Hicks, Leonard Charles

PD-0888-15

PD-0888-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/21/2015 3:06:08 PM

Accepted 7/22/2015 4:42:57 PM

ABEL ACOSTA

CLERK

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

LEONARD CHARLES HICKS

Appellant

vs.

THE STATE OF TEXAS

Appellee

Original conviction in the

262ND Judicial District Court

Harris County, Texas

Cause No. 1373854

Appealed From the Court of Appeals

No. 14-14-00263-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT REQUESTED

MICHAEL P. FOSHER.

Attorney at Law

The Lyric Center

440 Louisiana Ste. 1200

Houston, Texas 77 002-1636

(713) 22r-r8r0

T.B.N.:07280300

July 22, 2015 ATTORNEY FOR APPELLANT

IDENTITY OF PARTIES AI\D COI'NSEL

Pursuant to Tex. R.App.P. 38.1(a), (vernon pamph. 2014),the following

persons are interosted parties:

Presiding Judge 4d Trial

The Honorable Judge Denise Bradley

262nd Judicial Dishict Court

l20l Franklin

Houston, Tx77002

Attorneys for State

Erin Epley

Assistant D.A.

l20l Franklin

Houston Tx77002

Attorney for Defonse

Mr. Kenneth McCoy

Attorney atLaw

P O box 53347

Houston, Tx77052

(281) 686-4389

Mr. Michael P. Fosher (on appeal)

Attomey atLaw

The Lyric Centern 400 Louisiana, STE. 1200

Houston, Tx770A2-K36

(7r3) 22r-r8r0

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.

TABLE OF CONTENTS . . ii

INDEX OF AUTHORITIES iii

PETITION FOR DISCRETIONARY REVIEW

STATEMENT OF THE NATURE OF THE CASE . .

STATEMENT OF PROCEDURAL HISTORY

STATEMENT REGARDING ORAL ARGUMENTS 1

APPELLANT'S GROUNDS FOR REVIEW 1

APPELLANT'S FIRST GROUND FOR REVIEW

DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED

IN NOT GRANTING A MISTRIAL WHEN THE STATE'S WITNESS INTEzuECTED

THE PRIOR SEXUAL CONDUCT OF THE COMPLAINANT? 1

APPELLANT'S SECOND GROUND FOR REVIEW

DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED

IN ALLOWING JANET MARIE GREEN TO TESTIFY OVER OBJECTION BY GIVING AN

EXPERT OPINION WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT WITNESS? . .2

PRAYER FOR RELIEF . 5

CERTIFICATE OF SERVICE .6

INDEX OF AUTHORITIES

Pinson v.state, STATE CASES

778 S.W. 2d 91 (Crim.App. 1939). 4

Draheim v. State,

916 S.W.2d 593 (Tex. App. - San Antonio 1996). .4

Miles v. State,

6l S.W.3d 682 (Tex. App. - Houston [t.tDis.] 2001). . 4

Vela v. State,

209 S.W.3d 128 (fex. Crim.App. 2006). .5

Holloway v. State,

613 S.W. 2d 497 (Tex. Crim. App. l98l 5

Rodgers v. State,

205 S.W. 3d 525 (Tex. Crim. App. 2006). .s

Mozon v. State,

991 S.W.2d 841 (Tex. Crim. App. 1999). 6

STATE STATUTES

Tex. R. App. P. 38.1(a)(Vernon Pamph.2014). i

Rule 68 of the Texas Rules of Appellate procedure . .I

Tex. R. App. P. 68.1(a)(Vernon Pamph. 2015). I

Tex. R. App.P.Ann. 66.3(a), (c) & (f) (Vernon pamph. 2015). .2

Tex. Rules of Criminal Evidence 412 (b). . 3

Tex. Rules of Evidence7\2. . 5

Tex. App. P.43.2, sec. 3 Vernon's pamph. 2014 . 6

Tex. R. App. P. a3.2(a) Vernon Pamph. 2014 . .6

Tex. R. App. P. 69.1 (Vernon Pamph. 2015). .6

Texas Rule of Appellate Procedure 9.4 (i) (3). .7

lll

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

Comes now, LEONARD CHARLES HICKS, the Appellant, who files his petitioner for

discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure requesting the

Court to review and thereafter reverse the opinion issued by the Fourteenth Court of Appeals in Cause

Number l4-14-00263-CR. Leonard Charles Hicks v. State. and would show as follows:

STATEMENT OF THE NATURE OF THE CASE

This appeal lies from Appellant's conviction in The State of Texas vs LEONARD CHARLES

HICKS, Cause No. 1373854 for Aggravated Sexual Assault of a Child, in the 262ndJudicial District

Court, Hanis County, Texas. On February 28,2014, the Appellant pled not guilty to the charge. A

jury trial was held, the Appellant was found guilty of Aggravated Sexual Assault of a Child and

sentenced to 65 years in the Texas Department of Criminal Justice by the Jury.

Appellant gave written notice of appeal on March 5,2014, and Counsel was appointed on

appeal. A Motion for New Trial was filed and ovemrled by operation of law.

This Court has jurisdiction pursuant to Tex. R. App. P. 68.I(a)(Vernon Pamph. 2015).

STATE OF PROCEDURAL HISTORY

The Court of Appeals affirmed appellant's conviction on June 30,2015.

STATEMENT REGARDING ORAL ARGUMENTS

Appellant requests oral argument.

APPELLANT'S GROUNDS FOR REVIEW

APPELLANT'S FIRST GROUND FOR REVIEW

DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED

IN NOT GRANTING A MISTRIAL WHEN THE STATE' S WITNES S INTEzuECTED THE

PzuOR SEXUAL CONDUCT OF THE COMPLAINANT.

APPELLANT'S SECOND GROUND FOR REVIEW

DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN

ALLOWING JANET MARIE GREEN TO TESTIFY OVER OBJECTION BY GIVING AN EXPERT

OPINION WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT WITNESS.

Reasons For Granting This Petition

This Court should grant this petition on the grounds that: l) the Justices of the Court of Appeals

have disagreed on a material question of law; 2) the Court of Appeals has decided an important

question of state or federal law in a way that conflicts with applicable decisions of the Court of

Criminal Appeals or the Supreme Court of the United States and 3) the Court of Appeals has so far

departed from the accepted and usual course ofjudicial proceedings as to call lbr an exercise ofthe

Court of Criminal Appeals' power of supervision. Tex. R. App. P. Ann. 66.3(a), (c) & (D (Vemon

Pamph.2015).

APPELLANT'S FIRST GROUND FOR REVIEW (RE-STATED)

DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TzuAL COURT

ERRED IN NOT GRANTING A MISTzuAL WHEN THE STATE'S WITNESS

INTERJECTED THE PRIOR SEXUAL CONDUCT OF THE COMPLAINANT.

At one point during the trial Jeannette Leedy was asked if complainant's regression was tied

to anything specific and she answered "the last time I remember was when she saw her little brother,

she was very happy to see the little boy, but after she went home and she lived with another sibling

immediately they became so sexually between the two of them that it was almost impossible to

dismount them one from the other." R.R. IV-56).

Appellant's objection to hearsay was ultimately sustained and the jury was instructed to

disregard the statement and a motion for mistrial was denied. The Judge then instructed the prosecutor

to inquire as to opinions only and not as to stories or credible accounts of what Ms. Reedy had heard

(R.R. IV-57). Appellant's request to take the witness on voir dire was not granted.

Even though the basis of the appellant's objection as to hearsay was sustained the unsolicited

prejudice of this statement could not be ignored by the jury. It could only inflame them against

appellant and an instruction to disregard would not have cured the harm. In cases where the defense

attempts to introduce evidence of the victim's prior sexual conduct, the defense must go through a

number of steps before such evidence would be presented to a jury Tex. Rules of Criminal Evidence

412 (b). In this instance case the testimony of the prior sexual conduct of the complainant was

introduced by the State for the only conceivable purpose of inflaming the jury asking them to deduce

that her sexual conduct with other siblings was due to her sexual conduct with appellant. This unfair

statement was not relevant to any contested issue in the case other than to produce unfair prejudice

against appellant and it could only be construed to inflame the minds of thejury and appellant's

request for a mistrial should have been granted. Pinson v. State 778 S.W. 2d 91 (Crim. App. 1989).

Draheim v. State 916 S.W.2d 593 (Tex. App. - San Antonio 1996). Miles v. Sltate 61 S.W.3d 682

(Tex. App. - Houston [1" Dis.] 2001).

Nevertheless, the Court of Appeals affirmed Appellant's conviction on this ground. Opinion

at Page 10.

APPELLANT'S SECOND GROUND FOR REVIEW (RE.STATED)

DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN

ALLOWING JANET MARIE GREEN TO TESTIFY OVER OBJECTION BY GIVING AN EXPERT

OPINION WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT WITNI]SS.

At one point Janet Green testified was as follows:

Question: Do you think Complainant is a generally a disturbed little girl or

there is just something inherently wrong with her?

Answer: No, I don't.

Mr. McCoy: Judge, I am going to object to that. She's not been

qualified to make a medical diagnosis.

The Court: OK. You can make a legal objection if you'd like.

Mr. McCoy: Judge, I am going to object to that. This witness has not been

qualified as an expert.

The Court: I'll allow her to answer that question in the form of her opinion.

Question (by

Ms. Epley): In your opinion is there something just inherently wrong with

Complainant?

Answer: No. (R.R.III-49,50)

As to Ms. Green's testimony that there was nothing inherently wrong with Complainant,

appellant's objection notified the Court that this witness was not qualified to give an expert opinion

on an ultimate issue in the case. The fact that a witness might possess knowledge or skill not

possessed by other people generally does not in itself mean such expertise would assist the trier of fact

regarding an issue before the Court Velav. State, 209 S.W.3d 128 (Iex. Crim App 2006). At this

juncture of the trial the Court was required to determine the qualifications of Ms. Green as an expert

witness. Tex.RulesofEvidenceT02. Accordinglyitmustbeshownthatthewitnesspossessesspecial

knowledge on the specific matter about which his or her experience is being sought. Also the expert

must demonstrate that he or she possesses knowledge that assists the trier of fact in understanding the

evidence or determining a fact in issue. Holloway v. State .61 3 S.W. 2d 497 (Tex. Crim. App. I 98 1).

Rodgers v. State,205 S.W. 3d 525 (Tex. Crim. App. 2006) states that there are three criteria

in determining whether a trial court abused its discretion in evaluating the witnesses' qualifications

as an expert.

l. Is the field of expertise complex?

2. How conclusive is the expert's opinion?

J. How central is the area of expertise to the resolution of the lawsuit?

In this instance case, none of these criteria were investigated. The court in allowing this

witness to make a conclusive finding as to an ultimate issue in the case, created unfair prejudice to

appellant since the jury would have given much weight to the to witness' statement that there was

nothing wrong with the complainant. The trial court abused its discretion in not looking into the

qualifications of Ms. Green before allowing her to give an expert opinion. The Court of Appeals erred

in not finding that the probative value of this testimony did not outweigh the damages of unfair

prejudice. Her testimony should have been stricken from the record. Miles, supro, Mozon v. State,

991 S.W.2d 841 (Tex. Crim. App. 1999).

Nevertheless, the Court of Appeals affrrmed Appellant's conviction on this ground. Opinion

aIPage 12.

This court should reverse appellant's conviction and order a new trial Tex. App. P. 43.2, sec.

3 Vernon's Pamph. 2014; Tex. R. App.P. a3.2(a) Vernon Pamph. 2014.

This Court should grant appellant's petition for discretionary review on these grounds and

order a full brief on the merits. Tex. R. App. P. 69.1 (Vernon Pamph. 2015).

PRAY FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable Court to consider

the grounds for review raised herein, to grant this petition for discretionary review, and to order a full

and complete hearing on the merits and with briefs.

Respectfully submitted,

MICHAEL P. FOSHER

ATTORNEY AT LAW

The Lyric Center

5

440 Louisian4 Suite 1200

Houston, Texas 77002

713-221-1810

TBN 07280300

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIAI\CE

I hereby certiff that pursuant to Texas Rule of Appellate Procedure 9.4 (i) (3), the foregoing

Appeal contains 2,023 words.

Inln

MICHAEL P. FOSHER

CERTIFICATE OF' SERVICE

This will certiff that a copy of the foregoing motion was served upon Alan Curry,

curry_alan@dao.hptx.net, District Attomey of Harris County, Appellant Division, 1201 Franklin,

Houston, Texas 77002, facsimile no.713-755-5809 at the time of filing as per local rule.

MICHAEL P. FOSHER

Aflirmed and Memorandum Opinion liled June 30,2015.

In The

lffsurttentll' (fi.surt uf App ealx

NO. 14-14-00263-CR

LEONARD CIIARLES HICKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1373854

MEMORANDUM OPINION

Appellant, Leonard Charles Hicks, appeals his conviction for aggravated

sexual assault of a child. In three issues, he contends (1) the evidence is

insufficient to support the conviction, (2) the trial court erred by denying

appellant's motion for a mistrial after a witness interjected improper testimony,

and (3) the trial court erred by allowing alay wibress to provide an expert opinion.

We affirm.

I. BACKGROUND

The female complainant, who was five-years-old at the time of trial, is

appellant's daughter. In January 2012, when complainant was three-years-old, she

began living with two adults, Janet Green and Pamela Richardson. These women

did not know complainant or her family but learned of her situation from a mutual

acquaintance. They agreed to temporarily care for complainant because she and

her siblings were being removed from their parents' home and all the siblings had

been placed elsewhere. Complainant's placement in the home was subsequently

extended through actions of relevant agencies. In the fall of 2012, her younger

sister was also placed there. At the time of trial (over two years after complainant

flrst arrived), both children were still living in the home.

According to the women's collective testimony, when complainant arrived,

she was very intelligent and talkative but displayed inappropriate behavior and

made statements that caused them concern. For instance, complainant would put

on "a little tutu skirt" and high-heel shoes and dance like "somebody in a strip

club." She 'play[ed] with herself' a lot in a manner that was more than just a

curious three-year-old touching her genitals. She "masturbat[ed]" using toys that

were hard objects and placed stuffed toys between her legs. Once, while bathing,

she aggressively moved a tubular-shaped toy back and forth between her legs,

toward her genitals. When asked how she learned that behavior, she replied, "my

daddy." Additionally, she was afraid of men, the police, going to jail, and being

shot with a gun. She "always" talked about the "terrible things" that happened at

home and said she would rather kill herself than be killed by her parents.

Richardson, who was designated as the outcry witress, more specifically

testified that complainant said (l) her father would "stick" his finger in her "to-to,',

the term she used to described her vaginal area, which caused bleeding because his

fingernails were long, (2) her father would snatch her off the toilet while he was

naked, put her on his lap, and "go up and down" with her, and (3) when her parents

found complainant while playing hide-and-seek, they would "play in my to-to" and

make her brother (who was two years older) "dig" in her "to-to."

Shortly after complainant's arrival in the home, Green contacted Children's

Protective Services ("CPS"), which referred the child to the Children's Assessment

Center ("the Center"). A forensic interviewer at the Center interviewed

complainant in March 2012, but she did not reveal any abuse, and no charges

resulted, at that time.

Meanwhile, Green also took complainant to a pediatrician. That doctor did

not testi$r at trial, but her records were admitted. According to those records,

Green reported complainant was afraid of men, she was caught enacting a sexual

act with a doll, she disclosed that her mother made complainant's brother 'play

with her 'tutie' (her word for vagina)," an6l the child repeated the same information

to the doctor. The pediatrician recommended that complainant continue with the

CPS assessment, which was ongoing atthat time.

After the CPS investigation was closed, complainant's behavior continued at

home, and the women placed her in therapy. The therapist testified that, at the

outset of their sessions, complainant would cower near men and was depressed and

anxious. The therapist did not relay any express statements made by complainant

but testified that complainant eventually spoke about "the things that occurred"

with her parents and consistently gave the same version. A psychiatrist treated

complainant along with the therapist. Complainant was diagnosed with various

unrelated conditions, such as Attention Deficit Hlperactivity Disorder, but also

Post Traumatic Stress Disorder, which the therapist explained was based on

complainant's life with her parents.

In September 2012, complainant's teacher contacted Green because of an

incident at school. When another child wanted to undress some dolls, complainant

"th.rew a fit" and insisted, "don't do that because she's going to get hurt like I did

by *y daddy." The teacher tried to calm complainant, but she repeated the doll

would get hurt "like my dad hurt me" if her clothes were removed. This report

prompted Green to again contact CPS, and the child was referred to the Center.

Complainant then met with the same forensic interviewer, who testified that

this time the child made "disclosures." The interviewer was precluded at trial

from revealing those statements but testified the child placed her finger in the

vagina of an anatomically correct doll and twisted the finger. The interviewer also

explained that often a child will not open up during a first interview but does later

after feeling more comfortable due to family support or having attended therapy.

Complainant was also examined by a physician at the Center. The

physician's testimony, and portions of her medical records, reflected the following

exchange: Complainant told the physician, "my daddy touched my ear and in my

back, my behind." The physician asked, "what did he do to your behind?"

Complainant responded, "he rubbed my front. He rubbed with my front. When he

was trying to play with my front with his finger, I keep watching cartoons and he

kept -- and I kept hitting him away."

Additionally, those medical records reflected the following history, as

provided by the referring adults: (l) complainant exhibited "sexualized behaviors";

(2) she had disclosed that appellant "put his fingers in [her] vagina"; and (3) "there

had been allegations against dad since lthe caregiver] first received child." The

records include a cofirment from the physician that complainant "gives clear

[history of] fondling of genitals by father."

This second assessment resulted in a CPS disposition of "reason to believe."

The police arrested appellant for aggravated sexual assault of a child.

Complainant testified at trial that appellant twice "digged in my to-to."

Further, her brother testified that shortly before the family separated, he saw

appellant touch complainant's "middle part," the term the brother used to describe

complainant's genitals, and appellant made the brother hit complainant in her

"private area."

A j"w convicted appellant of the offense. After finding two enhancement

paragraphs were "true," the j".y assessed punishment at sixty-five years'

confinement.

II. SUTTICIENCY oF THE EvrorNcn

In his first issue, appellant contends the evidence is insuffrcient to support

his conviction. When reviewing sufficiency of the evidence, we view all evidence

in the light most favorable to the verdict and determine, based on that evidence and

any reasonable inferences therefrom, whether any rational fact finder could have

found the elements of the offense beyond a reasonable doubt. Gear v. State, 340

S.W.3d 743, 746 (Tex. Crim. App. 2011). This standard gives fulI play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, weigh

the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.

Circumstantial evidence is as probative as direct evidence in establishing guilt.

Hooper v. State,2l4 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact need not

point directly and independently to guilt, as long as the cumulative force of all

incriminating circumstances is sufficient to support the conviction. ,Id

A person commits aggravated sexual assault of a child if he intentionally or

knowingly causes the penetration of the sexual organ of a child younger than age

fourteen by aty means. Tex. Penal Code Atttt. $ 22.021(a)(lXBXi), (2XB) (West,

Westlaw through 2015 R.S.). In this case, the jury was charged that appellant

committed the offense if he intentionally or knowingly penetrated complainant's

sexual organ with appellant's finger.

The State presented direct evidence that appellant peneffated complainant's

vagina with his finger: (1) complainant's testimony that appellant twice "digged in

my to-to," which referred to her vaginal area; and (2) complainant's outcry to

Richardson that appellant would "stick" his finger in her'to-to." Either testimony

is alone sufficient to support the conviction. See Tex. Code Crim. Proc. Ann. art.

38.07(a) (West, Westlaw through 2015 R.S.) (providing conviction for sexual

assault of a child is "supportable on the uncorroborated testimony of the victim . . .

. "); Rodrigtez v. State, 819 S.W.2d 871,873 (Tex. Crim. App. 1991) (recognizing

outcry testimony alone can be legally sufficient evidence to support a conviction

for sexual assault of a child); see also Bargas v. State,252 S.W.3d 876,888-89

(Tex. App.-Houston t14th Dist.l 2008, no pet.) (holding child's testimony

regarding abuse was alone sufficient to support defendant's conviction for

aggravated sexual assault despite child's use of "unsophisticated terminolo Ey");

Jensen v. State,66 S.W.3d 528, 534 (Tex. App.-Houston U4th Disr.l 2002, pet.

refd) (holding child's outcry statement was alone sufficient to support defendant's

conviction for aggravated sexual assault).

Nonetheless, the following evidence, although not direct regarding the

requisite penetration, supported the j,rry's finding, when combined with the direct

evidence: (1) complainant's sexually suggestive behavior; (2) complainant's

fearful demeanor, including a fear of men; (3) complainant's specific remarks to

caregivers or professionals generally indicating abuse by appellant: she learned to

move tubular-shaped toys back and forth toward her genitals from "my daddy"; he

made her "go up and down" on his lap while he was naked; an undressed doll

might get "hurt" like appellant "hurt" complainant; her parents "play" in her "to-

to" during hide-and-seek, and appellant rubbed and nied to play with

complainant's "front" with his finger; (a) the fact that complainant generally spoke

to her therapist about the "things that occurred" and was diagnosed with Post

Traumatic Stress Disorder from having lived with her parents; (5) the fact that

complainant generally made "disclosures" to the forensic interviewer (at their

second meeting); (6) complainant's actions during that interview of placing her

finger in the vagina of the doll and twisting the finger; (7) the brother observing

appellant "touch" complainant's genitals; (8) appellant forcing the brother to "hit"

complainant's genitals or place his finger in her "to-to"; and (9) the CPS

disposition of "reason to believe."

Appellant proffers multiple reasons that the evidence is purportedly

insufficient to support his conviction.

First, appellant cites several items of evidence to attack the credibility of

witnesses and whether the child's statements, behavior, and testimony indicated

any sexual assault occurred:

Complainant was diagnosed with several psychological disorders unrelated

to any sexual abuse, and her therapist acknowledged she had difficulty

adapting to her new home.

Complainant gave conflicting trial testimony on whether any abuse

occurred: She originally testified no one had touched her "to-to." The

prosecutor then requested a break and spoke with complainant. After the

break, complainant testified the prosecutor did not tell her what to say but

only that she should tell the truth and they would talk about her father. She

then testified appellant "digged in my to-to."

Complainant's teacher acknowledged the child was bossy and thus it was not

unusual for her to insist another child refrain from removing a doll's clothes.

o The CPS investigator who ultimately reached a disposition of "reason to

believe" did not personally interview complainani or the investigating

officer but gathered her information from observing the forensic interview.

o Green originally testified complainant and her brother had seen each other

only once since complainant began living in the GreerVRichardson home;

but, after the brother recounted two visits, Green acknowledged she had

forgotten another visit. I

All of these points are merely matters on which we defer to the jury in its

role to judge the credibility of witresses, weigh certain factors, and choose whether

to believe some or all of a witress's testimony. See Gear,340 S.W.3d at 746;

Sharp v. State,707 S.w.zd 617, 674 (Tex. Crim. App. 1996) (recognizing jury

may choose to believe some, while rejecting other portions, of a witness's

testimony). The jury was free to resolve those issues in favor of believing the

State's witnesses and determining that complainant's testimony, statements, and

behavior supported a finding that appellant committed the offense. See Gear,340

S.W.3d at 7 46; Sharp, 707 S.W .2d at 614.

Next, appellant relies on the fact that the physician who examined

complainant at the Center did not find any physical signs of abuse. However, that

fact does not render the evidence insufFrcient; the physician also explained that it is

common for a victim of sexual abuse to have normal physical findings because

injuries heal quickly and the vagina is very elastic.

Finally, appellant cites the brother's testimony that his mother's boyfriend,

referred to as "Daddy Phillip," was the one who touched complainant's genitals.

However, the brother later clarified that "Daddy Phillip" and appellant are the

same person.

' The State proffered testimony regarding the limited number of visits to prove the

children lacked an opportunity to concoct a story, and when Green remembered both visits. she

was clear they occurred after complainant's outcry.

In summary, the evidence is sufficient to support appellant's conviction for

aggravated sexual assault of a child. We overnrle his first issue.

III. Drnnr, oF MorroN FoR MrsrRru,

In his second issue, appellant complains that the trial court denied

appellant's request for a mistrial after a witress interjected improper testimony.

On direct examination, complainant's therapist testified that she becomes

concerned when she detects complainant is regressing. The State asked if the

regression is tied to anything specific, and the therapist responded:

The last time I remember was when she saw her liule brother, she was

very happy to see the little boy, but after she went home and she lives

with another sibling and immediately they became so sexually [sic]

between the two of them that it was almost impossible to dismount

them one from the other.

Appellant's counsel asked to take the witness on voir dire, asserting the

testimony was likely hearsay because it involved activity in the home on which the

therapist would lack personal knowledge. Without requiring voir dire, the trial

court's sustained the hearsay objection and instructed the jury to disregard the

response. The trial court then denied appellant's request for a mistrial.

We review a trial court's denial of a motion for mistrial for abuse of

discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).

Mistrial is appropriate only for "highly prejudicial" and "incurable" ertors. Id. "It

may be used to end trial proceedings when faced with error so prejudicial that

expenditure of further time and expense would be wasteful and futile." Id.

Ordinarily, a prompt instruction to disregard will cure error associated with

improper testimony. See id. "Generally, a mistrial is only required when the

improper evidence is clearly calculated to inflame the minds of the jury and is of

such a character as to suggest the impossibility of withdrawing the impression

produced on the minds of the j.rry." Hinojosa v. State,4 S.W.3d 240, 253 (Tex.

Crim. App. 1999). Whether the erroneous admission of evidence requires a

mistrial is determined by considering the facts and circumstances of the case. 1d.

Appellant contends the testimony at issue was introduced by the State solely

to inflame the jury and it unfairly prejudiced appellant. The record negates

appellant's contention regarding the State's pu{pose because the State represented

it did not expect the witness's response and seemed to acknowledge it had yet to

establish admissibility of any such testimony. Further, the question regarding what

type of events caused complainant to regress did not indicate the State intended for

the wifness to describe such a detailed incident that was not necessarilv based on

her personal knowledge.

With respect to the unfair-prejudice contention, appellant asserts the

testimony suggested complainant and her sister behave in a sexual manner toward

each other because they learned this behavior from appellant's sexual conduct

toward complainant. We disagree that the testimony at issue was "so prejudicial

that expenditure of further time and expense would be wasteful and futile," see

Simpson, 119 S.W.3d at 272, because the jury had already heard ample other

evidence regarding sexual behavior exhibited by complainant. Moreover, Green

had testified that when the sister arrived in the home, she displayed similar

behavior.

Accordingly, the trial court did not abuse its discretion by denying

appellant's motion for a mistrial. We ovemrle his second issue.

IV. AImSSION OF TESTIMOI\IY

In his third issue, appellant argues that the trial court erred by allowingafact

witness to provide an expert opinion. Appellant cites the following exchange when

10

the State examined Green:

Q. Do you think that [complainant] is a generally disturbed

little girl or there's just something inherently *tong with hir?

A. No, I don't.

IAPPELLANT'S COI-TNSEL]: Judge, I'm going to object to

that. She's not been qualified to make a medical diagnosis.

THE couRT: okay. you can make alegal objection if you'd

like.

IAPPELLANT'S COI-]NSELI: Judge, I'm going to object to

that. This witness has not been qualified as an expert.

THE COURT: I'11 allow her to answer that question in the form

of her opinion.

a. [TrG srATE] In your opinion, is there something just

inherently wrong with [complainant]?

A. No.

Appellant contends the testimony constituted an expert medical opinion, which

Green was not qualified to provide.

A lay witness may testify in the form of an opinion if it is (a) rationally

based on the witness's perception, and (b) helpful to clearly understanding the

wihress's testimony or to determining a fact in issue. Tex. R. Evid. 701. The

wifiress must have personally observed or experienced the events about which she

testifies. see osbourn v. State,92 s.w.3d 531, 535 (Tex. crim. App. 2002).

Thus, the witness's testimony can include opinions, beliefs, or inferences as long

as they are drawn from her own experiences or observation s. Id.; see also Clark v.

State,305 S.w.3d 351,357 (Tex. App.-Houston [l4th Dist.] 2010), aff'd,365

S.w.3d 333 (Tex. Crim. App. 2012) (citing wilson v. State,605 S.w.2 d 294,2g6-

87 (Tex. Crim. App. 1980)). We review the trial court's decision to admit

evidence for abuse of discretion. Martinez v. \ture,327 S.w.3d, 727, 736 (Tex.

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Crim. App. 2010). The trial court does not abuse its discretion unless its

determination lies outside the zone of reasonable disagreement. Id.

We conclude the trial court did not abuse its discretion by determining

Green did not provide an expert medical opinion and was permitted to give her

opinion as a lay witness. Green did not refer to any specific medical conditions

and instead described complainant's general disposition. The trial court acted

within its discretion by concluding that Green, having cared for complainant in

Green's home for more than two years, could adequately give alay opinion about

whether complainant was "generally disturbed" or had "something inherently

wrong" with her. Moreover, although appellant does not dispute whether subpart

(b) of Rule 701 was satisfied, the testimony was helpful to determining a fact at

issue-whether, as suggested by appellant, complainant contrived a story about

sexual abuse because she has psychological disorders. See Tex. R. Evid. 701(b).

Because the trial court did not err by admitting the testimony, we ovemrle

appellant's third issue.

We affirm the trial court's judgment.

/s/ John Donovan

Justice

Panel consists of Justices Christopher, Donovan, and Wise.

Do Not Publish Tex. R. App. P. 47 .2(b).

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