Adam S. Delgado v. State ( 2012 )

MEMORANDUM OPINION
No. 04-10-00797-CR
Adam S. DELGADO,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR1078
Honorable Philip A. Kazen, Jr., Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: July 5, 2012
AFFIRMED
Adam S. Delgado was convicted by a jury of two counts of aggravated sexual assault of a
child, two counts of indecency with a child, and one count of continuous sexual abuse of
children. On appeal, Delgado contends: (1) the trial court erred in denying his motion to quash;
(2) his convictions violate the constitutional guarantee against double jeopardy; (3) the jury was
not required to reach a unanimous verdict; (4) the trial court erred in admitting the testimony of a
child protective services investigator and a forensic interviewer; and (5) the trial court abused its
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discretion in denying his request to appear before the jury wearing his military uniform. We
affirm the trial court’s judgment.
MOTION TO QUASH
The indictment in the underlying cause contained five counts alleging: (I) aggravated
sexual assault on or about November 1, 2008, by Delgado penetrating the mouth of M.H. with
his sexual organ while using and exhibiting a deadly weapon: his bodily fluids; 1 (II) aggravated
sexual assault on or about November 1, 2008, by Delgado causing M.H.’s sexual organ to
contact Delgado’s mouth while using and exhibiting a deadly weapon: his bodily fluids; (III)
indecency with a child on or about November 1, 2008, by Delgado touching M.H.’s genitals;
(IV) indecency with a child on or about November 1, 2008, by Delgado touching M.H.’s anus;
and (V) continuous sexual abuse of children on or about June 1, 2008 through on or about
November 1, 2008, by Delgado, during a period of 30 days or more in duration, committing two
or more acts of sexual abuse against M.D. and M.H. in violation of one or more penal laws
including aggravated sexual assault by: (a) penetrating M.H.’s sexual organ with his finger; (b)
causing the anus of M.H. to contact his mouth; and (c) causing the anus of M.D. to contact his
sexual organ. Delgado filed a motion to quash the indictment asserting the following:
Defendant’s right to a fair and impartial trial will be denied if the State is
allowed to include Count V of the Indictment and present evidence to that effect
in its case in chief in the above styled and numbered cause. Count V alleges an
entirely different incident with a different victim and is not an essential element
necessary for the State to prove its case in Counts I-IV. This Court has
jurisdiction over this Indictment without the necessity of Count V.
The prejudicial nature of Count V far outweighs any probative value the
State may argue Count V contains.
During the hearing on Delgado’s motion to quash, his attorney argued Count V deals with a
different victim, M.D., than the victim in Counts I-IV, M.H. The attorney noted that the State
1
Evidence was presented that Delgado was HIV positive.
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had indicted Delgado in a separate cause for acts alleged to have been committed against M.D.,
so “by granting this motion to quash count five, or at least remove the third part, I guess what
you would call a paragraph under part five, the State is not being prejudiced.” The attorney
argued adding a second victim, M.D., in the third sentence under Count V would unfairly
prejudice Delgado’s constitutional rights “in the sense of fair play and justice.” The attorney
requested “a severance or a quashing of count five as it relates to [M.D.] and that issue.”
In his brief on appeal, Delgado argues his motion to quash was directed at a limitation set
forth in section 21.02(e) of the Texas Penal Code because the allegations in Counts I-IV and the
first two offenses listed in Count V were against the same victim in the same criminal
transaction. Delgado also argues that the indictment failed to provide sufficient notice to prepare
a defense as to the bodily fluid allegation since bodily fluids are not per se deadly weapons.
In order for error to be preserved for appellate review, rule 33.1 of the Texas Rules of
Appellate Procedure requires the record to show that the complaint was made to the trial court by
a timely request, objection, or motion that stated the grounds for the ruling being sought with
sufficient specificity to make the trial court aware of the complaint unless the specific grounds
were apparent from the context. TEX. R. APP. P. 33.1(a). “This Rule encompasses the concept of
‘party responsibility.’” Pena v. State, 285 S.W.3d 459, 463 (Tex. Crim. App. 2009). “The
complaining party bears the responsibility of clearly conveying to the trial judge the particular
complaint, including the precise and proper application of the law as well as the underlying
rationale.” Id. at 463-64. “Whether a party’s particular complaint is preserved depends on
whether the complaint on appeal comports with the complaint made at trial.” Id. at 464. “In
making this determination, we consider the context in which the complaint was made and the
parties’ shared understanding at that time.” Id.
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The record in this case demonstrates that the complaint made at trial was the inclusion of
the second victim, M.D., in the third paragraph of Count V of the indictment. The complaint on
appeal pertaining to allegations involving the first victim, M.H., does not comport with the
complaint made at trial. Accordingly, this error is not preserved for appellate review. See TEX.
R. APP. P. 33.1(a); Pena, 285 S.W.3d at 463-64.
DOUBLE JEOPARDY
In his second issue, Delgado argues that double jeopardy barred him from being
convicted of (1) three counts of aggravated sexual assault (Counts I, II, and V) which were the
same criminal conduct; (2) both: (a) continuous course of sexual abuse by penetrating the sexual
organ of M.H. with his finger; and (b) indecency with a child by touching part of M.H.’s
genitals; and (3) both (a) continuous course of sexual abuse by causing the anus of M.H. to
contact Delgado’s mouth; and (b) indecency with a child by touching the anus of M.H. Both
Delgado and the State note that Delgado did not preserve his double jeopardy claim at trial.
Because the first two double jeopardy violations alleged by Delgado would fail even if the
complaints had been preserved, we will delay our discussion of the preservation issue until our
discussion of the third double jeopardy violation asserted by Delgado in his brief.
“The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through
the Fourteenth Amendment, protects an accused against a second prosecution for the same
offense for which he has been previously acquitted or previously convicted.” Littrell v. State,
271 S.W.3d 273, 275 (Tex. Crim. App. 2008). “It also protects an accused from being punished
more than once for the same offense.” Id. “The instant case involves the issue of multiple
punishments stemming from a single prosecution.” Id. “In the multiple-punishments context,
two offenses may be the same if one offense stands in relation to the other as a lesser-included
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offense, or if the two offenses are defined under distinct statutory provisions but the Legislature
has made it clear that only one punishment is intended.” Id. at 275-76. “Sameness in this
context is a matter of legislative intent.” Id. at 276.
“The traditional indicium of that legislative intent is the so-called ‘same elements’ test of
Blockburger v. United States,” 284 U.S. 299, 304 (1932). Id. “According to that test, it should
be presumed that the Legislature did not regard two statutorily defined offenses to be the same if
each provision requires proof of a fact which the other does not.” Id. (internal quotations
omitted). “However, for purposes of multiple-punishments analysis, the Blockburger test is only
a tool of statutory construction — and not even an exclusive one.” Id. Double jeopardy does not
bar a defendant from being convicted of separate and distinct statutory aggravated sexual assault
offenses involving separate and distinct acts. Vick v. State, 991 S.W.2d 832, 833 (Tex. Crim.
App. 1999). Separate charges are also proper where the same offense occurred on different
dates. Hiatt v. State, 319 S.W.3d 115, 126 (Tex. App.—San Antonio 2010, pet. ref’d).
In this case, M.H. testified that the sexual assault occurred on two separate dates – once
while Delgado lived in an apartment and once after Delgado moved to a new home in November
of 2008. Count I and II are separate and distinct statutory aggravated sexual assault offenses
involving separate and distinct acts that M.H. testified occurred in Delgado’s new home. 2
Compare TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii) (West Supp. 2011) (defining aggravated
sexual assault to include a person intentionally or knowingly causing the penetration of
the mouth of a child by the sexual organ of the actor) with TEX. PENAL CODE at
§ 22.021(a)(1)(B)(iii) (defining aggravated sexual assault to include a person intentionally or
knowingly causing the sexual organ of a child to contact or penetrate the mouth of the actor).
2
M.H. testified that Delgado “put his middle in [her] mouth” at the apartment and the house. M.H. testified that
Delgado “put his mouth on [her] middle” at the apartment and the house.
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Count V also alleges separate and distinct statutory aggravated sexual assault offenses involving
separate and distinct acts that M.H. testified occurred while Delgado lived in an apartment. 3
Compare TEX. PENAL CODE at § 22.021(a)(1)(B)(i) (defining aggravated sexual assault to
include a person intentionally or knowingly penetrating the sexual organ of a child by any
means) with TEX. PENAL CODE at § 22.021(a)(1)(B)(iv) (defining aggravated sexual assault to
include a person intentionally or knowingly causing the anus of a child to contact the mouth of
the actor). Accordingly, Delgado’s conviction of Counts I, II, and V were not barred by double
jeopardy. Similarly, because a jury could find from the testimony of M.H. and the sexual assault
nurse examiner who examined M.H. that Delgado engaged in the act alleged in Count III and the
first paragraph of Count V on two different dates at both the house and at the apartment, no
double jeopardy violation resulted. 4 Hiatt, 319 S.W.3d at 126.
Delgado’s final double jeopardy complaint is that a double jeopardy violation resulted
from his conviction of Count IV, indecency with a child by touching the anus of M.H., and the
second paragraph in Count V, a continuous course of sexual abuse by, among other acts, causing
the anus of M.H. to contact Delgado’s mouth. 5 As previously noted, Delgado concedes that he
did not raise his double jeopardy claim at trial. A double jeopardy claim may be raised for the
first time on appeal only when: (1) the undisputed facts show the double jeopardy violation is
clearly apparent from the face of the record; and (2) enforcement of usual rules of procedural
3
M.H. testified that Delgado “touched my middle” with his hand at the apartment but not at the house. M.H. also
testified that Delgado put his mouth on her bottom where she goes number two at the apartment but not at the house.
4
Jennifer Degner, the sexual assault nurse examiner who examined M.H., testified that M.H. reported the last
assault occurred at Delgado’s house. M.H. reported that she was lying in bed, and Delgado pulled her underwear
down to her knees. M.H. reported that Delgado licked his index and middle fingers and rubbed her genitals.
Although M.H. testified that Delgado “touched my middle” with his hand at the apartment but not at the house, the
jury could have disbelieved her trial testimony based on her earlier report and the difficulty M.H. had in testifying at
trial.
5
M.H. testified that Delgado put his mouth on her bottom where she goes number two at the apartment but not at the
house. Degner testified that M.H. reported that Delgado put his tongue inside her butt in response to her asking if
Delgado “ever did anything to her butt.” Accordingly, the evidence does not establish that Delgado committed this
act on two different dates.
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default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim.
App. 2000).
In Gonzalez, Count I of the appellant’s indictment charged aggravated robbery in three
separate paragraphs alleging alternative means of committing the offense. 8 S.W.3d at 640. The
three paragraphs were submitted to the jury disjunctively. Id. Count II of appellant’s indictment
charged injury to an elderly individual in a single paragraph. Id. Appellant was convicted of
both offenses by a general verdict. Id. “Appellant claimed for the first time on appeal that it was
possible he was multiply punished for the same offense because the injury to an elderly offense
[was] a lesser included offense of the aggravated robbery offense as set out in paragraphs one
and three and the jury’s general verdict of aggravated robbery could have rested on one of these
paragraphs.” Id. at 641. “Appellant conceded that if the jury’s general guilty verdict of
aggravated robbery rested on paragraph two, then no multiple punishments issue was presented.”
Id.
The Texas Court of Criminal Appeals held that appellant failed to establish the first prong
for not requiring error preservation because the face of the record failed to show a multiple
punishments violation since the jury’s general guilty verdict of aggravated robbery could have
rested on paragraph two. Id. at 645. In addition, the court concluded that appellant also failed to
establish the second prong for not requiring error preservation. Id. at 645-46. The court
reasoned that requiring appellant to have timely raised his multiple punishments claim in the trial
court would have served legitimate state interests because timely raising the matter in the trial
court “would have provided the trial court and the prosecution an opportunity to remove the
basis of the objection, and it also would have provided the prosecution the opportunity to obtain
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an aggravated robbery conviction based on paragraph two without the risk of an unnecessary
retrial in the face of a valid multiple punishment claim.” Id.
Similar to the analysis in Gonzalez, we hold that Delgado also has failed to meet the two
prongs required in order to raise his double jeopardy complaint for the first time on appeal. First,
the three paragraphs in Count V alleging three separate aggravated sexual assault offenses were
submitted in the disjunctive and the jury was only required to find that two of the alleged
aggravated sexual assault offenses occurred. 6 Accordingly, because the jury’s general guilty
verdict of continuous sexual abuse of children could have rested on the first and third paragraphs
of Count V, Delgado has not sustained his burden of presenting a record showing on its face a
multiple punishments violation. See id. at 645. Moreover, requiring Delgado to have timely
raised his multiple punishments claim in the trial court served legitimate state interests and is
consistent with the underlying policies of the general rules of procedural default. See id.
“Timely raising the matter in the trial court would have provided the trial court and the
prosecution the opportunity to remove the basis of the objection, and it also would have provided
the prosecution the opportunity to obtain [a conviction for continuous sexual abuse of children]
based on the [the first and third paragraphs of Count V or other allegations of sexual abuse
involving M.H. or M.D.] without the risk of an unnecessary retrial in the face of a valid multiple
6
The application paragraph of the jury charge stated:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 1st
day of June, 2008, through on or about the 1st day of November, 2008, in Bexar County, Texas,
the defendant, Adam Delgado, during a period that was 30 days or more in duration, committed
two or more acts of sexual abuse against M.D. and/or M.H., said acts of sexual abuse having been
violations of one or more of the following penal laws, including Aggravated Sexual Assault,
namely: causing the penetration of the sexual organ of M.H. by Adam Delgado’s finger, and/or by
causing the anus of M.H. to contact the mouth of Adam Delgado, and/or by causing the anus of
M.D. to contact the sexual organ of Adam Delgado, and, at the time of the commission of each of
the acts of sexual abuse, Adam Delgado was 17 years of age or older and M.D. and M.H. were
children younger than 14 years of age, then you will find the defendant guilty of continuous sexual
abuse of young child or children as charged in Count V of the indictment.
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punishments claim.” Id. at 645-46. Because Delgado failed to preserve the third double
jeopardy claim asserted in his brief, the complaint is overruled.
JURY UNANIMITY
In his third issue, Delgado argues that all of the allegations in the indictment “could have
occurred during one transactions [sic] on November 1, 2008.” Delgado then argues, “Because
multiple acts were described in somewhat vague details by [M.H.], and the evidence as to each
act was conflicting, some jurors could have relied upon one incident for conviction, while others
could have relied upon another.” Delgado further argues, “The description of the events by
[M.H.] described offenses that may not allow separate prosecutions because the conduct consist
[sic] of the same offenses, part of the same offense, or lesser included offense. Under this
application, there cannot be unanimity of multiple verdicts constituting the same offense [sic]
conduct, part of the same transaction of the conduct or of lesser included offenses.”
Jury unanimity is required in all criminal cases. Pizzo v. State, 235 S.W.3d 711, 714
(Tex. Crim. App. 2007). “Unanimity ensures that all jurors reach a consensus on the same act
for a conviction.” Id.
As previously noted, Delgado was charged with committing five separate and distinct
offenses. Although Counts I-IV charged Delgado with committing four of these offenses on or
about November 1, 2008, Count V charged Delgado with committing that offense on or about
June 1, 2008 through on or about November 1, 2008. M.H. testified that certain acts were
committed while Delgado lived in an apartment and certain acts were committed after Delgado
moved into his new home. M.H. testified that the acts with which Delgado was charged in Count
V occurred while Delgado lived in his apartment. Accordingly, Delgado is incorrect in asserting
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that all of the allegations could have occurred on November 1, 2008, which was after Delgado
moved into his house.
It appears that Delgado is attempting to mix his double jeopardy argument with his jury
unanimity argument. With regard to jury unanimity, the jury charge contained a separate
application paragraph pertaining to each count in the indictment. The jury charge also contained
separate verdict forms for each count. Finally, the jury was instructed that its verdict was
required to be unanimous. Accordingly, because the jury was required to unanimously agree that
each of the separate and distinct offenses occurred, Delgado’s third issue is overruled. See
Martin v. State, 335 S.W.3d 867, 872 (Tex. App.—Austin 2011, pet. ref’d) (noting due process
not violated by permitting a conviction based on a jury’s unanimous finding that the defendant
engaged in continuous sexual abuse of children through a course of conduct consisting of
repeated acts of sexual abuse but without requiring jury unanimity as to the individual acts that
made up that course of conduct) (citing Jacobsen v. State, 325 S.W.3d 733, 739 (Tex. App.—
Austin 2010, no pet.)).
ADMISSIBILITY OF EVIDENCE
Delgado’s fourth issue challenges the admissibility of testimony by a child protective
services investigator of statements Delgado made to him while in jail awaiting trial. In his sixth
issue, Delgado contends the trial court erred in admitting testimony by a forensic interviewer that
an abused child can still love her abuser.
A trial judge’s decision on the admissibility of the evidence is reviewed under an abuse
of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). The
ruling will not be reversed on appeal if it is within the zone of reasonable disagreement. Id.
A. Child Protective Services Investigator
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Delgado contends that the statements he made to Santiago Garcia, a child protective
services investigator, were obtained without proper Miranda warnings while he was in jail.
Delgado contends that Garcia was acting in a law enforcement capacity when he interviewed him
because he was gathering information as to whether Delgado sexually assaulted a potential third
victim. Specifically, Delgado sought to exclude his statement admitting to sexually abusing
M.H., his niece, and M.D., one of his daughters, while denying sexually assaulting his other
daughter.
“We need not determine . . . whether [Delgado’s] statements were the product of
custodial interrogation because the statements were introduced during the State’s rebuttal and
were introduced for purposes of impeachment.” Lykins v. State, 784 S.W.2d 32, 35-36 (Tex.
Crim. App. 1989). As the United States Supreme Court has stated: “The shield provided by
Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk
of confrontation with prior inconsistent utterances.” Harris v. New York, 401 U.S. 222, 226
(1971). Because Garcia’s testimony was introduced as rebuttal evidence to impeach Delgado’s
testimony denying the sexual abuse allegations, Delgado’s complaint is overruled. See Lykins,
784 S.W.2d at 35-36.
B. Forensic Interviewer
In his sixth issue, Delgado contends the trial court erred in failing to conduct an
admissibility determination of the “relevancy and reliability” of the expert testimony of Lisa
Holcomb, a forensic interviewer who testified that an abused child can still love her abuser. In
arguing the issue, however, Delgado refers to Holcomb’s testimony “of her observations of
behavioral symptoms associated with abuse [sic] children,” and her testimony “that [M.D.]
expressed behavior that was common to children who had been sexually abused.” The State
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contends error was not preserved with regard to some of Delgado’s appellate contentions.
Therefore, before addressing the merits of this issue, we will review the objections made to the
admissibility of Holcomb’s testimony at trial.
Holcomb testified that she had been employed with the Children’s Assessment Center for
over 15 years. After graduating with a bachelor of science in behavioral science psychology,
Holcomb was employed with child protective services for three years investigating all realms of
child abuse including taking intake reports and providing on-going services to families. While
employed by child protective services, Holcomb was trained as a forensic interviewer which was
her position at Children’s Assessment Center. Holcomb testified that she interviews children
who have been the victims of sexual abuse and questions and documents their responses
regarding the abuse they suffer. Holcomb estimated that she had interviewed over 11,000
children and was qualified in the State of Texas as an expert in the area of child sexual abuse.
Holcomb testified that she was the only other person in the room while interviewing M.D.
Holcomb testified that parents are not allowed in the interview so the child does not feel undue
influence or pressure. Holcomb testified that children are sometimes reluctant to talk in front of
a parent out of fear of retaliation, of not being believed, or of not wanting to hurt the parent
because they may still love the parent and not want the parent to be distraught or sad. Holcomb
described how different children may respond to being interviewed. Holcomb testified that M.D.
was very reluctant to speak and somewhat catatonic or frozen during the interview which can be
consistent with a child who has been sexually abused. In response to the dynamics of sexual
abuse, Holcomb testified that it is very uncommon for children to disclose abuse right away due
to the shame involved or fear of what could happen to their family or siblings. Holcomb further
testified that a child disclosing abuse discloses only a “little bit” of information at a time.
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Holcomb again testified that children are afraid to make an outcry right away after which the
following exchange occurred:
Q. And the dynamics of a child who’s abused by somebody who is a
family member, say a parent, is it possible for that child to still love that parent?
A. Yes.
Q. And can you describe for the jury a little bit about that dynamic?
[Delgado’s attorney]: Your Honor, I’m going to object to this line of
testimony. We’re getting into extra testimony that this witness hasn’t been
qualified to discuss.
In a hearing outside the jury’s presence, Holcomb stated that she had testified on
children’s demeanors and the dynamics of sexual abuse and delayed disclosure on numerous
occasions. With regard to her expertise on whether a child abused by a parent could still love the
parent, Holcomb testified that she had several experiences where children have told her that they
still love the abuser. Holcomb stated, “That’s from my experiences in dealing with the children
themselves and them not wanting anything to happen to the perpetrator.” At the conclusion of
the hearing outside the jury’s presence, Delgado’s attorney renewed his objection that Howard
“is not qualified as an expert in that area.” After overruling the objection, the following
exchange occurred in the jury’s presence:
Q. All right. Now, before we took the break, I was asking you
specifically about children who have been abused by a parent, and whether or not,
based on your training and experience is it common for a child to still love that
abuser?
[Delgado’s attorney]: I’m going to object to relevance, Your Honor.
The Court: Overruled.
The Witness: Yes.
Q. And is it common or uncommon for a child to still want to spend
time with the person, in fact, who’s been abusing them?
A. Actually, it’s common.
With regard to Holcomb’s testimony about “observations of behavioral symptoms
associated with abuse [sic] children,” and “that [M.D.] expressed behavior that was common to
children who had been sexually abused,” no specific objection was made when Holcomb was
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testifying regarding these behavioral symptoms. With regard to Holcomb’s testimony that an
abused child can still love her abuser, Holcomb’s testimony was admitted without objection
when the question was first asked. Delgado raised an objection to the testimony only after
Holcomb was asked to elaborate on the dynamics. “An error in the admission of evidence is
cured where the same evidence comes in elsewhere without objection.” Valle v. State, 109
S.W.3d 500, 509 (Tex. Crim. App. 2003). Accordingly, because no objection was made when
Holcomb first testified that a child can still love her abuser, the admission of her testimony a
second time is not reversible error. 7
Moreover, three separate inquiries govern the admissibility of expert testimony: (1)
qualification; (2) reliability; and (3) relevance. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim.
App. 2006). The objection made by Delgado that resulted in the hearing outside the jury’s
presence was based on Holcomb’s qualifications. Delgado made the same objection to
Holcomb’s qualifications at the conclusion of the hearing outside the presence of the jury. On
appeal, however, Delgado also appears to be challenging the reliability of the testimony.
Although Delgado subsequently objected on the basis of relevance, Delgado never objected on
the basis of reliability. Accordingly, even if we were to consider whether the admission of
Holcomb’s testimony was erroneous in response to the second question despite no objection
being made after the question was first asked and answered, we could only consider the merits of
the issue pertaining to Delgado’s qualifications because no objection was made on the basis of
reliability at trial. See TEX. R. APP. P. 33.1(a); Pena, 285 S.W.3d at 463-64.
With regard to qualifications, qualification is a two-step inquiry. Vela v. State, 209
S.W.3d at 131. “A witness must first have a sufficient background in a particular field, but a trial
7
Moreover, we note that testimony that a child can still care for her abuser also was admitted through the testimony
of the forensic interviewer who interviewed M.H.
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judge must then determine whether the background ‘goes to the very matter on which [the
witness] is to give an opinion.’” Id. (quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex.
1996)). The expert must have knowledge, skill, experience, training, or education regarding the
specific issue before the court to qualify the expert to give an opinion on the particular subject.
Id. at 132.
In this case, Holcomb had been engaged in conducting forensic interviews involving
sexual abuse allegations for over fifteen years. She had a bachelor of science degree in
behavioral science psychology and had conducted over 11,000 interviews. In the course of the
interviews, she had experience in investigating the ongoing relationship between the child and
his or her abuser and testified that children told her during their interviews that they still loved
the abuser. Therefore, even if we were to consider whether admitting Holcomb’s testimony was
error, we would hold that Holcomb’s testimony provided a sufficient basis for the trial court to
determine she was qualified to testify, and the trial court did not abuse its discretion in admitting
her testimony. See Vela, 209 S.W.3d 132-33; cf. Robinson v. State, No. 06-99-00165-CR, 2000
WL 1532236, at *8 (Tex. App.—Texarkana Oct. 18, 2000, no pet.) (overruling contention that
attorney rendered ineffective assistance by failing to object to testimony by child protective
services supervisor with master’s degree in counseling and guidance that sexually abused
children will continue to love their abuser because “State would have undoubtedly been able to
qualify him as an expert” if objection was made) (not designated for publication).
MILITARY UNIFORM
Delgado contends the trial court abused its discretion in denying his motion to wear his
military uniform during trial. In support of this contention, Delgado cites a case relating to
whether a defendant’s right to a fair trial would be violated if required to appear at trial in prison
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clothes. As the State notes in its brief, however, Delgado admitted that his military uniform was
not the only clothing he had other than his jail uniform. At the hearing on Delgado’s motion, the
State argued that Delgado’s military uniform would be prejudicial to the State as an effort to
bolster Delgado’s credibility. The trial court granted Delgado the right to wear civilian clothes
but not his military uniform.
Delgado cites no authority for the proposition that a trial court abuses its discretion in
denying a defendant’s request to appear at trial in military uniform. We hold that the trial court
did not abuse its discretion. “To hold otherwise would require us to entertain the notion that the
Due Process Clause . . . provide[s] a defendant the right to appear before the jury in clothes of his
choice, and perhaps of a particular style.” Johnson v. State, 838 S.W.2d 906, 909 (Tex. App.—
Corpus Christi 1992, pet. ref’d); see also Lantrip v. State, 336 S.W.3d 343, 351-52 (Tex. App.—
Texarkana 2011, no pet.) (holding trial court did not abuse its discretion in not allowing
defendant to wear camouflage clothing).
CONCLUSION
The trial court’s judgment is affirmed.
Phylis J. Speedlin, Justice
DO NOT PUBLISH
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