### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00015-CR

Charles Richard Wi

llits, Jr. , Appellant
v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF TRAV IS COUNTY, 299 TH J

UDICIAL DISTRICT NO. 0994567, HONORAB LE J ON N. WISSER, JUDGE PRESIDING

A jury found a ppe lla

nt Ch arles Richard Willits, Jr. , guilty of one count of indecency

with a chi ld by expo sure, two count s of indec ency with a child by

contact , and six counts of sexual assault of a child. See Tex. Penal Code Ann
. §§ 21. 11(a), 22. 011(a)( 2) (West Supp. 2000). The district court assessed punishment at imprisonment for ten year s for the fir st count, and at imprisonment for fifteen years for the remaining counts. We affirm the judgments of conviction. Appellant

was the youth pastor

at a large Austin church. The complainant began attending youth services and participating in other youth activities at the church in 1994
. A ppellant befriended the boy, who had recently moved to Austin with his mother and sister following the d

ivorce o f his pa rents. Their r elationship became sexual during the summer of 1995, when the complainant was fourteen. Appellant took the complainant on an overnight trip to Arlington for a baseball game. Appellant “ cuddled” with the complainant in their motel room,2

lying on top of the boy and hugging him for about ten minutes wh ile b oth were fully clothed. Appellant began to p

urchase gifts

for the complainant, and took him to movies and dinner on a regular basis. The complainant said that appellant’s attention made him feel “ privileged” and

“ specia l. ” The complai nant often spent the night at ap pella nt’s h ouse . After ap

pella nt’s w ife went to sleep, he and

the boy would “ cuddle” in the spare bedroom, now without their clothing. Appellant and the complainant fondled and masturbated each other, and on a f ew occ asions engaged in oral sex. Once, appellant placed his penis in the complainant’s anus. The complainant estimated th at he and appel lant engaged in sexual acti vities at least twenty ti mes.

Appellant ended the sexual relationship with the complainant in January 1996. Appellant told the co mplainan

t t hat he, the compl ainant, was “not in a good relationsh ip with God” and they could no longer be close. Appellant also told the complainant that church memb ers

“ would n’t believe in God any

more” if the compl a ina nt told them about app ellant’s

conduct. Needless to say, the complainant’s experiences with appellant left him confused, ag itated, and depressed. In April 1998, he told his mother and several fr iends what had happened.

Appellant contends the dist rict court should ha

ve granted a mi strial when th e complainant

refer red to extr aneous misconduct during his testimony. The complainant was asked by the prosecutor why he was “ here today talking about this embarr assing subject. ” He answered,

“ I’mhere t oday because
. . . who knows what other people he could have done this to. And I know that I’m pr obably not the o nly one. I mean , I don’t know, but it just

seems to me that i

t could easily have happened to some body else. ” A p pellant objected to the complainant3

“ speculating” and testifying about alleged extraneous conduct. The objection was sustained and the jury was instructed to disr egard, but appellant’s motion for mistr ial was overruled.

A mistrial iscalled for when ther e is error so prejudicial that continuation of the trial would be futile. Ladd v. State , 3 S. W. 3d 547, 567 (Tex. Cri m. App. 1999). As a general rule, testimony err oneously refer ring to or implying extraneous offenses can be ren dered harm less by an instruction to disregar d. Kemp v. State , 846 S. W. 2d 289, 308 (Tex. Crim. App. 1992)
. Anin st ruc ti on wi ll be in suff ic ient only if th e e vi denc e w as

so cl ea rl y calculat ed to inflame the minds of the jur y or is of such damn ing char acter as to suggest the impossibility of removing the harmful impression from the jur ors’ minds. Id
. The denial of a mistrial motion is r eviewed for an abuse of discretion. Ladd , 3 S. W. 3d at 567.

The complainant

did not state as a fact that appellant had engaged in similar conduct with other per sons, but merely indicated his suspicion that app ellant might have done so. The
remar k, if improper, was not so inflammatory or unfairly prejudicial as to be in curable by th e court’s instr uction to disregard. The cour t did not a buse its discretion by overr uling the motion for mistr ial. Issue one is overruled.

Appellant al so mo ve d f or a mistrial dur ing the testimony of Kathlene Mann, one of the first per sons to whom the complainant described his activities with appellant. Mann was asked if she noticed

any “ distressing behavior” on the complainant’s part after his outcry. She answered, “ A great deal. I mean, he was— he was very upset at the thought that— that this had to be come public knowledge. ” Appellant objected on the ground of hearsay. Once again, th e4

objectionwa s s

us ta in ed and t he ju ry w as in st ructe d t o d

isreg ard , but appe llant’s motion for mistrial was overr uled.

A statement of

the decl arant’s then e

xisting s tate of mind

or emotion is a

dmissi ble
as an exception to the hearsay rule. Tex. R. Evid. 803(3). Moreover, both the complainant and other witness es testifie d to the an guish fel t by the complainan

t, his depres sion, and his e rr atic behavior both before and after the sex ual abus e became public. Reversible err or is not pr esented. Issue two is overruled.

Appellant brings forwar d two issues regarding the testimony of Kenneth Lanning,
a Supervisory Special Agent with the F ederal B ureau of Invest igation. F or t he past twenty years, Lanning has been ass igned to the Nationa l C enter for the Analysis of Violent Crime, where he specializesin the study

of sexual victimization of children. Lanning testified that his studies and experience have led him to classify persons who sexua lly vic timize children into two br oad categor ies: (1) situational offenders, who victimize children because they are weak or available; and (2) pr efer ential of

fender s, wh o have a true sexual prefer ence for childr en. Among prefer ential offenders, the most common behavioral pattern is the seduction type. According to Lanning, a seduction

type prefer ential offender seduc es, or grooms, his chil d victim in t he same
manner a man might

seduce a woman. After finding a child to whom he is attr acted, the offender will shower the child with attention and affection, while gr adually see king t o lowe r the chi ld’s inhibitions and manipulating the child into sexual activity. Lanning believes that boys between the ages of ten and sixteen are the most susce ptible to such seduction.1 Appellant also cites rule 402, whichgenerally provid es for the admission of all relevant

evidence and the exclusion of irrelevant evidence. Tex. R. Evid. 402. 5 L anning testified that seduction type offenders usually have very good interper sonal skills, particular ly with children, and often choose a hobby or oc cupation

that will pu

t them in contact with children who fit their age and gender prefer ence. Such offenders tend to be of above average intelligence and

from high er soci oeconomic back grounds
. It

is not uncommon for them to be marr ied. Their sexual prefer ence for childr en reveals little about their per sonality, and they
rar ely fit t he ster eotype our society has of c hild sexual ab users.

Appellant fi rst contends that Lanning’s testimony was inadmiss ible under Texas Rules of Evidence 702. Rule 702 provides for t he admission of expert testimony when “ scientific, technical, or other specialized knowledge will ass ist the trier of fact to understand the evidence
or to determine a fact in issue. ” 1 The proponent of scientific or technical evidence under r ule 702 has the burden of

demonstrating by clear and c onvincing evidenc e that the

evidenc e is both

reliable and relevant. Kelly v

. State , 824 S. W. 2d 568, 573 (Tex. Crim. App. 1992). Appellant does not question Lanning’s expertise and concedes that Lanning’s testimony was reliable. Appellant urges that Lanning’s t

estimon y was no t relevant. In differ entiating relevance fr om reliability, the Texas Court of Cr iminal Appeals stated:

Relevance is by nature a looser notion than reliability. Whether evidence
“ will ass ist t

he trier of fact” and is su fficien tly tied t o the facts of the case is a sim pl er, more str aight-forwar d matter to establish than whether the evide nce i s sufficien tlygrounded in science to be reliable. This is not to say that the relevancy in qu iry will alwa

ys be s atisfied
. . . . The expert must make an e ffort to ti e pertinent facts of the case to thescientific principles which are the subject of his testimony. Establishing this connection is not so much a matter

of pro of , ho wever, as a matter of application.6

Jordanv. State , 928 S
. W. 2d 550 , 555 (Tex. Crim. App. 1996)
.

Appellant argues that Lanning’s testimony was not adequately tied to the facts of this ca se . La

nnin g d id no t re ad th e o ff en se rep ort or wi tness statements, did not hear any of the testimony, and was not asked any hypothetica l questions based

on the facts of this

case. His testimony was based s olely onhis stu dy and ex perience ove

r the course of hiscareer. Lanning expressed the hope that his testimony would give the jurors “ some insight and understanding about certain kinds of offenders” that would help them assess and evaluat e the evi dence b efore them. Appellant points out , however , that the pr osecutor had quest ion ed th e j uro rs du

ring v oir di

re regar ding the characteristics and m et ho ds of se x o ff enders . Appe ll an

t a rgu es th at th e j uro rs we

re shown to have a

good understanding of

child sexual abuse and did not need further infor mation of the sort pr ovided by Lanning.

The issue in Jordan was the admissibility of a defense expert’s testimony regarding the reliability of eyewitness testimony. As appellant does here, the State argu ed agai nst the admission

of the proff

ered testimony on the ground that the subject matter was within the common knowledge of the jur ors. See id
. at 556. The court of cr iminal appeals answered that argument as follows:
Whilejuror s might have their own notions about the reliability of e yewitness identification, that does not mean they would not be aided by the studies and findings of traine d psychol ogis ts on the is sue . If the s cien tific b asis

of [t h e expert’s] testimony is sound(an issue not now before us and one we do not now decide) , i t could have aided the jury by either validating or calling into question theirown in

clina tions
. If a juror’s “ gut” or common sens e beliefs about ce rtain fa ctors were to be called into question by [the expert’s] testimony on the issue, the juror woul d b e p ro mpt ed to reconsider pr econceived notions that he might other wise have been unaware of when reviewing the facts of the case. On the7

other ha nd, if a jur or’ s precon ceived noti ons wer e confir med by [t he exper t’s] testimonyon the issue, the juror could proceed w ith g reater confidence on that issue.
I d
. In the same way, Lanning’s testimony validated, challenged, or supplemented any preconceptions th e jurors in this ca use migh t have ha d regarding child se

xual abus e and ch

ild sexual abusers. We also note, although this argument is not specifically raised by appellant, that Lanni ng’stestimony sufficiently “ fit” the facts of this case. See id
. The dist rict co urt did not abuse its d

iscret ion by overruling

appe llant ’s objection to the relevance of Lanning’s testimony. Alternatively, appellant urges that Lanning’s testimony should not have been admitted because its relevance was outweighe d by the danger of unfair prejudice. See Tex. R. Evid. 403. Appellant argues that the testimony added little to what the jury alr eady knew about child sexual abuse, and therefor e was not needed by the S tate. We have already expla ined, ho wever, that Lannin

g poss esse d an expe

rti se concer ning the behavior of sexual victimizers of children that coul d

have assisted the jury in understanding and evaluating the evidence. See Nenno
v. State , 970 S. W. 2d 549, 562 (Tex. Crim. App. 1998). Appellan t a sserts that La

nning ’s testimonyraised the possibility that the jury w ould v ote to convict because appellant “f its the description of a sexoffender. ” Lanning repeatedly testified that ther e was no single “ profile” by whichto identify t

hose who sexua

lly victimiz e children. We are not persua ded that Lanning’ s testimony had an undue tendency to sugges t decision on

an impr oper basis. See Cohn v. State , 849 S. W. 2d 817, 820 (Tex. Cri m. App. 1993). No abuse of discretion is shown. Issue three is
overr uled.8 Inissue fou

r, a ppellant

contends the dist rict court err ed by refusing t o give this limiting instruction r egarding Lanning’s testimony:

You have heard evidence in this cause from Special

Agent K enneth Lanning of the FB I. You are instructed that his testimony was not intended and may not be used by you to de

termine wheth er [the co mp la in an t’ s] cl aims

are tru e. You

are further inst

ructed t hat A gent Lanni ng’stestimony was not intended and may not be used by you as any evidence of the character of

the Defendant in this cause. Appellant relies on Tex as R

ule o f Ev idenc e 105(a), which provides that when

evidenc e is introduced for a limited purpose only the court should instr uct the jury to r estrict its consideration of the evidence to its proper scope.

We understand appellant to argue that Lanning’s testimony was evidence of “ other crim es, wrongs or acts” that wa s n ot ad mi ss ib le to pro ve hi s c ha racter, although it may have been admiss ible for another purpose. See Tex. R. Evid. 404(b)
. This ar gument f ails because Lanning did not testify to other acts committed by appellant, and there is no indication in the recor d that Lanning’s testimony was offered for a limited purpose. Appellant

cites no authority supporting the notion tha

t a tria l cour t sh ould inst ruct the jury not to con sider relevant ev idence i n determining the defen

dant’s gu ilt. Under the circumstanc es shown, it would have been

improper for the court to single out Lanning’s testimony and comment on it in a special instruction. See Caldwe ll v. State , 818 S. W. 2d 790, 799 (Tex. Cri m. App. 1991); Tex. Code Cr im. Pr oc. Ann. art. 36. 14 (West Supp. 2000). Issue four is overr uled.

Appellant’s next issue concerns this portion of the State’s opening jury argument at the gui lt stage

of trial:9 And so a 13-ye ar-oldkid from a Ka nsas farm comes tothe big city, and he gets all the answers [to his questions about religion] from this per son right her e. It comes right out o f his mouth. The same person that will put his

hands on his face and b aptiz e him i

n the name of t he Father an d the Son and the H oly Ghost will use thos e same

hands to touch him, the same mouth that he s peaks to him with with B iblical [sic ] to seduce him and touch him w

ith his mouth. I can’t stan d to be in the r

oom with h im myse lf. (Emphasis

adde d. ) Appe llant

obje cted to the prosec utor’s p ersona

l remark. Th e prosecu tor ap ol og iz ed

and a sk ed th e c ou rt to ins truct

th e j ury to di sr eg ard
. Th e c ou

rt gave the instruction, then overruled appe llant’s mo tion for mistrial. The State concedes tha t the pro se cu

to r’srem ark
wa s i mp rop er. Anin st

ruc ti on to di sr eg ard

im proper ju ry a rgu ment is general ly

suff ic ient to cu re the error. See Ma rtinez

v. State , 1 7 S. W. 3d 677, 691 (Tex. Crim. App. 2000) (arguing f acts not inrecord); Dinkins

v. State , 894 S. W. 2d 330, 357 (Tex. C rim. App. 1995) ( attack on def ense
coun sel) ; Long v. State , 823 S. W. 2d 25 9, 269 -70 (Tex. Cri m. App. 1991) (comment on defen dant ’s failure to testify). In the opinions onwhich appe llant relies, defense objectio ns to improper arguments were over ruled and no instructions to disregard wer e given. See Wilson v. State , 938 S
. W. 2d 57, 58-59 (Tex. Crim. App. 1996) ; Bray v. State , 478 S. W. 2d 89, 90 (Tex. Crim. App. 1972)
. We be lieve the d istrict court’s admonition was sufficient to cure the err or and
overr ule issue five.

Appellant orally moved for a mistrial while the jury was deliberating his guilt. The basis for the motion was alleged jur y misconduct. At a hearing on the motion, a person who had attended th e t ria l t esti fi ed th at she o verhe ard

a conversation between juror s Sodaquist, Stovall, and Taylor during a br eak

in which one of them said, “ They’re gr asping or they’r e grabbing at straws10

now and they don’t have very many left. ” Defense counsel’s legal assis tant also testified at the hearing. She said she

overhear d juror Stovall tell juror s Sodaquist and Gut m an during a br eak following the testimony of appellant’s wife, “ You know that bitch was suspicious. ” The motion for mistr ial was overruled.

After appellant had been convicted and sentenced, he filed a written “ motion for mistrial and arr est of

judgment” again raising the alleged improper jury conver sations. A hearing
was held on the motion at which juror s Gutman, Sodaquist, and Stovall testified. Gutman did not recall having an

y conversat

ion with S odaquist an d St oval l regarding any s uspi cion s ap

pella nt’s wifemight have had, and believed it unlikely that the alleged statement was made
. Sodaquist and Stova ll testified that they did not remember anyconversation during which the phr ase “ grasping at straw s” was used. Neither was asked about the other alleged r emark. The district co ur t
overr uled the motion at

the conclusion of the hearing. Appellant subsequently filed a motion for
newtrial citing the alleged jury misconduct and other gr ounds. This motion was overr uled by operation of law.

Inissue six, appellant

contends the court err ed by overr uling the oral motion for mistrial. Appellant’s brief does not present any argument or cite any

authority in support of this contention. See Te x. R. Ap p. P. 38. 1(h) ( appellant’ s brief must contain argument and authori ties for contentions ma

de). Issue six is overruled as inadequately briefed. See Dunnv. State , 951 S. W. 2d 478 , 480 (Tex. Crim. App. 1997)
.

Issue seven complains of the overr uling of the written moti on for mistr ial and of the motion for new trial. Appellan t had the b

urden of proving the all eged mis conduct. See11

Hughes v. State , 2 4 S. W. 3d 833, 842 (Tex. Cri m. App. 2000). B ecause there was conflicting testimon y as towhether the alleged conversations occurr ed, there was no abus e of discretion in
overr uling the motions on that ground. See id
.

Among the other gr ounds alleged in the motion for new tr ial was the contention that the court mater ially err ed by admitting F B I Agent Lanning’s testimony. Appellan t reurges this contention on appeal, butmerely r efers us to the argument under issue three. Having overr uled that issue, we need not discuss the matter fur ther. Appellant also contended that he was denied effective assistance of couns el when he was arrested during tria l for an offense c ommitted in another county. While ap pella nt repeats this contention on appeal, he offers no suppor ting argu ment and cit es no author ities. See Dunn , 951 S. W. 2d at 480. Issue seven is ove rr uled. The district court prepared sep arate judgmen ts for each co

unt. The judgments of conviction are affir med.

Jan P. Patter son B efore Chief

Justice Abouss ie, Justices B
. A. Smith and Patterson Affirm ed F iled: January 25, 2001 Do N ot Pu blish12