Denny Edward Miller v. the State of Texas
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Opinion
Affirmed and Opinion Filed March 12, 2024
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00886-CR
DENNY EDWARD MILLER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. 072748
MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Goldstein Denny Edward Miller appeals his aggravated sexual assault of a child
conviction. A jury convicted appellant and sentenced him to forty years’
confinement. In a single issue, appellant argues the trial court erred in overruling
his objection to expert testimony that the child complainant had not been coached.
We affirm the trial court’s judgment.
Because appellant does not challenge the sufficiency of the evidence to
support his conviction, only a brief recitation of the facts is necessary. In November
2020, appellant was charged by indictment with aggravated sexual assault of a child. In three counts, the indictment alleged appellant “intentionally or knowingly
cause[d] the penetration of the sexual organ of A.C., a child who was then and there
younger than 14 years of age, by” appellant’s sexual organ and appellant’s finger
and, “with the intent to arouse or gratify the sexual desire of the defendant, engage[d]
in sexual contact with A.C., by touching the breast of the victim, a child younger
than 17 years of age.”
At trial in May 2022, A.C. testified she was fifteen years old at the time of
trial and, when she was thirteen years old, appellant came to live with A.C. and her
parents. On the night of the assault, A.C. went to appellant’s room and watched a
movie with him. Appellant “started grabbing” A.C. and pushed her down on the
bed. Appellant took off A.C.’s shorts and underwear and “started fingering” her,
which she clarified meant “sticking his fingers inside” her vagina. Appellant also
put his penis inside A.C.’s vagina and reached under her shirt and squeezed her
breast. Appellant stopped when he “ejaculated inside” A.C.
Dana Reynolds testified she is the program director at the Grayson County
Children’s Advocacy Center and is also a forensic interviewer. Reynolds
interviewed A.C. three times. The prosecutor asked Reynolds if she had ever
“encountered a child who looks coached in an interview.” Reynolds testified she
had. The prosecutor asked “what does it look like?” and defense advised he was
going to object. At a bench conference outside the hearing of the jury, appellant
raised the following objection:
–2– Your Honor, I would object to any question about coaching. I think that borders on the area of her vouching for her credibility by saying she hadn’t been coached or indicating that she hasn’t been coached. I think that’s a comment on credibility.
The trial court then took a break for lunch. During the break, outside the presence
of the jury, the trial court overruled the objection. The trial court instructed the
prosecutor, “I just want to make sure I caution you, [prosecutor]. Please do not elicit
from the witness whether the child’s truthful.” The trial court further cautioned the
prosecutor: “[a]nd only information that is going to be helpful – based upon her
experience and expertise – that would be helpful to the jury in making a decision
today.”
With the jury returned to the courtroom, the following exchange between the
prosecutor and Reynolds took place:
Q. Ms. Reynolds, before the break, I had asked you in your training and experience had you ever encountered a child during a forensic interview who had appeared to have been coached? A. Yes. Q. Okay. What does it look like? A. Every child is different, but some characteristics may be they are -- they sound very scripted or throughout the interview they may change what they're saying, not stay consistent, or they are not -- they don't provide very many details.
The prosecutor asked Reynolds whether, at a “second interview” on September 14,
2020, “[A.C.] appear[ed] to have been coached?”1 Reynolds answered, “No” and
testified that A.C. gave details about the abuse, and those details included sensory
1 Defense counsel renewed his “objection for the record,” which the court overruled. –3– details. Reynolds testified “[s]ensory details are anything that may be something
they hear, they smelled, or they felt.” At the conclusion of trial, the jury found
appellant guilty of counts one and two alleging aggravated sexual assault and not
guilty of count three alleging indecency with a child by sexual contact. This appeal
followed.
In a single issue, appellant argues the trial court erred in overruling appellant’s
objection and admitting Reynolds’ testimony about “coaching” because that
testimony was an inadmissible opinion on A.C.’s truthfulness. Appellant asserts he
was harmed by this testimony because credibility was the central issue in the case.
An appellate court reviews a trial court’s decision to admit expert testimony
for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.
2019). A trial court abuses its discretion when it acts without reference to any
guiding rules and principles or acts arbitrarily or unreasonably. Id.
Rule 702, Testimony by Expert Witnesses, provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. TEX. R. EVID. 702.
Expert testimony which assists the jury in determining an ultimate fact is
admissible, but expert testimony which decides an ultimate fact for the jury, such as
“a direct opinion on the truthfulness of the child,” crosses the line and is not
–4– admissible under Rule 702. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App.
1993). However, while an expert’s testimony that a child witness is truthful is
inadmissible under Texas Rule of Evidence 702, an expert’s opinion on signs of
coaching or manipulation may assist the trier of fact and may therefore be
admissible. See Schutz v. State, 957 S.W.2d 52, 73 (Tex. Crim. App. 1997) (“We
hold that [the expert’s] testimony that the complainant did not exhibit the traits of
manipulation did not constitute a direct comment upon the truth of the complainant’s
allegations.”); see also White v. State, No. 05-21-00901-CR, 2022 WL 2763357, at
*3 (Tex. App.—Dallas 2022) (testimony describing “red flags” and asserting child
did not exhibit any red flags or signs of exaggeration not direct comment on
complainant’s truthfulness.).
Here, in keeping with the trial court’s express admonition, the prosecutor did
not seek to elicit from Reynolds an opinion on whether A.C. was truthful. Instead,
Reynolds testified only that A.C. did not “appear to have been coached,” followed
by an explanation of sensory details. On this record, we conclude this testimony did
not constitute a direct comment upon the truth of the complainant’s allegations. See
Schutz, 957 S.W.2d at 73. Accordingly, the trial court did not abuse its discretion in
admitting this testimony.
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