Pedro A. Escamilla v. State ( 2010 )

DISSENTING AND CONCURRING OPINION
No. 04-09-00530-CR
Pedro A. ESCAMILLA,
Appellant
v.
The STATE of Texas,
Appellee
From the 406th Judicial District Court, Webb County, Texas
Trial Court No. 2008-CRS-777-D4
Honorable Oscar J. Hale, Jr., Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Dissenting and Concurring Opinion by: Steven C. Hilbig, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: October 13, 2010
Although I agree that the judgment of the trial court should be affirmed, I disagree with
the majority that the trial court erred in admitting the testimony of the State’s expert America
Garza. I believe the trial court did not abuse it discretion by admitting the testimony because the
State’s expert’s testimony meets the standards for reliability.
MAJORITY OPINION
Escamilla asserts the trial court abused its discretion in allowing Garza to testify that an
anal fissure found on D.A.E., and dilation of the anus within thirty seconds after retraction of the
child’s buttocks, are symptoms consistent with sexual abuse. He claims the State failed to
Dissenting and Concurring Opinion 04-09-00530-CR
demonstrate the validity of the underlying scientific theory, the technique applying the theory
was valid, and that the technique was properly applied by the witness. 1
The majority concludes the trial court abused its discretion in admitting the testimony
concerning the rapid dilation because the State failed to establish “some foundation” for the
reliability of Garza’s testimony that a rapid dilation was consistent with sexual abuse. Majority
opinion at __. The majority appears to ground its decision on Garza’s failure to adequately
explain the reasoning or methodology used to form her opinion. Majority opinion at __.
Although the majority acknowledges Garza testified her opinion was based on the works of Dr.
Kellogg and Dr. McCann, it attaches significance to the fact that Garza could not name a specific
article or study produced by Dr. Kellogg, or that when referencing an article by Dr. McCann that
appeared in Family Medicine, Garza could only state it “probably” was published in 2008. I
disagree with the majority’s analysis of Garza’s testimony.
GARZA’S TESTIMONY
As related by the majority, D.A.E. made an outcry to her mother that she was sexually
abused by Escamilla. D.A.E. was examined by Garza, a sexual assault nurse examiner
(“SANE”), as part of the investigation into D.A.E.’s complaint. The State called Garza to testify,
and Escamilla objected on the grounds she was not qualified and her testimony lacked a reliable
basis. A hearing outside the jury’s presence took place to determine Garza’s qualifications and
the reliability of her testimony.
At the hearing, Garza testified she has been licensed by the State of Texas as a registered
nurse since 2004, and has been certified as a SANE nurse since 2007. She explained that a
SANE nurse receives special training to “perform medical examinations on sexual assault
1
Escamilla provides argument only as to the dilation issue and does not present any argument as to the testimony
regarding the fissure. Although not directly addressed by the majority, it appears the majority rejects Escamilla’s
complaint about the testimony concerning the fissure due to his failure to properly brief this complaint.
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Dissenting and Concurring Opinion 04-09-00530-CR
patients and to demonstrate what come out [sic] from medical forensic examinations.” Garza
testified her training as a SANE nurse included sixty-five hours of classes conducted by the
Office of the Attorney General where she was taught to differentiate between normal and
abnormal findings relating to sexual abuse. As part of her training, she also participated in
twenty-four hours of physical examinations with a gynecologist or family nurse practitioner
involving pelvic examinations, and twenty-four hours of examinations involving children. Garza
also testified she participates in peer reviews with other SANE nurses, which she described as
“looking at slides and exchanging information; you know, looking at the normal from the
abnormals, and keeping up.” Garza explained that every two years she renews her SANE
certification, which requires her to complete eight hours of continuing education regarding “a
pediatric sexual assault survivor, [and] eight hours of pediatric sexual assault.” She is also
required to submit ten child sexual assault cases and six adult cases for peer review. Garza
estimated that she has conducted “close to 200” SANE exams, of which sixty percent were on
children.
Garza testified the protocols accepted in the “scientific community” for conducting a
SANE exam include taking a history of the victim, a “head to toe” physical assessment checking
for trauma, and a detailed examination of the vaginal and anal area. During the exam Garza
looks for bruises and other marks on the body. Garza testified she conducted an examination on
D.A.E. using these protocols and in her opinion D.A.E. exhibited physical symptoms consistent
with sexual abuse.
When questioned regarding her reasoning or methodology used in reaching her
conclusion, Garza explained it was based in part on the rapid dilation of the anus. Garza testified
she was familiar with and relied upon Dr. McCann’s studies concerning anal dilation as it related
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to sexual abuse. Garza testified Dr. McCann is a practicing physician who performs medical
diagnosis of sexual abuse in children. Garza stated she learned of his work from an article
published in Family Medicine, which was probably published in 2008. Garza testified that based
on Dr. McCann’s studies, sexual abuse is indicated when the victim’s anus dilates more than two
centimeters in less than thirty seconds, and there is no stool present and no history of
constipation. All three criteria were present when she examined D.A.E.
When questioned whether she knew of any studies that confirmed sexual abuse was
indicated when the anus dilated rapidly, Garza responded:
Any studies? I guess — this is how all the SANE nurses practice, you know, based on
the research and articles from doctors. And — pretty much, when I go to peer reviews,
you know, that’s what they stand [sic] — you know, base themselves on.
When challenged as to why she knew a rapid dilation was not normal, Garza responded that it
was based of work done by Dr. McCann and Joyce Adams and her own observations. Garza also
gave a detailed explanation, complete with a drawing, as to how the anus is stimulated to dilate
during the examination and stated that a rapid dilation is not normal. When asked if she knew
the number of children that comprised the McCann study, Garza stated that she could not recall
and agreed the number of children tested would be important in validating the theory. However,
she also stated her observations were based on “close to 200” anal examinations, and rapid
dilation occurred in less than 20 of the examinations. Garza acknowledged that rapid anal
dilation could be caused by other medical issues. She further testified that her work had been
subjected to peer review. When questioned about the “potential error rate,” Garza acknowledged
that David Chadwick had conducted some studies on the matter, but she did not provide any
number as to the error rate. Garza also testified studies indicate that eighty percent “of the time”
no trauma will be found. When questioned whether the “technique or theory” used to form the
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Dissenting and Concurring Opinion 04-09-00530-CR
diagnosis of D.A.E. was generally accepted in the medical community, Garza responded
“absolutely.” She testified she based her answer on the training she received through the Office
of the Attorney General.
At the conclusion of the testimony, Escamilla argued that Garza was not qualified to offer
an opinion “in the area of medical diagnosis of sexual abuse,” and the State failed to prove the
underlying scientific theory was valid. The trial court overruled the objection and found that
Garza was qualified as an expert to testify about sexual assault examinations, and her opinion
was sufficiently reliable and relevant to assist the jury.
When testifying before the jury, Garza repeated most of her testimony from the earlier
hearing. Garza also testified that as to the trauma noted during the anogenital examination,
Garza found that D.A.E. had a small bruise to the left side of her anus, mild redness on the labia
minor, a healed fissure at the nine o’clock position on the anus, and the anus dilated to two
centimeters within seven seconds without the presence of stool. Garza stated that the location of
the fissure was not consistent with it being the result of normal causes, such as the passing of a
large stool or constipation. Garza testified the direction of the fissure was from the outside
toward the inside, and the direction of the fissure was significant because if the fissure was
caused by natural causes, the direction of the injury would be from the inside toward the outside.
Garza stated the fissure could have been caused by forcible penetration of the anus when it was
dry, but agreed it could have been resulted from other causes. Garza also testified that the anus
takes no less than thirty seconds to begin dilation in the presence of stool and D.A.E.’s anus
dilated two centimeters in seven seconds. She explained a normal anus, when being retracted
during an examination, will take a minute to begin dilation. Garza also stated the size of the
dilation was significant because the normal anus does not dilate as wide open as D.A.E anus
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Dissenting and Concurring Opinion 04-09-00530-CR
during the examination. Garza testified that the rapid dilation and size of the dilation was
consistent with being a result of sexual abuse. In summing up the nurse’s opinion, the prosecutor
asked:
Q. Now, in this situation, you have a case where there’s a bruise to the left
side of the anus. You have a tear, a fissure — a healed fissure at nine
o’clock. You have dilation, and you have it within — at 7 seconds, and
you have the size of the dilation at 2 centimeters. Based on all that, were
you able to render an opinion?
A. (Nodded head up and down)
...
Q. And what is your opinion in regards to your findings?
A. Due to the findings, they are consistent with sexual abuse.
On cross-examination, Garza testified she based this opinion on the literature prepared by
Dr. Nancy D. Kellogg, a doctor at the University of Texas at San Antonio, and studies by Dr.
McCann. Garza acknowledged that Dr. Kellogg’s work indicated that other causes of rapid
dilation should be considered when evaluating children with anogenital symptoms. Garza also
testified that the dilation alone did not mean, nor was she testifying, that D.A.E. was “definitely
sexually abused.” She also stated there were numerous other causes other than sexual abuse that
could have produced the rapid dilation. She also acknowledged Dr. McCann’s article states that
physical findings often attributed to sexual abuse are present in non-abused children.
RELIABILITY STANDARD
We review a judge’s decision to admit expert testimony under an abuse of discretion
standard. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). The trial court’s
decision will be affirmed unless it is outside the zone of reasonable disagreement. Gallo v. State,
239 S.W.3d 757, 765 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2872 (2008). A reviewing
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court must give proper deference to the trial judge’s ruling on the admissibility of an expert
witness’s testimony. Vela v. State, 209 S.W.3d 128, 136 (Tex. Crim. App. 2006).
The proponent of expert testimony must demonstrate that the expert is qualified to render
the opinion, the opinion is reliable, and the opinion is relevant to the determination of an issue in
the case. Id. at 131. In determining reliability, the proponent must demonstrate the validity of
the underlying scientific theory, the validity of the technique applying the theory, and the
technique was properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573
(Tex. Crim. App. 1992). In Kelly the court listed some factors that could affect the trial court’s
decision include, but are not limited to: (1) the extent to which the underlying scientific theory
and technique are accepted as valid by the relevant scientific community, if such a community
can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature
supporting or rejecting the underlying scientific theory and 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 scientific theory and technique can be explained to the
court; and (7) the experience and skill of the person(s) who applied the technique on the occasion
in question. Id. However, the Court of Criminal Appeals in Vela recognized that:
[E]ven if the traditional Kelly reliability factors do not perfectly apply to
particular testimony, the proponent is not excused from proving its reliability. As
the Texas Supreme Court recognized, “The court in discharging its duty as
gatekeeper must determine how the reliability of particular testimony is to be
assessed.” 2 The reliability inquiry is, thus, a flexible one. In some cases, the
reliability of scientific knowledge will be at issue; in others, “the relevant
reliability concerns may focus upon personal knowledge or experience.” 3 But the
proponent must establish some foundation for the reliability of an expert's
2
(quoting Gammill v. Jack Williams Chevrolet, Inc, 972 S.W.2d 713, 715 (Tex. 1988)).
3
(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)).
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Dissenting and Concurring Opinion 04-09-00530-CR
opinion. “Experience alone may provide a sufficient basis for an expert's
testimony in some cases, but it cannot do so in every case.” 4
Vela, 209 S.W.3d at 134. The trial court should consider the “fit between the expert’s testimony
and the facts of the case. Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996).
Additionally, appellate courts may take judicial notice of other appellate opinions concerning a
specific scientific theory in evaluating a trial judge’s gatekeeping decision. Hernandez v. State,
116 S.W.3d 26, 31 (Tex. Crim. App. 2003).
ANALYSIS
It was within the trial court’s discretion to determine Garza’s testimony had a reliable
basis. Garza provided “some foundation” for the theory linking rapid dilation with possible
sexual abuse by testifying about her experience and others factors outlined in Kelly. The basis of
Garza’s opinion was her training, her experience, and published studies and articles. Garza
testified she was taught that rapid dilation was an indication of sexual abuse. She stated the
theory was accepted in the community involved in the detection of sexual abuse when she
discussed her training by the Office of the Attorney General and her peer reviews with other
experts including Dr. Kellogg. She also testified that the phenomenon was noted by several
authors including Dr. Kellogg and Dr. McCann. Garza also testified she had conducted nearly
200 anal examinations and found rapid dilation in less than twenty cases. This means a rapid
dilation occurred in roughly ten percent of her examinations. Accordingly, her testimony that a
rapid dilation is not “normal” was based not only on her training and reading of literature in the
field, but also on her own experience.
The majority takes issue with the fact that Garza could not identify the names of specific
articles written by Dr. McCann and Dr. Kellogg, and could not identify the potential rate of error
4
(quoting Gammill, 972 S.W.2d at 726.)
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for the methodology. Although these are recognized factors for determining reliability, there is
no requirement that every expert’s testimony be judged on all seven of the Kelly criteria. As
discussed above, the reliability inquiry is flexible and the gatekeeper “must determine how the
reliability of particular testimony is to be assessed.” Vela, 209 S.W.3d at 134.
Testimony regarding anal dilation in sexual abuse cases is certainly not novel or new.
This court, and many of our sister courts, have referenced rapid dilation of the anus in discussion
of the legal or factual sufficiency of a conviction. See Smith v. State, Nos. 07-09-0009-CR & 07-
09-0010-CR, 2010 WL 2010914, at *3 (Tex. App.—Amarillo May 20, 2010, pet. ref’d) (mem.
op., not designated for publication) (immediate dilation of victim’s anus cited to support finding
of factual sufficiency of the evidence in indecency with child case); Kachoian v. State, No. 04-
09-00250-CR, 2010 WL 1905002, at *4 (Tex. App.—San Antonio May 12, 2010, no pet.) (mem.
op., not designated for publication) (rapid dilation used to support finding of factual sufficiency
in aggravated sexual assault case); Padilla v. State, 278 S.W.3d 98, 105 (Tex. App.—Texarkana
2009, pet. ref’d) (“rapid dilation” of the victim’s anus cited in support of finding evidence legally
sufficient in aggravated sexual assault case); Cramer v. State, No. 12-08-00061-CR, 2009 WL
4264331, at *4 (Tex. App.—Tyler Nov. 30, 2009, pet. stricken) (mem. op., not designated for
publication) (“abnormal” dilation of victim’s anus cited in support of legal sufficiency of
evidence in aggravated sexual assault case); In re C.B., No. 05-05-00064-CV, 2008 WL 327226,
at *2 (Tex. App.—Dallas Feb. 7, 2008, no pet.) (mem. op., not designated for publication) (in
prosecution of juvenile for aggravated sexual assault, “immediate” dilation of the complainant’s
anus cited to support finding of legal and factual sufficiency); Steinke v. State, No. 11-04-00072-
CR, 2005 WL 3008417, at *4 (Tex. App.—Eastland Nov. 10, 2005, pet. ref’d) (mem. op., not
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designated for publication) (dilation of victim’s anus within five seconds cited to support finding
of factual sufficiency of the evidence in aggravated sexual assault case).
Furthermore, in the context of an expert’s qualifications, the Court of Criminal Appeals
has applied a sliding scale when addressing the issue of whether an expert is qualified to testify
on certain topics. See Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006). The court
has stated that an expert’s qualifications are scrutinized less if (1) the area of expertise is less
complex and closer to the common understanding of the jury; (2) the expert’s opinion is less
conclusive; and (3) the testimony is less dispositive of the disputed issues. Id. To illustrate this
point, the court in Rodgers contrasted expert testimony concerning DNA profiling with expert
testimony concerning latent-print comparisons such as shoe, tire, or fingerprint. The court noted
that DNA testimony is scientifically more complex and removed from the common
understanding of the jury, and is often more precise and thus conclusive than latent-print
evidence. The court concluded from this comparison that the expert who offered DNA
testimony should possess a higher degree of expertise or greater qualifications than an expert
who testifies that a particular shoe made the bloody footprint in the victim’s apartment. Id.
I believe the same reasoning should apply to the issue of reliability. Here, Garza simply
testified that the rapid dilation was consistent with the occurrence of sexual abuse, but she
acknowledged there were other medical conditions that could have caused the condition to occur.
Garza testified that the anus acted abnormally during the examination of D.A.E., but standing
alone, the rapid dilation did not conclusively establish that sexual abuse had occurred. This
testimony is more akin to the latent print example in Rodgers than the DNA testimony. Further,
it is not beyond the ken of the average person that trauma to a body part may cause the body part
to react different than it would normally, i.e. react “abnormally.” In essence, Garza testified that
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the anus acted abnormally during the examination of D.A.E. Given Garza’s testimony that she
was taught this reaction was consistent with possible sexual abuse, other SANE nurses and
experts expressed the same view during peer reviews, literature describing the phenomenon
associated with sexual abuse had been published and the theory was accepted within the medical
community, and this and other appellate courts have relied on this theory, there was some
foundation to support the trial court’s determination that the testimony was reliable. The trial
court did not abuse its discretion by admitting the testimony of Garza because there was some
foundation for her expert opinion.
Steven C. Hilbig, Justice
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