IN THE TENTH COURT OF APPEALS
No. 10-11-00414-CR
NATHAN ANDREW COX, Appellant v.
THE STATE OF TEXAS, Appellee
From the 66th District Court Hill County, Texas Trial Court No. 36112
MEMORANDUM OPINION
Nathan Andrew Cox appeals from a conviction for aggravated sexual assault of a
child, for which he was sentenced to ten years in prison. TEX. PEN. CODE ANN. § 22.021
(West 2011). Cox complains that the trial court abused its discretion when it denied his
motion to suppress evidence, admitted evidence of an extraneous offense, admitted
evidence by a mental health care professional, and allowed the State to recall Cox
during the punishment phase of the trial to question him about and admit into evidence cell phone records that had not been previously disclosed to the defense. Because we
find no reversible error, we affirm the judgment of the trial court.
Motion to Suppress Evidence
Cox complains in his first issue that the trial court abused its discretion by
denying his pretrial motion to suppress evidence. An outcry was made to a physician
by F.D., a child then under the age of 14, regarding nude photographs of F.D. taken by
Cox with his cell phone. Shortly before the outcry, Cox had been arrested and charged
with the offense of aggravated sexual assault of F.D. A warrant was issued by a
magistrate to search the residence of Cox or to search Cox himself looking for nude
photographs of F.D. that would constitute child pornography and any cell phones with
cameras in the possession of Cox.
The search warrant affidavit described a residence at 560 HCR 1227 in Whitney,
Hill County, Texas as being the residence of Cox and described Cox's physical
characteristics. The affiant was a deputy sheriff who had been employed by Hill
County for approximately 19 years at the time of the making of the affidavit, with 18 of
those years as an investigator. The affiant was experienced in and had undergone
training in the investigation of child sex offenses and stated that, based on her
experience and training, she knew that persons who have illegal sexual intercourse with
children commonly take nude photos of their victims, commonly trade or sell those
Cox v. State Page 2 photos, and use cell phones to take those photos and retain the images on their cell
phones for mobility and access to them.
The affidavit set forth that F.D. had initially made an outcry of sexual abuse to
her mother who made a report to law enforcement. F.D. stated that she had had
consensual sex with Cox the previous summer when she was twelve years old.
Approximately a month later, a person listed as "A. Sims, MD of the Children's
Advocacy Center" informed the affiant that F.D. had told her that Cox had taken
pictures of F.D. without her clothes on using his cell phone, which led the affiant to seek
the search warrant.
The search was executed the day after the warrant was issued at 560 HCR 1227 in
Whitney, Texas. Cox's father answered the door. Cox was in bed but got up to meet the
officers. The officers entered and located a cell phone on the bed in the living room
where Cox had been sleeping prior to the officers' arrival. The cell phone was seized
and nude photos of F.D. were found on the cell phone, which the State intended to
introduce at Cox's trial for aggravated sexual assault.
Cox filed a pretrial motion to suppress, which was denied by the trial court after
a hearing. Cox's motion alleged that the warrant did not establish probable cause
because the attached affidavit: 1) "lacks sufficient underlying circumstances which
would permit the conclusion that the alleged contraband was at the location in which it
was claimed;" 2) "fails to state sufficient underlying circumstances to establish the
Cox v. State Page 3 credibility of the affiant;" 3) "does not specify a connection or nexus with the alleged
crime with the premises to be searched;" 4) that the magistrate did not have a
substantial basis for determining that the contraband would be found in a particular
place; and 5) that the warrant was facially deficient because it did not particularize the
things to be seized. At the hearing on the motion to suppress, Cox's argument was that
there was no nexus in the affidavit to connect the residence that was searched to the cell
phone that was seized in Cox's possession.
Cox complains in his first issue that the trial court abused its discretion by
denying his motion to suppress evidence because of an insufficient connection between
the suspected place and child pornography at that location. Cox further complains that
there were no facts in the affidavit as to why the affiant believed that Cox would be at
that address at the time of the search or that it is even the address of Cox. Cox argues
that the affidavit does not establish why the evidence sought was reasonably connected
to the suspected place.
Next, Cox argues in that same issue that the information on which the affidavit
was based was stale because the pictures had been taken twelve to eighteen months
prior to the affidavit. Further, he complains that there was no showing of the reliability
of the information or individuals used as the basis for the affidavit; i.e. that there was no
showing of reliability of the hearsay allegations provided by the non-affiant, A. Sims,
MD.
Cox v. State Page 4 Preservation of Error
At the hearing on the motion to suppress, Cox did not argue that there was no
showing that the residence was Cox's residence, that the information was stale, or that
the statement of A. Sims, MD constituted hearsay or was otherwise unreliable. To
preserve a complaint for appellate review, a defendant must raise the complaint to the
trial judge by a timely request, objection or motion that specifically identifies the
grounds for the ruling he seeks. TEX. R. APP. P. 33.1(a)(1)(A). A defendant's appellate
contention must comport with the specific objection made at trial. Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection grounded on one legal basis may
not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869,
870 (Tex. Crim. App. 1990). The reviewing court will not consider errors, even of
constitutional magnitude, not called to the trial court's attention. Broxton v. State, 909
S.W.2d 912, 918 (Tex. Crim. App. 1995). Cox has failed to preserve the above
complaints for appellate review because his contentions on appeal do not comport with
his arguments at the suppression hearing. See TEX. R. APP. P. 33.1(a)(1)(A). We will
limit our review to the issue raised by Cox at the hearing on the motion to suppress that
there was no nexus between the crime of the possession of child pornography to the
address of 560 HCR 1227, Whitney, Hill County, Texas set forth in the affidavit attached
to the search warrant.
Cox v. State Page 5 Standard of Review for Motion to Suppress
Ordinarily, a trial court's ruling on a motion to suppress is reviewed under a
bifurcated standard, giving almost total deference to the trial court's findings of fact but
reviewing conclusions of law de novo. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.
App. 2011). However, when ruling on a motion to suppress evidence obtained
pursuant to a search warrant, a trial court is limited to the four corners of the affidavit
supporting the warrant and thus makes no factual or credibility determinations. Id.
Our review of a trial court's ruling on a motion to suppress evidence requires us to be
highly deferential to a magistrate's decision to issue a search warrant, reflecting the
constitutional preference that searches be conducted pursuant to a warrant. McLain,
337 S.W.3d at 271; Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007).
We must determine whether the magistrate had a substantial basis for
concluding that probable cause existed. State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim.
App. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76 L. Ed. 2d 527
(1983)). Probable cause exists when, considering the totality of the circumstances, there
is a "fair probability that . . . evidence will be found at the specified location." Rodriguez,
232 S.W.3d at 60 (internal quotations omitted). While our review is limited to the four
corners of the affidavit, we interpret the affidavit in a "commonsensical and realistic
manner, recognizing that the magistrate may draw reasonable inferences. When in
Cox v. State Page 6 doubt we defer to all reasonable inferences that the magistrate could have made." Id. at
61.
Cox's argument at the hearing on the motion to suppress was that there was no
nexus between the address in the warrant and the crime of child pornography. He
further contended that it was necessary for the warrant to describe criminal activity
occurring at the premises to be searched. Cox further argued that the nexus needed
would have been satisfied with a statement that the cell phone would likely have been
located at the residence of Cox, but that the magistrate was not allowed to infer that
link.
The search warrant stated that based on the affiant's knowledge and experience
individuals who engage in illegal sexual intercourse will use cell phones to take
photographs of their victims and store those images on the phone for easy access and
mobility. Further, the affidavit stated that F.D. had made a statement that she and Cox
had engaged in sexual intercourse when she was twelve years old and later told A.
Sims, MD that Cox had used his cell phone to take photographs of her without her
clothes on. The warrant sought the ability to search the residence or the person of Cox
for cell phones with cameras. The only thing missing would have been a statement that
Cox kept the cell phone at his residence while he was there. However, we believe that
the magistrate could have reasonably inferred that an individual would keep their cell
phone on or near their person at all times including when they were at their residence.
Cox v. State Page 7 We do not find that the search warrant was defective in this manner. We overrule issue
one.
Admission of Evidence
Cox complains in his second issue that the trial court abused its discretion by
admitting evidence of an extraneous offense. In his third issue, Cox complains that the
trial court abused its discretion by allowing a witness to testify as an expert. In his
fourth issue, Cox complains that the trial court abused its discretion by allowing the
State to question him on cross-examination using cell phone records that had not been
provided to the defense prior to trial.
When reviewing a trial court's ruling admitting evidence, we apply an abuse of
discretion standard of review. Casey v. State, 215 S. W.3d 870, 879 (Tex. Crim. App.
2007). The court does not abuse its discretion as long as its decision to admit evidence
falls within the zone of reasonable disagreement. Bigon v. State, 252 S.W.3d 360, 367
(Tex. Crim. App. 2008).
Extraneous Offenses
Cox complains that the trial court abused its discretion by allowing F.D. to testify
that Cox had inappropriately touched her beginning when she was five or six. At trial,
Cox objected to the introduction of the earlier conduct as being inadmissible pursuant
to rules 401, 403, and 404(b) of the Rules of Evidence. See TEX. R. EVID. 401, 403, 404(b).
In his brief to this Court, Cox cites those rules, however, his argument is limited to
Cox v. State Page 8 stating that the allegation was remote and unreliable from ten years prior and was
revealed by F.D. for the first time only shortly before the trial. Because of this, Cox
contends that the allegation was not proved beyond a reasonable doubt. We note that
the testimony of a child victim is sufficient to support a conviction for aggravated
sexual assault or indecency with a child and corroboration is not required. TEX. CODE
CRIM. PROC. ANN. art. 38.07 (West 2005); Martinez v. State, 178 S.W.3d 806, 814 (Tex.
Crim. App. 2005). We see no distinction, and Cox has not shown any, that would
demonstrate that F.D.'s testimony was not sufficient to establish the extraneous offense
that he had inappropriately touched her as a young child beyond a reasonable doubt.
Additionally, the allegation that F.D. had been touched inappropriately by Cox
at approximately age five was also testified to without objection by F.D.'s counselor.
The admission of evidence is harmless where the same evidence came in elsewhere
without objection. Lane v. State, 151 S.W.3d 188, 192-93 (Tex. Crim. App. 2004); see also
Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) ("[E]rroneously admitting
evidence 'will not result in reversal when other such evidence was received without
objection, either before or after the complained-of ruling.'"). We overrule issue two.
Expert Testimony
In his third issue Cox complains that the trial court abused its discretion by
allowing the testimony of F.D.'s counselor as an expert witness regarding stressors that
F.D. had experienced and how those stressors could be attributed to sexual assault. The
Cox v. State Page 9 trial court conducted a gatekeeping hearing outside the presence of the jury to
determine the admissibility of the testimony of a licensed professional counselor,
Amanda Vieregg, who had been seeing F.D. for approximately six months prior to the
trial providing psychotherapy services to F.D.
Vieregg had a master's degree in psychology and had been a licensed
professional counselor for approximately 20 years at the time of trial. For the first seven
years she had worked with children and adolescents at Klara’s Center for Children and
Families. Since that time Vieregg had been in private practice, specializing in children
and adolescents who have been sexually or physically abused. Vieregg’s continuing
education was focused on children and adolescents, and she had a reputation in the
community for working with children who had been sexually abused, which often
comprised her entire caseload. Vieregg had testified in court on many occasions
previously as an expert witness.
Vieregg began seeing F.D. every other week in February of 2011 leading up to
the time of trial in August of that year. F.D. came to Vieregg because she was
experiencing intense and pervasive thoughts about a sexual relationship she had been
in with an older male from approximately age five to age twelve or thirteen. This was
impacting her grades at school and her behavior, and was interfering with her ability to
concentrate on her schoolwork. F.D. also showed signs of post-traumatic stress
Cox v. State Page 10 disorder, anxiety, and depression, which Vieregg also attributed to the sexual
relationship.
F.D. had told Vieregg that her mother had used drugs previously but was
currently not a drug user, although Vieregg did not know that it was
methamphetamine that her mother abused. F.D. denied any instances of physical abuse
by her mother, but had told Vieregg that she had been responsible for the care of her
siblings quite a bit because of her mother’s being in and out of the home due to drug
use. F.D. was approximately six months pregnant at the time of trial as well, although
Vieregg did not attribute stress surrounding the pregnancy to the issues described
above because F.D. was not pregnant when she began therapy and expressed her
problems. Vieregg acknowledged that some of those factors could contribute to her
anxiety, but was of the opinion that the sexual abuse was the primary cause of F.D.’s
issues.
At the conclusion of the gatekeeping hearing, Cox objected to the testimony of
Vieregg because he claimed that her testimony was not reliable or credible because she
did not consider other factors in her opinion as to the cause of F.D.’s problems and that
the State had not met its burden under Daubert. See generally, Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993).
The trial court overruled Cox’s objection and allowed Vieregg to testify as an
expert. The trial court also granted the State’s objection disallowing testimony about
Cox v. State Page 11 F.D.’s current pregnancy as being irrelevant to the offense for which Cox was on trial,
which had occurred approximately two years prior to the trial.
On appeal, Cox complains that the trial court abused its discretion by failing to
require the State to elicit testimony regarding Vieregg’s background or credentials in
the scientific field or theory she was propounding; there was no testimony regarding
what she was basing her scientific observations on outside of having previously
testified; she did not explain the reliability of psychotherapy or the underlying science
as to how the stressor factors she had observed in F.D. were reliably linked to actual
sexual abuse.
In support of this argument Cox cites to Hernandez v. State, 116 S.W.3d 26 (Tex.
Crim. App. 2003), in which the Court of Criminal Appeals held that “[o]nce a scientific
principle is generally accepted in the pertinent professional community and has been
accepted in a sufficient number of trial courts through adversarial Daubert/Kelly
hearings, subsequent courts may take judicial notice of the scientific validity of that
scientific theory based upon the process, materials, and evidence produced in those
prior hearings.” However, Hernandez has been limited to instances involving “hard”
sciences, not “soft” sciences such as psychology. See Morris v. State, 361 S.W.3d 649, 655
(Tex. Crim. App. 2011).
In determining the admissibility of expert testimony, the rules of evidence
require a trial judge to make three separate inquiries, all of which must be met before
Cox v. State Page 12 admitting that testimony: “(1) the witness qualifies as an expert by reason of his
knowledge, skill, experience, training, or education; (2) the subject matter of the
testimony is an appropriate one for expert testimony; and (3) admitting the expert
testimony will actually assist the fact-finder in deciding the case.” Rodgers v. State, 205
S.W.3d 525, 527 (Tex. Crim. App. 2006) (citing TEX. R. EVID. 104(a), 702, 401, & 402).
These inquiries are commonly referred to as qualification, reliability, and relevance,
respectively. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006).
On appeal Cox does not attack Vieregg’s qualifications as an expert or the
relevance of her testimony; therefore, we will limit our analysis to the reliability
question. For assessing the reliability of expert testimony, we analyze the admissibility
of expert testimony regarding behavioral characteristics of child sexual assault victims
under Nenno’s framework concerning fields of study outside the hard sciences. Morris,
361 S.W.3d 649, 654 (citing Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998),
overruled in part on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App.
1999)). The Nenno framework consists of three questions: (1) whether the field of
expertise is a legitimate one; (2) whether the subject matter of the testimony is within
the scope of that field; and (3) whether the testimony properly relies upon or utilizes the
principles involved in the field. Nenno, 970 S.W.2d at 561.
Behavioral characteristics common to child victims of abuse has been held to be a
legitimate area of questioning. See Duckett v. State, 797 S.W.3d 906, 920 (Tex. Crim. App.
Cox v. State Page 13 1990), overruled in part on other grounds by Cohn v. State, 849 S.W.3d 817, 819 (Tex. Crim.
App. 1993); see also Gonzales v. State, 4 S.W.3d 406, 417 (Tex. App.—Waco 1999, no pet.).
The subject matter of Vieregg's testimony was within the field of expertise of providing
psychotherapy to children and her testimony described how she utilized the principles
in the field based on her significant experience and training. Cox states that Vieregg
was unaware of other stressors in F.D.'s life, which based on our review of the record,
was not accurate. Vieregg testified that she knew of other factors present in F.D.'s life
and that they could have an emotional impact on F.D., such as her mother's past drug
use, F.D.'s current pregnancy, and the in-and-out parenting of her mother. The trial
court did not abuse its discretion by admitting the testimony. We overrule issue three.
Discovery Violation
Cox complains that the trial court erred by allowing the State to recall him to
testify on rebuttal regarding cell phone records that had not been provided by the State
prior to trial because his attorney might not have allowed him to testify had the State's
possession of and the content of the records been made known. During direct
examination Cox testified that he did not have regular contact with F.D. in the month
leading up to his arrest; however, the cell phone records demonstrated that Cox had
communicated with F.D. on a regular basis during that same time period that Cox
claimed to have no contact. Cox contends that the trial court had entered a standing
pretrial order for discovery that would have required the disclosure of the records.
Cox v. State Page 14 The State argues that although Cox had filed a motion for discovery, it was never
set for hearing and there was no discovery order in place requiring the production of
the records. Further, the State contends that the failure to produce them was not willful
because they were not received by the State until the day before they were admitted.
The record before us does not show that a discovery order was entered by the trial
court. Absent an order requiring discovery, there is no error in the admission of
evidence not previously disclosed by the State. See, generally, TEX. CODE CRIM. PROC.
ANN. art. 39.14 (West 2005).
The State sought to introduce the records during its cross-examination of Cox to
impeach his testimony that he had not had contact with F.D. during the month of his
arrest. The cell phone records show multiple, lengthy phone calls and also text
messages between F.D.'s cell phone and Cox's cell phone. Cox's counsel objected to the
records at that time because he had not seen them previously and on the basis of
surprise and the trial court allowed Cox until lunch to look at the records. After the
lunch break, Cox objected to the State being allowed to present the records during
cross-examination rather than during rebuttal, at which time Cox believed the records
would be admissible for impeachment purposes. Cox further objected on the basis of
surprise at that time, but did not ask for a continuance or further postponement. Cox's
counsel argued that had he known of the State's intent to use the records he might not
have called Cox to testify.
Cox v. State Page 15 "It is well settled that the proper procedure when alleging surprise due to
violation of a trial court's order for discovery is to object or ask for a postponement or
continuance of the trial." Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex. Crim. App. 1985).
Failure to do so results in a waiver of any error based on surprise or violation of a
discovery order. Smith v. State, 779 S.W.2d 417, 431 (Tex. Crim. App. 1989); Duff-Smith,
685 S.W.2d at 33; McQueen v. State, 984 S.W.2d 712, 718 (Tex. App.—Texarkana 1998, no
pet.) (citing Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982)); see
Hall v. State, 283 S.W.3d 137, 169 (Tex. App.—Austin 2009, pet. ref'd); Williams v. State,
995 S.W.2d 754, 762 (Tex. App.—San Antonio 1999, no pet.). Because Cox did not
request a continuance, even if there had been a discovery order entered, any alleged
error based on surprise was waived. We overrule issue four.
Conclusion
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed March 28, 2013 Do not publish [CR25]
Cox v. State Page 16