PRESTON DWAYNE HIGHTOWER v. THE STATE OF TEXAS (2010)

OPINION

Opinion By Justice Morris

In a single trial, a jury convicted Preston Dwayne Hightower of three different aggravated sexual assaults of a child.   He complains on appeal that the trial court erred in permitting a witness for the State to read portions of a Child Protective Services report into evidence and in admitting hearsay statements the complainant made while in counseling.   Concluding the trial court did not reversibly err, we affirm all three judgments.

Factual Background

Appellant lived with the complainant and her mother for approximately eight years, starting when the complainant was approximately two years old.   Appellant and the complainant's mother also had three sons during that time period.   After appellant and her mother separated, the complainant lived in a variety of places, including her grandmothers' homes, a juvenile detention facility, and the home of her biological father.   By the time of trial, the complainant was twenty-two years old.   The three boys were seventeen, sixteen, and fifteen years old.

The complainant testified that she was four to five years old and taking a bath the first time appellant sexually assaulted her.   Appellant rubbed her in her “private area” and asked her if it felt good.   Appellant told the complainant that if she told anyone what had happened he would kill her mother and brothers.   She testified that appellant put his hands on her vagina “a lot” up until he left the family.   Appellant also put his finger inside her vagina, performed anal sex on her, and made her give him oral sex.

The complainant testified that sometimes when they were in the car, appellant would ask her if she wanted to drive.   Then he would pull out his penis and pull down her pants and place her on top of him, sticking his penis in her anus.   She stated that it “hurt really bad.”   She remembered that on one occasion in the car, one of her brothers leaned forward from the back seat to ask a question, possibly seeing what appellant was doing to her.

When the complainant was four or five, appellant also started putting his penis in her mouth.   She said it felt like she was choking.   Appellant only attempted to have vaginal sex with the complainant one time.   She stated, “I kicked and screamed.   It hurt and I fought.”   Appellant left the family a couple of months after the complainant fought off his advances for vaginal intercourse.   Even then, the complainant did not tell her mother what had happened because of appellant's threats to kill her mother and brothers, combined with appellant's ownership of a gun.

On one occasion, appellant took the complainant and her cousin down to a lake in November.   The complainant claimed he made the girls touch themselves and each other in the vaginal area while he watched.   The cousin testified at trial that she recalled the event at the lake.   According to her recollection, appellant encouraged the girls to take off their clothes and swim in the lake, even though it was November.   The cousin remembered that he had the complainant touch her chest;  she could not remember if he made her do anything.   She remembered running back to try to tell her mother what had happened because it had scared her.   The cousin testified that the event has given her anxiety and nightmares.

When the complainant was approximately thirteen years old, she got into trouble for molesting her two youngest brothers.   She touched them in their private areas because she “thought that was how that you loved.”   Afterward, she went to a juvenile detention center and was then placed in foster care.

When the complainant was in seventh grade, she was living with her biological father and his girlfriend.   Her mother had sent her to live there because she was out of control.   She fell asleep at school, and two girls woke her and asked her if her dad had molested her.   The girls went to the school counselor, and the counselor contacted Child Protective Services.   The complainant told the school counselor she had just been having a bad dream.   The next day, a CPS worker visited the complainant at school, and she continued to maintain that nothing had happened because she was scared and did not want her family to have to talk to the police.   A few days later, the CPS worker visited the complainant's father's house.   Eventually, the complainant began to open up to her about what appellant had done.   Later, the complainant gave more details of the sexual assaults to a police officer named Terry Dunn in the presence of her mother.   Afterward, she went to the hospital for a rape examination.   The nurse who performed the exam testified that when she took the complainant's history, the complainant told her appellant had stuck his penis in her mouth and her “butt.”   She told the nurse, “He put his fingers in my vagina and he made me stroke his penis up and down.   White stuff came out.   White stuff came out when he put his penis in my mouth.   He did this a bunch of times.”

When cross-examined by the defense about what she had told the CPS worker who had visited her biological father's house, the complainant stated that she did not remember what they talked about while the CPS worker was there.   The defense attorney, over the State's objection, then showed the complainant the CPS report.   He asked her if it was not true that she told the worker no one had ever touched her.   The complainant denied this and stated that she did not remember telling the worker that no one had touched her.   On further cross-examination, the defense attorney asked, “And isn't it true at this subsequent meeting you told the CPS investigator that [appellant] only touched in your vagina area;  isn't that correct.”   The complainant stated that she did not believe so, but she admitted she did not remember talking to CPS. The defense attorney again had the complainant read from the CPS report, then asked, “․ you told the CPS worker that this alleged abuse only occurred to your vagina;  isn't that correct?”   The complainant responded that she did not remember talking to the CPS worker.   She clarified during redirect examination that she remembered the CPS worker coming to the school and to the house, but she did not remember what was said.   She recalled telling her what happened without details and telling more to the police officer.

The CPS worker confirmed that when she met with the complainant at school, the complainant did not disclose any sexual abuse.   Afterward, when she talked to the complainant at the house, she denied it again.   When the CPS worker talked to the biological father's girlfriend, the girlfriend expressed concern that perhaps appellant could have molested the complainant.   When the CPS worker received a call asking her to re-open the case, she talked with the complainant once more.   At that time, the complainant admitted to the CPS worker that appellant had touched her in the vaginal area with his hand and penis.   The CPS worker stated that the complainant's words and actions were consistent with other kids in her age group who had been sexually abused.   The CPS worker also agreed that the addition of more allegations of sexual assaults to other parts of her body could be part of a normal process of outcrying by a child.

Terry Dunn, a family services investigator for the Sherman Police Department, testified that when the complainant was twelve years old, she talked with him in his office.   In Dunn's opinion, the complainant's behavior at the time was consistent with that of other child victims of sexual abuse.   The complainant told Dunn that while appellant lived with her family at five different locations, appellant had penetrated her anus and mouth with his penis and had also placed her hand around his penis and moved it back and forth.   She said that sometimes during these acts a milky white fluid came out of appellant's penis.   She said the sexual abuse had happened several times.   In Dunn's opinion, the complainant did not appear coached or deceptive.

The complainant has seen psychological counselors.   She has been diagnosed as bipolar and has also been diagnosed as suffering from ADHD, severe depression, and post-traumatic stress disorder.   She has attempted to commit suicide on more than one occasion.   At the time of trial, the complainant was on probation for burglary of a habitation and assault on a public servant, and she had served time in a prison drug rehabilitation facility for possessing marijuana during her probationary period.   She had also been in trouble for assaulting her mother.   In the past, some kids at her school had threatened to hurt her mother, and the complainant told them that she would blow up the school.   For this, she was charged with a terroristic threat.   She started using marijuana when she was nine years old.   She started popping pills and drinking when she was approximately fifteen.   She started using methamphetamine when she was sixteen.   When she was nineteen, she started using cocaine.   She said she used all these drugs to “bury the pain.”

The complainant admitted on cross-examination that when she was younger she told people she hated the eldest of appellant's sons, the one who was named after him.   At trial, the middle son testified he remembered the complainant “screaming and me and my brother were beating on the door trying to get in.”   The brother testified that the complainant was screaming, “Get off of me, no, stop.”   Both of the older brothers tried to get to the complainant to help her.   Appellant told the boys if they told anyone what had happened he would kill them.   The middle brother testified that he remembered his sister's screams despite his young age at the time because the event was so tragic.   Preston Hightower, Jr., appellant's eldest son with the complainant's mother, also testified.   He stated that he could sometimes hear the complainant screaming in the master bedroom of a house where they lived with appellant, but he and his brother “couldn't ever get in there.”   On one occasion, he walked into the room and saw that the complainant was naked and appellant was undressing.   When appellant saw him, he “pulled up his pants really fast.”   He told the boy, “I told you not to come in here,” and threw him into a wall.

On another occasion, appellant made the boys switch from the front seat to the back seat of the car during a ride to the store.   The eldest son testified, “[Appellant] pulled out his penis and sat [the complainant] on top of him, but I didn't see if he stuck it in her or anything.”   He recalled that his sister kept saying “no” and appellant told her to just shut up and enjoy the ride.   He testified that the boys did not tell anyone what was happening because appellant had threatened to kill them and their mother.   He admitted that when the complainant lived with him and his brothers, they hated each other and fought constantly.   He stated that he remembered these events from his early childhood because they were “very traumatic things that I don't think I will ever forget.”

The complainant's babysitter from the period when she was approximately eight months to four years old also testified.   She observed that the complainant seemed scared of appellant.   She also noticed the area around the complainant's bottom and private areas was red and swollen, and the redness looked worse than a rash.   She tried treating it by changing her diaper as often as she could and applying powder and cream to the red areas, but the treatment did not work.   She suspected that the complainant was being abused, and she told her mother.   Afterward, her mother no longer let her babysit the complainant.

Over a defense hearsay objection, the State was permitted to put on evidence of what the complainant had told a counselor.   The counseling was a condition of the complainant's probation for molesting her two youngest brothers.   At the first session, the complainant told the counselor that she had been abused and could not even speak the abuser's name.   For several sessions, she talked about being afraid of the abuser and did not say appellant's name.   The complainant told her that she did not like the eldest son because he shared appellant's name and she believed her mother paid too much attention to him.   She told the counselor that if he was going to be called Preston, she would not stay in the room.   She admitted molesting her brothers.   She took responsibility for her acts, and stated that no harm would ever come to them again.   She also expressed anger and her belief that if her mother had paid more attention to her then the sexual abuse by appellant would not have occurred.   The counselor testified that, based on her experience and training, the complainant's behavior was consistent with that of a child who has been sexually abused.

Doctor James Ray Harrison, a clinical psychologist, testified for the State.   After reviewing the complainant's case history, he found several indicators of sexual abuse including depression, anxiety, intense anger, self-mutilation, lack of trust in others, suicidal thinking, attention seeking, fighting with peers, boundary issues, sexual acting out with her brothers, dissociation, anger with her mother, fear for the safety of her mother and family, fear of being abandoned, and overreaction to being physically violated.   Harrison noted that there was a long time when the complainant could not even say appellant's name.   He further noted that at one point she began targeting her brother “Junior” because “she saw him as acting like her stepfather.”   In Harrison's opinion, the indicators in the complainant's case history are fairly typical of sexual abuse, except that the complainant is becoming more disturbed as she gets older.

Appellant testified in his own defense.   He claimed that he had never sexually violated the complainant in any way.   In appellant's opinion, the complainant and her brothers had been coached to testify against him by their mother.   Appellant's niece testified that on one occasion when she and the complainant were younger and staying with appellant's mother, the complainant told her that her mother and grandmother “made her say those things” about appellant.

Dr. Christi Compton, a clinical and forensic psychologist, testified for the defense.   She stated that none of the factors that had been claimed by the State to indicate the complainant had been sexually abused could reasonably be tied to that conclusion but could indicate instead a severe behavioral disorder, depression, the effects of dysfunctional family life, or problems with attachment and disruption.   Compton testified that she does not consider herself an expert in the field of child sexual abuse.

Discussion

In his first point of error, appellant complains the trial court erred when it permitted the complainant to read a portion of the CPS report into evidence.   The State sought to introduce the testimony pursuant to rule of evidence 612, which states, in relevant part,

If a witness uses a writing to refresh memory for the purpose of testifying ․

(1) while testifying;

․

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness․

Tex.R. Evid. 612.

Here, after the defense invited the complainant in cross-examination to refresh her memory with the CPS report to discuss the extent of her outcry allegations to the CPS worker, the trial court permitted the complainant-over appellant's hearsay objection-to read the following information from the CPS report into evidence:

Worker was told that Preston was mean to her.   Worker asked what she meant.   [The complainant] said he touched me in a place I don't like to be touched with his hand and penis.   Worker asked [the complainant] where this place was and [the complainant] pointed to her vaginal area.  [The complainant] told worker that the last time was right before he moved out in Sherwood Shores.  [The complainant] told worker it started when she was kind of little and continued until he moved out.   Worker was told that it happened several times a week.   [The complainant] stated that her mother was either at work or asleep.

After the complainant read this portion of the CPS report into evidence, the trial judge instructed the jury that the testimony was not admitted for the truth of the matter asserted but for “impeachment purposes only.”

Even if the trial court abused its discretion in admitting this evidence, appellant was not harmed by it.   The jurors were instructed that they could consider the evidence for impeachment purposes only.   And the evidence itself merely confirmed the complainant's re-telling of the events about what she had told the CPS worker about the alleged sexual assaults.   The CPS worker's testimony on the subject reiterated the same facts noted in her report.   Furthermore, the evidence supported the defense theory that the complainant's testimony was unreliable because she failed to reveal the full extent of her claimed sexual abuse when she made her initial statement to the CPS worker.   The testimony showed that the complainant initially asserted only appellant's sexual assault of her vaginal area before she later told the police investigator appellant had sexually assaulted her anus and mouth, in addition to forcing her to help him masturbate.

Appellant does not explain how he was harmed by the evidence except to say that it is “difficult to see how the erroneous introduction of trial testimony ․ could not affect a ‘substantial right’ of the defendant, particularly under circumstances where the case turns largely on [the complainant's] credibility.”   Because the evidence merely supported the testimony of the complainant and the CPS worker who made the report and failed to inject novel information into the trial and supported the defense theory of potential fabrication, there was no substantial harm.   See Tex.R.App. P. 44.2(b).  We overrule appellant's first point of error.

In his second point of error, appellant complains the trial court erred in permitting the State to admit into evidence hearsay statements the complainant made during counseling required as a condition of her probation.   The State concedes that, based on the case of Taylor v. State, 268 S.W.3d 571 (Tex.Crim.App.2008), which was decided months after the judgment and sentence in this case, the trial court erred in admitting the evidence under rule of evidence 803(4), an exception to the hearsay rule for statements made for purposes of medical diagnosis or treatment.

The State asserts, however, that the admission of the hearsay evidence was harmless.   We agree.

Appellant points to three objectionable hearsay statements by the complainant in the counselor's testimony:  the statement that even years after the abuse, the complainant was still so fearful of appellant she could not speak his name;  the statement that because her brother was named after appellant, the complainant would not remain in the same room with him if someone referred to him by his name;  and the statement that the complainant was angry with her mother and believed that if her mother had taken better care of her, the sexual abuse would not have occurred.   Appellant contends that this testimony was stressed during the State's jury argument when the prosecutor stated that the police, the experts, the CPS worker, and the complainant's counselor had corroborated the complainant and further argued that everything the complainant said “is consistent with child sexual abuse.”

The complainant testified extensively about not only the sexual abuse perpetrated by appellant but also the repercussions the abuse had on her life-her drug abuse, suicide attempts, sexual acting out, and other criminal acts.   In the context of this testimony, evidence showing the complainant's difficulty saying or hearing appellant's name could not have substantially harmed appellant.   The same can be said for testimony showing that the complainant was frustrated with her mother for failing to prevent the abuse.   Finally, the prosecutor's jury argument pertains more to the impressions the counselor and others had of the complainant than to any hearsay statement the complainant made to the counselor.   Because appellant was not substantially harmed by the hearsay statements made to the counselor, his complaint is without merit.   See Tex.R.App. P. 44.2(b).  We overrule his second point of error.

We affirm the trial court's judgment.

JOSEPH B. MORRIS JUSTICE