11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Marlin L. Clinton

Appellant

Vs.                   No. 11-03-00046-CR -- Appeal from Collin County

State of Texas

Appellee

The jury convicted Marlin L. Clinton of two counts of aggravated assault of a child.  For each count, the jury assessed appellant=s punishment at confinement for life.  We affirm.

Appellant presents two points of error on appeal.  In the first point, he argues that the trial court erred in refusing to grant a mistrial when the State repeatedly presented hearsay testimony in violation of the court=s ruling.  In the second point, appellant contends that the trial court erred in allowing the investigator to testify regarding the truthfulness of the complainant. 

With respect to the first point, we note that a mistrial is a device used to halt trial proceedings when an error is so prejudicial that the expenditure of further time and expense would be wasteful and futile.   Ladd v. State, 3 S.W.3d 547, 567 (Tex.Cr.App. 1999), cert. den=d, 529 U.S. 1070 (2000).  We must review the trial court=s denial of appellant=s motion for mistrial under an abuse of discretion standard of review.  Ladd v. State, supra. 

The record shows that the complainant, who was 17 years old at the time of trial, testified that, on two specific occasions when she was 6 or 7 years old, appellant forcibly inserted his finger into her vagina.  The complainant was not sure how many times it happened.  The complainant testified that she was scared to tell anybody what appellant had done because he told her not to tell and threatened to do Abad things@ to her family.  Several years later, the complainant told her aunt, Barbara Jane Chidley, what appellant had done.  The complainant testified that she finally decided to tell because she did not want the same thing to happen to anybody else.  Chidley testified as the outcry witness in this case, reiterating what the complainant had told her.  See TEX. CODE CRIM. PRO. ANN. art. 38.072 (Vernon Pamph. Supp. 2004).  On cross-examination, Chidley=s credibility was vigorously attacked by defense counsel.  Appellant also insinuated that Chidley Adeveloped a story@ in an attempt to get back at her sister, appellant=s wife, for revealing to Chidley=s children that their father had not kidnapped them but that Chidley had allowed them to live with their father because she could not take care of them. 

The State subsequently called the complainant=s best friend, Kimberley Ann Hambrick, to testify.  When the prosecutor asked Hambrick if she knew why they were there, Hambrick stated:  ABecause she told me that she was sexually touched.@  After a sidebar conference, the trial court sustained appellant=s objection and instructed the jury to disregard.  Appellant=s motion for mistrial was overruled.  The trial court then allowed the State to inquire about the time frame when the complainant told Hambrick in comparison to when the complainant told Chidley.  The trial court subsequently sustained another objection, instructed the jury to disregard, and overruled appellant=s motion for mistrial when the State asked Hambrick the following question: AWhen she told you this, did she seem clear about who did it to her?@  Hambrick did not testify about the content of her conversation with the complainant.  Hambrick did testify regarding how the topic came up, when the conversation occurred, and when Hambrick told her aunt.  According to Hambrick, she was the first person that the complainant had ever told about what had happened to her.^[1] 

During closing argument, the prosecutor stated:  ATwo years ago [the complainant] told her best friend what Marlin Clinton did to her at his home.@  Appellant objected that the comment violated the trial court=s earlier ruling.  The trial court sustained the objection and instructed the jury to disregard the prosecutor=s comment and to follow the instructions in the charge.  Appellant moved for a mistrial, which the trial court denied. 

We hold that the trial court did not abuse its discretion in denying appellant=s motions for mistrial.  Hambrick=s testimony was offered after both the complainant and Chidley had testified.  Defense counsel had accused Chidley and, consequently, the complainant of fabricating the story.  The State then properly attempted to rebut this accusation by showing that the complainant had actually told somebody else before telling Chidley, thereby showing that Chidley and the complainant did not fabricate the story.  See TEX.R.EVID. 801(e)(1)(B)(prior consistent statements offered to rebut a charge of recent fabrication or of improper influence or motive are not hearsay).  Neither the complained-of testimony nor the argument by the prosecutor, if erroneous, was so prejudicial as to require a mistrial.  The first point of error is overruled. 

In the second point, appellant complains of the testimony of Investigator Tony Bradley.  Twice during the direct examination of Investigator Bradley, the trial court sustained appellant=s objections when the prosecutor inquired about the credibility or truthfulness of the complainant.  Subsequently, the trial court permitted the following questions and answers: 

Q: Investigator Bradley, when you are investigating a case, if you had some signs that some adult [was] manipulating or trying to brainwash or coach a child, could that in and of itself be an offense, some type of emotional abuse?

A: Yes, ma=am. 

Q: So is that something that you are looking for so that you can follow up on the investigation if that was the case? 

A: Yes, ma=am.

Q: Is there anything in your investigation involving [the complainant] that took you down that path, that caused you, you know, what I need to go investigate some other adult who=s manipulating her?

[Appellant objected, and the trial court overruled the objection as to that Alimited question.@]

A: No. 

A trial court has broad discretion in ruling on the admissibility of evidence.  Salazar v. State, 38 S.W.3d 141, 151 (Tex.Cr.App.), cert. den=d, 534 U.S. 855 (2001); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App. 2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex.Cr.App. 1999), cert. den=d, 529 U.S. 1102 (2000).  As such, we will not disturb the trial court=s ruling as long as it was within the zone of reasonable disagreement.  Salazar v. State, supra; Weatherred v. State, supra; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App. 1991). 

Opinion testimony regarding the truthfulness or credibility of a child witness is generally prohibited.  Schutz v. State, 957 S.W.2d 52 (Tex.Cr.App. 1997).  However, it is permissible for a witness to testify that the complainant did not exhibit the traits of someone who had been manipulated because this type of testimony is not a direct comment on the truth of the complainant=s allegations.  Schutz v. State, supra at 73.  After analyzing the testimony in this case, we find that Investigator Bradley=s testimony was not a direct comment on the complainant=s truthfulness but, rather, related to whether she exhibited signs of being manipulated.  Consequently, the trial court did not abuse its discretion in permitting the testimony.  Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed. 

JIM R. WRIGHT

JUSTICE

June 30, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.