Brian Daniel White v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 15, 2022
• Docket: 05-21-00901-CR
• Status: Published

Opinion

REMAND; AFFIRM and Opinion Filed July 15, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00901-CR

BRIAN DANIEL WHITE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-83074-2019

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Smith Opinion by Justice Smith

Appellant Brian Daniel White was convicted by a jury of two counts of

indecency with a child by contact. See TEX. PENAL CODE ANN. § 22.11(a)(1), (c).

The jury assessed his punishment at ten years’ confinement for Count I and at eight

years’ confinement for Count II. In two issues, appellant argues that the trial court

erred in admitting testimony vouching for the truthfulness of the complainant’s

outcry and in admitting hearsay testimony and expert opinions from a witness who

was not qualified to give expert opinions. For the reasons discussed below, we remand this case to the trial court for the limited purpose of correcting its judgment

as to Count I, and otherwise affirm the judgments of the trial court.

Background

Appellant was charged with intentionally and knowingly causing the

penetration of O.O.’s sexual organ with his finger (Count I) and engaging in sexual

conduct by touching her breast (Count II). Appellant pleaded not guilty to both

counts, and the case proceeded to trial.

The evidence at trial showed that appellant’s daughter, B.W., and O.O. were

best friends. They often spent the night together. On one occasion, when O.O. was

thirteen years old, appellant put his hand under her shirt and touched her breast.

O.O., appellant, and B.W. were in the living room watching scary movies. O.O.’s

younger sister, appellant’s younger daughter, and appellant’s mother were in other

rooms. B.W. fell asleep on O.O.’s arm while watching the movie; they were on the

couch and O.O. was sitting between B.W. and appellant. After B.W. fell asleep,

appellant started scooting closer to O.O. She tried to scoot closer to B.W. but there

was no room because B.W. was on her arm. When he touched her breast, she was

shocked and felt frozen; she did not know what to do. Appellant then moved his

hand down to her “private” and touched her over her underwear. She felt his fingers

moving in fast small circles near the top. He asked her if she liked it. She was scared

and wanted to go home.

–2– O.O. eventually got up from the couch, attempting to get away. She went to

the bathroom, but he followed her. He continued to follow her as she checked on

her sister, checked to see if her phone was charged, and then went back to the living

room to wake up B.W. so they could go to sleep in B.W.’s room. Appellant followed

her into B.W.’s room and tried to get them to come back to the living room. They

told him no, and he eventually left B.W.’s room. O.O. called her parents, but they

did not answer so she went to sleep.

Her father testified that, after the sleepover, O.O. became very reclusive and

hardly ever left her bedroom, which was uncommon for her. She went from

spending almost every day with appellant’s daughter to barely communicating with

her. A few months later, during a check of her cell phone, her father found search

history that concerned him. O.O. tried to prevent her father from even looking at

her phone; she was scared he would find her searches for definitions of sexual abuse.

She began crying as soon as he started looking at it. O.O. told her mom what

happened with appellant, which led to a police investigation and, ultimately,

appellant’s arrest.

The jury found appellant guilty of indecency of a child by contact (touching

O.O.’s genitals with his hand), the lesser included offense of aggravated sexual

assault of a child under fourteen years of age as charged in Count I of the indictment.

The jury found him guilty of Count II as charged—indecency of a child by touching

O.O.’s breast. The jury assessed his punishment at ten years’ confinement for Count

–3– I and at eight years’ confinement for Count II. The trial court sentenced him

accordingly, and he appealed.

Commenting on the Truthfulness of Another Witness

In his first issue, appellant argues that the trial court erred in admitting the

testimony of Lisa Martinez, the Director of Case Management and Forensic Services

at the Children’s Advocacy Center of Collin County, about whether she saw any

signs of exaggeration or any red flags when she viewed the complainant’s forensic

interview. Appellant asserts that such testimony was inadmissible because it was an

opinion as to the truthfulness of the child complainant. He argues that he was

harmed by its admission because credibility was the central issue in the case.

Martinez generally explained the training and education that forensic

interviewers completed and how forensic interviews were scheduled and conducted,

specifically that a forensic interviewer asked non-leading questions and stayed

neutral during the interview. She also explained that forensic interviewers were

trained to look for “red flags” during the interview, such as a lack of sensory details,

inconsistencies, and evidence of coaching. Martinez did not conduct O.O.’s forensic

interview, nor was she present for the interview; however, she reviewed the forensic

interview and, as a qualified forensic interviewer herself, testified that the forensic

interviewer conducted the interview in a proper way. She further testified that O.O.

gave general and specific details about what happened, including sensory details,

and that O.O. was consistent throughout the interview. Defense counsel objected

–4– when Martinez was asked if she saw any signs of exaggeration while she was

watching the video. Counsel argued that such question “call[ed] for the witness to

make a conclusion that would be the province of the jury.” The trial court overruled

the objection and stated, “The jury will decide for themselves whether they believe

these allegations or not.” At the end of her direct examination, the State asked, “In

this interview did you see any red flags?” Martinez answered, “No,” and defense

counsel objected, “That calls for a comment on the evidence.” The trial court again

overruled his objection.

We review a trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh’g). We reverse a trial court’s ruling only if it is outside the “zone

of reasonable disagreement.” Id. If a trial court’s decision is correct under any

theory of law applicable to the case, we will uphold it. De La Paz v. State, 279

S.W.3d 336, 344 (Tex. Crim. App. 2009).

Direct opinion testimony about the truthfulness of another witness is

inadmissible as “it does more than ‘assist the trier of fact to understand the evidence

or to determine a fact in issue’; it decides an issue for the jury.” Yount v. State, 872

S.W.2d 706, 709 (Tex. Crim. App. 1993) (op. on reh’g) (citations and emphasis

omitted). There is a fine line between helpful expert testimony and impermissible

comments on credibility. Schutz v. State, 957 S.W.2d 52, 60 (Tex. Crim. App. 1997).

–5– “Evidence that corroborates does not involve the character of a witness for

truthfulness.” Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993).

Martinez’s testimony describing the “red flags” that forensic interviewers are

trained to look for and her testimony that O.O. did not exhibit any of those red flags

or signs of exaggeration during her forensic interview is akin to the social worker’s

testimony in Schutz describing behaviors that indicate manipulation and testifying

that the complainant did not exhibit such traits. See 957 S.W.2d at 56, 73. The Court

of Criminal Appeals held that such testimony did not constitute a direct comment

upon the truthfulness of the complainant’s allegations. Id. at 73. This Court has also

held that such testimony is admissible and not a direct comment on a complainant’s

truthfulness. See, e.g., Granados v. State, No. 05-17-01301-CR, 2019 WL 1349510,

at *1 (Tex. App.—Dallas Mar. 26, 2019, no pet.) (mem. op., not designated for

publication) (citing Schutz and other Dallas Court of Appeals cases concluding

same). Therefore, we conclude that the trial court did not abuse its discretion in

admitting Martinez’s testimony. We overrule appellant’s first issue.

Admissibility of Other Testimony

In his second issue, appellant argues the trial court erred in admitting

Martinez’s hearsay testimony regarding the complainant’s outcry and that Martinez

testified about the complainant’s body language and demeanor when she was not

qualified to do so. He also appears to argue that Martinez’s testimony violated the

–6– confrontation clause and, like his argument in his first issue, vouched for the

credibility of O.O.

As the State points out, appellant’s second issue is multifarious because it

raises multiple complaints and grounds for reversal based on different legal theories.

See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). However, in the

interest of justice, we will review his complaints.

Appellant quotes three specific questions in his brief that defense counsel

objected to at trial but that the trial court overruled and allowed Martinez to answer:

(1) “Did she make an outcry of sexual abuse?”; (2) “State’s Exhibit No. 8, is that an

example of where she could show where her friend was sleeping on her arm?”; and

(3) “And then State’s Exhibit No. 10. Did her body language change when she was

talking about what had happened to her?” Appellant objected to each of these three

questions on hearsay grounds and objected that questions (1) and (3) denied his right

to confront and cross examine. He did not object that Martinez was unqualified to

answer any of these questions1 or that such answers were a comment on the

1 Appellant did object that Martinez was not qualified to make an opinion when the State asked, “When you were watching the interview, what was [O.O.]’s body language like during that interview?” However, appellant does not specifically complain about that question or Martinez’s response in his brief. Furthermore, the question merely called for Martinez’s observations. “Just as any lay witness, an expert may testify to events that he has observed, such as the demeanor of a child victim during out-of-court statements.” Schutz, 957 S.W.2d at 70 n.8.

–7– truthfulness of O.O.2

First, any complaint that Martinez’s testimony violates the confrontation

clause is without merit because O.O. testified at trial. “The Confrontation Clause is

not offended if the declarant of a testimonial statement is available and later testifies

at trial.” DeLeon v. State, No. 02-12-00629-CR, 2014 WL 3953902, at *5 (Tex.

App.—Fort Worth Aug. 14, 2014, pet. ref’d) (mem. op., not designated for

publication). Second, even assuming the trial court erred by allowing Martinez to

testify that O.O. made an outcry over defense counsel’s hearsay objection, such error

does not constitute reversible error because the same or similar testimony was

admitted through other witnesses without objection. “[O]verruling an objection to

evidence will not result in reversal when other such evidence was received without

objection, either before or after the complained-of ruling.” Leday v. State, 983

S.W.2d 713, 718 (Tex. Crim. App. 1998).

The officer who interviewed appellant and the sexual assault nurse who

examined O.O. both testified, without objection, that O.O. made an outcry.

Moreover, prior to Martinez being asked whether O.O. made an outcry of sexual

2 Appellant presents the following argument in his brief in discussing what we have labeled question (3): These were not merely observations of the complainant’s demeanor; they were statements corroborating her outcry of sexual abuse and bolstering her testimony with unqualified “expert” analysis. That is to say, Martinez’s testimony established the complainant’s hearsay statement as fact, then proceeded to substantiate it with unqualified opinion about her body language and demeanor.

–8– abuse, Martinez detailed the forensic interview process, explained the meaning of

“outcry,” explained why children’s outcries are often delayed, testified that she

watched O.O.’s forensic interview, and testified that O.O. was able to give general

and specific details about what happened to her, including sensory details. Thus, by

the time the State specifically asked Martinez whether O.O. made an outcry, it was

clear by her unobjected-to testimony that O.O. had. Therefore, because other

testimony informing the jury that O.O. made an outcry of sexual abuse was admitted

without objection, any error in admitting Martinez’s testimony was harmless.

The same is true as to the State’s question regarding State’s Exhibit No. 8 and

whether it was “an example of where [O.O.] could show where her friend was

sleeping on her arm.” Appellant did not object to the State’s introduction of Exhibit

No. 8 itself, which was a screenshot of O.O. in the forensic interview showing with

her hand where appellant’s daughter fell asleep. O.O. also testified, without

objection, that appellant’s daughter fell asleep on her arm and showed the jury where

she was positioned. And, before specifically asking Martinez about Exhibit No. 8,

Martinez testified that O.O. was able to do hand motions or demonstrations during

her interview, such as showing the interviewer where her friend was sleeping. Thus,

any error in allowing Martinez to answer, “Yes,” to this question was harmless

because the same or similar testimony also came in without objection. See id.

We reach the same conclusion with regard to the third question quoted above

in which the State asked Martinez whether O.O.’s body language changed when she

–9– was talking about what happened to her. During Martinez’s general testimony about

forensic interviews, she testified without objection that “getting to see what they’re

like during neutral subjects can be very important in case their demeanor or their

body language changes when you go into the abuse scenario.” Appellant did object

when she was asked what O.O.’s body language was like during the interview but

did not object when the State asked if her body language changed during the

interview. Martinez answered, “Yes,” and in response to the State’s question as to

how it changed, she explained, “She would squeeze her legs tight and speak in more

of a whisper and kind of lower her head a little bit more.” The State subsequently

showed Martinez Exhibit Nos. 9 and 10, which were unobjected-to screenshots of

O.O. during the forensic interview. When showing Exhibit No. 9, the State asked if

O.O.’s body language was more open during part of the interview to which Martinez

answered, “Yes.” The State then showed Martinez Exhibit No. 10 and, over

Appellant’s objection, Martinez described how O.O.’s body language changed when

she began talking about what happened to her:

She started putting her hands between her legs. She was looking a little bit like - - not looking [the forensic interviewer] straight in the eye with her eyes completely open. She was kind of looking down. And then she - - you can’t tell from here, but she was whispering a little bit more and she was squeezing her legs.

Martinez’s prior testimony regarding O.O.’s change in demeanor, to which appellant

did not object, was substantially similar to this testimony and, therefore, any error in

–10– allowing Martinez to describe O.O.’s demeanor over appellant’s objection was also

harmless. See id.

We conclude that none of Appellant’s complaints raised in his second issue

require reversal. Therefore, we overrule Appellant’s second issue.

Errors in Judgment – Count I

Although not briefed by either party, we have reviewed the judgments and

found that the judgment of conviction for Count I provides that Appellant was

convicted of aggravated sexual assault of a child, a first-degree felony. This is

incorrect. Although Appellant was charged by indictment with aggravated sexual

assault of a child, he was convicted for the lesser included offense of indecency with

a child by contact, a second-degree felony. See TEX. PENAL CODE ANN. §

21.11(a)(1), (c), (d).

Therefore, we remand this case to the trial court for the limited purpose of

correcting its judgment as to Count I. The trial court shall correct the judgment as

follows: under “Offense for which Defendant Convicted,” delete “AGG SEXUAL

ASSAULT CHILD” and replace it with “INDECENCY W/CHILD SEXUAL

CONTACT.” Under “Statute for Offense,” delete “22.021(a)(1)(B)” and replace it

with “21.11(a)(1), (c), (d).” And, under “Degree of Offense,” delete “1ST DEGREE

FELONY” and replace it with “2ND DEGREE FELONY.”

–11– Conclusion

We remand this case to the trial court for the limited purpose of correcting the

judgment for Count I as specified in this opinion. We otherwise affirm the

judgments of the trial court.

/Craig Smith/ CRAIG SMITH JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 210901F.U05

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BRIAN DANIEL WHITE, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-21-00901-CR V. Trial Court Cause No. 199-83074- 2019. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Smith. Justices Schenck and Osborne participating.

Based on the Court’s opinion of this date, we REMAND this case to the trial court for the limited purpose of correcting the judgment for Count I. We otherwise AFFIRM the judgments of the trial court.

Judgment entered this 15th day of July 2022.

–13–