Wayne Dale Wagner, Jr. v. The State of Texas--Appeal from 385th District Court of Midland County

Opinion filed June 7, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00235-CR

__________

  WAYNE DALE WAGNER, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR30704

O P I N I O N

The jury convicted Wayne Dale Wagner, Jr. of the offense of aggravated sexual assault of a child younger than fourteen years of age. See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2006). The jury assessed appellant=s punishment at confinement for life. We affirm.

Background

The child, T.A.L., was born on February 20, 1994. Appellant and T.A.L.=s mother, Delta Livesay, began a relationship in 1998. Appellant and Delta moved into an apartment together, and T.A.L. lived with them. Appellant and Delta lived together, off and on, from November 1998 until May 2003, at a number of different residences. In 2000, Delta and appellant had a child (T.W.) together. During her testimony, Delta said that appellant verbally, mentally, and physically abused her during the course of their relationship. Delta left appellant a number of times but would later return to live with him. During part of the time that Delta lived away from appellant, T.A.L. and T.W. lived with appellant. In May 2003, Delta took T.A.L. and T.W. and left Texas. They stayed in Omaha, Nebraska, for about two weeks and then moved in with Delta=s mother in Cameron, Missouri.

In the latter part of 2004, T.A.L. made an outcry statement to Delta. T.A.L. told Delta about a number of things that appellant had done to her, including having sexual intercourse with her. Appellant was later indicted for aggravated sexual assault of T.A.L. The indictment alleged that appellant, on or about March 15, 2003, Aintentionally and knowingly cause[d] the penetration of the female sexual organ of [T.A.L.] by the sexual organ of the said [appellant].@

The State designated Delta as the outcry witness, and Delta testified as the outcry witness at trial. T.A.L. also testified at trial. She said that, during her third grade year, appellant had put his penis into her private part on a number of different occasions. During her testimony, T.A.L. described the sexual intercourse in detail. The State also presented testimony from Cori Armstead, a sexual assault nurse examiner who had examined T.A.L. Armstead testified that her findings supported T.A.L.=s outcry of sexual assault.

Issues Presented

Appellant presents six points of error for review. In his first point, appellant asserts that the trial court erred in permitting Delta to testify as the outcry witness because she was not the proper outcry witness. In his second point, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In his third point, appellant contends that the trial court erred by disallowing his attempt to impeach Delta with a prior inconsistent statement about her substance abuse. In his fourth, fifth, and sixth points, appellant complains that the State made improper comments during jury arguments in the guilt/innocence phase and in the punishment phase.

Outcry Witness Issue

Appellant asserts that Monica Kim Gomez was the proper outcry witness and that, therefore, the trial court erred in permitting Delta to testify as the outcry witness. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005) governs the admissibility of outcry statements. It provides that certain hearsay testimony is admissible in the prosecution of offenses committed against children twelve years of age or younger. The proper outcry witness is the first person, eighteen years of age or older, other than the defendant, to whom the child victim made a statement about the offense in some discernible manner. See Article 38.072, section 2(a)(2); see also Smith v. State, 131 S.W.3d 928 930-31 (Tex. AppCEastland 2004, pet. ref=d). A trial court has broad discretion in determining the admissibility of proper outcry evidence, and its determination as to the proper outcry witness will not be disturbed absent a showing in the record that the trial court clearly abused its discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).

More than six months before trial, the State notified appellant=s counsel by letter of its intention to introduce into evidence T.A.L.=s outcry statement to Delta. The State=s letter indicated that T.A.L. had told Delta that A[appellant] had been molesting her since she was eight years old and that, when she turned nine, he had started touching her vagina and had forced her to have sexual intercourse with him.@ Delta testified as the outcry witness at trial without objection by appellant.

Later, the State presented Midland Police Detective Kay Therwanger, the investigating officer in this case, as a witness. Detective Therwanger testified that, because Delta and T.A.L. no longer lived in Midland, she contacted Detective Rick Basher, a police officer in Missouri, for assistance in interviewing T.A.L. Detective Therwanger also asked Detective Basher to obtain a statement from Delta. Detective Therwanger took a statement from Monica Gomez. Although Detective Therwanger did not interview Delta, she did speak with Delta on the phone. Delta said that, because T.A.L. was having difficulty telling her the details about what had happened, Delta called Gomez so that T.A.L. could talk with Gomez, a family friend. Thus, Detective Therwanger testified that Gomez was the first person over the age of eighteen years to whom T.A.L. made a complete statement about the offense. Detective Therwanger identified Gomez as Asort of an original outcry witness for [T.A.L.].@

Based on Detective Therwanger=s testimony, appellant=s counsel moved for a mistrial on the ground that Delta was not the proper outcry witness. The trial court excused the jury to permit the parties to explore the issue. During questioning from the trial court, Detective Therwanger agreed that T.A.L. first told Delta about the events of the sexual assault but that, when T.A.L. had trouble telling Delta the details of the assault, Delta called Gomez and T.A.L. told Gomez some additional details. However, Detective Therwanger testified that, because she had not interviewed Delta, she did not know exactly what T.A.L. told Delta before T.A.L. talked with Gomez. The record indicates a conclusion by the trial court that Delta was the proper outcry witness, although the trial court did not expressly rule on appellant=s motion for mistrial. The trial court indicated that, if later evidence showed Delta was not the proper outcry witness, the trial court would take action at that time.

The record supports the trial court=s conclusion that Delta was the proper outcry witness. T.A.L. testified that she first told a twelve-year-old friend about what appellant had done to her and then told Delta about it. Delta testified that she was the first person over the age of eighteen, other than the defendant, to whom T.A.L. made a statement about the sexual assault. Delta said that T.A.L. told her the following: that appellant used to take her into the bedroom and make her rub lotion on his penis; that appellant later started putting his penis in her mouth; and that, after T.A.L. turned nine years old, appellant had sexual intercourse with her. Delta also said that T.A.L. told her that appellant had put his penis inside her private. Based on this testimony, the trial court could have reasonably concluded that Delta was the first person, eighteen years of age or older, other than the defendant, to whom the child victim made a statement about the offense in some discernible manner. Therefore, the trial court did not abuse its discretion in permitting Delta to testify as the outcry witness.

Additionally, appellant waived his first issue. To preserve error for appellate review, the complaining party must make a timely, specific objection in the trial court and obtain a ruling on the objection. Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Appellant did not object to Delta=s outcry testimony until after Delta testified. Because appellant failed to make a timely objection to Delta=s outcry testimony, appellant waived the error he now asserts on appeal. See Tex. R. App. P. 33.1; see also Mulder v. State, 707 SW.2d 908, 913 (Tex. Crim. App. 1986). Therefore, appellant failed to preserve his complaint for review. We overrule appellant=s first point of error.

Sufficiency of the Evidence

In his second point, appellant challenges the legal and factual sufficiency of the evidence. In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jacksonv. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

T.A.L. testified that, when she was in kindergarten, appellant made her rub lotion on his front private part. The prosecutor asked T.A.L. whether appellant=s front private was his penis, and T.A.L. responded that it was. T.A.L. said that appellant told her to rub his penis back and forth. She said that appellant made her rub lotion on him three or four times a week throughout her kindergarten year and the summer before her first grade year. T.A.L. also said that her mother, Delta, was at work or away from home when appellant made her rub lotion on him.

T.A.L. further testified that, during the summer before her first grade year, appellant started making her put his penis in her mouth. She said that appellant showed her a picture of Aa girl with her mouth on another person=s private.@ T.A.L. testified that, two days later, appellant made her put her mouth on his penis. She said that appellant required her to perform this act two to four times a week throughout her first grade year and into the middle of the summer before her second grade year. T.A.L. said that, when appellant=s penis was in her mouth, appellant would move her head up and down with his hand.

T.A.L. testified that, right before her third grade year started, appellant made her take off her clothes, appellant took off his clothes, and appellant put his penis in her private. T.A.L. testified that it hurt when appellant put his penis in her private. She said that she was scared and crying. She described in detail what appellant did to her. T.A.L. further testified that this conduct went on throughout her third grade year in 2002 and 2003. T.A.L. said that she did not tell anybody what appellant was doing to her because she was scared that appellant might hurt her or her mother. T.A.L. said that she moved to Missouri at the end of her third grade year.

Dr. Martha Irene Rucker Walsh, a pediatrician in Missouri, examined T.A.L. on January 31, 2005. Dr. Walsh testified that T.A.L. had a normal genital exam. Thus, Dr. Walsh said that there were no physical findings or test results establishing that T.A.L.=s vagina had been penetrated. However, Dr. Walsh also said that it was not uncommon for children who have been through episodes of sexual abuse to have normal genital exams. She said that there can be an injury to the genital area that heals completely. Dr. Walsh further testified that, the longer the period between the last sexual contact or genital injury and the examination, the more likely the injury will be completely healed. She further said that probably more than ninety percent of sexual assault examinations of female children come out normal.

Armstead conducted the sexual assault examination of T.A.L. in Midland on December 12, 2005. Armstead testified that her examination revealed jagged, irregular edges on the left side of T.A.L.=s hymen. She explained that tearing of the hymen by penetration results in irregular edges to the hymen. She said that her findings of irregular edges of T.A.L.=s hymen supported T.A.L.=s outcry of sexual assault.

Applying the above standards of review, the evidence was both legally and factually sufficient to support appellant=s conviction for aggravated sexual assault of a child. Appellant contends that no medical evidence conclusively established that he sexually assaulted T.A.L. However, medical evidence is not necessary for a conviction. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.CDallas 2002, pet. ref=d); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.CDallas 1998, pet. ref=d); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.CSan Antonio 1994, pet. ref=d). T.A.L. testified that appellant put his penis in her private. T.A.L. described in detail what appellant did to her. She also said that appellant engaged in this conduct throughout her third grade year. Additionally, Armstead testified that her findings supported T.A.L.=s sexual assault outcry. The evidence supports a finding that appellant penetrated T.A.L.=s sexual organ with his penis. We overrule appellant=s second point of error.

Prior Inconsistent Statement

In his third point, appellant complains that the trial court erred in preventing him from impeaching Delta with a prior inconsistent statement. The State introduced into evidence copies of T.A.L.=s medical records from a hospital in Missouri. The medical records indicated that Delta denied having a history of substance abuse. Appellant sought to introduce evidence that Delta had possessed marihuana in the past in an attempt to establish that Delta=s statement in the medical records was a lie. The trial court excluded the evidence of past marihuana possession. Appellant also sought to ask Delta whether she had lied to the hospital personnel. The trial court did not allow the question.

Appellant presented a bill of proof. During the bill of proof, Delta admitted that her statement to the hospital personnel denying a history of drug abuse was a lie. Delta testified that she lied to the hospital personnel because she did not believe her past was any of their business. On appeal, appellant contends that the trial court should have allowed him to prove that Delta lied to the hospital personnel.

We review a trial court=s admission or exclusion of evidence for an abuse of discretion. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Rule 613(a) of the Texas Rules of Evidence permits a party to impeach a witness with a prior inconsistent statement. Tex. R. Evid. 613(a); Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). To be admissible under Rule 613(a), the prior statement must be inconsistent with the statement given at trial. Lopez, 86 S.W.3d at 230; Madry v. State, 200 S.W.3d 766, 769 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).

At trial, appellant=s counsel acknowledged that he was using Delta=s prior statement as Asimply impeachment@ as opposed to using it as a prior inconsistent statement. Appellant=s counsel did not attempt to impeach any of Delta=s trial testimony with her prior statement to the hospital personnel. For example, appellant=s counsel did not ask Delta, either during her testimony in the presence of the jury or during the bill of proof, whether she had a history of substance abuse. Thus, appellant did not show that the prior statement was inconsistent with anything Delta testified to at trial. Instead, appellant merely attempted to show that the prior statement was a lie. First, appellant offered evidence that Delta had possessed marihuana in the past in an attempt to establish that Delta=s statement in the medical records was a lie. The trial court correctly excluded evidence regarding Delta=s possession of marihuana because evidence of specific instances of conduct is inadmissible for the purpose of attacking a witness=s credibility. Tex. R. Evid. 608(b); see Crenshaw v. State, 125 S.W.3d 651, 654 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). Second, appellant=s counsel wanted to ask Delta in the presence of the jury whether or not she lied to the hospital personnel. The trial court correctly disallowed the question because evidence that Delta lied to the hospital personnel also constituted evidence of a specific instance of conduct. As such, the evidence was inadmissible for the purpose of attacking Delta=s credibility. Rule 608(b). Appellant sought to use Delta=s prior statement to the hospital personnel as a means of introducing evidence of specific instances of conduct. That evidence was inadmissible under Rule 608(b). Therefore, the trial court did not abuse its discretion in excluding the evidence.

Moreover, even if the trial court committed error in disallowing impeachment of Delta with the prior statement, the record does not demonstrate that appellant suffered harm from the error. Generally, a violation of the evidentiary rules that results in the erroneous admission or exclusion of evidence is nonconstitutional error. See Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (AErroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights.@); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Stovall v. State, 140 S.W.3d 712, 718 (Tex. App.CTyler 2004, no pet.). We disregard a nonconstitutional error if it does not affect an appellant=s substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury=s verdict. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); King, 953 S.W.2d at 271. A criminal conviction should not be overturned for nonconstitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

The record shows that appellant=s counsel attacked Delta=s credibility throughout an extensive cross-examination. The record also shows that the State=s case did not depend on Delta=s testimony or her credibility. Rather, the case depended on T.A.L.=s testimony. Having examined the record as a whole, we conclude that the trial court=s error, if any, in preventing appellant from impeaching Delta=s credibility with the prior statement did not harm appellant under the nonconstitutional error standard. We overrule appellant=s third point of error.

Jury Argument

In his fourth, fifth, and sixth points, appellant complains that the State made improper comments during jury arguments in the guilt/innocence phase and in the punishment phase. However, appellant did not object to the complained-of comments during trial. When a defendant fails to object to jury argument, he forfeits his right to raise the issue on appeal. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Moreno v. State, 195 S.W.3d 321, 328-29 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). Therefore, appellant waived any error in the State=s jury arguments. We overrule appellant=s fourth, fifth, and sixth points of error.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

June 7, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.