Rodriquez, Patrick v. State ( 2002 )

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PATRICK RODRIQUEZ,

Appellant,

THE STATE OF TEXAS,

Appellee.

No. 08-00-00532-CR

Appeal from the

161st District Court

of Ector County, Texas

(TC# B-27,976)

O P I N I O N

Patrick Rodriquez appeals his convictions on one count of burglary of a habitation with intent to commit sexual assault and two counts of sexual assault. We affirm.

Summary of Evidence

Patrick Rodriquez was indicted on three counts. The first count was for burglary of a habitation with intent to commit sexual assault. The second and third counts were for sexual assault. Rodriquez pleaded not guilty to all three counts.

According to the victim, using the pseudonym AScooter,@ on October 26, 1999, she had gone home during a lunch break. While she was in her bedroom, she heard the screen door, which was unlocked, open. Scooter believed that it was Cliff, the man she was living with, but it was not. Instead, it was Rodriquez.

Scooter stated that Rodriquez approached her and began touching her. Despite Scooter=s attempts to thwart Rodriquez=s advances, Rodriquez penetrated her anally and vaginally. She testified that she did not give Rodriquez consent for his actions.

Rodriquez admitted that he and Scooter had relations, but he asserted that they had been consensual. Thus, the main point in contention at Rodriquez=s trial was whether the intercourse had been consensual.

The State presented Leticia Harper, a victim services coordinator for the Center for Crisis Advocacy, as an expert witness to provide testimony relevant to the issue of consent. Harper was taken on voir dire. Counsel for appellant asked Harper about her education and whether she had an advanced degree in psychology or medicine. He asked her whether she had a license as a nurse or professional counselor. Counsel asked Harper whether she knew the results of any legitimate tests on Rape Trauma Syndrome or how often the theory had been tested. And he asked her if she had written any articles having to do with trauma or knew the potential rate of error of Rape Trauma Syndrome.

Harper admitted that she did not have any advanced degree in counseling or medicine. She had not written any articles regarding trauma. Further, she could not give the potential rate of error on Rape Trauma Syndrome and did not know how often the theory had been tested.

At the end of the questioning, counsel entered an objection that Harper was not a qualified expert under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993).^{^[1]} He stated, ANone of the things--if this is specialized scientific knowledge that she relies on for an opinion, she doesn=t have a degree in it.@ He objected to the relevancy of Harper=s testimony to his client=s guilt or innocence. He also objected that any probative value of her testimony was outweighed by the testimony=s possibility of prejudice.

In response, the State argued that Harper was offering nonscientific expert testimony.

Counsel=s objections were overruled and Harper was allowed to testify that in her opinion, Scooter suffered from Rape Trauma Syndrome. The trial judge stated, AFirst of all, with regard to this rape trauma syndrome. This is pretty mainstream stuff.@ He declared that it passed the test set forth in E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). He also decided that based on Harper=s job skills and knowledge of the witness, she was qualified to provide the testimony.

At the conclusion of the trial, the jury found Rodriquez guilty on all three counts. It assessed punishment for each count at ten years= confinement. The judge ordered that the two sexual assault counts be served consecutively and that service for the burglary of a habitation count be concurrent with service for the sexual assault counts.

Discussion

In his sole issue on appeal, appellant argues that the trial court abused its discretion in allowing expert testimony that Scooter suffered from Rape Trauma Syndrome. He argues that Harper was not a qualified witness and that as a result, her testimony was inadmissible; the testimony had a substantial and injurious affect on him, so the error was harmful. We disagree.

A trial court=s decision to allow or to exclude evidence is reviewed for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (citing Marras v. State, 741 S.W.2d 395, 404 (Tex. Crim. App. 1987)). The decision will not be disturbed absent a clear abuse of discretion. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995). That is, we will reverse only if the trial court=s decision was clearly wrong and unjust.

In order for evidence to be admissible, it must be relevant, Tex. R. Evid. 402, and its probative value must not be substantially outweighed by the danger of unfair prejudice, Tex. R. Evid. 403. Generally, witnesses are limited in the opinions or inferences to which they may testify. Tex. R. Evid. 701. However, greater freedom is given to experts to testify as to those matters.

Testimony by experts is allowed under Tex. R. Evid. 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Thus, we first note, expert testimony must aid the trier of fact. Secondly, the expert must be qualified to testify about the subject. As we stated in Calderon v. State, 950 S.W.2d 121 (Tex. App.--El Paso 1997, no pet.), AIf the trial court finds that a witness possesses special knowledge or expertise based on training, education, or experience that will aid the trier of fact, it may qualify the witness as an expert.@ Id. at 128.

Here, because consent was at issue, statements regarding Scooter=s emotional state and Harper=s application of Rape Trauma Syndrome to Scooter were relevant. See Brown v. State, 757 S.W.2d 739, 740 (Tex. Crim. App. 1988); id. at 743 (McCormick, J. concurring). Appellant does not complain on appeal that the first inquiry above was not satisfied. Instead, he complains of the second.

Appellant=s argument here is reflective of the argument at trial, which relied on classification of Harper as a scientific expert. He argues, for instance, that Harper offered no testimony as to the underlying scientific theory or technique surrounding Rape Trauma Syndrome. Moreover, he points to Harper=s lack of a specialized degree as a medical professional or professional counselor as evidence that she was unqualified to apply the principles of Rape Trauma Syndrome or to testify about it.

First, we note that there is nothing that indicates that an expert will not be qualified if he or she lacks formal education in the subject matter. To the contrary, Rule 702 allows an expert to be qualified through other means--such as by knowledge, skill, experience, or training. The Court of Criminal Appeals noted in Holloway v. State, 613 S.W.2d 497 (Tex. Crim. App. 1981):

Merely that the witness has professional credentials or occupational status in a calling which relates to the matter in question is insufficient to qualify him. Rather, it must be shown that he possesses special knowledge upon the specific matter about which his expertise is sought. . . . The special knowledge which qualifies a witness to give an expert opinion may be derived entirely from a study of technical works, or specialized education, or practical experience or varying combinations thereof; what is determinative is that his answers indicate to the trial court that he possesses knowledge which will assist the jury in making inferences regarding fact issues more effectively than the jury could do so unaided.

Id. at 501 (footnotes omitted); see also Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) (A>The special knowledge which qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things.=@) (quoting Penry, 903 S.W.2d at 762); Roise v. State, 7 S.W.3d 225, 234 (Tex. App.--Austin 1999, pet. ref=d) (stating that a degree alone is insufficient to qualify a witness as an expert but that there must be an inquiry into actual qualification).

The burden to prove the admissibility of an expert=s opinion lies initially with the party offering such evidence. Holloway, 613 S.W.2d at 501. In the present case, we believe that Harper was qualified to testify about Rape Trauma Syndrome. As she stated during voir dire, she had been employed with the Center for three years and had been a volunteer at the Lubbock Rape Crisis Center for a year prior to that. She had received specialized training regarding rape trauma, and she detailed the courses she had taken. In addition, Harper had taught classes on rape trauma to law enforcement.

Furthermore, we believe that the State was offering Harper=s testimony for nonscientific--or Asoft science@ purposes. See Weatherred v. State, 15 S.W.3d 540, 542 n.5 (Tex. Crim. App. 2000) (distinguishing between Ahard@ and Asoft@ sciences, the latter of which are usually thought to include the fields of psychology, economics, political science, anthropology, and sociology). Defense counsel=s objection is, at bottom, one aimed at scientific evidence. Kelly, 824 S.W.2d at 573 (listing nonexclusive factors to determine reliability of scientific evidence).

The distinction between the tests for scientific and nonscientific expert testimony was discussed in Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). In that case, the Court of Criminal Appeals applied the standards it set forth regarding the admissibility of scientific expert testimony in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), to nonscientific expert testimony. The Court suggested that some hard science methods of validation, such as assessing the potential rate of error, might be inappropriate for testing the reliability of fields of expertise outside the hard sciences and therefore stated that when addressing fields of study aside from the hard sciences, the Kelly reliability standards would be applied with less rigor. Nenno, 970 S.W.2d at 561, 562. It modified the Kelly test and then stated that the appropriate questions as: (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. Id. at 561.

Appellant concedes, in his alternative argument, that Harper=s testimony may be viewed against the soft science reliability test. But appellant then argues that Harper=s testimony should have been excluded under the soft science analysis set forth in Nenno. He argues that nothing in the record established that Rape Trauma Syndrome was legitimate. He also argues that the scope of Harper=s testimony, relative to her qualifications, was Aunbounded.@ He believes that Ait cannot be established that Harper relied upon or utilized the principles involved in this field.@ Appellant also argues that because the principles of the study of Rape Trauma Syndrome were never identified, Harper=s testimony was improper under Nenno.

We believe that appellant waived complaint that Harper=s testimony did not satisfy the Nenno requirements. Although counsel lodged an objection after his questioning of the witness at voir dire and also requested a running objection, he did not request an objection to the witness and the testimony based on the Nenno factors. Nor can his objection be reasonably construed as such. Error was not preserved. See Tex. R. App. P. 33.1.

Moreover, even were error properly preserved, we believe the factors set forth in Nenno were satisfied. The trial court judge based his decision on the legitimacy of Rape Trauma Syndrome on the argument that it is Apretty mainstream stuff.@ And there is evidence that Rape Trauma Syndrome has been relied on by other courts. See, e.g., Borg-Warner Protective Servs. Corp. v. Flores, 955 S.W.2d 861, 865 (Tex. App.--Corpus Christi 1997, no pet.) (listing testimony that a victim suffered from Rape Trauma Syndrome as evidence presented at trial); Key v. State, 765 S.W.2d 848, 850 (Tex. App.--Dallas 1989, pet. ref=d) (citing article regarding Rape Trauma Syndrome); Brown v. State, 757 S.W.2d 739, 743 (Tex. Crim. App. 1988) (McCormick, J. concurring) (citing articles regarding Rape Trauma Syndrome and stating that evidence of a victim=s emotional and psychological state after an incident tends to buttress the victim=s version of the sexual assault).

Harper was then allowed to detail the four stages of the syndrome both during voir dire and in front of the jury. She had worked closely with Scooter, providing counseling and meeting with her on over twenty different occasions since the incident occurred. Harper stated that based on her experience and training, Scooter exhibited signs consistent with a person suffering from the syndrome and that she was a Atextbook case.@

We believe that the trial court could reasonably have found Harper qualified as an expert. The trial court did not act arbitrarily or unreasonably in allowing Harper to testify as an expert. The State adequately established her knowledge of Rape Trauma Syndrome. Additionally, Harper=s testimony was sufficiently tied to the facts of the case to aid the jury in resolving the dispute. Harper had worked with Scooter and, after detailing the symptoms of Rape Trauma Syndrome, she applied her knowledge in her assessment of Scooter. Thus, Harper=s testimony fell within the scope of her expertise.

The trial court did not abuse its discretion in allowing Harper=s testimony.

Conclusion

Accordingly, we overrule appellant=s issue and affirm the judgment of the trial court.

SUSAN LARSEN, Justice

September 5, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

^{^[1]}The State, in responding to the objection, cited to Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). We think the nature of counsel=s objection was sufficiently clear, even though the authority cited is civil.