*1 PD-0888-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/21/2015 3:06:08 PM Accepted 7/22/2015 4:42:57 PM ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

LEONARD CHARLES HICKS Appellant

vs. THE STATE TEXAS

Appellee Original conviction in 262ND Judicial District Court Harris County, Texas

Cause No. 1373854 Appealed From Court of Appeals No. 14-14-00263-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW ORAL ARGUMENT REQUESTED MICHAEL P. FOSHER.

Attorney at Law Lyric Center Louisiana Ste. Houston, Texas 002-1636 (713) 22r-r8r0

T.B.N.:07280300 ATTORNEY FOR APPELLANT *2 IDENTITY OF PARTIES AI\D COI'NSEL Pursuant to Tex. R.App.P. 38.1(a), (vernon pamph. 2014),the following persons are interosted parties:

Presiding Judge 4d Trial

The Honorable Judge Denise Bradley 262nd Judicial Dishict Court

l20l Franklin Houston, Tx77002 Attorneys State Erin Epley

Assistant D.A.

l20l Franklin Houston Tx77002 Attorney for Defonse Mr. Kenneth McCoy Attorney atLaw

P O box 53347 Houston, Tx77052

(281) 686-4389 Mr. Michael P. Fosher (on appeal) Attomey atLaw Lyric Centern Louisiana, STE. Houston, Tx770A2-K36

(7r3) 22r-r8r0

TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL. TABLE OF CONTENTS . . ii INDEX OF AUTHORITIES iii PETITION FOR DISCRETIONARY REVIEW

STATEMENT OF THE NATURE OF THE CASE . .

STATEMENT OF PROCEDURAL HISTORY STATEMENT REGARDING ORAL ARGUMENTS

[1] APPELLANT'S GROUNDS FOR REVIEW

[1] APPELLANT'S FIRST GROUND FOR REVIEW

DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL WHEN THE STATE'S WITNESS INTEzuECTED THE PRIOR SEXUAL CONDUCT OF THE COMPLAINANT?

[1] APPELLANT'S SECOND GROUND FOR REVIEW

DID THE COURT APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN ALLOWING JANET MARIE GREEN TO TESTIFY OVER OBJECTION BY GIVING AN EXPERT OPINION WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT WITNESS? . .2 PRAYER FOR RELIEF .

CERTIFICATE OF SERVICE .6

INDEX AUTHORITIES Pinson v. state, STATE CASES

778 S.W. 2d 91 (Crim.App. 1939). 4 Draheim v. State,

916 S.W.2d 593 (Tex. App. - San Antonio 1996). .4 Miles v. State,

6l S.W.3d 682 (Tex. App. - Houston [t.tDis.] 2001). . 4 Vela v. State,

209 S.W.3d 128 (fex. Crim.App. 2006). . 5 Holloway v. State,

613 S.W. 2d 497 (Tex. Crim. App. l98l

5 Rodgers v. State,

205 S.W. 3d 525 (Tex. Crim. App. 2006). .s Mozon v. State,

991 S.W.2d 841 (Tex. Crim. App. 1999). 6 STATE STATUTES Tex. R. App. P. 38.1(a)(Vernon Pamph.2014). i Rule 68 Texas Rules of Appellate procedure . . I Tex. R. App. P. 68.1(a)(Vernon Pamph. 2015). I Tex. R. App.P.Ann. 66.3(a), (c) & (f) (Vernon pamph. 2015). . 2 Tex. Rules Criminal Evidence 412 (b). . 3 Tex. Rules Evidence7\2. . 5 Tex. App. P.43.2, sec. Vernon's pamph. . 6 Tex. R. App. P. a3.2(a) Vernon Pamph. 2014 . .6 Tex. R. P. 69.1 (Vernon Pamph. 2015). .

Texas Rule of Appellate Procedure 9.4 (i) (3).

.7 lll

PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

Comes now, LEONARD CHARLES HICKS, the Appellant, who files his petitioner for discretionary review pursuant to Rule of the Texas Rules of Appellate Procedure requesting Court to review thereafter reverse the opinion issued by the Fourteenth Court of Appeals in Cause Number l4-14-00263-CR. Leonard Charles Hicks v. State. and would show follows:

STATEMENT OF THE NATURE OF THE CASE This appeal lies from Appellant's conviction in The State Texas vs LEONARD CHARLES HICKS, Cause No. 1373854 Aggravated Sexual Assault Child, in the 262ndJudicial District Court, Hanis County, Texas. On February 28,2014, Appellant pled not guilty charge. A jury trial held, the Appellant was found guilty of Aggravated Sexual Assault Child and sentenced years the Texas Department of Criminal Justice by the Jury.

Appellant gave written notice appeal on March 5,2014, and Counsel was appointed on appeal. A Motion for New Trial filed ovemrled by operation law.

This Court has jurisdiction pursuant to Tex. R. P. 68.I(a)(Vernon Pamph. 2015). STATE OF PROCEDURAL HISTORY Court of Appeals affirmed appellant's conviction June 30,2015. STATEMENT REGARDING ORAL ARGUMENTS Appellant requests oral argument.

APPELLANT'S GROUNDS FOR REVIEW APPELLANT'S FIRST GROUND FOR REVIEW DID THE COURT APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL WHEN THE STATE' S WITNES S INTEzuECTED THE

PzuOR SEXUAL CONDUCT OF THE COMPLAINANT.

APPELLANT'S SECOND GROUND FOR REVIEW DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN ALLOWING JANET MARIE GREEN TO TESTIFY OVER OBJECTION BY GIVING AN EXPERT OPINION WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT WITNESS.

Reasons For Granting This Petition This Court should grant this petition on the grounds that: l) the Justices of Court of Appeals have disagreed material question law; 2) Court of Appeals has decided an important question state or federal law way that conflicts with applicable decisions the Court of Criminal Appeals or the Supreme Court of United States and 3) the Court of Appeals has so far departed accepted and usual course ofjudicial proceedings to call lbr an exercise ofthe Court of Criminal Appeals' power supervision. Tex. R. App. P. Ann. 66.3(a), (c) & (D (Vemon Pamph.2015).

APPELLANT'S FIRST GROUND FOR REVIEW (RE-STATED) DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TzuAL COURT ERRED IN NOT GRANTING A MISTzuAL WHEN THE STATE'S WITNESS INTERJECTED THE PRIOR SEXUAL CONDUCT THE COMPLAINANT.

At one point during Jeannette Leedy was asked if complainant's regression was tied to anything specific she answered "the last time I remember was when she saw her little brother, she very happy see little boy, but after she went home and she lived with another sibling immediately they became so sexually between two them it was almost impossible to dismount them one from other." R.R. IV-56).

Appellant's objection hearsay was ultimately sustained and the jury instructed to disregard the statement and motion mistrial was denied. The Judge then instructed prosecutor

to inquire as to opinions only not as to stories or credible accounts of what Ms. Reedy had heard (R.R. IV-57). Appellant's request to take witness on voir dire not granted.

Even though the basis of the appellant's objection as to hearsay was sustained the unsolicited prejudice of this statement could not be ignored by jury. It could only inflame them against appellant and an instruction to disregard would not have cured the harm. In cases where the defense attempts to introduce evidence of victim's prior sexual conduct, the defense must go through a number steps before such evidence would be presented a jury Tex. Rules of Criminal Evidence 412 (b). this instance case the testimony prior sexual conduct the complainant was introduced State for only conceivable purpose of inflaming jury asking them to deduce that her sexual conduct other siblings due her sexual conduct with appellant. This unfair statement was relevant any contested issue case other than produce unfair prejudice against appellant it could only be construed inflame the minds thejury and appellant's request mistrial should have been granted. Pinson v. State 778 S.W. 2d 91 (Crim. App. 1989).

Draheim v. State 916 S.W.2d (Tex. App. - San Antonio 1996). Miles v. Sltate S.W.3d (Tex. - Houston [1" Dis.] 2001).

Nevertheless, the Court Appeals affirmed Appellant's conviction this ground. Opinion at Page 10.

APPELLANT'S SECOND GROUND FOR REVIEW (RE.STATED) DID THE COURT APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN ALLOWING JANET MARIE GREEN TO TESTIFY OVER OBJECTION BY GIVING AN EXPERT OPINION WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT WITNI]SS.

At one point Janet Green testified was follows: Do you think Complainant is generally disturbed little girl or Question: there is just something inherently wrong her? *8 No, I don't.

Answer: Judge, I am going to object to that. She's not been Mr. McCoy: qualified to make a medical diagnosis. OK. You can make a legal objection if you'd like.

The Court: Mr. McCoy: Judge, I am going object that. This witness has been qualified as an expert. I'll allow answer that question in form of her opinion.

The Court: Question (by In your opinion is there something just inherently wrong with

Ms. Epley): Complainant? No. (R.R.III-49,50)

Answer: As Ms. Green's testimony that there was nothing inherently wrong with Complainant, appellant's objection notified the Court that this witness was not qualified to give an expert opinion on an ultimate issue in case. fact that witness might possess knowledge or skill not possessed by other people generally does not in itself mean such expertise would assist the trier of fact regarding an issue before the Court Velav. State, 209 S.W.3d 128 (Iex. Crim App 2006). At this juncture of trial Court required to determine the qualifications of Ms. Green as an expert witness. Tex.RulesofEvidenceT02. Accordinglyitmustbeshownthatthewitnesspossessesspecial knowledge the specific matter about which his or her experience is being sought. Also expert must demonstrate that he or she possesses knowledge that assists trier of fact in understanding the evidence or determining fact in issue. Holloway v. State .61 3 S.W. 2d 497 (Tex. Crim. I 98 1).

Rodgers v. State,205 S.W. 3d 525 (Tex. Crim. App. 2006) states there are three criteria determining whether court abused its discretion evaluating the witnesses' qualifications an expert. l. Is field of expertise complex? How conclusive is the expert's opinion?

2. How central is the area expertise resolution of lawsuit? J. *9 this instance case, none these criteria were investigated. The court in allowing this

witness make a conclusive finding an ultimate issue in case, created unfair prejudice to appellant since jury would have given much weight to to witness' statement that there was nothing wrong complainant. The trial court abused its discretion not looking into qualifications of Ms. Green before allowing give an expert opinion. The Court of Appeals erred not finding that the probative value this testimony did outweigh the damages unfair prejudice. Her testimony should have been stricken from record. Miles, supro, Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999).

Nevertheless, the Court Appeals affrrmed Appellant's conviction on this ground. Opinion aIPage 12.

This court should reverse appellant's conviction and order new Tex. App. P. 43.2, sec. Vernon's Pamph. 2014; Tex. R. App.P. a3.2(a) Vernon Pamph. 2014. This Court should grant appellant's petition for discretionary review on these grounds and order full brief merits. Tex. R. P. 69.1 (Vernon Pamph. 2015).

PRAY FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable Court consider grounds review raised herein, to grant this petition for discretionary review, and order full complete hearing on the merits briefs. Respectfully submitted, MICHAEL P. FOSHER ATTORNEY AT LAW Lyric Center *10 Louisian4 Suite 1200 Houston, Texas 77002 713-221-1810

TBN

ATTORNEY FOR APPELLANT CERTIFICATE COMPLIAI\CE I hereby certiff that pursuant Texas Rule of Appellate Procedure 9.4 (i) (3), the foregoing Appeal contains 2,023 words.

Inln

MICHAEL P. FOSHER

CERTIFICATE OF' SERVICE This will certiff copy foregoing motion was served upon Alan Curry, curry_alan@dao.hptx.net, District Attomey Harris County, Appellant Division, Franklin, Houston, Texas 77002, facsimile no.713-755-5809 at time filing per local rule.

MICHAEL P. FOSHER

Aflirmed Memorandum Opinion liled June 30,2015.

In The lffsurttentll' (fi.surt uf App ealx NO. 14-14-00263-CR

LEONARD CIIARLES HICKS, Appellant V.

THE STATE TEXAS, Appellee On Appeal the 262nd District Court Harris County, Texas

Trial Court Cause No. MEMORANDUM OPINION Appellant, Leonard Charles Hicks, appeals his conviction for aggravated sexual assault child. three issues, he contends (1) evidence is insufficient support conviction, (2) trial court erred by denying appellant's motion mistrial after a witness interjected improper testimony, (3) court erred allowing alay wibress provide an expert opinion. We affirm.

I. BACKGROUND female complainant, who was five-years-old at time trial, is appellant's daughter. In January 2012, when complainant was three-years-old, she began living with two adults, Janet Green and Pamela Richardson. These women did know complainant or her family but learned her situation a mutual acquaintance. They agreed temporarily care complainant because she and her siblings were being removed from their parents' home and all the siblings had been placed elsewhere. Complainant's placement in home was subsequently extended through actions relevant agencies. fall 2012, her younger sister was also placed there. At time of trial (over two years after complainant flrst arrived), both children were still living in the home.

According the women's collective testimony, when complainant arrived, she was very intelligent and talkative but displayed inappropriate behavior and made statements that caused them concern. For instance, complainant would put "a little tutu skirt" and high-heel shoes and dance like "somebody a strip club." She 'play[ed] herself' lot a manner that was more than just a curious three-year-old touching her genitals. She "masturbat[ed]" using toys that were hard objects placed stuffed toys between her legs. Once, while bathing, she aggressively moved tubular-shaped toy back forth between her legs, toward her genitals. When asked how she learned that behavior, she replied, "my daddy." Additionally, she afraid men, the police, going to jail, and being shot gun. She "always" talked about "terrible things" happened at home and said she would rather kill herself than be killed her parents.

Richardson, who designated as the outcry witress, more specifically testified that complainant said (l) father would "stick" his finger in her "to-to,', term she used described her vaginal area, which caused bleeding because his

fingernails were long, (2) her father would snatch her off toilet while he was naked, put her on his lap, and "go up and down" with her, and (3) when her parents found complainant while playing hide-and-seek, they would "play in my to-to" and make her brother (who was two years older) "dig" in her "to-to."

Shortly after complainant's arrival in the home, Green contacted Children's Protective Services ("CPS"), which referred child Children's Assessment Center ("the Center"). A forensic interviewer at Center interviewed complainant March 2012, but she did not reveal any abuse, no charges resulted, at that time.

Meanwhile, Green also took complainant pediatrician. That doctor did testi$r at trial, but her records were admitted. According those records, Green reported complainant was afraid men, she was caught enacting a sexual act with doll, she disclosed that her mother made complainant's brother 'play with her 'tutie' (her word for vagina)," an6l child repeated the same information doctor. pediatrician recommended that complainant continue with the CPS assessment, which was ongoing atthat time.

After the CPS investigation was closed, complainant's behavior continued at home, and the women placed her therapy. The therapist testified that, at outset of their sessions, complainant would cower near men was depressed and anxious. The therapist did not relay any express statements made complainant but testified complainant eventually spoke about "the things that occurred" with her parents and consistently gave same version. A psychiatrist treated complainant along therapist. Complainant diagnosed various unrelated conditions, such Attention Deficit Hlperactivity Disorder, but also Post Traumatic Stress Disorder, which therapist explained based on complainant's life with parents. *14 September 2012, complainant's teacher contacted Green because an

incident at school. When another child wanted to undress some dolls, complainant "th.rew a fit" and insisted, "don't do that because she's going to get hurt like I did by *y daddy." The teacher tried calm complainant, but she repeated doll would get hurt "like my dad hurt me" if her clothes were removed. This report prompted Green again contact CPS, and child was referred Center.

Complainant then met with same forensic interviewer, who testified that this time the child made "disclosures." The interviewer was precluded at trial from revealing those statements but testified the child placed her finger vagina an anatomically correct doll and twisted finger. The interviewer also explained that often child will open up during a first interview but does later after feeling more comfortable due family support or having attended therapy.

Complainant also examined by physician at Center. The physician's testimony, and portions medical records, reflected the following exchange: Complainant told the physician, "my daddy touched my ear and my back, my behind." physician asked, "what did he do your behind?" Complainant responded, "he rubbed my front. He rubbed with my front. When he trying to play my front his finger, I keep watching cartoons and he kept -- I kept hitting him away."

Additionally, those medical records reflected following history, as provided referring adults: (l) complainant exhibited "sexualized behaviors"; (2) she had disclosed that appellant "put his fingers in [her] vagina"; (3) "there had been allegations against dad since lthe caregiver] first received child." The records include cofirment physician complainant "gives clear [history of] fondling of genitals by father."

This second assessment resulted in a CPS disposition of "reason to believe." police arrested appellant aggravated sexual assault of child. Complainant testified at that appellant twice "digged in my to-to." Further, brother testified that shortly before the family separated, he saw appellant touch complainant's "middle part," the term the brother used to describe complainant's genitals, and appellant made the brother hit complainant in her "private area."

A j"w convicted appellant of the offense. After finding two enhancement paragraphs were "true," the j".y assessed punishment at sixty-five years' confinement.

II. SUTTICIENCY oF THE EvrorNcn his first issue, appellant contends the evidence is insuffrcient to support his conviction. When reviewing sufficiency of evidence, we view all evidence in light most favorable verdict and determine, based evidence and any reasonable inferences therefrom, whether any rational fact finder could have found elements of offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. 2011). This standard gives fulI play responsibility trier of fact fairly resolve conflicts the testimony, weigh the evidence, and draw reasonable inferences basic facts ultimate facts. Id. Circumstantial evidence is as probative as direct evidence establishing guilt.

Hooper v. State,2l4 S.W.3d 9, (Tex. Crim. App. 2007). Each fact need not point directly independently guilt, long as cumulative force all incriminating circumstances is sufficient to support the conviction. ,Id

A person commits aggravated sexual assault child if he intentionally or knowingly causes penetration sexual organ child younger than age fourteen aty means. Tex. Penal Code Atttt. $ 22.021(a)(lXBXi), (2XB) (West,

Westlaw through R.S.). this case, jury charged that appellant committed the offense if he intentionally or knowingly penetrated complainant's sexual organ with appellant's finger. State presented direct evidence appellant peneffated complainant's

vagina his finger: (1) complainant's testimony that appellant twice "digged in my to-to," which referred her vaginal area; and (2) complainant's outcry to Richardson that appellant would "stick" his finger in her'to-to." Either testimony is alone sufficient support the conviction. See Tex. Code Crim. Proc. Ann. art.

38.07(a) (West, Westlaw through 2015 R.S.) (providing conviction for sexual assault child is "supportable on the uncorroborated testimony victim . . .

. "); Rodrigtez v. State, 819 S.W.2d 871,873 (Tex. Crim. App. 1991) (recognizing outcry testimony alone can be legally sufficient evidence support a conviction sexual assault child); see also Bargas v. State,252 S.W.3d 876,888-89 (Tex. App.-Houston t14th Dist.l 2008, no pet.) (holding child's testimony regarding abuse alone sufficient support defendant's conviction for aggravated sexual assault despite child's use "unsophisticated terminolo Ey"); Jensen v. State,66 S.W.3d 528, (Tex. App.-Houston U4th Disr.l 2002, pet.

refd) (holding child's outcry statement was alone sufficient to support defendant's conviction for aggravated sexual assault).

Nonetheless, following evidence, although direct regarding requisite penetration, supported the j,rry's finding, when combined the direct evidence: (1) complainant's sexually suggestive behavior; (2) complainant's fearful demeanor, including a fear men; (3) complainant's specific remarks to caregivers or professionals generally indicating abuse appellant: she learned to move tubular-shaped toys back forth toward her genitals from "my daddy"; he made "go up down" on his lap while he was naked; an undressed doll

might get "hurt" like appellant "hurt" complainant; her parents "play" in her "to- to" during hide-and-seek, and appellant rubbed and nied to play with complainant's "front" with his finger; (a) fact that complainant generally spoke to her therapist about "things that occurred" and diagnosed with Post Traumatic Stress Disorder having lived with her parents; (5) the fact that complainant generally made "disclosures" to forensic interviewer (at their second meeting); (6) complainant's actions during that interview placing her finger the vagina doll and twisting finger; (7) the brother observing appellant "touch" complainant's genitals; (8) appellant forcing the brother to "hit" complainant's genitals or place his finger her "to-to"; and (9) CPS disposition "reason to believe."

Appellant proffers multiple reasons that evidence is purportedly insufficient to support his conviction.

First, appellant cites several items evidence attack the credibility of witnesses and whether child's statements, behavior, and testimony indicated any sexual assault occurred:

Complainant was diagnosed several psychological disorders unrelated any sexual abuse, and her therapist acknowledged she had difficulty adapting her new home.

Complainant gave conflicting testimony whether any abuse occurred: She originally testified no one had touched her "to-to." The prosecutor then requested a break and spoke complainant. After break, complainant testified the prosecutor did not tell her what say but only she should tell truth they would talk about her father. She then testified appellant "digged in my to-to."

Complainant's teacher acknowledged the child was bossy thus it not unusual insist another child refrain from removing doll's clothes.

o The CPS investigator who ultimately reached a disposition of "reason to believe" did not personally interview complainani or investigating officer but gathered her information from observing the forensic interview. o Green originally testified complainant and her brother had seen each other only once since complainant began living in GreerVRichardson home; but, after brother recounted two visits, Green acknowledged she had forgotten another visit. I

All of these points are merely matters on which we defer to jury its role to judge credibility of witresses, weigh certain factors, choose whether to believe some or all of a witress's testimony. See Gear,340 S.W.3d at 746; Sharp v. State,707 S.w.zd 617, (Tex. Crim. 1996) (recognizing jury may choose to believe some, while rejecting other portions, witness's testimony). The jury was free resolve those issues favor believing the State's witnesses and determining that complainant's testimony, statements, and behavior supported a finding that appellant committed offense. See Gear,340 S.W.3d at 46; Sharp, 707 S.W .2d at 614.

Next, appellant relies the fact that physician who examined complainant at the Center did not find any physical signs abuse. However, that fact does render the evidence insufFrcient; physician also explained that it is common victim sexual abuse have normal physical findings because injuries heal quickly and the vagina is very elastic.

Finally, appellant cites the brother's testimony that his mother's boyfriend, referred "Daddy Phillip," one who touched complainant's genitals.

However, the brother later clarified "Daddy Phillip" and appellant are the same person.

' State proffered testimony regarding the limited number visits prove children lacked an opportunity concoct story, and when Green remembered both visits. she clear they occurred after complainant's outcry.

In summary, evidence is sufficient to support appellant's conviction for aggravated sexual assault a child. We overnrle his first issue.

III. Drnnr, oF MorroN FoR MrsrRru, his second issue, appellant complains that the trial court denied appellant's request for a mistrial after a witress interjected improper testimony.

On direct examination, complainant's therapist testified that she becomes concerned when she detects complainant is regressing. The State asked if the regression is tied to anything specific, and the therapist responded:

The last time I remember was when she saw liule brother, she was very happy to see little boy, but after she went home and she lives another sibling and immediately they became so sexually [sic] between two of them it was almost impossible to dismount them one other.

Appellant's counsel asked to take witness on voir dire, asserting the testimony was likely hearsay because it involved activity in home which the therapist would lack personal knowledge. Without requiring voir dire, the trial court's sustained hearsay objection and instructed the jury disregard the response. trial court then denied appellant's request for a mistrial.

We review a trial court's denial a motion mistrial for abuse of discretion. Simpson v. State, S.W.3d 262, (Tex. Crim. 2003).

Mistrial is appropriate only for "highly prejudicial" and "incurable" ertors. Id. "It may be used end proceedings when faced error so prejudicial that expenditure further time expense would be wasteful and futile." Id.

Ordinarily, prompt instruction disregard will cure error associated with improper testimony. See id. "Generally, mistrial is only required when improper evidence is clearly calculated inflame minds jury is of such character suggest the impossibility withdrawing the impression

produced the minds the j.rry." Hinojosa v. State,4 S.W.3d 240, (Tex.

Crim. App. 1999). Whether the erroneous admission evidence requires a mistrial is determined by considering the facts and circumstances the case. 1d.

Appellant contends the testimony at issue was introduced by the State solely inflame the jury and it unfairly prejudiced appellant. The record negates appellant's contention regarding State's pu{pose because the State represented it did not expect the witness's response and seemed acknowledge it had yet to establish admissibility of any such testimony. Further, question regarding what type events caused complainant to regress did not indicate the State intended for the wifness describe such a detailed incident that necessarilv based on her personal knowledge.

With respect unfair-prejudice contention, appellant asserts testimony suggested complainant sister behave sexual manner toward each other because they learned this behavior appellant's sexual conduct toward complainant. We disagree that testimony at issue "so prejudicial that expenditure further time expense would be wasteful and futile," see Simpson, 119 S.W.3d at 272, because jury had already heard ample other evidence regarding sexual behavior exhibited by complainant. Moreover, Green had testified that when sister arrived home, she displayed similar behavior.

Accordingly, trial court did not abuse its discretion by denying appellant's motion for mistrial. We ovemrle his second issue.

IV. AImSSION TESTIMOI\IY his third issue, appellant argues court erred allowingafact witness to provide an expert opinion. Appellant cites the following exchange when *21 State examined Green:

Q. Do you think that [complainant] is generally disturbed little girl or there's just something inherently *tong hir?

A. No, I don't.

IAPPELLANT'S COI-TNSEL]: Judge, I'm going to object to that. She's not been qualified to make medical diagnosis.

THE couRT: okay. you can make alegal objection if you'd like.

IAPPELLANT'S COI-]NSELI: Judge, I'm going to object to that. This witness has not been qualified as an expert.

THE COURT: I'11 allow her answer that question in form her opinion. a. [TrG srATE] In your opinion, is there something just inherently wrong [complainant]?

A. No. Appellant contends testimony constituted an expert medical opinion, which Green qualified provide.

A lay witness may testify the form an opinion if it is (a) rationally based witness's perception, and (b) helpful clearly understanding wihress's testimony or determining fact issue. Tex. R. Evid. 701. The wifiress must have personally observed or experienced events about which she testifies. see osbourn v. State,92 s.w.3d 531, 535 (Tex. crim. App. 2002).

Thus, the witness's testimony can include opinions, beliefs, or inferences as long they are drawn own experiences or observation s. Id.; see also Clark v. State,305 S.w.3d 351,357 (Tex. App.-Houston [l4th Dist.] 2010), aff'd,365 S.w.3d 333 (Tex. Crim. 2012) (citing wilson v. State,605 S.w.2 d 294,2g6- (Tex. Crim. App. 1980)). We review court's decision admit evidence abuse discretion. Martinez v. \ture,327 S.w.3d, 727, (Tex.

Crim. App. 2010). The trial court does not abuse its discretion unless its determination lies outside the zone reasonable disagreement. Id.

We conclude trial court did not abuse its discretion by determining Green did not provide an expert medical opinion and was permitted give her opinion as a lay witness. Green did not refer any specific medical conditions instead described complainant's general disposition. trial court acted within its discretion by concluding Green, having cared for complainant in Green's home more than two years, could adequately give alay opinion about whether complainant "generally disturbed" or had "something inherently wrong" her. Moreover, although appellant does dispute whether subpart (b) Rule satisfied, testimony was helpful determining fact at issue-whether, suggested by appellant, complainant contrived story about sexual abuse because she has psychological disorders. See Tex. R. Evid. 701(b).

Because trial court did not err admitting testimony, we ovemrle appellant's third issue.

We affirm court's judgment.

/s/ John Donovan Justice

Panel consists Justices Christopher, Donovan, and Wise. Do Not Publish - Tex. R. P. .2(b).