Francis Flood v. State ( 2011 )

NUMBER 13-10-00266-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FRANCIS FLOOD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
By three issues, appellant, Francis Flood, argues that the trial court erred when it
allowed a witness to testify because: (1) the witness improperly provided expert
testimony despite being called as a lay witness; (2) the State failed to give proper notice
that this witness would testify as an expert; and (3) the State failed to lay the proper
predicate for the witness’s testimony. We affirm.
I. BACKGROUND
Flood was indicted on four counts each of aggravated sexual assault of a child
and indecency with a child by contact. See TEX. PENAL CODE ANN. §§ 22.021, 21.11
(West Supp. 2010). During the jury trial on these offenses, the State called Tiffany
Rankin, executive director and forensic interviewer for the Children’s Advocacy Center in
Gonzales, Texas to the stand. Rankin videotaped an interview with the alleged child
victim in this case, C.K., after she made an outcry to her mother and her doctor.
During Rankin’s direct examination, the prosecution asked her about her
educational background. Flood’s counsel, Noel H. Reese, objected and asked to
approach the bench, where the following exchange occurred outside the presence of the
jury:
REESE: Your honor, before we get into her background and asking
her to testify as an expert witness, we were not given notice
on that. We were the ones that subpoenaed her for the sole
purpose of proving up the video she took. So if he’s going—
STATE: I’m going to use her to prove up the video, your Honor. I’m
not going to get into any area of expertise. I’ve told Defense
Counsel I relied on their subpoena. They’re the ones who
subpoenaed her; I didn’t.
JUDGE: He—you can do it.
STATE: But they’ve at least got the right to know who she is, she can
explain herself in the capacity of her job. They have to have
some background on of [sic] how she ended up in this
position, and based on her training and experience, she can
opine on observations.
REESE: But according to the rules, you did not give us 20 days notice
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that she was going to be testifying as an expert.
STATE: I’m not calling her as an expert, Judge.
REESE: If she’s going to opine about stuff, she’s being called as an
expert.
STATE: We haven’t gotten there yet, Judge.
COURT: When we get there, I’ll decide; but you can do what
you’re—what he’s talking about. I think he’s right on the
point.
STATE: Yeah, I agree.
COURT: Keep it clean.
STATE: I’m not going to do anything that’s going to open the
envelope.
COURT: Keep it clean.
The State proceeded to ask Rankin about her education background and work
experience. Rankin went on to explain her responsibilities in her present position:
RANKIN: As a forensic interviewer that—when a child is brought to the
advocacy Center through a referring agency, I talk to the
child in—in a private setting, in a child[-]friendly setting, make
them as comfortable as possible to tell what may or may not
have happened to them.
STATE: Okay, and you say what may or may not have happened.
Do children tell you stories or lack of stories?
REESE: Your honor, I’m going to object to this line of testimony. I
don’t think it’s appropriate.
COURT: I’m going to allow it. Overruled.
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STATE: What’s the purpose of the interview?
RANKIN: The purpose of the interview is the child has been brought to
the center . . . because there’s believed to be some sort of
abuse . . . by someone.
Rankin then proceeded to testify about the procedure that children follow when
they arrive at the Children’s Advocacy Center, the room in which the children are
interviewed, the recording equipment used to videotape the interview, and the events
leading up to C.K.’s interview. Through her testimony, the State laid the proper
predicate to request the court to admit the video of C.K.’s interview into evidence. The
video was admitted into evidence without objection.
The jury found Flood guilty on all eight indicted charges, and sentenced him to life
in prison at the Texas Department of Criminal Justice—Institutional Division. See TEX.
PENAL CODE ANN. § 12.32 (West Supp. 2010). This appeal followed.
II. ANALYSIS
A. Expert vs. Lay Witness Testimony
By his first issue, Flood contends that Rankin provided improper expert testimony.
―The admissibility of evidence generally, and the qualifications of a witness to testify as
an expert or as a lay witness, are within the discretion of the trial court.‖ Harnett v.
State, 38 S.W.3d 650, 657 (Tex. App.—Austin 2000, no pet.); see TEX. R. EVID. 104(a).
The trial court’s decision will not be overturned on appeal absent a showing that the court
abused its discretion. See Harnett, 38 S.W.3d at 657; Ventroy v. State, 917 S.W.2d
419, 422 (Tex. App.—San Antonio 1996, pet. ref'd).
The Texas Court of Criminal Appeals dealt with a similar issue in Osbourn v.
State. 92 S.W.3d 535 (Tex. Crim. App. 2002). In Osbourn, the court considered
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whether a police officer had to be qualified as an expert before testifying how he
recognized the smell of marihuana emanating from a vehicle. In analyzing the issue,
the court stated the following:
Both lay and expert witnesses can offer opinion testimony. Rule 701
covers the more traditional witness—one who ―witnessed‖ or participated in
the events about which he or she is testifying—while Rule 702 allows for a
witness who was brought in as an expert to testify. . . . When a witness
who is capable of being qualified as an expert testifies regarding events
which he or she personally perceived, the evidence may be admissible as
both Rule 701 opinion testimony and Rule 702 expert testimony.
Id. at 536. The court summarized that experts are not precluded from offering lay
testimony regarding events which they have personally observed. Id.
Here, although Flood argues that Rankin was an expert, she did not offer an
opinion about C.K.’s interview based on her expertise. Rankin simply testified about
where she interviewed C.K., the recording process, and the steps leading up to C.K.’s
videotaped interview. This testimony was based on the events she personally
observed. See TEX. R. EVID. 701 (explaining that lay testimony is ―(a) rationally based
on the perception of the witness and (b) helpful to a clear understanding of the
witness’[s] testimony or the determination of a fact in issue.‖); Osbourn, 92 S.W.3d at
536. Rankin’s testimony did not, as Flood contends, rely on her knowledge, skill,
experience, training, or education as a forensic interviewer of child abuse victims. See
TEX. R. EVID. 702. For example, Rankin did not opine about whether C.K. exhibited any
physical or behavioral manifestations of a child abuse victim, or whether she believed
C.K. was telling the truth about her sexual experiences with Flood. See Yount v. State,
872 S.W.2d 706, 708–10 (Tex. Crim. App. 1993). To the extent that Flood argues that
Rankin improperly testified about ―children’s stories or lack of stories,‖ the record clearly
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shows that Rankin never answered that question. Instead, the State asked Rankin a
different question before she responded.
In light of the foregoing, we hold that the trial court did not abuse its discretion
when it found that Rankin testified as a lay witness. See Harnett, 38 S.W.3d at 657.
We overrule Flood’s first issue.
B. Failure to Provide Proper Notice
By his second issue, Flood argues that the State failed to provide proper notice
that Rankin would testify as an expert. Texas Code of Criminal Procedure article
39.14(b) requires that experts be designated as follows:
On motion of a party and on notice to the other parties, the court in which
an action is pending may order one or more of the other parties to disclose
to the party making the motion the name and address of each person the
other party may use at trial to present evidence under Rules 702, 703, and
705, Texas Rules of Evidence. The court shall specify in the order the
time and manner in which the other party must make the disclosure to the
moving party, but in specifying the time in which the other party shall make
disclosure the court shall require the other party to make the disclosure not
later than the 20th day before the date the trial begins.
TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (West Supp. 2010). We previously
concluded, however, that the trial court did not abuse its discretion when it admitted
Rankin’s testimony as lay witness testimony under Texas Rule of Evidence 701, as
opposed to expert testimony under Rule 702. See TEX. R. EVID. 701, 702; Harnett, 38
S.W.3d at 657. Accordingly, the prosecution was not required to give Flood twenty
days’ notice of Rankin’s testimony under article 39.14 given that Rankin was a lay
witness and not an expert witness. See TEX. CODE CRIM. PROC. ANN. art. 39.14(b).
We overrule Flood’s second issue.
C. Failure to Lay Proper Predicate
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Flood’s third issue argues that the State failed to lay the proper evidentiary
predicate for Rankin to testify as an expert. See TEX. R. EVID. 702. Again, because
we have concluded that the trial court did not abuse its discretion when it admitted
Rankin’s testimony as lay testimony, there was no need for the State to lay an expert
predicate. Id. Accordingly, we overrule Flood’s third issue.
III. CONCLUSION
Having overruled all of Flood’s issues, we affirm the trial court’s judgment.
________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of July, 2011.
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