### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00667- CR

Ke nneth Dale Wooten, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F LLANO COUNTY , 424 TH JUDICI AL DISTRICT NO. CR6288 , H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Kenne th Dale Wooten g uilty o f t h re e counts of indece ncy with a child by contac t. See Tex. Penal Code Ann. § 21.11(a) (1) (West 2011). The jury assessed punishment at fiftee n y ear s’ imprisonment for the first two counts and twenty y ear s’ imprisonment
f o r th e th ir d

. O n a

p p e a l, Wo o te n a

r g u e s th a t ( 1 ) th e tr ia l c o u

r t e r r e d in d e ny

in g h is r e q u e s t to v o ir d ir e the State’s expert, (2) the trial court denied Wooten his rig ht to eff ective assistance of counsel, and (3) the evidenc e is insufficient to support his convictions. We aff irm the judgme nt of the trial court.

BACK GR OUND
Wooten was a long- time fa m i l y friend of the complaining witness in this case , “Jane.” I n the y ear s leading up to this alleg ed assault, J ane lived with her mother Misty and J ane’ s

1

I n order to protec t the identity of the child victim in this case , we ref er to the victim using 1 a fic titious name, a

nd ref er to he r adult fa mily

members by

their first name s.older brothers. Wooten lived next door to J ane’ s fa m ily and would fre quently baby sit Misty ’s

children when she was out of the house. J ane and Misty would later testify that Wooten paid more attention to J ane than to her brothers and would routinely take J ane shopping and buy her prese nts, but he would include he r brother s only if prompted.
I n J anuar y of 2010, then nine-y ear -old J ane went to her school g uidance counselor’ s office and complained that her oldest brother threa tened to rape her “if she d i d n ’t get out of his

room and off his bed.” The g uidance counselor would later testify that she noticed a bruise on 2
J ane’ s arm, and when she asked J ane how she g ot the bruise, J ane said Wooten “g rabbe d her and he put it on there .” At this point, acc ording to the g uidance counselor, J an e proce eded to make an

o u t cr y statement that she had “sexual contac t” with Wooten on some unspecifie d date. See T ex . Code Crim. Proc. Ann. art. 38.072 (West Supp. 2011) (admitting hears ay s t at em ents made by child victim in cer

tain circ umstances)

. J ane told her counselor that she was on the bed with Wooten 3
wat ch i n g t el ev i sion when he took her hand and placed it on his “priva te area, moved her hand up

an d d o wn his private are a, and then she had to put her mouth over him.” After the outcry , the
g uidance counselor told J ane that J ane neede d t o t ell her mother about this sexual contac t. The
g uidance counselor noted that J ane was “re all y conce rned” about telling any one about the sexual
contac t beca

use she did not want to g et Wooten in trouble.

The g uidance coun selor would later testify that during this session she did not ask J ane 2 any follow-up q u es tions about her brother’ s alleg ed threa t, and the g uidance counselor admitted she neve r conta cted a

ny one about that a lleg ation. We cite to the curr ent versions of the statutes for convenie nce beca use there have been no 3 intervening amendments that a re ma terial to our disposition of this appeal.

2That evening , J ane told M i s t y t h at in November 2009, Wooten perf ormed this alleg ed sexual contac t while Misty was at the movies with friends. Misty testified that J ane told her that o n t h at occa sion, Wooten touched J ane on her chest and betwee n her leg s, then forc ed J ane
to put her hand betwee n his leg s. Misty contac ted Delber t, J ane’ s fathe r, and told him about J ane’ s alleg ation. Delber

t drove to Misty ’s home whe re he was joined by his two brothers, and the three

men proce eded to confr ont Wooten at his home. Delber t would later testify that when he told
Wooten about J ane’ s alleg ation, Wooten replied “so what, now y ou want to hit me? ” The following day , Mike Be tancour

t, t h e supervisor of fore nsic service s with the W illiamson County Children’s Advoca cy

Center, c onducted a

fore nsic interview of

J ane. Wooten was subsequently indicted for three counts of indece ncy with a child by
contac t and one count of ag g rava ted sexual assault of a child. See id. §§ 21.11, 22.021 (West 2011). 4
At trial, the State called J ane’ s pare nts and g uidance counselor, as well as investiga tors with the
L ampasa s County S h er i ff ’s Offic e, who testified about the events outlined above. The S tate then called J ane t o testify about the alleg ed incident, and she stated that Wooten touched her chest and “privates,” then made her t ouch his privates and place her mouth on his privates. She further testified that Wooten showed her various pornogr aphic pictures and videos and warned her that if she told any one wha t happene d she would not g et to see him any more.

The three indece ncy -with-a- child char g es alleg e that Wooten (1) touched J ane’ s g enitals, 4 (2) touched J ane’ s brea st, and (3) cause d J ane to touch his g enitals. See Tex. Penal Code Ann. § 22.021(c) (West 2011) (def ining “sexual contac t” as touching “committed with the i n t ent to arouse or g ratify the sexual desire of any person” ). The ag g rava ted sexual assault char g e alleg ed that Wooten cause d J ane’ s mouth to contac t his sexual org an. See id. § 22.021(a) (1)( B) (ii) (West 2011). 3During his cross-e x aminati o n of the above witnesses, Eddie Shell, Wooten’s trial

counsel, elicited testimony that J ane had a history of ly ing; that one y ear afte r she made her outcry
aga inst Wooten, J ane made an outcry that her oldest brother had been sexually abusing her fo r

sever al y ear s; and that J ane’ s narr ative of the assault may have been influence d by repe atedly telling the story to sever al parties. The rec ord appea rs to indicate that Mr. Shell’s defe nsive theory was that
J ane was not cre dible and that she may have fabr icated the story about Wooten’s assault to conce al her br other’s ong oing a ssault.

Finally , the State called Be tancour t to testify as an expert conce rning child abuse victims’ outcries g ener ally and his impressions of J ane’ s interview specific ally

. Be tancour t testified that children who are the victims of “interf amilial abuse” —abuse perpe trated by a person within the child’s immediate family

—tend to take longe r to disclose the abuse, wher eas they tend to disc lose abuse committ ed by a person outside their i mm ed i at e fa m i ly sooner. Be tancour t stated t hat t here

was nothing in J ane’ s interview t h at was differ ent from his experience in interviewing abused children, with the implication that it was not inconsistent for J ane to first make an outcry ag ainst Wooten and then make a

n outcry ag ainst her br other months later. After the State rested, Wooten called Jane’s uncle s—Delber t’s brothers—to testify about J ane’ s char acte r for truthfulness. Both uncles testified that J ane was “not very truthful,” and

one of the uncles als o contra dicted Delber t’s testimony about what Wooten said on the night that Delber t confr onted him. Following summations, the jury found Wooten g uilty of three cou n t s of in d e c e n c y b y c o n ta c t, b u t f o u n d h im n o t g

u il ty o f a g g r a

v a te d s e xu a l a s s a

u lt

. F o ll o w in g a p u

n is h me n t hear ing, the jury assessed punishment at fiftee n y ear s’ i m p ri s o n m en t for two of the offe nses and twenty y ear s’ imprisonment for the third. This appe al followed.

4DISCUSSIO N
Wooten raises three issues on appea l. First, he claims that the trial court err ed in not allowing Mr. Shell to conduct a voir dire hear ing of Be tancour t outside th e p re s en ce o f the jury

. Second, Wooten arg

ues that he was denied his rig ht to eff ective assistance of counsel when the trial
court enter ed a statement on the rec ord whi le Wooten’s counsel was not prese nt. Third, Wooten

asser ts that the evidenc e i s i n s u fficie nt to support his convictions. We will addre ss eac h of these appellate issues separ ately

. Voir dire of expert

I n his first issue on appea l, Wooten claims that the trial court e rre d in not allowing his trial counsel to voir dire Be tancour t outside the prese nce of the jury

. Specifica lly , Wooten asser ts that rule 705(b) of the Texa s Rules of Evidence g ives a criminal defe ndant an absolute rig ht to

v o i r d i re a S tate’s ex pert on the underly ing fac ts or data upon which the expert bases his opinion. There fore , acc ording to Wooten, the t ri al co u rt err ed in deny ing his reque st to conduct a voir dire examination of Be tancour t at t ri al, reg ardle ss of whether defe nse counsel could have conducte d the examination at a pre trial hea ring

. Under rule 705(b), a criminal defe ndant, u p o n request, “ shall

. . . be permitted to conduct a voir dire examination directed to the unde rly ing f acts or data upon which the opinion is based.” Tex. R. Evid. 705(b) ( fi rst emphasis added). The purpose of t his rule is to g ive “defense counsel the opportunity to e x amine the foundation of the expert’s opinion without fea r of eliciting damag ing hear say or other inadmissible evidenc e in the jury ’s prese nce.” Alba v. State , 905 S.W .2d 581, 587–88 (Tex. Crim. App. 1995). Rule 705(b) may also “supply defe nse counsel with sufficie nt

5ammunition” to timely object to the admis sibili ty of ex pert testim ony . Id. “B eca use R u l e 705(b) is mandatory , a trial court’s denial of a timely and proper motion for such a hear ing would constitute

err or.” Id.
T he S tate does not dispute the m andator y nature of rule 705(b), but instead as s er t s that Wooten failed to proper ly reque st a rule 705(b) hear ing at trial, and thus this issue is not
p re s er v ed for appea l. Gene rally , if a party fails to prese rve an issue for appea l, this Court shoul d
not addre ss the m erits of that issue. Ford v. S t a t e , 305 S.W .3d 530, 533 (Tex. Crim. App. 2009).
To proper ly prese rve an issue for appellate revie w, the re co rd m ust show that (1) the defe ndant timely prese nted the complaint to the trial court and (2) the trial court either ruled or ref used to rule

on the complaint. See Tex. R. App. P. 33.1(a) (1). The complaint must be sufficie ntly clea r so as to provide the trial court and opposing counsel an opportunity to addre ss the issue. Ford , 305 S.W .3d
at 533 (citing Lankston v. State , 827 S.W .2d 907 (Tex. Crim. App. 1992)). “Howe ver, a party need
not spout ‘mag ic wor d s ’ o r rec ite a specific st atute to make a valid objection,” and a complaint is not defe ctive mer ely

beca use it does not cite a spe cific r ule. Id.
At trial, the State asked Be tancour t if he had “done any rese arc h or had any training

o n ” whether a child-victim’s proce ss for disclosing abuse is aff ecte d by her rela tionship t o t h e
perpe trator. At that point, the following exchang e occur red betwee n Mr. Shell, the trial court, and
Be tancour

t:

Mr. Shell: J u d ge, I would ask for a hear ing outside the pre senc e o f t h e

jury on his qualifications in this reg ard.
Court: Mr. Be tancour t, have y ou testified about this s u b j ec t m atter befor e?

6Be tancour t: Yes, sir.
Court: I ’m g oing to let y ou cross examine him, Mr. Shell. I ’m g oing

to overrule y our objec tion. Go ahea d.
Mr. Shell: J ust to be specific , the Court is overr uling my motion to have a hea ring outside the prese nce unde r the 700 Serie s rules?
Court: Yes, sir. And the rea son being that we could have raised this

issue at a pretria l and taken it up not while the jury is sitt ing in the box

. So y ou can challeng e his testimony by y our crossexamination. Go ahead.

The Texas Court of Criminal Appea ls has held that reque sting to voir dire an expert

on his qualifica tions does not constitute a reque st to examine the un d er l y i n g fa cts or data that form the basis of the expert’s opinion under rule 705(b). Jenk ins v. State , 912 S.W .2d 793, 813–14 (Tex. Crim. App. 1993). Thus, the court conclude d that a defe ndant’s reque st to voir dire an expert in order to “‘pr ove up’ his qualifica tions” does not prese rve a rule 705(b) challeng e for appea l. Id. at 814; see also Shaw v. State , 329 S.W .3d 645, 655–56 (Tex. App.—Houston [14t h Dist.] 2010, pet. ref ’d) (“A party ’s arg ument that the t rial court failed to co n d u ct a properly reque sted Rule 705(b) hear ing is a

distinct arg ument from one c halleng ing the qualifica tions of an expert.”).
I t is n o t en t i rely clea

r from the court’s opinion in Jenk ins , 912 S.W .2d at 813–14, what a defe ndant needs to do in order to prese rve a rule 705(b) challeng e. The court’s opinion could be interpre ted to me an that a party reque sting a 705(b) hear ing must spec ifically cite that rule or at

a minimum indicate that he wants to discuss the underly ing fac ts and data that form the basis of the expert’s opinion. See id. Howeve r, such an interpre tation appea rs inconsistent with the g ener al rule that a party need not rec ite “mag ic words” or cite specific statutes to prese rve a complaint for appea l.

7Cf. Ford , 305 S.W .3d at 533. Alterna tively , the co u rt ’s o pinion could mean that when a party

reque sts to voir dire an expert on his qualifications , the party at least implied l y does not reque st a rule 705(b) hearing

beca use the unde rly ing f

acts or data upon which a n expert bases his opinion

are not nece ssarily rela ted to his qualifica tions as an expert. See Jenk i n s , 9 1 2 S.W .2d at 813–14.
Neve rtheless, it appea

rs t hat W ooten’s request t o conduct voi r d i re did not meet the require ments of Jenk ins , 912 S.W .2d 813–14, reg ardle ss of which interpr etation of that opinion is corre ct.
I n t h i s ca s e, W o o t en ’s counsel asked to conduct a h ea ri n g as t o Be t an co u rt ’s qualifica tions, which the trial court denied. Wooten’s counsel immediately specifie d that h e wa s
reque sting a hear ing outside the presence of t he jury “under the 7 00 Series rules.” There are only six rules in the 700 series of the rules of evidenc e, and only rule 705(b) di s cu s s es conducting a hear ing outside the prese nce of the jury

. See Tex. R. Evid. 701–06. Howeve r, the 700 ser ies also includes rule 702, which rela tes to an ex p ert’s qualifica tions. See id. 702 (“[A] witness qualified

as an expert by knowledg e, skill, experienc e, training , or education may testify there to in the form of an opinion or ot herw ise.”). Thus defe nse counse l ’s s t at ement that he was reque sting a hear ing under the 700 series could arg uably be interpre ted as another reque st to voir dire Be tancour t on his qualifica tions. See id.

We a c k n o w le d g e th a

t th is c a s e p r e s e n

ts a c lo s e r f

a c tu a l s c e n a

r io th a n th e o n e a d d

r e s s e d in J e n k in s , 9 1 2 S. W. 2 d a

t 8 1 3

– 1 4

. N o n e th e le s s , w e c a nn o t c o n c lu d e th a

t d e f e n s e c o u n s e l’ s s ta te me n t that he reque sted voir dire “under the 700 series” wa s enoug h to aler t the trial court that counsel

w a n te d to e xa mi n e th e u

n d e r ly in g f a c ts o r d a ta u p o n w h ic h B e ta n c o u r t b a s e d h is o p in io n s p e c if

ic a ll y , rathe r than Be tancour

t’s qualifica tions g ener a ll y . T h e r e f o r e , under the binding prec edent established

8in Jenk

ins , 912 S.W .2d at 814, we must conclude that Wooten has not prese rved this complaint for
appea l. Accor dingly , we ove rrule Wooten’s f irst issue on appea l.

Absence of def

ense counsel
I n h i s second issue on appea l, Wooten asser ts that the trial court denied him his constitutional rig ht to eff

ective assistance of counsel. Specifica lly , Wooten complains that the trial
court made a statement on the rec ord while Mr. Shell was not prese nt, in which the trial court explained its ear lier ruling not to allow Mr. Shell to voir dire Be tancour t. Acc ording to Wooten, this statement outside the pre sence of defe nse counsel deprive d Mr. Shell of an opportunity to “set the

rec ord straig ht” conc erning Wooten’s rig ht to voir dire B etanc ourt.

“In al l criminal prosec utions, the acc used shall enjoy the rig ht to

. . . have t h e Ass i s t an ce o f C o u n sel for his defe nse.” U.S. Const. amend. VI ; see also Tex. Const. art. I , § 10. The rig ht to the assistance of counsel attache s at all “cr i t i ca l s t age s ” of the criminal proce eding

. United States v. Cronic , 466 U.S. 648, 659 (1984); Routier v. State , 11 2 S

. W .3d 554, 587 (Tex. Crim. App. 2003). A specific proce eding is a “cr itical stag e” if “the acc used require d aid in coping with leg al problems or assistance in meeting his adver sary .” United States v. Ash , 413 U.S. 300, 313 (1973); s ee a l

s o LaPointe v. State , 166 S.W .3d 287, 298 (Tex. App.—Austin 2005, pet. ref ’d) (“ W hether a particula

r stag e is critica l turns on an assessment of the usefulness of counsel t o t h e

acc used at the time.”). There is no brig ht-line rule for when a specific stag e of a criminal proce eding is critica l, and the particula r circ umstances of the specific proce eding must be considered. See
W ingfield v. State , 197 S.W .3d 922, 926 (Tex. App.—Dallas 2006, no pe t.).

9I n th i s case , befor e Mr. Shell cross-e x amined Be tancour t, the trial court took a fiftee n-minute brea

k. During this brea

k, the trial court made the following statement on the rec ord, outside the prese nce of

the jury :

For the re co rd—I ’m g oing to just put a littl e thing on t h e re co rd

. I know Mr. Shell is not here , but Ms. Bunting is and Mr. Orbe lo is here

. This notice of the State’s witn es s wa s filed September 15th, 2010. Number 13 was Mr. Be tancour t was listed on September 15th of 2010 and the first time I see a notice being sent to Mr. Shell as the attorney of rec ord was October 4th of 2010. And we then had a pretria l hear ing on 11-22 of 2010, and no issues wer e ever prese nted and no motions wer e ever filed wi t h ref ere nce to any challeng es to the q

ua li f ic a ti o n s o f a n y e xp e r t w it n e s s li s te d in th a

t w it n e s s r e p o r t. T h a t’ s all I want to put on the re cord.

The rec ord indicates, and the parties appea r to acknow ledg e, that the trial court made this statement

on its own volition, and the trial court did not solicit comments from the State or Ms. Bunting , whom the parties identify as Mr. Shell’s leg al assistant. I t is not entirely clea r why the trial court made this statement, g iven that its explanation of its evidentiar y ruling s does not aff

ect this Court’s resolution of issues on appea l. See State v. Iduarte , 268 S.W .3d 544, 548 (Tex. Crim. App. 2008) (noting appellate court will uphold trial court’s e videntiary ruling if corr ect on a

ny theory ). Nonethele ss, Wooten asser ts that the trial court’s statement on t h e rec ord was a critica l sta g e of trial beca

use had defe nse counsel been prese nt, c ounsel could have “set the rec ord straig ht.” We take Wooten’s arg ument to mean that had d ef en s e co unsel been prese nt, counsel could have clea

rly explained why he had the rig ht to voir dire B etanc ourt under rule 705(b). This
arg ument is not supported by the re cord.

10The t ri al co urt’s impromptu statement occur red after the State had conducte d its direc t examination of Be tancour t. Thus, Wooten no longe r had a rig ht under rule 705(b) of the rules of evidenc e to voir dire Be tancour t about the underly

ing fac ts and data upon which Be tancour t based his opinion befor e he testified. See Tex. R. Evi d. 705(b) (allowing party to voir dire expert “ prior
t o the expert g iving the expert’s opinion or disclosing the underly ing fac ts or data”) (e m p h as i s added) ; Alba , 905 S.W .2d at 588 (conc luding trial court did not err in deny ing untimely reque st for rule 705(b) hear ing w hen witness had alre ady testified about under ly ing f acts or data). The ref

ore,

even if defe nse counsel had been prese nt when the trial court made the statement, and even if counsel had cla rified that he wanted to voir dire B etanc ourt under r ule 705(b), tha t clarific ation would not have a llowed Wooten to finally voir dire B etanc ourt. 5
On this rec ord, we cannot conclude that the trial court’s statement was made during a critica l stag e of trial. See LaPointe , 166 S.W .3d at 298 (noting proce eding is critica l stag e if counsel

wou l d b e u s ef

ul to defe ndant at the time). At most, the proce eding could have aff orded defe nse counsel an opportunity to make an offe r of proof about what ques t i ons he would have asked
Be tancour

t had he been allowed to conduct voir dire. Howeve r, defe nse counsel had the opportunity
to make such an offe r of proof at any time befor e the court delivere d its char g e to the jury

. See Tex.
R. Evid. 103(b). Thus, we cannot conclude that this particula r opportunity to make an offe r of proof constituted a critica l stag e of the proce eding s such that the absenc e of counsel deprive d Wooten of his constitutional rig hts. See Ash , 413 U.S. at 313. We overr ule Wooten’s second issue on appea l.

I n addition, the trial court’s statement further demonstrates that it did not understand that 5 Wooten’s previous re quest to voir dire B etanc ourt was made under Rule 705( b). 11Suf

fi ciency of the evidence

I n his third and final issue on appea l, Wooten asser ts that the evidenc e is insufficient
to s u p p o r t h is c o n v ic ti o n s f

o r in d e c e n c y b y c o n ta c t. Sp e c if ic a ll y , Wo o te n c la im s th a

t th e St a te ’ s e n ti r e

c a s e r e s te d s olely on the te s ti mo n y o r s ta te me n ts o f Ja

n e , a n d b e c a u s e Ja n e ’ s c r e d ib il it

y w a s

s ig n if ic a n tl y u n d e r mi n e d , n o r e a s o n a

b le ju r y c o u ld h a v e f o u n d Wo o te n g

u il ty b a s e d o n h e r a ll e g a

ti o n s . I n reviewing the s ufficie ncy of t he evidence to support a conviction, we determine whether a rational trier of fac t could have found that the essential elements of the crime wer e proven bey ond a rea sonable doubt. Brooks v. State , 323 S.W .3d 893, 8 9 5 (T ex . Crim. App. 2010). I n making this deter

mination, we consider all evidenc e that the trier of fac t was permitted to consider,
reg ardle ss of whet h er i t wa s rig htly or wrong ly admitted. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007); Allen v. State , 249 S.W .3d 680, 688-89 (Tex. App.—Austin 2008, no pet.).
We view this evidenc e in the light most favor able to the verdic t. Clayton , 235 S.W .3d at 778. The jury , as the trier of fac t, is the sole judge of the cre dibilit y of the witnesses and the weig ht to be g iven
to their testimony

. Id. There fore , we presume that the jury resolved any conflicting infere nces and issues of cr edibility

in favor of

its verdict. Id.
I n th i s case , J ane testified that Wooten touched her chest; touched her “priva tes,” which she identified as the part of g irl’s body betwee n her leg s; and forc ed her to touch his privates.
Fur thermore , J ane testified that Wooten made her move her hand “up and down” on his privates until

a “cle ar white liquid” came out. This testimony alone is sufficie nt to support the jury ’s conclusion that Wooten committed the alleg ed contac t with th e intent to arouse or g ratify his sexual desires.
See Tex. Penal Code Ann. § 2 1

. 1 1 (d ef i n i ng indece ncy with child by contac t); Garcia v. State ,

12563 S.W .2d 925, 928 (T ex . Crim. App. 1978) (holding that victim’s testimony , standing alone, is

sufficie nt evidenc e of penetr ation); Lee v. State , 186 S.W .3d 649, 655 (Tex. App.—Dallas 2006, pet. ref ’d) (“The testimony of the child victim alone is sufficie nt to support a conviction for sexual assault.”) ; see also Bazanes v . State , 310 S.W .3d 32, 37 (Tex. A pp.—For t Worth 2010, pet. re f’d) (conc luding jury could infer defe ndant’s intent to arouse or g ratify sexual desires from defe ndant’s conduct a lone).

G iv e n th a t th e ju r y c o n v ic te d Wo o te n o f th

r e e o f th e o f

f e n s e s a ll e g e d , w e p r e s u

me th a t the jury found J ane cre dible. See Clayton , 235 S.W .3d at 778. We defe r to the jury ’s deter minations of cre dibilit y . Id. There fore , Wooten’s complaint that J ane was not a cre dible witness leave s us with nothing to revie w. W e conclude that the evidenc e is sufficie nt to support Wooten’s convictions. We overrule Wooten’s third issue on appea l.

CONCLUSION Having overr

uled Wooten’s three issues on appe al , we aff irm the judgme nt of conviction.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Apr il 24, 2013 Do Not Publish

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