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Schmidt v. State

Court of Appeals of Texas, First District

October 24, 2019


          On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1466347

          Panel consists of Chief Justice Radack and Justices Keyes and Kelly.



         A jury 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.


         The 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.

         Appellant's 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.

         When 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.

         After a 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 13, 2014.

         That 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.

         For 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 doctorate degrees.

         In her 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.

         Mangone 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 abuse allegations.

         On 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.

         At appellant's trial, C.S., now 17 years old, testified to essentially the same evidence that she had disclosed to Mangone during therapy.

         In 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.


         In 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.

         Applicable Law

         Article 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)).

         Error Preservation

         As a 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).

         Appellant 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.

         Thereafter, 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."

         Appellant 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.

         Accordingly, we overrule issue one.


         In 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 Applicable Law

         The 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 ...

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