Opinion filed April 25, 2013



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 11

- 00 089

- CR

__________ THOMAS RAYMOND SENNETT , Appellant V. THE STATE OF TEXAS , Appellee

On Appeal from the 441 st District Court Midland County, Texas Trial Court Cause No. CR36885

O P I N I O N The jury convicted Thomas Raymond Sennett of the offense of sexual assault of a child by intentionally or knowingly caus ing the penetration of K.C.’s sexual organ by insert ing his penis into her vagina. 1 K.C. is Appellant ’s deaf n iece , who was fifteen years old at the time of the assault. Appellant was twenty

- five years old at the time of the offense. When Appellant first went to trial, the case ended in a mistrial. Later, Appellant went to trial again , and t he jury found him guilty of sexual ly assault ing K.C. Appellant elected to have th e trial court assess punishment , and the trial court sentenced h im to confinement for seven years , but did not assess

a fine. We affirm.
I. Issues on Appeal Appellant has asserted five points of error. First, Appellant challenges the sufficiency of the evidence. Second, Appellant alleges that , because the evidence was legally insufficient, he

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. § 22.011(a)(2)(A) , (c )(1) (West 201 1 ).2 was denied due process

. Third, Appellant complains that the trial court erred when it (1) denied Appellant’s request for a mental health expert and (2) disallowed trial testimony from his computer ex p ert. Fourth, Appellant asserts that the trial court erred in admitting e

- mail evidence without proper authentication. Finally, Appellant argues that the State made harmful jury and punishment phase arguments

. II . The Evidence at Trial Somewhere around the mid dle of October 2009, Appellant, his sister , and her fifteen

year

- old daughter

— K.C., along with K.C.’s sister and a sixteen

- year

- old cousin, William, drove from Appellant’s home in Dallas to his sister ’s home in Midland

. Appellant stayed overnight at hi s sister ’s home before returning to Dallas

. K.C. went to sleep that evening in a recreational vehicle that was parked next to the house. Later in the evening , K.C. was startled by a vibration in the recreational vehicle . She thought it was a “ ghost ” and ran back into the house. K.C. calmed down after she talked with her mother , and K.C. decided to stay in the house and watch a movie with Appellant and K.C.’s cousin , William

. Although Appellant had seen K.C. only three or four times in his life, she call ed him “Uncle Thomas.” William went to sleep on the living room floor d uring the movie

. K.C. and Appellant began to wr i te notes to each other on a notepad

. Appellant wrote to her, “ Hi. Y ou’re beautiful.” Appellant then said that he liked her, attempted to hold hands with her , and kissed her on the mouth twice

. Appellant took K.C. outside , and he kissed her again . Appellant put his arms around K.C.’s waist and inserted his finger into her vagina

. He had her l ie down next to some wooden planks and kissed her again. Appellant removed her jeans and panties. He had sexual intercourse with her by inserting his penis into her vagina. K.C. said, “ He started having sex with me. He put his penis in my vagina ” ; “ I t hurt ”; and “ [H] e wa s moving , t hrusting. ” He told her, “ Do not tell ” and “ [D] on’t say anything. Don’t tell.” Afterward, Appellant told her to put her clothes on and go inside the house. He also put his clothes on and went inside the house. K.C. testified that she though t he had ejaculated

. She went into the bathroom in the house and

saw some “red” and “ white stuff ” on her panties. A few days after the incident, K.C. sent an e

- mail to Appellant . Appellant wrote back that she was “beautiful.” A day after K.C. sent the f irst e

- mail, she sent another that read,

“ [H] ey good u remeber love me I love sex u remeber [sic]

. ” The next day , Appellant sent an e

-3 mail to K.C. in which he wrote , “Yeah I’ll always remember that. I loved every second of it!!!!!! l ove ya, Thomas

. ” A f ew days later , K.C.’s mother checked K.C.’s e

- mail account after she spoke to K.C.’s grandmother

. K.C.’s mother read the e

- mails that K.C. and Appellant had exchanged

. K .C.’s mother confronted K.C., and she admitted that Appellant had sex with her

. K.C. ’s mother called the police and filed a complaint. Donna Doyle, a sexual assault nurse examiner, examined K.C. Doyle testified that the examination did not show that K.C. had suffered any trauma or injury to her hymen

. Because K.C.’s hymen was “ estrogenized” and elastic, the results of the tests were not unusual even though K.C

. ’s history indicated that she had been sexually abused

. III . Discussion and Analysis Appellant has asserted five points of error, two of which challenge the s ufficiency o f the evidence . Appellant’s third complain t is that the trial court erred when it denied Appellant’s request for a mental health expert and disallowed trial testimony from his computer expert. Appellant complains in his fourth point that the trial court e rred in admitting unauthenticated e

mail evidence. Appellant ’s final complaint is that the State made harmful jury and punishment phase arguments

. A. Points One and Two: Sufficiency of the Evidence We apply the sufficiency standard outlined in Jackson and its progeny for Appellant’s first two points of error. Jackson v. Virginia , 443 U.S. 307, 318 (1979); Brooks v. State , 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) ; Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all of the evidence admitted at trial by both the State and Appellant in the light most favorable to the jury’s verdict and decide whether any rational jury could have found each element of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319. The testimony of a child victim alone is sufficient to support a conviction for sexual assault. See T EX

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. art. 38.07 (a) ( West Supp. 2012 ); Villalon v. State , 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (concluding child victim ’ s unsophisticated termino logy alone established element of penetration beyond a reasonable doubt)

. The trier of fact may believe all, some , or none of a witness’ s testimony because the factfinder is the sole judge of the weight and credibility of the witnesses. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State , 258 S.W.3d 244, 248 (Tex . App.

— Eastland 2008, pet. ref’d ). We defer to the trier of fact’s resolution of any conflicting inferences that are raised in the evidence and presume that the trier of f act resolved such conflicts in favor of the prosecution. Jackson , 4434 U.S. at 318; B rooks , 323 S.W.3d at 894 ; Fuentes v. State , 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (citing Turro v. State , 867 S.W.2d 43, 47 (Te x. Crim. App. 1993) )

. We have outlined the testimony that the jury heard from K.C. The jury heard K.C. testify as to what happened the night she was assaulted , and the jury also knew what was in the e

- mails between K.C. and Appellant regarding that night. The jury also heard Doyle’s testimony about the results of the examination that she performed on K.C. We find that a rational juror could have found the existence of each of the elements of the offense beyond a reasonable doubt. And, because the evidence was sufficient , App ellant was not denied due process. Appellant’s first and second points of error are overruled.
B. Point Three: Failure to Appoint an E xpert W itness and Allow Expert Testimony 1. Failure to Appoint a Mental Health Expert Appellant contends in his thi rd issue that the trial court committed reversible error when it denied his request to appoint an expert. We review the denial of a request for the appointment of a mental health expert for an abuse of discretion. Ake v. Oklahoma , 470 U.S. 68, 82

- 82, 86 (1985); Griffith v. State , 983 S.W.2d 282, 287 (Tex. Crim. App. 1998). Indigent defendants may have access to expert witnesses provided by the State for the preparation of a defense where the defendant has made a preliminary threshold showing with facts or evidence that the expert’s testimony will likely be a sign ificant factor in his defense or the State’s prosecution. Ake , 470 U.S. at 86; Griffith , 983 S.W.2d at 28 6

– 8 7

. The approval of an expert is warranted where there is a high risk of an inaccurate verdict and a fundamentally unfair trial if the defendant does not have an expert appointed. Busby v. State , 990 S.W.2d 263, 271 (Te x. Crim. App. 1999) ; Mason v. State , 341 S.W.3d 566, 568 (Tex. App.

— Amarillo 2011, pet. ref’d)

. Satisfying the preliminary condition requires more “than undeveloped assertions that the requested assistance would be beneficial.” Williams v. State , 958 S.W.2d 186, 192 (Tex. Crim. App. 1997). The reasonableness of the trial court’s decision is determined when it is made.
Mason , 341 S.W.3d at 568 ( citing Rey v. State , 897 S.W.2d 333, 342 n.9 (Tex. Crim. App. 1995) )

. The defendant has not met his burden of a preliminary threshold showing if his motion does not contain affidavits or other evidence that would support the need f or an expert witness for his defensive theory or show how the expert’s testimony would help in questioning the State’s expert witness and testing the proof. Rey , 897 S.W.2d at 341. Where the defendant has made his defensive theory clear and has outlined

— with factual allegations supported by5 affidavits or other evidence

— the need for an expert witness , the court should allow the appointment and retention of the expert witness. Id

. The State retained a mental health expert, Dr. Ralph Gail Hodges , to testify on the victim’s mental and emotional state following the sexual assault. Dr. Hodges testified in the trial that ended in a mistrial. Dr. Hodges did not testify at the second trial. In his second trial, Appella nt requested the court appoint a mental health expert in his defense to assist defense counsel in cross

- examining the State’s expert and in question ing the victim. Appellant sough t the appointment of th e expert because , in the words of Appellant’s counse l , it “would be
necessary . . . s omeone experiencing this from even before the traumatic incident and everything, or alleged traumatic event, this was not something that impacted their current state and that these types of behaviors tend to begin at an early age and tend to escalate as th e person goes into puberty and adolescence.” Appellant did not attach any affidavits or provide any factual evidence to show how his request for a psychiatrist or a mental health expert aided his defense

. Undeveloped assertions do not suffice , and that is all that Appellant provided in his motion

. T he trial court did not abuse its discretion when it denied the motion for the appointment of a mental health expert

. 2. Trial Court’s Denial of Testimony from Alleged Computer Expert Johnson The trial court did allow Appellant to retain a computer expert , Scott Johnson, to explore the issue of authenticating the e

- mails sent between Appellant and K.C. During the trial, Appellant attempted to qualify Johnson as an expert

. The trial court did not allow him to testify. In this part of his third issue on appeal, Appellant claims that the trial court abused its discretion when it refused to allow Johnson to testify. We will review the alleged error for an abuse of discretion. Vela v. State ; Rodgers State ; Jordan v. Stat e ; 2 (criminal law) ; Daubert

- Robinson 3 (civil law)

.

2 Vela v. State , 209 S.W.3d 128, 133 (Tex. Crim. App. 2006) (three

- step inquiry before admitting expert witness testimony: qualification, reliability , and relevance); Rodgers v. State , 205 S.W.3d 525 , 527 (Tex. Crim. App. 2006); Jordan v. State , 928 S.W.2d 550 (Tex. Crim . App. 1996) (reliability and relevance standards for admissibility); see also Teczar v. State , No. 11

- 07

- 00075

- CR, 2008 WL 4602547 (Tex. App.

— Eastland Oct. 16, 2008 , no pet.) (mem. op. , not designated for publication ).

3 Daubert v. Merrell Dow Pharm s ., In c. , 509 U.S. 579 ( 1993) (expert testimony on scientific knowledge must be helpful to factfinder and valid and reliable scientific testimony); see also Gammill v. Jack Williams Chevrolet, Inc. , 972 S.W.2d 713 (Tex. 1998) (expert must be qualified and reliability standard applies to all scientific expert testimony) ; E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549 ( Tex. 1995) (expert witness must be qualified and provide reliable opinions)

.6 The trial court must make three separate inquiries before admitting expert testimony: (1) whether the witness ’ s knowledge, skill, experience, training, or educ ation qualifies him as an expert; (2) whether the subject matter is an appropriate one for expert testimony; and (3) admitting the expert ’s testimony will assist the factfinder in deciding the case. Vela , 209 S.W.3d at 131 ( citing Rodgers , 205 S.W.3d at 527 )

. The initial qualification process under Rodgers has been outlined as “ (1) ‘ is the field of expertise complex?’; (2) ‘ how conc lusive is the expert ’ s opinion?’; and (3) ‘ how central is the area of expertise to the resolution of the lawsuit? ’ ” Vela , 20 9 S.W.3d at 131 (quoting Rodgers , 205 S.W.3d at 528 )

. Reliability and relevance follow as independent inquiries : reliability focuses on whether the opinions are not only relevant to the issues, but have a foundation in science, while relevance is a broade r concept o f whether the evidence will assist the trier of fact and is sufficiently tied to the facts of the case. Vela , 209 S.W.3d at 132

– 33; Jordan , 928 S.W.2d at 55 4

– 55

. Johnson testified that he had a computer consulting business and that he engaged in computer forensics using En C ase forensic software

. Johnson indicated that he was completing

“ training for the NK certification and certified forensic examiner. ” 4 An inquiry into an expert’s qualification s based on experience alone must explore that w itness ’ s experience in the particular field in which the witness intends to give an expert opinion. A cursory reference to the witness ’ s credentials is insufficient to support expert status. V ela , 209 S.W.3d at 135

. When asked the question about what his testimony would involve in the case, Johnson replied that , because he had not been asked any questions, he did not know what his trial testimony would be. When asked again, Johnson testified that he was to determine whether the e

- mails allegedly betw een Appellant and K.C. were authentic. However, Johnson did not review the computers or examine the computers that were allegedly used by Appellant and K.C. He also testified that he could not use the En C ase software on the paper copies of the e

- mails

. Johnson was not certified and provided no background or experience for analyzing e

- mails without the forensic examination of computers using En C ase software. The trial court did not err when it decid ed that Johnson had not been shown to be qualified by hi s scientific, technical , or other specialized knowledge to give any opinions in this case.

4 Johnson never explained what NK certification meant

.7 But even if Johnson was qualified, which we do not hold, Johnson did not provide any scientific methodology that could be verified and replicated in evaluating his o pinions. In discussing reliability and relevance, the Jordan court held that an eyewitness identification expert who outlined several f actors , including “proactive inhibition , ” “weapon focus , ” “state dependent learning , ” and “memory hardening , ” all of which can affect the accuracy of eyewitness identification , was both reliable and relevant; his testimony “fit” the case where the issue was a disputed identification. Jordan , 928 S.W.2d at 55 2

– 56

. Unlike the Jordan expert, Johnson said that he was unab le to collect any information from the e

- mail providers involved with Appellant’s and K.C.’s e

- mail accounts in 2009. He also said that , although he ran tests on “ ssjthomas@mail.com ” and found that it was not a va lid

e

- mail address in 2011, he had not , and could not , run any tests for 2009. Johnson also testified that the e

- mails did not look “ authentic ” because of font discrepancies and the way the e

- mails did not match sample s that he had printed

. However, he advanced no reliable tests to prove that the e

- mails were M icrosoft Word documents , as he claimed, and not “authentic” e

- mails. The trial court correctly decided that Johnson could not testify as an expert

. Further, because he had no personal knowledge of the case, he could not testify as a fact witness

. In so ruling, the trial court did not abuse its discretion. Appellant’s third point of error is overruled. C. Point Four: Admission of E

- mail Evidence Appellant contends that the trial court committed harmful error when it admi tted the e

mails between Appellant and K.C. because the e

- mail s were not authentic ated

. In reviewing the trial court’s admission of the evidence under a n abuse of discretion standard, we will not disturb the ruling if it is within the zone of reasonable disagreement. Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). A gatekeeping function under T EX

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. 104 is undertaken by the trial court to determine whether the evidence is authentic under T EX

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. 901. Tienda v. State , 358 S.W.3d 633, 637 (Tex. Crim. App. 2012) (authentication and admissibility of information on social media site , MySpace )

. In conjunction with various circumstances, one can authenticate evidence by a ppearance, contents, substance, internal patterns, or other distinctive characteristics , including direct or circumstantial evidence. Shea v. State , 167 S.W.3d 98, 104

– 05 (Tex. App.

— Waco 2005, pet. ref ’ d) ( citing Wood v. State , 18 S.W.3d 642, 647 (Tex. Crim. App. 20 00); Massimo v. State , 144 S.W.3d 210, 215 (Tex. App.

— Fort Worth 2004, no pet.) ) ; see also Tienda , 358 S.W.3d at 637

. An e

- mail may be properly authenticated if its appearance, contents, substance, or other8 distinctive characteristics, taken in conjunction with the circumstances, support a finding that the document is what the proponent claims it to be

. Tienda , 358 S.W.3d at 637; Shea , 167 S.W.3d at 105 ; Massimo , 144 S.W.3d at 216

. In Shea , the court held that e

- mails were authentic and admissible where complainant testified that she was familiar with Shea’s e

- mail address and had received six e

- mails from him. Shea , 167 S.W.3d at 105. K.C.’s mother testified in this case that Appellant ’s e

- mail address ha d been “ ssjthomas@mail.com ” and that she was familiar with it because she had exchanged e

mails with Appellant. Likewise, K.C. testified about her e

- mail address and Appellant’s e

- mail address

. K.C. testified that , before the sexual assault, Appellant said she was “beautiful , ” which is how Appellant referred to her in an e

- mail sent in a response to an earlier e

- mail that K.C. had
sent to him

. Further, as we have outlined, the content of the e

- mails responded to previous e

mails and referred to matters that only Appellant and K.C. would know. The trial court did not abuse it discretion when it admitted the e

- mails

. Appellant’s fourth point of error is overruled.
D. Point Five: Improper Jury Argument Appellan t contends that the State’s closing argument was improper because the prosecutor said that none of the elements the S tate had to prove were in question and the S tate proved its ca se beyond a reasonable doubt. Appellant further complained that the prosecut or improperly commented during the punishment phase that Appellant had not taken “ responsibility for his actions

. ” When we review alleged improper jury argument, we review the argument in the context of the entire argument and not in isolat ion

. Castillo v. State , 939 S.W.2d 754, 761 (Tex. App.

— Houston [14th Dist.] 1997, pet. ref ’ d); Williams v. State, 826 S.W.2d 783, 785

– 86 (Tex. App.

— Houston [ 14th Dist.] 1992, pet. ref ’ d). Jury arguments by the State are proper when they fall into one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to the defendant ’ s argument; or (4) a plea for law enforcement. S mith v. State , 898 S.W.2d 838, 845 (Tex. Crim. App. 1995 ) ; Landry v. State , 706 S.W.2d 105, 111 (Tex. Crim. App. 1985)

. We will not overturn a conviction merely because an isolated closing

- argument remark was made; not every inappropriate remark requires reversal. Lagrone v. State , 942 S.W.2d 602, 619 (Tex. Crim. App. 1997); Hernandez v. S tate , 819 S.W.2d 806, 820 (Tex. Cr im

. App. 1991). An improper jury argument constitutes reversible error only if, “in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new9 facts, harmful to the accused, into the trial.” Felder v. State , 848 S.W.2d 85, 95 (Tex. Crim. App. 1992)

. The prosecutor in this case summarized the evidence in closing argument and stated as a conclusion that all elements had been proven beyond a reaso nable doubt. Having reviewed those elements, the prosecutor asserted that the evidence showed the elements were not in question and that the evidence for each element was sufficient proof beyond a reasonable doubt. Appellant objected that the prosecutor’ s statements were improper, but the trial court overruled the objection. Because the prosecutor’s comments were a summation of the evidence, they were not improper , and the trial court did not err in overruling Appellant’s objection. During the punishme nt phase, the prosecutor stated that he thought Appellant ha d not

“ take [ n ] responsibility for his actions ” in the case , and Appellant objected. The trial court sustained the objection and informed the parties that it would not consider the prosecutor’s

co ntention in assessing punishment. Appellant received all of the relief that he had requested from the trial court. Appellant’s fifth point of error is overruled. This Court’s Ruling We affirm the judgment of the trial court

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MIKE WILLSON JUSTICE

April 25, 2013 Publish. See T EX

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. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J. , and Willson, J.