No. 14-04-01094-CR
Memorandum Opinion filed June 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 10th District Court, Galveston County, Texas, Trial Court Cause No. 03CR2512. Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
CHARLES W. SEYMORE, Justice.
Appellant, Michael Weldon Estes, appeals his conviction for sexual assault of a child. In three issues, appellant contends that the trial court erred by (1) admitting testimony concerning behavioral characteristics of abused children, (2) admitting expert medical testimony concerning the results of the complainant's medical exam, and (3) excluding evidence of the complainant's prior allegations of sexual abuse. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex.R.App.P. 47.4
I. Background
The twelve-year-old complainant testified at trial that appellant, her biological father, sexually abused her every night when she was about five years old. Specifically, she testified that appellant "would rub [her] private spot" with his fingers and that he "tried to stick his male private spot in [her] private spot." She did not specify at trial when the last incident of abuse occurred. On cross-examination, the complainant admitted that she previously alleged her stepfather and her brothers touched her "the wrong way." No further questions were asked of the complainant concerning the prior allegations. An employee of the Texas Department of Family and Protective Services testified at trial as the outcry witness. She first interviewed the complainant at her elementary school while investigating allegations of neglectful supervision. During the interview, the social worker asked the complainant if "anybody had touched her private spots." The complainant responded affirmatively and named appellant. The complainant told the social worker that appellant touched her private spot with his fingers. The social worker asked the complainant whether appellant touched her private spot with anything else, and the complainant replied "yes, his private spot." The complainant stated that the abuse happened more than once and that appellant last touched her a few weeks before the interview. At trial, the State asked the social worker whether there was a later allegation that another named individual sexually assaulted the complainant. She responded affirmatively and said that the allegation was not verified. On cross-examination, the social worker testified that the complainant made the latter allegation, but that she was not working on the case at that time. A medical expert testified that the complainant's physical exam was normal. He also testified that "the normal findings do not rule out the possibility that [the complainant] had been the victim of sexual abuse." He further explained that he would not expect physical findings "if the genital organ of [appellant] contacted the [complainant's] genital organ without penetrating deeply within it." A second medical expert testified that the complainant had been admitted to a mental hospital at the age of seven and diagnosed with an unspecified form of psychosis. The expert testified that the complainant experienced visual and auditory hallucinations and showed "early symptoms of a conversion to a dissociative disorder." He further explained that a dissociative disorder "would allow [the complainant] to have blank spots and not a clear memory of some events and, as a result of that, attempt to create the most plausible explanation for the events during those times." The expert testified that the complainant's mental illness suggested a child who had been subjected to sustained trauma such as sexual abuse, domestic or other forms of violence, considerable persistent chaos, or physical or emotional neglect. A jury found appellant guilty of sexual assault of a child, and the trial court assessed punishment at thirty years' imprisonment. II. Discussion
Appellant contends that the trial court abused its discretion by (1) admitting testimony from the outcry witness concerning the behavioral characteristics of abused children, (2) admitting expert medical testimony concerning the results of the complainant's medical examination, and (3) excluding evidence of the complainant's prior accusations of sexual abuse. We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id.; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). A. Behavioral Characteristics
At trial, the State asked the outcry witness to describe, based on her experience and training, how an abused child might act "with regard to their contact with other male individuals." The outcry witness testified that children who have been sexually abused are more inclined to avoid close personal contact and "tense up" around people of the same gender as the abuser. Counsel for appellant objected that the State's questioning was argumentative and called for speculation. Appellant's counsel further stated that he did not believe the outcry witness was qualified to answer. The trial court found the outcry witness qualified to testify regarding the general behavioral patterns of victims of sexual abuse and overruled the objection. Appellant now complains that the testimony was not "sufficiently tied to the facts of the case to make it relevant" under Rule 702 of the Texas Rules of Evidence. Appellant also argues that the testimony constituted improper bolstering. To preserve error for appeal, a party must make a timely objection, request, or motion that states the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1. No error is preserved when the objection at trial differs from the complaint made on appeal. Coffey v. State, 796 S.W.2d 175, 180 (Tex.Crim.App. 1990). Because appellant's argument on appeal differs substantially from his objection at trial, we conclude that appellant has not preserved error for review. See Holland v. State, 761 S.W.2d 307, 322-23 (Tex.Crim.App. 1988) (finding no error was preserved when appellant argued on appeal that psychiatric testimony was irrelevant because the objection at trial was that the expert was unqualified). Moreover, even if appellant had preserved error, any error was harmless. The only evidence presented regarding the complainant's behavior towards other males was a note in her medical records that stated she "seems more friendly to males." Evidence that the complainant's behavior was inconsistent with common behavioral patterns of sexually abused children, if anything, was helpful to appellant's defense. Accordingly, we overrule appellant's first issue. B. Medical Testimony
In his second issue, appellant contends that the trial court erred by admitting expert medical testimony concerning the results of the complainant's physical examination. Specifically, appellant contends the medical testimony was inadmissible under Texas Rules of Evidence 702, 703, and 403 and constituted hearsay. The State's medical expert was Dr. Lukefahr, a licensed pediatrician at the University of Texas Medical Branch (UTMB) in Galveston and the medical director of ABC Center, the UTMB facility for victims of child abuse and neglect. The trial court conducted a hearing outside the jury's presence to consider appellant's objections to Dr. Lukefahr's testimony. At the hearing, Dr. Lukefahr testified that he believed the complainant was the victim of sexual assault. Dr. Lukefahr further testified that he based his opinion on the complainant's physical examination, laboratory findings, and the history provided by Child Protective Services, the complainant's mother, and the complainant. The complainant's history included the allegations of digital penetration and genital-to-genital contact by her father. Although the complainant's physical examination was normal, Dr. Lukefahr explained that any physical trauma resulting from the sexual abuse described in the history would have healed by the time of the examination. Therefore, Dr. Lukefahr concluded that the complainant's normal physical examination did not rule out the possibility of sexual abuse. On cross-examination, Dr. Lukefahr testified that he would expect physical findings if there had been allegations of full penile penetration, but no such allegations had been made in this case. At the conclusion of the hearing, the trial court ruled that Dr. Lukefahr could not testify that sexual abuse occurred, but could testify that the complainant's normal physical examination did not rule out the possibility of abuse. 1. Rule 702 and 703 Objections Appellant first argues that the expert testimony was inadmissible under Rules 702 and 703 of the Texas Rules of Evidence. Rule 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand this evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." TEX. R. EVID. 702. Rule 703 provides: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions upon the subject, the facts or data need not be admissible in evidence." TEX. R. EVID. 703. Under Rule 702, the trial court must determine whether proffered evidence is sufficiently reliable and relevant to assist the jury. See Russeau v. State, 171 S.W.3d 871, 881 (Tex.Crim.App. 2005) (citing Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App. 2000)). Here, appellant does not contend that the State's expert was unqualified or the evidence was otherwise unreliable. See Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992) (requiring trial court to hold a hearing outside the presence of the jury to determine whether scientific evidence meets a three-prong test for reliability). Rather, appellant argues the evidence was not relevant because it was not sufficiently tied to the facts of the case. See Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App. 1996). Scientific evidence is relevant if the expert makes "an effort to tie pertinent facts of the case to the scientific principles which are the subject of his testimony." Id. Otherwise stated, an expert must apply his technical knowledge to the specific facts at issue. See id. However, the primary inquiry is not whether the expert takes into account all of the specific facts of the case, but whether the expert takes into account enough of the pertinent facts to be of assistance to the trier of fact. Id. at 556. Appellant argues there were no underlying facts to which the State's expert could apply his medical knowledge because the complainant's physical examination was normal. We disagree. Dr. Lukefahr testified that it was customary in the medical field to base a diagnosis on the patient's history as well as any physical findings. He further testified that he reviewed the complainant's history and the results of the complainant's physical examination. See TEX. R. EVID. 703 (noting the facts an expert bases his opinion on need not be admissible in evidence and that the expert may review the facts at or before a hearing). Dr. Lukefahr then applied his knowledge and experience in the field of medicine to the facts in the complainant's case and concluded that a normal physical examination did not necessarily contradict the complainant's history. Therefore, Dr. Lukefahr's testimony was sufficiently tied to the facts of the case to assist the trier of fact in assessing the significance of the results of the complainant's physical examination. See Hendix v. State, 150 S.W.3d 839, 851 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd.) (noting medical testimony from experts stating that a normal exam was not inconsistent with the type of the abuse alleged by the complainants in the context of a requested jury instruction for a lesser-included offense); Gonzales v. State, 748 S.W.2d 510, 512 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd) (finding sufficient evidence when, although there were no physical findings to support the allegations of the complainant, a medical expert testified the lack of findings was not inconsistent with the allegations). Accordingly, we conclude that the State's expert testimony was relevant and therefore admissible under Texas Rules of Evidence 702 and 703. 2. Rule 403 Objection Appellant next argues that if Dr. Lukefahr's testimony was relevant, it was nonetheless unduly prejudicial and therefore inadmissible under Rule 403 of the Texas Rules of Evidence. See Kelly, 824 S.W.2d at 573 (holding that relevant scientific evidence is admissible unless the trial court finds the probative value of the evidence is outweighed by a factor identified in Rule 403). Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or the presentation of cumulative evidence. Tex. R. Evid. 403. Appellant cites Franco v. State, in which the El Paso Court of Appeals found the trial court erred by admitting expert testimony based on blood spatter analysis. 25 S.W.3d 26, 29-30 (Tex.App.-El Paso 2000, pet. ref'd). In Franco, the court found that there was "nothing in the blood spatter analysis from which any `expert' could draw an opinion as to who was (or who was not) the initial aggressor." Id. at 30. The court therefore concluded the expert's opinion that there was "no evidence to show that [the victim] was ever an aggressor in any way" was literally true but "dangerously misleading." Id. Here, however, it was appellant who argued at trial that the complainant's normal physical examination was evidence that no abuse occurred. Therefore, Dr. Lukefahr's expert testimony that the absence of physical findings could be consistent with the type of abuse described by the complainant was relevant to correct appellant's own potentially misleading argument. Moreover, the trial court held Dr. Lukefahr could not give his opinion that the complainant was sexually abused, and specifically limited Dr. Lukefahr to testifying as to whether the complainant's physical examination ruled out the possibility of sexual abuse. Because there is no indication that Dr. Lukefahr's testimony was unfairly prejudicial, confusing, misleading, cumulative, or caused undue delay, we conclude the trial court did not abuse its discretion by admitting the evidence under Rule 403. 3. Hearsay Objection Appellant also argues that the trial court abused its discretion by admitting Dr. Lukefahr's testimony because it constituted inadmissible hearsay. After the voir dire hearing, Dr. Lukefahr testified before the jury. He explained that the complainant was examined by a female associate who documented the procedures and prepared photographs and a final report of the examination. After Dr. Lukefahr explained that he did not examine the complainant personally, but reviewed the documentation and photographs and approved the examiner's final report, appellant made the following objection: "[f]or purposes of the record, your honor, since at this point he's saying he did not examine the child, we would object to any of his testimony on the grounds of hearsay." The trial court overruled the objection, and appellant made no further objections to Dr. Lukefahr's testimony. Appellant failed to preserve error for several reasons. First, appellant's objection to "any of [Dr. Lukefahr's] testimony" was both overly broad and untimely. See Tex.R.App.P. 33.1 (requiring a timely and specific objection to preserve error for appellate review). Appellant did not object to a specific out-of-court statement, but rather objected to Dr. Lukefahr's testimony as a whole at trial before any out-of-court statements were admitted. Further, appellant appeared to object to Dr. Lukefahr's testimony because he relied on the out-of-court statements of the associate who personally examined the complainant. On appeal, however, appellant argues that Dr. Lukefahr's testimony was inadmissible based on the out-of-court statements of the complainant provided in the complainant's history. Because appellant's argument on appeal differs substantially from that raised at trial, appellant has waived any error. See Coffey, 796 S.W.2d at 179; Holland, 761 S.W.2d at 322. Even if error was properly preserved, "statements made for purposes of medical diagnosis or treatment and describing medical history . . . or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are admissible as an exception to the hearsay rule. Tex. R. Evid. 803(4); see Gregory v. State, 56 S.W.3d 164, 183 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd) (noting that courts have held statements made by a suspected victim of child abuse as to causation and source of injuries admissible as an exception to the hearsay rule); Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. ref'd) (holding statements of a suspected child abuse victim describing the abusive acts and identifying the abuser reasonably pertinent to medical diagnosis and treatment and therefore admissible as an exception to the hearsay rule). Appellant did not object at trial, and does not identify on appeal, any out-of-court statement contained in the complainant's history that was made for purposes other than medical diagnosis or treatment. Therefore, the trial court did not abuse its discretion by overruling appellant's hearsay objection. Accordingly, we overrule appellant's second issue. C. Complainant's Prior Allegations of Sexual Abuse
In his third issue, appellant argues that the trial court erred by excluding evidence of the complainant's prior allegations of sexual abuse. Immediately before resting his case, counsel for appellant made the following request: Pursuant to the records that the doctor just testified about and also pursuant to information that we have received previously from CPS we, of course, know the fact that this girl has been allegedly sexually molested in the past by at least two brothers, Your Honor. I understand that there were some allegations of sexual abuse by them and, in fact, there was some sexual penetration on that. I would like to request that the Court allow me to go into those areas so that we can explain some of what's going on with respect to this girl at this time. The trial court denied the request, and appellant did not make an offer of proof. To preserve error on appeal, the proponent of excluded evidence must make an offer of proof and obtain a ruling. Reyna v. State, 168 S.W.3d 173, 176 (Tex.Crim.App. 2005). In addition, "the party complaining on appeal about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question." Id. at 177 (citing Martinez v. State, 91 S.W.3d 331, 335 (Tex.Crim.App. 2002)). It is not enough to tell the judge that evidence is admissible; the proponent must also tell the judge why the evidence is admissible. Id. Here, appellant argues on appeal that evidence of prior accusations is admissible under Texas Rule of Evidence 412(b) to rebut scientific evidence offered by the State, and that the trial court's exclusion of the complainant's prior accusations of sexual abuse violates appellant's rights under the Confrontation Clause of the United States Constitution. See U.S. CONST. amend. VI; TEX. R. EVID. 412(b) (providing that evidence of specific instances of an alleged victim's past sexual behavior is not admissible unless, among other exceptions, it is necessary to rebut or explain scientific or medical evidence offered by the State). However, at trial, appellant did not mention Rule 412(b) and did not argue the Confrontation Clause applied and required admission of the evidence. See Reyna, 168 S.W.3d at 179 (holding that appellant failed to preserve error concerning the exclusion of prior allegations of sexual abuse when he "did not put the trial judge on notice that he was making a Confrontation Clause argument"). Moreover, appellant's own medical expert and the medical expert for the State both testified before appellant's request. Neither appellant nor the State questioned either witness concerning the prior allegations of abuse. The complainant and the CPS worker also testified before appellant's request, and appellant cross-examined both witnesses without restriction regarding the prior accusations. Therefore, because appellant did not make an offer of proof, it was not clear whether appellant intended to recall one of the prior witnesses or introduce testimony from a new witness. Because appellant failed to put the trial court on notice as to what evidence he wanted to admit and why the evidence was admissible, no error was preserved for review. Accordingly, we overrule appellant's third issue. The judgment of the trial court is affirmed.