
provided by those clients and verified with polygraph exam.  I think those are the two sources."
	The standard of review for a trial court's ruling on the admission of evidence is an abuse of
discretion.  See Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.--Texarkana 2000, pet. ref'd).  On this
issue, the trial court stated clearly that its reason for ruling as it did was that, as it understood the
testimony, Moore did not base her testimony on material given her by the State, but on her
experiential knowledge acquired in her work.  Under questioning by the trial court, Moore said she
had not, in preparation for her testimony, reviewed medical records or histories of her clients.  She
did say she had reviewed a report given her by the State that was prepared by Ranger Womack and
she had reviewed that report, but her testimony was based solely on her own knowledge.
	Gentry does not dispute that he was given the Ranger's report, albeit in a different context. 
Moore did not testify as to any of Gentry's medical records, but only discussed the general medical
implications of a radical prostatectomy.  The trial court ruled that the State had substantially
complied with the discovery order by furnishing Gentry with the Ranger's report.  We find that
Gentry had adequate notice of what Moore reviewed.  The record does not support a finding of bad
faith on the part of the State, and the trial court did not abuse its discretion in allowing Moore to
testify.
DENIAL OF MOTION FOR A CONTINUANCE
	When the trial court denied Gentry's objection to Moore's testimony, Gentry moved for a
continuance, which the court denied.  The trial court's ruling on a motion for a continuance is
reviewed for an abuse of discretion.  Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995);
see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06(6) (Vernon 2006).  To establish an abuse of
discretion, there must be a showing that the defendant was actually prejudiced by the denial of the
motion.  Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).  Moreover, a motion for
a continuance must be in writing.  Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999). 
The record does not show a written motion for a continuance, and Gentry has not shown prejudice. 
We find no abuse of discretion in this regard.
TRIAL COURT'S DISCRETION TO PARTIALLY CLOSE COURTROOM
	When H.G. was about to take the stand, the trial court partially closed the courtroom.  The
matter was discussed at a pretrial hearing where the court stated its intention of allowing only
immediate family and necessary personnel to be present during H.G.'s testimony.
	Gentry contends the trial court's action in partially closing the courtroom violated his Sixth
Amendment right to a public trial.  To protect the well-being of a child complainant, the trial court
may partially close an otherwise public trial.  Fayerweather v. Moran, 749 F.Supp. 43 (D. R.I. 1990). 
The trial court has broad discretion to administer proceedings in the courtroom.  See State ex rel.
Rosenthal v. Poe, 98 S.W.3d 194, 199 (Tex. Crim. App. 2003).  This discretion includes the right
to partially close the courtroom by excluding certain nonessential persons because of the extremely
sensitive nature of the evidence being developed and the youthful age of the witness.  Mosby v. State,
703 S.W.2d 714 (Tex. App.--Corpus Christi 1985, no pet.).  Moreover, there is a firmly established
practice in Texas of allowing child victims to testify via closed circuit television.  See Belt v. State,
227 S.W.3d 339 (Tex. App.--Texarkana 2007, no pet.); Ruiz v. State, 939 S.W.2d 245, 246 (Tex.
App.--Austin 1997, no pet.); see also Maryland v. Craig, 497 U.S. 836, 855 (1990).  We find the
trial court acted within its discretion in partially closing the courtroom during the testimony of the
child victim in this case.
INTRODUCTION OF EXTRANEOUS OFFENSE
	The State attempted to introduce evidence of two extraneous sexual offenses committed by
Gentry.  One of those offenses was a sexual offense allegedly committed against a two- or three-year-old child that occurred more than twenty years ago.  The trial court refused to allow evidence
of that offense on the basis of remoteness since the victim was only two or three years old at the
time.  The other extraneous offense was one against Linda Marteal Kitchings when she was about
ten years of age.  The trial court allowed evidence of that extraneous offense.  Kitchings testified
that, in 1978, her parents were friends with Gentry and his wife at that time.  Kitchings said that,
when she was about ten years old and during a time when Gentry and his wife were babysitting
Kitchings, Gentry cornered her in the bathroom of his house.  He removed Kitchings' clothes and
forced her to perform oral sex on him.  Kitchings said Gentry ejaculated.  She said that, on a second
occasion, Gentry came into a bedroom where she was lying down.  With his pants down, he climbed
on top of her, achieved an erection, and ejaculated.
	Again, we note that the trial court's ruling on the admission or exclusion of evidence is
reviewed for an abuse of discretion.  However, as concerns the admission of evidence of extraneous
offenses, there are limits.  A defendant is not to be tried for his general disposition to be a criminal,
but only for the specific acts alleged in the charging instrument.  Abdnor v. State, 871 S.W.2d 726,
738 (Tex. Crim. App. 1994); see Tex. R. Evid. 404(b).  Rule 404(b) of the Texas Rules of Evidence
allows the introduction of evidence of extraneous offenses to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.  Tex. R. Evid. 404.  This
list is not exhaustive, but illustrative.  Johnson v. State, 145 S.W.3d 215, 219 (Tex. Crim. App.
2004); 1 Steven Goode, et al., Texas Practice:  Guide to the Texas Rules of Evidence § 404.6.1 (3d
ed. Supp. 2008).
	In this case, the State advised the trial court it was offering evidence of the assault on
Kitchings as evidence of plan, method of operation, and common scheme.  But when the trial court
allowed the introduction of the evidence, it based its ruling on Gentry's asserted defense of medical
impossibility.  Gentry had produced evidence that, in 1999, he had his prostate gland surgically
removed, and the operation rendered him totally unable to have an erection and he could not commit
a sexual  assault.  The alleged assault on Kitchings, however, occurred some twenty years before
Gentry had his surgery.	
	We will uphold the trial court's ruling if it is legally correct, even if the court's stated reason
for admitting the evidence is erroneous.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Dugard v. State, 688 S.W.2d 524, 530 n.2 (Tex. Crim. App. 1985), overruled on other
grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989); Abshire v. State, 62
S.W.3d 857, 861 (Tex. App.--Texarkana 2001, pet. ref'd).  The State originally proffered Kitchings'
testimony under the exception to Rule 404(b) that allows evidence of extraneous offenses to
establish a common scheme or method of operation.  The State pointed out that both H.G. and
Kitchings testified they were assaulted by Gentry while they were in his charge, as if he was
babysitting them; he let both of them help him "drive" a vehicle while sitting on his lap; and both
children were of elementary age, H.G. six and Kitchings ten.  Kitchings said that Gentry always
pulled her hair to assert control over her while abusing her.  H.G. said Gentry would hit her in the
side of the head and force her mouth down on his sexual organ.  In addition to his defensive theory
that he could not have sexually assaulted H.G. because of his prostate removal, Gentry, through
direct testimony, cross-examination, and argument, implied that H.G. was making up or fabricating
her allegations.  Gentry took the stand and denied H.G.'s accusations.  And the defense related or
referred to numerous statements by H.G. that it claimed were false and destructive of her credibility. 
Gentry's counsel emphasized in his opening statement that H.G. had been spending a significant
amount of time at the Gentrys, and she did not like it because she wanted to spend more time with
her father.  Counsel indicated that H.G. wanted to avoid spending time with Gentry.  Then counsel
told the jury, "How does a man who has dedicated his life to law enforcement end up accused of a
crime? . . .  All it takes is for one . . . little girl to say, something bad happened to me and he did it. 
That's all it takes.  That's all it takes, just her word and his life turns upside down."
	A defensive theory of fabrication may open the door to rebuttal evidence of extraneous
offenses.  Bass v. State, Nos. PD-0494/95-07, 2008 Tex. Crim. App. LEXIS 859 (Tex. Crim. App.
Sept. 10, 2008); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).  Here, it was at the
very least subject to reasonable disagreement whether the extraneous-offense evidence relating to
the assaults on Kitchings was admissible for the noncharacter-conformity purpose of rebutting
Gentry's defensive theory.  Bass v. State, 2008 Tex. Crim. App. LEXIS 859.  In Bass v. State, the
Texas Court of Criminal Appeals held that evidence the defendant had molested two other children
in circumstances that bore some similarity to the allegations in the case on trial rendered the
extraneous evidence admissible to rebut the defendant's theory that the child victim had fabricated
her allegations and the defensive theory that as a pastor, Bass was not the kind of person that would
engage in the charged offense.
	The extraneous-offense evidence relating to Kitchings could also have been admissible as
evidence of Gentry's common scheme or method of operation, as urged by the State.  Both H.G. and
Kitchings testified that the abuses occurred while they were in Gentry's care, as a result of Gentry's
friendship with the victims' parents; both victims testified that, while in Gentry's care, he let them
help him "drive" while they sat on his lap, and H.G. said that, on one occasion, this led to Gentry's
sexual abuse; and both victims said Gentry used force applied to their heads or hair to facilitate his
abuse.  The Texas Court of Criminal Appeals has recently stated, "[n]o rigid rules dictate what
constitutes sufficient similarities . . . ."  Segundo v. State, No. AP-75,604 (Tex. Crim. App. Oct. 29,
2008).  The similarities here placed the decision to admit the evidence within the zone of reasonable
disagreement, and therefore, within the trial court's discretion.
	As noted previously, however, the trial court's judgment in this case indicates the statute for
the offense is "22.021(2)(A) Penal Code."  This Court has the authority to reform the judgment to
make the record speak the truth when the matter has been called to our attention by any source. 
French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992).  In Asberry v. State, 813 S.W.2d 526 (Tex.
App.--Dallas 1991, pet. ref'd), the court noted that the authority of the appellate court to reform
incorrect judgments is not dependent on request of any party; the appellate court may act sua sponte. 
The Texas Rules of Appellate Procedure provide direct authority for this Court to modify the
judgment of the trial court.  Tex. R. App. P. 43.2.
	We hereby reform the judgment to indicate the correct statute for the offense:  Tex. Penal
Code Ann. § 22.021(a)(1)(B)(ii). 
	As reformed, we affirm the judgment.


						William J. Cornelius
						Justice*

*Chief Justice, Retired, Sitting by Assignment


Date Submitted:	October 8, 2008
Date Decided:		December 18, 2008

Do Not Publish
1. We note that the judgment indicates the statute for the offense as Tex. Penal Code Ann.
§ 22.021(2)(A).  The correct statute is Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii).
2. Gentry appeals from three convictions.  In cause numbers 06-07-00175-CR and 06-07-00177-CR, he appeals from his convictions of aggravated sexual assault of a child, and was
sentenced in each case to life imprisonment and a $5,000.00 fine.  In cause number 06-07-00176-CR,
he appeals from his conviction of indecency with a child by sexual contact, and was sentenced to
twenty years' imprisonment and a $5,000.00 fine.
3. This exclusion is the subject of Gentry's fourth point of error.

mso-fareast-theme-font:minor-latin'>            Della[1]
appeals from the termination of her parental rights to her three-year-old son,
D.W., contending that the trial court erred (1) by denying her motion for new
trial, (2) by denying a motion for continuance filed on her behalf, and (3) by
severing her case from the case seeking to terminate the biological fathers
parental rights.  She also contends that
the evidence is insufficient to support termination.  We find no error and affirm.  
            The
record in this case shows that although Della is a person biologically capable
of bearing a child, she is mentally of such a low level of intelligence as to
be incapable of effectively rearing one. 
She is not merely below average intelligence; the evidence is that she
is at such a low level that she could at most care for the direct physical
needs of an infant, but could not act as a mother for the child beyond that
point.  She failed to consistently
maintain contact with the Child Protective Services Division of the Texas
Department of Human Services (the Department or CPS) after her child was in its
custody, did not visit the child for months while the child was in the custody
of CPS (although provided with transportation to the childs location), and
although she did live in one site for five months, she otherwise moved from
place to place in a random fashion, lodging in eight different places during
the course of this proceeding.  She did
not know the last name of the biological father of the child, and only
completed portions of various programs and counseling that the Department made
available for her.  After her
then-boyfriend represented to her that the child suffered from sickle cell
anemia (an untrue representation) and that she was unequipped or unable to care
for him, she voluntarily surrendered the child to others following an emergency
room visit.  
Denial of Motion for New TrialNotice of and Opportunity to Attend
Trial
            In
her first point, Della contends that the trial court abused its discretion in
refusing to grant her motion for new trial. 
Della sought a new trial based upon the fact that she was not personally
present at trial.  Although proper notice
of the setting for trial was provided to her court-appointed attorney, Della
failed to maintain contact with her counsel, rendering her lawyer unable to
give her actual notice (either in person or by telephone) of the trial
setting.  Neither her trial counsel nor
investigators could locate her, and she remained uninformed that the case was
set for a final hearing on the merits. 
Della was finally located only after the trial had taken place and a
motion for new trial (based upon the fact that she had not been provided actual
notice of the docketing of the matter for a trial on the merits) had been
filed. 
            Generally,
determining whether to grant or deny a motion for new trial is a matter which
falls within the sound discretion of the trial judge.  Dolgencorp
of Tex., Inc. v. Lerma,
288 S.W.3d 922, 926 (Tex. 2009); In re
C.J.O., 325 S.W.3d 261, 267 (Tex. App.Eastland 2010, no pet.).  For the most part, a party is entitled to a
new trial when her failure to appear is due to a failure to receive notice of
the trial setting.  Tex. R. Civ. P. 245; In re A.D.A., 287 S.W.3d 382, 38788
(Tex. App.Texarkana 2009, no pet.); Vela
v. Sharp, 395 S.W.2d 66, 6768 (Tex. Civ. App.San Antonio 1965, writ refd n.r.e.).  This is generally true regardless of whether
her attendance would affect the ultimate outcome of the hearing.  
            However,
once a party has made an appearance, she has the responsibility to keep the
court and her own counsel apprised of a location where such notice can be
effected.  In this case, there is a
considerable amount of evidence provided about Dellas location and her moves
from one location to another.  It is
clear, however, that she ultimately did not provide her final address to either
the court or to her counsel.  Rule 8
requires all communications from the court or other counsel with respect to a
suit to be sent to the attorney in charge, a practice that was followed in this
case.  See Tex. R. Civ. P.
8.  Indeed, neither the trial court nor
the clerk may communicate directly with a party who is represented by counsel.  Withrow v. Schou, 13 S.W.3d 37, 40 (Tex. App.Houston [14th Dist.]
1999, pet. denied).  The notice
requirements of Rule 245 are therefore satisfied by serving the attorney of
record.  Tex. R. Civ. P. 21a, 245; Bruneio v. Bruneio, 890 S.W.2d 150, 155 (Tex.
App.Corpus Christi 1994, no writ).  An
attorneys knowledge of a trial setting is imputed to his client.  Magana
v. Magana, 576 S.W.2d 131, 133 (Tex. Civ. App.Corpus Christi 1978, no
writ).  
            When
efforts were made by Dellas counsel to contact her by written and telephonic
means, Della could not be reached at the address last known to her
attorney.  To compound the immediacy of
maintenance of the setting date, this is yet another case in which the State was
faced with a drop dead date upon which the case either had to be tried or
dismissed.  See Tex. Fam. Code Ann.
§ 263.401 (West 2008).  Trial courts have
no discretion to provide more time than that specified by the Legislature,
irrespective of how appropriate or reasonable a judge might deem it appropriate
to do so.  Under these facts, we cannot
conclude that the trial court abused its discretion by denying the motion for
new trial. 
Continuance
            Della also
contends that the court abused its discretion by denying her motion for
continuance.  We review the denial
of a motion for continuance for an abuse of discretion.  Villegas
v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).  Unless the record discloses a clear abuse of
that discretion, the trial courts action in granting or refusing a motion for
continuance will not be disturbed.  Id. 
In deciding whether a trial court has abused its discretion, we do not
substitute our judgment for the trial courts judgment, but decide only whether
the trial courts action was arbitrary and unreasonable.  Yowell v. Piper
Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986).  We will not reverse the ruling unless the
record clearly shows a disregard of a partys rights.  Id.;
Rodriguez v. Cuellar, 143 S.W.3d 251,
260 (Tex. App.San Antonio 2004, pet. dismd).
            In
this case, counsel filed a motion for continuance on the first day of trial
(April 7), asserting that she did not know Dellas whereabouts and thus was
unable to talk with her and that her presence at trial was vital to her
case.  Nevertheless, it remained the partys
responsibility to make herself available and her whereabouts known to her
counsel; it is apparent that Della failed to do so.  We recognize that Dellas mental shortcomings
almost surely contributed to her failure to maintain contact with her attorney.
 That, nevertheless, does not legally
excuse the party from her responsibilities to herself or her child.  
            We
take into account that an action for the termination of parental rights is a
type of action  recognized as having
extraordinary consequences and an effort to terminate parental rights involves a
fundamental liberty interest of the parent.  Santosky v. Kramer,
455 U.S. 745, 754 (1982).  If anything,
that makes the need to maintain communications more important, and the failure
to do so has consequences.  The resultant
consequences are unfortunate, but under the law, if Della wished to retain
rights to her child, it was necessary for her to take the actions necessary to
exercise those rights.  Finally, as noted
above, the dismissal date for the suit as mandated by statute was only about a
month away (May 15) from the date of final hearing, but Della had been out of
touch with her counsel since October of the preceding year; at the time
preceding trial and at the time of trial itself, the investigator could not
determine her whereabouts.  Under these
circumstances, we cannot conclude that the trial court abused its discretion by
denying the request to continue the proceeding until a later date.
Severance
            Della
contends that the court abused its discretion by severing the parental rights
in the case against her from the parental rights termination case of the
biological father.  A severance splits a
single suit into two or more independent actions, each action resulting in an
appealable, final judgment.  Van Dyke v. Boswell, OToole, Davis &
Pickering, 697 S.W.2d 381, 383 (Tex. 1985). 
Severance of claims rests within the sound discretion of the trial court.  Liberty
Natl Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996) (orig.
proceeding).  The controlling reasons for
a severance are to do justice, avoid prejudice, and further convenience.  Guar.
Fed. Sav. Bank v. Horseshoe Operating Co., 793
S.W.2d 652, 658 (Tex. 1990) (op. on rehg), In re T.T.F., 331 S.W.3d 461, 477 (Tex.
App.Fort Worth 2010, no pet.).
            In
this case, except for the biological fathers first name, his identity was
unknown.  An ad litem
had been appointed to represent his interests. 
The court stated that the child had been born in Arkansas, but that no
effort to determine whether the childs fathers name appeared in the Arkansas
paternal registry had been made.  As jury
selection concluded, a last name for a possible father appeared, but the status
of that person, if any, remained unclear. 
The trial court noted both the short time remaining for the case to be
brought to completion and the length of time that it had been pending
already.  After that observation, the
trial court decided to sever the action against the mother from that of the
potential father and to proceed.  
            Della
suggests that the decision was outside the range of the courts discretion
because a stated focus of the action was to clear the child for adoption, a predicate
of which would be fully terminating the childs relationship with both
parents.  Counsel suggests that the
fact-finder might have been improperly encouraged to terminate the interests of
the mother, knowing that shortly thereafter the father (if he could be
identified) would likewise face the court. 
Clearly, availability for adoption was a major factor in the
action.  It is not, however, an improper
factor, and it seems equally possible that a fact-finder might decline to
terminate a mother when there is a chance that the father might not be later
terminatedthus, the effect of severance could possibly have an impact in
either direction.  There is nothing,
however, that suggests any improper effect to the extent that it would prevent
severance from being available.  
            In
addition, we remain cognizant of the short time frame remaining to complete the
action, the lack of any statutory authority for the trial court to extend that
timetable, and the lack of anything to indicate how promptly any putative
father might appear before the court.  
            Completing
the mothers portion of the proceeding served the States and the childs
interests in the prompt resolution of the matter, as well as the convenience of
the parties and the court, thus meeting two purposes of severance.  Although counsel argues prejudice occurred
because of the severance, as discussed above, we do not agree.  We do not find that the court abused its
discretion by severing the case in twain. 

Sufficiency of Evidence to Meet the Statutory Requirements for Termination
            Della
next contends that the evidence is insufficient to support termination of the
parent and child relationship.  The
standard of review in parental rights termination proceedings is clear and
convincing evidence.  In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002);
see Tex.
Fam. Code Ann. § 161.001 (West 2011). 
The evidence is clear and convincing when the proof is such that it
produces in the mind of the trier of fact a firm
belief or conviction of the truth of the allegations sought to be established
by the State.  In re C.H., 89 S.W.3d 17, 2526 (Tex. 2002).  Along with a best interest finding, a finding
of only one ground alleged under Section 161.001(1) is sufficient to support a judgment
of termination.  In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re K.G., No. 02-10-00257-CV, 2011 WL 3211210 (Tex. App.Fort
Worth July 28, 2011, no pet. h.).
            In
reviewing the legal sufficiency of the evidence, we view all the evidence in a
light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction
that its finding was true.  Tex. Fam. Code Ann. § 101.007 (West 2008);
J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25.  Looking at the evidence in the light most
favorable to the judgment means that we must assume that the fact-finder
resolved disputed facts in favor of its finding if a reasonable fact-finder
could do so.  A corollary to this
requirement is that a court should disregard all evidence that a reasonable
fact-finder could have disbelieved or found to have been incredible.  J.F.C.,
96 S.W.3d at 266.
            When
reviewing a factual sufficiency challenge to a parental rights termination, we
consider the evidence that the fact-finder could reasonably have found to be
clear and convincing.  See id.; C.H., 89 S.W.3d at 2526. 
In applying this heightened standard to a trial courts findings, we ask
whether there was sufficient evidence presented to produce in the mind of a
rational fact-finder a firm belief or conviction as to the truth of the
allegations sought to be established.  In re N.R., 101 S.W.3d 771, 774 (Tex.
App.Texarkana 2003, no pet.).
            The
State alleged five grounds for termination. 
We first examine the sole issue which the State argues on appeal as
supporting the judgment, Tex. Fam. Code
Ann. § 161.001(1)(N).  Under that
statute, the court may order termination if the court finds by clear and
convincing evidence that the parent 
            (N)       constructively
abandoned the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services or an
authorized agency for not less than six months, and:
                        (i)         the
department or authorized agency has made reasonable efforts to return the child
to the parent;
                        (ii)        the parent has not regularly visited or
maintained significant contact with the child; and
                        (iii)       the parent has demonstrated an inability
to provide the child with a safe environment; . . . .
 
It appears that the child was left
by Della and her then-boyfriend with CPS at its offices on November 4,
2009.  The then-stated reasons were
connected with the erroneous belief that the child suffered from sickle cell
anemia, together with Dellas statements that she and her boyfriend had no
water and no money and that they could not take care of the child.  Della said that if the boyfriend believed
they could not take proper care of the child, she would have to agree.  Although the CPS worker offered various
services to them and explained how they could obtain assistance, they
nevertheless insisted on leaving the child with her anyway.  By the time of trial on April 7, 2011, the
child had been in the custody of the State for well over a year.  
            CPS
workers set up a service plan for Della, including parenting classes and
counseling sessions, which commenced in December 2009.  A guardian ad litem
was appointed for Della, who also attempted to assist her through the
process.  Della attended counseling regularly
in January, but appeared only once in February. 
At that point, the representative talked with her, and she appeared
three times in March.  After that point,
Della effectively stopped appearing and did not attend any sessions after
April, except for one counseling appointment in July.  Della and the boyfriend parted ways in July,
after he pushed her through a window. 
She did attend her parenting classes and obtained a certificate.  
            Della
did not visit the child for the first two months the child was in the States
possession, even though she was offered transportation for the visits (which
she occasionally utilized), and the final time she visited with the child was
in August 2010.  Further, it appears that
Della changed her residence at least eight times during that time period (three
of those times without informing CPS of her location), although she remained in a single residence for five months of
that time. 
            Counsel
correctly points out that Della was not diagnosed with any mental disorders by
the States expert, Dr. James Harrison, a clinical psychologist.  However, the expert also testified that as a
result of his December 2009 testing and evaluations, he found some very
understandable anxiety and depression and described Dellas understanding of
the role of parenting as limited to direct physical interaction with the child.

[S]hes
a very simple person; and so her understanding of parenting was pretty much to
take care of her child physically, to play some with them -- with him.  She showed very little ability to talk about,
understand, anything of complexity.  So
while she was probably capable of providing basic, physical care to a young
child, anything that would arise that required difficult judgment, she was
unable to do, to figure out, to talk about. 
 
Harrison administered an
intelligence test to Della because the question of mental retardation was
clear.  Della informed him that she had
been diagnosed with mental retardation and was receiving disability.  The categories of mental retardation as
explained by the expert are, in ascending order, mild, moderate, profound, and
severe, and Della was found to be at the very most challenged of the mild
range.[2]  The expert explained, If you look at a
thousand people, she would be the second most limited person in that
population.  He believed she would never
be able to be employed or to continue with any type of education.  He testified that she was unable to
independently care for a child and could, at best, participate as a coparent with a competent healthy caregiver who assumed
primary child caring responsibility.  In
summary, he believed she could not independently care for a child between two
and eighteen years of age.
            Harrison
testified that Della was at
the
level of mental retardation that I tell parents that they really need to take
care of their kid all -- for the rest of their life.  And so, no, I dont think that she could take
care of herself.  She definitely could
not independently take care of a child.
 
            On
cross-examination, he was asked if she needed a support system to be able to
care for the child.  Harrison carefully
stated that it was more than that:  she
simply could not be trusted to provide competent care on her own, but needed
someone who is capable of doing that, and that she could participate with that
capable person.  He recognized that
although Della cared for the child, he was disturbed by her willingness to turn
the child over to the State.  He
emphasized that her motivations and her desire to be a parent were not the most
critical thing for the child because even if she were perfectly motivated, she 
still
would have some severe limitations in her ability to do competent
parenting.  And at this point, this child
probably is at risk for needing even more competent parenting than a regular
person would have.
 
            He
also expressed his concern regarding Dellas failure to attempt to take action
to recover the child, at the same time also acknowledging that her mental
frailties made her more likely to be compliant with authority and, thus, less
likely to seek a different result than that propounded by CPS
representatives.  Summarizing and
acknowledging that it was a painful statement to make, he opined that to give
the child back to Della would be to award custody of a child who cannot take
care of itself to an adult who was unable to take care of even herself.  
            Under
this state of the evidence, we must conclude that the evidence is factually and
legally sufficient to support termination pursuant to Tex. Fam. Code Ann. § 161.001(1)(N).  
Best Interest of the Child
            The
remaining issue is whether clear and convincing evidence established that
termination was in the childs best interest. 
Tex. Fam. Code Ann. §
161.001; In re J.O.A., 283 S.W.3d
336, 344 (Tex. 2009).  Clear and
convincing evidence is proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established. 
J.O.A., 283 S.W.3d at 344; In re K.W., 335 S.W.3d 767, 770 (Tex.
App.Texarkana 2011, no pet.).  
            In
reviewing the sufficiency of the evidence to support the best interest finding,
we apply the factors set out in Holley v.
Adams, 544 S.W.2d 367, 37172 (Tex. 1976). 
Those factors include:  (1) the
desire of the child; (2) the present and future emotional and physical needs of
the child; (3) the present and future emotional and physical danger to the
child; (4) the parental abilities of the individuals seeking custody; (5) the
plans held by the individual seeking custody 
for the child; (6) the stability of the home of the parent; (7) the acts
or omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one; and (8) any excuse for the acts or omissions
of the parent.  Id.
            The
Holley factors are not exhaustive,
and no single consideration is controlling, nor would the judge be required to
consider each of the factors.  Id. at 372; K.W., 335 S.W.3d at 770. 
Undisputed evidence of just one factor may be sufficient to support a
finding that termination is in the best interest of a child, while on the other
hand, the presence of scant evidence relevant to support each Holley factor will not support a
finding.  C.H., 89 S.W.3d at 27.  
Analysis of Holley
Factors Indicates Termination Was in the Childs Best Interest
            The
child in this case is just past infancy and is, therefore, unable to articulate
its desires, other than giving recognition to the fact that the child was happy
while in his mothers presence. 
According to the testimony elicited, meeting the emotional and physical
needs of the child (both now, as a three-year-old, and in the future, as he
matures), are abilities beyond the capability of the mother.  Similarly, her parental abilities, though
undoubtedly well-intentioned, are so limited that she is effectively unable to
meet those needs in any effective manner. 
Any emotional or physical danger to the child is likewise based upon her
lack of ability to deal with the current and future stresses of a child
evolving from infancy into childhood and ultimately to adulthood.  The testimony uniformly shows that Della is
unable to care for the child without the assistance of some person to assist
her and give her direction.  
            There
is no prospective adoptive parent waiting in the wings in this case; thus,
there is no evidence directly applicable to the fourth or fifth Holley factor.  The sixth factor leans in favor of the State,
based on Dellas serial lodgings while the child was in the States
custody.  There is nothing to show that
the parent-child relationship as currently exists in this case was improper and
that factor likewise has no impact.  
            The
final factor is any excuse for the acts or omissions of the parent.  The excuse in this case is the lack of mental
capacity of the parent.  There is no
evidence that Dellas intentions are not good or that she is mean, uncaring, or
addicted to drugs or alcohol.  Rather,
the evidence reveals her only shortcoming as a parent arises from her lack of
mental capacity.  However, it also
appears that she has found (and will find) it relatively easy to move on with
her life as demonstrated by Dellas apparent lack of effort to visit with her
child after the early stages of the proceeding. 
It also shows that for that same reason, she is entirely incapable of
providing the nurture necessary for the child to thrive in the future.  Nevertheless, regardless of the reasons  (even though apparently entirely beyond her
control) for her acts or omissions, they still exist and must be considered in
determining the best interest of the child. 
We conclude that the evidence is legally and factually sufficient to
allow a fact-finder to determine under the clear and convincing evidence
standard that termination was in the best interest of the child.
            We
affirm the judgment of the trial court.
 
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          October
20, 2011
Date Decided:             November
18, 2011



[1]A
pseudonym, employed to aid in protecting the identity of the child.


[2]The
testing was all done orally, as written questions were beyond her.  


