Zachary Don McDonald v. The State of Texas--Appeal from 183rd District Court of Harris County

MEMORANDUM OPINION
No. 04-02-00748-CR
Zachary Don MCDONALD,
Appellant
v.
The STATE of Texas,
Appellee
From the 183rd Judicial District Court, Harris County, Texas
Trial Court No. 889444
Honorable Joan Huffman, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: March 3, 2004

AFFIRMED

Appellant Zachary Don McDonald was found guilty of committing sexual assault and was sentenced to twenty years imprisonment. On appeal, McDonald brings seven issues. We overrule all issues and affirm the judgment of the trial court.

Background

A.W., the victim, is a seventeen-year-old high-school student with cerebral palsy. She is paralyzed from the waist down and is confined to a wheelchair. She is also classified as mentally retarded. At trial, A.W. testified about the sexual assault. According to A.W., on the day of the incident, she and McDonald were riding on the same school bus. When the bus arrived at school, McDonald helped A.W. by pushing her wheelchair from the bus to the school. However, instead of wheeling A.W. to the cafeteria, McDonald took A.W. to the boys' bathroom.

Inside the boys' bathroom, McDonald removed the straps that confined A.W. to her wheelchair, lifted her out of the chair, and placed her onto a toilet seat. When McDonald attempted to place his penis into her mouth, A.W. testified that she tried to slap him. McDonald then lifted A.W. off the toilet seat, undressed her, and laid her on the floor. He then placed his penis in A.W.'s vagina and her anus. A.W. testified that she told McDonald to stop.

Commenting on Truthfulness

In his first issue, McDonald argues that the trial court erred in allowing the State's witness, Detective Swatzel, to testify about the truthfulness of A.W. At trial, the State questioned Detective Swatzel about his investigation:

Q: Detective Swatzel, in the course of your work in this area, have you received training on taking statements and looking at information that a sexual assault victim is providing you?

A: Yes.

Q: And are there certain warning bells and indicators that go off when certain things happen or don't happen?

A: Yes.

Q: In other words, validators?

A: Yes.

Q: During the time that you had contact with [A.W.], the time that you talked with her about the offense, did any of those warning bells go off that this might be something that was made up?

Defense Attorney: Judge, excuse me. May we approach briefly?

Court: Yes.

[Bench conference, on the record]

Defense Attorney: Unless I'm mistaken and [the prosecutor] can tell me, I believe that where we're headed is, she is going to try to use something to get this fellow to make an assessment of the complaining witness's truth. I don't believe you can do that. I believe that's bolstering--

Court: Where are you going?

Prosecutor: This is the last question concerning that area. In other words, based on his training and experience, was there anything that caused him alarm or caused him concern from this victim.

Defense Attorney: She [used] the word "validated." Doesn't that mean "validate her testimony"?

Prosecutor: No. I'll reword it if that's the confusion.

Court: All right.

[Bench conference ends]

Q: Detective Swatzel, you can't sit here today and tell this jury what happened to [A.W.], if anything, is that correct?

A: That's correct.

Q: When you looked at the medical records, was the medical evidence consistent with what she was telling you about?

A: Yes.

Q: And based on your experience in this area, is it common or uncommon for there to be that kind of medical evidence in a sexual assault?

A: It's common.

Q: Was there anything in the medical reports inconsistent with what [A.W.] told you about?

A: No.

Q: Based on your training and experience in interviewing victims of sexual assault, was there anything in your contact with [A.W.], or about what she told you, or anything concerning this investigation, that led you to believe that she was fabricating this?

Defense Attorney: Judge, that's the objection.

Court: That's overruled.

A: No. No, indication at all.

On appeal, McDonald argues that the trial court improperly allowed Detective Swatzel to give his opinion on the truth or falsity of other testimony. The State responds that McDonald waived this issue by making only a bolstering objection at trial. We disagree. McDonald preserved error when he stated, "Unless I'm mistaken and [the prosecutor] can tell me, I believe that where we're headed is, she is going to try to use something to get this fellow to make an assessment of the complaining witness's truth. I don't believe you can do that. I believe that's bolstering." (emphasis added). Although McDonald concluded by objecting to bolstering, his previous sentence was sufficient to inform the trial court of his objection. And, McDonald's later objection, "Judge, that's the objection" was sufficient to preserve error. See Tex. R. App. P. 33.1(a) (providing that party must specify grounds for objection unless "the specific grounds were apparent from the context").

We must, therefore, look to the merits of McDonald's issue. Relying on Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997), the State contends that Detective Swatzel's testimony was admissible. In Schultz, a social worker testified generally about the characteristics of a child who is being manipulated. Id. at 56-57. When asked about the possibility of fantasizing, the social worker replied,

If I feel like that there is a situation where the child is making up a story or fantasizing the story I will continue questioning the child's difficulties. I think my feeling is if a child is lying about something like this then that is what I need to get a handle on because that's just as big a problem as, you know, telling the truth about this.

Id. at 57 (emphasis in original). The expert was then asked whether the child, A.S., exhibited the characteristics of manipulation or fantasy:

Q: Do you have an opinion as to whether [A.S.] exhibited any of those traits or characteristics of manipulation that you have described to the jury?

. . . .

A: Yes I have.

Q: What is that opinion?

. . . . [intervening objections by defense counsel]

A: My opinion is that [A.S.] has not exhibited - in my professional opinion that she has not exhibited behaviors that point to having been manipulated.

Q: And based upon your experience, training and expertise, your close relationship and therapy of [A.S.], do you have an opinion as to whether she has exhibited any of the traits of fantasizing?

. . .

A: Yes.

Q: And what is your opinion?

. . . . [intervening objections by defense counsel]

A: My opinion is she has not exhibited any evidence of fantasizing.

Id. (emphasis in original) (alteration in original). Likewise, a psychologist testified in general about the possibility of manipulation and fantasizing. Id. He was then asked his opinion concerning whether A.S.'s statements were the product of manipulation or fantasy:

Q: Dr. Poole, based on your experience, your training, your education in your profession, my question to you is do you have an opinion based upon your examination of [A.S.] whether she has been the subject of manipulation.

A: Yes.

Q: And what is that opinion?

[renewed objections]

A: The evidence I have available to me made that the less likely explanation.

Q: Do you have an opinion based upon your experience, training and expertise and examination of [A.S.] whether her allegations are the subject of fantasy?

A: My opinion is that they were not the result of fantasy.

Defense counsel: Object to unresponsive.

Court: Sustained.

Q: Do you have an opinion?

A: Yes.

Defense counsel: Same objection.

A: That they were not to [sic] result of fantasy.

Id. at 58 (emphasis in original) (alteration in original).

The court of criminal appeals noted two important differences between the social worker's and psychologist's testimony:

First, [the social worker] testified as to the characteristics of children who fantasize or are manipulated while [the psychologist] gave opinions as to whether the complainant had in fact been manipulated and whether her allegations were the result of fantasy. Second, [the social worker]'s testimony essentially equated "fantasizing" with "lying" while [the psychologist]'s testimony about "fantasy" involved the ability of a child to perceive reality accurately.

Id. (emphasis in original). The court of criminal appeals held that "evidence of manipulation and fantasy, whether relating to mental capacity or moral disposition, should be analyzed under the same rules that govern evidence of truthful or untruthful character." Id. at 69. Under Texas Rule of Evidence 608(a), a party may attack a witness's or other declarant's general capacity or disposition to tell the truth. Id. The other party may respond to such an attack with evidence supporting that person's general capacity or disposition for truthfulness. Id. If this evidence is in the form of expert testimony, it must assist the trier of fact under Rule 702. Id. at 70. "[J]urors may naturally tend to view with suspicion the competence of a class of people because of a condition or disability embodied in the class." Id. Examples of this phenomenon would include young children and mentally retarded persons. Id. When an "impaired" witness or declarant is expected to testify, "expert testimony should be permitted in the offering party's case-in-chief concerning the ability of the class of persons suffering the 'impairment' to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events at issue in the case." Id. However, the court of criminal appeals emphasized that "evidence that a person's allegations are the result of manipulation or fantasy is inadmissible. Such evidence never assists the jury because the jury is just as capable as the expert of drawing the conclusions involved." Id. at 70-71. Nevertheless, otherwise inadmissible evidence may be admitted if the party against whom the evidence is offered "opens the door." Id. at 71. But, the party offering the evidence may not "stray beyond the scope of the invitation." Id.

Applying these rules to the case, the court of criminal appeals held that the social worker did not express an opinion about whether the child's allegations had been the subject of manipulation but "stated merely that the child did not exhibit 'behaviors that point to being manipulated.'" Id. at 73. As such, the social worker's testimony that the complainant did not exhibit traits of manipulation did not constitute a direct comment upon the truth of the complainant's allegations. Id. However, the social worker's comments about fantasy did constitute a direct comment:

Although [the social worker] was asked whether the complainant displayed the "traits" of fantasizing, [the social worker] had not described any "traits" of fantasizing in her testimony. Instead, she merely equated fantasizing with lying. Her testimony that the complainant had not exhibited any evidence of fantasizing was therefore a direct comment on the truthfulness of the complainant's allegations.

Id. at 73. Likewise, the court found that the psychologist's testimony that the allegations "were not the result of fantasy" constituted a direct comment on the truthfulness of the complainant's allegations. Id. These statements were, thus, inadmissible unless the appellant had opened the door to direct comments on the truth of the allegations. Id.

Similarly, here, Detective Swatzel was asked, "Based on your training and experience in interviewing victims of sexual assault, was there anything in your contact with [A.W.], or about what she told you, or anything concerning this investigation, that led you to believe that [A.W.] was fabricating this?" In essence, Detective Swatzel was asked whether he believed A.W. was lying. In response, Detective Swatzel testified, "No. No indication at all." The State argues that Detective Swatzel merely stated that A.W. did not exhibit signs that pointed to possible fabrication. However, just as in Schutz, Detective Swatzel never testified about what indicators or signs would point to fabrication. Instead, he testified that there was no indication that A.W. was lying. Under Schutz, this testimony constitutes a direct comment on the truthfulness of A.W.'s allegations. Thus, the testimony would be admissible only if McDonald had opened the door. However, at this point in the trial, McDonald had not attacked A.W.'s truthfulness, only that her mental disability sometimes made it hard for A.W. to observe and understand what was happening around her and then communicate her observations to others. The trial court, therefore, abused its discretion in allowing Detective Swatzel's statement.

Having found error, we must now determine whether such error was harmful. The admissibility of this evidence is non-constitutional error. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Wilson v. State, 90 S.W.3d 391, 393 (Tex. App.--Dallas 2002, no pet.). We must disregard the error unless it affected McDonald's substantial rights. Tex. R. App. P. 44.2(b). An error affected a substantial right "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Wilson, 90 S.W.3d at 393. We will not overturn a criminal conviction if, after examining the record as a whole, we have fair assurance that the error did not influence the jury, or influenced the jury only slightly. Schutz, 63 S.W.3d at 444. In so reviewing, we must consider everything in the record, including testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Id. Additionally, we "may consider the trial court's instructions to the jury, the theories of the case that the State and defendant have espoused, arguments to the jury and relevant voir dire." Id. at 444-45.

The danger posed by the erroneous admission of Detective Swatzel's commenting on A.W.'s credibility was that the jury could have allowed that testimony to supplant its decision. See id. at 445. However, here, there was more than just Detective Swatzel's testimony about A.W.'s credibility. Bertrina McDaniel, a special education teacher, testified that around 10:00 a.m. on the morning of the incident, less than two hours after A.W.'s bus arrived at school, A.W., upset, crying, and shaking, told her that "Zachary touched me." McDaniel noticed that A.W. was not sitting properly in her chair, but was sitting sideways. Her feet were not strapped on the wheelchair properly, but were protruding over her foot rest. A.W. then told McDaniel about the sexual assault in the bathroom and that McDonald had put her back in her wheelchair. Through the opening in A.W.'s shirt, McDaniel noticed scratches on A.W.'s chest. A.W. said that McDonald had put his hands inside her blouse. After they were in the school clinic with the school nurse, A.W. raised her shirt to reveal that her bra was raised above her breast. According to McDaniel, there was bruising and fresh scratches on A.W.'s chest consistent with fingernail marks. When asked how that had happened, A.W. stated that McDonald injured her chest when they struggled on the floor of the bathroom.

Angela Sims, the school nurse, testified that on the morning of the incident, McDaniel brought A.W. to the school clinic. According to Sims, when explaining what had happened, A.W. would move her hands "jittery" and would start crying. Sims also noticed the way in which A.W. was sitting in her wheelchair. A.W. was not sitting straight and her feet were not strapped in properly. A.W. told Sims that McDonald was wheeling her wheelchair into the school when he wheeled her to the bathroom. He then unzipped his pants and tried to insert his penis into her mouth. A.W. said that she screamed "No" and slapped him. McDonald then took her out of the wheelchair, placed her on the floor, unzipped his pants, pulled down her panties, and rubbed her chest while A.W. was fighting him. According to A.W., that was how she got the scratches on her chest. Sims then examined A.W.'s chest and also noticed that A.W.'s bra was not fully covering her breasts. Sims saw some red scratches "maybe half an inch to an inch long." Like McDaniel, Sims thought that the scratches were fresh, being bright red. A.W. then told Sims that McDonald pushed his penis into her private parts. According to A.W., when McDonald was done, he put her clothes back on her and put her back on her wheelchair. A.W. then wheeled herself out of the bathroom. A.W. said that McDonald threatened to hurt her if she told anyone. She told Sims that she was afraid and had told a friend, who in turn told her to tell McDaniel.

Karen Marie Ben To'oto'o testified about A.W.'s rape examination at the hospital. According to To'oto'o, there was chafing in the area between the labia minora and the labia major. There were three tissue tears in the vaginal area and a one centimeter cut just above the anus. The medical conclusion from the examination was that A.W. had been assaulted against her will. Detective Swatzel, however, testified that the crime lab was unable to detect any semen from the rape kit.

Additionally, the jury was able to judge A.W.'s credibility when she testified at trial. (1) After reviewing the entire record, we cannot find that the admission of Detective Swatzel's statement affected McDonald's substantial rights. We, therefore, overrule his first issue.

Waived Issues

In his second issue, McDonald contends that during voir dire, the prosecutor made improper statements to the venire panel when she gave the panel a "pop quiz" about sexual assault cases in violation of his state and federal constitutional rights. McDonald, however, failed to object to these statements made by the prosecutor and as such, failed to preserve error for appeal. See Tex. R. App. P. 33.1. We overrule his second issue.

In his third issue, McDonald complains that the court reporter failed to record a bench conference during trial. McDonald emphasizes that Texas Rule of Appellate Procedure 13.1 requires a court reporter to make a full record of the proceedings unless excused by agreement of the parties. Tex. R. App. P. 13.1. Because the court reporter failed to make a record of the bench conference in question, McDonald argues that he has been harmed and deserves a new trial. The Texas Court of Criminal Appeals, however, has recently held that to preserve error for appeal, a party must object during trial to the court reporter's failure to record a bench conference. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Here, the record does not reflect that McDonald made an objection to the court reporter's failure to record the bench conference in question nor does McDonald allege that he made such an objection at trial. Id. Therefore, McDonald has failed to preserve his complaint for appeal. Id. We overrule McDonald's third issue.

McDonald argues in his fourth issue that the trial court erred in allowing the State to elicit testimony from a school psychologist that McDonald was not a suitable candidate for community supervision. Again, McDonald failed to object to this testimony and has failed to preserve this issue for appeal. See Tex. R. App. P. 33.1.

In his fifth and sixth issues, McDonald contends that the prosecutor, during closing argument, improperly argued to the jury members that (1) they should place themselves in the shoes of A.W. and (2) they should return a verdict based on the demands and expectations of the community. McDonald failed to object to these statements made by the prosecutor, and as such, has failed to preserve these issues for appeal. Tex. R. App. P. 33.1; see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that before complaining on appeal about an erroneous jury argument, appellant must show that he timely and properly objected to the argument and pursued the objection to an adverse ruling); Simmons v. State, 100 S.W.3d 484, 494-95 (Tex. App.--Texarkana 2003, pet. ref'd) (same). We overrule McDonald's fifth and sixth issues.

In his seventh and final issue, McDonald contends that the trial court erred in allowing the State to improperly elicit testimony from McDonald's juvenile probation officer about the details of McDonald's prior misdemeanor conviction. Specifically, McDonald complains of the following testimony:

Q: What was the defendant, Zachary McDonald, on juvenile probation for? What kind of offense was it?

A: For assault, bodily injury.

Q: And does your file contain any information concerning what actually happened?

A: To paraphrase the police report, it says that the respondent shot the victim in the abdomen with a BB gun and also shot the victim's dog.

Again, McDonald failed to object to this testimony and as such, failed to preserve his complaint for appeal. Tex. R. App. P. 33.1. We overrule McDonald's seventh issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. McDonald did not testify at trial.