Puderbaugh v. State

31 S.W.3d 683, 2000 Tex. App. LEXIS 7645, 2000 WL 1677960
CourtCourt of Appeals of Texas
DecidedNovember 8, 2000
Docket09-99-328 CR
StatusPublished
Cited by63 cases

This text of 31 S.W.3d 683 (Puderbaugh 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
Puderbaugh v. State, 31 S.W.3d 683, 2000 Tex. App. LEXIS 7645, 2000 WL 1677960 (Tex. Ct. App. 2000).

Opinion

OPINION

WALKER, Chief Justice.

James Delevan Puderbaugh was indicted for having committed the first degree felony offense of aggravated sexual assault of a child younger than fourteen years of age. After the jury found Puderbaugh to be guilty, the court assessed punishment at seventy-five years of confinement in the Texas Department of Criminal Justice, Institutional Division. Puderbaugh raises five points of error in his appeal.

Point of error one urges, “The trial court erred by allowing a social worker to testify to statements made to him which incriminated appellant because the State did not show that the complainant knew the statements were being made for the purpose of medical diagnosis or treatment.” Richard Brouwer, a clinical social worker who practices with physicians in a family office practice, testified that the complainant C.P., was referred to him for counseling by C.P.’s family physician. Since starting treatment in June 1997, Brouwer had over 30 sessions with C.P., conducted approximately twice a month. In the course of her treatment, C.P. indicated that her father, the appellant, sexually abused her.

Statements made for purposes of medical diagnosis or treatment are excepted from the hearsay rule. Tex.R.Evid. 803(4). Puderbaugh argues C.P.’s statements to Brouwer, relating the abuse by Puderbaugh, are inadmissible under Gohr-ing v. State, 967 S.W.2d 459 (Tex.App.—Beaumont 1998, no pet.). Recognizing that the medical treatment exception to the hearsay rule is based on the assumption that the patient appreciates that the effectiveness of the treatment may depend upon the accuracy of the information provided, we held that statements made to a CPS investigator were not admissible under Rule 803(4), absent a showing of a medical care component to the worker’s employment of which the declarant was aware. Id. at 461-64. Brouwer acknowledged that in the course of treatment in counseling C.P., it had been conveyed to C.P. that the reason for seeing him was to help her with her emotional problems. Brouwer and C.P. discussed the importance of telling the truth to him, and C.P. understood the difference between telling the truth and telling a lie. Thus, the State established both the medical care component of Brouwer’s sessions with C.P. and C.P.’s awareness of the purpose of the treatment. The trial court did not err in admitting the evidence under Rule 803(4). Point of error one is overruled.

Point of error two urges, “The trial court erred by allowing a social worker to testify to statements made to him which incriminated appellant because the State did not show that the social worker qualified as an expert.” Puderbaugh argues that Brouwer’s testimony regarding statements made by C.P. during the course of play therapy was inadmissible because the reliability of his methodology was not shown to have been tested in this case. Puderbaugh complains that Brouwer’s method of diagnosis was not based on any standardized testing procedure, but on his training and experience.

For scientific evidence to be considered reliable, the underlying theory must be valid, the technique applying the theory must be valid, and the technique must be properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). Factors re *686 lating to reliability include but are not limited to: (1) acceptance by the relevant scientific community; (2) qualifications of the expert; (3) literature concerning the technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying theory or technique can be explained to the court; and (7) the experience and skill of the person applying the technique. Id. Depending upon the context, these specific factors may or may not apply to “soft science.” Nenno v. State, 970 S.W.2d 549, 560 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App.1999).

When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a “theory” or “technique” in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly test to areas outside of hard science. And, hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences.

Nenno, 970 S.W.2d at 561.

This case is unusual because Brou-wer did not offer an expert opinion as to whether C.P.’s behavior is consistent with child victims of sexual abuse. The issue is not whether Brouwer possesses sufficient expertise so that his opinion will aid the jury in its understanding of the evidence, but whether the methods employed in C .P.’s treatment are sufficiently reliable to permit Brouwer to relate to the jury statements made by C.P. during “play therapy.” Brouwer testified that he acquired a bachelor’s degree in psychology and a master of social work degree from Western Michigan University. He has been employed by St. Mary’s Hospital since 1981, working in a family health center that trains family physicians. He has puppets and stuffed animals in the room, which he uses in conversations with younger children like C.P. He asks the child to draw self-portraits and pictures of her family to be used as tools in their discussions. He has discussed this case, and others, with a psychiatrist and two other social workers who teach family practice residents with him. The methods he uses in his treatment of C.P. are recognized methods in the field of social work. Pu-derbaugh did not produce any evidence challenging the legitimacy of the field of social work, nor did he rebut Brouwer’s expertise in the field or offer any publications questioning the legitimacy of play therapy. See Campos v. State, 977 S.W.2d 458, 463-64 (Tex.App.—Waco 1998, no pet.). Brouwer’s field of expertise, social work, appears to be legitimate, his work with C.P. was within his field, and he relied upon recognized methods in the field of clinical social work. We find the reliability of Brouwer’s testimony to be sufficiently established to permit him to testify regarding statements made by C.P. in the course of medical treatment. Point of error two is overruled.

The appellant’s brief combines his argu.ment for the next two points of error:

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Bluebook (online)
31 S.W.3d 683, 2000 Tex. App. LEXIS 7645, 2000 WL 1677960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/puderbaugh-v-state-texapp-2000.