Mulvihill v. State

177 S.W.3d 409, 2005 WL 913156
CourtCourt of Appeals of Texas
DecidedDecember 14, 2005
Docket01-04-00501-CR
StatusPublished
Cited by9 cases

This text of 177 S.W.3d 409 (Mulvihill 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
Mulvihill v. State, 177 S.W.3d 409, 2005 WL 913156 (Tex. Ct. App. 2005).

Opinion

*410 OPINION

TERRY JENNINGS, Justice.

A jury found appellant, James Lee Mul-vihill, guilty of the offense of aggravated sexual assault of a child 1 and assessed his punishment at confinement for 20 years. In his sole point of error, appellant contends that the trial court erred in admitting unqualified expert testimony. We affirm.

Factual and Procedural Background

Paula Johnson, the complainant’s mother, testified that she and appellant married in 1981 and that they subsequently had two daughters, the complainant and her older sister. In August 2000, due to marital difficulties, Johnson and appellant separated, and Johnson, the complainant, and the older sister moved into an apartment. Johnson explained that, before the middle of the complainant’s sixth-grade year, in early 2001, the complainant had been a “good,” “sweet,” and “[hjappy, lovable child.” However, in early 2001, the complainant had adopted a “tough-girl type exterior.” Johnson had also noticed other changes in the complainant. Johnson was notified twice by the complainant’s school that the complainant had told other students that she was going to commit suicide. The complainant also began telling lies, including telling neighbors that appellant had died of a heart attack. Furthermore, the complainant also consumed Xa-nax bars that other students had given to her.

Johnson further testified that, in June 2008, after Johnson picked up the complainant from the house of Cathy Lookof-sky, appellant’s sister, the complainant first told her that appellant had been touching the complainant inappropriately. About two weeks later, Johnson reported the information to the Baytown Police Department. She then placed the complainant in counseling with Dene Edmiston, a counselor at the New Horizons Center in Baytown, Texas, where the complainant was still receiving counseling at the time of trial.

The complainant testified that, on February 14, 2001, when she was 12 years old, she spent the night at appellant’s house. After she fell asleep, she was awakened when she felt appellant digitally penetrate her vagina. Appellant told her not to “tell anybody because [he] could go to jail.” The next morning, while appellant was driving the complainant back to Johnson’s apartment, appellant told her that if she “ever walked out of [his] life, that his life would be over right there.” Two weeks later, the complainant moved in with appellant, who touched her in a similar manner between two and ten times until the complainant moved back to Johnson’s apartment on March 31, 2001. However, in July 2001, after Johnson’s and appellant’s divorce was finalized, pursuant to a standard possession order, the complainant began visiting appellant every other weekend and on holidays. She explained that her visits with appellant were “good for a while,” but then appellant again began entering her bedroom at night and digitally penetrating her vagina. He continued to touch her in such a manner during every weekend visit until appellant left the country in April or May of 2002. The complainant explained that, after éach time appellant touched the complainant, while driving the complainant back to Johnson’s house, appellant would cry and tell the complainant that he loved her, that he wanted her to live with him, and that he did not want her to leave him. She also explained that appellant’s behavior made *411 her feel guilty and “bad” and that she did not immediately tell anyone what had happened because she “didn’t want [appellant] to go to jail.” In June 2003, shortly before appellant returned to the United States, the complainant first told Lookofsky and then told Johnson that appellant had been touching her inappropriately.

As part of its case-in-chief, the State called Dene Edmiston, a counselor who had been treating the complainant, to testify. Edmiston testified that, in total, she had worked with sexually abused persons for three-and-one-half to four years. She explained that, at the time of trial and for the past two-and-one-half years, she was a counselor for New Horizons Center in Baytown, Texas, where she counseled those who had been sexually assaulted, sexually abused, and victimized by domestic violence. She explained that, on average, she had a caseload of 35 to 45 clients per month at New Horizons and that her clients’ ages ranged from ages four to fifty. Regarding her educational experience, she testified that she had a bachelor’s degree in humanities with an emphasis on women’s studies and that she had a master’s degree from the University of Houston at Clear Lake in behavioral sciences and human services with an emphasis on working with victims of domestic violence and sexual assault. Edmiston explained that her master’s degree program consisted predominantly of psychology courses. She also explained that, as a requirement for her master’s degree, she completed an internship at the Houston Area Women’s Center (HAWC). Furthermore, she testified that she had also volunteered at HAWC prior to fulfilling her internship requirement.

Thereafter, appellant requested a voir dire examination, 2 outside the jury’s presence, to determine whether Edmiston was qualified to testify as an expert concerning the symptoms exhibited by sexually abused children. During voir dire, Edmi-ston admitted that she was neither a psychiatrist nor a psychologist. She reiterated her educational background and work history and stated that she regularly attended continuing education classes, including classes with Depelchin Children’s Center and the Texas Association on Sexual Assault. She also explained that her master’s degree program at HAWC had required her to complete an internship consisting of at least 500 hours. At HAWC, Edmiston had worked with young adults and adults who had been victims of domestic violence or who had been sexually assaulted. Prior to and separate from her internship for her master’s degree, she had volunteered at HAWC while she was obtaining her bachelor’s degree. Edmi-ston also explained that she had counseled the complainant on almost a weekly basis for the eight months prior to appellant’s trial.

At this point, appellant objected to Ed-miston’s qualifications as to proffering an opinion regarding the symptoms exhibited by sexually abused children and whether the symptoms exhibited by the complainant were consistent with such symptoms. Appellant argued that Edmiston did not have “the proper education,” the “proper hands-on experience,” and “the proper knowledge” to determine if “somebody is a victim of sexual abuse,” and that, in order for Edmiston to be qualified to testify as an expert, “she has got to show you something through literature, through medical experience, working in conjunction with doctors, psychologists, or psychiatrists.”

The trial court then asked Edmiston how many sexually abused children or young adults Edmiston had counseled, to *412 which Edmiston replied 25 or 30. After confirming that the State would not solicit an opinion from Edmiston as to the complainant’s credibility or whether Edmiston herself believed that the complainant was sexually assaulted, the trial court ruled that Edmiston could testify as an expert concerning the symptoms exhibited by sexually abused children and - whether the complainant’s behavior was consistent with such symptoms.

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Cite This Page — Counsel Stack

Bluebook (online)
177 S.W.3d 409, 2005 WL 913156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulvihill-v-state-texapp-2005.