Latthen Chance Douglas v. State

• Court: Court of Appeals of Texas
• Decided: May 31, 2012
• Docket: 07-11-00423-CR
• Status: Published

Opinion

NO. 07-11-0423-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 31, 2012

LATTHEN CHANCE DOUGLAS,

Appellant v.

THE STATE OF TEXAS,

Appellee _____________________________

FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NO. 21,590-B; HONORABLE JOHN B. BOARD, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Latthen Chance Douglas was convicted of aggravated sexual assault of a child.

In seeking to overturn that conviction, he 1) challenges the legal and factual sufficiency

of the evidence, 2) claims the trial court erred in allowing the sexual assault nurse

examiner to testify beyond her qualifications, and 3) claims he was denied effective

assistance of counsel. We affirm the judgment. Issues 1 and 2 - Sufficiency of the Evidence

We review the legal and factual sufficiency of the evidence under the same

standard as discussed in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).

Furthermore, appellant was tried for two counts of aggravated sexual assault. Through

the first, the State alleged that appellant penetrated the child’s sexual organ with his

sexual organ. Through the second, it alleged that he penetrated her sexual organ with

his hand, or digitally. The jury acquitted appellant of the former but convicted him of the

latter. Now appellant claims that “the uncorroborated testimony of an admitted liar”1

was insufficient evidence to support the conviction. We overrule the issue.

The child victim testified that while appellant was bathing her, he “put his finger in

[her] private.” When told to stop by the child, he ignored her. Instead, he stated that

she “had to wash [her] body good.” The testimony of the child complainant alone is

sufficient to sustain the conviction. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp.

2011); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Glockzin v. State,

220 S.W.3d 140, 147 (Tex. App.–Waco 2007, pet. ref’d). To that testimony, we add the

testimony from other witnesses to the effect that appellant removed the witnesses from

the bathroom before he began to wash the child and locked the bathroom doors so no

one could enter. The foregoing constituted some evidence upon which a rational jury

could find, beyond reasonable doubt, that appellant penetrated the child’s sexual organ

with his hand. And, while there was conflicting testimony and appellant attacked the

1 The child testified at trial that she did not report these incidents immediately because she was scared her mother would not believe her “because [she] used to lie and steal a lot.” The child was ten years old at the time of trial.

2 credibility of the complainant, we defer to the jury’s resolution of those matters.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Issue 3 – Testimony of Nurse

Next, appellant questions the trial court’s decision to allow the sexual assault

nurse examiner to reveal findings from a study to the effect that a child’s vagina could

reveal no signs of penetration and appear normal despite the child having engaged in

sexual intercourse. This was purportedly error because the witness was not a

pediatrician and lacked the qualifications to discuss the article.2 We overrule the issue.

Before alluding to the study’s findings, the nurse had testified that 1) the absence

of any trauma to a child’s vagina despite it having been penetrated sexually did not

mean no penetration occurred, and 2) “[t]ypically in children it’s not very common” to

have “positive traumatic findings” in a child who has been sexually assaulted. The

same witness also explained why that was so by describing the physiology of that

portion of a female’s anatomy and the effect of estrogen on it. No one objected to any

of that testimony. Nor did anyone contend that the witness was unqualified to utter

those comments. Thus, the substance of the study admitted into evidence was no

different than the testimony previously uttered by the nurse. Given that, the decision to

allow the nurse to reveal the study’s findings was rendered harmless. Coble v. State,

330 S.W.3d 253, 282 (Tex. Crim. App. 2010), cert. denied, __U.S.__, 131 S.Ct. 3030,

180 L.Ed.2d 846 (2011) (stating that inadmissible evidence may be rendered harmless

if the same evidence is admitted elsewhere without objection).

2 To the extent that appellant complains of the reliability of the study, that complaint does not comport with the objections made at trial and has not been preserved. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).

3 Issue 4 – Ineffective Assistance of Counsel

Finally, appellant contends that he received ineffective assistance of counsel

when his trial counsel opened the door to the admission of evidence previously ruled

inadmissible. We overrule the issue for the sole reason that nothing of record illustrates

the reasoning underlying counsel’s actions. Nor does anything of record indicate that

either trial counsel or the prosecutor had opportunity to explain why counsel did what he

did. Therefore, we cannot deem his performance inadequate given the tenor of the

record before us. See Menefield v. State, No. PD-1161-11, 2012 Tex. Crim. App. LEXIS

570 (Tex. Crim. App. April 18, 2012). And, that there may be no justifiable reason

supporting counsel’s conduct is of no import at this time. See id. at *5-6 (concurring

opinion) (questioning the majority for reversing without addressing the intermediate

appellate court’s conclusion that no reason could justify counsel’s inaction).

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice

Do not publish.