Tamplin, Donald Ray v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Opinion filed  November 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01253-CR

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DONALD RAY TAMPLIN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 185th District Court

Harris County, Texas

Trial Court Cause No. 874,736

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O P I N I O N

Appellant Donald Ray Tamplin appeals a conviction for aggravated sexual assault for which he was given six years probation. Specifically, he contends the evidence is factually insufficient to support his conviction and the trial court abused its discretion by admitting a therapist s opinion regarding whether the complainant was delusional. We affirm.

Background

  Appellant was charged with aggravated sexual assault of his wife s young cousin, Delon Laqua. Laqua, who was twenty-two at the time of trial, testified about a series of sexual contacts or sexually-suggestive incidents with appellant that occurred in her childhood. First, she testified that during a childhood camping trip, appellant placed her hand on his penis and held it there through the night. In contrast, the four other persons present in the tent testified that Laqua and appellant did not sleep next to each other.

The next incident Laqua described is the charged offense. She testified that shortly after the camping trip, when she was twelve years old, appellant massaged her legs because they were sore from volleyball practice. She testified that while they were alone, he put his finger inside her vagina.

Third, when Laqua was thirteen years old, appellant and his wife gave her silk underpants for Christmas. Laqua s mother thought the gift inappropriate, though appellant and his wife claim Laqua asked for the underpants. Laqua testified that when appellant later gave her a second undergarment set, he advised her to keep the gift a secret. Fourth, Laqua testified that appellant gave her a model penis, sculpted from dental mold from his office. Appellant testified that she requested the penis as a gag gift for a friend. Lastly, Laqua claimed that appellant gave her two sexually-explicit videotapes. Appellant testified that Laqua took these videotapes from his home without his knowledge.

Laqua did not report any of these incidents until she was nineteen years old. Her descriptions of them at trial were largely denied or explained by appellant, his wife, and other witnesses. Appellant alleges that Laqua fabricated her story because of conflict with her family about whether her boyfriend stole money from them.

Factual Sufficiency

In appellant s first point of error, he contends that the evidence is factually insufficient to support a conviction. In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We review the fact finder s weighing of the evidence and are authorized to disagree with the fact finder s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Our review, however, must be appropriately deferential so as to avoid substituting our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

In this case, the testimony about the charged offense is a swearing match between just two witnesses, Laqua and appellant. Laqua alleges that appellant penetrated her vagina with his finger; appellant denies the incident occurred. No other evidence corroborates either version of the charged offense.

However, Laqua s description of sleeping arrangements on the camping trip, when appellant allegedly placed her hand on his penis through the night, was controverted by others present in the tent. Further, appellant explained that the model penis he gave Laqua was at her request for a gag gift. Similarly, appellant and his wife claim that Laqua requested the gift of silky underpants. Appellant also explained that Laqua had taken the sexually-explicit videotapes from his home; he did not give them to her. The only uncontroverted testimony was Laqua s claim that appellant gave her additional undergarments after he was informed her mother disapproved of such gifts.

Thus, there is testimony to support both the prosecution and the defense for the charged offense. When presented with reasonably equal competing theories, it is the jury, not the reviewing court, that accepts or rejects each theory. See Goodman v. State, 66 S.W.3d 283, 287 (2001). Though the State s evidence in this case is uncorroborated, the jury heard the testimony and was entitled to believe Laqua and any other evidence supporting her testimony. Alvarado v. State, 818 S.W.2d 100, 105 (Tex. App. San Antonio 1991, no pet.) (jury is the sole trier of facts and judge of credibility; jury may choose to accept of reject any or all testimony). It is evident from the verdict that the jury found Laqua s testimony persuasive. Despite appellant s denials, [e]quipoise does not render the verdict against the great weight and preponderance. Goodman, 66 S.W.3d at 286 n.5. Further, Laqua s testimony about the other incidents, such as the model penis, videotapes, and undergarments, could have affected appellant s credibility with the jury. The verdict is not manifestly unjust, shocking to the conscience, or a clear demonstration of bias. Clewis, 922 S.W.2d at 135. We therefore hold that the verdict is not against the great weight and preponderance of the evidence. Accordingly, we overrule appellant s first issue.

Expert Testimony On Truthfulness of Allegation

  In appellant s second point of error, he contends that the trial court abused its discretion in allowing Dr. Doss, a therapist, to give opinion testimony regarding the truth of Laqua s allegations. After establishing that Dr. Doss previously counseled Laqua and her family privately, the State asked, Did you find her to be delusional in any way? An objection to the question was raised and overruled. Dr. Doss answered, . . . she was not delusional at any time during her therapy.

The threshold determination for admitting expert testimony is whether the specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Rousseau v. State, 855 S.W.2d 666, 686 (Tex. Crim. App. 1993); see also Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim. App. 1990), overruled on other grounds; Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993); Tex. R. Evid. 702. Expert testimony assists the trier of fact when the jury is not qualified to the best possible degree in determining intelligently the particular issue without the help of the testimony. Duckett, 797 S.W.2d at 914. But, the expert testimony must aid not supplant the jury s decision. Id. Expert testimony does not assist the jury if it constitutes a direct opinion on the truthfulness of a child complainant s allegations. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993).

We recognize that expert testimony is inadmissible if it constitutes a direct opinion on the truthfulness of a child complainant s allegations. Shutz v. State, 957 S.W.2d 59 (Tex. Crim. App. 1997). However, we do not interpret the testimony in the present case to be a direct opinion on Laqua s allegations. The question posed addressed Laqua s general mental faculties or behavioral characteristics, not the truthfulness of the specific allegation of sexual abuse. Expert testimony concerning behavioral characteristics typically exhibited by victims of sexual abuse and describing behavior observed in complaining witnesses is not improper merely because it embraces the ultimate issue of whether complainants were telling the truth. Cohn v. State, 804 S.W.2d at 575, aff d, 859 S.W.2d 817 (Tex. Crim. App. 1993). In such testimony, the expert does not express an opinion on whether she or he believes that the complaining witnesses are telling the truth. Id. Because Dr. Doss s testimony about Laqua s faculties was not a comment on the truthfulness of her allegations, we find no abuse of discretion in admitting it in evidence.

Accordingly, we overrule appellant s second point of error and affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed November 27, 2002.

Panel consists of Justices Edelman, Seymore and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).