In The Court of Appeals Seventh District of Texas at Amarillo
Nos. 07-16-00306-CR 07-16-00307-CR 07-16-00308-CR 07-16-00309-CR 07-16-00310-CR
JOSEPH CHARLES CAMPA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 31st District Court Gray County, Texas Trial Court Nos. 9718, 9719, 9720, 9721, 9722 Honorable Steven R. Emmert, Presiding
June 28, 2018
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant, Joseph Charles Campa, appeals from his five convictions by jury of the
felony offenses of continuous sexual abuse of a child under the age of 14, 1 prohibited
1 TEX. PENAL CODE ANN. § 21.02 (West 2018). sexual conduct,2 and sexual assault of a child3 and the resulting consecutive sentences
of life imprisonment for the continuous sexual abuse of a child conviction 4 and twenty
years of imprisonment for each of the remaining four convictions.5 He raises three points
of error. We will affirm the judgments of the trial court.
Background
Appellant, sixty-one years old at the time of trial, is the adoptive father of the victim,
M.C., seventeen years old at trial. Some three years before trial, M.C. told her close
friend that her father had been engaging in sexual conduct with her. Her friend told a
police officer at their junior high school what M.C. had related. That afternoon officers
took M.C. to the child advocacy center. There, M.C. was interviewed by a forensic
interviewer and was examined by a sexual assault nurse examiner. Many of the acts
M.C. described in her interview occurred when she was staying with appellant in a travel
trailer he kept in a town in which he worked.
After appellant’s arrest, he was indicted for one count of continuous sexual abuse
of a child under the age of 14, one count of prohibited sexual conduct, and three counts
2 TEX. PENAL CODE ANN. § 25.02 (West 2018). 3 TEX. PENAL CODE ANN. § 21.011 (West 2018). 4This is a first-degree offense, punishable by imprisonment for any term of not more than 99 years or less than five years and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.32 (West 2018). 5 Appellant was convicted of one count of prohibited sexual conduct and three counts of sexual assault of a child. These convictions are second-degree felony offenses, punishable by imprisonment for any term of not more than 20 years or less than 2 years and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2018).
2 of sexual assault with a child. At trial of the charges, appellant pled not guilty to each
charge, and the State presented several witnesses, including M.C. It also introduced,
without objection, the recording and a transcript of M.C.’s forensic interview. Through
that evidence, the jury heard M.C.’s version of events. She described incidents, spanning
several years, in which appellant engaged in various acts of sexual conduct with her.
Appellant testified, denying each of M.C.’s allegations and offering explanations why M.C.
falsely accused him.
The jury found appellant guilty as charged on each count. After a punishment
hearing where neither the State nor appellant offered further evidence, the jury assessed
punishment as noted. Thereafter, appellant filed a motion for new trial. The motion was
overruled by operation of law and this appeal followed.
Analysis
Denial of Motion for Continuance
In appellant’s first point of error, he contends the trial court erred when it denied
his third motion for continuance, which asserted he wished to retain counsel of his choice
before proceeding to trial. We will overrule the contention.
Appellant argues the trial court erroneously deprived him of the assistance of his
chosen counsel. In making his argument, appellant relies on several cases, including
Gonzalez v. State, 117 S.W.3d 831, 837-38 (Tex. Crim. App. 2003). There, in addressing
the disqualification of an attorney, the court acknowledged that “[t]he Federal and Texas
Constitutions, as well as Texas statute, guarantee a defendant in a criminal proceeding
the right to have assistance of counsel. The right to assistance of counsel contemplates
3 the defendant’s right to obtain assistance from counsel of the defendant’s choosing.
However, the defendant’s right to counsel of choice is not absolute. A defendant has no
right to . . . an attorney he cannot afford or who declines to represent him . . . . Additionally,
while there is a strong presumption in favor of a defendant’s right to retain counsel of
choice, this presumption may be overridden by other important considerations relating to
the integrity of the judicial process and the fair and orderly administration of justice.” Id.
(citations omitted). But, “when a trial court unreasonably or arbitrarily interferes with the
defendant’s right to choose counsel, its actions rise to the level of a constitutional
violation.” Id. (citation omitted).
Granting or denying a motion for continuance is within the discretion of the trial
court and will not be reversed on appeal unless it is shown that the court abused its
discretion. Greene v. State, 124 S.W.3d 789, 793 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d) (citation omitted). In deciding whether to grant or deny a motion for continuance
to retain chosen counsel, a court may weigh factors including the following: (1) the length
of delay requested; (2) whether other continuances were requested and whether they
were denied or granted; (3) the length of time in which the accused’s counsel had to
prepare for trial; (4) whether another competent attorney was prepared to try the case;
(5) the balanced convenience or inconvenience to the witnesses, the opposing counsel,
and the trial court; (6) whether the delay is for legitimate or contrived reasons; (7) whether
the case was complex or simple; (8) whether the denial of the motion resulted in some
identifiable harm to the defendant; and (9) the quality of legal representation actually
provided. Id. (citing Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982)).
Under an abuse of discretion standard, we are to determine whether the trial court
4 reasonably could have balanced the factors and “concluded that the fair and efficient
administration of justice weighed more heavily than appellant’s right to counsel of his
choice.” Greene, 124 S.W.3d at 794 (citations omitted).
Applying these factors to the case before us, we find some might weigh in favor of
granting the motion for continuance but most weigh in favor of denial.
The record reveals this to be a case of some complexity. That factor cuts both
ways. It is to be desired that a defendant have counsel in whom he has confidence before
undergoing trial of serious charges, but trial may be delayed significantly if counsel of
choice will require much time to prepare.
The record also shows this case was delayed for more than two years for several
reasons, some relating to the State’s requests and others relating to appellant’s issues
with his attorneys. This factor might weigh slightly in favor of granting the motion because
not all delays were at appellant’s request.
We think, however, the remaining factors weigh in favor of the trial court’s decision
to deny appellant’s motion for continuance.
First, appellant waited until the morning of trial to request the continuance to retain
new counsel. That morning, appellant told the court he had secured funds to retain a
particular attorney. The record indicates the court earlier had attempted to appoint that
particular attorney for appellant, but the attorney declined the appointment. 6 The record
6The State argues this fact is especially significant because that attorney represented appellant on other charges in another county.
5 also shows that the attorney prepared to try the case was the third attorney the court had
appointed for appellant. During the year before trial, appellant had expressed complaints
over his appointed counsel’s representation. Appellant thus had ample time to secure
alternative legal representation. Because he did not, his appointed counsel spent time
preparing for trial and arrived on the trial date ready to try the case. Delaying the case
further would have caused waste of judicial resources and inconvenienced the court, the
attorneys, the witnesses, and the jurors.
Second, the trial court had before it only appellant’s assertions concerning retained
counsel. The court had no information confirming that appellant had the means to retain
counsel. Nothing indicates the court had been contacted by the prospective attorney
regarding the case. Compare United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct.
2557, 165 L. Ed. 2d 409 (2006) and Wheat v. United States, 486 U.S. 153, 108 S. Ct.
1692, 100 L. Ed. 2d 140 (in each case, the attorney wishing to represent the defendant
contacted the court).
Third, appellant failed to indicate to the court the length of the continuance he
required to complete the retaining of counsel, whether the counsel he wished to retain
was prepared to try the case, or, if not, how long it would take to prepare for trial with new
counsel.
Lastly, the record contains no suggestion that the denial of the motion for
continuance harmed appellant or that his appointed counsel failed to provide adequate
legal representation.
6 Considering the factors as they apply to this case, we cannot say the trial court
abused its discretion in denying appellant’s third motion for continuance. We resolve
appellant’s first point of error against him.
Error in Admitting Testimony Relating to Truthfulness of the Victim
In his second point of error, appellant contends the trial court erred when it
permitted the testimony of Lynn Jennings, Ph.D., a licensed professional counselor,
concerning the truthfulness of children who make allegations of sexual assault.
A trial judge has wide discretion in the admission of evidence at trial. Ryder v.
State, 514 S.W.3d 391, 398 (Tex. App.—Amarillo 2017, pet. ref’d) (citing Druery v. State,
225 S.W.3d 491, 502 (Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d 372,
378-79 (Tex. Crim. App. 1990) (op. on reh’g)). We review the trial court’s decision to
admit or exclude evidence under an abuse of discretion standard. Id. (citing Davis v.
State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010)). Under an abuse of discretion
standard, we do not disturb the trial court’s decision if the ruling was within the zone of
reasonable disagreement. Id. (citation omitted). We will affirm the trial court’s ruling if it
was correct under any theory of law applicable to the case. Id. (citing State v. Esparza,
413 S.W.3d 81, 82 (Tex. Crim. App. 2013)).
An expert witness may testify if her scientific, technical, or other specialized
knowledge will assist the trier of fact to determine a fact issue. Yount v. State, 872 S.W.2d
706, 709 (Tex. Crim. App. 1993) (citing TEX. R. EVID. 702). However, the testimony of an
expert witness must aid the trier of fact and not supplant its determination. Schutz v.
State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Expert witness testimony concerning
7 child sexual abuse “does not aid the trier of fact when it constitutes a direct opinion on
the child victim’s truthfulness and in essence, decides an ultimate fact issue for the trier
of fact.” Hatter v. State, No. 03-04-00359-CR, 2006 Tex. App. LEXIS 4516, at *11 (Tex.
App.—Austin May 26, 2006, no pet.) (mem. op., not designated for publication) (citing
Yount, 872 S.W.2d at 711-12). Thus, an expert witness may not give her opinion as to
the testifying child’s truthfulness. Id. (citations omitted).
In Yount, the Court of Criminal Appeals noted that “[a] number of courts faced with
testimony as to the truthfulness of a class of persons to which the complainant belongs
have concluded that such testimony is tantamount to direct testimony that the
complainant would not lie.” Yount, 872 S.W.2d at 711 (citations omitted) (emphasis in
original). The court agreed with the courts in other jurisdictions, finding that an “expert
who testifies that a class of persons to which the victim belongs is truthful is essentially
telling the jury that they can believe the victim in the instant case as well.” Id.
“Expert testimony that a particular class of persons to which the victim belongs is
truthful is not expert testimony of the kind that will assist the jury, as is required by Texas
Rule of Evidence 702, and is thus inadmissible.” Barshaw v. State, 342 S.W.3d 91, 93
(Tex. Crim. App. 2011) (citing Yount, 872 S.W.2d at 711). Therefore, the State is not
permitted to “elicit expert testimony that a particular child is telling the truth, or that child
complainants as a class are worthy of belief.” Sandoval v. State, 409 S.W.3d 259, 291
(Tex. App.—Austin 2013, no pet.) (citations omitted). And, an expert may not offer an
opinion on the truthfulness of a child complainant’s allegations. Id. (citing Schutz, 957
S.W.2d at 59). “Such testimony ‘crosses the line’ between evidence that will genuinely
assist the jury and that which usurps the jury’s function to judge the credibility of
8 witnesses.” Id. (citations omitted). It is not experts, but rather jurors, who must draw
“conclusions concerning the credibility of the parties in issue.” Id. (citing Yount, 872
S.W.2d at 710).
The State called Jennings to testify during its case in chief, before M.C.’s
testimony. Jennings testified, in response to a question from the prosecutor, that
research from 2012 “shows that there’s no evidence to support that [false allegations of
child sexual abuse] are common. It’s actually very uncommon that children just make up
false allegations. It happens but it’s uncommon.” She further testified that she has “had
maybe five or six [false allegations] out of 500” in her work with child victims of sexual
abuse.7
Through its argument, the State seems to concede Jennings’ testimony as to the
truthfulness of child sexual abuse victims as a class is the type of testimony that Yount
prohibits. The State contends, however, that appellant repeatedly attacked M.C.’s
truthfulness at trial, as well as the truthfulness of child sexual abuse victims as a class,
and Jennings’s testimony was properly admitted for rehabilitation purposes.
We disagree. The State relies on Michael v. State, 235 S.W.3d 723 (Tex. Crim.
App. 2007). “If a witness’s general character for truthfulness has been attacked, Rule of
Evidence 608(a) allows, for purposes of rehabilitation, the presentation of opinion or
reputation evidence of that witness’s good character for truthfulness.” Sandoval, 409
7She told the jury also, with regard to false allegations, “if a child goes through the process that happens once an outcry like that is made and they’re telling their story over and over, the likelihood of them being able to keep up that story is very slim.” Appellant does not challenge that statement on appeal.
9 S.W.3d at 292 (citing TEX. R. EVID. 608(a)). The court in Michael set out a standard for
trial courts to “determine whether an attack has occurred and if character evidence as to
truthfulness should be permitted.” Michael, 235 S.W.3d at 725. Under that standard, the
court is to determine “whether a reasonable juror would believe that a witness’s character
for truthfulness has been attacked by cross-examination, evidence from other witnesses,
or statements of counsel (e.g., during voir dire or opening statements).” Id. at 728. We
will assume, without deciding, the State is correct that appellant’s voir dire and
questioning of witnesses brought into question M.C.’s general character for truthfulness
so as to permit Jennings to offer opinion testimony of her truthful character.
Jennings’s objectionable statements, however, did not speak to M.C.’s good
character for truthfulness. Her statements that it is uncommon for children to make false
allegations of sexual abuse, and that she had seen “maybe five or six . . . of 500” instead
addressed M.C.’s specific allegations of sexual abuse, effectively asserting that child
sexual abuse “complainants as a class are worthy of belief.” Sandoval, 409 S.W.3d at
291. Her statements mirrored closely expert opinions Yount held inadmissible. See
Yount, 872 S.W.2d at 712 (citing cases holding expert testimony that child sexual abuse
victims rarely lie was inadmissible and such testimony that 99% of such victims are telling
the truth also was inadmissible) (citations omitted). They were inadmissible. See Yount,
872 S.W.2d at 711-12; Sandoval, 409 S.W.3d at 292. See also Fuller v. State, 224
S.W.3d 823, 832-33 (Tex. App.—Texarkana 2007, no pet.) (counsel rendered ineffective
assistance through failure to object to comparable testimony).
We must now consider whether the admission of the statements requires reversal.
On appellate review, and pursuant to Texas Rule of Appellate Procedure 44.2(b), “a non-
10 constitutional error must be disregarded unless it affects the defendant’s substantial
rights.” We do “not overturn a criminal conviction for non-constitutional error 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.” Barshaw, 342 S.W.3d at 93 (citation omitted)
(emphasis in original). In considering the potential to harm, the “focus is not on whether
the outcome of the trial was proper despite the error, but whether the error had a
substantial or injurious effect or influence on the jury’s verdict. A conviction must be
reversed for non-constitutional error if the reviewing court has grave doubt that the result
of the trial was free from the substantial effect of the error. ‘Grave doubt’ means that ‘in
the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise
as to the harmlessness of the error.’” Id. at 93-94. (citation omitted).
The “danger posed by the erroneous admission of expert testimony that was a
direct comment on the complainant’s credibility was that the jury could have allowed that
testimony to supplant its decision.” Id. (citation omitted). In assessing the likelihood that
the jury’s decision was improperly influenced, the appellate court must consider
“everything in the record, including any testimony or physical evidence admitted for the
jury’s consideration, the nature of the evidence supporting the verdict, and the character
of the alleged error and how it might be considered in connection with other evidence in
the case. The reviewing court may also consider the jury instruction given by the trial
judge, the state’s theory, defensive theories, closing arguments, voir dire, and whether
the state emphasized the error.” Id. (citations omitted).
The record of this case shows that the subject of false allegations of child sexual
abuse was introduced during voir dire. The State asked panel members about the
11 likelihood of false accusations of sexual assault. Addressing members one by one, the
prosecutor asked them to assign a number from one to four to the likelihood, with “1 being
very likely that you think that someone would falsely accuse, and then 2 being likely, 3
being unlikely and four being very unlikely that someone would falsely accuse someone
else of sexual assault as a child.”8 During his voir dire, appellant’s counsel asked panel
members if their children had ever told something that was not true, asked reasons why
children might do so, asked if members had seen media reports of false allegations of
child sexual abuse, asked if children “stick to their story” even when confronted with the
truth, emphasized the jury’s duty to recognize a false allegation, asked whether jurors
would be inclined to believe a child over an adult, and inquired about factors jurors would
consider to determine a witness’s truthfulness.
During the testimony, as appellant argues, M.C. testified the incidents of abuse
occurred and he testified they did not. Appellant’s defensive theory that M.C. fabricated
the accusations, however, was not well developed at trial. Appellant gave relatively brief
and thin testimony describing teenage behavioral issues with M.C., regarding such
matters as her performance in school and in athletics, her attitudes toward her mother
and her sister, and her dating contacts with boys. He testified she lied to him by telling
him she had performed her running workout when she had not. He referred also to one
occasion on which, he said, she was angry with him because he did not take her along
when he went hunting. That event occurred the Friday before her outcry on Monday.
Appellant’s testimony concerning their relationship, however, gave the jury little reason to
None of the sixty-nine panel members answered “1.” Four of the panel members 8
answered “2” and seven answered “4.” The rest of the panel, fifty-eight members, answered “3.” Each of the jurors seated to hear the case answered “3.”
12 believe M.C. fabricated her allegations, in our judgment. Appellant also testified to
medical conditions that he contended rendered him unable to perform some of the acts
she described. But no other evidence addressed his asserted medical conditions.
Moreover, the asserted conditions were not inconsistent with most of the acts M.C.
recounted.
The jury heard M.C. testify to appellant’s sexual abuse of her, and saw the
recording of her forensic interview. Jurors also heard the SANE nurse read the history
portion of her report, which described appellant’s sexual acts. The nurse’s written report
also was in evidence. Appellant argued to the jury that M.C.’s allegations grew as she
told her story to the forensic interviewer, then the SANE nurse, then on the witness stand.
As evidence of fabrication, the argument is not persuasive. From our review of the entire
record, we do not see any significant inconsistency between M.C.’s testimony and that of
the interviewer and nurse.
If the jury had disregarded strong evidence indicating that M.C. was lying about
the sexual acts, Jennings’s improperly admitted statements that children do not often
make false accusations might be seen to have influenced jurors toward conviction. See
Barshaw, 342 S.W.3d at 94 (harm analysis must include character of error and how it
might be considered in connection with other evidence in the case). But that is not what
this record reflects.
Further, Jennings’s two statements that were erroneously admitted were a small
part of her testimony. The bulk of her time on the stand was spent explaining the process
of grooming and isolation that sex offenders often practice on their victims, and describing
13 how appellant’s actions fit the pattern she described. Appellant acknowledges that
testimony was properly allowed.
The SANE nurse testified her examination of M.C.’s hymen revealed three healed
tears that could have resulted only from its penetration. Though she acknowledged she
could not identify the means of penetration that caused the tears, she told the jury her
examination was consistent with M.C.’s description of appellant’s acts.
Witnesses who were present at the advocacy center testified to the telephone call
his wife (M.C.’s mother) made to appellant after M.C.’s interview. They testified that a
part of the conversation with appellant occurred over the phone’s speaker, during which
a law enforcement officer instructed him not to have contact with M.C. The witnesses
testified also that appellant and his wife continued to converse after the speaker was
deactivated, but those standing near still could hear what appellant was saying. Appellant
was heard to say, more than once, that he was “going to go to jail for a long time.” At
trial, appellant offered an explanation of his statements but the jury could have seen such
statements made at that early stage in the case as expressing appellant’s consciousness
of guilt.
The State made no mention of Jennings’s testimony in its argument to the jury.
Appellant’s counsel referred to favorable statements from her testimony, but did not refer
to her objectionable statements. The error in admission of her two statements was thus
not emphasized before the jury.
“Even in cases in which credibility is paramount, Texas courts have found harmless
error when the inadmissible expert testimony was only a small portion of a large amount
14 of evidence presented that the jury could have considered in assessing the victim’s
credibility.” Barshaw, 342 S.W.3d at 96 (citation omitted). This is such a case. We cannot
find, based on the entirety of the record, that the error in admitting Jennings’s statements
had a substantial or injurious effect or influence on the jury’s verdicts.
We overrule appellant’s second point of error.
Sufficiency of the Evidence to Support Appellant’s Convictions
Appellant’s third point of error is closely related to his second. The point of error
is couched as a challenge to the sufficiency of the evidence to support his convictions,
but in substance appellant’s argument asserts that the admission of Jennings’s
statements addressed in his second point led to an improper verdict. His brief states that
this third point of error and his second point are “inextricably intertwined.”
By our disposition of his second point of error, we have rejected the contention that
admission of Jennings’s statements supporting the truthfulness of M.C.’s testimony had
a substantial or injurious effect on the jury’s verdicts. We will not re-examine that
contention. We will address the sufficiency of the evidence to support the convictions.
Review on appeal of the sufficiency of the evidence supporting conviction must
consider evidence that was improperly admitted, as well as that properly admitted.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see Ryder, 514 S.W.3d
at 396. We review all the evidence in the light most favorable to the verdict and assume
that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew
reasonable inferences in a manner that supports the verdict. Ryder, 514 S.W.3d at 396
(citing Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
15 Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007)). The jury is the “sole judge of a witness’s credibility,
and the weight to be given the testimony.” Id. (citing Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). We consider only whether the jury reached a rational decision.
Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)). The testimony of
a child sexual abuse victim alone is sufficient to support a conviction for indecency with a
child or aggravated sexual assault. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 38.07(a),
(b)(1) (West 2013); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet.
ref’d); Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.)).
Because our evaluation of the sufficiency of the evidence to support appellant’s
convictions must consider all of the evidence that was before the jury, even evidence that
was improperly admitted, Clayton, 235 S.W.3d at 778, we cannot find the evidence
insufficient simply because the trial court improperly allowed the jury to hear two
statements from Jennings.
M.C. testified in detail about appellant’s conduct leading to each of his convictions.
Her testimony of each of the sexual acts alleged in the indictments alone is sufficient to
support appellant’s convictions. Ryder, 514 S.W.3d at 393. And we disagree with
appellant’s statement in his brief the jury’s verdicts were based solely on her testimony.
The jury also could have considered the other evidence we have noted, including the
trauma found by the SANE examination, and appellant’s statements on the day of the
outcry. We note also that the general circumstances M.C. described in her testimony,
that she often stayed with appellant alone in the travel trailer and slept in the bed with
him, went unchallenged by appellant.
16 Under the requisite standard, considering all of the evidence whether properly or
improperly admitted, and because the jury was free to believe some, all or none of the
testimony of each witness, Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991), we find a rational jury could have concluded each of the indicted offenses was
proven beyond a reasonable doubt. We resolve appellant’s third point of error against
him.
Conclusion
Having overruled each of appellant’s points of error, we affirm the judgments of the
trial court.
James T. Campbell Justice
Do not publish.