Dale Alan Curtis v. The State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-93-071-CR

DALE ALAN CURTIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 29341

O P I N I O N

A jury convicted Curtis of one count of aggravated sexual assault of A.F. and seven counts of indecency with a child involving four separate victims C.F., A.F, M.L., and R.A.. See Tex. Penal Code Ann. 21.11, 22.021 (Vernon 1989). The jury assessed punishment of ninety-nine years imprisonment on the aggravated sexual assault offense and twenty years imprisonment on each of the counts of indecency with a child. In the first of six points of error, Curtis claims that the evidence is insufficient to support the aggravated sexual assault offense. Point two alleges that the court erred in ruling that the State would be allowed to cross-examine a defense expert witness regarding Curtis' prior conviction. In point three, he complains that the court excluded evidence of an unrelated sexual assault perpetrated by a third party on the victim R.A.. Points four and five complain that the court improperly denied his motion for a mistrial and admitted evidence regarding a report by A.F. of the time frame of the offense. Finally, in point six, Curtis alleges that the court erroneously overruled his objection to the State's closing argument. We will affirm the judgment.

Curtis challenges the evidence to support the penetration element of his conviction for aggravated sexual assault. The State alleged that Curtis penetrated the female sexual organ of A.F. with his finger. In resolving the sufficiency-of-the-evidence issue, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990). The jury is the exclusive judge of the credibility of the witnesses and is free to accept or reject any of a witness' testimony. See Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989).

The State presented testimony from the victim's mother, a doctor who examined the victim after the assault, and the victim. Testifying as an "outcry-witness," the mother stated that she asked A.F. if Curtis had molested her, and the child said he had "touched her in her private, that he had made her hold his penis, and that he had stuck his finger in her vagina." On redirect, the mother testified that "he stuck his fingers in her vagina. In her private, that's what she said."

Approximately one month after the offense, the mother took the victim to Dr. Harold Frank to be examined. Dr. Frank testified that the victim's hymen was ruptured and the rupture was consistent with penetration by an object such as a finger.

Finally, although only seven years old at the time of trial, A.F. also testified. Initially, she denied that Curtis had touched her, but immediately contradicted herself to testify that he had touched her. She stated that Curtis touched her "private," and "put my hands on his private." When asked, "Would he touch you on the outside of your clothes or on the inside of your clothes?" she replied, "Outside." The State came back to this point again during her testimony, asking, "[W]ere his hands on the outside or on the inside of your -," to which the victim again replied, "Outside." However, A.F. also remembered being hurt when Curtis touched her and that it hurt a "whole lot." Finally, the victim pointed to Curtis when asked who had touched her, and she denied being touched by anybody else.

Curtis complains that the victim's testimony and the outcry-witness' testimony are conflicting and so are not sufficient to allow the jury to conclude that he actually penetrated the victim's sexual organ. Because the mother was the outcry-witness, her testimony was before the jury as substantive evidence of the truth of the matters asserted. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 1994); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). According to the mother's testimony, A.F. stated that Curtis penetrated her with his fingers. A.F. stated that it hurt a "whole lot" when she was assaulted. The jury had the option of accepting these statements together and discounting the victim's testimony regarding the location of Curtis' hand during the assault. See Lackey, 819 S.W.2d at 116. We conclude that the evidence is sufficient for a rational trier of fact to find the essential elements of the offense, including penetration of A.F.'s sexual organ. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Point one is overruled.

In point two, Curtis complains that the court ruled that the State would be allowed to ask an expert witness he intended to call whether the witness knew Curtis had been convicted of indecency with a child in 1990. Curtis called Dr. Robert Beck to testify concerning the results of two standardized psychological tests administered to Curtis. He intended to ask the doctor to discuss the test and then testify that the results were in the normal range, i.e., the results did not indicate a sexual-deviancy characteristic in Curtis' personality. The doctor testified outside the presence of the jury, and the parties debated at great length about the content of the State's cross-examination of Dr. Beck. Ultimately, the court ruled that the State would be allowed to cross-examine the doctor over any matter contained in his notes, which apparently included the 1990 conviction. To avoid allowing this information to be disclosed to the jury, Curtis decided not to call Dr. Beck to testify.

If the doctor's testimony was admissible, it was admissible as character evidence or as opinion testimony by an expert witness. Under either theory, the court's ruling is correct. A witness who testifies to an opinion of the defendant's character can be cross-examined concerning specific instances of misconduct, utilizing a "do you know" format of questioning. See Tex. R. Crim. Evid. 405(a); Reynolds v. State, 848 S.W.2d 785, 788 (Tex. App. Houston [14th Dist.] 1993, pet. ref'd). Similarly, an expert witness may be cross-examined about the underlying facts or data on which he based his conclusions, subject to a determination by the court that the evidence's probative value outweighs the danger of improper use and also subject to a limiting instruction to the jury. See Tex. R. Crim. Evid. 705(a), (d); Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991). Because the doctor knew of the conviction when he evaluated the test results, that conviction would be a proper subject in the State's cross-examination about the conclusions he reached. Point two is overruled.

In his third point, Curtis complains that the court wrongfully excluded evidence he offered relating to a third party who was convicted of sexually assaulting R.A.. In a bill of exception, Curtis attempted to demonstrate that a third party had been convicted of sexually assaulting R.A.. Curtis argued that the assault on R.A. occurred during the month between the time he was arrested for the offenses charged in the indictment and when A.F. was taken to the doctor; thus, he reasons, A.F.'s "hymen could have been busted during that time." The State agreed that such a prosecution had occurred and that the offender had been convicted and placed on probation. However, the State objected that the evidence was not relevant to the prosecution of Curtis for the sexual assault of A.F.. The court sustained the objection and excluded the evidence.

The determination of the relevancy of evidence is largely a matter for the discretion of the trial court, and we will not reverse the trial court's decision absent an abuse of that discretion. See Werner v. State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986). "[E]vidence of offenses not committed by the accused is generally inadmissible." Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App.), cert. denied, 475 U.S. 1031, 106 S. Ct. 1238, 89 L. Ed. 2d 346 (1985). Although Curtis specifically indicated that he was offering the evidence for the possibility that A.F. was assaulted by the third party and not by him, he did not attack A.F's or any of the other victims' identification of him as the assailant. In fact, identity was not contested by Curtis; he relied, instead, on the argument that the witnesses were fabricating their stories for his defense. Thus, this evidence was not relevant to his defense and the court's ruling was not erroneous. See id. Point three is overruled.

Points four and five relate to evidence presented by Dr. Frank dealing with his knowledge of the date of the aggravated sexual assault. In point four, Curtis claims that the court erred in denying his motion for a mistrial after Dr. Frank stated that the assault of A.F. "apparently took place a month before I saw her." The court sustained Curtis' hearsay objection, instructed the jury to disregard the statement, but denied his motion for a mistrial. In point five, he complains that the court erroneously admitted a note written by Dr. Frank contemporaneously with his examination of the victim that contains this statement: "[The victim] was purportedly sexually assaulted about one month ago." The State offered the note during Dr. Frank's direct examination under the business records exception to the hearsay rule. See Tex. R. Crim. Evid. 803(6). Curtis objected that portions of the note were not admissible under the exception. The State responded that the contents of the note were also admissible as statements made for the purposes of medical diagnosis and treatment. See id. 803(4). The court overruled Curtis' objection and admitted the note.

The court correctly held that the note was admissible under the exception to the hearsay rule for statements made for medical diagnosis and treatment. See Macias v. State, 776 S.W.2d 255, 259 (Tex. App. San Antonio 1989, pet. ref'd). Clearly, the date of an injury is relevant to the medical professional's diagnosis and treatment of the injury. Rule 803(4) specifically provides that statements describing the "inception" of the injury are not excluded by the hearsay rule. See Tex. R. Crim. Evid. 803(4). Curtis argues that the trustworthiness of this evidence is diminished by the possibility that the victim's mother was the individual who told the doctor this information. However, Dr. Frank testified that it was the victim herself who told him of the time frame of the assault. Because the evidence on which Curtis based his motion for a mistrial was actually admissible under the same theory, the court did not err in denying the motion. See Calloway v. State, 743 S.W.2d 645, 651-52 (Tex. Crim. App. 1988). Points four and five are overruled.

Finally, Curtis complains about the court overruling his objection to a statement made by the prosecutor during closing argument. The prosecutor argued:

Folks, you set and establish by your verdict in this case an important moral yardstick for our community. Is this the kind of behavior, the kind of behavior that you heard about from these little girls? Is this the kind of behavior we are going to condone and accept for our community, for Johnson County, and say, yes --

Curtis objected to the argument as a comment on "what the community might expect." He now contends that there is no difference between arguing what the community accepts and what the community expects. We disagree. The State is allowed to argue the impact of the verdict on the community. See Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990). We conclude that the argument in this case was proper as a plea for law enforcement. See id. Thus, the court did not err in overruling the objection. Point six is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 13, 1994

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