Lorenzo Ybarra Jr. v. Dora Aguiar F/K/A Dora Lopez Ybarra

• Court: Court of Appeals of Texas
• Decided: December 21, 2011
• Docket: 13-11-00782-CV
• Status: Published

Opinion

NUMBER 13-10-00613-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI–EDINBURG

RANULFO CANO PEREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 2nd 25th District Court of Gonzales County, Texas1

MEMORANDUM OPINION

Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Perkes

Appellant, Ranulfo Cano Perez, appeals his conviction for two counts of

aggravated sexual assault of a child and one count of continuous sexual abuse of a child.

See TEX. PENAL CODE ANN. §§ 21.02, 22.021 (West 2003 & Supp. 2010). Following a jury 1 We note that the reporter’s record, clerk’s record, and the trial court’s judgment identify the trial court as the ―2nd 25th District Court‖ of Gonzales County, Texas. trial on guilt-innocence, for each of the three counts, the jury found appellant guilty and

assessed punishment at ninety-nine years of confinement in the Texas Department of

Criminal Justice—Institutional Division. The sentences are to run concurrently. By a

single issue, appellant argues the trial court erred in permitting a psychologist to provide

expert testimony when he had interviewed neither the victim nor appellant, and his

testimony did not meet the ―fit requirement‖ under Texas Rule of Evidence 702. We

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant sexually abused his daughter. At trial, the State called William Lee

Carter, Ph.D. as an expert witness. After explaining his background and qualifications,

Dr. Carter stated he had not evaluated appellant or the victim, but testified concerning

hypothetical scenarios and the dynamics of child sexual abuse generally. Appellant’s

trial counsel did not object to Dr. Carter testifying at trial and did not object to any question

posed to Dr. Carter at trial. On cross examination, defense counsel elicited expert

testimony from Dr. Carter that arguably supported the defensive theory of the case.

II. ANALYSIS

On appeal, appellant argues the admission of Dr. Carter’s testimony into evidence

was ―plain error,‖ and he was therefore not required to object at trial to preserve his

complaint for appellate review. We disagree.

Texas Rule of Evidence 103(d) provides that in a criminal case, nothing in the rules

of evidence ―precludes taking notice of fundamental errors affecting substantial rights

although they were not brought to the attention of the court.‖ TEX. R. EVID. 103(d). In

2 Saldano v. State, the Texas Court of Criminal Appeals addressed whether a

capital-murder defendant was required to object to preserve a complaint concerning

purported error in admitting a psychologist’s testimony during the punishment phase of

trial. 70 S.W.3d 873, 884–85 (Tex. Crim. App. 2002). The Saldano Court identified two

narrow categories of errors that are so fundamental that timely objection is unnecessary

to preserve a complaint for appellate review—violations of ―waivable only‖ rights and

denials of ―absolute systemic requirements.‖ Id. at 887–88. Waivable only rights

include the right to a jury trial and the right to effective assistance of counsel. See id. at

888. Absolute systemic rights include the requirements that the trial court have personal

and subject-matter jurisdiction. See id. The Saldano Court concluded that neither

category included the admission of the psychologist’s testimony into evidence and that,

as a result, the defendant waived appellate review of his complaint by not objecting to the

admission of the testimony at trial. Id. at 890.

Here, as in Saldano, appellant has not preserved for appellate review his

complaint concerning Dr. Carter’s testimony because he did not object to the admission of

the testimony in the trial court. See id.; see also Doyle v. State, 24 S.W.3d 598, 602

(Tex. App.—Corpus Christi 2000, pet. ref’d) (holding that complaint about expert

testimony was not preserved for appellate review because the defendant failed to make

an objection to the expert opinion testimony in the trial court); Shaw v. State, 329 S.W.3d

645, 655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (concluding that a complaint

concerning the reliability of expert testimony concerning paternity testing was not

preserved for appellate review). Appellant’s sole issue on appeal is overruled.

3 III. CONCLUSION

We affirm the trial court’s judgment.

______________________ Gregory T. Perkes Justice

Do not publish. Tex. R. App. P. 47.2(b).

Delivered and filed the 21st day of December, 2011.