Marchell Dereck Carpenter v. The State of Texas--Appeal from 71st District Court of Harrison County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00211-CR

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MARCHELL DERECK CARPENTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 04-0419

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

Memorandum Opinion by Justice Cornelius

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

MEMORANDUM OPINION

Marchell Dereck Carpenter was charged with three counts of aggravated sexual assault of a child. A jury convicted him on two of the counts and set his punishment at ten years and one day of confinement on each count. The trial court ordered the sentences to be served consecutively.

Carpenter does not challenge the sufficiency of the evidence. He raises three issues on appeal, contending that the trial court erred (1) in overruling his objections to expert testimony given by child forensic interviewer, Ms. Jamie English; (2) in excluding evidence of a third party's extraneous act; and (3) in making improper comments before the jury during trial. We overrule all these contentions and affirm the judgment.

Carpenter was charged with having sexual intercourse with his niece, R.H., on ten or eleven separate occasions over a period of some two years. R.H. was eleven years of age when the first act occurred, and she was fifteen at the time of trial.

Carpenter first contends the trial court erred in allowing English to testify as to three specific matters: (1) relating to whether children can gauge time frames; (2) what is the appropriate reaction by a child to sexual assault; and (3) whether R.H., in her interview, was able to identify body parts.

English, at the time of trial, was the program director and forensic interviewer of the Gregg County Children's Advocacy Center. She holds a bachelor's degree in social work and has completed sufficient graduate work to be near earning her master's degree. She has worked for Child Protective Services, where she received extensive training in child abuse and interviewing children, and she had four years' continuing education in that agency's highest level of training in that field. At the time of trial, English had conducted approximately 850 forensic interviews with children. She has qualified as an expert in the 124th Judicial District Court of Gregg County, in a case that was affirmed on appeal by this Court. See Malone v. State, 163 S.W.3d 785 (Tex. App. Texarkana 2005, pet. ref'd).

Expert testimony is admissible under Rule 702 of the Texas Rules of Evidence if the trial court satisfies itself that (1) the witness qualifies as an expert by reason of his or her knowledge, skill, education, training, or experience; (2) the subject matter of the testimony is appropriate for expert testimony; and (3) the expert testimony will assist the jury in deciding the case. Tex. R. Evid. 702; Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998); Malone, 163 S.W.3d at 792. When the expert is from a discipline that involves technical or other specialized knowledge, experience, and training, as opposed to scientific method, the test for reliability is (1) whether the field of expertise is a legitimate one; (2) whether the expert's testimony is within the scope of that field; and (3) whether the expert's testimony properly relies on and uses the principles involved in that field. Nenno, 970 S.W.2d at 561.

The first instance of expert testimony Carpenter challenges is where the prosecutor asked English, "Are children able to gage [sic] time frames?"

English answered, "Well, everyone actually, even adults, have trouble with memory, especially over time."

The second instance raised by Carpenter is when the prosecutor asked English, "Let[']s talk about children in general as to their emotional state when they come to you. Can you tell me what the appropriate reaction is to sexual assault?"

English answered, "I don't believe there is any such thing as an appropriate response to sexual assault. Everybody deals with what happened to them in a different way."

The third instance Carpenter complains about is when the prosecutor asked English, "You didn't have any trouble with different body parts with her, right? She was old enough to know what is what?"

English answered, "She identified the body parts on the drawings[,] and I believe she called them the lower body parts on both the male and female genitalia."

The trial court did not abuse its discretion in allowing this testimony. English was qualified by education, training, and experience as a forensic interviewer of children to testify and give her opinions in answer to the questions asked of her. Her field of expertise is a legitimate one, and her testimony was in the scope of her field and properly relied on the principles involved in that field. Cf. Malone, 163 S.W.3d at 792 95. Moreover, Carpenter did not object to the second and third instances cited above, and English's answer in the third instance was not an opinion, but a statement of fact as to what happened in the interview. Her answers in instances one and two are little more than observations of common knowledge.

Carpenter also complains because the trial court refused to admit evidence that R.H.'s half sister was removed from her home by her parents because they thought she had engaged in improper sexual conduct. Carpenter sought to introduce this evidence to show R.H. was motivated to fabricate her allegations against Carpenter out of fear that she might be subjected to treatment similar to what her half sister had experienced. Carpenter made a bill of exceptions for this evidence. On the bill, Carpenter presented evidence from R.H.'s aunt that R.H.'s half sister was removed from her parents' home because they had found condoms or condom wrappers in her room. R.H.'s aunt testified she did not tell R.H. about the condoms. R.H. testified she knew her half sister was removed from the home, but she was not aware of the specific accusation of misconduct that caused it. She testified she thought her half sister was doing things "school-wise" that she was not supposed to do. R.H.'s father testified the half sister was removed from the home because she was disobedient to him and his wife, and there was no accusation of sexual misconduct involved. There is no evidence that R.H. knew of any accusation of sexual misconduct against her half sister.

We conclude the trial court properly excluded evidence of this extraneous allegation. Because R.H. did not know of and had never heard of any accusation of sexual misconduct involving her half sister, the evidence, even if it is true, could not have been a motivation for R.H. to fabricate her allegations. The trial court was correct to exclude the proffered evidence because it was not relevant, and the evidence's admission would be calculated to confuse the issues and mislead the jury. See Tex. R. Evid. 403.

Finally, Carpenter contends several comments by the trial court during the trial constitute fundamental error that requires a new trial. Carpenter first complains of the following, which occurred during cross-examination of R.H.'s father:

Q: Now you discovered this [R.H.] told you this approximately when . . . ?

A: Told me approximately you want a date?

Q: Yeah.

THE COURT: Now we have gone over this.

[Defense counsel]: She made an issue of the date on this statement, Your Honor. I need to clarify.

THE COURT: Quickly, because the jury has heard it four or five times . . . .

The following testimony was during cross-examination of Jennell Henderson (Carpenter's sister):

[State's counsel]: Objection, Your Honor, hearsay.

[Defense counsel]: She has already testified to it, Judge.

THE COURT: Not in front of the jury. Just go ahead and have her state what you are trying to impeach Margo with.

[Defense counsel]: No way to impeach her just show that it happened and she agrees to it.

The following was during defense counsel's closing argument:

[State's counsel]: Objection, that is not the burden of proof.

THE COURT: Mr. Soloman, your time is up.

[Defense counsel]: Are you limiting my time, Your Honor, to less than thirty minutes because I haven't used thirty.

THE COURT: I am going to let them use the rest of the time explaining to them reasonable doubt. I have given you a definition, or I have given you instructions with regard to the burden of proof, and it is not beyond not that you have to know it for a fact.

[Defense counsel]: Can I explain to them that they are fact finders?

THE COURT: Your time is up, Mr. Soloman.

[Defense counsel]: I have six minutes left.

THE COURT: No, you don't.

[Defense counsel]: She didn't stop until three minutes but that is fine. I am through.

THE COURT: I don't know about that clock. I have got my timer right here.

Carpenter's counsel did not object to any of the comments noted above.

The judge in a criminal trial must not comment on the weight of the evidence. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). However, the comments challenged by Carpenter were made by the trial court in ruling on the admissibility of the evidence, the order of trial proceedings, and in maintaining control and expediting the trial. The trial court has broad discretion in these matters. Moreover, a trial judge's irritation with defense counsel does not constitute an indication of the judge's views on the weight of the evidence or the defendant's guilt or innocence. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); Singleton v. State, 91 S.W.3d 342, 351 (Tex. App. Texarkana 2002, no pet.). These comments were not calculated to convey to the jury the trial court's opinion of the case, and they were not error.

Carpenter argues these comments by the trial court constitute fundamental error of constitutional dimension. We disagree. For comments by the trial court to amount to fundamental error, the comments must be of such nature that they taint the presumption of innocence. Jasper, 61 S.W.3d at 421; Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000). In our judgment, none of the comments here rise to the level of reversible error, and certainly not fundamental error. Cf. Jasper, 61 S.W.3d at 420 21; Singleton, 91 S.W.3d at 351 52; Houang v. State, 997 S.W.2d 678, 679 84 (Tex. App. Texarkana 1999, no pet.).

For the reasons stated, we affirm the judgment.

William J. Cornelius*

Justice

*Chief Justice, Retired, Sitting by Assignment

Date Submitted: March 17, 2006

Date Decided: July 26, 2006

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