JAMES DAVID STARNES, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued May 19, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00795-CR
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JAMES DAVID STARNES, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-82739-06
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MEMORANDUM OPINION
Before Justices O'Neill, Francis, and Murphy
Opinion By Justice Francis
        A jury convicted James David Starnes, Jr. on four counts of aggravated sexual assault of a child and five counts of indecency with a child in connection with the abuse of his adopted daughter. Punishment was assessed at forty-five years in prison for each aggravated sexual assault and twenty years in prison for each indecency with a child count. In four issues, appellant complains about trial counsel's representation, certain evidentiary rulings, and the factual sufficiency of the evidence. For the reasons set out below, we conclude the issues are without merit and affirm the trial court's judgments.
        E.S. was nineteen years old at the time of trial. E.S. testified appellant adopted her when she was about seven years old shortly after he married her mother. Because her mother worked nights, E.S. and her younger brother, J.S., were left in appellant's care. E.S. testified that within a couple of months, appellant began abusing her. The abuse, which E.S. described in sometimes graphic testimony, occurred several times a week and involved both digital and penile penetration of her sexual organ, contact of E.S.'s sexual organ by appellant's mouth, penile penetration of E.S.'s mouth, touching of E.S.'s genitals and breasts, and causing E.S. to touch appellant's genitals. The abuse continued until E.S. was about ten years old.
        At first, E.S. said she believed appellant was showing her “some type of affection that a father was supposed to show to their daughter.” She said nothing because appellant told her “to keep it a secret” or she would lose her family. She testified that when she was in the fifth grade, she watched a video about puberty and realized for the first time that what appellant had been doing to her was not normal. E.S. tried to tell her mother about the abuse by showing her how appellant rubbed her leg, but her mother said it was a “fatherly thing.”
        Some time after that, E.S. broke her arm. When appellant would come to her room, she told him her arm hurt. To keep him away, E.S. said she kept rebreaking her arm, and the abuse ended. When she was fourteen or fifteen, E.S. said she was put in counseling because she was “becoming suicidal.” During this time, E.S. again tried to tell her mother that appellant had abused her by demonstrating how he rubbed her leg when she was younger, and her mother said she “didn't want to hear it.” Finally, when she was seventeen, she broached the subject again. When her mother tried to “blow [her] off,” E.S. “urged it” and gave her more details.
        E.S.'s mother, Anna Starnes, corroborated E.S.'s testimony that she worked nights during the period that E.S. alleged she was abused and that E.S. had told her when she was ten and again at age fourteen or fifteen about appellant touching her leg. When E.S. finally provided more details, Anna said she did not want to believe her. Anna said she confronted appellant, who did not expressly deny the allegations. Instead, she said, he “[s]aid he didn't know why something that happened so long ago was coming out now. That he didn't - that he didn't do anything wrong.”
        Shortly after her outcry, E.S.'s mother or grandmother scheduled her for a well-woman visit with a obstetrician/gynecologist. The OB/GYN obtained a history that E.S. had been sexually abused as a child, but her examination did not note any scarring or signs of abuse on E.S.'s external genitalia nor did she see any trauma to E.S.'s hymen. The OB/GYN did not use a culdoscope.
        Shortly after, E.S. was examined by a sexual assault nurse examiner, Beth Hudson, at the Collin County Children's Advocacy Center. Hudson, who did use a culdoscope, testified that E.S.'s examination showed a well-healed tear that reached from the “beginning of the hymen to the end of the hymen.” Hudson photographed the area, and the photograph was admitted into evidence. Hudson testified that the physical trauma she saw was consistent with the verbal history given to her by E.S. regarding sexual abuse, although she could not say when the trauma occurred.
        Appellant denied abusing E.S. and suggested she made up the story because she was angry with him for refusing to allow her to travel to The Netherlands to visit a boy she met online. He testified E.S. was “extremely upset” and said he “was ruining her life.” Appellant said the decision “strained” their relationship. When Anna confronted him with the allegations, he told her “it never happened” and suggested that E.S. be taken to a doctor.
        In his first issue, appellant argues he was denied effective assistance of counsel because counsel did not object to the admission of photographs of E.S. between the ages of four and twelve. He asserts counsel should have raised a Texas Rule of Evidence 403 objection.
        To obtain relief for a claim of ineffective assistance of counsel, an appellant must meet the two-part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984); Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003). The appellant must first demonstrate trial counsel's performance was deficient because it fell below an objective standard of reasonableness. Id. (citing Strickland, 466 U.S. at 687). He must then show that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. To show ineffective assistance of counsel for failing to object, the appellant must show the trial court would have committed error in overruling the objection. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004).
        The admissibility of a photograph is within the sound discretion of the trial judge. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). The trial court's decision may be disturbed on appeal only when it falls outside the zone of reasonable disagreement. Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009). Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403. The trial court may consider a number of factors to determine whether the danger of unfair prejudice substantially outweighs the probative value of the photographs, including how probative the evidence is, the potential of the evidence to impress the jury in some irrational but indelible way, the time the proponent needs to develop the evidence, and the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000) (citing Montgomery, 810 S.W.2d at 389-90).
        Here, appellant does not complain that the photographs were not relevant; rather, he asserts the photographs were “highly prejudicial” while their probative value was “negligible for purposes of determining guilt.” Other than his conclusory assertion that the photographs were unfairly prejudicial, he makes no attempt to analyze his issue within the context of the factors used to decide the issue; consequently, he has not shown the trial court would have committed error in overruling the objection.
        Regardless, applying the rule 403 factors in this case, we conclude a decision by the trial court to overrule an objection and allow admission of the photographs would have been in the zone of reasonable disagreement. The photographs are nothing more than typical snapshots of a child. The photographs represent what E.S. looked like before appellant married her mother (but at a time when he knew her), during the abuse, and a brief time after the abuse ended. Given that E.S. was nineteen years old at trial, the photographs gave the jury an accurate depiction of what E.S. looked liked during those years. Because we conclude appellant cannot show the trial court would have committed error in overruling a rule 403 objection, he has failed to establish the first prong of the Strickland test. We overrule the first issue.
        In his second and third issues, appellant complains about two trial court rulings admitting evidence and one ruling excluding evidence. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. See McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement. Id.
        Appellant first contends the trial court erred in allowing the investigating officer, Collin County sheriff's deputy Jerald Burke, to testify that he would not necessarily expect to see physical trauma “to the female sexual organ . . . of a child who [had] been penetrated by an adult male.” He asserts the evidence was inadmissible under Texas Rule of Evidence 702.
        Assuming the trial court erred in admitting this testimony, it is well-established that improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999). After Burke testified, Hudson, the sexual assault nurse examiner who examined E.S., gave substantially similar testimony in more detailed form without objection. Consequently, any error in admitting Burke's testimony is harmless.
        Appellant next contends the trial court erred in allowing Hudson to testify that E.S. identified appellant as her abuser during the sexual assault examination. In his brief, he acknowledges the medical diagnosis or treatment exception to the hearsay rules, but he fails to offer any analysis of this rule with respect to his complaint. See Tex. R. Evid. 803(4) (allowing “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to diagnosis or treatment”). Instead, in a single conclusory sentence, he asserts the evidence was “inadmissible since it was not 'reasonably pertinent to medical diagnosis or treatment.'”
        Given appellant's failure to analyze his issue within the context of the hearsay exception, we conclude he has not adequately briefed the issue. See Tex. R. App. P. 38.1. Moreover, the same evidence came in later through the testimony of forensic interviewer Michelle Schuback, who interviewed E.S. at the Collin County Children's Advocacy Center, as well as the testimony of Deputy Burke and E.S.'s mother. Thus, even if inadmissible, any error would be harmless. See Brooks, 900 S.W.2d at 287.
        Finally, appellant contends the trial court erred in disallowing a computer printout of an internet conversation between E.S. and a friend after E.S. “testified to its veracity.” According to appellant, the printout “communicated [E.S.'s] anger and hatred” toward him.
        At trial, the State objected on grounds of hearsay and authenticity, and the trial court sustained the objection. On appeal, appellant asserts (1) E.S. authenticated the document and (2) the document is not hearsay because “[E.S.] was present.”
        We have reviewed the document in question. Even if we assumed appellant's arguments are legally correct, appellant cross-examined E.S. on the specific statements she made during the conversation, and the jury was therefore aware of the contents of the conversation. Moreover, E.S. testified to her disdain for appellant. Under these circumstances, any error in excluding the document was harmless. See Halprin v. State, 170 S.W.3d 111, 116 (Tex. Crim. App. 2005). We overrule the second and third issues.
        In his fourth issue, appellant challenges the factual sufficiency of the evidence to support his conviction. In reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. Although an appellate court has the ability to second-guess the jury to a limited degree, the factual sufficiency review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Id.
        Initially, we note appellant's brief does not set out any of the evidence in this case. Consequently, we question whether this issue has been properly briefed. Regardless, having reviewed the record, we conclude appellant's complaint is without merit.
        Appellant asserts the “overwhelming weight of the evidence shows that no one living in the household where the alleged offenses took place noticed any signs of sexual abuse.” He argues E.S.'s younger brother did not know the assaults were occurring, even though he occupied the room next to the one where some of the abuse happened, and that E.S.'s mother was not suspicious, even though she testified she sometimes came home early to see if she could catch appellant cheating on her. Finally, he argues E.S. never became pregnant and never missed school or complained of being tired, even though E.S. was kept awake after her bedtime.
        J.S. did not testify at trial, but E.S. testified her brother was sleeping when the abuse occurred. Although appellant testified J.S. fell out of bed twice a week during that time frame and would come into appellant's room, suggesting J.S. would have seen something, the jury could have found appellant's testimony unbelievable. Moreover, Deputy Burke testified in his training and experience, sexual abuse of children can occur in small areas, such as a trailer, where other people are present and can even happen in the same room as a third party. The fact the abuse occurred in a mobile home with E.S.'s younger brother in the next room did not raise a “red flag” for Burke. As for E.S.'s mother, the evidence showed she refused to acknowledge any signs of abuse, even when faced with E.S.'s attempts to report them to her. Thus, to the extent he suggests the evidence is lacking because he was never “caught in the act” by either E.S.'s mother or brother, a lack of such evidence does not render the evidence factually insufficient. Finally, as for appellant's argument E.S. never became pregnant, E.S. testified the abuse stopped when she began menstruating. Reviewing all of the evidence under the appropriate standard, we conclude the jury was rationally justified in finding appellant guilty of the various counts beyond a reasonable doubt. We overrule the fourth issue.
        Finally, the judgments in this appeal recite appellant's name as James David Starnes. However, the indictment, surety bond, jury charges, and other documents, including correspondence from appellant to the trial court, list appellant's name as James David Starnes, Jr. Therefore, on our own motion, we modify the judgments to show appellant's name as James David Starnes, Jr. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd).
        We affirm the trial court's judgments as modified.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
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Tex. R. App. P. 47
080795F.U05