Hernandez v. State

53 S.W.3d 742, 2001 Tex. App. LEXIS 5221, 2001 WL 869354
CourtCourt of Appeals of Texas
DecidedAugust 2, 2001
Docket01-00-00303-CR-01-00-00305-CR
StatusPublished
Cited by97 cases

This text of 53 S.W.3d 742 (Hernandez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. State, 53 S.W.3d 742, 2001 Tex. App. LEXIS 5221, 2001 WL 869354 (Tex. Ct. App. 2001).

Opinion

OPINION

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 *744 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.
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[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:

*745 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, 125 L.Ed.2d 469 (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,

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Bluebook (online)
53 S.W.3d 742, 2001 Tex. App. LEXIS 5221, 2001 WL 869354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-state-texapp-2001.