COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO.
2-03-423-CR
DAVID
DURAN APPELLANT
V.
THE STATE OF
TEXAS STATE
------------
FROM THE 211TH DISTRICT COURT OF DENTON
COUNTY
OPINION
INTRODUCTION
Appellant
was indicted for aggravated sexual assault and pleaded not guilty. Appellant was
found guilty by a jury, which assessed punishment at confinement for life and a
$10,000 fine. In four issues, Appellant argues that the trial court erred in
finding that the outcry statement was reliable, in denying Appellant’s request
for a limiting instruction prior to complainant’s mother testifying and in the
jury charge regarding the complainant’s outcry statement, and in allowing a
clinical psychologist to testify about facts learned from Appellant at a time
when she was not licensed in Texas. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
Because
Appellant does not challenge the factual or legal sufficiency of the evidence, a
brief recitation of the facts will suffice. Appellant was indicted for sexually
assaulting his cousin, C.D., who was ten years old at the time. C.D.’s mother,
Melissa, was established as the outcry witness because she was the first person
C.D. told about the sexual assault. Melissa testified that Appellant is her
husband’s nephew. Melissa stated that Appellant came to stay at their house for
a weekend around June 1st of 2002. She stated that after Appellant left, C.D.
began having emotional and behavioral problems. Melissa testified that around
January 12th of 2003, C.D. told her she wanted to talk about the problems she
had been having. Melissa stated that during this conversation C.D. told her that
Appellant had raped her during the weekend that he stayed at their
house.
C.D.
testified at trial that on one of the mornings of the weekend Appellant stayed
at their house, she went downstairs to watch cartoons. Although C.D. could not
specifically remember if this occurred on Sunday morning, Melissa testified that
it did occur on Sunday morning. C.D. stated that Appellant was asleep on the
couch and when she turned on the television he woke up. C.D. testified that
Appellant said something to her that scared her; however, she could not remember
what. She said that she got up and tried to run upstairs, but Appellant grabbed
her by her ankles and took her into the downstairs bathroom and locked the door.
She testified that Appellant laid her down on the bathroom floor, pulled her
pants down, and “stuck his private in me.” She said that he then picked her up
and put her over the bathroom sink and “tried to from behind.” She also stated
that during this time he was covering her mouth. She testified that “[i]t hurt a
lot” and she was crying. She further stated that she “felt some wet stuff” and
he pulled up his pants, warned her not to tell anyone, and
left.
At
the conclusion of trial, the jury found Appellant guilty of aggravated sexual
assault and assessed his punishment at confinement for life and a $10,000
fine.
OUTCRY
STATEMENT
The
trial court conducted a hearing outside the presence of the jury to consider the
admissibility of the outcry statement according to Texas Code of Criminal
Procedure article 38.072. See Tex.
Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2004-05). C.D.’s mother
testified at the hearing regarding the statements that she provided to law
enforcement after C.D. told her she had been raped. At the close of C.D.’s
mother’s testimony, the court instructed Appellant’s counsel to make any
objections that he had. Firstly, Appellant’s counsel requested that the trial
court make a finding that the outcry statement was not an excited utterance.
Secondly, Appellant’s counsel requested a limiting instruction to the jury
regarding “any details of the statement made by the child to the mother.”
Finally, Appellant’s counsel requested a jury instruction that Appellant could
not be convicted by the outcry statement alone. The trial court overruled
Appellant’s counsel’s objections, but informed him that he could make his
request for a limiting instruction when the jury charge was prepared. The trial
court ruled that the outcry statement was reliable based upon the time, content,
and circumstances of the statement.
In
his first point, Appellant argues that the trial court erred in finding that the
statement made by C.D. to her mother was reliable based upon the time, content,
and circumstances of the statement. Appellant specifically argues, “In the long
run, the daughter’s statement to her mother may have been reliable. However, the
mother’s ability to recount that statement is not reliable and she should not
have been allowed to testify before the jury in regard to that statement.”
Consequently, it appears Appellant is attempting to challenge the reliability of
the outcry statement by challenging the reliability of the mother in recounting
the statement.1 The State argues
that Appellant has waived this point because his objection at trial differs from
the complaint he raises on appeal. We agree.
To
preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App.
P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.
App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Further,
the trial court must have ruled on the request, objection, or motion, either
expressly or implicitly, or the complaining party must have objected to the
trial court’s refusal to rule. Tex. R.
App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.
Crim. App. 2004). Preservation of error is a systemic requirement that this
court should review on its own motion. Martinez v. State, 22 S.W.3d 504,
507 n.7 (Tex. Crim. App. 2000); Hughes v. State, 878 S.W.2d 142, 151
(Tex. Crim. App. 1993) (op. on reh’g), cert. denied, 511 U.S. 1152
(1994). The complaint made on appeal must comport with the complaint made in the
trial court, or the error is forfeited. Heidelberg v. State, 144 S.W.3d
535, 537 (Tex. Crim. App. 2004); Rezac v. State, 782 S.W.2d 869, 870
(Tex. Crim. App. 1990).
Appellant’s
counsel did not object to the outcry statement or to the mother testifying to
that statement on the basis of reliability. As pointed out, he only requested
that the trial court “make a finding that this is not an excited utterance.”
Therefore, Appellant cannot now bring a complaint that the outcry statement was
unreliable, as he has failed to preserve error. Accordingly, we overrule
Appellant’s first point.
LIMITING
INSTRUCTION
In
points two and three, Appellant argues that the trial court erred in denying his
request for a limiting instruction both prior to C.D.’s mother’s testimony and
in the jury charge in regard to the outcry statement. Appellant contends that
“[t]he mother’s statement was so unreliable that the [A]ppellant was entitled to
a limiting instruction to ‘limit the jury’s consideration of the outcry to show
the outcry was made and the basic nature of the complaint.’” Although somewhat
unclear, Appellant’s argument seems to be that because C.D.’s mother could not
reliably recount the statement, the statutory requirements of article 38.072
were not met and therefore the mother’s testimony of the outcry statement could
not be admitted for the truth of the matter asserted. However, as we held above,
Appellant failed to preserve any potential error regarding the reliability of
the outcry statement. Furthermore, in requesting a limiting instruction,
Appellant’s counsel stated, “What I believe is admissible is that the statement
was made, and unless it’s an excited utterance, the details of the alleged
offense are not admissible, and I object to that.” Thus, the record shows that
Appellant’s counsel incorrectly believed that unless the statement was an
excited utterance, the details of the offense in the statement were
inadmissible.
Article
38.072 of the Texas Code of Criminal Procedure applies in a criminal proceeding
for an assaultive offense committed against a child twelve years old or younger
and provides in relevant part:
Sec. 2.
(a) This article applies only to statements that describe the alleged offense
that:
(1) were
made by the child against whom the offense was allegedly committed;
and
(2) were
made to the first person, 18 years of age or older, other than the defendant, to
whom the child made a statement about the offense.
(b) A
statement that meets the requirements of Subsection (a) of this article is not
inadmissible because of the hearsay rule if:
(1) on or
before the 14th day before the date the proceeding begins, the party intending
to offer the statement:
(A)
notifies the adverse party of its intention to do so;
(B)
provides the adverse party with the name of the witness through whom it intends
to offer the statement; and
(C)
provides the adverse party with a written summary of the statement;
(2) the
trial court finds, in a hearing conducted outside the presence of the jury, that
the statement is reliable based on the time, content, and circumstances of the
statement; and
(3) the child testifies or is available to testify at
the proceeding in court or in any other manner provided by
law.
Tex. Code Crim.
Proc. Ann. art. 38.072.
The
record shows that the State complied with article 38.072 by providing
Appellant’s counsel in July of 2003 with the name of the outcry witness and a
written summary of the statement. Additionally, the trial court conducted a
hearing outside the presence of the jury and made a finding that the outcry
statement was reliable, and C.D. did testify at trial. Therefore, the
requirements of article 38.072 were satisfied.
Under
article 38.072, both by the terms of the statute and by the legislative history,
outcry testimony admitted in compliance with article 38.072 is admitted as an
exception to the hearsay rule, meaning it is considered substantive evidence,
admissible for the truth of the matter asserted in the testimony. Rodriguez
v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991); Carty v. State,
No. 01-03-01266-CR, 01-03-01267-CR, 2004 WL 2538297, at *3 (Tex. App.—Houston
[1st Dist.] Nov. 10, 2004, no pet.). A court’s decision that the outcry
statement is reliable and admissible under article 38.072 will not be disturbed
absent a clear abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92
(Tex. Crim. App. 1990); Carty, 2004 WL 2538297, at *5.
As
the statutory requirements were properly complied with and the issue of the
reliability of the statement has not been preserved, the trial court did not
abuse its discretion in admitting the outcry statement under article 38.072.
Because the statement was properly admitted under article 38.072, it was
admissible as substantive evidence. Accordingly, Appellant was not entitled to a
limiting instruction. See Fetterolf v. State, 782 S.W.2d 927, 931 (Tex.
App.—Houston [14th Dist.] 1989, pet. ref’d) (holding that appellant’s request
for a limiting instruction was inapplicable when outcry statement was properly
admitted into evidence under article 38.072). Thus, we overrule Appellant’s
second and third points.
EXPERT
WITNESS
In
his fourth point, Appellant argues that the trial court erred in allowing
State’s witness Pamela Kirby, a licensed clinical psychologist at the time of
trial, to testify during the punishment phase about facts she learned from
Appellant during counseling sessions at a time that she was not licensed in
Texas.
Kirby
testified that she graduated from the doctoral psychology program at Biola
University in 1995. She then completed an internship at Napa State Hospital
where she worked with “patients who were not guilty by reason of insanity for
various crimes.” Kirby stated she moved to Amarillo where she worked with sex
offenders and this was when she first began counseling Appellant. Kirby
testified that she was “licensed professionally” after passing a written exam in
April 1998 and became fully licensed after passing an oral exam in the summer of
1998.
Kirby
testified that she worked with Appellant in a group therapy program from
September 1997 through January 1998. She then worked with him in individual
therapy from February 1998 through July 1998. Kirby testified generally about
her counseling with Appellant and gave her opinion of Appellant after counseling
him. Appellant objected to Kirby testifying regarding her counseling with
Appellant “during the period of time she was not licensed in the State of
Texas.”
The
qualifications of a witness to testify as an expert witness are within the trial
court’s discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App.
2000); Harnett v. State, 38 S.W.3d 650, 657 (Tex. App.—Austin 2000, pet.
ref’d). A trial court’s decision to permit a witness to testify as an expert
will not be disturbed on appeal absent a showing of a clear abuse of discretion.
Wyatt, 23 S.W.3d at 27; Harnett, 38 S.W.3d at
657.
Rule
702 states, “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the 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. No
rigid formula exists for determining whether a particular witness is qualified
to testify as an expert. Harnett, 38 S.W.3d at 658. The rule itself
provides that the requisite expertise may be acquired through knowledge, skill,
experience, training, or education. Id. “It is almost impossible to lay
down any definite guidelines for determining knowledge, skill or experience
required in a particular case or of a particular witness.” Id. (quoting
Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App.—Corpus Christi 1983,
writ ref'd n.r.e.)). Contrary to Appellant’s contention, licensure, or
certification in the particular discipline is not a per se requirement.
Id. at 659; see Gregory v. State, 56 S.W.3d 164, 179-80
(Tex. App.—Houston [14th Dist.] 2001, pet. dism’d) (stating that a medical
license or degree is not the litmus test for qualification as an expert
witness), cert. denied, 538 U.S. 978 (2003); see also Wyatt, 23
S.W.3d at 27-28 (holding that trial court did not abuse its discretion in
allowing witness to testify as an expert, even though she was not
licensed).
Therefore,
we hold that based on Pamela Kirby’s education and experience, the trial court
did not abuse its discretion in allowing her to testify at the punishment phase
of Appellant’s trial. Thus, Appellant’s fourth point is
overruled.
CONCLUSION
Having
overruled all of Appellant’s points, we affirm the trial court’s
judgment.
ANNE
GARDNER
JUSTICE
PANEL B: DAUPHINOT, HOLMAN, and GARDNER,
JJ.
PUBLISH
DELIVERED: April 14, 2005
NOTES
1. In challenging the mother’s reliability, Appellant’s
reliance on Texas Code of Criminal Procedure article 38.072 is misplaced. The
reliability specifically referred to in article 38.072 is the reliability of the
declaration, not the witness. Holland v. State, 770 S.W.2d 56, 59 (Tex.
App.—Austin 1989), aff’d, 802 S.W.2d 696 (Tex. Crim. App. 1991);
see Tex. Code Crim. Proc.
Ann. art. 38.072.