Perez v. State

925 S.W.2d 324, 1996 Tex. App. LEXIS 2423, 1996 WL 317052
CourtCourt of Appeals of Texas
DecidedJune 13, 1996
Docket13-94-602-CR
StatusPublished
Cited by6 cases

This text of 925 S.W.2d 324 (Perez 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
Perez v. State, 925 S.W.2d 324, 1996 Tex. App. LEXIS 2423, 1996 WL 317052 (Tex. Ct. App. 1996).

Opinion

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

A jury found appellant, Joaquin Perez, guilty of aggravated sexual assault of a child under the age of fourteen, found the enhancement allegations to be true, and assessed punishment at fifteen years’ confinement. By three points of error, appellant complains of testimony concerning the use of anatomically correct dolls. By one additional point of error, he contends that the trial court erred in admitting opinion testimony regarding the credibility of the victim. We affirm.

On April 4, 1994, appellant and his wife, Griselda Lee, argued while they were at a bar. Lee left the bar and returned home to check on her eight-year-old daughter 1 who was at a neighbor’s house. After learning that the child was asleep, Lee left her at the neighbor’s house for the night and went home and watched television for awhile. She then decided to leave again. As Lee was leaving the house, she saw appellant arriving. Lee, not wanting to continue the earlier argument, hid in the bedroom closet. A short time later, appellant left and returned with Lee’s daughter.

After the child went to bed, appellant entered the bedroom, lowered the clothing that covered his and the girl’s genitals, and laid on top of her while she was on her stomach. The child testified that appellant placed his “private part” between her legs, touching her “private part,” and began to move up and down.

Hearing noise in the bedroom, Lee left the closet, turned on the light, and discovered appellant lying in the child’s bed while the two were only partially clothed. The child was sent to the bathroom where she cleaned “water” from her private parts. After a *326 brief fight with Lee, appellant left the house, and the police were called. Appellant was arrested and charged with aggravated sexual assault of a child under the age of fourteen. Tex. Penal Code Ann. § 22.021 (Vernon 1994). 2

The child related details of the incident to several persons, including Diana Cadriel, a social worker for Child Protective Services (“CPS”). As the child explained what happened, Cadriel asked her to use anatomically correct dolls to “show” what she was describing. Before trial, appellant filed a motion in limine seeking to prohibit the admission of evidence concerning the use of the dolls. During a hearing on the motion, Cadriel testified that the dolls were used to facilitate the explanations of young children who have a difficult time verbalizing or who do not know accurate names for body parts. She said that the child was asked to use the dolls to show what had happened. After Cadriel’s testimony, arguments by counsel, and an examination of the dolls, the trial court denied appellant’s motion in limine. The court also ruled that the dolls could be used during the trial.

By his first, second and third points of error, appellant complains that the trial court erred in allowing Diana Cadriel to testify about the use of the anatomically correct dolls because: 1) their scientific reliability was not established, 2) they were overly suggestive to the child and prejudicial to appellant, and 3) it was not established that the dolls were anatomically correct. Appellant contends that such testimony was used to bolster the child’s testimony. He further argues that the use of anatomically correct dolls is controversial and unreliable.

An appellate court should not set aside the trial court’s rulings to exclude or admit evidence absent a showing in the record that the trial court has abused its discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990)(op. on reh’g). All relevant evidence is admissible unless it falls within an exception provided by law or by other rules of evidence. Tex.R.CRIM. Evid. 402. Relevant evidence is that “having 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.CRIM. Evid. 401. The trial court may exclude relevant evidence “if its probative value is outweighed by the danger of unfair preju-diee[.]” Tex.R.CRIM. Evid. 403.

Appellant contends that the State did not establish the scientific reliability of using the anatomically correct dolls as required by Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). At issue in Kelly was the admission of novel scientific evidence. Id. However, testimony regarding the use of dolls while interviewing young victims or the actual use of dolls during the child’s testimony appears in published opinions dating back at least fifteen years and cannot be considered novel. See Montgomery, 810 S.W.2d at 396 (caseworker testimony regarding child’s use of dolls during interview); McKenzie v. State, 617 S.W.2d 211, 214 (Tex.Crim.App.1981)(demonstrating for jury with child’s favorite doll); Kirk v. State, 653 S.W.2d 647, 649 (Tex.App. — Fort Worth 1983, no pet.)(using anatomically correct doll during child’s testimony). Moreover, after reviewing the record, we conclude that Ca-driel’s testimony about the use of the anatomically correct dolls while interviewing the child was not scientific evidence.

Cadriel testified that an interview is conducted on a one-to-one basis between the caseworker and the victim. Four anatomically correct dolls are laid out where the child can see them. Initially, the caseworker asks general questions intended to calm and gain the confidence of the child. Next, the caseworker asks if the child can name any of the dolls’ body parts. If able, the child will point to a part and give the name. After completing this procedure, the caseworker asks if someone has done anything to the child that the child thought was wrong or did not like. When the child is young or incapable of verbalizing the events, the caseworker will ask the child to demonstrate with the dolls. The child selects the dolls and is not *327 coached about how to demonstrate. This procedure was followed when Cadriel interviewed appellant’s stepdaughter.

The record further shows that the child’s response to Cadriel’s question about another person’s inappropriate actions toward her was immediate. After the child finished her explanation, Cadriel asked, “Could you show me?” Appellant’s stepdaughter then chose two dolls and demonstrated what she had experienced. This is the only testimony that Cadriel provided for the jury regarding the use of the dolls during the interview. She did not repeat the specific details of the child’s testimony nor did she demonstrate the child’s use of the dolls.

Although we agree that anatomically correct dolls could pique the curiosity of a young child, this curiosity is far different than an eight-year-old knowing how to demonstrate a sex act.

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Bluebook (online)
925 S.W.2d 324, 1996 Tex. App. LEXIS 2423, 1996 WL 317052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-state-texapp-1996.