Court of Appeals of Texas, Fourteenth District, HoustonJul 30, 2009
No. 14-07-01047-CR (Tex. App. Jul. 30, 2009)

No. 14-07-01047-CR

Opinion filed July 30, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 1068432.

Panel consists of Justices FROST, BROWN, and BOYCE.



Steven Briones was convicted of aggravated sexual assault of a child under the age of fourteen and sentenced to fifty years in the Institutional Division of the Texas Department of Criminal Justice. Briones challenges his conviction and sentence, contending that the trial court improperly admitted hearsay information contained within the complainant's medical records and erred in admitting improper expert testimony. We affirm.


Steven Briones and Belinda Thomas were married and had three children including the complainant, a daughter. After Briones and Thomas divorced, Briones was allowed supervised visitation of the children, although at times the visitations went unsupervised. The home where Briones lived consisted of just one bedroom and a living room. Because of the close confines, the children often shared a bed with their father. The complainant testified that, while lying in bed during one of the visitations, her father began touching her inappropriately and then sexually assaulted her. The complainant further testified that after the first incident, Briones sexually assaulted her on multiple occasions up until the last time she saw him around September 2005. Six months later, the complainant told her mother about the incidents. After Thomas contacted the police, the complainant was taken to the Children's Assessment Center (the "center") in Houston. Upon arrival, the complainant was subjected to a thorough physical examination, as well as an interview in which she was asked multiple questions about the incidents with Briones. Dr. Reena Isaac conducted the physical examination, and later testified at trial about specific statements the complainant made to her. Based on the information obtained at the center, criminal charges were filed, and Briones was arrested. Briones was charged with sexual assault of a child under the age of fourteen. A jury convicted Briones and the court sentenced him to fifty years in the Texas Department of Criminal Justice Institutional Division. This timely appeal followed. Briones's appeal was submitted to this court for consideration on January 15, 2009, without a response brief filed by the State. After no further communication with this court, the State filed its brief on July 14, 2009, along with a motion for an extension of the time to file its brief. We deny the State's motion, and consider Briones's appeal solely on his brief.


Briones appeals his conviction on two grounds, contending that the trial court both improperly admitted hearsay information contained within the complainant's medical records and erred in admitting improper expert testimony.


In his first issue, Briones contends that the trial court erred by admitting medical records, and testimony related to those records, which contained hearsay evidence implicating him in the offense. Specifically, Briones complains that both the medical records and Dr. Isaac's trial testimony discussing them contain a statement by the complainant identifying Briones as her assailant. Briones further argues that the hearsay statement is not admissible under the medical-records exception to the hearsay rule because it was not pertinent to a medical diagnosis or treatment, and the State failed to establish that the complainant understood the importance of being honest at the time she made the statement. But even if the trial court erred in admitting this testimony, the error would be harmless because the same information was properly admitted without objection through other witnesses. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999); Bargas v. State, 252 S.W.3d 876, 897 (Tex.App.-Houston [14th Dist.] 2008, no pet.). The complainant herself testified at trial and identified Briones as her assailant. Further, the complainant's mother testified as an outcry witness, stating that the complainant had identified Briones as her assailant. Consequently, any error caused by the trial court's admission of this statement was harmless. See Bargas, 252 S.W.3d at 897. We overrule Briones's first issue.


In his second issue, Briones contends that the trial court admitted improper expert testimony. Specifically, Briones asserts that the court should not have permitted testimony from Dr. Lawrence Thompson because Dr. Thompson was not qualified to offer the testimony and because Dr. Thompson's testimony was unreliable and irrelevant. We use the abuse-of-discretion standard to review a trial court's decision on whether to allow expert testimony. See Gallo v. State, 239 S.W.3d 757, 765 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 2872 (2008). Before reversing the trial court's decision, we must find the trial court's ruling was so clearly wrong as to lie outside the realm within which reasonable people might disagree. Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008); Green v. State, 191 S.W.3d 888, 895 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). After the State rested its case at trial, Briones called several family members as witnesses, some of whom testified that they had seen the complainant during the period after the alleged assaults began but before Briones was formally accused. These witnesses testified that they observed Briones and the complainant interacting in a normal and loving fashion, with no indication from the complainant that she feared or disliked her father. When the defense rested, the State called Dr. Thompson as a rebuttal witness. Dr. Thompson testified that, as the director of therapy and psychological services at the center, he was familiar with the behaviors exhibited by child victims of sexual abuse. He also stated that, based on his experience, such victims may exhibit many different patterns of behavior after their abuse. Dr. Thompson testified that it was not uncommon for some child victims to behave normally around adult abusers with no outward demonstrations of anxiety or depression-even when their abusers were family members. Before this testimony, the trial court conducted a "gatekeeper" hearing outside the presence of the jury to determine Dr. Thompson's qualifications as an expert witness, as well as the appropriateness of his intended testimony. After the State's proffer, Briones objected to the testimony on the basis that the State had neither specified the area of scientific knowledge upon which Dr. Thompson would testify, nor how Dr. Thompson was qualified to testify on that specific body of knowledge. Briones also objected that Dr. Thompson's testimony was unreliable and irrelevant. Given the opportunity to strengthen its proffer, the State showed that Dr. Thompson would testify on the general behavior of child sexual-abuse victims, and how post-abuse behaviors can vary widely according to the personalities and histories of each victim. Further, the State asserted that Dr. Thompson's academic and professional background, which focused specifically on the treatment of child sexual-abuse victims, as well as his study of the professional literature in the field, qualified him to offer such testimony. Despite Briones's renewed objection, the trial court found Dr. Thompson qualified as an expert witness in this area and the trial resumed. The Court of Criminal Appeals has held that a trial court must make three separate inquiries in determining whether it should admit expert testimony: (1) Does the witness qualify as an expert by reason of his knowledge, skill, experience, training, or education; (2) is the subject matter of the testimony an appropriate one for expert testimony; and (3) will admitting the testimony actually assist the fact finder in deciding the case? See Vela v. State, 209 S.W.3d 128, 131 (Tex.Crim.App. 2006) (relying on Tex. R. Evid. 104(a), 401, 402, and 702, and quoting Rodgers v. State, 205 S.W.3d 525, 527 (Tex.Crim.App. 2006)). These conditions are commonly referred to as qualification, reliability, and relevance. Id. at 131.


Briones's first objection is that Dr. Thompson was not qualified to testify in the specific area that formed the central thesis of his testimony-demonstrated behaviors of child sexual-abuse victims. Because a witness will not always qualify as an expert merely by virtue of a general background, qualification is a two step inquiry. Vela, 209 S.W.3d at 131. A witness must first have a sufficient background in a particular field; but a trial judge must then determine whether that background "`goes to the very matter on which [the witness] is to give an opinion.'" Id. (quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). The proponent also must "`establish that the expert has "`knowledge, skill, experience, training, or education' regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.'" Id. at 132. Just as the subject matter of an expert's testimony should be tailored to the facts of a case, the expert's background must be tailored to the specific area of expertise about which he intends to testify. Id. at 133. In this case, Dr. Thompson testified to having both a masters degree and a Ph.D. in clinical psychology. He stated that his doctoral dissertation concerned personality disorders and sexual abuse of children. He described having served a clinical and practical internship at the University of Michigan where he worked with child victims of sexual abuse and their families. Dr. Thompson further related that he has worked at the center since 2001, first as a staff psychologist, and ultimately as the director supervising all counselors and psychologists. Since being licensed as a psychologist, he has worked with and observed more than 300 child victims of sexual abuse. Based on this evidence, the trial court did not abuse its discretion in finding that Dr. Thompson's educational and professional background and experience qualified him to provide expert testimony. Briones contends that Dr. Thompson was unqualified in this case partly because his "general background" did not sufficiently meet the Vela test of matching "the very matter on which the witness is to give an opinion." Id. at 131. But Dr. Thompson's academic and professional background focusing on the treatment and observation of child victims of sexual abuse appropriately matches subject matter of his testimony focusing on the behavioral patterns of child victims of sexual abuse.


Briones also challenges the trial court's admission of Dr. Thompson's testimony on the basis that it was not appropriate subject matter for presentation to the jury. To support this argument, Briones contends that there was not enough foundation laid to show the testimony to be reliable, and that it was too vague. As we noted above, the reliability analysis turns on the subject matter of the witness's testimony. Vela, 209 S.W.3d at 133. Texas Rule of Evidence 705(c) governs the reliability of expert testimony and provides that "[i]f the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible." Tex. R. Evid. 705(c); Vela, 209 S.W.3d at 133. "`[R]eliability depends upon whether the evidence has its basis in sound scientific methodology. This demands a certain technical showing.'" Vela, 209 S.W.3d at 133 (quoting Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App. 1996)). In determining the admissibility of scientific evidence, the threshold question is "whether that testimony will help the trier of fact understand the evidence or determine a fact in issue." Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992); In re E.C.L., 278 S.W.3d 510, 519 (Tex.App.-Houston [14th Dist.] 2009, pet. filed); see also Tex. R. Evid. 702 (providing that evidence should be admitted "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue"). Proving reliability requires that the proponent establish: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique has been properly applied on the occasion in question. Kelly, 824 S.W.2d at 573. But in Nenno v. State, the Court of Criminal Appeals determined that the Kelly inquiries could not easily be applied to analyze "soft sciences" when the validity of a theory or technique may be roughly accurate, but somewhat misleading. 970 S.W.2d 549, 560-61 (Tex.Crim.App. 1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999). When "soft sciences" such as psychology are at issue, the trial court should inquire: (1) whether the field of expertise is legitimate; (2) whether the subject matter of the expert's testimony is within the scope of that field; and (3) whether the expert in his testimony properly relies upon or uses the principles involved in that field. Id. at 561; In re E.C.L. 278 S.W.3d at 519-20. The Nenno court further emphasized that the reliability question under both Kelly and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), is a flexible one, and that the general approach of the rules of evidence is to relax the traditional barriers to opinion testimony. Nenno, 970 S.W.2d at 561; In re E.C.L. 278 S.W.3d at 519-20; see also Daubert, 509 U.S. at 588-89. Dr. Thompson's testimony related specifically to the observed behavior and treatment of child sexual-abuse victims. As Dr. Thompson obtained a doctoral degree from the University of Michigan in the treatment of child sexual-abuse victims, and such treatment is the reason and basis for the center's existence, we are satisfied that the "field of expertise" related to treatment of child victims of sexual abuse is a legitimate one. See Nenno, 970 S.W.2d at 561; In re E.C.L. 278 S.W.3d at 519-20. Further, Dr. Thompson based his testimony on observations drawn not only from his study of the professional literature, but also from having treated and studied more than 300 child sexual-abuse patients. Based on this experience, we are satisfied that the subject matter of Dr. Thompson's testimony is within the scope of his field of expertise. See Nenno, 970 S.W.2d at 561; In re E.C.L. 278 S.W.3d at 519-20. Dr. Thompson's testimony related not to any specific theory or syndrome, but rather to his general knowledge of the behavior of child sexual-abuse victims. Dr. Thompson substantiated these observations based on his education, practice, experience, and the professional literature which he described to the court. Briones contends that Dr. Thompson neither sufficiently described this literature, nor made it available to the court. But the record shows that Dr. Thompson relied upon and pointed the trial court to at least two sets of materials that he testified are published in prominent professional journals used by experts in the field. Based on this demonstration, we are satisfied that, in his testimony in this case, Dr. Thompson properly relied upon the principles involved in his field. See Nenno, 970 S.W.2d at 561; In re E.C.L. 278 S.W.3d at 519-20. In disputing the reliability of Dr. Thompson's testimony, Briones cites Viterbo v. Dow Chemical Co., 826 F.2d 420 (5th Cir. 1987). In Viterbo, a case upon which the Court of Criminal Appeals relied in Vela, the Fifth Circuit affirmed a trial court's exclusion of an expert witness on the basis that his proposed testimony was unreliable. Id. at 424. Agreeing with the trial court, the Fifth Circuit held that the proposed testimony in that case was "no more than [the plaintiff] Viterbo's testimony dressed up and sanctified as the opinion of an expert." Id. at 424. But the facts in Viterbo differ from those in this case in significant ways. First, the Fifth Circuit noted that the data upon which Viterbo's proposed expert witness based his conclusion was "lacking in reliability and probative value." Id. at 421-22. For example, the expert concluded that Viterbo's illness was caused by exposure to allegedly toxic fertilizer based almost solely on Viterbo's oral history-omitting critical information such as family history and prior treatment for similar symptoms. Id. at 422-23. Also, the expert had relied upon inadequate testing to support his conclusion. Id. at 423. Finally, in reaching his conclusion, Viterbo's expert relied upon a study involving the effect of chemical exposure on rats, when there was no evidence that Viterbo had been exposed to comparable amounts, or that his symptoms were at all similar to those exhibited by the rats. Id. at 424. These facts differ substantially from those in this case, in which Dr. Thompson testified about his observations of victim behavior based both on having treated more than 300 sexually abused children and clinical research within the field. A second and perhaps more important difference with Viterbo is that the proposed expert opinion in that case was a conclusive finding of causation-specifically stating that Viterbo's exposure to the fertilizer caused his illness. Id. at 422. In the present case, Dr. Thompson gave only general testimony about the broad range of behaviors that he and others in his field have observed in sexually abused children. He readily admitted that he had not interviewed the complainant, and did not attempt to draw any specific conclusions about her case. These significant differences between the facts in each case demonstrate that Briones's reliance on Viterbo is misplaced. Based on the evidence provided, the trial court did not abuse its discretion in determining that Dr. Thompson's proposed expert testimony was reliable.


Finally, Briones contends that Dr. Thompson's testimony was improper because it was not of the type that would assist the jury in its fact-finding, and therefore not relevant. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401; Bargas, 252 S.W.3d at 899. To be relevant, evidence must be both material and probative. Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001); Bargas, 252 S.W.3d at 899. Evidence is material if it proves any fact of consequence to the determination of the action. Tex.R. Evid. 401; Miller, 36 S.W.3d at 507; Bargas, 252 S.W.3d at 899. The State offered Dr. Thompson's testimony to rebut the testimony of the defense witnesses that the complainant's behavior around Briones appeared normal, demonstrating no anger or indifference on her part. Dr. Thompson testified that such behavior would not necessarily negate sexual abuse because such victims have been observed to react to their abusers in many different ways-sometimes with no outward demonstrations of anger or depression. Dr. Thompson's testimony was relevant because it (1) directly rebutted the defense witnesses' testimony; and (2) tended to make less probable the defense contention that observed interactions between complainant and Briones suggested a normal relationship. See Schutz v. State, 957 S.W.2d 52, 58-59 (Tex.Crim.App. 1997); see also Johnson v. State, 970 S.W.2d 716, 720 (Tex.App.-Beaumont 1998, no pet.) (expert testimony that sexual abuse had probably occurred was not an improper conclusion where witness was in a position to assist the trier of fact in determining an issue over which the jury was not qualified to the best possible degree and witness did not express an opinion regarding whether defendant was the perpetrator or express an expert opinion regarding credibility of any witness). Briones argues unconvincingly on appeal that Dr. Thompson's testimony was conclusory, serving only to bolster the testimony of the complainant. First, Dr. Thompson's testimony could not have been conclusory as it drew no conclusions. As described above, Dr. Thompson did not vouch for the truthfulness of the complainant's allegations, or express an opinion as to whether or not sexual abuse had even occurred in this case. Furthermore, Dr. Thompson did not offer an opinion that Briones was the person who had abused the complainant. Rather, he spoke only generally about the demonstrated behaviors of child sexual abuse victims. Ultimately, it was still up to the jury to determine whether the complainant's lack of "acting out" in front of family members affected the credibility of her allegations of sexual abuse. Second, Dr. Thompson could not have bolstered the complainant's testimony as her veracity had already been called into question by Briones's defense. "Bolstering" is the use of evidence solely for the purpose of improperly adding credence to a particular witness or source of evidence "without substantively contributing `to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.'" Cohn v. State, 849 S.W.2d 817, 819-20 (Tex.Crim.App. 1993) (quoting Tex. R. Evid. 401); see also Rivas v. State, 275 S.W.3d 880, 886-87 (Tex.Crim.App. 2009) (indicating that "bolstering" has ties to the former version of Texas Rule of Evidence 613(c), which involves prior consistent statements, and reiterates principles of hearsay). It is not "bolstering" when the additional evidence makes a substantive contribution, corroborates other evidence, or has an incrementally further tendency to establish a fact of consequence. Cohn, 849 S.W.2d at 819-20. Accordingly, as substantive evidence, an expert may testify that a child exhibits symptoms consistent with sexual abuse, but that expert witness may not offer an opinion as to the child's truthfulness. Id. at 820-21. As the defense already had called the truthfulness of the complainant's testimony into question by presenting the family members' testimony against her, Dr. Thompson was a legitimate rebuttal witness. Because Dr. Thompson's testimony-without being conclusory-provided additional scientific information on an issue for which the jury was not otherwise qualified to the "best possible degree" to decide an important issue of fact, it was relevant, and therefore of the type likely to assist the jury. See id. at 820. Based on this reasoning, we cannot say that the trial court's decision to admit Dr. Thompson's testimony was an abuse of discretion. We overrule Briones's second issue.

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For the foregoing reasons, we affirm the trial court's judgment.