² How conclusive is the expert's opinion? J. How central is the area of expertise to the resolution of the lawsuit? In this instance case, none of these criteria were investigated. The court in allowing this witness to make a conclusive finding as to an ultimate issue in the case, created unfair prejudice to appellant since the jury would have given much weight to the to witness' statement that there was nothing wrong with the complainant. The trial court abused its discretion in not looking into the qualifications of Ms. Green before allowing her to give an expert opinion. The Court of Appeals erred in not finding that the probative value of this testimony did not outweigh the damages of unfair prejudice. Her testimony should have been stricken from the record. Miles, supro, Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999). Nevertheless, the Court of Appeals affrrmed Appellant's conviction on this ground. Opinion aIPage 12. This court should reverse appellant's conviction and order a new trial Tex. App. P. 43.2, sec. 3 Vernon's Pamph. 2014; Tex. R. App.P. a3.2(a) Vernon Pamph. 2014. This Court should grant appellant's petition for discretionary review on these grounds and order a full brief on the merits. Tex. R. App. P. 69.1 (Vernon Pamph. 2015). PRAY FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable Court to consider the grounds for review raised herein, to grant this petition for discretionary review, and to order a full and complete hearing on the merits and with briefs. Respectfully submitted, MICHAEL P. FOSHER ATTORNEY AT LAW The Lyric Center Inln MICHAEL P. FOSHER CERTIFICATE OF' SERVICE This will certiff that a copy of the foregoing motion was served upon Alan Curry, [email protected], District Attomey of Harris County, Appellant Division, 1201 Franklin, Houston, Texas 77002, facsimile no.713-755-5809 at the time of filing as per local rule. MICHAEL P. FOSHER Aflirmed and Memorandum Opinion liled June 30,2015. In The lffsurttentll' (fi.surt uf App ealx NO. 14-14-00263-CR LEONARD CIIARLES HICKS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1373854 MEMORANDUM OPINION Appellant, Leonard Charles Hicks, appeals his conviction for aggravated sexual assault of a child. In three issues, he contends (1) the evidence is insufficient to support the conviction, (2) the trial court erred by denying appellant's motion for a mistrial after a witness interjected improper testimony, and (3) the trial court erred by allowing alay wibress to provide an expert opinion. We affirm. I. BACKGROUND The female complainant, who was five-years-old at the time of trial, is appellant's daughter. In January 2012, when complainant was three-years-old, she began living with two adults, Janet Green and Pamela Richardson. These women did not know complainant or her family but learned of her situation from a mutual acquaintance. They agreed to temporarily care for complainant because she and her siblings were being removed from their parents' home and all the siblings had been placed elsewhere. Complainant's placement in the home was subsequently extended through actions of relevant agencies. In the fall of 2012, her younger sister was also placed there. At the time of trial (over two years after complainant flrst arrived), both children were still living in the home. According to the women's collective testimony, when complainant arrived, she was very intelligent and talkative but displayed inappropriate behavior and made statements that caused them concern. For instance, complainant would put on "a little tutu skirt" and high-heel shoes and dance like "somebody in a strip club." She 'play[ed] with herself' a lot in a manner that was more than just a curious three-year-old touching her genitals. She "masturbat[ed]" using toys that were hard objects and placed stuffed toys between her legs. Once, while bathing, she aggressively moved a tubular-shaped toy back and forth between her legs, toward her genitals. When asked how she learned that behavior, she replied, "my daddy." Additionally, she was afraid of men, the police, going to jail, and being shot with a gun. She "always" talked about the "terrible things" that happened at home and said she would rather kill herself than be killed by her parents. Richardson, who was designated as the outcry witress, more specifically testified that complainant said (l) her father would "stick" his finger in her "to-to,', the term she used to described her vaginal area, which caused bleeding because his fingernails were long, (2) her father would snatch her off the toilet while he was naked, put her on his lap, and "go up and down" with her, and (3) when her parents found complainant while playing hide-and-seek, they would "play in my to-to" and make her brother (who was two years older) "dig" in her "to-to." Shortly after complainant's arrival in the home, Green contacted Children's Protective Services ("CPS"), which referred the child to the Children's Assessment Center ("the Center"). A forensic interviewer at the Center interviewed complainant in March 2012, but she did not reveal any abuse, and no charges resulted, at that time. Meanwhile, Green also took complainant to a pediatrician. That doctor did not testi$r at trial, but her records were admitted. According to those records, Green reported complainant was afraid of men, she was caught enacting a sexual act with a doll, she disclosed that her mother made complainant's brother 'play with her 'tutie' (her word for vagina)," an6l the child repeated the same information to the doctor. The pediatrician recommended that complainant continue with the CPS assessment, which was ongoing atthat time. After the CPS investigation was closed, complainant's behavior continued at home, and the women placed her in therapy. The therapist testified that, at the outset of their sessions, complainant would cower near men and was depressed and anxious. The therapist did not relay any express statements made by complainant but testified that complainant eventually spoke about "the things that occurred" with her parents and consistently gave the same version. A psychiatrist treated complainant along with the therapist. Complainant was diagnosed with various unrelated conditions, such as Attention Deficit Hlperactivity Disorder, but also Post Traumatic Stress Disorder, which the therapist explained was based on complainant's life with her parents. In September 2012, complainant's teacher contacted Green because of an incident at school. When another child wanted to undress some dolls, complainant "th.rew a fit" and insisted, "don't do that because she's going to get hurt like I did by *y daddy." The teacher tried to calm complainant, but she repeated the doll would get hurt "like my dad hurt me" if her clothes were removed. This report prompted Green to again contact CPS, and the child was referred to the Center. Complainant then met with the same forensic interviewer, who testified that this time the child made "disclosures." The interviewer was precluded at trial from revealing those statements but testified the child placed her finger in the vagina of an anatomically correct doll and twisted the finger. The interviewer also explained that often a child will not open up during a first interview but does later after feeling more comfortable due to family support or having attended therapy. Complainant was also examined by a physician at the Center. The physician's testimony, and portions of her medical records, reflected the following exchange: Complainant told the physician, "my daddy touched my ear and in my back, my behind." The physician asked, "what did he do to your behind?" Complainant responded, "he rubbed my front. He rubbed with my front. When he was trying to play with my front with his finger, I keep watching cartoons and he kept -- and I kept hitting him away." Additionally, those medical records reflected the following history, as provided by the referring adults: (l) complainant exhibited "sexualized behaviors"; (2) she had disclosed that appellant "put his fingers in [her] vagina"; and (3) "there had been allegations against dad since lthe caregiver] first received child." The records include a cofirment from the physician that complainant "gives clear [history of] fondling of genitals by father." This second assessment resulted in a CPS disposition of "reason to believe." The police arrested appellant for aggravated sexual assault of a child. Complainant testified at trial that appellant twice "digged in my to-to." Further, her brother testified that shortly before the family separated, he saw appellant touch complainant's "middle part," the term the brother used to describe complainant's genitals, and appellant made the brother hit complainant in her "private area." A j"w convicted appellant of the offense. After finding two enhancement paragraphs were "true," the j".y assessed punishment at sixty-five years' confinement. II. SUTTICIENCY oF THE EvrorNcn In his first issue, appellant contends the evidence is insuffrcient to support his conviction. When reviewing sufficiency of the evidence, we view all evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). This standard gives fulI play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. Circumstantial evidence is as probative as direct evidence in establishing guilt. Hooper v. State,2l4 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact need not point directly and independently to guilt, as long as the cumulative force of all incriminating circumstances is sufficient to support the conviction. ,Id A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the sexual organ of a child younger than age fourteen by aty means. Tex. Penal Code Atttt. $ 22.021(a)(lXBXi), (2XB) (West, Westlaw through 2015 R.S.). In this case, the jury was charged that appellant committed the offense if he intentionally or knowingly penetrated complainant's sexual organ with appellant's finger. The State presented direct evidence that appellant peneffated complainant's vagina with his finger: (1) complainant's testimony that appellant twice "digged in my to-to," which referred to her vaginal area; and (2) complainant's outcry to Richardson that appellant would "stick" his finger in her'to-to." Either testimony is alone sufficient to support the conviction. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (West, Westlaw through 2015 R.S.) (providing conviction for sexual assault of a child is "supportable on the uncorroborated testimony of the victim . . . . "); Rodrigtez v. State, 819 S.W.2d 871,873 (Tex. Crim. App. 1991) (recognizing outcry testimony alone can be legally sufficient evidence to support a conviction for sexual assault of a child); see also Bargas v. State,252 S.W.3d 876,888-89 (Tex. App.-Houston t14th Dist.l 2008, no pet.) (holding child's testimony regarding abuse was alone sufficient to support defendant's conviction for aggravated sexual assault despite child's use of "unsophisticated terminolo Ey"); Jensen v. State,66 S.W.3d 528, 534 (Tex. App.-Houston U4th Disr.l 2002, pet. refd) (holding child's outcry statement was alone sufficient to support defendant's conviction for aggravated sexual assault). Nonetheless, the following evidence, although not direct regarding the requisite penetration, supported the j,rry's finding, when combined with the direct evidence: (1) complainant's sexually suggestive behavior; (2) complainant's fearful demeanor, including a fear of men; (3) complainant's specific remarks to caregivers or professionals generally indicating abuse by appellant: she learned to move tubular-shaped toys back and forth toward her genitals from "my daddy"; he made her "go up and down" on his lap while he was naked; an undressed doll might get "hurt" like appellant "hurt" complainant; her parents "play" in her "to- to" during hide-and-seek, and appellant rubbed and nied to play with complainant's "front" with his finger; (a) the fact that complainant generally spoke to her therapist about the "things that occurred" and was diagnosed with Post Traumatic Stress Disorder from having lived with her parents; (5) the fact that complainant generally made "disclosures" to the forensic interviewer (at their second meeting); (6) complainant's actions during that interview of placing her finger in the vagina of the doll and twisting the finger; (7) the brother observing appellant "touch" complainant's genitals; (8) appellant forcing the brother to "hit" complainant's genitals or place his finger in her "to-to"; and (9) the CPS disposition of "reason to believe." Appellant proffers multiple reasons that the evidence is purportedly insufficient to support his conviction. First, appellant cites several items of evidence to attack the credibility of witnesses and whether the child's statements, behavior, and testimony indicated any sexual assault occurred: Complainant was diagnosed with several psychological disorders unrelated to any sexual abuse, and her therapist acknowledged she had difficulty adapting to her new home. Complainant gave conflicting trial testimony on whether any abuse occurred: She originally testified no one had touched her "to-to." The prosecutor then requested a break and spoke with complainant. After the break, complainant testified the prosecutor did not tell her what to say but only that she should tell the truth and they would talk about her father. She then testified appellant "digged in my to-to." Complainant's teacher acknowledged the child was bossy and thus it was not unusual for her to insist another child refrain from removing a doll's clothes. o The CPS investigator who ultimately reached a disposition of "reason to believe" did not personally interview complainani or the investigating officer but gathered her information from observing the forensic interview. o Green originally testified complainant and her brother had seen each other only once since complainant began living in the GreerVRichardson home; but, after the brother recounted two visits, Green acknowledged she had forgotten another visit. I All of these points are merely matters on which we defer to the jury in its role to judge the credibility of witresses, weigh certain factors, and choose whether to believe some or all of a witress's testimony. See Gear,340 S.W.3d at 746; Sharp v. State,707 S.w.zd 617, 674 (Tex. Crim. App. 1996) (recognizing jury may choose to believe some, while rejecting other portions, of a witness's testimony). The jury was free to resolve those issues in favor of believing the State's witnesses and determining that complainant's testimony, statements, and behavior supported a finding that appellant committed the offense. See Gear,340 S.W.3d at 7 46; Sharp, 707 S.W .2d at 614. Next, appellant relies on the fact that the physician who examined complainant at the Center did not find any physical signs of abuse. However, that fact does not render the evidence insufFrcient; the physician also explained that it is common for a victim of sexual abuse to have normal physical findings because injuries heal quickly and the vagina is very elastic. Finally, appellant cites the brother's testimony that his mother's boyfriend, referred to as "Daddy Phillip," was the one who touched complainant's genitals. However, the brother later clarified that "Daddy Phillip" and appellant are the same person. ' The State proffered testimony regarding the limited number of visits to prove the children lacked an opportunity to concoct a story, and when Green remembered both visits. she was clear they occurred after complainant's outcry. In summary, the evidence is sufficient to support appellant's conviction for aggravated sexual assault of a child. We overnrle his first issue. III. Drnnr, oF MorroN FoR MrsrRru, In his second issue, appellant complains that the trial court denied appellant's request for a mistrial after a witress interjected improper testimony. On direct examination, complainant's therapist testified that she becomes concerned when she detects complainant is regressing. The State asked if the regression is tied to anything specific, and the therapist responded: The last time I remember was when she saw her liule brother, she was very happy to see the little boy, but after she went home and she lives with another sibling and immediately they became so sexually [sic] between the two of them that it was almost impossible to dismount them one from the other. Appellant's counsel asked to take the witness on voir dire, asserting the testimony was likely hearsay because it involved activity in the home on which the therapist would lack personal knowledge. Without requiring voir dire, the trial court's sustained the hearsay objection and instructed the jury to disregard the response. The trial court then denied appellant's request for a mistrial. We review a trial court's denial of a motion for mistrial for abuse of discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Mistrial is appropriate only for "highly prejudicial" and "incurable" ertors. Id. "It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile." Id. Ordinarily, a prompt instruction to disregard will cure error associated with improper testimony. See id. "Generally, a mistrial is only required when the improper evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the j.rry." Hinojosa v. State,4 S.W.3d 240, 253 (Tex. Crim. App. 1999). Whether the erroneous admission of evidence requires a mistrial is determined by considering the facts and circumstances of the case. 1d. Appellant contends the testimony at issue was introduced by the State solely to inflame the jury and it unfairly prejudiced appellant. The record negates appellant's contention regarding the State's pu{pose because the State represented it did not expect the witness's response and seemed to acknowledge it had yet to establish admissibility of any such testimony. Further, the question regarding what type of events caused complainant to regress did not indicate the State intended for the wifness to describe such a detailed incident that was not necessarilv based on her personal knowledge. With respect to the unfair-prejudice contention, appellant asserts the testimony suggested complainant and her sister behave in a sexual manner toward each other because they learned this behavior from appellant's sexual conduct toward complainant. We disagree that the testimony at issue was "so prejudicial that expenditure of further time and expense would be wasteful and futile," see Simpson, 119 S.W.3d at 272, because the jury had already heard ample other evidence regarding sexual behavior exhibited by complainant. Moreover, Green had testified that when the sister arrived in the home, she displayed similar behavior. Accordingly, the trial court did not abuse its discretion by denying appellant's motion for a mistrial. We ovemrle his second issue. IV. AImSSION OF TESTIMOI\IY In his third issue, appellant argues that the trial court erred by allowingafact witness to provide an expert opinion. Appellant cites the following exchange when /s/ John Donovan Justice Panel consists of Justices Christopher, Donovan, and Wise. Do Not Publish Tex. R. App. P. 47 .2(b). - t2