612 S.W.3d 359
Tex. App.2019Background
- Victim C.S. alleged continuous sexual abuse by her father, Steven Schmidt, beginning around age six and ending after his 2011 traumatic brain injury; allegations included digital contact, forced manual and oral sex, and other sexual acts.
- Family history: volatile parental relationship, physical/verbal abuse of children, move from Texas to Alabama in 2014, and C.S. began therapy after the move.
- C.S. attended weekly therapy at Auburn University’s Glanton House with Allison Mangone, an unlicensed graduate therapist supervised by licensed doctoral clinicians; C.S. made an outcry to Mangone in session two and later provided a detailed account in session fifteen.
- Mangone reported the allegation to child-protective services; Houston police later interviewed Mangone and C.S.; Mangone maintained therapy notes and progress records admitted at trial.
- Schmidt was first tried with a hung jury; on retrial a jury convicted him of continuous sexual assault of a child and the court sentenced him to 45 years’ imprisonment.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Schmidt) | Held |
|---|---|---|---|
| 1. Proper outcry witness under art. 38.072 | Mangone was the first adult over 18 to whom C.S. made an outcry and thus is the proper outcry witness | C.S. first made an outcry to her mother, so mother should be designated as the article 38.072 outcry witness | Court: Error not preserved—defense had opportunity to question mother at the outcry hearing, did not object to designation; issue overruled |
| 2. Qualification of Mangone as expert under Rule 702 | Mangone qualified by education, training, supervised clinical experience to offer opinions about therapy, anxiety, depression | Mangone was unlicensed and could not lawfully diagnose or give expert mental-health opinions | Court: Any objection waived for failure to segregate; even if error, harmless because Mangone mainly testified to lay observations and C.S. testified to same matters; issue overruled |
| 3. Admission of Mangone’s therapy records (business records/hearsay) | Records fit the business-records exception and were reliable | Records contained unreliable or inadmissible "hearsay within hearsay" and paraphrases; thus not admissible | Court: "Hearsay within hearsay" objection not raised at trial and objection lacked segregation of inadmissible parts; issue waived and overruled |
| 4. Admission of extraneous-offense evidence (physical abuse of brother) | Evidence of physical abuse of brother showed C.S. feared appellant and explained delayed outcry; admissible for relevance | Evidence was improper character/other-acts evidence and should have been excluded or limited | Court: Objection untimely as to brother’s testimony and similar evidence was admitted without objection through C.S. and mother; harmless or not preserved; issue overruled |
| 5. Cumulative error | Multiple erroneous evidentiary rulings cumulatively deprived Schmidt of a fair trial | Same | Court: No preserved reversible errors; cumulative-error doctrine inapplicable; issue overruled |
Key Cases Cited
- Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) (outcry must be more than a general allusion to abuse)
- Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) (definition of outcry witness under article 38.072)
- Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002) (objecting party must segregate inadmissible portions of an exhibit to preserve error)
- Sonnier v. State, 913 S.W.2d 511 (Tex. Crim. App. 1995) (failure to segregate admissible and inadmissible evidence waives complaint)
- Rodgers v. State, 205 S.W.3d 525 (Tex. Crim. App. 2006) (trial court has broad discretion to qualify experts; factors to assess abuse of discretion)
- Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006) (appellate courts rarely overturn trial court’s expert-qualification decisions)
- Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) (admission of inadmissible evidence may be harmless when substantially similar evidence was admitted without objection)
- Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991) (error in evidence can be harmless if substantially similar evidence admitted elsewhere)
- Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) (objections must be timely to preserve appellate review)
- Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008) (objection after a question is asked and answered is untimely absent justification)
- King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (nonconstitutional error is reversible only if it had substantial and injurious effect)
- Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) (reviewing court will not reverse if error likely had slight effect)
- Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999) (cumulative-error doctrine requires preserved errors and that errors be actual errors)
- Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App. 2016) (no cumulative error where individual complaints are not preserved or are not errors)