Richard Gonzales v. State ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00333-CR
NO. 03-13-00334-CR
Richard Gonzales, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NOS. CR-12-0141 & CR-13-0053, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Richard Gonzales guilty of multiple child sexual abuse
offenses: continuous sexual abuse of a young child for sexually abusing his seven-year-old niece,
A.R., see Tex. Penal Code § 21.02(b), and four counts of indecency with a child by sexual contact
for sexually abusing his eight-year-old niece, K.R., see id. § 21.11(a)(1).1 In accordance with the
jury’s verdicts, the trial court assessed appellant’s punishment at confinement in the Texas
Department of Criminal Justice for 58 years for the continuous sexual abuse offense, see id.
§ 21.02(h), and 12 years for each of the indecency offenses, see id. § 12.33, ordering all of the
sentences to be served concurrently. On appeal, appellant complains about a violation of the witness
sequestration rule and the admission of expert testimony. Because the parties are familiar with the
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The jury also acquitted appellant of continuous sexual abuse of a young child relating to
further allegations of sexual abuse perpetrated against K.R.
facts of these cases, their procedural history, and the evidence adduced at trial, we do not recite them
in this opinion except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See Tex. R. App. P. 47.1, 47.4. Finding no reversible error, we affirm the trial court’s
judgments of conviction.
DISCUSSION
In two points of error on appeal, appellant asserts that the trial court erred in
(1) allowing the girls’ former counselor to remain in the courtroom during their testimony in
violation of the witness sequestration rule and (2) admitting testimony from the State’s child abuse
expert that commented on the girls’ credibility.
Exemption from the Rule
At the beginning of trial, the witness sequestration rule was invoked. See Tex. R.
Evid. 614 (requiring, upon request of party, exclusion of witnesses from courtroom so they cannot
hear testimony of other witnesses). Before K.R. and A.R. testified during the guilt-innocence phase
of trial, the State requested that Stephanie Watts, the therapist from the children’s advocacy center
who had provided counseling to the girls, be permitted to remain in the courtroom to hear the girls’
testimony because she needed to observe their testimony in order to offer her expert opinions. Over
appellant’s objection, the trial court allowed the counselor to be in the courtroom when the girls
testified, instructing that she sit on the back row of the courtroom. In his first point of error,
appellant asserts that the trial court abused its discretion by allowing Watts to remain in the
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courtroom because the State made an inadequate showing that Watts’s presence was essential to the
State’s case.
Texas Rule of Evidence 614, commonly referred to as “the Rule,” codifies the witness
sequestration rule. When invoked by either party or the trial court, the Rule mandates, with some
exceptions, the exclusion of witnesses from the courtroom during trial so they cannot hear the
testimony of other witnesses. Tex. R. Evid. 614. One of the exceptions to the Rule is for a person
essential to the presentation of the party’s case. See Tex. R. Evid. 614(3) (witness exclusion rule
“does not authorize exclusion of a person whose presence is shown by a party to be essential to the
presentation of the party’s cause”). The party seeking to exempt a witness from the Rule has the
burden of showing that the claimed exception applies. Russell v. State, 155 S.W.3d 176, 180 (Tex.
Crim. App. 2005); Allen v. State, 436 S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref’d).
Enforcement of the rule and its exceptions lies within the sound discretion of the trial court. Caron
v. State, 162 S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Thus, a trial court’s
decision to permit a witness to remain in the courtroom after the witness sequestration rule is
invoked is reviewed for an abuse of discretion. Moore v. State, 882 S.W.2d 844, 848 (Tex. Crim.
App. 1994); see Allen, 436 S.W.3d at 822.
Here, the State maintained that Watts should be exempted from the Rule as an expert
witness because her presence was essential to the presentation of the State’s case, asserting that the
counselor needed to observe the testimony of K.R. and A.R. in order to later explain to the jury any
“counterintuitive behaviors” the girls might display during their testimony. The State maintained
that it was very narrowly tailoring the therapist’s presence in the courtroom (to only the testimony
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of the two girls she counseled) for that specific purpose. In his objection, appellant complained
about the “discrete danger” that the mere presence of the counselor in the courtroom could cue the
children to remember “something that went on in therapy as opposed to what went on during the
alleged offense.”
The purpose of the witness sequestration rule is to prevent the testimony of one
witness from influencing the testimony of another, consciously or not. Russell, 155 S.W.3d at 179;
see Routier v. State, 112 S.W.3d 554, 590 (Tex. Crim. App. 2003) (“The Rule is designed to prevent
witnesses from altering their testimony, consciously or not, based on other witnesses’ testimony.”);
Allen, 436 S.W.3d at 822 (“[T]he witness sequestration rule[ ] prevents witnesses from tailoring their
testimony to fit that of other witnesses and enhances the jury’s ability to detect falsehood by
exposing inconsistencies in testimony.”); Harris v. State, 122 S.W.3d 871, 882 (Tex. App.—Fort
Worth 2003, pet. ref’d) (“The purpose of the Rule is to prevent corroboration, contradiction, and the
influencing of witnesses.”). Appellant’s complaint—at trial and on appeal—concerns how Watts’s
presence purportedly influenced the girls when they testified, not how hearing their testimony
influenced Watts’s testimony. The witness sequestration rule does not address the impact of the
presence of the potential witness on the testifying witness; rather, the Rule addresses how hearing
the testimony of other witnesses influences, perhaps improperly, the later testimony of the witness
who is present in the courtroom observing the testimony.
Notwithstanding appellant’s concern, which is not addressed by the Rule, we do not
find that the trial court abused its discretion in allowing the girls’ former counselor to be present in
the courtroom to hear their testimony for the purpose of later providing her expert opinion to explain
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certain behaviors the girls might exhibit when they testified. “‘The trial court is vested with
discretion and may permit expert witnesses to be exempt from the rule in order that they may hear
other witnesses testify and then base their opinion on such testimony.’” Martinez v. State,
867 S.W.2d 30, 40 (Tex. Crim. App. 1993) (quoting Lewis v. State, 486 S.W.2d 104, 106 (Tex.
Crim. App. 1972)); see Robles v. State, No. 10-12-00398-CR, 2013 WL 5952141, at *4 (Tex.
App.—Waco Nov. 7, 2013, pet. ref’d) (mem. op., not designated for publication); Caron,
162 S.W.3d at 618; Ham v. State, No. 05-95-00737-CR, 1998 WL 272213, at *4 (Tex. App.—Dallas
May 29, 1998, no pet.) (not designated for publication). We believe the purpose articulated by the
State—providing expert testimony based upon observations of the children’s testimony to explain
exhibited behaviors not readily understood by those not familiar with the dynamics of child sexual
abuse—is consistent with the exception provided for in the Rule.2 See, e.g., Hullaby v. State,
911 S.W.2d 921, 929 (Tex. App.—Fort Worth 1995, pet. ref’d) (“[I]t seems clear that the State was
seeking the presence of the witness to hear and interpret the meaning of “gang” slang and
symbolism; it being apparent that some such slang and symbolic gestures/signs do not have a
meaning that is readily discernable by the uninitiated. This fact situation is one of the scenarios that
part (3) of the rule contemplates.”).
Moreover, even assuming the trial court erred in permitting Watts to stay in the
courtroom, violation of an evidentiary rule is non-constitutional error and will be disregarded unless
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In his brief, appellant argues that the fact that the State did not in fact call Watts as a
witness during the guilt-innocence phase to provide such explanatory testimony shows that Watts
was not essential to the State’s case. However, it seems just as likely the reason that Watts was not
called to testify during the guilt-innocence phase is that the girls did not exhibit counterintuitive
behaviors during their testimony that required Watts’s expert explanation.
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it affected the appellant’s substantial rights. Russell, 155 S.W.3d at 181; see Tex. R. App. P. 44.2(b).
Thus, we need not reverse if, after examining the record as a whole, we have fair assurance that the
error did not influence the jury’s deliberations to appellant’s detriment or had but a slight effect.
Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Sandoval v. State, 409 S.W.3d 259,
287 (Tex. App.—Austin 2013, no pet.).
A key factor in determining harm when a witness was erroneously allowed to remain
in the courtroom in violation of the witness sequestration rule is whether the witness’s testimony was
influenced by the testimony the witness heard. Russell, 155 S.W.3d at 181–82. In his brief,
appellant maintains that he was harmed because “the sole basis for [appellant’s] conviction was the
testimony of the alleged victims, and [the counselor’s] presence in the courtroom during their
testimony influenced that testimony to [his] detriment.”3 Once again, however, the purpose of
placing a witness under the Rule is to prevent that witness from being influenced in her testimony
by the testimony of another witness. Id. at 181. Accordingly, the question in assessing the harm of
allowing Watts to remain in the courtroom is whether she was influenced in her testimony by the
testimony of K.R. and A.R. See id.
To address the issue of harm in this circumstance, we consider (1) whether Watts
actually heard the testimony of K.R. and A.R. and (2) whether Watts’s testimony “either contradicted
the testimony of a witness from the opposing side or corroborated testimony of a witness she heard.”
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We observe that the record does not support this claim. The testimony of the girls at trial
was consistent with the statements they made during their forensic interviews at the children’s
advocacy center, recordings of which were admitted into evidence at trial and published to the jury.
These interviews took place before any counseling by Watts.
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See Allen, 436 S.W.3d at 824; see also Webb v. State, 766 S.W.2d 236, 240 (Tex. Crim. App. 1989)
(“[I]njury or prejudice to the party in a criminal trial [resulting from a violation of the witness
sequestration rule] is dependent upon a showing of two criteria: (a) did the witness actually confer
with or hear the testimony of the other witness; and (b) did the witness’s testimony contradict the
testimony of a witness from the opposing side or corroborate the testimony of another witness he had
conferred with or had otherwise actually heard.”). The appellant has the burden to demonstrate that
the record supports a finding under both prongs. Allen, 436 S.W.3d at 824.
Here, the record demonstrates that Watts did in fact hear the children’s testimony as
she sat on the back row of the courtroom. However, as appellant observes, the State did not call
Watts as a witness during the guilt-innocence phase of trial. Further, while Watts testified during
the punishment phase, her testimony addressed (1) her qualifications, (2) general therapies utilized
with children (play therapy, expressive art therapy, talk therapy), (3) the girls’ personalities and their
experiences and progress in therapy, (4) court school (preparation for testifying at trial), and (5) the
healing process generally for child sexual abuse victims and how the lack of family support is
detrimental to the healing process. Throughout her testimony, Watts also discussed the various
impacts of sexual abuse on children, including guilt and shame issues, trust issues, self-esteem
issues, issues with depression, the risk of self-destructive behavior, the impact on the development
of healthy sexuality during puberty, the influence on the choice of relationship partners, and the
effect on a victim’s experience of parenthood. Watts ultimately expressed her opinion that “[t]here
is no point that [K.R. and A.R.] will be free [of what [appellant] has done to them]. [The sexual
abuse] is unfortunately a part of them and a part of their lives.” This opinion was based on her
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knowledge of the general concepts relating to the impact of sexual abuse on children and her therapy
experience with the girls, not the girls’ testimony during trial. Thus, based on the record here, we
cannot conclude that appellant established that Watts’s testimony during the punishment phase was
influenced by K.R.’s and A.R.’s testimony. The record does not demonstrate that appellant was
harmed by Watts’s presence in the courtroom during the girls’ testimony, if it was error.
We overrule appellant’s first point of error.
Expert Testimony
In his second point of error, appellant maintains that the trial court erred in overruling
his objection to particular testimony from Melissa Rodriguez, the forensic interviewer from the
children’s advocacy center who conducted the interviews of K.R. and A.R., that purportedly elicited
her expert opinion concerning the girls’ truthfulness.
During the State’s redirect examination of Rodriguez, the prosecutor asked, “And
sitting here today, after reviewing all the videos, do you have any concern that these children were
coached or manipulated into telling a false story?” Appellant’s counsel objected, arguing that the
question called for Rodriguez to comment on the girls’ credibility. The trial court agreed that the
witness could not comment on the girls’ credibility, but further expressed the court’s belief that
Rodriguez was “able to say whether she had a concern [about coaching or manipulation], based on
what the children said.” Appellant’s counsel then complained that the answer would be “an implicit
endorsement.” The trial court disagreed, and Rodriguez answered the question in the negative: “No,
I didn’t have any concerns of coaching.”
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“Direct opinion testimony about the truthfulness of another witness, without prior
impeachment, is inadmissible.” Lopez v. State, 343 S.W.3d 137, 140–41 (Tex. Crim. App. 2011).
Thus, the State may not elicit expert testimony that a particular child is telling the truth, or that child
complainants as a class are worthy of belief. Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App.
1993); Sandoval, 409 S.W.3d at 291. Nor may an expert offer an opinion on the truthfulness of a
child complainant’s allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997);
Sandoval, 409 S.W.3d at 291. However, expert testimony that a child did not exhibit indications of
coaching or manipulation does not constitute a direct opinion on the child’s truthfulness. See Schutz,
957 S.W.2d at 73; Cantu v. State, 366 S.W.3d 771, 777–78 (Tex. App.—Amarillo 2012, no pet.);
Chavez v. State, 324 S.W.3d 785, 788–89 (Tex. App.—Eastland 2010, no pet.); Rushing v. State, No.
09-08-00396-CR, 2010 WL 2171628, at *5 (Tex. App.—Beaumont May 26, 2010) (mem. op., not
designated for publication), aff’d, 353 S.W.3d 863 (Tex. Crim. App. 2011); Darling v. State,
262 S.W.3d 920, 924 (Tex. App.—Texarkana 2008, pet. ref’d).
We see no abuse of discretion in the trial court’s overruling of appellant’s objection
to the complained-of question. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)
(“A trial judge’s decision on the admissibility of evidence is reviewed under an abuse of discretion
standard and will not be reversed if it is within the zone of reasonable disagreement.”). The
prosecutor’s question explicitly inquired about Rodriguez’s opinion concerning whether the girls
“were coached or manipulated,” a permissible inquiry, rather than seeking the interviewer’s opinion
of K.R.’s and A.R.’s truthfulness. See Hernandez v. State, No. 03-12-00805-CR, 2015 WL 412834,
at *4–5 (Tex. App.—Austin Jan. 30, 2015, no pet.) (mem. op., not designated for publication)
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(propounded questions did not call for forensic interviewer’s opinion of whether child complainant
was truthful in her allegations, but only whether child—and not someone else—was source of
allegations). The correctness of the trial court’s ruling was borne out by the answer to the question,
in which Rodriguez indicted that she had no concerns “of coaching.” See Cantu, 366 S.W.3d at 778
(testimony did not convey interviewer’s opinion as to whether child was telling truth; testimony
indicated only that interviewer believed allegations came from child rather than from someone telling
child what to allege); Charley v. State, No. 05-08-01691-CR, 2011 WL 386858, at *4–5 (Tex.
App.—Dallas Feb. 8, 2011, no pet.) (mem. op., not designated for publication) (expert was not asked
and did not testify that child was telling truth; testimony was that child was able to provide sensory
details which was important because she would not have been able to do so had she been coached);
Reynolds v. State, 227 S.W.3d 355, 366 (Tex. App.—Texarkana 2007, no pet.) (expert’s testimony
was appropriate because she explained how she interviews children and that she saw no indications
that child had been coached).
The objected-to question did not call for testimony that directly commented on the
girls’ credibility or truthfulness, and no such testimony was given. Accordingly, the trial court did
not abuse its discretion in overruling appellant’s objection. We overrule appellant’s second point
of error.
CONCLUSION
Having concluded that the trial court did not abuse its discretion in exempting the
girls’ former counselor from the witness sequestration rule or in allowing the forensic interviewer
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to testify about her opinion as to whether the girls had been coached, we affirm the trial court’s
judgments of conviction.
__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: June 11, 2015
Do Not Publish
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