Perez v. State
| Decision Date | 14 August 2003 |
| Docket Number | No. 03-02-00260-CR.,03-02-00260-CR. |
| Citation | 113 S.W.3d 819 |
| Parties | David PEREZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Linda Icenhauer-Ramirez, Austin, for appellant.
Ronald Earle, Holly E. Taylor, District Attorney's Office, Austin, for appellee.
Before Chief Justice LAW, Justices B.A. SMITH and ONION.*
Appellant David Perez appeals his convictions for aggravated sexual assault of a child and indecency with a child by contact. See Tex. Pen.Code Ann. §§ 22.021(a)(1)(B), 21.11(a) (West 2003).1 After the jury found appellant guilty of both offenses, the trial court assessed punishment in each case at six years' imprisonment.
Appellant advances five points of error. First, appellant contends that the trial court erred in admitting the testimony of Robin Beauregard under the medical diagnosis and treatment exception to the hearsay rule. See Tex.R. Evid. 803(4). Second, appellant urges that the trial court erred in admitting the testimony of Dr. William Lee Carter because the proper predicate for expert testimony was not laid. See Tex.R. Evid. 702. Third, appellant claims that the trial court erred in overruling the motion for a new trial. Fourth and fifth, appellant asserts that the evidence is factually insufficient to support the two convictions as alleged in the indictment.2
In order to place the issues in proper perspective a summary of the facts is essential. The case turns in large measure on the credibility of A.N., appellant's daughter and the complainant, who was twelve years old at the time of the February 2002 trial, having been born on November 14, 1989. After two years in shelters, foster homes, and treatment centers, A.N. testified to facts generally supportive of the indictment's allegations. She readily acknowledged that earlier she had denied the allegations and told conflicting stories to caseworkers, a doctor and others. There was testimony that other witnesses regarded her as a liar and a manipulator.
The record reflects that A.N. was born to appellant and a sixteen-year-old prostitute who was a crack cocaine addict, whom appellant had befriended. The mother left when A.N. was two weeks old. A.N. lived with her father in approximately seventeen places by the time she was ten years old. She had attended school irregularly. In 1997, appellant was convicted of injury to a child after he slapped A.N. He was placed on probation. A.N. was placed in a foster home. A.N. was returned to appellant in 1999. In January 2000, appellant was arrested for violation of probation. A.N. was taken into custody and placed in the Williams Shelter. In early February she was placed in the foster home of Dorothy Place. On February 23, 2000, A.N. was examined by Dr. Beth Nauert, a pediatrician, who had examined A.N. on February 12, 1997, when A.N. was first in foster home care. At that time, A.N. had dental cavities and head lice but her genital examination appeared normal. On the latter occasion, A.N. informed the doctor that she was being examined for a stomach ache and a runny nose. She volunteered to the doctor that her father (appellant) was in jail for child molestation, and that it was because when she was "seven" she had "a rash down there" and appellant kept cream on it, and that was all.3 When asked if she had been touched or bothered, A.N. told Dr. Nauert that her "boyfriend" David and another boy, Santos, had had sexual intercourse with her. The genital examination was normal. The doctor explained that a normal genital exam does not rule out sexual abuse; that it is rare for a doctor to be able to say with certainty that a child has been sexually abused; that an exam may be normal even if there had been physical penetration; that an exam may even be normal if there had been multiple penetrations by different individuals assuming days or weeks had passed since the penetration; that even if an injury is inflicted, an examination some time after the assault may not reflect injury as lacerations often heal without noticeable scars; and that it is only when a child is pregnant or has a sexually transmitted disease, is there some proof that the child has been sexually molested.
Beth Arcotta, a mental health counselor under contract with a foster home agency, began therapy sessions with A.N. on February 15, 2000, at which time A.N. denied that appellant had molested her and said she did not know why she was in foster care. The sessions involved A.N.'s adjustments at the foster home and at school. Early on, A.N. told Arcotta that she had unwanted sex with five boys near her grandmother's house. In March, A.N. complained that her foster mother (Place) was pressuring her to admit that her father had molested her which she again denied. A.N. felt that her foster mother did not like her, but Arcotta stressed that it was A.N.'s failure to follow directions. A plan was devised for A.N. to follow directions and Arcotta promised her a sundae if her behavior improved. A.N. then focused on her relationship with her foster mother and how to please her with Arcotta's assistance. This all was discussed at a session May 7, 2000. The next night on May 8, Dorothy Place, the foster mother, called Arcotta and informed her that A.N. had made an outcry claiming her father had molested her. Arcotta talked to A.N., but assumed at the time that only "touching" was involved.
A.N. lived in the foster home of Dorothy Place where there were nine other foster children. Place testified that at first A.N.'s personal hygiene was inadequate; her clothes were too tight, too short, and too revealing; two pairs of shorts had one and a half inch holes in the crotch. A.N. had in her possession some of appellant's "paperwork," a $100 bill in a plastic sandwich bag, and a pair of men's underwear which she placed under her pillow at night.
Place discovered A.N. "acting out" sexually in playing with dolls or dancing, simulating sexual positions. She danced around a pretended pole as if she was a topless dancer. A.N. told Place that her father had taken her to a strip club. A.N. touched the other children on their legs, openly masturbated, and "came on" to the boys in a sexual manner. On May 8, 2000, after a house meeting where some of the boys discussed their experiences, A.N. asked to speak to Place privately. She then made an outcry that her father had molested her. This was approximately four months after she had been removed from his home. Place had A.N. talk to Arcotta, and then took a written statement which A.N. signed. A videotape was made the next day.
Place tried to portray A.N. as being truthful, but admitted that A.N. did tell lies, although she was not the worst liar Place had ever had in her foster home. Place acknowledged that in the summer of 2000 A.N. falsely accused her of abuse by hitting. Other evidence showed that in 1997 A.N. had falsely accused her then foster mother of abuse.
Case worker Amy Thompson, Child Protective Services caseworker Anna Warde, counselor Robin Beauregard, psychotherapist Charles Cansler, and foster care workers Stefanio Arigo and Gene Foster all described A.N. as having no sexual boundaries, interacting in overt sexual behavior with anyone encountered. They also described A.N. as a liar.
The twelve-year-old A.N. testified in a mature manner. She had been raised by appellant. She saw little of her mother. Appellant taught her to be "good." When she was six, seven, or eight years old, appellant taught her that you are a good girl when you have sex with your daddy or mommy; that he would french kiss her, have her watch R-rated movies, would buy her make-up, fingernails and thong underwear. A.N. wore tight clothes and stated her father put holes in the crotch of her shorts. She also reported that appellant taught her how to shoplift by wearing baggy pants, trying on merchandise and walking out of the store with the merchandise under her bagging garments while appellant distracted the store clerk.
A.N. testified that when she returned from her first foster home placement, appellant began to order that she have sexual intercourse with him and his friends; that she had sexual intercourse with appellant "Monday through Friday or Monday through Thursday." A.N. remembered one occasion when they were staying with her Aunt Eunice. Appellant came into the room where A.N. had been painting, pushed her papers aside, and put her on the bed and had intercourse with her. Appellant appeared mad and drunk. On another occasion, appellant had sexual intercourse with her on a couch and she scratched his face in the encounter. A.N recalled another time when appellant had her perform an act of masturbation on him. A.N. said that appellant's friends paid fifty and sometimes one hundred dollars to have sex with her. Two of these individuals were brothers David, age twelve, and Santos, age nineteen. She conceded that David Santos was the name of her father's welding boss, but insisted that these were different individuals. A.N. acknowledged that despite all her sexual activity, she had never seen a man's penis.
A.N. admitted that she told conflicting stories to Arcotta, Place, and Dr. Nauert. She explained in part that she learned from Crystal, another girl at the Place's home, that it was not natural for daughters to have sex with their fathers contrary to what appellant had taught her. This made her angry and she made her outcry to Place. When asked on cross-examination if she told the truth at the time of the outcry, at the time of the later videotape, and on direct examination, A.N. answered "Yes" to all three questions.
Dr. William Lee Carter, a psychologist, testified as an expert about symptoms and behaviors commonly seen in sexual abuse victims. In answer to hypothetical questions tailored to the facts of the instant case, Dr. Carter stated those facts indicated a sexually abused child.
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