                                     NO. 07-02-0420-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL B

                                     JUNE 25, 2004
                            ______________________________

                                    WILLIAM UMPHRES,

                                                            Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                  Appellee
                         _________________________________

         FROM THE 221ST DISTRICT COURT OF MONTGOMERY COUNTY;

             NO. 01-03-02060-CR; HON. SUZANNE STOVALL, PRESIDING
                        ________________________________

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

       In six issues, appellant William Umphres challenges his two convictions for

aggravated sexual assault of a child. Two different children were involved. Through his

issues, he contends that 1) he did not open the door to the admission of an extraneous

offense, 2) the trial court erred in admitting evidence of an extraneous offense that occurred

more than 25 years earlier, 3) the trial court erred in failing to instruct the jury on the burden

of proof for admission of extraneous offenses during the punishment phase, 4) the trial

court erred in admitting photographs of the genitalia of the two complainants, 5) the trial
court erred in admitting hearsay testimony of an outcry witness, and 6) he received

ineffective assistance of counsel. We affirm the judgment of the trial court.

              Issues One and Two - Admission of Extraneous Offense

       In his first two issues, appellant complains of the admission into evidence of rebuttal

testimony from his adult daughter indicating that he had inappropriate sexual contact with

her when she was a child. He contends he never “opened the door” to the admission of

this testimony and that the offense is too remote to qualify for admission. We overrule the

issues.

       Appellant was charged with sexually assaulting two young sisters who were living

or staying next door to him. During appellant’s testimony at the guilt/innocence phase of

the trial, he was asked whether he had “any idea why the girls would tell these stories about

you?” He responded by saying: “No, sir, I really don’t. I have never had this in my life, and

I am 69 now.” By this response, the trial court determined that appellant had “opened the

door” to the testimony by his daughter.

       On appeal, appellant claims that the statement was “ambiguous and not specific

enough to open the door to the admission of any extraneous offense.” [Emphasis in

original]. He also complains that the extraneous offense was too remote in time. However,

neither of those grounds were mentioned at trial. Indeed, from the conversation between

counsel and the trial court after the prosecutor first asked to approach the bench, defense

counsel said, “I know what they are going to say” and “I have also told him not to do it, and

he does.” When the matter was again broached during cross-examination of appellant,

defense counsel stated, “I am going to object,” and when told by the trial court that the



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“door has been opened by that comment,” he replied, “[b]y my incompetent client.” Again,

nowhere did he posit that the door had not been opened, that the comment was too

ambiguous, or that the extraneous conduct was too remote. Nor can we say that those

grounds were part of or implicit in the general objection actually uttered. Indeed, it appears

that counsel felt the evidence inadmissible because the statement was made by an

incompetent person, not because the door had not been opened.

       In sum, a party’s complaint on appeal must comport with that uttered at trial; when

it does not, then the complaint is waived. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim.

App.), cert. denied, 502 U.S. 870, 112 S. Ct. 202, 116 L.Ed.2d 162 (1991); Harnett v.

State, 38 S.W.3d 650, 661 (Tex. App.–Austin 2000, pet. ref’d); Brown v. State, 6 S.W.3d

571, 582 (Tex. App.–Tyler 1999, pet. ref’d). Since appellant’s complaint on appeal does

not comport with that uttered at trial, he failed to preserve the alleged error.

                   Issue Three - Instruction on Extraneous Offense

       Via his third issue, appellant complains that the trial court failed to provide a limiting

instruction with respect to the burden of proof on extraneous offenses during the

punishment phase of the trial. We overrule the issue.

       During the punishment hearing, the State may offer any evidence of an extraneous

crime or bad act that is shown beyond a reasonable doubt 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. 2004). Due to art. 37.07 §3(a)(1), the trial court is

obligated to instruct the jury about its need to conclude that the extraneous matter

occurred, beyond reasonable doubt, before it can consider it. Huizar v. State, 12 S.W.3d

479, 483 (Tex. Crim. App. 2000). And, although appellant did not request such an

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instruction to be included in the jury charge here, neither a request nor an objection is

necessary to preserve the error. Id. Finally, whether omitting the instruction caused harm

and, therefore, warrants reversal is dependent upon the application of the harmful error

standard enunciated in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

Huizar v. State, 12 S.W.3d at 484. So, given the lack of a request or objection, we must

decide whether the error was so egregious and created such harm that appellant did not

have a fair and impartial trial. Almanza v. State, 686 S.W.2d at 171.

       Though appellant fails to expressly mention the particular extraneous offense in

question, we assume it to be that involving the assault upon his own daughter some 23

years earlier. Furthermore, the evidence first appeared in the guilt/innocence phase of the

trial, and when charging the jury during that phase, the trial court included the instruction

required by art. 37.07 §3(a)(1). So, the jury had been previously informed of the need to

first conclude that appellant committed the offense, beyond reasonable doubt, before

considering it.   More importantly, when undergoing cross-examination during the

punishment phase of the proceeding, appellant stated that he was both “sorry” for and

“embarrassed” about what he did to his daughter. That testimony is tantamount to an

admission that he committed the bad act. In other words, the factfinder reasonably could

have concluded that one cannot be sorry for or embarrassed by what he did not do, and

because appellant was sorry and embarrassed, he must have committed the act. Given

these circumstances, we cannot say that the failure to inform the jury that they must first

find that the bad act occurred was so egregious as to have denied appellant a fair and

impartial trial. Thus, reversal of the judgment is not required.

                        Issue Four - Admission of Photographs

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          Appellant argues in his fourth issue that the trial court should not have permitted the

State to introduce photographs of the genitalia of the two victims. We overrule the issue.

          The photographs were offered into evidence during the testimony of Dr. Sheela

Lahoti, who physically examined both victims for sexual abuse. Photographs were made

of the genitalia of the children with a culpascope which magnifies the area from four to 25

times. The examination of one child showed a deep notch to the vaginal area which was

indicative of penetrating trauma while the examination of the other child revealed no

abnormalities. At trial, appellant objected to the admission of the photographs and

requested that the court conduct a balancing test under Texas Rule of Evidence 403 due

to their prejudicial nature. The trial court overruled the objection.

          Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. TEX . R. EVID . 403. We review the trial court’s

admission of the photographs under the standard of abused discretion. Wyatt v. State, 23

S.W.3d 18, 29 (Tex. Crim. App. 2000); Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim.

App. 1995). Furthermore, pictures are generally admissible if verbal testimony of the

matters depicted is also admissible, unless their probative value is outweighed by their

prejudicial effect. Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991); Potter

v. State, 74 S.W.3d 105, 112 (Tex. App.–Waco 2002, no pet.). Finally, the trial court does

not abuse its discretion in admitting photographs if they will help the jury to understand

verbal testimony such as technical language used by a medical doctor in describing injuries

sustained. Hernandez v. State, 118 S.W.3d 469, 478 (Tex. App.– Eastland 2003, pet.

ref’d).



                                                 5
       Two photographs of each child were admitted. They were taken from different

positions. Though one could find them and the mode by which they were obtained

distasteful, the photographs were not in and of themselves gruesome. Rather, they had

a clinical appearance. So too did they actually serve a medical purpose since they helped

explain and illustrate the doctor’s findings, i.e. that one child suffered “penetrative vaginal

trauma.” Moreover, while the pictures of the one victim did not indicate any abnormalities,

they nonetheless could have been utilized by the jury for comparison purposes, that is, as

visual assistance in illustrating and perceiving the trauma suffered by the other child. Next,

in view of the nature of the trauma being investigated and the relatively small size of the

genitalia subjected to it as a result of vaginal penetration, a legitimate reason existed to

enlarge the photographs. Under these circumstances, the trial court’s decision to overrule

the Rule 403 objection and admit the pictures fell within the zone of reasonable

disagreement and, therefore, did not constitute an instance of abused discretion. See

Wyatt v. State, 23 S.W.3d at 29-30 (holding that two autopsy photos showing blood at the

opening of the victim’s anus were not particularly offensive and did no more than portray

the nature of the injuries inflicted); Ashcraft v. State, 918 S.W.2d 648, 656 (Tex. App.–

Waco 1996, pet. ref’d) (holding that a photograph of the victim’s vagina was not of the type

to shock or horrify the jury, had probative value, and had a benign tendency to present a

danger of unfair prejudice).



                               Issue Five - Outcry Witness




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         In his fifth issue, appellant argues that the trial court erred in allowing Nicole

Pizzoferrato, the victims’ stepmother, to testify as the outcry witness. We overrule the

issue.

         A statement that describes the alleged offense of aggravated sexual assault made

by a child against whom the offense was allegedly committed to the first person over 18

years of age, other than the defendant, is not inadmissible because of the hearsay rule.

TEX . CODE CRIM . PROC . ANN . art. 38.072 §2 (Vernon Supp. 2004). Appellant’s complaint

here is that Pizzoferrato was not the first person to whom one of the children made an

outcry statement. It is undisputed that the child first told Mary Ann Benson that appellant

had “touched” her. However, according to the record, the description of the “touching” or

assault were not imparted by the child until Pizzoferrato began questioning her. Given this,

it fell within the realm of reasonable disagreement for the trial court to hold that the

comment to Benson about simply being “touched” did not make Benson the outcry witness.

Schuster v. State, 852 S.W.2d 766, 768 (Tex. App.–Fort Worth 1993, pet. ref’d) (holding

that simply because the victim told the first adult that she was “touched” did not make the

first adult the outcry witness); accord Garcia v. State, 792 S.W.2d 88, 91-92 (Tex. Crim.

App. 1990) (holding that a Child Protective Services worker was the proper outcry witness

when the complainant told her teacher only that something had happened at home relating

to child abuse); Josey v. State, 97 S.W.3d 687, 693 (Tex. App.–Texarkana 2003, no pet.)

(holding that to qualify as an outcry witness, the child must describe the alleged offense in

some discernable way and must do more than generally insinuate that sexual abuse has

occurred).



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         Nevertheless, appellant argues that because Benson was also present when the

child described the details of the alleged offense, she was the proper outcry witness.

However, Pizzoferrato testified that she (Pizzoferrato) was the one who asked the child

questions which elicited the details of the offense. And, she allegedly did so because

Benson was “too upset.” Under these circumstances, the State could have chosen either

person as the proper outcry witness, and the court did not abuse its discretion in allowing

Pizzoferrato to testify as such. Yebio v. State, 87 S.W.3d 193, 198 (Tex. App.–Texarkana

2002, pet. ref’d).

                             Issue Six - Ineffective Assistance

         In his final issue, appellant contends he received ineffective assistance of counsel

because his counsel 1) failed to clearly object to the extraneous offense (assaulting

appellant’s daughter) during the guilt/innocence phase of the trial, 2) failed to object to the

extraneous offense during the punishment phase, 3) failed to object to the remoteness of

the extraneous offense, 4) failed to object that the extraneous offense was offered to show

“character conformity,” 5) failed to request a “Montgomery” hearing once the extraneous

offense was admitted, 6) failed to request a balancing test to determine if the extraneous

offense was admissible, 7) failed to request a limiting instruction in the charge or when the

extraneous offense was admitted into evidence, and 8) failed to make a proper objection

under Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991). We overrule the

issue.

         Assuming arguendo that the instances mentioned evinced less than reasonable

conduct on the part of counsel, nowhere does appellant attempt to explain or show how



                                              8
there existed a reasonable probability that but for the alleged mistakes the outcome would

have differed. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (stating that

the appellant has the burden to prove deficient conduct and a reasonable probability that

but for the conduct the result would have differed). Instead, he opines that the “admission

of the extraneous offense was absolutely critical” and that it was ”the ‘gasoline’ thrown on

the fire that resulted in showing that [appellant] may have committed these acts all of his

life and certainly as far back as 1977.” Yet, nothing is said about how this “gasoline” made

the fire any more destructive than the “gasoline” appearing in the form of evidence

illustrating how he sexually molested his two neighbor children. Indeed, the quantum or

quality of that evidence goes unquestioned by appellant. Nor does he cite us to anything

of record suggesting, much less proving, that the jury would have assessed a lesser

sentence for sexually imposing himself on the two female children had his counsel sought

harder to have (or succeeded in having) the extraneous evidence excluded. In short, his

conclusions about the extraneous offense being “absolutely critical” and “‘gasoline’ thrown

on the fire” are just that, conclusions. And, without attempting to prove the effect, if any,

the extraneous evidence had upon the verdict and sentence, appellant cannot, and did not,

carry his burden of proof. Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999), cert.

denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000) (rejecting the claim of

ineffective assistance because “appellant . . . made no effort to prove the prejudice prong

of the Strickland test”).

       Accordingly, the judgment of the trial court is affirmed.




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                       Brian Quinn
                          Justice



Do not publish.




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