Berg v. State

• Docket Number: 01-22-00248-CR
• Decision Date: 31 August 2023
• Parties: DALE LEE BERG, JR., Appellant v. STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

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DALE LEE BERG, JR., Appellant v. STATE OF TEXAS, Appellee

No. 01-22-00248-CR

Court of Appeals of Texas, First District

August 31, 2023

Do not publish. Tex.R.App.P. 47.2(b).

On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1554689

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

MEMORANDUM OPINION

VERONICA RIVAS-MOLLOY, JUSTICE

A jury convicted Appellant Dale Lee Berg, Jr. of the first-degree felony offense of aggravated sexual assault of a child under the age of fourteen and assessed his punishment at twenty years in prison. In three issues, Berg argues (1) the trial court abused its discretion in designating one of two outcry witnesses, (2) the trial court abused its discretion in allowing extraneous-offense testimony, and (3) there was insufficient evidence to support the jury's verdict.

We affirm the trial court's judgment.

Background

Appellant Dale Lee Berg, Jr. was charged by indictment with sexually abusing his granddaughter, Jane, when she was between four and six years old.^[1]The indictment alleged that on or about March 1, 2016, Berg "unlawfully, intentionally and knowingly cause[d] the sexual organ of [Jane], hereinafter called the complainant, a person younger than fourteen years of age, to contact the mouth of the Defendant." Following a jury trial, the jury convicted Berg of the offense of aggravated sexual assault of a child less than fourteen. See Tex. Penal Code §§ 22.021(a)(1)(B)(iii), (a)(2)(B).

Pretrial Rulings

The trial court conducted two hearings to determine the admissibility of certain challenged evidence.^[2] One hearing pertained to the admissibility of evidence concerning the alleged sexual abuse of another minor complainant by Berg, an extraneous offense. See Tex. Code Crim Proc. art. 38.37, § 2(b).^[3] After the trial court ruled evidence of the extraneous offenses was admissible, the court granted defense counsel's motion for a limiting instruction. The limiting instruction, which the trial court read to the jury, stated:

You may hear evidence regarding allegations of the defendant committing other crimes, wrongs, or acts against the child who is the victim - who is not the victim of the alleged offense in the indictment in this case. You cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against that other child, if any. If you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against that child, you may then and only then consider the same in determining its bearing on relevant matters.

The trial court also conducted an outcry hearing under Article 38.072 of the Texas Code of Criminal Procedure to determine whether Jane's out-of-court statements to certain witnesses were admissible under the outcry statute.^[4] After the hearing, the trial court designated Jane's mother ("Mother") and Sarah DiStefano, a forensic evaluation clinician who interviewed Jane about the alleged abuse, as outcry witnesses. Mother was designated to testify about Jane's disclosure of the event that led to the charge in the indictment against Berg, and DiStefano was designated to testify about other details of that disclosure, and other alleged incidents of sexual abuse involving Berg and Jane. Berg was granted a running objection with respect to DiStefano's testimony as to the extraneous offenses allegedly committed against Jane, and the court also agreed to issue the following limiting instruction:

Ladies and gentlemen, at this time you may hear evidence regarding allegations of the defendant committing other crimes, wrongs, or acts against the child who is the victim of the alleged offense in the indictment in this case. You cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against the child, if any. If you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against the child, you may then and only then consider the same in determining its bearing on relevant matters, including the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child.

The Trial

A. Mother

Mother testified at trial. She and Jane's father ("Father") are married and have six children. Jane is the second oldest. In the evening of March 9 or 10, 2017, Mother was making dinner. The kids were playing upstairs, and Mother was downstairs in the kitchen. Jane walked into the kitchen to talk to Mother. Jane "seemed really timid and she had . . . her hands up to her mouth[.] So I was wondering if something was wrong." Mother knew it was important because Jane said, '"Mom, I want to tell you something but it's really gross.'" Mother stated, "So I sat her down, had her sit on me. I said, 'Okay, what's wrong?'" Jane then said, '"When Grandpa Berg was here, he licked my bottom," or "When Grandpa Berg was visiting, he licked my bottom."'

Mother did not ask Jane any questions "in that moment." Rather, "I just let her share what she wanted to share and when she obviously felt like she was done, I let her go back and play. She obviously felt light again, just kind of let her go. I didn't want to hammer her." That night, Mother told Father about the abuse after putting the children to bed.

Mother testified that she "definitely believed" Jane about the abuse. They had been "taking precautions to keep this from happening" because they had seen "concerning behaviors" involving Berg "but we thought we had done a good job of trying to make sure there was distance and trying to teach her proper behaviors to . . . keep something like this from happening. . . . It didn't occur to me that something had already happened."

Before Jane's outcry, Mother and Father had been "concerned about [Jane's] behavior and didn't know if this was just a phase in her life. But she had exhibited more angry behaviors and . . . outbursts and overexaggerations from something little going on in her life that we had kind of started talking about. My husband would ask, does she need to go to therapy for anger management or is this normal for girls?" Before Jane's outcry, "just any little thing would just set her off. She would explode. 'Everyone hates me, no one understands me, you don't love me.' She would be, like, yelling at us just because we didn't want to give her something at dinner. It was like anything - it was like an above-normal reaction."

Mother testified that after Jane told her about the abuse, they "noticed a difference" in Jane's conduct. It was like a "weight just lifted off of her" after she told Mother. After telling Mother about the abuse, Jane "just . . . skipped away. And I thought, okay, she's apparently done and she's feeling fine, so I'll talk to her later." After Jane's disclosure, Mother noticed an improvement in Jane's moods. "She's laughing, she's having fun a little more. . . . [W]e just noticed she wasn't so . . . seeming upset . . . it's like we had remembered her being before."

Jane attended therapy in Houston on and off for a year after telling Mother about the abuse. Jane, who still occasionally gets upset about the abuse, does not like discussing it. When she gets upset about it now, Jane refers to the abuse as "the thing." She does not describe details of the abuse to Mother, who "only learned about more details from what someone else told [her] during the interview or what [she] heard [Jane] talk about or write down during therapy."

B. Father

Father is Berg's son. Father testified that Berg was a mechanical engineer at a nuclear power plant until he retired. In addition, Berg was a church youth leader, a scoutmaster, and an active father. Berg visited Father, Mother, and their children at various times in their home in Spring, Texas. Berg usually visited with his wife, Jane's grandmother. Father testified that Berg and Jane had a "wonderful relationship as far as [he] could tell. [Berg] would pay her a lot of attention, carry her around a lot. You know, everywhere we went . . . he would carry her around a lot and always be with her and it - you would never expect there's anything - like, she didn't have ill feelings at all." Jane always appeared to be happy around Berg. During his visits, Berg devoted the majority of his attention to Jane but also visited with his other grandchildren, which they enjoyed. Father trusted Berg to be around Jane. "I didn't think there was any big deal. I just figured . . . a lot of grandparents have their favorite grandkid and we figured that was the case and that's about it."

Father testified that Jane made an allegation of sexual abuse to Mother in March 2017. Mother told Father about it. He stated, "it was a shock that that happened." They called the police the following day. Jane also talked to Father regarding the allegations. She told Father that Berg put his mouth on her vagina.

At the time Jane told her parents of the abuse, Berg had not visited for several months; his previous visit had been in July 2016 and before that, in March 2016. Father testified that from his perspective, Berg's March 2016 visit "was just like any other visit."^[5] Berg did not visit again after Jane's disclosure of the abuse.

Berg called Father about the allegations when he found out the police had been called. Berg wanted to know what Jane said, so Father told him: It involved an allegation of Berg putting his mouth on Jane's vagina. Father testified that Berg told him, "I'm not saying that she's lying but I don't recall that ever happening."

Before...