Lindberg v. State, 02-14-00071-CR

TIMOTHY JAMES LINDBERG APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-14-00071-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

September 24, 2015

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1255906D

MEMORANDUM OPINION¹

I. INTRODUCTION

A jury found Appellant Timothy James Lindberg guilty of two counts of aggravated sexual assault of a child under fourteen and found in a special issue that the child was younger than six years of age. The trial court then assessed punishment at thirty-eight years' imprisonment. In nine issues, Lindberg arguesthat the evidence is insufficient to support his convictions, that the trial court abused its discretion several times through the admission of evidence, and that the trial court erred during voir dire. We will affirm.

II. BACKGROUND

A few months after Girl² was born, her Mother met Stacey through a Craigslist ad. Stacey agreed to babysit Girl, and the two women later became close friends. Stacey lived with Lindberg during the time she babysat Girl. Stacey and Lindberg have three children of their own, one of whom is four months older than Girl. During her first few years, Girl was at Stacey and Lindberg's house frequently. Girl even called Lindberg "T.J." or "Daddy." By the summer of 2011, however, when Girl had reached the age of four, she was going to the couple's house only occasionally.

On June 25, 2011, a Saturday night, Mother and Girl were eating at a restaurant with other family members. According to Mother, Girl announced to everyone present that when she was at Stacey's house the prior week, "T.J. put his tee-tee in [her] mouth." Mother testified that her first reaction was to explain to Girl that it was inappropriate to say such things, to which Girl allegedly replied, "Mommy, he really did for real. He put his tee-tee in my mouth." Mother said that everyone at the table appeared shocked by Girl's statement.

After hearing Girl's statement, Mother said that she immediately went outside, called Stacey, and told her what Girl had said. By Mother's account, Stacey asked Mother to come over to discuss Girl's statement. Mother said that the two got in the car and began to drive to Stacey's house. But as they were driving and as Mother inquired further, Girl told Mother that she and Lindberg had been in the bathroom together, that he had put lotion on his penis, that he had put his penis in her "bottom," and that it had "hurt." Mother said that Girl even drew a penis shape in the air with her finger when asked what Lindberg's penis looked like. Mother decided to head home instead of proceeding to Stacey's home.

Mother said that at that moment she was in shock and did not know what to do. After Mother talked to others, she eventually called the police the following Monday morning, June 27, 2011. After meeting with the police, Mother took Girl to Alliance for Children, where child forensic interviewer Carrie Paschall interviewed Girl. Shortly after, Mother took Girl to Cook Children's Hospital for a physical examination by sexual assault nurse examiner Brenda Crawford.

Paschall testified that she interviewed Girl on June 29, 2011. Paschall said that during her interview with Girl, she conducted "a truth-lie scenario" with Girl in order to determine whether Girl knew "the truth versus a lie, right versus wrong." Paschall averred that she also conducted a "screening phase, which is where [she] used anatomical dolls to assess what [Girl] calls body parts and [to] ask her if she had ever been touched in any way." Paschall testified that afterthese phases, she conducted a detail-specific interview based on the answers Girl gave her to the previous phases of the interview.

Paschall further answered the prosecutor's questions regarding the concepts of "rolling" and "roll back" disclosures. During this portion of Paschall's testimony, the following exchange occurred:

[Prosecutor]: What's a rolling disclosure?

[Paschall]: A rolling disclosure is when a child makes the decision to tell about something that has happened to them or has been happening to them. And what we see with a lot of children is --

[Defense Counsel]: Objection, Your Honor. It's going into what happens in other cases and such. It's improper. 401, 403 and 404.

THE COURT: That's overruled.

[Prosecutor]: You may continue.

[Paschall]: Okay. They oftentimes will tell the first person that they tell. They may tell a small portion of what happened to them. And the reason that they do that is they're gauging reactions, am I being believed, am I being protected, am I being listened to, am I being blamed, all of those things.

As they feel safe and protected, then they may disclose more information the next time that they talk to somebody. And we kind of see that pattern taking place throughout the course of the investigation sometimes and sometimes throughout the course of the lifetime. And we can see that happen in very small amounts of time or very lengthy amounts of time as well.

[Prosecutor]: Do children sometimes roll back their disclosure?

[Paschall]: Yes.

[Prosecutor]: And -- and what ways do you see that?

[Paschall]: I see them --

[Defense Counsel]: Again, Your Honor, this is totally improper as to trying to put in what happens in other cases, trying to suggest that the State's case should be considered when there's no evidence otherwise before the jury. And we object, Your Honor, that it's a -- a backdoor way of trying to say, well, you shouldn't believe the child except when she does something for us, and I object.

THE COURT: That's overruled.

[Prosecutor]: You may continue.

[Paschall]: Could you ask the question again? I'm sorry.

[Prosecutor]: The question was: Why would a child roll back disclosure?

[Defense Counsel]: Same objection.

THE COURT: Overruled.

[Paschall]: What I've seen in my experience is sometimes children will tell about something that happened to them, and as they grow older and gain more sexual knowledge, more self-awareness, sometimes embarrassment, shame, guilt set in, and it's harder to talk about those things that initially when they disclosed them, they didn't understand the full ramifications of what had happened to them.

And so sometimes we can see kids pull back a little bit on what they're saying for those reasons. They start to understand things a little more.

A video recording of Paschall's forensic interview was admitted into evidence at trial and played for the jury. In it, Girl can be heard stating that "T.J."had put his penis in her mouth and that he had also pulled her pants down and had put his penis in her "butt" when she was at Stacey's house. In the video, Girl can be heard saying that when this occurred, Lindberg's penis was "sticking straight." Girl can also be heard saying that Lindberg had put lotion on his penis prior to putting his penis in her "butt." Girl can also be seen drawing a picture of what Lindberg's penis looked like on a drawing board.

Crawford also testified at trial about her medical examination. By Crawford's account, Girl's developmental level was on target for her age at the time she reported the alleged incident. Crawford averred that Girl reported that Lindberg had stuck his penis in her mouth. She also allegedly reported that he had pulled her pants down and put his penis in her "butt" and that this caused Girl pain. Crawford testified that she found no physical evidence regarding Girl's allegations but that in her professional opinion, she would not have expected to find such evidence given the time delay between when the alleged incident occurred and when the examination happened—approximately six days. Crawford testified that her "impression, based on the exam and what [Girl] told [her], was sexual abuse, no anal/genital injuries noted."

Girl was seven years old at the time of trial. She said that when she was four years old, she saw Lindberg's penis while she was in the bathroom with him at Stacey's house. Girl also testified that Lindberg put water on his penis and then put it in her mouth. Girl described Lindberg's penis as "tan" and "soft" andsaid that nothing came out of it when these alleged events occurred. Girl testified that Lindberg had not touched her anywhere else on her body.

After the State closed, both Lindberg and the State introduced a stipulation to the jury that Girl, on November 23, 2013, had stated to two assistant district attorneys that Lindberg had not caused his penis to contact her anus.

Stacey testified in Lindberg's defense. Stacey stated that Lindberg had been home alone with some of their children and Girl when the alleged assaults were reported to have happened. She stated, however, that she did not believe Girl's outcries.

Lindberg testified at trial. He denied committing the offense but agreed that he had the opportunity to be alone with Girl for multiple hours at the time the alleged events occurred. Lindberg also said that he thought of Girl like his own daughter and that he did not know why she had made these accusations about him.

A jury found Lindberg guilty of two counts of aggravated sexual assault of a child—count one alleging that Lindberg caused Girl's mouth to contact his penis and count two alleging he caused Girl's anus to contact his penis. The jury also found "true" the special issue that Girl was under six years of age at the time of the offenses. The trial court assessed punishment at thirty-eight years' confinement for each count, with the sentences to be served concurrently. This appeal followed.

III. DISCUSSION

A. Sufficiency of the Evidence

In his first and eighth issues, Lindberg argues that the evidence is insufficient to support both counts of aggravated sexual assault. Specifically, in his first and eighth issues, Lindberg argues that the State failed to present evidence that he "intentionally or knowingly" committed aggravated sexual assault. In his eighth issue, Lindberg argues that the trial court erred by denying his motion for directed verdict on count two, which alleged that he...