Ricky Carl Dotson v. State ( 2004 )

11th Court of Appeals

Eastland, Texas

Opinion

Ricky Carl Dotson

            Appellant

Vs.                  No. 11-03-00013-CR -- Appeal from Dallas County

State of Texas

            Appellee

            The jury convicted Ricky Carl Dotson of the offense of aggravated sexual assault of a child under the age of 14. The jury assessed punishment at confinement for 35 years and a $10,000 fine. We affirm.

            Appellant presents five points of error on appeal. In the first point, he contends that the trial court erred by limiting appellant’s cross-examination of the outcry witness, Cathy Bambeck. Bambeck is the victim’s mother. Appellant was the victim’s stepfather. At the time of the offense, Bambeck and appellant were married. However, by the time the victim made the outcry, appellant and Bambeck had divorced.

            The record shows that the trial court prohibited appellant from delving too deeply into the issue of Bambeck’s prior mental health. The trial court did not allow appellant to question Bambeck about being institutionalized two years prior to her marriage or about retrieving her medical records from a hospital.

            The trial court did, however, allow appellant to question Bambeck regarding her mental status during the time of the marriage and the relationship between appellant and Bambeck. Bambeck admitted suffering from depression and being treated for mental problems. Statements made by Bambeck were introduced into evidence to show Bambeck’s bias against appellant. In a telling six-page letter that was admitted into evidence, Bambeck made extremely derogatory remarks about appellant and wrote things like:

Maybe you will learn it while your (sic) on your little vacation away from society....Cause I will fight tooth and nail to make you help raise this kid [the victim’s half-sister] or I’ll see to it that you’ll spend your little dysfunctional f----d up ass in prison. They do that now for parents who don’t pay child support. And you can bet your sweet ass I’ll do everything in my power to see that you get what you deserve you sorry motherf----r. Now, you wanna play hardball, Let the games begin!!

Bambeck wrote this letter to appellant in 1997, long before the victim’s outcry.

            A trial court maintains broad discretion in imposing reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Lopez v. State, 18 S.W.3d 220, 222 (Tex.Cr.App.2000). The probative value of the evidence that appellant was precluded from introducing was minimal when compared to its relevance and the risk of its admission. See Lopez v. State, supra. Consequently, the trial court did not abuse its discretion in prohibiting further cross-examination of Bambeck on the issue of her prior mental condition. We hold that the trial court did not violate appellant’s constitutional right to confront and cross-examine the witnesses against him. The first point of error is overruled.

            In his second point, appellant urges that the trial court erred in limiting appellant’s testimony concerning Bambeck’s bias. The excluded testimony would have shown that Bambeck stated to appellant that she knew “how to play the game” because she had “been there” too. According to appellant, Bambeck was referring to the fact that she had been incarcerated in the past and that she knew how to get appellant locked up.

            The record shows that the trial court sustained the State’s objection only “as to the part about her being in prison” or serving time. The trial court expressly stated that appellant could testify about the threats that Bambeck made. Appellant then testified that Bambeck made the following threat to him: “I’ll see you in prison for the rest of your life.”

            The trial court did not abuse its discretion by prohibiting appellant from referring to Bambeck having been in prison. The credibility of a witness may be impeached with evidence of a felony conviction or a conviction involving a crime of moral turpitude “if elicited from the witness or established by public record.” TEX.R.EVID. 609. In this case, appellant did not attempt to elicit such evidence from Bambeck or by public record. Moreover, there is nothing in the record to indicate when or why Bambeck was incarcerated or whether she was even convicted of any crime. Appellant’s second point of error is overruled.

            In his third point, appellant contends that the trial court erred in prohibiting him from introducing evidence of specific acts of misconduct committed by Bambeck. During the testimony of appellant’s friend and appellant’s mother, appellant attempted to show that Bambeck had put sugar in the gas tanks of their vehicles.

            The trial court did not abuse its discretion in prohibiting such evidence. Pursuant to TEX.R.EVID. 608(b), specific instances of conduct on the part of a witness “may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.” Furthermore, the bias and animosity exhibited by Bambeck against appellant was established by other evidence. Appellant’s third point of error is overruled.

            In the fourth point, appellant argues that the trial court erred in failing to grant a mistrial when the State made an improper jury argument at the guilt/innocence phase of trial. The record in this case shows that the prosecutor made the following closing argument:

The second reason he should be found guilty is himself. He’s not to be believed, ladies and gentlemen. He is not to be believed. He lied to you. He lied to this Court when he said, “Not guilty.”

The trial court sustained appellant’s objection and instructed the jury not to consider the prosecutor’s statement “for any purpose whatsoever.” Appellant then moved for a mistrial.

            There are four categories of proper jury argument: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to the arguments of opposing counsel, and (4) pleas for law enforcement. Cantu v. State, 842 S.W.2d 667, 690 (Tex.Cr.App.1992), cert. den’d, 509 U.S. 926 (1993). An instruction to disregard will generally cure the error created by an improper jury argument. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Cr.App.1999), cert. den’d, 531 U.S. 837 (2000). The prosecutor’s remarks in this case were not so extreme as to render ineffective the trial court’s instruction to disregard. See Gardner v. State, 730 S.W.2d 675, 698 (Tex.Cr.App.), cert. den’d, 484 U.S. 905 (1987). Accordingly, we hold that the trial court’s instruction to disregard cured any error. Appellant’s fourth point of error is overruled.

            In his final point of error, appellant contends that the trial court erred by allowing Cindy Alexander, a social worker and therapist, to testify as an expert regarding delayed outcries by sexual assault victims. Specifically, appellant contends that Alexander’s testimony did not meet the criteria for scientific reliability under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App.1992). See TEX.R.EVID. 702; Jordan v. State, 928 S.W.2d 550 (Tex.Cr.App.1996).

            The record shows that Alexander was called as a witness to testify on the topic of “delayed outcry” in child sexual abuse cases. In a Daubert hearing, Alexander established that she was the clinical director at the Dallas Children’s Advocacy Center, that she had treated about 800 children, that she was experienced in the relevant field, that she had read many studies with respect to child abuse, and that she was a licensed social worker and clinical practitioner. Based upon the literature and her experience, Alexander asserted that delayed outcries by child victims of sexual abuse were common. The trial court overruled appellant’s Daubert objection and allowed Alexander to testify before the jury. During direct examination by the prosecutor, Alexander testified about her qualifications and about the phenomenon of delayed outcry in general.

            Appellant also complains under this point of error that Alexander was permitted to testify regarding the percentage of children who falsely allege that they have been sexually abused. This issue was not addressed in the Daubert hearing. On redirect, Alexander was allowed to testify over appellant’s general objection that the percentage of children making false allegations of sexual abuse was about two to eight percent.

            We hold that the trial court did not abuse its discretion in permitting Alexander to testify as an expert under Rule 702. Alexander was qualified by her experience and her education to testify as an expert. Furthermore, Alexander’s testimony regarding delayed outcries was specialized knowledge that was helpful to the jury in understanding the delay by the victim in this case in reporting the sexual abuse. See Rule 702; Perez v. State, 113 S.W.3d 819 (Tex.App. - Austin 2003, pet’n ref’d); Edwards v. State, 107 S.W.3d 107 (Tex.App. - Texarkana 2003, pet’n ref’d).

            Next, with respect to the testimony regarding the percentage of false reports, we note that witnesses may not testify as to the veracity of a particular class of persons. Yount v. State, 872 S.W.2d 706, 708-11 (Tex.Cr.App.1993); Wilson v. State, 90 S.W.3d 391 (Tex.App. - Dallas 2002, no pet’n). In Wilson, the court found that it was error under Rule 702 to allow the same witness, Alexander, to testify similarly that only two to eight percent of such allegations were false. The Wilson court then determined that the error was harmless in that case.

            Unlike the facts in Wilson, however, the record in this case reveals that appellant lodged only a general objection to this particular testimony and that appellant opened the door to this line of questioning by inquiring about a parent implanting such falsehoods into a child’s mind. See Feldman v. State, 71 S.W.3d 738, 755-56 (Tex.Cr.App.2002)(defense may open the door to otherwise inadmissible evidence); Long v. State, 800 S.W.2d 545, 548 (Tex.Cr.App.1990)(general objection preserves nothing for review). During cross-examination, appellant had asked questions about a parent affecting a child’s “sense of reality” and implanting ideas into a child’s mind. Alexander agreed that that was a possibility. The testimony regarding the frequency of false allegations was presented thereafter on redirect by the State. Defense counsel merely stated: “To which we object, Your Honor.” We hold that appellant’s general objection preserved nothing for review under TEX.R.APP.P. 33.1(a)(1) and that appellant opened the door to the otherwise inadmissible testimony by Alexander. Appellant’s fifth point of error is overruled.

            The judgment of the trial court is affirmed.

                                                                                                JIM R. WRIGHT

                                                                                                JUSTICE

May 13, 2004

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.