Stephen Michael Taylor v. The State of Texas

Eastland, TX - Criminal defense attorney represented Stephen Michael Taylor with a Sexual Assault charge.

The victim in this case, for whom the pseudonym "Violet” was used in the

indictment, testified for the State. She was seventeen years old at the time of trial.

Appellant was Violet's stepfather and married Violet's mother when Violet was

seven years old. Violet testified that Appellant began to sexually abuse her when

she was seven and that the abuse continued until she turned twelve.

The abuse began one night when Violet went into the room Appellant shared

with her mother. Violet testified that, when she got into the room, he tried to

penetrate her with his "male sexual organ, and it wouldn't fit.” She told Appellant

that she needed to go to the bathroom, but he told her, "It's okay, you can go to the

bathroom here. It's natural.” She kept insisting, however, and he let her go to the

bathroom. Violet testified in detail to attempted penile penetration, digital insertion,

oral sex, shaving of her "private area,” shower contact, and Appellant's selfexposure, which occurred over a five-year period.

The abuse stopped when Violet's grandmother moved into the house because

her grandmother would stay up during the night to watch television. Violet testified

thatshe was always scared but that she did not tell anyone initially because Appellant

told her not to. She did eventually tell her mother, but her mother did not take her

to the police.

When Violet was fourteen, she went on a church retreat. During a breakout

session where the volunteers encouraged the youth participants to open up about any

problems they had, Violet told a volunteer, Brittany Robinson, that "inappropriate

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things” were going on in her home; she made sexual assault allegations against

Appellant. Robinson reported the outcry to the school counselor and the school

police officer at the school where Robinson was employed.

Standard of Review

We review both the trial court's decision to admit or exclude expert testimony

and admit or exclude hearsay evidence for an abuse of discretion. Coble v. State,

330 S.W.3d 253, 272 (Tex. Crim. App. 2010); Martinez v. State, 327 S.W.3d 727,

736 (Tex. Crim. App. 2010). Thus, we will only overturn the decision of the trial

court if we find that the trial court acted in an arbitrary or unreasonable manner,

without regard for guiding rules or principles. State v. Hart, 342 S.W.3d 659, 664

(Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).

Analysis

1. Appellant has not preserved his complaint concerning improper expert

testimony for appellate review.

In his first issue, Appellant argues that the trial court erred when it allowed

Jason Shea, the Texas Ranger who originally interviewed Appellant, to express

allegedly expert opinion despite trial counsel's request to question the witness on

voir dire. Specifically, Appellant claims that the trial court should not have

overruled his request to voir dire the witness. Appellant asserts that, per Rule 705(b)

of the Texas Rules of Evidence, before Ranger Shea's expert opinion was admitted,

Appellant should have been permitted to voir dire the witness outside the presence

of the jury as to underlying facts or data. During the direct examination of

Ranger Shea, in the context of his interview with Appellant, the following exchange

occurred:

[PROSECUTOR] Q: Okay. Was there anything else that caught

your attention in the interview?

A: Yes.

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Q: What was that?

A: A statement that he made was --

[DEFENSE COUNSEL]: Your Honor, we object to hearsay.

Can I ask Ranger Shea a couple questions on voir dire?

THE COURT: Not in relation to a hearsay objection because that

would be overruled.

[DEFENSE COUNSEL]: Our objection is the answer is double

hearsay.

THE COURT: Overruled.

Generally, to preserve an issue for appellate review, the record must show

(1) that a complaint was made to the trial court that "stated the grounds for the ruling

that the complaining party sought from the trial court with sufficient specificity to

make the trial court aware of the complaint, unless the specific grounds were

apparent from the context,” and (2) that the trial court either ruled or refused to rule

on the request. TEX. R. APP. P. 33.1(a). In effect, "[t]he point of error on appeal

must comport with the objection made at trial.” Clark v. State, 365 S.W.3d 333, 339

(Tex. Crim. App. 2012).

While no specific words are required, the litigant must "let the trial court know

what he wants and why he feels himself entitled to it clearly enough for the judge to

understand him.” Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016).

Moreover, "for a complaint to be obvious without having been explicitly stated and

still satisfy the purposes above,” usually there are statements or actions in the record

"that clearly indicate what the judge and opposing counsel understood the argument

to be.” Clark, 365 S.W.3d at 339.

In addition, when it is apparent from the context "that a party failed effectively

to communicate his desire, then reviewing courts should not hesitate to hold that

appellate complaints arising from the event have been lost.” Rivas v. State, 275

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S.W.3d 880, 882 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d

907, 908–09 (Tex. Crim. App. 1992)).

Appellant argues in his brief that counsel, "by requesting that the witness be

asked a couple of questions on voir dire, was clearly requesting that the trial court

examine the witness to determine whether he was an appropriate expert witness.”

We disagree. In his objection, trial counsel objected to hearsay and asked the trial

court if he could "ask Ranger Shea a couple questions on voir dire.” He did not

specifically state to the trial court that he wanted to determine Ranger Shea's expert

qualifications. If that was trial counsel's intention, what is "apparent from the

context” of the exchange in question is that the trial court did not understand

counsel's intended purpose in making the request. Immediately before the initial

"hearsay” objection and voir dire request, the witness's partial answer, on its face,

was regarding "a statement that [Appellant] made” during his interview with

Ranger Shea. When given the opportunity to clarify, counsel's speaking objection

appears to be that Ranger Shea's anticipated answer to the pending question was

going to constitute double hearsay and that, on that basis, counsel wanted to voir dire

the witness.

There was no abuse of discretion in denying the request to voir dire the witness

based on Appellant's hearsay objection. See Vasquez v. State, 819 S.W.2d 932, 935

(Tex. App—Corpus Christi 1991, pet. ref'd) (stating that Rule 705(b) voir dire

"should be used sparingly as its overuse would undermine the rule: to quickly and

efficiently elicit helpful expert opinions which aid the jury in its fact finding task”).

From the context of the testimony, it does not appear that Ranger Shea was being

offered as anything but a lay witness. Trial counsel for Appellant did not take the

opportunity within his speaking objection to inform the trial court in plain terms that

the witness's anticipated answer(s) would only be allowed of an expert witness.

Trial counsel also did not inform the trial court that he wanted to voir dire

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Ranger Shea "on the underlying facts or data” in support of an expert opinion before

it was expressed to the jury. If Appellant's intent, as he impliedly argues in his brief,

was to challenge Ranger Shea's qualification as an expert or to demonstrate that he

lacked expertise in areas of anticipated expert opinion, then Rule 705(b) is not

applicable, and the trial court was under no obligation to allow a voir dire

examination at that point during the witness's direct testimony. See Jenkins v. State,

912 S.W.2d 793, 814 (Tex. Crim. App. 1993) (stating that trial counsel's request to

take a witness on voir dire to "prove up” the witness's qualifications is not a request

for a Rule 705(b) hearing).

However, when given the opportunity to explain, Appellant's trial counsel

stated plainly that he was objecting to "double hearsay.” In addition, Appellant's

trial counsel did not revisit the issue of expert qualifications at any point during the

examination of Ranger Shea. From a review of the record, it does not appear that

trial counsel followed up in cross-examination. He did not ask the questions that he

might have asked in a voir dire of the witness, nor did he request the trial court to

strike the former testimony and instruct the jury to disregard. Further, no record was

made of the questions that would have been propounded to Ranger Shea had trial

counsel been allowed to take him on voir dire. There was no motion for mistrial.

We do not find that trial counsel properly requested under Rule 705(b) to

examine Ranger Shea's underlying facts or data used in support of an anticipated

expert opinion. In any event, trial counsel's request was not sufficiently specific to

make the trial court aware of his complaint as to Ranger Shea's alleged expert

testimony. Thus, we find that Appellant has not preserved this issue for appeal. See

TEX. R. APP. P. 33.1(a). We overrule Appellant's first issue.

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2. Any error committed by the trial court in admitting the complained-of

testimony is not reversible error.

In his second issue, Appellant claims that the trial court committed reversible

error when it allowed a witness to give hearsay testimony over trial counsel's

objection. Ranger Shea testified that Appellant told him during the interview that

Appellant had been sexually abused as a child by his sister. Appellant told

Ranger Shea that, during one incident, Appellant told his sister that he needed to

urinate, and she told him to urinate inside her. The following exchange occurred

during the prosecutor's examination of Ranger Shea:

[PROSECUTOR] Q: What was that that you learned, sir?

A: . . . . Well, going back through the reports, the alleged victim

in one of the reports --

[DEFENSE COUNSEL]: Objection to hearsay.

THE COURT: Excuse me?

[DEFENSE COUNSEL]: Objection to hearsay. He's testifying

to information he learned going back to the reports.

THE COURT: You have a response?

[PROSECUTOR]: Judge, first of all it doesn't go to the truth of

the matter asserted. And basically he's just going back to what he

learned in the investigation. He's not commenting on any hearsay from

any individual.

THE COURT: I'll overrule the objection.

[PROSECUTOR]: Please go ahead.

A: It was shown in one of the reports that the victim had also

stated she needed to urinate, and [Appellant] said, "Just go ahead and

urinate while we're having intercourse.”

Ranger Shea then stated in his testimony without objection that the similarity

between the act of Appellant urinating during intercourse with his sister and

permission given by Appellant to Violet caused him to believe that Violet was telling

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the truth in her allegations of sexual assault. In this context, Ranger Shea clarified

that he was making no application to this case but that, in the cases that he had

personally handled, a curious phenomenon he had observed was that former victims

of abuse have themselves mirrored abusive conduct. There is a difference between

using the statement of Ranger Shea as the reason why that investigator believed the

victim versus an expert opinion that, because Appellant was sexually abused

himself, it is more likely that Appellant would be a sexual abuser. It is the former,

not the latter context in which the testimony was offered. This testimony was not

given as scientific or expert testimony but, rather, as an explanation of why

Ranger Shea personally believed the victim's outcry. See Harris v. State, 133

S.W.3d 760, 773–75 (Tex. App.—Texarkana 2004, pet. ref'd) (no harm in failing to

allow voir dire of expert before offering "cycle of violence” testimony when

prefaced as a pattern of response that expert had personally seen in other victims'

behaviors).

Appellant's argument is that Ranger Shea's testimony, as it referred to what

was written in the police report, was inadmissible hearsay. In general, the rule

against hearsay "prohibits out-of-court 'statements' other than those 'made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.'” Sanchez v. State, 595 S.W.3d 331, 336 (Tex. App.—

Houston [14th Dist.] 2020, no pet.) (quoting TEX. R. EVID. 801(d)).

An error is harmless if, after examining the entire record, "we find reasonable

assurance that the error did not influence the jury's verdict or had but a slight effect.”

Id. at 339. "A trial court's improper admission of evidence is not reversible error if

the trial court admits the same or similar evidence without objection at another point

in the trial.” Id. Thus, if the fact to which the alleged hearsay relates has been

sufficiently proven by other competent, unobjected-to evidence, "the admission of

the hearsay is properly deemed harmless and does not constitute reversible error.”

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Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986). In addition, under

these circumstances, "[w]hether or not the testimony complained of was admissible

as an exception to the hearsay rule is irrelevant.” Id.

Here, as previously stated, Violet had already testified that, during the assault,

she told Appellant she needed to go to the bathroom and that Appellant told her, "It's

okay, you can go to the bathroom here. It's natural.” Thus, the subject of the

complained-of statements from the police report was already properly in evidence.

Therefore, presuming, without deciding, that the trial court erred when it allowed

Ranger Shea to testify to what he read in the police report, the error, if any, did not

reasonably influence the jury's verdict and was harmless. We overrule Appellant's

second issue.

We affirm the judgment of the trial court.