Frohne v. State

928 S.W.2d 570, 1996 Tex. App. LEXIS 3726, 1996 WL 199577
CourtCourt of Appeals of Texas
DecidedAugust 15, 1996
Docket01-94-01226-CR
StatusPublished
Cited by9 cases

This text of 928 S.W.2d 570 (Frohne v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frohne v. State, 928 S.W.2d 570, 1996 Tex. App. LEXIS 3726, 1996 WL 199577 (Tex. Ct. App. 1996).

Opinions

OPINION

COHEN, Justice.

A jury found appellant guilty of indecency with a child. The trial judge assessed punishment at 10-years imprisonment, probated. In four points of error, appellant complains of (1) improper bolstering of the State’s witnesses, (2) insufficient evidence, (3) prosecu-torial misconduct, and (4) ineffective assistance of counsel. We affirm.

Background Facts

The complainant, L.D., is a minor child who lived with her mother and her mother’s husband, the appellant. L.D. stayed often with Ruby Hansen, her godmother. Hansen became suspicious that something was wrong when L.D. did not want to be alone with the appellant. In July 1993, Hansen asked L.D. whether the appellant molested her. L.D. responded affirmatively and described in graphic detail the sexual acts in which the appellant forced her to participate. Hansen reported the problem to Child Protective Services (C.P.S.), and C.P.S. initiated an investigation. During this investigation, L.D. was interviewed four times by C.P.S. workers, once by a pediatrician, and 30 to 40 times by a clinical social worker. The investigation led to the filing of charges against the appellant.

Bolstering

In point of error one, appellant contends the State impermissibly bolstered the testimony of L.D., George Schuler, Jr., and Emily Ginsberg, two of the State’s expert witnesses. Appellant waived this complaint by not objecting at trial. Tex.R.AppP. 52(a).

We overrule point of error one.

Sufficiency of the Evidence

In point of error two, appellant contends the evidence is insufficient to prove he touched L.D.’s genitals with the intent to arouse or gratify his own sexual desires. See TexJPenal Code § 21.01(2). We follow the usual standard of review. Dunn v. State, 819 S.W.2d 510, 513 (Tex.Crim.App.1991).

[572]*572L.D. was 14 at the time of trial in 1994. She testified the appellant began sexual contact with her when she was about five years old and continued until she was 12, when she told Hansen. L.D. testified appellant touched her genitals with his hands, and that when he did so, it usually occurred in the bedroom. L.D. also testified the appellant made her touch his “private parts,” and he would not let her close her bedroom door when she dressed. Both Ginsberg and Hansen testified L.D. told them appellant tried to penetrate L.D., performed oral sex on L.D., and forced L.D. to perform oral sex on him. The evidence is sufficient.

We overrule point of error two.

Prosecutorial Misconduct

In point of error three, appellant contends he was denied a fair trial because of prosecu-torial misconduct, specifically, that the prosecutor asked him on cross-examination: (1) whether his parental rights had been terminated; and (2) whether he had served and been injured in the Vietnam War. Appellant did not object at trial, thus waiving any error.

We overrule point of error three.

Ineffective Assistance of Counsel

In point of error four, appellant raises six omissions by his attorney that he alleges were ineffective assistance of counsel during the guilt-innocence phase of trial.

We follow the usual standard of review and consider each of appellant’s complaints. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.App.1994).

No Awareness of Relevant Law

Appellant first contends counsel was ineffective because he was not familiar with two important cases, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994). We will address the contention when analyzing appellant’s remaining allegations.

No Objection to Inadmissible Expert Testimony

Appellant asserts counsel was ineffective for not objecting to Ginsberg’s expert testimony based on Daubert and Tex.R.Ceim. Evm 705(c).1 Ginsberg, a clinical social worker, testified as the State’s expert that she had treated L.D. once a week beginning in October 1993. Appellant contends counsel was ineffective for not objecting to the following portions of Ginsberg’s testimony:

Q. Can you describe this child when she first came to you?
A. When I first saw [L.D.], she was very — what you would call emotionally flat. She did not have the after effect. She was not fearful; she did not cry. She did not seem extremely anxious as most children do. I would describe her as withdrawn. She could talk about some of the things that would happen to her, but not the kind of emotion that you would expect from a child who had been through something like that.
Q. What do you mean by that?
A. Well, she would describe to me, for example, the events that led up to child welfare intervening in her life, but she was not fearful about it. And she would not cry. She would just sit there and tell me about it with a very calm expression, really inappropriate expression for what she was describing to me.
Q. Have you seen that before in incest victims?
A. Yes.
Q. Is it common or uncommon?
A. It’s common.
Q. And why do you think that is?
A. In [LJD.’s] case I think it’s because she had lived in this situation for such a long period of time that she had in my opinion given up hope that anything would change, that she was resigned to the way she lived, to the things that happened to [573]*573her; and it was just normal to talk about it like that.
Q. Do you find that resignation to be common?
A. Yes.
Q. Does it kind of depend upon whether the abuse is long term or short term?
A. I see it much more often in children who have been abused over a long period of tone.
Q. Did you — as time went on, did you notice any changes in her?
A. Yes.
Q. Can you tell us about that?
A. Yes. Today she is quite a different child than she was when I first began to see her. She talks more about the abuse that occurred to her, the different incidents. She can talk about that with much more freedom now.
[[Image here]]
Q. Have there been any other changes in [L.D.] that you noticed?
A. I think less depressed than initially. She has talked with me. It has taken until this spring until she trusted me to explain to me some of the times where she felt like killing herself and some attempts to hurt herself. She was veiy fearful that I would say she would go to a mental hospital if she told me things. She was worried about that.
Q.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jason Guzman v. the State of Texas
Court of Appeals of Texas, 2025
Rodrigo Cornejo v. State
Court of Appeals of Texas, 2018
Terrence Brent McNeil v. State
452 S.W.3d 408 (Court of Appeals of Texas, 2014)
Shantaniqua Nykole Scott v. State
Court of Appeals of Texas, 2014
Gregory v. State
56 S.W.3d 164 (Court of Appeals of Texas, 2001)
Frohne v. State
928 S.W.2d 570 (Court of Appeals of Texas, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
928 S.W.2d 570, 1996 Tex. App. LEXIS 3726, 1996 WL 199577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frohne-v-state-texapp-1996.