REGINALD BERNARD BULLOCK, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 18, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01246-CR
............................
REGINALD BERNARD BULLOCK, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F-06-00993-I
.............................................................
OPINION
Before Chief Justice Wright and Justices Richter and Lang
Opinion By Justice Lang
        Following a plea of not guilty, appellant Reginald Bernard Bullock was convicted by a jury of aggravated sexual assault of a child younger than fourteen years of age. Appellant pleaded true to one enhancement paragraph, which the jury found true. Punishment was assessed by the jury at twenty-five years' confinement. In two issues on appeal, appellant contends the trial court erred by (1) excluding evidence that the complainant had previously made similar allegations against her former stepfather and (2) admitting testimony from a children's advocacy center worker regarding the effect of sexual abuse on children. For the reasons below, we decide appellant's two issues against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        The indictment in this case charged in relevant part that appellant intentionally and knowingly caused “the penetration of the female sexual organ of [L.H.], a child, . . . by an object, to-wit: the finger of said defendant.” At trial, L.H. testified that at the time of the events at issue, she was thirteen years old and lived in Garland with her mother, her two sisters, two of her brothers, and appellant, who was her stepfather at that time. According to L.H., on the day the offense occurred, appellant picked her up from school at the end of the school day in a green van he used for his lawn service company. L.H. sat in the front passenger seat. She was the only passenger in the van. L.H. testified appellant turned down the alley that led to the garage at the back of their house, but, instead of driving to their house, pulled into a driveway several houses away from theirs. L.H. stated appellant parked the van and leaned toward the front passenger seat. According to L.H., appellant pulled his pants down to his knees, exposing his penis. Holding his penis with his left hand, appellant placed his right hand on the back of L.H.'s head and began trying to push her toward his penis. Appellant's penis touched the inside of L.H.'s mouth and appellant moved L.H.'s head back and forth. L.H. was crying. L.H. testified some “kind of white stuff” came out of appellant's penis and got on her face. She stated appellant wiped her face with a towel from the van. Then, L.H. testifed, appellant placed his hand down the front of her pants, inside her underpants, and put his finger inside her vagina. L.H. testified appellant said he was trying to make her period “come on.” Following the assault, they drove home.
        L.H. testified she was still crying when they arrived home. She entered the house before appellant. She testified her mother asked her why she was crying, and she told her mother “[j]ust a little” of what had happened. Then, L.H. and her older sister, A.W., went upstairs to L.H.'s room. Police arrived at the house a short time later, and L.H. told them everything that had happened. In addition, L.H. gave a sworn, handwritten statement to police. Later that evening, L.H.'s mother took
her to a doctor. L.H. told the doctor only “a little bit” about what had happened because she “didn't really feel like talking about it anymore.” L.H. testified she had not seen appellant since the date of the assault.
        On cross examination, L.H. testified that prior to the events at issue, she and A.W. got along fine with appellant and nobody had any problems with him. According to L.H., appellant had never disciplined her or A.W. After the events at issue, L.H. remained in school and continued to play sports. L.H. acknowledged that her sworn statement to police differed from her testimony at trial in that her sworn statement (1) indicated appellant asked her how things went at school and rubbed her leg before assaulting her, (2) indicated appellant touched her “privates” before pulling down his pants, and (3) did not indicate her mouth touched appellant's penis. L.H.'s sworn statement was admitted into evidence.
        Following L.H.'s testimony before the jury, a hearing was held outside the presence of the jury regarding admissibility of an incident involving L.H. and her previous stepfather. At that hearing, L.H. testified that prior to the time she met appellant, she had testified in court in Chicago regarding allegations by her that her previous stepfather put his penis in her mouth. According to L.H., her previous stepfather was arrested and jailed as a result of those allegations. Counsel for appellant elicited testimony from L.H. that she knew what would happen when she made the allegations at issue against appellant. Then, counsel for appellant asserted L.H.'s testimony regarding the prior incident was relevant and should be made available to the jury. The State argued that the evidence in dispute was precluded by rule 412 of the Texas Rules of Evidence and appellant had not established applicability of any exception to that rule. More specifically, the State argued (1) appellant had not “provided proper information at this point that this witness has any bias” and (2) the evidence was “not relevant to the charges at hand.” The trial court ruled the evidence was not relevant.
        Following that sub rosa hearing, the jury returned to the courtroom. A.W. testified that on March 28, 2006, which was her sixteenth birthday, L.H. arrived home from school later than usual. According to A.W., when L.H. walked into the house, she was crying, her hair was messed up, and she “looked real upset.” Their mother asked L.H. what was wrong, and L.H. said something had happened involving appellant. A.W. testified that appellant said L.H. was lying. Then, A.W. and L.H. went upstairs. When A.W. came back downstairs, her mother gave her a cell phone to call the police. A.W. stated she went outside and pretended she was getting the newspaper. She called the police while she was outside, and they arrived approximately two minutes later. A.W. testified she and appellant did not like each other and did not get along very well. She stated appellant had disciplined her “[a] few times.”
        Kela Reed, the mother of L.H. and A.W., testified that on the afternoon of March 28, 2006, she and appellant were at home napping. Appellant awoke shortly before 4 p.m. and left to pick up L.H. from school. Appellant and L.H. arrived home later than usual. L.H. was crying and her hair was messed up. Reed testified she asked L.H. what was wrong. According to Reed, L.H. said something happened involving appellant. Reed testified appellant said L.H. was lying and he would never do anything like that. Reed told L.H. and A.W. to go upstairs. Reed reached for the “house phone,” but appellant “took it and put it on the charger and hung it up.” When A.W. came back downstairs, Reed gave A.W. her cell phone to call the police. Appellant did not know the police were being called. Reed testified that within the next couple of days, appellant telephoned her at home and left a message on “the voice mail.” After listening to the message, Reed called police, who came to the house and made a recording of the message. Reed testified that in the voice mail message, appellant admitted he put his hand down L.H.'s pants. Over appellant's objection, the recording of the message was admitted into evidence and published to the jury.
        Outside the presence of the jury, Andrea Schultz, a clinical supervisor and therapist at the Dallas Children's Advocacy Center, testified children who have been sexually abused often minimize what happened to them and gradually reveal the details over time. Further, according to Schultz, with respect to victims of sexual abuse, (1) generally, the older the child, they less outwardly upset they appear, (2) some try to put the experience aside to avoid feeling the emotions associated therewith, and (3) it is not unusual for them to appear “pretty flat” and lacking in emotion when testifying. Schultz testified she was not familiar with and did not provide therapy to any of the parties or witnesses in this case. She testified her purpose as an expert was to help educate the jury as to the dynamics of child abuse and help them understand the actions and behavior of child abuse victims. Over appellant's objection as to relevancy, the trial court ruled Schultz's testimony admissible, and her testimony was then presented to the jury.
        Tara Huggins, a forensic investigator with the Garland Police Department, testified she was dispatched to appellant's home on March 28, 2006. Several Garland police officers were present when she arrived. Huggins testified she (1) took photographs of the scene, (2) seized a white washcloth from the van, (3) collected L.H.'s shirt, bra, panties, and pants, and (4) took DNA swabs and fingernail scrapings and clippings from appellant's left hand.
        Kim Bohme, a detective with the Garland Police Department, testified she was dispatched to appellant's home on the date of the events at issue and collected buccal swabs from appellant and L.H.
        Trisha Kacer, a serologist at the Texas Department of Public Safety Crime Laboratory in Garland, testified she detected and confirmed the existence of semen in a stain on the crotch area of L.H.'s panties. Melissa Haas, a DNA analyst at the same laboratory, testified she created a DNA profile from the semen found on L.H.'s panties and compared that profile to appellant's DNA profile. According to Haas, appellant “could not be excluded as a contributor to the stain.” Haas testified that, based on statistics, the probability of an unrelated person selected at random being the contributor of the semen is one in 1.384 billion for Caucasians, one in 426.3 million for Blacks, and one in 1.154 billion for Hispanics.
        After the State rested its case, appellant moved for a directed verdict. Appellant's counsel asserted in part that “the evidence so far presented by the State would indicate that, in fact, there is a conspiracy here to convict [appellant] wrongfully in this matter.” Appellant's motion for a directed verdict was denied.
        Appellant testified he did not commit the offense alleged. He stated that on the date in question, he awoke from a nap and picked up L.H. from school. According to appellant, L.H. was already upset about something when she got into the van. When they returned home, L.H. went up to her room like she normally did. Appellant testified that during the previous week, he had (1) caught Reed with another man, (2) discovered Reed had emptied their bank account, and (3) threatened to call Child Protective Services if Reed allowed A.W. to move out of the house at age sixteen. He stated he had left, but “they” convinced him to come back. He testified that when he returned home from picking up L.H. on the date at issue, Reed confronted him with her discovery that he had called a divorce lawyer, and an argument ensued. A.W. came downstairs while he and Reed were arguing, and Reed gave A.W. her cell phone. Appellant stated that the next thing he knew, the police arrived and questioned him regarding sexual assault of L.H. Appellant denied leaving the message recorded from the voice mail by police. According to appellant, L.H. falsely accused him of the acts at issue to get him out of the house because he and Reed were having problems.
        On cross-examination, appellant acknowledged that at the time of his arrest, he told police in the interrogation room that he (1) stuck his hand down L.H.'s panties and into her vagina and (2) pulled his penis out and “stroked it,” then ejaculated in the van.   See Footnote 1  Appellant testified at trial that those statements to the police were lies. According to appellant, prior to his arrest, he had received threats that caused him to fear his life was in danger. He admitted to the acts alleged because he preferred to go to jail rather than return home, where he had “no protection.” He “figured the truth would come out” during trial.
        After the jury found appellant guilty, appellant pleaded true to one enhancement paragraph regarding an aggravated robbery conviction. During the punishment phase of trial, a special response team officer from the Dallas County Sheriff's Department testified appellant was belligerent and disrespectful in jail and tried to harm himself. Joyce Hill, appellant's mother, testified generally as to appellant's background. She stated she tried to keep appellant in a good environment and took him to church. However, Hill testified, appellant “just kind of got with the wrong crowd” at church, which led to a ten-year sentence for aggravated robbery. Hill stated that once appellant was released from the penitentiary, she tried to help him as much as she could and thought he was “on the right track.”
        Following the jury's assessment of punishment and appellant's sentencing, appellant filed a motion for new trial in which he asserted the verdict was “contrary to the law and the evidence.”
Appellant's motion for new trial was denied by operation of law. This appeal timely followed.
II. THE TRIAL COURT'S EVIDENTIARY RULINGS
 
A. Standard of Review
 
        We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). The trial court abuses its discretion only when its decision lies “outside the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial court's ruling must be upheld if it is reasonably supported by the record and correct under any applicable theory of law. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We review the trial court's ruling in light of the evidence that was before the trial court at the time the ruling was made. See Weatherred, 15 S.W.3d at 542.
B. Applicable Law
 
        Relevant evidence is admissible at trial if permitted by the Confrontation Clause of the Sixth Amendment to the United States Constitution or the Texas Rules of Evidence. See Billodeau v. State, 277 S.W.3d 34, 40 (Tex. Crim. App. 2009). “'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401.
        “The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying.” Hammer v. State, No. PD-0786-08, 2009 WL 928561, at *4 (Tex. Crim. App. Apr. 8, 2009) (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). Generally, the right to present evidence and to cross-examine witnesses under the Sixth Amendment does not conflict with the corresponding rights under state evidentiary rules. Id. In those rare situations in which the applicable rule of evidence conflicts with a federal constitutional right, Texas Rule of Evidence 101(c) requires that the Constitution of the United States controls over the evidentiary rule. Id.
        Texas Rule of Evidence 608(b) provides in relevant part “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, . . . may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.” Tex. R. Evid. 608(b). “However, the rules of evidence do permit a witness to be cross-examined on specific instances of conduct when they are used to establish his specific bias, self-interest, or motive for testifying.” Hammer, 2009 WL 928561, at *5. “Under Rule 613(b), the opponent must first cross- examine the witness with the circumstances surrounding the bias, interest, or motive, and, if the witness denies the circumstances or the motive, the opponent may introduce extrinsic evidence to prove the motive or bias.” Id.
        Rule 702 of the Texas Rules of Evidence, titled “Testimony by Experts,” provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
 
Tex. R. Evid. 702. The Texas Court of Criminal Appeals has held that expert psychological testimony concerning the characteristics commonly displayed by child victims of sexual abuse may be admissible where such testimony is linked to the facts of the case. See Williams v. State, 895 S.W.2d 363, 365-66 (Tex. Crim. App. 1994) (citing Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (generic testimony was relevant where connected to facts of case through testimony of expert and other witnesses)).
        “[T]he exclusion of a defendant's evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.” Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). A non- constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b); see also Tex. R. Evid. 103 (error may not be predicated on a ruling that admits or excludes evidence unless a substantial right of party is affected). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. See Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). If the error did not influence the jury, or had but a slight effect, the error is harmless. See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005). In assessing the likelihood that the jury's decision was adversely affected by the error, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the error, and how the error might be considered in connection with other evidence in the case. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
C. Application of Law to Facts
 
1. Exclusion of Evidence Regarding Prior Assault of Complainant
 
        In his first issue, appellant contends the trial court erred by not allowing “evidence that the complainant had alleged, and testified about, virtually identical sexual abuse committed by her previous step-father.” According to appellant's brief on appeal, “[a] propounded defensive theory was that [a]ppellant's numerous disputes with [L.H.'s] mother influenced L.H. to fabricate [the allegations against appellant].” Appellant asserts the trial court restricted his right “to confront and cross-examine, in order to show possible motive or influence on the complainant to testify falsely.” Appellant argues the evidence at issue was relevant because “[t]he jury could consider the likelihood or reasonableness that an identical offense could happen twice, whether the complainant could feign how to act and what to say in court, and to rebut the State's attempt, through witness Schultz, to evoke sympathy for the complainant.” Finally, according to appellant, the trial court's error was harmful “because it prevented the jury from hearing evidence that might have affected credibility and supported [a]ppellant's defensive theory.” The State responds that “[b]ecause appellant improperly sought to use a specific instance of conduct-namely, the prior allegations-to attack [L.H.'s] credibility in violation of Rule 608(b) of the Texas Rules of Evidence, the trial court correctly ruled that the evidence was inadmissible.” Additionally, the State argues (1) “[a]ppellant's assertion that the excluded evidence was to be used to challenge [L.H.'s] bias, and not her credibility, rings hollow” and (2) appellant does not contend a proper application of Rule 608(b) would infringe on his rights under the Confrontation Clause.
        The record shows appellant argued as follows at trial regarding admissibility of the testimony in dispute:
        Judge, based upon testimony, the situation being quite similar to what we have here, almost-maybe not identical but virtually identical happening shortly or not long before this did with the same consequences, same everything, we feel that this would be relevant under-relevant testimony under 401 of the Code where it says, if there's anything that could enlighten the jury about the situation, they're entitled to hear. And this is directly in point with what we're hearing now.
        And, in particular, we have problems regarding the written statement versus the testimony. And, in fact, it would appear the testimony seems to corroborate what occurred back in the Chicago area.
        Based upon all of this, it is our position that this would properly and should properly be made available to the jury for determination as to what effect it may or may not have had in this matter.
        It is just-it is way too similar, similar in time, similar in everything. And again, there are questions regarding the testimony versus what is written in the statement in this matter.
        I think all of that together would put us in a position-and I think the proper thing is the jury be aware that these allegations under a very similar situation have been made before and certainly could influence what occurred here.
 
        Under Rule of Evidence 608(b), a specific instance of conduct of L.H. could not be inquired into on cross-examination or proved by extrinsic evidence for the purpose of attacking L.H.'s credibility. Tex. R. Evid. 608(b). According to appellant's argument on appeal, the trial court's ruling restricted his “right to confront and cross-examine, in order to show possible motive or influence on the complainant to testify falsely.” However, appellant's trial arguments regarding the admissibility of the testimony at issue did not address such a “motive or influence” or mention appellant's “right to confront and cross-examine.” Because appellant's contentions on appeal do not comport with his arguments at trial, we conclude appellant's first issue presents nothing for this Court's review. See Tex. R. App. P. 33.1(a); see also Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (even constitutional errors may be forfeited by failure to make a timely and specific assertion of right); Boulware v. State, 542 S.W.2d 677, 682 (Tex Crim. App. 1976) (same).
        Further, any alleged error with respect to the exclusion of the testimony at issue was harmless. To the extent appellant asserts constitutional error, the record shows appellant testified regarding his defensive theory that his disputes with L.H.'s mother influenced L.H. to fabricate the allegations against him. Therefore, we cannot conclude the exclusion of the testimony at issue effectively prevented appellant from presenting his defense. See Ray, 178 S.W.3d at 836 (although excluded testimony would have incrementally furthered appellant's defensive theory, exclusion was not constitutional error where appellant was permitted to testify as to that defensive theory). With respect to non-constitutional error, the record shows Reed testified appellant left a voice mail message in which he admitted putting his hand down L.H.'s pants. In addition, at the time of his arrest, appellant admitted to police that he stuck his hand down L.H.'s panties and into her vagina. Finally, analysts at the Texas Department of Public Safety Crime Laboratory in Garland testified semen was detected on the crotch area of L.H.'s panties, and DNA analysis showed appellant could not be excluded as a contributor as to that semen. Accordingly, in light of the entire record, we cannot agree the alleged error had a substantial and injurious effect or influence in determining the jury's verdict. See Haley, 173 S.W.3d at 518. We decide against appellant on his first issue.
2. Admissibility of Expert Testimony
 
        In his second issue, appellant contends the trial court erred by allowing the State to present Schultz's testimony regarding the effects of sexual abuse on children “when there was no effort to connect or relate that testimony to any fact or issue in this case.” Appellant asserts such error was harmful “because the State relied upon that evidence in testimony and jury argument to persuade the jury that the complainant was just a scared, meek girl, with no possible reason to fabricate.” According to appellant, “When added to the erroneous exclusion of evidence, as challenged in [appellant's first issue], the net effect was to allow the State to present a calculatedly false picture of the complainant and her testimony.” The State responds that “[b]ecause the testimony was relevant, reliable, and likely assisted the jury in reaching an accurate result, the trial court did not abuse its discretion in admitting the same.”
        The record shows that, over appellant's objection as to relevancy, Schultz testified children who have been sexually abused often minimize what happened to them and gradually reveal the details over time. Further, according to Schultz, with respect to victims of sexual abuse, (1) generally, the older the child, they less outwardly upset they appear, (2) some try to put the experience aside to avoid feeling the emotions associated therewith, and (3) it is not unusual for them to appear “pretty flat” and lacking in emotion when testifying.
        Testimony concerning the behavior of children who have been sexually abused might assist a jury in determining the fact issue of whether a specific child has been sexually abused. See Williams, 895 S.W.2d at 366; Tex. R. Evid. 702. However, to be helpful, such testimony must be applied or connected to the facts of the case. Williams, 895 S.W.2d at 366. Here, the record shows L.H. testified she initially told her mother and sister “[j]ust a little” of what had happened in the van. She testified she remained in school and continued to play sports after the events at issue. Thus, Schultz's generic testimony was connected to the facts of this case through L.H.'s testimony. See id. Further, the State's closing argument included the following:
And you saw [L.H.] up on the stand. When I asked her a question, the long pauses, she didn't want to say it. She didn't want to talk about it again in front of people that she's never met before in her whole life.
. . . .
And [Schultz] told you how children who experience these types of things, how they come across and how they tell their story.
 
Accordingly, we conclude the trial court did not abuse its discretion by allowing Schultz's testimony.
        Moreover, because appellant does not make a constitutional challenge to the trial court's ruling regarding Schultz's testimony, any error as to the admission of that testimony must have affected substantial rights to warrant reversal. See Tex. R. App. P. 44.2(b). As discussed above, the record shows (1) Reed testified appellant left a voice mail message in which he admitted putting his hand down L.H.'s pants, (2) appellant admitted to police that he stuck his hand down L.H.'s panties and into her vagina, and (3) analysts at the Texas Department of Public Safety Crime Laboratory in Garland testified semen was detected on the crotch area of L.H.'s panties, and DNA analysis showed appellant could not be excluded as a contributor as to that semen. In light of the nature and strength of that evidence, we cannot conclude the admission of the testimony at issue, if erroneous, had a substantial and injurious effect or influence in determining the jury's verdict. See Haley, 173 S.W.3d at 518. Appellant's second issue is decided against him.
III. CONCLUSION
 
        We conclude the trial court did not err by (1) excluding evidence that the complainant had previously made similar allegations against her former stepfather or (2) admitting testimony from a children's advocacy center worker regarding the effect of sexual abuse on children. Further, the record does not show the errors alleged by appellant were harmful. Appellant's two issues are decided against him.
        The trial court's judgment is affirmed.
 
                                                          -------------------------
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47.2
081246F.U05
 
 
 
Footnote 1          According to the “Statement of Facts” in the State's appellate brief, appellant also admitted to police that he “forced [L.H.] to have oral sex with him.” However, this Court was apprised by appellant's counsel during oral argument that the State's facts did not accurately reflect the content of the record. In accordance with the duty of candor toward the Court imposed upon counsel by the Texas Disciplinary Rules of Professional Conduct, the State acknowledged the discrepancy in a post-submission letter wherein counsel “apologizes for any confusion the mistake may have caused.” See Tex. Disciplinary R. Prof'l Conduct 3.03, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G. app A (Vernon 2005) (Tex. State Bar R. art. X, § 9).