author: JERRY L. SMITH, J.,

text:
    STATE of Tennessee v. Larry F. LITTON.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Assigned on Briefs July 28, 2004.
    Oct. 5, 2004.

      David E. Crockett and Lisa D. Rice, Elizabethton, Tennessee, for the appellant, Larry F. Litton.
    Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Greeley Wells, District Attorney General; and Teresa Murray Smith, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JERRY L. SMITH, J.,

delivered the opinion of the court,

in which DAVID H. WELLES and JAMES CURWOOD WITT, JR., JJ., joined.

The appellant, Larry F. Litton, was indicted on charges of rape in violation of Tennessee Code Annotated section 39-13-503. A jury found the appellant guilty of the lesser-included offense of sexual battery and recommended a $3,000 fine. The appellant was sentenced to a one-year sentence as a Range I Standard Offender, but the trial court ordered the appellant to serve two years on probation in lieu of incarceration. The trial court also imposed the $3,000 fine recommended by the jury. After the denial of a motion for new trial, this appeal ensued. The appellant challenges: (1) the trial court’s decision to allow the testimony of Dr. Scott Levine in which he recounted a conversation with the victim that occurred several weeks after the incident; (2) the trial court’s instruction to the jury that a tape-recorded conversation between the victim and the appellant was an “alleged admission;” and (3) the sufficiency of the evidence. For the following reasons, we affirm the decision of the trial court.

Factual Background

On Monday, October 23, 2000, the victim, Christy Trent, was admitted to Bristol Regional Medical Center for a surgical procedure. The victim was licensed as a nurse, but did not work at the time of the procedure due to various physical ailments. The victim was scheduled to have a feeding tube installed because of a condition, called “chronic aspiration.” As a result of chronic aspiration when the victim swallowed food, it passed into her lungs rather than her stomach. The insertion of the feeding tube was designed to alleviate this problem.

On the day the victim was scheduled for the procedure, the appellant, a licensed registered nurse anesthetist, was working in the operating room at Bristol Regional Medical Center. The appellant introduced himself to the victim and explained that he would be responsible for both administering and monitoring her medications both prior to and during her procedure. The victim specifically asked the appellant to check on her after the procedure to make sure she was alright. The victim also complained to the appellant that her husband did not accompany her to the hospital for the procedure.

Prior to the feeding tube procedure, the victim had undergone at least thirty-three surgeries for various physical ailments. One of these surgeries required a morphine pump to be inserted into her spine for pain relief from her back problems; the morphine pump was in place at the time of the feeding tube procedure.

The victim remained in the hospital until October 27, 2000. Several days later, after calling one of her psychologists and an attorney, and having a conversation with her husband, the victim called the Bristol Tennessee Police Department to report that the appellant raped her while she was a patient at Bristol Regional Medical Center.

The appellant contacted Investigator Debbie Richmond-MeCauley with the Bristol Police Department. Several days later, Investigator Richmond-MeCauley spoke with the victim. According to the victim, the appellant visited her in her hospital room on Tuesday, the day after her surgery, for no apparent reason. When he left, he told her that he may come back to visit her again the next night. On Wednesday afternoon, the appellant telephoned the victim in her hospital room to tell her that he would come see her later that evening. At approximately 2:30 a.m. on Thursday morning, the appellant telephoned the victim and invited her to meet him in the “on call” room. The victim told the appellant “no” and he informed her that he would “run up” and see her. The appellant arrived at the victim’s room about fifteen minutes later.

The victim claimed that once in her room, the appellant crossed the room to the windows and drew the shades tighter. The victim claimed that the appellant then sat on her bed and spoke with her briefly. After some light conversation, the victim claimed that the appellant leaned over the rail of her bed and started kissing her on the mouth and “stuck his tongue” in her mouth. The victim claimed that she pushed the appellant away, told him to stop, and told him that he should leave. Then, according to the victim, the appellant grabbed her right hand and said, “Look what you did,” placing her hand on his erect penis over his clothing. The victim pulled her hand away and again told the appellant to leave. The victim stated that the appellant then walked around the bed, pulled down his scrub pants and exposed himself to the victim. The appellant then allegedly “leaned over and took my head again and forced his penis in my mouth.” The victim claimed that she bit the appellant’s penis and, as a result, he removed it from her mouth. After removing his penis from her mouth, the victim claimed that the appellant tried to get her to “masturbate him.” When she refused, the victim claimed that the appellant “finished the job,” ejaculating quite a bit on a pillowcase that he grabbed from a bedside table. After ejaculating, the victim claimed that the appellant went into the bathroom and cleaned himself up. When he emerged from the bathroom, the victim claimed that he acted as if nothing had happened. The appellant told the victim that he also worked some hours at Norton Hospital in a nearby Virginia town and that she. could call him there. The appellant instructed her to say that she was his cousin when she called.

After hearing the victim’s claims, Investigator Richmond-MeCauley instructed the victim to place a call to the appellant at Norton Hospital. Investigator Richmond-MeCauley provided the victim with a tape recorder to record the conversation and instructed the victim to try to get the appellant to admit to the incident during the phone call. A phone call was placed to Norton Hospital and a message was left for the appellant to return the call. Approximately two hours later, the appellant returned the call and the victim recorded the conversation. Investigator Richmond-McCauley was not present during the telephone conversation.

As a result of the victim’s allegations, the Sullivan County Grand Jury indicted the appellant on charges of rape in February of 2001. A lengthy trial was held in November of 2001. During the trial, the victim maintained her version of the events and stated that she did not report the incident while still a patient at the hospital because she was “just scared” and “just clammed up.”

At trial, the jury learned that the victim had a history of psychiatric problems. The victim admitted that in 1991 she faked an attempted murder in order to get sympathy from her husband. During this incident, the victim shot herself and blamed it on an unidentified assailant. The victim also admitted that she was a patient at Woodridge Psychiatric Hospital in 1996 after she ingested 95 pills in an apparent suicide attempt. During this visit, the victim was diagnosed with adjustment disorder with disturbance of emotion and behavior, moderate to severe major recurrent depression and personality disorder. The victim also admitted that she again attempted suicide in 1998 and was again admitted to Woodridge after ingesting 40 pills. At that time, the victim was diagnosed with major depression, severe and recurrent psychosis, poly-substance dependent, dependent borderline traits, marital discord, and social isolation. At the time of the trial, the victim was under the influence of several physician prescribed narcotics. On the day of her testimony, she admitted that she had taken Lortab, Soma and Lorazepam.

During her testimony, the victim also admitted that as a result of the incident at Bristol Regional Memorial Hospital, she had filed a lawsuit against the appellant and the hospital for one million dollars.

At trial, there was testimony from numerous nurses charged with the care of the victim during her stay at the hospital. Pamela Blanton, Susan Jessee and Gayla Hodge all testified that they had contact with the victim both before and after the alleged incident. All three nurses maintained that the victim never mentioned to any of them that she had been assaulted, raped, or that anything upsetting or distressing had happened to her. In fact, none of the nurses noted any difference in the victim’s behavior after the alleged incident occurred. The nurses also testified that throughout her stay, the victim requested her pain medication be administered early and that she be given more pain medication than prescribed by her doctor.

During the defense proof, the appellant took the stand on his own behalf. He testified that the victim’s feeding tube procedure was completed without complication and that he was responsible for monitoring the victim after the procedure and administering additional medication to the victim during recovery to relieve her pain. The appellant remained with the victim in the recovery room for approximately ten minutes after the procedure was completed.

On Tuesday, October 24, the appellant claimed that he visited the victim in her room after checking her chart at the nurses station. He stated that it was normal surgical procedure to follow up with patients after their surgery. During this visit, the appellant claimed that he verified that the victim was having no problems with recovery from anesthesia. The appellant claims that the victim requested that the appellant assist her in her next surgery. According to the appellant, the victim wanted to know how she could reach him to make sure that he was in charge of her anesthesia. In response to her question, the appellant told the victim that she could call the hospital and ask for him or that she could call him at the hospital in Norton, Virginia, because he worked at that facility as well. The appellant told the victim if she could not get in touch with him to tell the person that answered the phone that she was his cousin, and she would be more likely to speak with him rather than leaving a message. The appellant told the victim that, according to her chart, no additional surgery was scheduled, but that he could check her chart at a later time to see if the date of the next surgery was set. The appellant claims that he left the room that afternoon without incident after staying for about five minutes.

On October 25, 2000, the appellant claims that he was on trauma call in the operating room of the hospital at about 7:00 p.m. After finishing with a surgery, the appellant claims that he checked the victim’s chart to see if more surgery was scheduled. The appellant went to the victim’s room to inform her that there was still no surgery scheduled on her chart. The appellant maintains that the victim asked “whether his wife knew about them.” The appellant stated that he did not know what the victim was talking about. At that point, the appellant claims that the victim asked for more drugs like the ones used during surgery. When the appellant refused to give the victim more medication, he claims that the victim grabbed him in the groin and told him that she would cry rape unless he complied. The appellant could not extricate his groin from her grip but eventually pushed the victim’s arm away. When the victim grabbed the appellant’s groin, he excreted some prostatic fluid onto his scrubs. He went to the bathroom, wiped off the fluid with a pillowcase he found, threw the pillowcase in the bathroom floor and immediately left the room. The appellant did not report this incident to any hospital personnel and instead immediately returned to his duties in the operating room. The appellant had no further contact with the victim during her hospital stay.

The appellant also testified that he received a telephone call from the victim while he was working in Norton, Virginia. He claims that he did not understand the majority of the things that the victim was talking about, but agreed with everything she was saying because he believed she was psychotic. The appellant claimed that his medical background led him to believe that it was better to pacify the victim during the conversation rather than arguing with her.

At the conclusion of the week-long trial, the jury found the appellant not guilty of rape but guilty of the lesser-included offense of sexual battery. The trial court denied the appellant’s request for judicial diversion, sentencing the appellant instead to a one-year sentence as a Range I Standard Offender, but suspended that sentence pending the appellant’s completion of two years of probation. The trial court also imposed a $3,000 fine recommended by the jury.

The appellant filed a timely motion for new trial in which he argued that: (1) the finding of guilt was totally inconsistent with the proof; (2) “credible evidence presented by both the state and the defense ... preponderates against the guilt” of the appellant; (3) the trial court erred by instructing the jury that the tape-recorded conversation between the appellant and the victim was an admission of guilt by the appellant; and (4) the trial court erred in failing to grant the appellant judicial diversion. The trial court denied the motion for new trial.

On appeal, the appellant argues that the trial court incorrectly charged the jury regarding the tape-recorded statement, incorrectly allowed Dr. Levine, the victim’s doctor, to testify regarding a conversation he had with the victim several weeks after the alleged incident and that the evidence is insufficient to sustain the conviction for sexual battery.

Waiver

The appellant argues on appeal that the trial court erred “in allowing the testimony of Dr. Scott Levine regarding the victim’s recounting of the alleged assault several weeks or months after the event.” Specifically, the appellant argues that the victim did not report the event to Dr. Levine until four to eight weeks after it happened and, therefore, the trial court erred in instructing the jury that the statement made by the victim to Dr. Levine was a prior consistent statement. The State argues that the trial court correctly instructed the jury regarding the statement made by the victim to Dr. Levine.

Neither party has noticed that this issue was not raised in the motion for a new trial. Rule 3(e) of the Tennessee Rules of Appellate Procedure provides that for appeals “in all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, ... or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.” Tenn. R.App. P. 3(e); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.1997) (holding that a defendant relinquishes the right to argue on appeal any issues that should have been presented in a motion for new trial).

In the case herein, the appellant failed to raise the issue regarding Dr. Levine’s testimony in a motion for new trial. Thus, we can consider the appellant’s argument only if the statements qualify as plain error under Tennessee Rule of Criminal Procedure 52(b). In exercising our discretion as to whether plain error review under Tennessee Rule of Criminal Procedure 52(b) is appropriate, the Tennessee Supreme Court has directed that we examine five factors, all of which must be present in a case in order for review under Rule 52(b) to be appropriate. These five factors are as follows: (1) the record must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a substantial right of the defendant must have been adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to do substantial justice. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.2000) (citing State v. Adkisson, 899 S.W.2d 626, 641 (Tenn.1994)).

For a “substantial right” of the accused to have been affected, the error must have prejudiced the appellant. In other words, it must have affected the outcome of the trial court proceedings. United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (analyzing the substantially similar Fed. R.Crim.P. 52(b)); Adkisson, 899 S.W.2d at 642. This is the same type of inquiry as the harmless error analysis under Tennessee Rule of Appellate Procedure 36(b), but the appellant bears the burden of persuasion with respect to plain error claims. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770.

In the case herein, we are not persuaded that the appellant has successfully earned his burden of persuasion in establishing a plain error claim. The appellant does not even acknowledge the fact that he failed to raise the issue in a motion for new trial and does not argue that the trial court’s decision to admit the evidence and instruct the jury that it was a prior consistent statement was plain error. Additionally, the only authority the appellant cites for his argument is a treatise on evidence. Further, there is no indication that a substantial right of the appellant was adversely affected, that the appellant did not waive the issue for tactical reasons, or that consideration of the error is necessary to do substantial justice. Finally, it is unclear what “clear and unequivocal rule of law” was broken. We cannot conclude that the trial court committed plain error. This issue is without merit.

Tape Recording as “Alleged Admission”

The appellant next contends that the trial court erred in instructing the jury that the taped conversation between the victim and the appellant was an admission against interest. Specifically, the appellant argues that: (1) “[djuring this conversation, Appellant made no admission of wrongdoing or any criminal act or activity whatsoever;” (2) the trial court erroneously characterized the appellant’s statements and responses during the telephone conversation as admissions; and (3) the trial court’s instruction improperly influenced the jury in their consideration of the statements and responses made during the conversation. The State argues that the trial court properly instructed the júry.

At trial, during the victim’s testimony, the State introduced a tape recording of a telephone conversation between the victim and the appellant. The tape-recording was made by the victim after being instructed by the police to do so. The telephone conversation, lasting approximately twenty-five minutes, was played at least twice in its entirety during the trial, both during the testimony of the victim and the testimony of the appellant.

At the instruction of Investigator Richmond-McCauley, a telephone call was placed to the hospital in Norton, Virginia, where the appellant was working. The victim was initially unable to reach the appellant but left a message saying that she was his cousin and that he should return the phone call. The appellant returned the phone call later that night after Investigator Richmond-McCauley left the victim’s home. The following recitation of the telephone call is from the transcript of the tape submitted to the jury. The beginning of the conversation centered around the victim’s recovery from surgery. She described to the appellant that she was “doin [sic] better” but that she had gotten a rash on her stomach after the procedure that had to be treated with medication. The appellant showed sympathy for the victim and from his comments appeared to be interested in the victim’s recovery and progress. The victim then inquired about the appellant’s work schedule and found out that he stayed in a hotel while working at the Norton hospital.

The victim explained that she “just wanted to talk” to the appellant because she had not talked to him “since... you know you come [sic] up to the room the other night.” She told him that she “thought ... [he] would come up the next morning or day to say, ... goodbye or call ... [her].” The victim talked to the appellant about the fact that she had asked him to do the anesthesia for her next surgery. The victim then changed the subject, saying “I just don’t [want] you [to] think that I just let any man to ... uh you know, come into the room, or.... Well, I’m not easy.” The appellant responded that he did not “think that at all” and that “the thought’s never entered my mind.” Then, the following exchange took place:

[Victim]: Well uh, us, I wanted to make that very sure ...
[Appellant]: Yeah.
[Victim]: ... because I don’t do this with people, I’m not, I’m not that way
[Appellant]: I know you’re not.
[Victim]: ... and I was very uncomfortable, you know, when you put your penis in my mouth and uh ...
[Appellant]: Yeah.
[Victim]: ... and, you know, startled.
[Appellant]: Yeah.
[Victim]: And, cause ... I didn’t know, I didn’t wanna lead you or [sic] on or think, make you to believe that I’m that type person.
[Appellant]: Well I don’t think that ...
[Victim]: I hope you don’t, cause ... [Appellant]: No honey I don’t think that.
[Victim]: Well, I appreciate you saying that because I, I mean it’s, it’s bothered me....

Later on in the conversation, the following exchange occurred:

[Victim]: So ... do you know ...
[Appellant]: Yeah.
[Victim]: And...[sic] the, you know, well you know what went on... [sic]
[Appellant]: Oh yeah.
[Victim]: I don’t have to repeat it.
[Appellant]: Yeah, yeah.
[Victim]: And uh, but uh, I didn’t [want] you to think that I’m an easy person. ...
[Appellant]: No, no, no....
[Victim]: _that I just don’t let ...
[Appellant]: I don’t think that at all. [Victim]: Um, I’m not that type person that would just see a person... uh, but you know, I saw you were so nice to me
[Appellant]: Well you’re such a sweetheart yourself.
[Victim]: Well, you, I mean, in, downstairs you started off and, I mean you were so nice, kind, and....

That exchange was followed by a discussion between the victim and the appellant regarding the appellant’s current work schedule, including when he would be back in Bristol, working at the hospital where the victim had her procedure, and whether the appellant would still be available to perform the victim’s anesthesia for her upcoming surgery. The appellant frequently called the victim “honey” and/or “sweetheart” throughout the conversation.

Several times during the conversation, the victim told the appellant that she did not want him to think that she was “easy.” At one point, the victim commented that she did not want the appellant to think that she “just let anybody that ... [she’s] known for 3 or 4 days uh, just come in and start kissing ...” to which the appellant merely responded, “Yeah.” The victim also commented that “since my husband and I have been married, that’s the first thing ... this is the first thing, incident that’s come around” and that she felt like “the rip slut of the world.” The appellant mainly responded with “yeahs” and “nos” to the comments of the victim.

The victim talked briefly about the fact that her husband was out of town at a conference at the time of the phone call and told the appellant, “[Pjlease, please, whatever you do, uh, you know, what happened ....” To which the appellant replied, ‘Yeah, I know, I mum’s the word.” The conversation then changed pace and the victim and the appellant again talked about the appellant’s work schedule for the upcoming week and how the victim would go about getting in touch with him. ■

Two times during the conversation, the victim brought up a pillowcase:

[Victim]: And I didn’t uh, I didn’t know what to do uh, with, you know, the pillowcase so I just put it in a laundry bag.
[Appellant]: OK
[Victim]: With the linen, was that ...
[Appellant]: Yeah.
[Victim]: ... cause I, you know, where you pitched it under the sink I didn’t know....
[Appellant]: Yeah.
[Victim]: I said well maybe I ought to get that up cause that doesn’t look like a towel, and they might be a little suspicious on that.
[Victim]: And, and like I say, you know, whenever at the end, when you did the thing on the pillowcase ...
[Appellant]: Yeah, yeah.
[Victim]: ... and took it in the bathroom and I got rid of everything.
[Appellant]: Well good.
[Victim]: I didn’t ... I- think the tech would have said why is she washing with a ba ..., with a pillowcase....
[Appellant]: Oh no, no, no.
[Victim]: .... and pulling [sic] it under the sink.

Finally, as the conversation was coming to a close, the following exchange occurred:

[Victim]: Well, uh, talk, yeah I’ll talk to you Monday, but uh, but still, you know, you know, when ... I still feel a little uncomfortable you know, when you know, you put, you know ...
[Appellant]: What?
[Victim]: .... in my mouth and I....
[Appellant]: Yeah.
[Victim]: I, you know, makes you un ... you know, I didn’t know ya, I didn’t ... [Appellant]: I know that.
[Victim]: .... and then, so....
[Appellant]: I don’t want you to worry about that.
[Victim]: Well, that’s why I, you know;’ when I did that and,
[Appellant]: Well I thought ...
[Victim]: I said stop you know I, I didn’t, I’d never been put in that position.
[Appellant]: Yeah, I’m sorry.
[Victim]: You know, your penis.
[Appellant]: I know.
[Victim]: But uh, so I’m not embarrassing ya I hope.
[Appellant]: No.
[Victim]: But I just wanted to ciar....
[Appellant]: I just don’t, I just don’t want you to worry.
[Victim]: OK, well I appreciate that and ... but I just wanted to let you know that I’m uh, I don’t do this every day.

No objections were made to the introduction of the tape-recorded conversation. When the appellant took the stand to testify, he explained the conversation with the victim as follows:

I had ascertained by what happened in the room that I was dealing with someone that had some serious psychological problems and especially when she started saying, “Does your wife know about us?” And I _ she started talking pretty bizarre and I’ve been in the medical field like over forty (40) years total and I just remembered what I was taught in school that someone’s _ and — and I’m not trying to be facetious or anything. I just remember what I was trained. If someone starts talking erratic or — or saying_you know, like hallucinating or — or fantasizing or something, you don’t intimidate them. You don’t make them mad. You don’t make them hostile. You — you just try to pacify them and get _ basically I just wanted to get her off the phone.

The appellant further explained that he thought the victim was talking about grabbing his groin after he refused to give her more medication when she talked about being “easy” and that he did not know what to think when she started talking about his penis.

On appeal, the appellant “contends that his responses do not rise to the level of a statement, as intended under the definition of the Tennessee Rules of Evidence nor under the definition of assertion adopted by the court in State v. Land [34 S.W.3d 516 (Tenn.Crim.App.2000)]” and that the trial court’s decision to charge the jury on admission against interest improperly influenced the jury’s verdict.

In Helton v. State, 547 S.W.2d 564 (Tenn.1977), the Tennessee Supreme Court set forth a definition for admissions against interest. The Supreme Court stated:

The distinction between an admission and a confession is blurred. Generally, however, “a ‘confession’ is a statement by the accused that he engaged in conduct which constitutes a crime.... ” An admission is an acknowledgment by the accused of certain facts which tend together with other facts, to establish his guilt; while a confession is an acknowledgment of guilt itself. An admission, then, is something less than a confession and, unlike a confession, ... an admission is not sufficient in itself to support a conviction.

Id. at 567 (quoting 8 Wharton’s Criminal Evidence (13 ed. Torcía 1973), §§ 662 and 663); see also State v. Kyger, 787 S.W.2d 13, 23 n. 2 (Tenn.Crim.App.1989). While the statements made by the appellant during the telephone conversation herein are certainly not a confession, the statements can be construed as an admission against interest. See generally State v. Antonio George White, No. 775, 1987 WL 25166, at *1 (Tenn.Crim.App. at Knoxville, Dec. 1, 1987) (stating that defendant’s statement denying involvement in the crime but admitting being at the crime scene with another perpetrator was an admission under Helton). During the conversation herein, the appellant admitted that he was in the victim’s room and responded positively to questions, which, when considered along with the victim’s version of the events, tend to establish the appellant’s guilt.

Because we have determined that the appellant’s statement can be construed as an admission against interest, we must determine if the trial court properly charged the jury. Defendants have a “constitutional right to a correct and complete charge of the law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn.1990). Accordingly, trial courts have the duty to give “a complete charge of the law applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn.Crim.App.1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn.1986)). There is- no requirement that a trial court be limited to using pattern jury instructions. State v. West, 844 S.W.2d 144, 151 (Tenn.1992). When reviewing challenged jury instructions, we must look at “the charge as a whole in determining whether prejudicial error has been committed.” In re Estate of Elam, 738 S.W.2d 169, 174 (Tenn.1987); see also State v. Phipps, 883 S.W.2d 138, 142 (Tenn.Crim.App.1994).

At the conclusion of the trial, the trial court instructed the jury as follows:

Alleged statement against interest. Evidence of an alleged admission has been introduced in this case. An admission is an acknowledgment by the defendant of certain facts which ten- which tend, together with other facts, to establish his guilt. It must be corroborated by other independent evidence to warrant and support a conviction.
The Court has permitted the — the alleged admission as evidence, but it remains your duty to decide if, in fact, such statement was ever made and if such alleged statement was an admission. If you do not believe it was ever made, you should not consider it. If you decide the statement was made, you must then judge the truth of the facts stated and if the alleged statement was an admission. In determining whether the statement is true and an admission, you should consider the circumstances under which it was made. You should also consider whether any of the other— other evidence before you tends to contradict the statement in whole or in part. You should not arbitrarily disregard any part of the statement, but should consider all of the statement you believe to be true and if it is an admission — and if it is an admission.
If you find the statement is true and an — and—if you find the statement is true and [an] admission, you are the sole judges of the weight that — that should be given it. You should consider it along with all the other evidence in the case in determining the defendant’s guilt or innocence.

The trial court also informed the jury that it was the jury’s province to determine what weight, if any, the statements proven in the case should carry. The court additionally informed the jury that it might take any statement in consideration with all the other facts and circumstances proven in the case. Elsewhere in the instructions, the trial court instructed the jury as to credibility of the witnesses, stating in pertinent part:

You are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. If there are conflicts in the testimony of different witnesses, you must reconcile them, if you can, without hastily or rationally concluding that any -witness has sworn falsely for the law presumes that all witnesses are truthful. In forming your opinion as to the credibility of a witness, you may look to the proof, if any, of his general character, the evidence, if any, of the witness’ reputation for truth and veracity, the intelligence and respectability of the witness, his interest or lack of interest in the outcome of the trial, his feelings, his apparent fairness or biases, his means of knowledge, the reasonableness of his statements, his appearance and demeanor while testifying, his contradictory statements as to the material matters, if any are shown, and all of the evidence in the case tending to corroborate or to contradict him.

After reviewing both the tape-recorded conversation and the corresponding jury charge, we conclude that the trial court properly gave the instruction on admission. Further, the trial court’s instruction clearly stated that it was the jury’s responsibility to determine whether the appellant had made any admission and if he had, to determine whether the statements were entitled to any weight. The jurors were additionally instructed that they were the sole judges of the facts and of the law as it applied to the facts in the case. We conclude that the trial court’s instructions contained an adequate statement of the law. Although the pattern jury instructions do not contemplate an “alleged” admission against interest, the instruction provided is otherwise virtually identical to the instruction on admission against interest contained in the Tennessee Pattern Jury Instructions. See T.P.I. — Crim. § 42.11(a) (4th ed.1995). The trial court in the case herein merely changed the language in the charge from “admission” to “alleged admission.” This dilution of the jury charge by addition of the modifier “alleged” could only have inured to the appellant’s benefit.

It was the responsibility of the jury to determine whether these statements were made, whether they were truthful, and what weight the statements should have been given in determining guilt or innocence. In our view, the instruction was proper. It allowed the jury to consider the surrounding circumstances and determine, in proper context, if the defendant was acknowledging culpability. That was the correct procedure. In summary, it is our view that the trial court provided essentially correct and adequate instructions to the jury. This issue is without merit.

Sufficiency of the Evidence

When a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn.1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). Thus, although the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn.Crim.App.1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App.1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779.

In the case herein, the appellant was charged with rape, a violation of Tennessee Code Annotated section 39-13-503. After hearing all the evidence at trial, the jury convicted the appellant of the lesser-included offense of sexual battery, a violation of Tennessee Code Annotated section 39-13-505. Sexual battery is defined as:

[U]nlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act; (2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent; (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physieaEy helpless; or (4) The sexual contact is accomplished by fraud.

Sexual contact includes:

[T]he intentional touching of the victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’s, the defendant’s, or any other persons intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification

Tenn.Code Ann. § 39-13-501.

In the case herein, the State’s proof consisted primarily of the testimony of the victim. The victim’s story, recounted in detail above, included allegations that the appellant came to her hospital room in the middle of the night, kissed her against her will, forced her to touch his erect penis, exposed his genitalia to her, and forced his penis into her mouth. Further, she testified that he masturbated to ejaculation in her presence. There was no testimony to corroborate the victim’s version of the events. The defense proof consisted primarily of the testimony of the appellant. The appellant admitted that he visited the victim’s hospital room, but he denied that he had any type of sexual contact with her. Instead, he testified that the victim demanded medication and, when he refused to provide that medication, grabbed him in the groin and threatened to “cry rape” if he did not comply. According to the appellant, the victim’s grasp on his groin caused him to secrete prostatic fluid that he cleaned off with a pillowcase that he found in the bathroom. The appellant claimed he then fled the room. The appellant also testified that he agreed with all the statements made by the victim during the telephone conversation to “pacify” her because he thought she was crazy.

It is not the duty of this Court to assess the credibility of witnesses on appeal, that function is the duty of the trier of fact. See generally, State v. Adkins, 786 S.W.2d 642, 646 (Tenn.1990); State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn.Crim.App.1993). Considering the testimony of the victim, along with the tape-recorded telephone conversation, as well as the testimony of the appellant, there was sufficient evidence to support the jury’s verdict of sexual battery. The case herein truly presents the classic “he said/she said” scenario. Because of the nature of the allegations, witness credibility no doubt played a crucial role at trial. As noted, the determination of the weight and the credibility of the testimony of witnesses and reconciliation of conflicts in that testimony are matters entrusted exclusively to the trier of fact, in this case the jury. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.1984). The jury herein resolved the question of witness credibility upon rendering a verdict of guilt for the lesser-included offense of sexual battery. Implicit in the jury’s verdict is determination that the victim was a credible witness. We conclude that the evidence presented at trial was sufficient for a rational trier of fact to find the essential elements of sexual battery beyond a reasonable doubt. This issue is without merit.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

      . The victim’s husband at the time of the "attempted murder” later died. The victim has since remarried.

      . During her hospital stay, the victim was taking a heavy schedule of narcotics for pain. The victim had what was described by several medical personnel as a strong intravenous supply of both phenergan and demerol. The victim was also given soma, ativan, prevacid, a hormone, and a drug to assist in digestion.

      . There was testimony from both the appellant and one of the appellant's doctors that the appellant had long suffered from prostate problems, including prostatitis. There was testimony indicating that prostatitis often causes secretions of prostatic fluid from the penis. The appellant often complained about leaking urine or prostatic fluid from his penis and even took medication for the condition.

      . According to both the appellant and the victim, when the victim inquired about having the appellant perform her anesthesia for a future surgery, the appellant told her that the best way to ensure that she got in touch with him was to call the hospital and leave a message that she was his cousin.

      . We note that in order to be considered an admission against interest under the Helton standard, the statement must only contain an “acknowledgment by the accused of certain facts which tend together with other facts, to establish his guilt.” 547 S.W.2d at 567. There is no requirement, such as there is for the "statement against interest” exception to the hearsay rule, that the statement must be against the declarant's pecuniary or propriety interest or must tend to subject the declarant to civil or criminal liability at the time the statement is made. See Tenn. R. Evid. 804(b)(3).


source: Caselaw Access Project

author: Justice HECHT

license: Public Domain

text:
    GENERAL MOTORS CORP., Petitioner, v. Rita L. IRACHETA, Administrator of the Estates of David Iracheta, Deceased, and Edgar Iracheta, Deceased, Respondent.
    No. 02-0932.
    Supreme Court of Texas.
    Argued Sept. 25, 2003.
    Decided April 8, 2005.

      Cary Alan Slobin, Jeffrey Cox, Kyle H. Dreyer, Hartline Dacus Barger Dreyer & Kern, LLP, Dallas, Darrell L. Barger, Hartline Dacus Barger Dreyer & Kern, LLP, Corpus Christi, Sharon E. Callaway, Crofts & Callaway, P.C., San Antonio, Do-nato D. Ramos, Law Office of Donato Ramos, Laredo, for petitioner.
    George Russell Meurer, Kenneth A. Vails, Wilson Trevino Freed Vails & Trevino, LLP, Laredo, Robert E. Lapin, Lapin & Landa, L.L.P., Houston, Vincent L. Marable III, Paul Webb, P.C., Wharton, Luther H. Soules III, Langley & Banack, Inc., San Antonio, for respondent.
   Justice HECHT

delivered the opinion of the Court.

Silvandria Iracheta was driving a 1988 General Motors Oldsmobile Toronado on a two-lane highway near Laredo just after noon on a clear day when she suddenly veered across the center line into an oncoming 18-wheeler at a closing speed of over 100 m.p.h. The truck rolled over the car, ripping off its hood and roof, and severely damaging its left side. The collision ruptured the truck’s fuel system, splattering diesel over both vehicles that exploded in flame. Several minutes after the car came to rest at the side of the road, a second fire exploded, this one fueled by gasoline from the car. Silvandria died instantly in the collision, and her four-year-old son David, seated in the back, may have as well. Her other passenger, nine-year-old son Edgar, belted in the passenger seat, remained conscious and died in the second fire.

The boys’ grandmother, Rita L. Irache-ta, sued General Motors Corporation on behalf of their estates. (The boys’ father could not be found to bring a wrongful death action.) A jury failed to find that Silvandria’s negligence caused the boys’ deaths and found instead that Edgar’s death, but not David’s, was caused by a design defect in the car which allowed gasoline to siphon from the fuel system. The jury found Edgar’s pain and anguish damages to be $10 million. The trial court rendered judgment on the verdict, only General Motors appealed, and the court of appeals affirmed.

In this Court, General Motors raises a number of issues, one of which, we conclude, is dispositive: there is no evidence that the second fire was caused by the defect in the Toronado. Accordingly, we reverse the judgment of the court of appeals and render judgment for General Motors.

Iracheta’s proof of causation rests on the testimony of two expert witnesses. One, Eduardo Sanchez, testified on the origins and causes of the fires resulting from the collision. The diesel from the truck’s ruptured fuel system, he said, exploded on impact in a fireball that, although intense, lasted only the few seconds it took for the Toronado to skid down the highway to a stop. Consistent with the accounts of the truck driver and two other men at the scene, Sanchez testified that after this first flash fire, small spot fires broke out and continued to burn in the car’s engine and passenger compartments and in the grass around the vehicle for about ten minutes, more or less. The three men approached the vehicle and tried to free Edgar, who was screaming in pain in the front seat, but the car was too hot for them to reach inside. Suddenly, they heard what they described as a “whoosh” sound at the rear of the vehicle, and the second fire exploded, fueled by gasoline from the car. Although the gas tank had remained intact, Sanchez testified that gasoline leaked from the fuel system onto the ground for several minutes until the vapors ignited.

Determining whether the car’s fuel system could leak was not, according to Sanchez, within the scope of his expertise. For that, he said, he relied on Iracheta’s other expert, John Stilson, a mechanical engineer with experience in accident reconstruction. Stilson testified that gasoline could leak or siphon from the fuel tank only through a return line that ran from the engine along the left side of the car to the tank. The line was made of steel tubing and did not rupture in the collision, but it was attached on one end to the engine and on the other to the tank by short, flexible rubber hoses that were both found to have burned away at some point. Tests Stilson conducted on a similar vehicle showed that when the car was inclined toward the front, as Iracheta’s was when it came to rest off to the side of the highway, gasoline would siphon out of the tank onto the ground if either the front hose or the rear hose was opened. This condition, Stilson testified, was a design defect in the car.

Although Stilson found that gasoline would .siphon from the return line at either end, depending on where the breach occurred, Iracheta concedes that she had to prove that gasoline leaked at the rear of the car rather than the front, since all of the witnesses present at the scene testified that the “whoosh” and the second fire came from the rear, and Sanchez testified that the fire could not have happened as it did if gasoline had not siphoned at the rear. Furthermore, Iracheta concedes that she was required to prove that the rear hose was severed or torn in the impact before it burned; otherwise the gasoline escaping from the burning hose would have been ignited immediately by the flame and there would never have been the “whoosh” sound that everyone present heard. As Iracheta’s counsel explained at oral argument:

JUSTICE: You do have to show siphoning occurred at the rear to get causation here on this record, because it would be inconclusive if there were only siphoning at the front?
COUNSEL: We have to present evidence that a jury could reasonably find that the siphoning caused a spill at the rear of the car, yes.
JUSTICE: Does it matter how the rear opened up? Does it matter whether it burned through or whether it was caused by the collision?
COUNSEL: I think it may, and the reason for that is the “whoosh”. Again, it comes back to: how did this car suddenly, after several minutes — from 10 to 20 minutes — become engulfed in this cloud of flames that ultimately killed Edgar Iracheta? If the line burned, there could have been just a jet stream of flame like at the end of a welding torch, which might not create that “whoosh”. And here the spill at the rear — where there was no immediate fire, or no testimony that there was any immediate fire, falling on the ground— creating a vapor that spread until it found an ignition source and then exploded — is what Mr. Sanchez’s testimony establishes. Also the eyewitnesses— they were at the vehicle, and that’s why this is not a circumstantial evidence case altogether — testified that the fire came from the rear, the “whoosh” came from the rear. And Mr. Sanchez in his investigation in reaching his conclusions talked to all of those eyewitnesses, talked to Stilson, observed the replica of the car, observed the car itself, the damage that went all down the side of the car, including the rear where the rear hose was broken, and that’s how he came to his opinion that the rear hose was broken and that’s where it siphoned.

The difficulty is that there are significant conflicts in and between the testimony of Sanchez and Stilson, each stressing both the extent and the limits of his own expertise and that of the other. Stilson testified that his assignment in the case was to determine exactly where gasoline leaked or siphoned from the Toronado fuel tank, and that he took it upon himself to make that determination. This, he stated, was his area of expertise, not Sanchez’s. Stilson testified that gasoline siphoned at the front of the return line and did not siphon at the rear. The rear hose on the return line, he said, was not injured in the collision but burned away in the fire.

Sanchez testified at his deposition that he could not say where the leak in the return fuel line occurred, that he was unable to establish whether the line had been compromised at impact, that he was not an expert ón that subject, and that he would leave the determination to someone else. At trial, however, Sanchez was “100 percent” certain that the leak occurred at the rear of the car and not at the front. For one thing, he said, there was no evidence of intensified fire in the front, and for another, a leak at the front of the car could not have caused the “whoosh” at the rear. Furthermore, Sanchez stated, he had been told by Stil-son that gasoline siphoned from the rear hose because it was damaged by the impact of the two vehicles. But later in his testimony, Sanchez admitted that Stilson had told him many times the rear hose had burned through, not that it broke from the impact of the two vehicles. Sanchez stated that it was impossible for the rear hose to have burned through because gasoline in the hose would have been ignited immediately, without the delay and the “whoosh” sound. He was “100 percent” sure of this, too. Yet at another point he testified that where the leak occurred was immaterial because fires inside the car and in the surrounding grass could have ignited the gasoline vapors. The internally conflicting nature of Sanchez’s testimony is perhaps best illustrated in the following answers to questions by Iracheta’s counsel within four minutes of each other at trial (as indicated in the reporter’s record):

Q I’ve written up here, sir, the question: where did the line siphon? And I’m referring to the return line. That is a question that you have given an answer to in this case, correct?
A That’s correct.
Q Would you tell us your understanding of whether or not that was Mr. Stilson’s area of expertise for purposes of this case?
A Yes, it was.
Q So although Mr. Stilson was asked his opinion in the case with regard to the question of where did the return line siphon, would you tell the jury is that your area to answer?
A That is my area of expertise.

To support his opinion that gasoline siphoned from the rear hose, Sanchez offered simply that he had excluded the only other possibility, which was that gasoline or vapors from the filler neck (where gasoline is pumped into the tank) ignited. He believed that vapor from the tank would be too lean, and that the gasoline in the tank would have had to boil out onto the ground before it could ignite, which it was not hot enough to do. Sanchez asserted that the grass fires were not hot enough to have caused gasoline or vapors to escape from the filler neck and ignite, even though he had testified that those same fires could have ignited any gasoline leak, and despite the unchallenged testimony of the eyewitnesses that fires in and around the car made it too hot to approach. Sanchez also asserted that the initial flash fire was too short in duration to heat the fuel tank. Sanchez cited no testing or other basis for these opinions.

Confronted at trial by Sanchez’s testimony the previous day, Stilson stated that while he still believed that the rear hose had burned away, instead of being severed in the impact, his was only “one explanation”. Although Stilson continued to insist that the return fuel line siphoned at the front of the car, contrary to what Sanchez had said, he would not “take exception” with Sanchez that siphoning at the rear was a “possibility”.

The court of appeals concluded that “Sanchez was not qualified to render an opinion regarding where the siphoning actually occurred”, and further, that “[n]othing in the record shows Sanchez’s engineering opinion — that the fuel line ruptured in the rear end of the car is— rehable.” The court nevertheless concluded that “there is legally sufficient evidence to support a finding that the Toro-nado’s fuel system failed during the crash”, namely:

Stilson’s opinion that the front rubber hose of the return line failed in some manner; Stilson’s opinion that one explanation for a compromise in the rear hose is that it burned away; and [General Motors’ expert’s] opinion that the hoses did not rupture.

But none of this evidence supports a finding that a fuel system failure resulted in the second fire. There is no evidence that the second fire could have been caused by a failure of the front hose or the burning of the rear hose; indeed, Sanchez’s testimony was exactly the opposite. The court’s cite to General Motors’ expert’s testimony in this context is difficult to understand, since it directly contradicts Iracheta’s theory that the rear hose was ruptured by the impact. The court of appeals added:

Problematically, Stilson theorized that the return line[ ] opened near the front of the vehicle as a result of the initial impact, but Sanchez determined that the fire detonated near the vehicle’s rear. Although this conflict may appear to be fatal to Iracheta’s claim, Sanchez recognized that there might be a conflict between his theory and Stilson’s. Specifically, Sanchez stated: “But it could have been either/or, it’s immaterial, the gasoline is out of that environment, out of the contained fuel system. Whether it did leak in the front or whether it leaked in the back is immaterial in my opinion.”

We agree with the court of appeals that the conflict between Stilson and Sanchez appears fatal to Iracheta’s claim, but we do not agree that the conflict can be avoided by Sanchez’s bare assertion that “it’s immaterial”. Undisputedly, gasoline could have siphoned from the return fuel line at both the front and the rear. Tests proved that. But there is no evidence that siphoning at the front could have caused the second fire in the way every witness testified it occurred. Indeed, Sanchez himself testified that siphoning at the front could not have caused the second fire. For Sanchez to characterize his conflict with Stilson as “immaterial” is contradicted by their testimony.

We agree with the court of appeals that Sanchez was not qualified to testify. It was Iracheta’s burden to establish Sanchez’s qualifications. Sanchez and Stilson both testified that Sanchez was not qualified to offer an opinion on where the siphoning occurred. Although both also equivocated on the subject, experts cannot be as ambivalent as.these two were and establish the privilege of offering opinion testimony under Rule 702 of the Texas Rules of Evidence.

Furthermore, while Sanchez did assert that gasoline siphoned from the return fuel line at the rear of the car, the only support he offered for this opinion was that he had eliminated all other possibilities. He eliminated the obvious possibility that fuel or vapors from the tank filler neck ignited only by saying so, offering no other basis for his opinion. Such a bare opinion was not enough. Just last year we wrote:

We noted in Burrow v. Arce that, although expert opinion testimony often provides valuable evidence in a case, “it is the basis of the witness’s opinion, and not the witness’s qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness.” Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999). Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact “more probable or less probable.” See Tex.R. Evid. 401. This Court has labeled such testimony as “incompetent evidence,” and has often held that such conclusory testimony cannot support a judgment. Cas. Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, 99 (1939) (holding that a witness’s statements were “but bare conclusions and therefore incompetent”); see also Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997) (“[A]n expert witness’s conclusory statement ... will neither establish good faith at the summary judgment stage nor raise a fact issue to defeat summary judgment.”). Furthermore, this Court has held that such con-clusory statements cannot support a judgment even when no objection was made to the statements at trial. Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380 (1956) (“It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.”); Rhone, 132 S.W.2d at 99 (holding that “bare conclusions” did not “amount to any evidence at all,” and that “the fact that they were admitted without objection add[ed] nothing to their probative force”); see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex.1997) (“When the expert ‘brings to court little more than his credentials and a subjective opinion,’ this is not evidence that would support a judgment.... If for some reason such testimony were admitted in a trial without objection, would a reviewing court be obliged to accept it as some evidence? The answer is no.”).

Thus, even if Sanchez had been qualified to testify about where gasoline leaked, none of his opinions rise to the level of competent evidence.

Moreover, Sanchez’s testimony was rather clearly unreliable. It had no basis outside his own assertions, which were irreconcilably self-conflicting. A fair view of his testimony is that he was willing to say almost anything, directly contradicting himself. Iracheta argues that General Motors waived any complaint regarding the reliability of Sanchez’s testimony by waiting until the end of cross-examination to object. But the utterly conflicting nature of Sanchez’s testimony was not fully apparent until cross-examination. Indeed, the conflict in his testimony regarding his and Stilson’s respective expertise did not occur until redirect. The unreliability of expert opinions may be apparent as early as the discovery process but also may not emerge until trial, during or after the expert’s testimony, or even later. An objection must be timely, but it need not anticipate a deficiency before it is apparent. Here we cannot say that General Motors’ objection following cross-examination came too late.

Apart from Sanchez’s testimony, only Stilson’s could support the verdict, and it falls short. In Stilson’s view, the rear hose on the return fuel line burned away. But as Sanchez demonstrated, the fire that burned the hose would also have ignited the gasoline siphoning through it, resulting in a fire like a “welding torch” (counsel’s description at oral argument), not the “whoosh” that the eyewitnesses all heard. Stilson conceded that injury to the rear hose from the impact was a “possibility” and was willing to “defer” to Sanchez on the matter. But as we have shown, Sanchez offered no competent opinions on the subject to which Stilson could defer, and the mere possibility that the rear hose was compromised at impact is not enough to support the jury’s findings.

Iracheta attempts to borrow from each of her experts pieces of opinion that seem to match, tie them together in an ill-fitting theory, discard the unwanted opinions, disregard the fact that the experts fundamentally contradicted themselves and each other, and then argue that this is some evidence to support the verdict. Inconsistent theories cannot be manipulated in this way to form a hybrid for which no expert can offer support. We therefore conclude that there is no evidence that the siphoning defect in the Toronado caused the second fire in which Edgar died. Accordingly, Iracheta is not entitled to recover against General Motors.

We are obliged by one highly unusual occurrence during summation to add this additional note. Rising to begin his argument to the jury, Iracheta’s counsel stated: “Mrs. Iracheta has asked for the opportunity simply to stand and thank you for your time as well.” Immediately, without leave of court or notice to opposing counsel, Mrs. Iracheta stood and said to an all-Hispanic jury: “Muchas gracias les doy de parte de mis nietos y mi hija y de parte mia la jurado.” (“Thank you very much to the jury on the part of my grandchildren and my daughter and on my part.”) General Motors understandably did not interpose an objection at once but waited until after Iracheta’s counsel had finished his argument, and then moved for a mistrial at the bench. The court denied the motion.

The court of appeals concluded that General Motors’ objection was untimely. We disagree. In these most unusual circumstances, General Motors’ counsel was not required to object to a grandmother’s expression of appreciation on behalf of her deceased daughter and deceased grandchildren, thereby risking the jury’s ire, and it is entirely impractical to think otherwise. At oral argument in this Court, Iracheta’s counsel concedes that it was improper for Mrs. Iracheta to address the jury but argues that the error was harmless. We think the harm is manifest to any experienced trial lawyer. A party’s personal expression of gratitude to the jury at the close of a case is error that cannot be repaired and therefore need not be objected to.

Accordingly, we reverse the judgment of the court of appeals and render judgment that Iracheta take nothing.

Chief Justice JEFFERSON and Justice GREEN did not participate in the decision.

      . See Tex. Civ. Prac. & Rem.Code § 71.021.

      . See id. § 71.004(a) (stating that a wrongful death action "is for the exclusive benefit of the surviving spouse, children, and parents of the deceased”).

      . 90 S.W.3d 725 (Tex.App.-San Antonio 2002).

      . "Q In this case, were you asked to determine the exact location of where this particular Toronado siphoned fuel? In other words, if you assume the return line — ”
      “A Yes. I understand.”
      "Q Were you asked to identify for purposes of your expert testimony in this case where that happened?”
      "A Yes. That was my assignment in this particular case, that I was requested to evaluate the design — not just for siphoning, but to find out whether or not this system leaked gasoline, number one, and number two, whether it should have. That’s what I took on for a task.”

      . "Q Mr. Stilson, for purposes of this case, did you take it upon yourself to try to determine where exactly on the return line the opening occurred in the Iracheta accident?"
      "A Yes.”

      . “Q ... You didn’t say, 'That’s not my area, go talk to Ed Sanchez,' did you?”
      "A Not as far as siphoning and where the lines were compromised, no. I never assign that to anybody but me.”
      "Q So where it siphoned and where it compromised was your area.”
      "A My area.”

      . "Q Okay. Now ... you believe ... that there was siphoning out of the return line at the front end as the vehicle was at rest, correct?”
      "A That is correct.”

        "Q All right. And that’s what you believe now; is that correct?”
      “AYes, Ido.” ■

      . "Q ... Second, ... did you testify that the leakage did not come from the hoses at the back of the tank because they were not compromised in the collision?”
      "A In my deposition, that’s what I have stated.”
      “Q All right; And that’s your opinion?”
      "A That’s my opinion.”

      . "Q [Question from your deposition:] 'Do you believe that the elastomeric hose for the return line back at the tank was burned away?’ ‘Answer: Correct.’ ‘Question: I mean, it didn’t suffer collision-related damage that caused it to separate?’ And your answer was what?”
      "A Yes.”
      "Q ‘That is correct'?”
      "A 'That is correct.' ”

      . "Q [Question from your deposition:] 'With regard to where you believe the siphoning occurred, you're saying somewhere I believe between the carburetor, or where the fuel enters the engine, and the tank. Is there any more specificity you can give me other than that?' And your answer, sir, was, 'No, sir. I cannot. The fuel lines between the tank and the area where they come into the engine compartment, where they connect to the flex lines at both ends, somewhere between point A and point B, I can’t be more specific than that.’ That’s what you told us, right?”
      '’A That’s correct.”

      . "Q Question [from your deposition]: ‘When you say "compromise,” were you able to pinpoint through the fire patterns or any of your investigation a location of compromise [of the fuel line] or are you assuming compromise because of damage to the vehicle'?”
      "A Answer — ”
      "Q And you answer was?”
      "A The answer was: 1 am unable to establish which line was compromised or whether it was compromised at impact.’ ”

      . "Q Okay. Didn’t you say [in your deposition] that you don't know where the siphoning was, that you’re not an expert, you leave that to someone else, and that it was somewhere between point A and point B on that line which was all the way from the engine to the gas tank?”
      "A That's correct. And I answered [opposing counsel] on about four different times. He kept asking me and then he jarred my memory. And ... I attempted to explain this process that I’m covering here.”

      . "Q Well, today you’re saying I can be more specific than that because you’re saying I know 100 percent it was in the back at the tank on this hose. You now know that 100 percent today.”
      "A That’s correct.”

      . “Q You have ruled out any leak up front which caused the 'whoosh'. Is that a correct statement?"
      "A Yes. Correct."
      "Q So I’m going to write down, number one, ruled out 100 percent. Fair?”
      "A Fair.”

      . "Q There is no evidence of a fire — or intensified fire — at the engine compartment? That's your testimony?'” -
      "A That — •”
      "Q That’s your testimony?”
      "A Yes.”

      . "Q If it [that is, the metal return line] is not crimped [up front in the engine compartment], you might be wrong [about whether the line leaked there], right?”

        "A I might be wrong that it is not crimped. I might be wrong that we didn't have a siphoning. The siphoning at that end does not create the 'whoosh' under the car at the opposite end of the car.”

      ."Q All right. My question to you is though: As far as the location of the siphoning, it occurred there [at the rear hose near the fuel tank] because Mr. Stilson told you that. And that is an integral part of your opinion.”
      "A Certainly.”

      "Q At impact, this terrific impact knocked off this rubber hose and the car came to rest and that's where it siphoned in the back. And that’s what Mr. Stilson told you.”
      "A That’s basically what conclusion I reached as well based on all the information that I got.”

        "Q But my question is that’s what- — as you've told us before — -that’s what Mr. Stilson told you and that’s what you used because you're not an engineer and you can’t say it didn’t happen.”
      "A That's correct.”

      "Q I just want to make sure that’s what Mr. Stilson told you.”
      "A Yes, sir. Essentially that’s what he told me.”

      . "Q ... Did Mr. Stilson tell you it was his engineering opinion that that rubber hose [at the rear near the tank] broke upon impact of the two vehicles?”
      "A He told me that it burned.”
      "Q That's right. He told you that many times, didn’t he?”
      "A And I told — yes, sir, he did.”

      . "Q It’s impossible because if it [that is, the rear hose] burned through, as Mr. Stilson says, you would have had a fire immediately, wouldn't you?”
      "A Yes, sir. Correct.”
      ”Q I mean, you can't bum through a hose full of gas without having a fire, can you?”
      "A If it is, in fact, full of gas at the time, yes, sir.”
      "Q Well, under your theory it’s siphoning, so it has to be. Right?”
      "A It siphons when the line is open, sir.”
      "Q But under your theory, if it’s burned through, you would have had a fire right there immediately, right?"
      "A Yes.”
      "Q Okay. So you're going to rule out 100 percent that the 'rear hose on the return line at the tank burned through prior to siphoning.’ Right?”
      "That’s correct.”

      . “Q But you can tell for sure — you are 100-percent certain — that this mbber hose [at the rear] was thrown off at impact, aren't you?”
      "A It would have to have been compromised.”
      "Q You are 100-percent certain, aren't you?"
      "A I am conclusive on that, yes.”

      . "Q You say [in your deposition regarding where the siphoning occurred], ‘At some point from the front end of the feed and/or the return line to the lower end of the tank.’ And then you say, 'Personally, I feel that it is from the back end simply because the detonation occurred underneath the vehicle at the back end.’ You told [Stilson] that, correct?”
      "A Correct."
      "Q And then you continue and you say, 'But it could have been either/or. It’s immaterial; the gasoline is out of that environment, out of the contained fuel system. Whether it did leak in the front or whether it leaked in the back is immaterial in my opinion.’ Correct?”
      "A That’s correct.”

        "Q All right, sir. Now can you explain to us why — explain first of all what that answer means?”
      “A Essentially the question here is why is the fuel out of the — or confined fuel system. That is the question. The question is not what detonated it or what ignited it because there were a multitude of things around there. Fire in the grass around it, there were fires in the engine area, there were fires in the dashboard area, fires on the — in the interior cab. And that’s why I mention that it’s immaterial. The question here is why did the fuel get out of the enclosed fuel system and how did it get out. That’s what I’m addressing there.”

      . "Q All right, sir. Have we then eliminated all the potential candidates for where the gasoline might have siphoned out of this tank other than one?”
      "A That's correct.”
      “Q And what is the one, then, that you conclude is the true source of the siphoning?”
      "A Return line. Siphoning through the return line at the rubber connections.”
      "Q At which rubber connection, sir? You’ve identified two.”
      “A At the tank.”

      . “Q Okay. So why was there not enough vapor to escape from the filler neck to have created this 'whoosh'?”
      "A Because it's not going to be a sufficient quantity of vapors. It’s going to be very lean. It’s going to be under the lower explosive limits of gasoline .... ”

      . "Q Yes, sir. To generate the vapors sufficient to have them go out of the filler neck, what do you need?”
      “A The fuel is going to have to be on the ground. It's going to hit the soil. It’s going to be absorbed by the soil' — ■"
      "Q I’m talking about the filler neck, sir.”
      “A From the filler neck. It would have to boil over, fall to the ground — exit the tank, fall to the ground, and vaporize on the ground to have the amount of vapors that we had to cause this violent reaction.”
      "Q Was the fuel boiling?”
      "A No, not in my opinion. There was no— there was no intense heat of any duration to cause that.”

      . "Q Even if there had been some grass burning right underneath the tank, given the conditions of that grass out there, the wind, and other matters out there, all the evidence together, would it have been sufficient to boil the gasoline in this tank?”
      "A In my opinion, no.”
      "Q Not a chance?” -
      "A Not a chance, no.”

        . “A ... The same thing happened in the flash fire at impact.”
      "Q With the gas tank?”
      "A With the gas tank. Why? Because it lasted for a matter of seconds, number one. Number two, the tank is protected by the vehicle because it’s underneath. So in my opinion there was not enough time to transfer heat from that fireball or flash fire on the tank to bring it to a boil-over.”

      . "Q Did you ever offer an opinion, Mr. Stilson, regarding what you think might have caused the rear hose to open in this accident?”
      "A Yes.”
      "Q And what was your opinion, sir?”
      "A My opinion was and is that one explanation for the opening of that rubber hose was it was burned away by the fire. That’s one explanation. Because it's burned away right now. The remnant of the return line hose from the connection at the steel that goes back up to the tank down to where it connects to the underbody hose, it goes — or line that goes forward to the engine, that transition of rubber hose is all burned away right now. So I know it burned away at some point.”

      . "Q So Mr. Sanchez has ruled out any leak up front, and you disagree with that?"
      "A Yes. I don’t think that is correct.”
      "Q And Mr. Sanchez has ruled out that the return lines were burned up, and you don't agree with that either?”
      "A No. I defer to his opinions on that. If he has come to the conclusion that the fire in the rear of this vehicle was more consistent with the rear lines, that’s fine. I defer to him.”
      * ⅜ *
      "Q But with regard to the question of the details of whether there was enough heat to bum it through versus the forces of the impact, you defer to Mr. Sanchez?”
      "A Well, I will defer — Ed Sanchez is certainly the fire area, and whether they burned through during the fire, I will certainly defer that. That is his area. As far as his opinion, again, I think Ed Sanchez is coming from the fire position, looking backwards towards the system. Obviously, he saw some trauma that he feels could have compromised those hoses, and I will defer to him, if that’s his opinion. I certainly am not going to take exception to that. It is certainly a possibility and I agree with him.”

      . 90 S.W.3d at 731.

      . Id. at 732.

      . Id. at 733.

      . Id.

      . Id.

      . See note 16 supra.

        .Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996) (''[T]he party offering the expert’s testimony bears the burden to prove that the witness is qualified under Texas Rule of Civil Evidence 702.”).

      . Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004) (footnote omitted).

      . See note.

      . See Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 911 (Tex.2004).

      . 90 S.W.3d at 743-744.

      . Cf. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) ("[O]bjection to a trial court’s, alleged improper conduct or comment must be made when it occurs if a party is to preserve error for appellate review, unless the conduct or comment cannot he rendered harmless by proper instruction.”) (emphasis added).