COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

L ARRY THOMAS FL ETCHER, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00122- CR

Appea l from 227th District Court of B exar County , Texas (TC # 2007CR8976)

O P I N I O N L arr y T h o m as Fletc her appea ls his conviction of ag g rava ted sexual assault of a child, enhanc ed by

two prior felony

convictions. A jury

found Appe llant guilty , found the e nhance ment para g raphs true, and assessed his punishment at i m p ri sonment for 99 y ear s. We modify the judgme nt to show a plea of true and a finding of true to both t h e fi rs t and second enhanc ement alleg ations and af

firm the judg ment as modified.

F ACTUAL SUMMA RY I n 2003, ten-y ear -old A.R. lived with her mother and Appellant, who is her stepfathe r. One night, Appellant came into the room share d by A.R. and her stepsister. Appellant woke her up and told her to be quiet. He s at d o wn o n t he bed and pulled down her pajama bottoms and panties. Appellant then took off his pants and climbed on top of her. When he inserted his peni s i n t o h er vag ina, it hurt “re ally bad.” A.R. tried to scre am but Appellant had his hand over her mouth. After

a few minutes, Appellant finished and g ot up. A.R. saw blood on the sh ee t s an d o n Appellant’s penis. He told A.R., who was cry ing, to clea

n up in the bathroom. He threatene d to “g o afte r her mother” if A.R. told any one what had happene d. When A.R. returne d to her bedroom, she saw thatthe sheets on her bed had been chang ed. A.R. tried unsucce ssfully to wake her stepsister. She then

went to her older sister Stephanie’s room and told her what had happene d. Stephanie wanted to tell their mother but A.R. asked he r not to tell beca use she wa s afr aid Appellant would hur t her. A.R. continued living with her mother and Appellant, but her sister’s boy friend put locks on the bedroom door. A.R. beg an li ving with her fa ther a nd stepmother whe n she wa s thirteen. A.R. did not tell any one else about the sexual assault until she went to Chicag o with he r aunt that same y ear . They

wer e watching a movie toge ther which involved an incident simil ar to what had happene d to her and A.R. beg an cry

ing. When her aunt asked what was wrong , A.R. told her what Appellant had done. The aunt wanted to tell A.R.’s fathe r but A.R. said that she wanted to tell him herse lf. One evening , A.R. told her fathe r what Appellant had done. They went to the police station the next day and A.R. made a statement to a police office r. A.R. also underw ent a sexual as s ault examination and counseling at Child S afe

. At trial, Stephanie testified tha t one eve ning, A ppellant ca me t o her bedroom but he could not ope n the door beca

use she had loc ked it. Appellant aske d her f or a lig hter but she told him no and he left. Stephanie noticed that Appellant was intox icated. The following morning , A.R. went to Stephanie’s bedroom. A.R. was cry ing and upset and initially did not want to tell Stephanie what had happene d. Stephanie sat A.R. down on her bed and made her talk. Cry ing and hy sterica l, A.R. finally told Stephanie that Appellant had rape d her. A.R. did not want to tell her mother beca use she

was afr aid. Stephanie told their mother later that day but she did not take it seriously

. Stephanie kept A.R. with her more often to protec t her fr om Appellant. Nanc y Kellog g , M.D., a pediatric ian, is the medical dire ctor of Child Safe. Child Safe is a

-2-nonprofit orga nizatio n which assesses, evalua tes, and treats victims of sex ual abuse. Dr. Kellogg testified reg arding the examination of A.R. beca use the nurs e wh o had perf ormed the exam had retire d due to medical issues. As part of her reg ular duties, Dr. Kellog g revie wed the rec ord and the photogr aphs the day afte r the examination. Dr. Kellog g rela ted the history , A.R.’s descr iption of the sexual assault, and the finding s of the g enital exam. A.R. had a complete heale d tear to the hy men at 8 o’cloc k which was documented by the exam i n er . Ba sed on her revie w of the photogr aph, Dr. Kellog g believed there may have been a second complete heale d tear at 4 o’cloc k. The evidenc e of the heale d tear s of the hy men indicated there had been penetr ati v e t rauma consistent with the history g iven b y A. R

. Dr

. Kellog g also testified as an expert reg arding “patter ns of disclosure.” Dr. Kellog g had survey ed 500 people who had been abused as children and fo und that a delay in disclos ure was common. The avera g e ti me i t took for a child or adolescent to tell someone about the abuse was 2.3 y ear s. The rea sons why abused children did not tell about the abuse included fea r of what would happen to their family or fea r that no one would believe them. I t w as also common for a child to delay making an outcry to an adult about the abuse if the perpe trator had threa tened to harm someone the child loved. I t was not uncommon for a child to w ait four y ear s befor e making

an outcry

. Sometimes there was a trig g er such as a s chool prog ram, television prog ram, or a

conver sation that led them to tell. Other children told be cause they could not hold it inside or deal with it alone any

longe r. Ker ry Ba rtholomew testified for the defe nse. Ba rtholomew had known Appellant for thirty

five y ear s and Appellant had worke d for him for sever al y ear s. Ba rtholomew al s o k n ew A.R.’s mother, Diane. Five to six y ear s befor e trial, Diane told Ba rtholomew that one of her daug hters had been se x ually

assaulted by

a neig hbor or the postman.

-3-The jury reje cted Appellant’s defe nse and found him g uilty of ag g rava ted sexual a ssault of

a child as alleg ed in the indictment. Appellant enter ed a pl ea o f true to both of the enhanc ement alleg ations. The jury found the enhanc ement alleg ations true and assessed Appellant’s punishment at imprisonment for 99 y ear s. READING

OF THE I NDICTMENT I n Point of Error One, Appellant alleg es that the trial court abused its discretion by deny ing his motion for mis trial. After rea ding the body

of the indi ctment aloud, the prosecutor apparently beg an to rea d the enhanc ement para g raphs, stating “Enha nceme nt alleg ation.” She quickly stopped, skipped to the bottom of the indictment, and rea d the concluding statement, “Ag ainst the peac e and dignity of the State, signe d fore man of the g rand jury .” The trial court asked Appellant for his plea and Appellant replied, “Not g uilty , Your Honor.” The court enter ed the not-g uilty p l ea on the minutes of the court and defe nse counsel approa ched the bench. Counsel moved for a mistrial beca use the prosec utor had u tt e r e d th e w o r d s “ e nh a n c e me n t a ll e g a

ti o n ” w h il e rea ding the indictment. The trial court denied the motion but offe red to instruct the jury

. Counsel ref used the offe r beca

use he did not want to dra

w attention to the matter. We revie w the trial court’s denial of a motion for mistrial for an abuse of discretion. Russeau

v. State , 171 S.W .3d 871, 885 (T ex . C ri m .App. 2005); Ladd v. State , 3 S.W .3d 547, 567 (Tex.Crim.App. 1999). We must uphold the trial court’s ruling if it is within the zone of rea sonable disag ree ment. Archie v. State , 221 S.W .3d 695, 699 (Tex.Crim.App. 2007). A mistrial is require d only in extreme circ umstances wher e the prejudice is incura ble. Hawkins v. State , 135 S.W .3d 72, 77 (Tex.Crim.App.2004). Prejudice is incura ble when the objectionable mater i al i s clea rly calc ulated t o i n flame the minds of the jury or was of such a damag ing char acte r as to sug g est it

-4-would be impossibl e to remove the harmful impression from the jurors’ minds. See Ladd , 3 S.W .3d

at 567; Rojas v. State , 986 S.W .2d 241, 250 (Tex.Crim.App. 1998). The first issue is w hether Appellant failed to pr eser ve the issue by ref

using the trial court’s offe r to instruct the jury to disreg ard. A d ef endant is not require d to reque st an instruction to disreg ard if the prejudice from the err or is incura ble. Y oung v. State , 137 S. W

. 3 d 6 5 , 69 (Tex.Crim.App. 2004). I f t h e alleg ed err or is cura ble, howeve r, the party who fails to reque st an instruction to disreg ard w ill have forf eited appe llate re view. Id . at 70. Appellant arg

ues that the prosec utor intentionally rea d the words “enha nceme nt alleg ation” in an eff ort to prejudice the jury ag ainst Appellant at the outset of the trial. He rea sons that the err or must have been intentional beca use the trial court had just moments ear liest g rante d his reque st for

a motion in limine and had instructed the prosec utors to not mention Appellant’s prior convictions without first approa ching the bench. T h er e i s no indication in the rec ord that the prosec utor intentio n a ll y r e a d th e s e words. I nstead, she immediately skipped to the conclusion of the indictment. We are also unable to conclude that the m inds of t he jurors would have been inflamed by h ear ing “enha nceme nt a lleg ation.” I t is doubtful that a lay person would know that those words mean that Appellant had p ri o r fe lony convictions. Appellant does not point to any thing in the rec ord supporting a contra

ry conclusion. Be cause the err or was cura ble, Appellant waived appellate revie w by not asking for a

n instruction to disreg ard. We ove rrule Point of Err or One

. NURSE’S EXAMINATION REP ORT I n Point of Error Two, Appellant contends the trial court abused its discretion by permitting Dr. Nancy Kellog g to testify reg arding the re port prepa red by the nurse w ho perf

ormed the sex ual assault examination. Appellant relies on Crawf ord v. W ashington , 514 U.S. 36, 124 S.Ct

. 1354, 158

-5-L .Ed.2d 177 (2004) in support of his a rg ument. We reviewdecisions to admit or exclude evidenc e under the abuse of discre tion standard. Shuffield v. State , 189 S.W .3d 782, 793 (Tex.Crim.App. 2006). The trial court abuses its discretion only when the decision lies “outside the zone of rea sonable dis agr eeme nt.” W alters v. State , 247 S.W

. 3 d 2 04, 217 (Tex.Crim.App. 2007). The Confrontation Clause of the Six th Amendment g uara ntees that in all criminal prosec utions, the ac cu sed has the rig ht to be confr onted with the witnesses ag ainst him. U.S.C O N S T . Amend. VI

. This proce dural g uara ntee applies to both fede ral and state prosec utions. Pointer v. Texas , 380 U.S. 400, 403, 85 S.Ct

. 1065, 13 L .Ed.2d 923 (1965); De La Paz v. State , 273 S.W .3d 671, 680 (Tex.Crim.App. 2008). Consist ent with this g uara ntee, a testimonial hear say statement may be admitted in evidenc e ag ainst a defe n d an t “only wher e the decla rant is unavai la

b le , and only wher e the defe ndant has had a prior opportunity to cross-e x amine.” De La Paz , 273 S.W .3d at 680, quoting Crawford v

. W ashington , 541 U.S. a

t 59, 124 S.Ct. 1354. Appellant complains that the examination repor t, State’s Ex hibit 4, is a testimonial hear say statement. But Appellant did not lodge any objection to the admission of Ex hibit 4. When the State called Dr. Kellog g as a witness, Appellant objected outside the jury ’s prese nce to all of her testimony beca use she did not conduct the sexual assault examination. Appellant arg ued that hi s rig ht to confr ont the witnesses ag ainst him would be violated if Dr. Kellog g testified about the repor t. The trial court overr

uled the objection. Once a document is admitted into evidenc e, a witness may rea d the document aloud. Ace ve d o v. S tate , 255 S.W .3d 162, 171 (Tex.App.--San Antonio 2008, pet. ref ’d), citing W

heatfall v. State , 882 S.W .2d 829, 837-38 (Tex.Crim.App. 1994). And as an expert witness, Dr. Kellog g was permitted to testify reg arding the materia ls she revie wed, including Ex hibit 4. See T E X .R.E V I D . 703, 705(a)

. Any complaints Appellant had about the admission of the repor t

-6-wer e wa ived by his failure to objec t. T E X .R.A P P .P. 33.1. W e over rule Point of Error

Two. EXP ERT TE STIMONY I n Point of Error Thr ee, A ppellant ar g ues the trial c ourt err ed by permitting Dr. Kellog g to offe r irrele vant opinion testimony reg arding p at t erns of disclosure. Appellant maintains that Dr. Kellog g had not bee n qualified a s an expert on this subject. Rule 702 states: I f scientific , technica l, or other spe cialized knowledg e will a ssist the trier of fa ct to understand th e ev i dence or to deter mine a fac t in issue, a witness qualified as an expert by knowledg e, skill, experience , training , or education may testify there to in the form of

an opinion or otherw ise. T E X .R.E V I D . 702. Be fore ad mitti ng expert testimony under Rule 702, the trial court must be satisfied that three conditions are met: (1) the witness qualifies as an expert b y re as o n o f his knowledg e, s k i l l , ex perie nce, training , or education; (2) the subject matter of the testimony is an appropr iate one for expert testimony ; and (3) admitting the expert testimony will actua lly assist the fac tfinder in d ec i d i ng the case . Rodgers v. State , 205 S.W .3d 525, 527 (Tex.Crim.App. 2006). These three conditions are commonly ref err ed to as (1) qualification; (2) reliability ; and (3) rele vance . Vela v. State , 209 S.W .3d 128, 131 (Tex.Crim.App. 2006). This case conce rns only the first and third conditions. A trial court has g rea t disc re t i o n in deter mining whether a witness possesses sufficie nt qualifica tions to as s ist the jury as an expert on a specific topic in a particula r

case . Rodgers , 205 S.W .3d at 528. We will first consider whether the trial court abused its d is c r e tion by deter mining Dr. Kellog g

was qualified to testify as an expert witness in the field of child sexual abuse and patterns of disclosure. Dr. Kellog g is a profe ssor of pediatric s at the University of Texas Hea l t h S ci ence s

-7-Center. She works with three diffe re nt prog rams that evalua te children for suspected abuse. Dr.

Kellog g is the medical direc tor of Child Safe, wher e children are evalua ted for suspected s ex u al abuse. She also works at the Center for Miracle s at Christus Santa Rosa, wher e children are evalua ted for phy sical abuse and neg lect. Dr. Kellog g also conducts rese arc h in the field and teac hes other phy sicians about child abuse. She is board cer tified i n p ed i at ri cs and at the time of trial, expected to become board cer tified in the rec ently rec og nized specia lity of child abuse pediatric s later in 2009. Dr. Kellog g had published over fifty article s and book chapte rs reg arding child abuse and conditions confuse d with abuse. She had also participa ted in numerous studies rela ted to sexual abuse of children and patterns of disclosure. She explained that patterns of disclosure rela ted to why children tell, why they do not tell, and how long they wait to tell. Some of the studies examined the rela tionship betwee n domestic abuse in the home and whether the children will tell. Dr. Kellog g had perf ormed betwee n 8,000 and 9,000 sex u al as s ault examinations in her car eer . Finally , she had previously testified as an expert in sexual abuse. The rec ord supports a conclusion that Dr. Kellog g 1

was qualified by virtue of her education, knowledg e, training , and experience to testify as an expert in the field of c hild sex ual abuse and patter ns of disclosure. Appellant also arg

ues that the trial court abused its discretion by finding the expert testimony would actua lly

assist the jury in de ciding the case . To be rele vant, expert testimony must relate to the pertinent fac ts of t he case. Morales v. State , 32 S.W .3d 862, 86 5 (T ex . C rim.App. 2000); see

a l s o Exx on Pipeline Co. v. Zwahr , 88 S.W .3d 623, 629 (Tex. 2002)(holding that the re l ev an ce require ment for the admission of expert testimony incorporates traditional rele vancy analy sis under

S e e e . g . , R e

y e s v . S t a t e , 2 7 4 S

. W

. 3 d 7 2 4 , 7 2 9 ( T e x . A p p . - - S a n A n t o n i o 2 0 0 8 , p e t

. r e f ’ d )

. 1

-8-Texas Rules of Evidence 401 and 402, a nd is met if the expert testimony is sufficiently

tied to the fac ts of the case that it will aid the jury in resolving a fac tual dispute.). Evidence is rele vant if it has any tendenc y to make t h e ex i s t en ce of any fac t that is of conseque nce to the deter mination of the action more probable or less probable than it would be without the evidenc e. T E X .R

. E V I D . 4 0 1

. Relevant e vidence is admissibl e. T E X .R. E V I D . 402. A.R. waited four y ear s befor e telling her fathe r about the sexual assault. The primary rea son the child g a

v e f o r not making an immediate outcry was that Appellant threa tened to harm her mother. Dr. Kellog g testified that the aver ag e time it takes a child to r eport sexual abuse was 2.3 y ear s, but it is not uncommon for a child to w ait four y ear s. Dr. Kellog g explained tha t it was common for a child to delay making an outcry to an adult about the abuse if the perpe trator had threa tened to harm

someone the child loved. Dr. Ke llogg ’s expert testimony reg arding patterns of disclosure was rele vant to explain the various rea sons why children delay making a repor t of sexual abuse and it was sufficie ntly tied to the fac ts of this particula r case such that it assisted the jury in resolving a fac tual issue. Point of Error Thr ee is ove rruled.

CHALLENGE TO TH E TRANSFER ORDER I n Points of Error Four throug h Seven, Appellant contends this court lacks jurisdiction of the appea l beca

use t he order is sued by the Tex as S upreme Court transfe rring the appeal from the S an Antonio Court of Appea ls to the Ei g hth Court of Appe als is void. More spec ifically , he ar g ues in P oint of Error Four that Section 73.001 of the Texas Gover nment Code violates the Equal 2 Protection Clause of the United States Constit ution because it does not g ive proper eff ect to the

T h e S u p r e m e C o u r t m a y o r d e r c a s e s t r a n s f e r r e d f r o m o n e c o u r t o f

a p p e a l s t o a n o t h e r a t a n y t i m e t h a t , i n t h e 2
o p i n i o n o f t h e S u p r e m e C o u r t , t h e r e i s g o o d c a u s e f o r t h e t r a n s f

e r . T E X . G O V ’ T C O D E A N N . § 7 3

. 0 0 1 ( V e r n o n 2 0 0 5 )

. -9-Texas voters who elec t the justices of the intermedia te appe llate cour ts. I n Point of Error F ive, he

asser ts the transfe r order is void beca use Section 73.001 conflicts with the provisions of the Texas Constit ution g iving the Court of Criminal Appea ls exclusi v e au t h ority to deter mine criminal law
matters. I n Point of E rr or Six , Appellant maintains that we lack jurisdiction beca use the transfe r order violates the Equal Protection and Due Course of L aw provisions in the Tex as Constitut ion. Finally , Appellant challeng es our jurisdiction on the g rou nd that Section 73.001 violates the separ ation of powe rs provision found in Article 2, Section 1 of t he Tex as C onstitut ion. The State responds that Appellant failed to prese rve err or by following the proce dure established by the Texas Supreme Court in Miles v. Ford M otor Company , 914 S.W .2d 135, 137 (Tex. 1995). The Supreme Court transfe rre d sever al appea ls, including this one, to this court pursuant to Section 73.001 of t he Tex as Government C ode. M I S C . D O C K E T O R D E R 09-9049 (Tex

. Marc h 31, 2009). I n Arocha v. State , a defe ndant raised the same issues reg arding the transfe r order

. Arocha

v. State , No. 08-07-00108- CR, 2009 WL 1883733 (Tex.App.--El Paso J une 30, 2009, pet. g rante d). We held that the defe ndant was require d t o p re s er v e those arg uments by following the proce dure outlined by the Texas Supreme Court in Miles

. Id. at *5. Acc ording to Miles , the proper proce dure for obtaining a tra

nsfer is by motion: The party reque sting a transfe r should file a copy of the motion to transfe r in eac h of the two courts of appea ls, asking that, when the motion is forwa rded to the Supreme Court, eac h court of appea ls advise the Supreme Court in writing whether it has any objection to the proposed transfe r. Any briefs in favor o f the proposed transfe r should also be filed in eac h court of appea ls and forwa rded with the transfe r motion. We will then have the motion, the bri efs, and the comments of the two courts of appea ls in determining w hether to gr ant the motion to transfer

. Miles , 914 S.W .2d at 137 n.2. Prior to the issuance o f o u r decision in Arocha , Appellant filed with the Supreme Court a

-10-“Specia l Appea ranc e and Objection to Case Transf er of Case from Courts of Appea ls.” We rec eived

a courte sy copy on May 4, 2009. The Supreme Court denied the objection on J une 17, 2009. M I S C . D O C K E T O R D E R 09-9098 (Tex. J une 17, 2009). The specia l appea ranc e and object i o n fi led by Appellant with the S upreme Co u rt d o es not comply with the procedure set forth in Miles beca use Appellant did not file a motion to transfe r in this court and, to our knowledg e, he did not file a motion to transfe r in the Four th Court of Appea ls. The Supreme Court could have denied Appellant’s objection beca use he failed to follow the specifie d proce dure. For that rea son alone, we believe Appellant has not prese rved the complaints prese nted in Points of Error Four throug h Seven. Additionally , we note that the objection filed with the Supreme Court is limit ed to a rg uing that the transfe r order i s void beca use t he C ourt of C riminal Appea ls has ex clusive authority to deter mine criminal l aw matters. That objec tion would not prese rve the complaints raised in Points of Error Four , Six , and Seven. See Pena v. State , 285 S.W .3d 459, 464 (Tex.Crim.App. 2009)(r equiring the substance of the objec tion at trial to comport with that on appea l; otherwise the matter is w aived)

. Assuming Appe llant’s objection pre serve d the ar g ument raised in Poi nt of Five , we f ind it is without merit. He arg ues that we lack jurisdiction of the appea l beca use Section 73.001 conflicts with the provisions of the Texas Constit ution g ivin g the Court of Criminal Appea ls exclusive authority to determine criminal law matters. Our jurisdiction is define d by the Texas Constitution and by statute. See T E X .C O N S T . art. V, § 1 (cour ts in which judicial power is ve sted), T E X .C O N S T . art. V, § 6 (cour

ts of appea ls); T E X .G O V ’ T C O D E AN N . § 21.001 (Ve rnon 2004)(inher ent power and duty of courts), T E X .G O V ’ T C O D E AN N . § 22.220 (civil jurisdiction), T E X .G O V ’ T C O D E AN N . § 22.201 (Ve rnon Supp. 2010)(c ourts of appea ls districts), T E X .G O V ’ T C O D E A N N . § 22.221 (writ power ), T E X .G O V ’ T C O D E A N N . § § 73.001-73.002 (Ve rnon 2005)(tra nsfer of courts of appea ls’

-11-case s); T E X .C O D E C R I M .P R O C .AN N . art. 4.01 (Ve rnon 2005)(pr oviding that courts of appea ls have

jurisdiction in criminal actions); T E X .C O D E C R I M .P R O C .AN N . art. 4.03 (providing that “[t] he Courts of Appea ls sha ll have appellate jurisdiction c oextensive w ith the limit s of their respe ctive districts in all criminal case s except those in which the death penalty has been assessed.” ). Article V, Section 6 of the Texas Constit ution expressly provides that th e co u rt o f appeals “shall have such other jurisdiction, orig inal and appellate , as may be presc ribed by law.” T E X .C O N S T . art. V, § 6. Section 73.002 of the Gover

nment Code provides that the court of appea ls to which a case is transfe rre d has jurisdiction of th e ca s e wi t h out reg ard to the district in which the case orig inally was tried and to which it is returna

ble on appea l. T E X .G O V ’ T C O D E AN N . § 7 3

. 002(a) (Ve rnon 2005). Even if we deter mined that Section 7 3

. 0 0 1 conflicts with the constitutional provisions g ranting the Court of Criminal Appea ls’ exclusive jurisdiction over criminal law matters, we would not lack jurisdiction of the appea l beca

use it has been provided for by statute. See Arocha , 2009 WL 1883733 at *5; see also Simmons v. State , No. 07-07-0282- CR, 2009 WL 2341921 (Tex.App.--Ama rillo J uly 30, 2009, pet. ref ’d)( reje cting arg uments that transfe r of appea l violated t h e T ex as Constit ution). Points of Error Four throug h Seven ar e over

ruled. The trial court’s judgme nt is in error be cause it reflec ts a finding of true as to only the first enhanc ement alleg ation when the rec ord ref lects Appellant enter ed a plea of true, and the jury found true, two enhanc ement alleg ations. Acc ording ly , we modify the judgme n t to show Appellant enter ed

a plea of true to the first and second enhanc ement alleg ations and the jury found both enhanc ement alleg ations to be true. We af firm the judg ment as modified.

September 29, 2010

-12-D A V I D W E L L I N G T O N C H E W, Ch ie f Ju s ti c e

Be fore Chew, C.J ., Rivera, J., and L arse n, J

. L arse n, J ., sitti ng by

assig nment (Do Not Publish)

-13-