Lange v. State

57 S.W.3d 458, 2001 WL 909006
CourtCourt of Appeals of Texas
DecidedNovember 8, 2001
Docket07-00-0348-CR
StatusPublished
Cited by47 cases

This text of 57 S.W.3d 458 (Lange 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
Lange v. State, 57 S.W.3d 458, 2001 WL 909006 (Tex. Ct. App. 2001).

Opinions

BOYD, Chief Justice.

Appellant Del Eugene Lange appeals from his convictions of two counts of aggravated sexual assault and the resulting punishment on each count of confinement for 35 years in the Institutional Division of the Department of Criminal Justice. Finding no reversible error, we affirm the judgment of the trial court.

[461]*461In six issues, he contends (1) the evidence was factually insufficient to support the verdict, (2) the trial court erred by overruling his objection to improper closing argument, which struck at appellant over the shoulders of his counsel, (3) the trial court erred in overriding his objection to improper closing argument, which interjected the prosecutor’s personal opinion regarding the veracity of the alleged victim, (4) the trial court erred in overruling his objections to improper closing argument, which asserted that defense counsel was diverting the jury from the truth, (5) the cumulative effect of the State’s closing argument requires reversal, and (6) the trial court erred in allowing the alleged victim to testify at trial by way of closed circuit television.

In his first issue, appellant challenges the factual sufficiency of the evidence to support his conviction. The standard by which we review the factual sufficiency of the evidence is well known. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). In making our review, we must remember that the trier of fact is the sole judge of the weight and credibility of the testimony, and we may not substitute our judgment for that of the jury. Santellan v. State, 939 S.W.2d 155, 165 (Tex.Crim.App.1997).

Appellant was charged with digital penetration of the sexual organ of his daughter, A.L., a child under the age of 14, on two separate occasions, on January 7, 1995, and August 11, 1996. Although trial testimony was extensive, the nature of appellant’s first issue requires us to recite it in some detail. Nicole Lacowski, a physician’s assistant, testified that A.L. went to see the doctor on October 8, 1998, for a rash and dark circles under her eyes. After the examination, A.L. appeared upset and wrote a note to Lacowski in which she stated that when she was in kindergarten her father put his finger “up her tee-tee.” Lacowski performed an external examination of A.L.’s genitalia and discovered that the hymen had been traumatized and was larger than it should have been in a seven-year-old child. The injury had occurred sometime in the past.

Another exam was performed on A.L. the next day by Jane Riley, a pediatric nurse practitioner for Scotty’s House, a child advocacy center. Riley observed that part of the hymen was worn away, which in her opinion was caused by a penetrating act. Riley felt that the injury she observed was consistent with a repeated penetrating injury caused by something larger than a finger. She asked A.L. if anything else had happened to her, but A.L. said no. Riley testified that A.L. did not have a labial adhesion that would have blocked her view of the vagina.

Gerald Kinard, a criminal investigator for the Brazos County Attorney’s office, was assigned on October 9, 1998, to investigate the case. He questioned appellant as to whether he had ever applied medication to or washed his daughter’s genital area to determine if the child could have misunderstood his actions. Appellant replied he had not. Although appellant repeatedly denied the allegations against him, during a conversation on October 16, 1998, appellant asked Kinard what he would have to say in order to get probation. Even though Kinard did not consider that statement to be a confession by legal definition, he considered it to be incriminating.

A.L. testified by way of video camera. She stated that during the first incident, her mother, brother, and sister were outside. She went inside to get the phone, and her father shut the door. He told her to lie on the bed and to pull her pants down. He then stuck his finger in her private part. At that time, her parents [462]*462were still living together. She believed the incident happened during the middle of the day. A.L. said she screamed because it hurt. After appellant took his finger out, he told her to pull up her pants, and that if she told anyone, he would do it again. A.L. testified that she bled when she went to the restroom. A.L. was four or five years old at the time of the first incident.

The second incident happened in her father’s trailer. Her parents were separated at that time. She was playing outside and went inside to use the restroom. She believed she was in the first grade. Her father stepped out of the bedroom, pulled her inside, and locked the door. He told her to pull her pants down and did the same thing. A.L. saw blood again when she went to the restroom. Appellant also told her not to tell anyone. A.L. did not tell anyone until she was in the second grade, when she told her mother, who then immediately took her back to the doctor’s office to see Lacowski. A.L. admitted she might have told Nick Canto at Scotty’s House that her father said he would spank her if she told anyone, but she does not remember her father saying that. She also told Nick that she thought it happened at night, but does not remember it that way now.

On cross-examination, A.L. admitted that she had been afraid of Jerry Buford, her mother’s former boyfriend. She also stated that other than the two incidents, her father had never touched her inappropriately. She admitted writing that her mother had slapped her brother and said ugly things and screamed at her; however, she denied being afraid of her mother. She stated she had always been afraid of her father.

Dr. Jennifer Welch, a clinical psychologist specializing in sexual abuse, testified that it is common for children to delay their outcry of sexual abuse. The range of symptoms in sexually abused children include sexualized or seductive behavior such as masturbation, a drop in academic performance, feelings of depression and guilt, disruptions in their relationships, withdrawal, and anxiety. It is normal for the abused child to continue to love the abusing parent. Although some of the symptoms are the same for children who go through a nasty divorce, some are different, such as seductive behavior. Dr. Welch reviewed notes from A.L.’s therapist and concluded that the problems experienced by A.L. are typical of a sexually abused child.

She also stated there are three types of sex offenders. One type is a situational sex offender who has appropriate adult relationships but, if given the opportunity, may commit a deviant sexual act. Any person in the community could be a situational sex offender. The second type is a preferential sex offender whose main sexual preference is something deviant, such as children. The third type is a predatory sex offender whose whole life is focused around something sexually deviant and who prey on their victims. Dr. Welch stated that while there was no psychological test to reveal whether someone abuses children, there are tests to determine if a person would be prone to that type of behavior. However, she commented, some people who are aroused by children do not act on those impulses.

She also stated that if a child is asked the same question more than once, it is possible the child may assume their answer was wrong. Furthermore, leading questions should not be asked. However, she felt that A.L.’s account was consistent and that A.L. did not agree with everything that Canto, the interviewer from Scotty’s House, asked her that was potentially leading.

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Bluebook (online)
57 S.W.3d 458, 2001 WL 909006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lange-v-state-texapp-2001.