      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00667-CR



                                 Kenneth Dale Wooten, Appellant

                                                    v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF LLANO COUNTY, 424TH JUDICIAL DISTRICT
          NO. CR6288, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                              MEMORANDUM OPINION


                A jury found appellant Kenneth Dale Wooten guilty of three counts of indecency

with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). The jury assessed

punishment at fifteen years’ imprisonment for the first two counts and twenty years’ imprisonment

for the third. On appeal, Wooten argues that (1) the trial court erred in denying his request to voir dire

the State’s expert, (2) the trial court denied Wooten his right to effective assistance of counsel, and

(3) the evidence is insufficient to support his convictions. We affirm the judgment of the trial court.


                                           BACKGROUND

                Wooten was a long-time family friend of the complaining witness in this case,

“Jane.”1 In the years leading up to this alleged assault, Jane lived with her mother Misty and Jane’s


        1
           In order to protect the identity of the child victim in this case, we refer to the victim using
a fictitious name, and refer to her adult family members by their first names.
older brothers. Wooten lived next door to Jane’s family and would frequently babysit Misty’s

children when she was out of the house. Jane and Misty would later testify that Wooten paid more

attention to Jane than to her brothers and would routinely take Jane shopping and buy her presents,

but he would include her brothers only if prompted.

               In January of 2010, then nine-year-old Jane went to her school guidance counselor’s

office and complained that her oldest brother threatened to rape her “if she didn’t get out of his

room and off his bed.”2 The guidance counselor would later testify that she noticed a bruise on

Jane’s arm, and when she asked Jane how she got the bruise, Jane said Wooten “grabbed her and he

put it on there.” At this point, according to the guidance counselor, Jane proceeded to make an

outcry statement that she had “sexual contact” with Wooten on some unspecified date. See Tex.

Code Crim. Proc. Ann. art. 38.072 (West Supp. 2011) (admitting hearsay statements made by

child victim in certain circumstances).3 Jane told her counselor that she was on the bed with Wooten

watching television when he took her hand and placed it on his “private area, moved her hand up

and down his private area, and then she had to put her mouth over him.” After the outcry, the

guidance counselor told Jane that Jane needed to tell her mother about this sexual contact. The

guidance counselor noted that Jane was “really concerned” about telling anyone about the sexual

contact because she did not want to get Wooten in trouble.




       2
         The guidance counselor would later testify that during this session she did not ask Jane
any follow-up questions about her brother’s alleged threat, and the guidance counselor admitted
she never contacted anyone about that allegation.
       3
         We cite to the current versions of the statutes for convenience because there have been no
intervening amendments that are material to our disposition of this appeal.

                                                 2
               That evening, Jane told Misty that in November 2009, Wooten performed this

alleged sexual contact while Misty was at the movies with friends. Misty testified that Jane told her

that on that occasion, Wooten touched Jane on her chest and between her legs, then forced Jane

to put her hand between his legs. Misty contacted Delbert, Jane’s father, and told him about Jane’s

allegation. Delbert drove to Misty’s home where he was joined by his two brothers, and the three

men proceeded to confront Wooten at his home. Delbert would later testify that when he told

Wooten about Jane’s allegation, Wooten replied “so what, now you want to hit me?” The following

day, Mike Betancourt, the supervisor of forensic services with the Williamson County Children’s

Advocacy Center, conducted a forensic interview of Jane.

               Wooten was subsequently indicted for three counts of indecency with a child by

contact and one count of aggravated sexual assault of a child.4 See id. §§ 21.11, 22.021 (West 2011).

At trial, the State called Jane’s parents and guidance counselor, as well as investigators with the

Lampasas County Sheriff’s Office, who testified about the events outlined above. The State then

called Jane to testify about the alleged incident, and she stated that Wooten touched her chest

and “privates,” then made her touch his privates and place her mouth on his privates. She further

testified that Wooten showed her various pornographic pictures and videos and warned her that if

she told anyone what happened she would not get to see him anymore.




       4
          The three indecency-with-a-child charges allege that Wooten (1) touched Jane’s genitals,
(2) touched Jane’s breast, and (3) caused Jane to touch his genitals. See Tex. Penal Code Ann.
§ 22.021(c) (West 2011) (defining “sexual contact” as touching “committed with the intent to
arouse or gratify the sexual desire of any person”). The aggravated sexual assault charge alleged that
Wooten caused Jane’s mouth to contact his sexual organ. See id. § 22.021(a)(1)(B)(ii) (West 2011).

                                                  3
               During his cross-examination of the above witnesses, Eddie Shell, Wooten’s trial

counsel, elicited testimony that Jane had a history of lying; that one year after she made her outcry

against Wooten, Jane made an outcry that her oldest brother had been sexually abusing her for

several years; and that Jane’s narrative of the assault may have been influenced by repeatedly telling

the story to several parties. The record appears to indicate that Mr. Shell’s defensive theory was that

Jane was not credible and that she may have fabricated the story about Wooten’s assault to conceal

her brother’s ongoing assault.

               Finally, the State called Betancourt to testify as an expert concerning child abuse

victims’ outcries generally and his impressions of Jane’s interview specifically. Betancourt testified

that children who are the victims of “interfamilial abuse”—abuse perpetrated by a person within the

child’s immediate family—tend to take longer to disclose the abuse, whereas they tend to disclose

abuse committed by a person outside their immediate family sooner. Betancourt stated that there

was nothing in Jane’s interview that was different from his experience in interviewing abused

children, with the implication that it was not inconsistent for Jane to first make an outcry against

Wooten and then make an outcry against her brother months later.

               After the State rested, Wooten called Jane’s uncles—Delbert’s brothers—to testify

about Jane’s character for truthfulness. Both uncles testified that Jane was “not very truthful,” and

one of the uncles also contradicted Delbert’s testimony about what Wooten said on the night that

Delbert confronted him. Following summations, the jury found Wooten guilty of three counts of

indecency by contact, but found him not guilty of aggravated sexual assault. Following a punishment

hearing, the jury assessed punishment at fifteen years’ imprisonment for two of the offenses and

twenty years’ imprisonment for the third. This appeal followed.

                                                  4
                                           DISCUSSION

                Wooten raises three issues on appeal. First, he claims that the trial court erred in not

allowing Mr. Shell to conduct a voir dire hearing of Betancourt outside the presence of the jury.

Second, Wooten argues that he was denied his right to effective assistance of counsel when the trial

court entered a statement on the record while Wooten’s counsel was not present. Third, Wooten

asserts that the evidence is insufficient to support his convictions. We will address each of these

appellate issues separately.


Voir dire of expert

                In his first issue on appeal, Wooten claims that the trial court erred in not allowing

his trial counsel to voir dire Betancourt outside the presence of the jury. Specifically, Wooten asserts

that rule 705(b) of the Texas Rules of Evidence gives a criminal defendant an absolute right to

voir dire a State’s expert on the underlying facts or data upon which the expert bases his opinion.

Therefore, according to Wooten, the trial court erred in denying his request to conduct a voir dire

examination of Betancourt at trial, regardless of whether defense counsel could have conducted

the examination at a pretrial hearing.

                Under rule 705(b), a criminal defendant, upon request, “shall . . . be permitted to

conduct a voir dire examination directed to the underlying facts or data upon which the opinion is

based.” Tex. R. Evid. 705(b) (first emphasis added). The purpose of this rule is to give “defense

counsel the opportunity to examine the foundation of the expert’s opinion without fear of eliciting

damaging hearsay or other inadmissible evidence in the jury’s presence.” Alba v. State, 905 S.W.2d

581, 587–88 (Tex. Crim. App. 1995). Rule 705(b) may also “supply defense counsel with sufficient

                                                   5
ammunition” to timely object to the admissibility of expert testimony. Id. “Because Rule 705(b)

is mandatory, a trial court’s denial of a timely and proper motion for such a hearing would constitute

error.” Id.

                 The State does not dispute the mandatory nature of rule 705(b), but instead asserts

that Wooten failed to properly request a rule 705(b) hearing at trial, and thus this issue is not

preserved for appeal. Generally, if a party fails to preserve an issue for appeal, this Court should

not address the merits of that issue. Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009).

To properly preserve an issue for appellate review, the record must show that (1) the defendant

timely presented the complaint to the trial court and (2) the trial court either ruled or refused to rule

on the complaint. See Tex. R. App. P. 33.1(a)(1). The complaint must be sufficiently clear so as to

provide the trial court and opposing counsel an opportunity to address the issue. Ford, 305 S.W.3d

at 533 (citing Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992)). “However, a party need

not spout ‘magic words’ or recite a specific statute to make a valid objection,” and a complaint is

not defective merely because it does not cite a specific rule. Id.

                 At trial, the State asked Betancourt if he had “done any research or had any training

on” whether a child-victim’s process for disclosing abuse is affected by her relationship to the

perpetrator. At that point, the following exchange occurred between Mr. Shell, the trial court, and

Betancourt:


        Mr. Shell:      Judge, I would ask for a hearing outside the presence of the
                        jury on his qualifications in this regard.

        Court:          Mr. Betancourt, have you testified about this subject matter
                        before?

                                                   6
        Betancourt:     Yes, sir.

        Court:          I’m going to let you cross examine him, Mr. Shell. I’m going
                        to overrule your objection. Go ahead.

        Mr. Shell:      Just to be specific, the Court is overruling my motion to have
                        a hearing outside the presence under the 700 Series rules?

        Court:          Yes, sir. And the reason being that we could have raised this
                        issue at a pretrial and taken it up not while the jury is sitting
                        in the box. So you can challenge his testimony by your cross-
                        examination. Go ahead.


                 The Texas Court of Criminal Appeals has held that requesting to voir dire an expert

on his qualifications does not constitute a request to examine the underlying facts or data that

form the basis of the expert’s opinion under rule 705(b). Jenkins v. State, 912 S.W.2d 793, 813–14

(Tex. Crim. App. 1993). Thus, the court concluded that a defendant’s request to voir dire an expert

in order to “‘prove up’ his qualifications” does not preserve a rule 705(b) challenge for appeal. Id. at

814; see also Shaw v. State, 329 S.W.3d 645, 655–56 (Tex. App.—Houston [14th Dist.] 2010, pet.

ref’d) (“A party’s argument that the trial court failed to conduct a properly requested Rule 705(b)

hearing is a distinct argument from one challenging the qualifications of an expert.”).

                 It is not entirely clear from the court’s opinion in Jenkins, 912 S.W.2d at 813–14,

what a defendant needs to do in order to preserve a rule 705(b) challenge. The court’s opinion could

be interpreted to mean that a party requesting a 705(b) hearing must specifically cite that rule or at

a minimum indicate that he wants to discuss the underlying facts and data that form the basis of the

expert’s opinion. See id. However, such an interpretation appears inconsistent with the general rule

that a party need not recite “magic words” or cite specific statutes to preserve a complaint for appeal.



                                                   7
Cf. Ford, 305 S.W.3d at 533. Alternatively, the court’s opinion could mean that when a party

requests to voir dire an expert on his qualifications, the party at least impliedly does not request

a rule 705(b) hearing because the underlying facts or data upon which an expert bases his opinion

are not necessarily related to his qualifications as an expert. See Jenkins, 912 S.W.2d at 813–14.

Nevertheless, it appears that Wooten’s request to conduct voir dire did not meet the requirements

of Jenkins, 912 S.W.2d 813–14, regardless of which interpretation of that opinion is correct.

               In this case, Wooten’s counsel asked to conduct a hearing as to Betancourt’s

qualifications, which the trial court denied. Wooten’s counsel immediately specified that he was

requesting a hearing outside the presence of the jury “under the 700 Series rules.” There are only

six rules in the 700 series of the rules of evidence, and only rule 705(b) discusses conducting a

hearing outside the presence of the jury. See Tex. R. Evid. 701–06. However, the 700 series also

includes rule 702, which relates to an expert’s qualifications. See id. 702 (“[A] witness qualified

as an expert by knowledge, skill, experience, training, or education may testify thereto in the form

of an opinion or otherwise.”). Thus defense counsel’s statement that he was requesting a hearing

under the 700 series could arguably be interpreted as another request to voir dire Betancourt on his

qualifications. See id.

               We acknowledge that this case presents a closer factual scenario than the one addressed

in Jenkins, 912 S.W.2d at 813–14. Nonetheless, we cannot conclude that defense counsel’s statement

that he requested voir dire “under the 700 series” was enough to alert the trial court that counsel

wanted to examine the underlying facts or data upon which Betancourt based his opinion specifically,

rather than Betancourt’s qualifications generally. Therefore, under the binding precedent established



                                                 8
in Jenkins, 912 S.W.2d at 814, we must conclude that Wooten has not preserved this complaint for

appeal. Accordingly, we overrule Wooten’s first issue on appeal.


Absence of defense counsel

               In his second issue on appeal, Wooten asserts that the trial court denied him his

constitutional right to effective assistance of counsel. Specifically, Wooten complains that the trial

court made a statement on the record while Mr. Shell was not present, in which the trial court

explained its earlier ruling not to allow Mr. Shell to voir dire Betancourt. According to Wooten, this

statement outside the presence of defense counsel deprived Mr. Shell of an opportunity to “set the

record straight” concerning Wooten’s right to voir dire Betancourt.

               “In all criminal prosecutions, the accused shall enjoy the right to . . . have the

Assistance of Counsel for his defense.” U.S. Const. amend. VI; see also Tex. Const. art. I, § 10.

The right to the assistance of counsel attaches at all “critical stages” of the criminal proceeding.

United States v. Cronic, 466 U.S. 648, 659 (1984); Routier v. State, 112 S.W.3d 554, 587 (Tex.

Crim. App. 2003). A specific proceeding is a “critical stage” if “the accused required aid in coping

with legal problems or assistance in meeting his adversary.” United States v. Ash, 413 U.S. 300, 313

(1973); see also LaPointe v. State, 166 S.W.3d 287, 298 (Tex. App.—Austin 2005, pet. ref’d)

(“Whether a particular stage is critical turns on an assessment of the usefulness of counsel to the

accused at the time.”). There is no bright-line rule for when a specific stage of a criminal proceeding

is critical, and the particular circumstances of the specific proceeding must be considered. See

Wingfield v. State, 197 S.W.3d 922, 926 (Tex. App.—Dallas 2006, no pet.).




                                                  9
                In this case, before Mr. Shell cross-examined Betancourt, the trial court took a

fifteen-minute break. During this break, the trial court made the following statement on the record,

outside the presence of the jury:


                       For the record—I’m going to just put a little thing on
                the record. I know Mr. Shell is not here, but Ms. Bunting is and
                Mr. Orbelo is here. This notice of the State’s witness was filed
                September 15th, 2010. Number 13 was Mr. Betancourt was listed on
                September 15th of 2010 and the first time I see a notice being sent to
                Mr. Shell as the attorney of record was October 4th of 2010. And we
                then had a pretrial hearing on 11-22 of 2010, and no issues were ever
                presented and no motions were ever filed with reference to any
                challenges to the qualifications of any expert witness listed in that
                witness report. That’s all I want to put on the record.


The record indicates, and the parties appear to acknowledge, that the trial court made this statement

on its own volition, and the trial court did not solicit comments from the State or Ms. Bunting, whom

the parties identify as Mr. Shell’s legal assistant. It is not entirely clear why the trial court made this

statement, given that its explanation of its evidentiary rulings does not affect this Court’s resolution

of issues on appeal. See State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008) (noting

appellate court will uphold trial court’s evidentiary ruling if correct on any theory).

                Nonetheless, Wooten asserts that the trial court’s statement on the record was a

critical stage of trial because had defense counsel been present, counsel could have “set the record

straight.” We take Wooten’s argument to mean that had defense counsel been present, counsel

could have clearly explained why he had the right to voir dire Betancourt under rule 705(b). This

argument is not supported by the record.




                                                    10
                The trial court’s impromptu statement occurred after the State had conducted its

direct examination of Betancourt. Thus, Wooten no longer had a right under rule 705(b) of the rules

of evidence to voir dire Betancourt about the underlying facts and data upon which Betancourt based

his opinion before he testified. See Tex. R. Evid. 705(b) (allowing party to voir dire expert “prior

to the expert giving the expert’s opinion or disclosing the underlying facts or data”) (emphasis

added); Alba, 905 S.W.2d at 588 (concluding trial court did not err in denying untimely request for

rule 705(b) hearing when witness had already testified about underlying facts or data). Therefore,

even if defense counsel had been present when the trial court made the statement, and even if counsel

had clarified that he wanted to voir dire Betancourt under rule 705(b), that clarification would not

have allowed Wooten to finally voir dire Betancourt.5

                On this record, we cannot conclude that the trial court’s statement was made during a

critical stage of trial. See LaPointe, 166 S.W.3d at 298 (noting proceeding is critical stage if counsel

would be useful to defendant at the time). At most, the proceeding could have afforded defense

counsel an opportunity to make an offer of proof about what questions he would have asked

Betancourt had he been allowed to conduct voir dire. However, defense counsel had the opportunity

to make such an offer of proof at any time before the court delivered its charge to the jury. See Tex.

R. Evid. 103(b). Thus, we cannot conclude that this particular opportunity to make an offer of proof

constituted a critical stage of the proceedings such that the absence of counsel deprived Wooten of

his constitutional rights. See Ash, 413 U.S. at 313. We overrule Wooten’s second issue on appeal.




       5
        In addition, the trial court’s statement further demonstrates that it did not understand that
Wooten’s previous request to voir dire Betancourt was made under Rule 705(b).

                                                  11
Sufficiency of the evidence

                In his third and final issue on appeal, Wooten asserts that the evidence is insufficient

to support his convictions for indecency by contact. Specifically, Wooten claims that the State’s entire

case rested solely on the testimony or statements of Jane, and because Jane’s credibility was

significantly undermined, no reasonable jury could have found Wooten guilty based on her allegations.

                In reviewing the sufficiency of the evidence to support a conviction, we determine

whether a rational trier of fact could have found that the essential elements of the crime were proven

beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In

making this determination, we consider all evidence that the trier of fact was permitted to consider,

regardless of whether it was rightly or wrongly admitted. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007); Allen v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.).

We view this evidence in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778. The

jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given

to their testimony. Id. Therefore, we presume that the jury resolved any conflicting inferences and

issues of credibility in favor of its verdict. Id.

                In this case, Jane testified that Wooten touched her chest; touched her “privates,”

which she identified as the part of girl’s body between her legs; and forced her to touch his privates.

Furthermore, Jane testified that Wooten made her move her hand “up and down” on his privates until

a “clear white liquid” came out. This testimony alone is sufficient to support the jury’s conclusion

that Wooten committed the alleged contact with the intent to arouse or gratify his sexual desires.

See Tex. Penal Code Ann. § 21.11 (defining indecency with child by contact); Garcia v. State,



                                                     12
563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (holding that victim’s testimony, standing alone, is

sufficient evidence of penetration); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet.

ref’d) (“The testimony of the child victim alone is sufficient to support a conviction for sexual

assault.”); see also Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref’d)

(concluding jury could infer defendant’s intent to arouse or gratify sexual desires from defendant’s

conduct alone).

               Given that the jury convicted Wooten of three of the offenses alleged, we presume that

the jury found Jane credible. See Clayton, 235 S.W.3d at 778. We defer to the jury’s determinations

of credibility. Id. Therefore, Wooten’s complaint that Jane was not a credible witness leaves us with

nothing to review. We conclude that the evidence is sufficient to support Wooten’s convictions.

We overrule Wooten’s third issue on appeal.


                                         CONCLUSION

               Having overruled Wooten’s three issues on appeal, we affirm the judgment of

conviction.



                                              __________________________________________

                                              Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: April 24, 2013

Do Not Publish

                                                 13
