Morris v. State, PD–0796–10.

• Citation: 361 S.W.3d 649
• Decision Date: 07 December 2011
• Docket Number: No. PD–0796–10.,PD–0796–10.
• Parties: Daniel Ray MORRIS, Appellant, v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

361 S.W.3d 649

Daniel Ray MORRIS, Appellant,

v.The STATE of Texas.

No. PD–0796–10.

Court of Criminal Appeals of Texas.

Dec. 7, 2011.

Terrence W. Kirk, Austin, for Daniel Ray Morris.

Sarah Adams, Asst. D.A., Eastland, Lisa C. McMinn, State's Attorney, Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which JOHNSON, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

We granted review to determine whether the “grooming” of children for sexual molestation is a legitimate subject of expert testimony. We hold that it is.

I. BACKGROUND

A. Appellant's Conduct toward the Victim

When the victim in this case was eleven years old, his mother began dating appellant. Appellant and the victim would go to the park, rollerblade, and ride mountain bikes. They would discuss sexual matters, including sex and masturbation. Appellant told the victim that this was “guy talk” and not to mention it to his mother. Later, appellant gave the victim back rubs, and these back rubs continued after appellant married the victim's mother.

Once, after seeing a movie, appellant asked the victim if he had masturbated yet. Appellant was persistent in this questioning until the victim gave him an answer. At some point, the victim got a full-sized bed, and appellant would tuck him into bed. At this time, he would talk to the victim about masturbation and sex and would rub the victim's back. While rubbing the victim's back, appellant was wearing only briefs. And sometimes appellant would take those off, and take the victim's underwear off, so they could have skin-to-skin contact. Appellant would also rub the victim's buttocks and sometimes rub his chest and thighs. Occasionally, appellant's hands would brush against the victim's testicles. At first, appellant stayed in the victim's room for thirty minutes to an hour, but eventually he stayed the entire night.

A couple of times, appellant measured the victim's penis. By the time the victim was fifteen years old, appellant wanted to cuddle with the victim every night for the entire night. During that time, appellant would take him on trips to haul hay. On the way back from two of those trips, appellant stopped at an adult bookstore to buy adult magazines or a pornographic video for the victim. One time, appellant also showed the victim how to find free pornography on the internet. On the trips, appellant touched the victim's penis through the victim's clothing two or three times. Each time, it was part of a “game.”

At night, appellant would also play a “game” where the victim would have to guess whether it was appellant's finger or penis that was poking the victim's back. Appellant also touched the victim's penis a number of times under the victim's underwear for four to five seconds.

B. Rule 702 Hearing

The State sought to offer the testimony of Special Texas Ranger David Hullum regarding the conduct of child molesters. Ranger Hullum had been in law enforcement for over twenty-nine years and had over 3500 hours of law-enforcement training. He had been a Texas Ranger in Eastland for approximately nine years and had played a major role in the investigation of several hundred sexual offenses, approximately seventy-five of which involved child victims. In these cases, Ranger Hullum interviewed both child victims and suspects. Ranger Hullum was also a member of a “cold case” committee that met quarterly to discuss unsolved murders and sexual offenses.

In response to questioning from the State, Ranger Hullum affirmed that he had been recognized as an expert in the trial court and other courts in connection with sexual offenses against children. He explained that he had experience in his investigations with determining the existence of grooming techniques. He testified that he had specialized experience and training in the techniques or ploys used by child molesters against children.

On cross-examination, Ranger Hullum acknowledged that he had no education in psychology or psychiatry. When asked about his specialized training, Ranger Hullum responded that he had quite a few classroom hours at the Department of Public Safety (DPS). The teachers included DPS employees, officers from other law-enforcement agencies, and employees of Child Protective Services. At least one of the teachers was a psychiatrist. However, Ranger Hullum could not name any of the individual instructors or where they received their education or training. When asked by the defense whether he had ever read a book or article on “grooming,” Ranger Hullum responded, “Yes,” but he could not recite any authors or titles.

On redirect examination, Ranger Hullum responded that he had testified numerous times in court regarding grooming techniques.

The defense objected that the State had not demonstrated that Ranger Hullum was qualified to testify as an expert. The defense also objected that “there's no testimony before the court from Ranger Hullum that the theory under which he's going to express these opinions are accepted by the scientific community or the psychiatric community or the psychological community.” The trial court responded that he had “previously found that Ranger Hullum is an expert in these areas” due to his “knowledge, skill, his experience, training and his education.” Defense counsel further argued, “[T]here's been no finding as to reliability, and that it's an accepted theory by the scientific community, and its relevance.” The trial court responded that the evidence was highly relevant and overruled the defense objections. After the defense sought further clarification that the trial court's ruling embraced “reliability,” the trial court responded, “Your objections are overruled.”

C. Ranger Hullum's Testimony

Before the jury, Ranger Hullum described “grooming” as “an attempt by the offender to get the victim compliant with what he wants to happen.” He explained that grooming typically occurs over an extended time period and involves spending intimate time alone with the child. Ranger Hullum further explained that grooming involves an element of trust, created by an emotional tie between the offender and the victim. Ranger Hullum cited specific examples of grooming such as supplying the child with alcohol or pornography, engaging in sexual banter, giving or withholding gifts, or telling the child about the adult's own prior sexual experiences. The prosecutor framed a hypothetical that involved a gradual increase in the amount of time an adult stayed each night in a child's bedroom, until the adult spent the entire night there, and asked if that would be an example of grooming.¹ Ranger Hullum responded that it would be a “perfect example.”

Ranger Hullum elaborated that grooming was really no different from behavior that occurs in high school dating. He explained that a boy on a date might put his “arm around the young lady to see how she would react to that, if she would object.” Likewise, Ranger Hullum explained, an adult offender “wants to see how that child's going to react to that first touching,” with the object of the offender's behavior being to “desensitize” the child. When asked about whether back rubs can sometimes be grooming, Ranger Hullum responded affirmatively, saying, “It's also a way to desensitize the child of having those hands placed on that back. And you start off in a neutral area where the child doesn't believe that there is anything wrong with this touching, and then you progress to other areas, more sensitive areas.”

Further, he explained that grooming can involve joking about or minimizing the offender's conduct—which communicates to the child, “Hey, look, there's nothing serious happening here.” When asked whether it would be “unusual for a defendant to fool the victim with games ... to obtain sexual contact,” Ranger Hullum replied that what is being described is “just disguised foreplay,” which can take the form of a game or horseplay.

When asked whether pornography had anything to do with grooming, Ranger Hullum said, “It's critical in this aspect. Pornography overstimulates—sexually overstimulates the child.” He also explained that it was fairly common for pornography to be involved in sex offenses against children.

D. Court of Appeals

Appellant was convicted of indecency with a child. On appeal, appellant contended that the trial court erred in allowing Ranger Hullum to testify as an expert about “methodology” ² and “grooming.” Appellant complained that the State had presented no evidence that the theory had been accepted by the scientific, psychiatric, or psychological community. He noted that Ranger Hullum could not recall the title or author of a single book or article he had read and could not identify the lone psychiatrist involved in his training. He also pointed out that Ranger Hullum was not himself a psychiatrist or psychologist.

Appellant then cited Nenno v. State³ for the test for determining the admissibility of evidence from fields of expertise outside the hard sciences. Relying upon Perez v. State,⁴ appellant claimed that the State had failed to satisfy the first Nenno prong, “whether the field of expertise is a legitimate one,” ⁵ because the record is silent concerning the existence of literature that supports or reflects the underlying theory. Appellant stated that he could find no reported Texas case holding that an expert may testify as to “grooming.” Finally, appellant asserted that experience alone cannot establish reliability, or else “twenty years of reading tea leaves would make fortune-telling a legitimate field of expertise.”

The court of appeals rejected these claims.⁶ Characterizing Ranger Hullum's testimony as involving a “soft science,” the appellate court employed the Nenno test.⁷ It found that Ranger Hullum's qualifications “were not only based upon the writings or experiences of others but were also based upon his own considerable experience.” ⁸ The court noted Ranger Hullum's 3500 hours of law-enforcement training and the...