Appeal from the 180th District Court Harris County, Texas
Trial Court Case No. 1466347
consists of Chief Justice Radack and Justices Keyes and
RADACK CHIEF JUSTICE
convicted appellant, Steven Schmidt, of continuous sexual
assault of a child, and the trial court assessed punishment
at 45 years' confinement. In five issues, appellant
contends that the trial court abused its discretion by (1)
allowing an improper "outcry" witness to testify,
(2) admitting testimony from an unqualified expert witness,
(3) admitting business records from the expert witness that
contained hearsay, (4) admitting extraneous offense evidence,
and (5) that he was harmed by cumulative error. We affirm.
complainant in this case, C.S., lived in Houston with her
brother, N.S., her mother, Nichole, and her father,
appellant. The children were homeschooled, and appellant, who
was unemployed after being discharged from the Air Force
because of an injury, was supposed to supervise their
schooling. Testimony revealed that appellant frequently slept
till noon, drank heavily, and paid little attention to the
children's education. There was also testimony that he
was verbally and physically abusive to the children.
relationship with Nichole was also volatile. In May 2011,
when Nichole attempted to leave in her car after a fight,
appellant jumped on the hood of the car. Nichole continued
driving, and then braked suddenly, causing appellant to fall
off the hood and sustain a traumatic brain injury.
Thereafter, appellant was hospitalized for several months and
then underwent several more months of rehabilitation.
appellant returned from the hospital, the children were
enrolled in private school. C.S. was in fourth grade at the
time. At first, during his recovery, appellant's
relationship with his family improved, but eventually he
became aggressive again.
particularly heated argument between appellant and Nichole,
which took place in front of the children, Nichole took the
children to a park to talk without appellant present. During
their conversation, C.S. complained that she wanted the abuse
to stop. At first, Nichole testified that C.S. told her that
appellant touched her "down there" and pointed to
her privates, but Nichole later clarified that this
conversation actually took place later, not at the park. She
clarified that, while at the park, she thought C.S. was
talking about physical abuse and that she did not know about
the sexual abuse until later. After the conversation with the
children in the park, Nichole decided to leave appellant. She
moved, with the children, to Alabama to live with her
parents. Appellant then filed a petition for divorce on June
same summer of 2014, Nichole began taking C.S. to weekly
therapy appointments at Glanton House, a therapy clinic at
Auburn University. Nichole had been referred there by a
domestic violence counselor at a women's shelter.
approximately six months, C.S., met with Allison Mangone, a
graduate student at Auburn University who was working towards
a master's degree in marriage and family therapy. At the
time of the therapy, Mangone was not licensed, but was
working under the supervision of other counselors with
intake information, C.S. self-reported that she was suffering
from anxiety and depression. She did not mention sexual
abuse. However, at her second session with Mangone, C.S.
disclosed that she had been sexually abused by appellant.
reported the abuse allegation to the Texas Department of
Family and Protective Services. Several months later, the
Houston Police Department contacted Mangone and requested
that she ask C.S. for more information regarding the sexual
October 21, 2014, during her fifteenth therapy session, C.S.
gave Mangone a detailed account of the sexual abuse. C.S.
stated that appellant began sexually abusing her when she was
about six years old and that it continued until she was
eleven years old. The sexual abuse did not stop until
appellant suffered the traumatic brain injury in 2011. C.S.
stated that the first abuse she could remember was when
appellant called her into another room, pulled down her
underwear, rubbed her vagina, and inserted his finger. She
also stated that appellant would make her rub his penis until
he ejaculated and he would make her perform oral sex on him.
C.S. stated that appellant would rub his penis near her
vagina, but that he never penetrated her with his penis. C.S.
thought that her mother might have known about the abuse to
some extent, but she did not know how much her mother knew.
She never told her mother, but her mother did find her in the
shower with her father on at least one occasion.
appellant's trial, C.S., now 17 years old, testified to
essentially the same evidence that she had disclosed to
Mangone during therapy.
2015, appellant was indicted for continuous sexual abuse of a
child, but, on July 17, 2017, his first trial ended in a hung
jury. Upon retrial, he was convicted, assessed punishment of
45 years' imprisonment, and this appeal followed.
issue one, appellant contends that the trial court abused its
discretion "by allowing Allison Mangone, an intern
therapist, to testify as the outcry witness when the evidence
indicated that she was not the first person, over eighteen
years of age, to whom the child made an outcry as required by
Texas Code of Criminal Procedure Article 38.072."
Specifically, appellant contends that C.S. made an earlier
outcry to her mother, thus her mother should have been
designated as the outcry witness.
38.072 of the Code of Criminal Procedure provides a statutory
exception that allows the State to introduce outcry
statements, which would otherwise be considered hearsay, made
by a child complainant of certain crimes. Tex. Code Crim.
Proc. art. 38.072; see also Tex. R. Evid. 801(d)
(defining hearsay), 802, 803. These offenses include
continuous sexual abuse of a child. Tex. Code Crim. Proc.
art. 38.072; see also Tex. Penal Code § 21.02.
Under article 38.072, the trial court may admit the
statements of a child complainant describing the alleged
offense through an "outcry witness." Tex. Code
Crim. Proc. art. 38.072, § 2(a)(3). The outcry witness
is the first person over the age of eighteen, other than the
defendant, to whom the child made a statement regarding the
offense, extraneous crime, wrong, or act. Id. The
statement must be "more than words which give a general
allusion that something in the area of child abuse is going
on." Lopez v. State, 343 S.W.3d 137, 140 (Tex.
Crim. App. 2011) (quoting Garcia v. State, 792
S.W.2d 88, 91 (Tex. Crim. App. 1990)).
preliminary matter, we determine whether appellant preserved
his complaint for appellate review. To preserve a complaint
for appellate review, the record must show that an objection
was made to the trial court, that the grounds for relief were
stated with enough specificity, and that the trial court
ruled upon the objection. Tex.R.App.P. 33.1(a). The issue
must comport with the objection made at trial. Thomas v.
State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). In
deciding whether an argument on appeal comports with the
objection made at trial, an appellate court "consider[s]
the context in which the complaint was made and the
parties' shared understanding at the time." Pena
v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
contends that he preserved error on this issue because he
brought to the court's attention that the testimony of
C.S.'s mother needed to be heard during the 38.072 Outcry
Hearing to determine if Mangone was, in fact, the first adult
over the age of 18 that C.S. told about the sexual abuse.
Specifically, appellant's counsel stated:
With respect to the outcry issue, Judge, maybe I mistakenly
understood it, before you make your ruling I was under the
impression that we would also, since the therapist is basing
this sort of on speculation as to whether or not she was the
first person who was 18 years of older, I thought we were
going to call [C.S.'s mother] for that purpose, just to
find out whether or not she was, in fact, the first person.
So[, ] I know you sort of made your ruling, but I would ask
that we at least briefly call [C.S.'s mother] to ask her
that limited [question] to find out if, in fact, she did know
or didn't know.
the trial court permitted the State to call C.S.'s mother
to testify about whether she knew about the sexual abuse
before Mangone. After C.S.'s mother testified, the trial
court stated, "My earlier ruling with respect to the
outcry witness Allison Mangone still stands."
received all the relief he requested when he asked the trial
court to consider C.S.'s mother's testimony, which
the trial court did. Thereafter, appellant made no objection
to the designation of Mangone as the outcry witness, and he
did not argue that, based on the evidence presented by both
Mangone and C.S.'s mother, that the mother was the proper
outcry witness. Indeed, a second outcry hearing was held, at
which defense counsel stated, "[At the earlier hearing],
we narrowed it down to, I think Allison Mangone being the
outcry witness. I don't have any reason to believe that
would change. So, I am not going to ask for another outcry
hearing." Because appellant never objected to the trial
court's ruling that Mangone was the proper outcry
witness, he has failed to preserve error on this issue.
we overrule issue one.
issue two, appellant contends that the trial court erred by
allowing Mangone to testify as an expert witness because
"Mangone was not qualified or licensed to make a
diagnosis or determine treatment." Specifically,
appellant states that "[t]he issue presented concerning
Mangone's lack of a professional license is whether she
is disqualified  from testifying as an expert concerning
mental health and therapy." Standard of Review and
admissibility of evidence generally, and the qualifications
of a witness to testify as an expert or as a lay witness, are
within the discretion of the trial court. See Tex.
R. Evid. 104(a); Ventroy v. State, 917 S.W.2d 419,
422 (Tex. App.-San Antonio 1996, pet. ref'd). A trial
court's decision to permit a witness to testify as an
expert or as lay witness (under Rule 701 of the Rules of