Case Information

*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 1/20/2015 7:45:03 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-14-00263-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/20/2015 7:45:03 PM CHRISTOPHER PRINE No. 14-14-00263-CR CLERK In the

Court of Appeals

For the Fourteenth District of Texas At Houston



No. 1373854 In the 262 nd Criminal District Court Of Harris County, Texas

 LEONARD CHARLES HICKS Appellant

V. THE STATE OF TEXAS Appellee

 STATE’S APPELLATE BRIEF 

D EVON A NDERSON District Attorney Harris County, Texas B RIDGET H OLLOWAY Assistant District Attorney Harris County, Texas Texas Bar No. 24025227 holloway_bridget@dao.hctx.net E RIN E PLEY

Assistant District Attorney Harris County, Texas Harris County Criminal Justice Center 1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713·755·5826 ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT *2

STATEMENT REGARDING ORAL ARGUMENT Pursuant to T EX . R. A PP . P. 9.4(g) and T EX . R. A PP . P. 39.1, the State requests oral argument only if appellant requests oral argument.

IDENTIFICATION OF THE PARTIES Pursuant to T EX . R. A PP . P. 38.2(a)(1)(A), a complete list of the names of all interested parties is provided below.

Complainant, victim, or aggrieved party:

Minor child

Counsel for the State:

Devon Anderson  District Attorney of Harris County Bridget Holloway  Assistant District Attorney on appeal Erin Epley  Assistant District Attorney at trial Appellant or criminal defendant:

Leonard Charles Hicks

Counsel for Appellant:

Kenneth McCoy  Attorney at trial

Michael P. Fosher —Attorney on appeal

Trial Judge:

Honorable Denise Bradley  Presiding Judge i

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES ................................................................................ i

TABLE OF CONTENTS........................................................................................................... ii

INDEX OF AUTHORITIES ................................................................................................... iii

STATEMENT OF THE CASE ................................................................................................. 1

STATEMENT OF FACTS ........................................................................................................ 1

SUMMARY OF THE ARGUMENT ..................................................................................... 3

REPLY TO APPELLANT’S FIRST ISSUE PRESENTED ................................................ 4

Standard of Review ................................................................................................................ 4

Analysis ..................................................................................................................................... 5

REPLY TO APPELLANT’S SECOND ISSUE PRESENTED ........................................... 8

Analysis ..................................................................................................................................... 9

REPLY TO APPELLANT’S THIRD ISSUE PRESENTED .............................................. 11

Analysis ................................................................................................................................... 12

CONCLUSION ........................................................................................................................ 14

CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ........................ 15

ii

INDEX OF AUTHORITIES

C ASES

Adames v. State,

353 S.W.3d 854 (Tex. Crim. App. 2011)........................................................................... 4 Bartlett v. State,

270 S.W.3d 147 (Tex. Crim. App. 2008) .......................................................................... 4 Campos v. State,

589 S.W.2d 424 (Tex. Crim. App. 1979) ....................................................................... 10 Clayton v. State,

235 S.W.3d 772 (Tex. Crim. App. 2007) .......................................................................... 5 Curry v. State,

30 S.W.3d 394 (Tex. Crim. App. 2000) ........................................................................... 5 Duncan v. State, .

95 S.W.3d 669

(Tex. App. —Houston [1st Dist.] 2002, pet. ref’d) ...................................................... 11 Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781 (1979) ..................................................................................... 4 Jones v. State,

428 S.W.3d 163

(Tex. App. —Houston [1st Dist.] 2014, no pet.) ........................................................... 6 Kemp v. State,

846 S.W.2d 289 (Tex. Crim. App. 1992) ....................................................................... 10 Ladd v. State,

3 S.W.3d 547 (Tex. Crim. App. 1999) ............................................................................ 10 Lancon v. State,

253 S.W.3d 699 (Tex. Crim. App. 2008) ..................................................................... 5, 8 iii

Leday v. State,

983 S.W.2d 713 (Tex. Crim. App. 1998) .......................................................................... 11 Lee v. State,

176 S.W.3d 452

(Tex. App. —Houston [1st Dist.] 2004) ......................................................................... 6 Martines v. State,

371 S.W.3d 232

(Tex. App. —Houston [1st Dist.] 2011, no pet.); ........................................................... 6 Martinez v. State,

178 S.W.3d 806 (Tex. Crim. App. 2005) .......................................................................... 6 Osbourn v. State,

92 S.W.3d 531 (Tex. Crim. App. 2002) .......................................................................... 12 Sharp v. State,

707 S.W.2d 611 (Tex. Crim. App. 1986) ........................................................................... 5 Simpson v. State,

119 S.W.3d 262 (Tex. Crim. App. 2003) ........................................................................ 10 Tear v. State,

74 S.W.3d 555

(Tex. App. —Dallas 2002, pet. ref’d) ........................................................................... 6, 7 Williams v. State,

235 S.W.3d 742 (Tex. Crim. App. 2007) ..................................................................... 5, 7 Wood v. State,

18 S.W.3d 642 (Tex. Crim. App. 2000) ......................................................................... 10 iv

S TATUTES

T EX . C ODE C RIM . P ROC . A NN .

art. 38.07(a) (Vernon Supp. 2014) ..................................................................................... 6 T EX . P ENAL C ODE A NN .

§ 22.021(a)(l)(B)(i) (Vernon Supp. 2014) ................................................................... 5, 6 R ULES

T EX . R. A PP . P. 38.2(a)(1)(A) ..................................................................................................... i

T EX . R. A PP . P. 39.1 ....................................................................................................................... i

T EX . R. A PP . P. 9.4(g) .................................................................................................................. i

v

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE Appellant, Leonard Charles Hicks, was charged by indictment aggravated sexual assault of a child. The charge was enhanced with two prior felony

convictions for delivery of a controlled substance and burglary of a habitation.

(CR at 23). Appellant entered a plea of “not guilty” to the offense. (RRIII at 11). A

jury found appellant guilty as charged and later assessed his punishment at

confinement for 65 years. (RRVI at 22, 46). A written notice of appeal was timely

filed. (CR at 133).

 STATEMENT OF FACTS

Janet Green and her partner, Pamela Richardson, received a phone call in January 2012 to see if they could take in appellant’s three-year-old daughter, the

complainant, who needed a home and someone to care for her. (RRIII at 13-14, 23,

54). The ladies took the complainant in, as well as her three-year-old sister seven

months later. (RRIII at 15). While the complainant was very smart and talkative,

the women noticed behavior that was inappropriate for her age. (RRIII at 15, 18).

For example, the complainant once dressed in a tutu skirt and high heels and

danced “like you would see somebody in a strip club doing.” (RRIII at 18, 55). The

complainant also frequently used hard objects between her legs to masturbate.

(RRIII at 19, 55). When asked where she learned to do that, the complainant said

“daddy.” (RRIII at 58). The complainant’s younger sister also exhibited similar

behavior. (RRIII at 19).

In addition to being afraid of men, the complainant was frightened of the police, afraid of going to jail, and of being shot by a gun. (RRIII at 26). She talked

about killing herself and preferring it instead of being killed by her parents.

(RRIII at 27). The complainant stated she liked that Janet and Pam did not get

mad at her when she was in the bathroom and “snatch her off the toilet and put

[her] on [their] lap and go up and down with [her].” She said her dad, while

naked, would do that with her. (RRIII at 59). She said that one time her mother

put ointment on her “tu-tu” because it bled after her dad stuck his finger in it.

(RRIII at 60). She also mentioned that Hide-and-Go-Seek was a game her family

played at home where she would hide and “they” would play with her “tu-tu”

when they found her. (RRIII at 24, 61). She claimed that her older brother did not

like playing with her “tu-tu” when her mom and dad told him to. (RRIII at 61).

The complainant referred to her female genitalia as her “tu-tu.” (RRIII at 60; RRIV

at 78, 91, 122).

 *9 SUMMARY OF THE ARGUMENT State’s Reply to Appellant’s First Issue:

Because the complainant testified that appellant sexually assaulted her, and because physical evidence is not required in a sexual assault case, the evidence is

sufficient to support appellant’s conviction.

State’s Reply to Appellant’s Second Issue:

Any deduction that the complainant’s sexual conduct was due to appellant was not so prejudicial, in light of other evidence, as to require a mistrial. The trial

court, therefore, did not abuse its discretion by denying the motion for mistrial.

State’s Reply to Appellant’s Third Issue:

Because Janet was not offered as an expert witness at trial, but was a lay witness capable of expressing an opinion on the complainant due to her personal

experience and knowledge, the trial court did not err by admitting her opinion.

 *10 REPLY TO APPELLANT’S FIRST ISSUE PRESENTED In his first issue presented on appeal, appellant argues the evidence is insufficient to support the jury’s verdict. Specifically, appellant complains that the

State failed to meet its burden of proof because of inconsistent evidence and no

physical evidence that the complainant was assaulted. Because the complainant

testified that appellant sexually assaulted her, and because physical evidence is

not required in a sexual assault case, the evidence is sufficient to support

appellant’s conviction.

S TANDARD OF R EVIEW When reviewing the sufficiency of the evidence, the evidence is seen in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Adames v. State, 353

S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only

standard to use when determining sufficiency of evidence). The jurors are the

exclusive judges of the facts and the weight to be given to the testimony. Bartlett v.

State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury, as the sole judge of

credibility, may accept one version of the facts and reject another, and it may reject

any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.

App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App. —Houston [1st

Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve witness even when

witness’s testimony is uncontradicted). This Court may not re-evaluate the

weight and credibility of the evidence or substitute its own judgment for that of

the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Almost complete deference is afforded to the jury’s credibility determinations. See

Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). Any inconsistencies in

the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007) (“When the record supports conflicting inferences, we presume that

the factfinder resolved the conflicts in favor of the prosecution and therefore defer

to that determination.”).

A NALYSIS To establish that appellant committed the offense of aggravated sexual assault of the complainant, as charged in the indictment, the State had to prove

that appellant intentionally or knowingly penetrated the complainant’s sexual

organ with his finger. See T EX . P ENAL C ODE A NN . § 22.021(a)(l)(B)(i) (Vernon

Supp. 2014). A conviction for aggravated sexual assault of a child is “supportable

on the uncorroborated testimony of the victim of the sexual offense.” T EX . C ODE

C RIM . P ROC . A NN . art. 38.07(a) (Vernon Supp. 2014); Martinez v. State, 178 S.W.3d

806, 814 (Tex. Crim. App. 2005) (noting that article 38.07 “deals with the

sufficiency of evidence required to sustain a conviction for” certain sexual

offenses) (emphasis in original). The State has no burden to produce any

corroborating or physical evidence. Martines v. State, 371 S.W.3d 232, 240 (Tex.

App. —Houston [1st Dist.] 2011, no pet.); see also Lee v. State, 176 S.W.3d 452, 458

(Tex. App. —Houston [1st Dist.] 2004) (“The lack of physical or forensic evidence

is a factor for the jury to consider in weighing the evidence.”), aff’d, 206 S.W.3d 620

(Tex. Crim. App. 2006). Likewise, a child victim’s outcry statement alone can be

sufficient to support a sexual assault conviction. See Jones v. State, 428 S.W.3d 163,

169 (Tex. App. —Houston [1st Dist.] 2014, no pet.); Tear v. State, 74 S.W.3d 555, 560

(Tex. App. —Dallas 2002, pet. ref’d).

Here, the complainant identified appellant as her father and testified he “dug in [her] tu-tu” twice while she was at her cousin’s house. (RRIV at 121, 130,

134). The complainant identified her vagina as her “tu-tu.” (RRIV at 122). The

complainant testified to the essential elements of aggravated sexual assault of a

child. See T EX . P ENAL C ODE A NN . § 22.021(a)(1)(B)(i). Her testimony, standing

alone, is sufficient to sustain appellant’s conviction. See T EX . C ODE C RIM . P ROC .

A NN . art. 38.07(a) (Vernon Supp. 2014); Jones , 428 S.W.3d at 169; Martines , 371

S.W.3d at 240; Lee , 176 S.W.3d at 458.

Moreover, the evidence further showed that the complainant made an outcry to Janet that her dad liked to play with her “tu-tu.” (RRIII at 24). And, she

told Pamela that one time he made her “tu-tu” bleed after sticking his long finger

nails in her “tu-tu.” (RRIII at 60). She further told her pediatrician that her dad

rubbed her front with his finger. (RRIV at 32-33). The complainant’s outcry

statement is also sufficient, standing alone, to sustain a sexual assault conviction.

See Jones , 428 S.W.3d at 169; Tear , 74 S.W.3d at 560. Additionally, the

complainant’s brother, appellant’s son, testified he saw his dad touch the

complainant’s “middle part,” also known as “tu-tu.” (RRIII at 78-79).

In arguing that the State failed to present sufficient evidence, appellant points to the lack of physical evidence and the “number of inconsistencies” (not

noted in his argument, just stated as fact). In sexual assault of a child cases, the

State has no burden to present any corroborating or physical evidence of the

abuse. Jones , 428 S.W.3d at 169; Martines , 371 S.W.3d at 240; Lee , 176 S.W.3d at 458.

The 5-year-old complainant, while not forthcoming at first, testified that appellant

committed acts constituting aggravated sexual assault, and her testimony alone is

sufficient to support the conviction. See, e.g., Jones, 428 S.W.3d at 169. Her brother

testified to witnessing the abuse. The jury heard the evidence, credited their

testimony, and found appellant guilty. See Williams, 235 S.W.3d at 750; see also

Lancon, 253 S.W.3d at 705 (stating that the court affords almost complete

deference to jury’s credibility determinations).

Viewing the evidence in the light most favorable to the verdict, sufficient evidence was presented to support appellant's conviction for aggravated sexual

assault of a child. Appellant’s first issue presented on appeal should be overruled.

 REPLY TO APPELLANT’S SECOND ISSUE PRESENTED In his second issue presented on appeal, appellant argues the trial court abused its discretion in denying his request for a mistrial after the jury heard the

following from the complainant’s therapist regarding the complainant’s

“regression:”

[State]: Anything about your experience with [the complainant] lead you to have concerns about her psychological well-being?

[Therapist]: Sometimes, uh-huh.

[State]: How so?

[Therapist]: When I start seeing her kind of regressive, starting to have problems or behaving in certain ways, I get concerned.

[State]: And regressing in what way?

[Therapist]: She may go back to having problems with sleep, ignoring totally what you asked her to do, those kind of things.

[State]: And in the year of seeing her, does her regression, did it seem to be tied to anything in specific?

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

(RRIV at 56). Appellant objected to hearsay, and the State agreed and pointed out

that was not the answer it was expecting. The trial court sustained the objection,

instructed the jury to disregard, and denied appellant’s request for a mistrial.

(RRIV at 57). Any deduction that the complainant’s sexual conduct was due to

appellant was not so prejudicial, in light of other evidence, as to require a mistrial.

The trial court, therefore, did not abuse its discretion by denying the motion for

mistrial.

A NALYSIS Appellant argues on appeal that the testimony of the complainant’s prior sexual conduct was introduced for the sole purpose of inflaming the jury by

“asking them to deduce that [the complainant’s] sexual conduct with other

siblings was due to her sexual conduct with [him].” ^[1] The record, however, shows

that the State had no purpose for the unsolicited hearsay and it was not so

prejudicial as to require a mistrial.

The trial court’s denial of a motion for mistrial is reviewed for an abuse of discretion. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).

Mistrial is appropriate for a narrow class of “highly prejudicial and incurable

errors[,]” and may be granted when the court is “faced with error so prejudicial

that ‘expenditure of further time and expense would be wasteful and futile.’” Id .

(quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). Instructing

the jury to disregard will generally cure error associated with testimony referring

to an extraneous offense. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.

1992); Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979). When, as here,

a trial court instructs a jury to disregard certain testimony, it is presumed that the

jury followed the trial court’s instructions. Ladd v. State, 3 S.W.3d 547, 567 (Tex.

Crim. App. 1999).

Here, the trial court sustained appellant’s objection and immediately instructed the jury to disregard the testimony. In addition, the jury heard

*17 testimony that the complainant frequently masturbated with hard objects and

that appellant made the complainant’s brother play in her vagina. See Leday v. State,

983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Duncan v. State, 95 S.W.3d 669, 672

(Tex. App. —Houston [1st Dist.] 2002, pet. ref’d) (Improper admission of evidence

is not reversible error if the same or similar evidence is admitted without objection

at another point in the trial.). Any deduction that the complainant’s sexual

conduct was due to appellant was not so prejudicial, in light of other evidence, as

to require a mistrial. The trial court, therefore, did not abuse its discretion by

denying the motion for mistrial.

Appellant’s second issue presented on appeal should be overruled.  REPLY TO APPELLANT’S THIRD ISSUE PRESENTED In his third issue presented on appeal, appellant complains the trial court erred in allowing Janet, over objection, to give an “expert opinion” that there was

nothing inherently wrong with the complainant. Because Janet was not offered as

an expert witness at trial, but was a lay witness capable of expressing an opinion

on the complainant due to her personal experience and knowledge, the trial court

did not err by admitting her opinion.

A NALYSIS Generally, “observations which do not require significant expertise to interpret and which are not based on a scientific theory can be admitted as lay

opinions if the requirements of Rule 701 are met. This is true even when the

witness has experience and training.” Osbourn v. State, 92 S.W.3d 531, 537 (Tex.

Crim. App. 2002). Moreover, a lay witness with sufficient personal experience

and knowledge may be qualified to express an opinion on a matter outside the

realm of common knowledge with respect to events not normally encountered by

most people in everyday life. Id . “It is only when the fact-finder may not fully

understand the evidence or be able to determine the fact in issue without the

assistance of someone with specialized knowledge that a witness must be

qualified as an expert.” Id .

On cross-examination, Janet was questioned about the complainant’s therapist and that the complainant was put on medication to “calm her down.”

(RRIII at 44). Janet was then questioned about the complainant’s diagnosis,

which Janet testified was “ADD, ODD, and ADSD (later corrected to PTSD).”

(RRIII at 46). Based upon that testimony, the State asked Janet, on redirect, if she

had an opinion as to whether something was inherently wrong with the

complainant; Janet responded “no.” (RRIII at 49-50). Her testimony required no

expertise, but was her lay opinion after her personal experience with, and

knowledge of, the complainant. It was not outside of the zone of reasonable

disagreement for the trial court to conclude that Janet’s opinion might be helpful

to the jury. The trial court did not abuse its discretion by admitting Janet’s

testimony.

Appellant’s third issue presented on appeal should be overruled. 

CONCLUSION

It is respectfully submitted that all things are regular and that the conviction should be affirmed.

D EVON A NDERSON District Attorney Harris County, Texas /s/ Bridget Holloway B RIDGET H OLLOWAY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 713.755.5826 Texas Bar No. 24025227 holloway_bridget@dao.hctx.net *21 CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE This is to certify: (a) that the word count of the computer program used to prepare this document reports that there are 3328 words in the document; and (b)

that the undersigned attorney requested that a copy of this document be served to

appellant’s attorneys via TexFile at the following email on January 20, 2015:

Michael P. Fosher

Attorney for Appellant

Email: (not listed in brief, will use one, if any, on file with TexFile) /s/ Bridget Holloway B RIDGET H OLLOWAY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 713.755.5826 Texas Bar No. 24025227 holloway_bridget@dao.hctx.net

[1] Appellant’s Brief at 32.