Hernandez v State

Decision Date02 August 2001
Docket NumberNos. 01-00-00303-CR,s. 01-00-00303-CR
Citation53 S.W.3d 742
Parties<!--53 S.W.3d 742 (Tex.App.-Houston 2001) ELIAS HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee - 01-00-00305-CR Court of Appeals of Texas, Houston (1st Dist.)
CourtTexas Court of Appeals

Panel consists of Justices Mirabal, Jennings, and Duggan.*

OPINION

Terry Jennings, Justice

Appellant, Elias Hernandez, pleaded not guilty to three indictments alleging three separate acts of aggravated sexual assault of the same female child under 14 years of age. All three cases proceeded to trial together before the same jury. The jury found appellant guilty and sentenced him in each case to 18 years confinement. Appellant brings two points of error, contending the trial court erred (1) in allowing expert testimony in violation of Texas Rule of Evidence 702, and (2) in refusing to admit into evidence a videotaped recording. We affirm.

We overrule appellant's second point of error because a review of the record reveals the videotape in question was never offered into evidence. Without a formal offer and adverse ruling, nothing was preserved for review. Tex. R. App. P. 33.1.

Appellant's first point of error requires a thorough review and analysis of the facts of this case and the applicable case law.

Facts and Procedural Background

In September 1997, appellant was accused by his seven-year-old niece of sexual abuse. After a Children's Protective Services (CPS) investigation, the above criminal charges were brought against appellant.

During the guilt-innocence phase of the trial, the State presented, as its final witness, Trudy Davis, Executive Director of the Advocacy Center for Children in Galveston County, a non-profit organization that works with governmental agencies to evaluate child abuse cases. After describing the physical facilities and the role and function of the Advocacy Center, Davis testified to her background and duties. She has three years experience as the Executive Director of the Advocacy Center and holds a bachelor's degree in criminal justice and sociology. She was a case worker and supervisor at Galveston County CPS for 18 years and an investigator for the Galveston County District Attorney's office for two years. Davis's career has focused on the abuse and neglect of children, primarily in the area of sexual abuse, and she has worked on thousands of cases involving the sexual abuse of children. She has testified as an expert on many occasions and is well versed in the "dynamics and common characteristics of a sexually abused child."

After Davis testified that all sexually abused children do not react the same way, appellant's counsel requested and was allowed to take Davis on voir dire in front of the jury. Appellant's voir dire provided a more detailed picture of Davis's qualifications. Voir dire revealed that 12 of her 18 years at CPS were dedicated to sexual abuse cases and that she was a supervisor for 11 of those years. The jury learned that Davis conducted and supervised investigations, videotaped interviews of abused children, and received training in sexual abuse at various workshops and conferences.

Apparently relying on Kelly v. State, 824 S.W.2d 568, 575 (Tex. Crim. App. 1992), appellant's counsel then asked a series of questions regarding factors concerning the reliability of Davis's "opinion" on "sexual abuse." The testimony showed Davis (1) had not conducted any studies, (2) had not published any articles, (3) understood her data and opinions were recognized by the general community of psychology and psychiatry, (4) did not know the potential rate of error of her opinion, and (5) believed her opinion was reliable, as it was based on "experience and observation and training." Appellant's counsel further questioned Davis:

[DEFENSE]:How would you test your theories?

[DAVIS]:I don't think there's really a test except by taking other professionals who have done studies and had practices related to sexual abuse and relate that to what we're seeing when we are involved in a sexual abuse case in terms of looking for dynamics and characteristics that are common.

. . . .

[DEFENSE]:Your comments do not impact whether or not a child tells the truth when it [sic] testifies; is that correct?

[DAVIS]:What I'm saying is that the opinions are not going to focus on a specific child's testimony as to credibility or not. But, in general, children's credibility and how they disclose, how they become involved in sexual abuse, and how - - what occurs after disclosure. That's what I'm referring to in general, not a specific.

After establishing Davis had not met the victim in this case nor reviewed the video of this victim, appellant's counsel made the following objection:

Your Honor, I would move to strike any testimony as an expert because I don't believe that she's met all the qualifications under the Texas Rules of Evidence 702, 703, and, in particular, Daubert.

After confirming the State would not solicit an opinion as to "this particular child['s]" credibility, the trial court overruled appellant's objection and permitted Davis to testify.

The State proceeded to ask Davis about "Child Abuse Accommodation Syndrome." She stated there are "common characteristics and dynamics" observed in child sexual abuse cases, including "[s]ecrecy, helplessness, entrapment or accommodation, delayed or conflicted disclosure, and recantation . . . ." Davis then explained under question and answer each of these characteristics to the jury. Essentially, she related to the jury the great extent of the manipulation of sexually abused children. She discussed the trust the victim has in the perpetrator and the enormous amount of strain on child sexual abuse victims, which may lead to delayed disclosures and false recantations:

They feel a tremendous amount of guilt and responsibility for the relationship going on. They feel humiliated because they haven't been able to tell. So, they're just going to tell you a little bit and then tell you more as time goes on, seeing that you are listening and not condemning them in any way. [A]fter they disclose and see the response to their disclosure, they say it didn't happen; I dreamed it; I made it up. . . . The family is in turmoil. It rips their family apart and, again, they want their family to be together. They feel responsible for that. They would rather say it didn't happen and go back to the way things were.

Expert Witness Testimony

In his first point of error, appellant contends the trial court erred in allowing Davis to testify as an expert on "Child Abuse Accommodation Syndrome" based on our holding in Perez v. State, 25 S.W.3d 830 (Tex. App. Houston [1st Dist.] 2000, no pet.). This case brings before this Court, once again, the consequences and results of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), and its Texas progeny, E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), and Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996), which held the inquiry of expert witness reliability addressed in Kelly is substantively identical to the inquiry stated in Daubert.

The Objection

We first address appellant's objection to the testimony of Davis on the grounds she did not meet the "qualifications of the Texas Rules of Evidence 702, 703, and, in particular, Daubert." Appellant's objection was made after counsel's voir dire of Davis using questions patterned from the Kelly reliability factors. He also structures his appellate argument on these reliability factors.

To preserve error, an objection to the admission of evidence must state the specific ground for the objection if the specific ground is not apparent from the context. Tex. R. Evid. 103(a); Tex. R. App. P. 33.1; Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985). For example, an objection to an improper predicate that fails to inform the trial court exactly how the predicate is deficient will not preserve error. Bird, 692 S.W.2d at 70.

The Texarkana Court of Appeals has twice held that objections similar to appellant's objection in this case are not specific enough to preserve error. In Chisum v. State, 988 S.W.2d 244, 250-51 (Tex. App. Texarkana 1998, pet. ref'd), defense counsel objected to the admission of an expert's opinions, but did not specify any particular deficiency in the expert's qualifications or the reliability of her opinions. Thus, the court held no error was preserved for review. Chisum, 988 S.W.2d at 251. Similarly, in Scherl v. State, 7 S.W.3d 650, 652 (Tex. App. Texarkana 1999, pet. ref'd), defense counsel objected to admission of intoxilyzer evidence because it was inadmissible "under Rule 702, Daubert, Kelly, and Hartman." The court noted Rule 702 and these cases cover numerous requirements and guidelines for the admission of expert testimony and held the objection did not adequately inform the trial court of a specific complaint upon which to rule. Scherl, 7 S.W.3d at 652.

Appellant's objection to Davis's testimony on the grounds that she did not meet the "qualifications of the Texas Rules of Evidence 702, 703, and, in particular, Daubert" is a general objection. However, given the context of the voir dire questioning, appellant was clearly attacking the reliability of Davis's opinions based on her not performing any studies, not publishing any articles, and not knowing the potential rate of error of her opinion. Thus, the objection adequately informed the trial court of the complaint upon which to rule. See Tex. R. Evid. 103(a); Tex. R. App. P. 33.1; Bird, 692 S.W.2d at 70.

Due to the confusion, apparent from the arguments made before the trial court and in the briefs, regarding the standard of reliability applicable to the expert opinion in this case and the general confusion surrounding Daubert and its Texas progeny, a review of the pertinent case law is in...

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