James Gibson Moore, III v. State

Citation: Not availableDocket: 03-01-00176-CR

Court: Court of Appeals of Texas; March 27, 2002; Texas; State Appellate Court

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James Gibson Moore, III was convicted by a jury on two counts of indecency with a child and one count of aggravated sexual assault against his two daughters, aged thirteen and fifteen at the time of trial. The jury sentenced him to ten years for each indecency conviction and thirty years for the aggravated sexual assault conviction. Moore was indicted on eight counts but acquitted on five. The indecency with the younger daughter occurred on May 14, 1996, while the older daughter experienced indecency on September 21, 1992, and aggravated sexual assault on January 7, 2000.

During the trial, testimony was provided by both daughters, a clinical social worker who had conducted therapy sessions with them, and Moore himself. The daughters described various inappropriate behaviors by their father, including exposing himself, sleeping with them in a sexualized manner, and videotaping them in the shower. Specific incidents included Moore rubbing his younger daughter’s vagina and forcing his older daughter to wash his body in the shower, including his genitals.

The older daughter detailed an incident where Moore forced her to perform oral sex on him, while Moore claimed the act was consensual and occurred due to his drunkenness, asserting that he did not force her. Despite the time elapsed since the incidents, neither daughter reported the abuse until after the aggravated sexual assault in 2000. In his appeal, Moore raised seven points of error, including the claim that the trial court improperly admitted hearsay testimony from the social worker regarding the victims’ statements made during therapy sessions. The court affirmed the judgments against Moore.

Victims' statements describing the offenses were admitted under the medical purposes and treatment exception to the hearsay rule, despite the appellant's objections. This exception permits hearsay statements relevant to medical diagnosis or treatment, as outlined in Tex. R. Evid. 803(4). The appellant argues that the witness, Judy Cardinale, is not a member of the medical profession, thus disqualifying the statements from being considered for medical diagnosis or treatment. Cardinale, who conducted therapy sessions with the victims shortly after their initial disclosure of abuse, held approximately forty sessions with them, including individual and group therapy. Her testimony covered general symptoms of child sexual assault victims and specific symptoms observed in the victims, which was not objected to. However, when she repeated specific statements made by the victims regarding the abuse and identified the appellant as the aggressor, the appellant objected on hearsay grounds. The State contends these statements are admissible under Rule 803(4) as they were made to a licensed therapist in the context of diagnosis and treatment. The rationale for this hearsay exception is based on the expectation that patients will provide accurate information to receive effective treatment. Previous cases have allowed the admission of child abuse victims’ statements identifying their abuser to facilitate proper treatment. The appellant's main argument is that the statements should be excluded because they were not made to a licensed medical professional. Most relevant cases supporting the exception involved witnesses who qualified as healthcare providers under Texas law.

In Puderbaugh v. State, 31 S.W.3d 683 (Tex. App. Beaumont 2000), the admissibility of a clinical social worker's testimony regarding statements made by child abuse victims during therapy was examined. The court acknowledged that some jurisdictions permit therapists to testify about statements made during therapy sessions, but emphasized the need for witnesses to meet qualifications that align with the medical treatment exception to the hearsay rule. Specifically, under Rule 803(4), statements must be made to medical personnel for the purpose of diagnosis and treatment to be admissible. 

In this case, Cardinale, the social worker, recounted statements from the appellant's daughters about instances of abuse, which paralleled the victims' testimonies. However, the court concluded that the State failed to demonstrate Cardinale's qualifications sufficiently. Although she was licensed as a clinical social worker and psychotherapist, the record lacked clarity on how her qualifications differed from those of psychiatrists or psychologists, her training for medical diagnosis, or her capacity to provide medical treatment. The absence of this information meant the State did not meet its burden under Rule 803(4), leading to the conclusion that the trial court erred in admitting Cardinale's testimony. A harm analysis is required for assessing the impact of this error, as per Rule 44.2(b) of the appellate procedure.

A violation of evidentiary rules leading to the erroneous admission of evidence is classified as a nonconstitutional error, which must be disregarded if it does not affect substantial rights (Tex. R. App. P. 44.2(b)). A substantial right is impacted when the error has a significant and injurious effect on the jury's verdict (King v. State, 953 S.W.2d 266, 271). A conviction should not be overturned for nonconstitutional errors if the appellate court is assured that the error did not influence the jury, or had a minimal effect (Johnson, 967 S.W.2d at 417). The improper admission of evidence is not reversible if the same facts are established by other admissible evidence (Brooks v. State, 990 S.W.2d 278, 287). In this case, although the appellant argued that the erroneous admission of Cardinale's testimony was harmful, it was not necessary to corroborate the victim’s testimony since both the victim and the appellant provided accounts of the incident. Cardinale’s testimony offered only a brief summary and lacked detail regarding the nature of the act. Consequently, the court deemed the admission of her testimony harmless and overruled the appellant's first issue.

Regarding the second and third points of error, the appellant claimed that the trial court erred by continuing the trial after a juror fell ill, which he argued violated his rights under the Texas Constitution and Code of Criminal Procedure. On the fifth day of trial, a juror reported severe gastrointestinal illness and was deemed unable to attend. Despite the appellant's objection for a postponement, the trial court proceeded under article 36.29, which permits continuation with fewer than twelve jurors if a juror becomes disabled. The term "disabled" encompasses physical, mental, or emotional conditions that impede a juror's duties (Landrum v. State, 788 S.W.2d 577, 579; Griffin v. State, 486 S.W.2d 948, 951). The trial court has discretion in determining a juror's disability, and absent an abuse of that discretion, no reversible error is found (Brooks v. State, 990 S.W.2d 278, 286). Although the appellant contended that the juror's stomach ailment was temporary and insufficient for disqualification, precedents indicate that temporary illnesses can indeed justify a juror's disability (Hughes v. State, 787 S.W.2d 193, 195; Allen v. State, 536 S.W.2d 364, 366-67).

A juror's severe gastrointestinal ailment was deemed sufficient evidence of incapacity for the trial court to consider in determining disability, even though the ailment was temporary. The court's discretion in this matter was upheld, paralleling prior cases (Hughes and Allen). The trial court did not abuse its discretion in declaring the juror disabled. The appellant's objections regarding the testimony of Paul Szendrey, who discussed the contents of videotapes seized from the appellant, were overruled. Szendrey, a supervisor in the evidence section, confirmed he viewed the tapes during cross-examination. The appellant's question about nudity on a specific tape led to a response that suggested only one of the tapes had pornographic content, which the State countered with a follow-up question to correct the potential false impression. The court ruled that the appellant's inquiry opened the door for this additional evidence. Regarding jury instructions, the appellant argued that the term "caused" should have been defined, as he believed the victim's voluntary actions negated his culpability. The trial court denied this request, affirming that if a term has a statutory definition, it must be provided to the jury.

Words that lack statutory definitions are interpreted according to their common meanings, and no specific jury instruction is necessary for such terms. Jurors are presumed to understand and apply these meanings unless a term lacks a common definition. In this case, although the term "caused" is not defined in the Penal Code, the appellant argued for a specific definition based on his defense against aggravated sexual assault charges. He cited Whaley v. State, where the court required a definition due to the term "constructive transfer" acquiring a specific meaning. However, the court found the term "caused" did not have a specialized definition in the context of aggravated sexual assault. Therefore, the trial court correctly declined to define "caused" in the jury charge.

Additionally, the appellant claimed the trial court erred by not granting a hearing under Texas Rule of Evidence 104(b) regarding the admissibility of extraneous offenses presented by two witnesses during the punishment phase. The State had provided notice and informed the court about the witnesses' testimonies beforehand. The trial court is responsible for initially determining the admissibility of such evidence, ensuring a jury could reasonably find that the defendant committed the extraneous offense. The absence of an explicit ruling by the trial court on the admissibility of these offenses implied acceptance, and the court provided proper jury instructions regarding the burden of proof. The appellant did not contest the sufficiency of evidence proving the extraneous offenses beyond a reasonable doubt.

An appellate court applies the abuse of discretion standard when reviewing a trial court's decision regarding the admissibility of extraneous offense evidence. The trial court's choice not to conduct a pre-jury hearing on such evidence did not harm the appellant, and no abuse of discretion was found in admitting this evidence. The appellant's sixth and seventh points of error were overruled. The court identified an error in admitting Cardinale's testimony under the medical treatment exception to the hearsay rule, as the State did not establish the witness's qualifications as a medical professional. Nonetheless, since this error did not result in harm, the appellant's conviction stands. All remaining points of error were also overruled, leading to the affirmation of the convictions. The document includes definitions from the Medical Liability and Insurance Improvement Act, the role of jurors in felony verdicts, and references to relevant case law regarding constructive transfer.