Dedra Lynn Crider v. State ( 2018 )

Opinion filed March 30, 2018
In The
Eleventh Court of Appeals
__________
No. 11-16-00302-CR
__________
DEDRA LYNN CRIDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR23427
MEMORANDUM OPINION
The trial court found Appellant guilty of the first-degree felony offense of
injury to a child1 and assessed punishment at confinement for twenty years. On
appeal, Appellant presents three issues. We affirm.
I. The Charged Offense
The grand jury indicted Appellant for the offense of injury to a child. The
grand jury alleged in its indictment that Appellant “intentionally or knowingly
cause[d] serious bodily injury to [T.G.], a child of [fourteen] years of age or younger,
1
TEX. PENAL CODE ANN. § 22.04 (West Supp. 2017).
by” shaking, throwing, or causing blunt force trauma. A person commits the offense
of injury to a child if he intentionally or knowingly, by act or omission, causes
serious bodily injury to a person of fourteen years of age or younger. PENAL
§ 22.04(a)(1), (c)(1).
II. Evidence at Trial
T.G., the victim in this case, is Appellant’s son. At trial, T.G. was described
as “medically-fragile.” He was born in March 2014 with “DiGeorge syndrome.” He
also had a congenital heart defect, which required heart surgery three days after he
was born. Because of his heart surgery, T.G. did not live with his parents at their
home in Brownwood until he was about three weeks old. T.G. was taken to the
emergency room for breathing issues on two occasions: once on May 7, 2014, and
once on August 21, 2014.
A. Emergency medical and fire services respond to distress call at
Appellant’s home.
Upon arrival at Appellant’s home on the morning of August 21, EMS
observed T.G., Appellant, and a bystander outside the home. T.G., who was four
and one-half months old at the time, lay on a bench, “unresponsive” and “pale,” and
his limbs were “flaccid off to the side.” EMS transported T.G. to the emergency
room at Brownwood Regional Hospital. EMS personnel administered oxygen to
him en route to the hospital, and as a result, his respiratory rate increased and he
became more responsive.
T.G. had suffered from a seizure and had stopped breathing at Appellant’s
home. A CT scan revealed that T.G. had a “mixed subdural hematoma” on the left
side of his brain, which T.G.’s pediatrician described as “very large.” The CT scan
of T.G.’s brain also showed both “old” and “new” blood. The old blood suggested
that a previous incident had caused bleeding, although doctors who testified at trial
could not specify an exact date when the bleeding would have occurred. Because of
2
T.G.’s need for a higher level of care, he was airlifted by helicopter to University
Hospital in San Antonio.
At University Hospital, an MRI revealed that blood had accumulated in T.G.’s
spinal cord, although there was nothing on the vertebra to indicate direct injury.
Medical personnel did not find any fractures on T.G.’s skull or any bruises on his
body, except a small bruise on his foot.2 T.G. also had no bumps, abrasions, or
lacerations. An eye examination revealed that T.G. had numerous retinal
hemorrhages in both eyes. During the two or three months that he was hospitalized
in San Antonio, T.G. developed amblyopia3 and began losing vision in one of his
eyes, but it was successfully treated.
B. Police interview Appellant about T.G.’s injuries.
After T.G.’s injuries were discovered, investigators from Child Protective
Services, the Department of Public Safety, and Brownwood Police Department
interviewed Appellant about the August 21 incident. During the interviews,
Appellant admitted that she was alone with T.G. that morning and that T.G.’s father,
Bryan Gleason, woke up around 6:00 a.m. and went to work. Appellant also
explained to two investigators that, the night before, T.G. had woken up several
times crying.
Appellant explained that, on the morning of August 21, she attempted to give
T.G. his medicine around 8:00 a.m., but when she tried to wake him up, T.G. would
not respond. Appellant said that, when she tried to put the medicine in T.G.’s mouth,
the medicine just “rolled out” or “drained out” of his mouth. Appellant explained
that T.G.’s breathing was labored, that he was very stiff, and that his eyes were half-
open and glazed over. Appellant said she panicked and called 9-1-1.
2
Testimony indicated that the bruise on his foot was likely caused by an IV.
3
Amblyopia is commonly referred to as “lazy eye.”
3
To one investigator, Appellant gave conflicting statements. To another
investigator, she had no explanation for what had happened. To other investigators,
she said that, sometime prior to the incident, she had tripped over a cat and hit T.G.’s
head on a door. Investigators who went to Appellant’s home, however, saw no
evidence of cats living there, but they did notice that Appellant had a dog. Appellant
also said that T.G. could have been suffering from a seizure.
C. The State alleged that T.G. suffered from “Abusive Head Trauma.”4
The State presented three experts at trial who opined that T.G.’s injuries were
the result of “acceleration-deceleration force[s]” and “nonaccidental trauma.” All
three experts considered T.G.’s preexisting medical conditions when they formed
their opinions.
Kathleen Buckley, the State’s expert registered nurse, testified that T.G.’s
injuries were non-accidental. First, Buckley testified that, at T.G.’s age, he would
not have been ambulatory enough to self inflict a subdural hemorrhage because it
takes “significant force to cause bleeding in the brain of a child who is not
ambulatory.” Second, Buckley testified that T.G. had no fractures and that no
fractures combined with hemorrhaging in the brain in a small child raises a concern
that there was a forceful “movement that caused the child’s brain to move back and
forth in the skull.” Third, Buckley testified that no history was provided that
explained T.G.’s hemorrhaging and that the absence of a history raises suspicions of
inflicted injury. Fourth, Buckley testified that T.G. had “a lot of retinal
hemorrhaging” and that, when retinal hemorrhaging is seen with brain hemorrhaging
in a patient, it “really puts the concern for abuse of inflicted trauma much higher.”
Dr. Scot Richard Morris, the State’s expert medical doctor and pediatrician,
testified that he was “[e]xtremely confident” T.G.’s injuries were caused by
4
Such trauma is also known as “shaken baby syndrome,” “nonaccidental head trauma,” or “inflicted
head trauma.”
4
acceleration and deceleration forces, specifically by “violent shaking.” Dr. Morris
testified that there are three major findings of non-accidental head trauma: (1) retinal
hemorrhages, (2) brain injury, and (3) subdural hemorrhages. If two of these
findings are present, “it is very likely to be nonaccidental head trauma.” Dr. Morris
testified that a majority of the children that he has seen in the past fifteen years, with
accidental head injuries, had a bump or an abrasion or even a laceration and that
none of them had subdural hemorrhages, except for two victims of shaken baby
syndrome.
Dr. Frank Scribbick III, the State’s expert ophthalmologist, testified he was
“pretty comfortable” stating that T.G.’s injuries were caused by non-accidental
trauma. Dr. Scribbick testified that retinal hemorrhages are “very highly suggestive
of nonaccidental trauma.” Dr. Scribbick thought that the hemorrhaging in T.G.’s
eyes was not consistent with just a simple accident because of the amount of
hemorrhaging and the presence of large preretinal hemorrhages. According to Dr.
Scribbick, in cases of children with accidental trauma, such as from a car accident
or falling out of a tree, ninety-nine percent of the time there is no retinal
hemorrhaging.
III. Analysis
In her first and second issues, Appellant argues that the State’s evidence was
legally and factually insufficient to prove that Appellant committed the offense of
injury to a child. Appellant argues in her third issue that the trial court abused its
discretion by admitting unreliable expert testimony on abusive head trauma.
A. Issues One & Two: The State adduced sufficient evidence to prove
beyond a reasonable doubt that Appellant committed the offense of
injury to a child.
Appellant argues that the State’s evidence is legally and factually insufficient
to prove identity, i.e., that she was the person who committed the offense of injury
to a child. Appellant admits that the State’s evidence raises a suspicion that she
5
committed the offense, but she argues that the evidence leaves open the possibility
that Gleason caused the injuries to T.G. before he left for work on the morning of
August 21. We review a challenge to the sufficiency of the evidence, whether
denominated as a legal or as a factual sufficiency claim, under the standard set forth
in Jackson v. Virginia, 443 U.S. 307, 318 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under this standard, we review all of the evidence in the
light most favorable to the verdict and decide whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319.
Evidence is insufficient under this standard in four circumstances: (1) the
record contains no evidence probative of an element of the offense; (2) the record
contains a mere “modicum” of evidence probative of an element of the offense;
(3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged
do not constitute the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573
(Tex. App.—Eastland 2012, no pet.) (citing Jackson, 443 U.S. at 314, 318 n.11,
320). As we explain below, we conclude that the trial court could have found beyond
a reasonable doubt that Appellant committed the offense of injury to a child.
1. The factfinder could have concluded that Appellant inflicted
T.G.’s injuries.
Appellant told DPS Agent Jerry Lesikar that on the morning of August 21,
Gleason woke up around 6:00 a.m. and went to work. Although the exact time that
Gleason left was not established at trial, Gleason’s boss testified that Gleason
normally started work at 6:30 a.m. Appellant told investigators that she discovered
T.G.’s symptoms around 8:00 a.m. when she tried to give T.G. his medicine. EMS
arrived at Appellant’s residence around 8:04 a.m. Upon arrival, EMS observed that
T.G. was unresponsive, and on the drive to the hospital, T.G. exhibited seizure-like
6
symptoms. Dr. Morris testified that T.G. could have begun to manifest symptoms
of a seizure “within an hour” of being shaken. Based on Dr. Morris’s testimony,
Appellant claims that Gleason could have shaken T.G. before he left for work.
Appellant claims that, because T.G. exhibited symptoms by 8:00 a.m. and was in
critical condition by 8:04 a.m., it was likely that T.G. exhibited symptoms before
8:00 a.m. Appellant claims that this leaves open the possibility that Gleason shook
T.G. before Gleason left for work.
However, Dr. Morris also testified that T.G. could have manifested symptoms
of a seizure “immediately” after being shaken. Buckley testified that, when a person
suffers from a subdural hemorrhage, “your change in level of consciousness is
immediate” and “at the time of the injury.” Based on the State’s timeline for T.G.’s
injuries, which suggested T.G.’s injuries occurred between 7:00 a.m. and 8:00 a.m.,
the trial court could have concluded that T.G.’s injuries occurred at a time while T.G.
was alone with Appellant and Gleason was at work. Evidence that a defendant was
alone with a child when the injury occurred provides an inference that the defendant
caused the injuries sustained. See Nadal v. State, 348 S.W.3d 304, 315 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d); Flores v. State, 102 S.W.3d 328, 335–36 (Tex.
App.—Eastland 2003, pet. ref’d). Therefore, the trial court could have reasonably
found beyond a reasonable doubt that Appellant was the one who caused T.G.’s
injuries. Martin v. State, 246 S.W.3d 246, 262 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (concluding expert testimony regarding the time frame of an infant’s
death was sufficient to establish identity of the perpetrator).
Additionally, other evidence supports the conclusion that Appellant was the
perpetrator. In particular, EMS personnel who arrived at Appellant’s home on the
morning of August 21 noted how calm Appellant was; she appeared not “too
concerned” about T.G., which was “really awkward.” During the subsequent
interviews, Appellant could not consistently describe the events that led to
7
T.G.’s injuries, and she gave different explanations for those injuries. For example,
she mentioned tripping over a cat, but no one saw evidence of a cat in her home.
Although the evidence provided by the State is circumstantial, circumstantial
evidence can be used to establish the identity of the perpetrator of a criminal offense.
Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). This court does not
“reevaluate the weight and credibility of the record evidence and thereby substitute
our own judgment for that of the factfinder.” Leroy v. State, 512 S.W.3d 540, 543
(Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007)). Because the trial court could have found beyond
a reasonable doubt that Appellant, and not Gleason, was the perpetrator, we now
review the evidence to determine if the trial court could have found beyond a
reasonable doubt that Appellant intentionally or knowingly caused T.G. serious
bodily injury.
2. The factfinder could have concluded that Appellant
intentionally or knowingly caused T.G. serious bodily injury.
“‘Serious bodily injury’ means bodily injury that creates a substantial risk of
death or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” PENAL § 1.07(a)(46).
Injury to a child is a result-oriented offense that requires a mental state that relates
not to the specific conduct but to the result of that conduct. Alvarado v. State, 704
S.W.2d 36, 39 (Tex. Crim. App. 1985). A person acts intentionally, or with intent,
with respect to a result of his conduct when it is his conscious objective or desire to
cause the result. PENAL § 6.03(a) (West 2011). A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is aware that his conduct
is reasonably certain to cause the result. Id. § 6.03(b).
The State’s three experts at trial testified that T.G.’s injuries were the result
of “acceleration-deceleration force[s]” and “nonaccidental trauma.” Buckley and
8
Dr. Morris both testified that T.G.’s brain hemorrhaging was the type of injury that
created a substantial risk of death to T.G. Intent of the accused “may . . . be inferred
from the extent of the injuries.” Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.
App. 1995). Dr. Morris testified that, to cause a subdural hemorrhage and severe
retinal hemorrhaging, “you would need a high-velocity motor vehicle crash or a fall
from three stories or more.” Testimony from medical experts that “several
slammings,” “significant force,” and a “great deal of force” were used to cause a
child’s injuries has been held to be sufficient evidence to prove intent to cause
serious bodily injury. Morales v. State, 828 S.W.2d 261, 265 (Tex. App.—Amarillo
1992), aff’d, 853 S.W.2d 583 (Tex. Crim. App. 1993). Although Appellant told
some investigators that she tripped over a cat and T.G.’s head hit a door,
Dr. Scribbick testified that the retinal hemorrhaging he saw in T.G. would not be
consistent with that story.
Moreover, Appellant was the only person caring for T.G. on May 7 when he
was taken to the emergency room for breathing issues. Dr. Morris testified that no
cranial imaging was done that day, but he agreed at trial that he would have
conducted a CT scan on May 7 if he had known what was going to happen on August
21. Dr. Morris suspected that T.G. had an injury to his brain that was causing issues
with his breathing on May 7. Buckley also testified that the presence of “old” blood
in T.G.’s brain indicated that T.G. had suffered a prior injury to his brain. Buckley
could not say definitely that the event causing the “old” blood occurred on May 7,
but she agreed that translation forces were a “likely cause” because no history was
provided for why T.G. was in the emergency room that day. In addition, Appellant
told investigators that T.G.’s symptoms on May 7 were identical and “very similar
in appearance” to his symptoms on August 21. Intent or knowledge may be inferred
based on the occurrence of a previous similar injury. See Morgan v. State, 692
S.W.2d 877, 881–82 (Tex. Crim. App. 1985). The trial court could have reasonably
9
inferred that Appellant caused T.G.’s injuries on May 7 and knowingly repeated the
harm to T.G. on August 21.
Viewing the evidence in the light most favorable to the verdict, we conclude
that the trial court could have found beyond a reasonable doubt that Appellant
intentionally or knowingly caused serious bodily harm to T.G. by shaking, throwing,
or inflicting blunt force trauma. See PENAL § 22.04. Despite the circumstantial
nature of the State’s evidence, circumstantial evidence can be sufficient to establish
guilt. Hooper v. State, 214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007); see Martin,
246 S.W.3d at 261 (“Direct evidence of the elements of the offense is not required.”
(citing Hooper, 214 S.W.3d at 14)). We overrule Appellant’s first and second issues.
B. Issue Three: Appellant failed to preserve error on her reliability
objections to expert witness testimony on abusive head trauma.
In her third issue, Appellant argues that the trial court abused its discretion
when it allowed expert testimony on abusive head trauma. Appellant claims there
is general disagreement and retraction in the medical community that a certain
constellation of symptoms is caused exclusively by child abuse. She complains that
the experts’ diagnosis in this case was unreliable because it was based solely on a
finding of subdural hematoma and retinal hemorrhaging, with no evidence of
external injury. She further claims that the experts’ diagnosis was unreliable in light
of T.G.’s preexisting injuries. The State argues that Appellant has failed to preserve
this issue for our review. We agree with the State.
To preserve an error for appellate review, a defendant must demonstrate that
(1) she made a timely and specific request, objection, or motion and (2) the trial
judge ruled on it. TEX. R. APP. P. 33.1; Geuder v. State, 115 S.W.3d 11, 13 (Tex.
Crim. App. 2003). With regard to experts, a party may object on three grounds:
(1) qualification, (2) reliability, and (3) relevance. Williams v. State, 531 S.W.3d
902, 920 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Vela v. State, 209
10
S.W.3d 128, 131 (Tex. Crim. App. 2006)). Qualification, reliability, and relevance
“raise distinct questions and issues, and an objection based on one of these [grounds]
does not preserve error as to another.” Shaw v. State, 329 S.W.3d 645, 655 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d); see Vela, 209 S.W.3d at 131
(“Qualification is distinct from reliability and relevance and, therefore, should be
evaluated independently.”). Appellant did not timely object to the reliability of
abusive head trauma as a science or the reliability of the experts’ opinions in light of
T.G.’s preexisting injuries.5 As a result, Appellant has not preserved her reliability
complaint for appellate review.
1. Appellant objected to Kathleen Buckley’s qualifications and
the relevance of her opinion but not reliability.
Appellant asserted various objections during Buckley’s direct examination,
which, Appellant claims on appeal, raised the issue of reliability. Appellant first
objected to Buckley’s opinion when she testified that T.G.’s injuries were the result
of acceleration and deceleration forces. Appellant’s counsel objected on the grounds
that “[h]er opinion is not relevant” and that “[t]here hasn’t been enough testimony
as to the predicate to show that she is an expert in this abusive head trauma.” The
first part of Appellant’s objection—on the basis of “relevance”—is clearly an
objection to the relevance of Buckley’s opinion. See TEX. R. EVID. 401, 702. The
second part of Appellant’s objection challenged the predicate the State laid to
establish Buckley as an expert on abusive head trauma. An objection based on an
improper predicate must specify how the predicate is deficient. Scherl v. State, 7
S.W.3d 650, 652 (Tex. App.—Texarkana 1999, pet. ref’d). Here, Appellant’s
objection related to Buckley’s qualifications as an expert on abusive head trauma.
See TEX. R. EVID. 702 (“A witness who is qualified as an expert by knowledge, skill,
5
No Daubert hearing was held in this case. See Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579
(1993); see also Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).
11
experience, training, or education may testify in the form of an opinion or otherwise
. . . .”).
Next, Buckley testified about how the acceleration and deceleration forces she
was describing go outside the normal care and handling of a child. The State asked
what that force would look like, and Appellant objected that “she hasn’t given any
testimony to support that she has any knowledge of biomechanics that would have
to do with forces inside or outside the human body that would cause this.” Similar
to Appellant’s earlier objection, this was an objection to an improper predicate—
that Buckley did not provide testimony that she had any “knowledge” of
biomechanics. Because Appellant focused on Buckley’s knowledge as the
deficiency, it was a challenge to her qualifications. See TEX. R. EVID. 702.
As Buckley’s direct examination further progressed, Buckley was about to
give her opinion on whether T.G.’s injuries were the result of throwing, shaking, or
blunt force trauma, but before she could, Appellant’s counsel objected to her “being
an expert on shaken baby syndrome because she has not presented that she has the
knowledge of the science that counsel is trying to apply.” Counsel continued: “Sure,
she has experience, but that doesn’t reach the Daubert trilogy or its progeny or Kelly
as far as her expertise in this particular phenomenon, whether we call it abusive head
trauma, inflicted head trauma, or SBS.” We construe this as a qualification objection
because it focused on Buckley’s “knowledge” and “experience” as the basis for the
objection. See Vela, 209 S.W.3d at 133 (qualification inquiry should consider “the
‘fit’ between the subject matter at issue and the expert’s familiarity,” and “the
expert’s background must be tailored to the specific area of expertise in which the
expert desires to testify”). Additionally, the mere fact that Appellant objected on the
basis of Daubert and Kelly was not specific enough to make the trial court aware
that she was challenging the reliability of Buckley’s opinion or the reliability of
abusive head trauma. Scherl, 7 S.W.3d at 651–52 (holding that an objection that
12
“[t]here has been no showing of admissibility required by Rule 702 as required by
Kelly, Heartman [sic], and Dabner [sic]” was a general objection). The relevance6
and qualification objections above also are insufficient to preserve Appellant’s
reliability complaint on appeal. See Shaw, 329 S.W.3d at 656; see also Nations v.
State, 944 S.W.2d 795, 799 (Tex. App.—Austin 1997, pet. ref’d).
2. Appellant objected to Dr. Morris’s opinion based on an
improper predicate, his qualifications, and the relevance of
his opinion.
Appellant asserted numerous objections7 during Dr. Morris’s direct
examination. Appellant first objected to Dr. Morris’s opinion after he testified about
the forces required to cause T.G.’s injuries. Appellant objected that “[t]here is no
predicate laid to show that he has this knowledge as to the biophysics or anything as
to . . . what the effect of a three-story fall would do to a child.” Next, the attorney
for the State questioned Dr. Morris on whether he thought that shaking, throwing, or
causing blunt force trauma to T.G. could have caused his injuries, and Appellant
objected on the basis that “[t]his is speculation” and “[t]here is no foundation to . . .
support any answer to this question.” Third, Appellant objected immediately after
the State asked Dr. Morris what his opinion was on what caused T.G.’s injuries.
Appellant’s counsel stated, “I will object now, Judge, under 702” because “the
witness hasn’t provided the facts necessary to support the science that is supporting
his opinion as to what caused the injury.”
Appellant’s first objection to Dr. Morris’s opinion was one of improper
predicate that focused on Dr. Morris’s “knowledge” in biophysics as the basis for
the objection, which was a complaint about qualifications, not reliability. See TEX.
R. EVID. 702. An appellant’s argument on appeal must comport with his objection
6
Appellant asserted additional relevance objections, but none constituted a proper reliability
challenge.
7
Most of the objections constituted relevance objections, but none constituted a proper reliability
challenge.
13
in the trial court. Gibson v. State, No. PD-1043-16, 2017 WL 5166629, at *2 (Tex.
Crim. App. Nov. 8, 2017). Because the objection at trial and the argument on appeal
are not the same, Appellant failed to preserve this issue. Id.; see TEX. R. APP. P. 33.1.
In the second objection to Dr. Morris’s opinion, Appellant complained about
speculation and foundation. “In determining whether a complaint on appeal
comports with a complaint made at trial, we look to the context of the objection and
the shared understanding of the parties at the time.” Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012). We note that an “expert opinion is unreliable if it is
only ‘subjective belief or unsupported speculation.’” Dominguez v. State, 474
S.W.3d 688, 693 (Tex. App.—Eastland 2013, no pet.) (quoting Dauber, 509 U.S. at
590). However, nothing from the context of Appellant’s objection indicates that she
made a reliability challenge to abusive head trauma or to Dr. Morris’s opinion in
light of T.G.’s preexisting injuries. Appellant’s issue on appeal does not comport
with her objection in the trial court. See Dominguez, 474 S.W.3d at 700 (holding
that an objection based on “speculation” did not comport with a complaint on appeal
regarding expert testimony); see also Wolfe v. State, 509 S.W.3d 325, 328 (Tex.
Crim. App. 2017) (properly preserved reliability objection on abusive head trauma
where counsel argued that “we are challenging the underlying principle as unreliable
in the scientific community and not reliable in this case under Daubert and Kelly”).
In Appellant’s third objection to Dr. Morris’s opinion, after the State asked
Dr. Morris what his opinion was on what caused T.G.’s injuries, defense counsel
stated, “I will object now, Judge, under 702” because “the witness hasn’t provided
the facts necessary to support the science that is supporting his opinion as to what
caused the injury.” Although Appellant’s counsel objected on the basis of Rule 702,
Rule 702 covers “numerous requirements and guidelines for the admission of expert
testimony.” Gregory v. State, 56 S.W.3d 164, 182 (Tex. App.—Houston [14th Dist.]
2001, pet. dism’d); see Nickols v. State, No. 11-11-00203-CR, 2013 WL 4715681,
14
at *4 (Tex. App.—Eastland Aug. 30, 2013, no pet.) (mem. op., not designated for
publication) (“Rule 702 of the Texas Rules of Evidence governs the admissibility of
expert testimony under three criteria: qualification, reliability, and relevance.”
(citing TEX. R. EVID. 702; Vela, 209 S.W.3d at 131)). Objections based simply on
Rule 702, without more specificity, “are, in effect, general objections to an improper
predicate” and “[a]n objection to an improper predicate that fails to inform the trial
court exactly how the predicate is deficient will not preserve error.” Gregory, 56
S.W.3d at 182. Here, Appellant did not specify how the predicate was deficient, and
she failed to specify that the reason for a deficient predicate was reliability.
Therefore, Appellant’s objection was a general objection that failed to preserve her
reliability complaint. See Scherl, 7 S.W.3d at 651–52; see also TEX. R. APP. P. 33.1.
3. Appellant objected to the relevance of Dr. Scribbick’s
opinion, not to its reliability.
During Dr. Scribbick’s direct examination, the State asked Dr. Scribbick
whether it was important for doctors to “look at the total picture of what happened
to the child in making evaluations and determinations about whether or not there
was nonaccidental trauma,” to which Appellant’s counsel objected. Appellant’s
counsel argued that “[t]his is not relevant,” “[t]hey have no foundation set for him
to testify as to what the Court should consider or not consider,” and this “is within
the providence of the Court.” Defense counsel objected at trial to the relevance of
Dr. Scribbick’s opinion based on an improper predicate but did not object on
reliability of any opinion. Appellant has failed to preserve her reliability complaint
to Dr. Scribbick’s opinion. See Nations, 944 S.W.2d at 799.
4. Appellant objected to expert witness testimony after the State
rested its case, which was untimely under Rule 33.1.
After the State rested, Appellant’s trial counsel made additional objections to
the State’s experts. Even if we construed these objections as challenges to reliability,
the objections were untimely. See TEX. R. APP. P. 33.1. An objection is timely if it
15
is made “as soon as the [objecting party] knows or should know that an error has
occurred.” Lackey v. State, 364 S.W.3d 837, 843 (Tex. Crim. App. 2012) (quoting
Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991)). Appellant was made
aware of the substance of the experts’ opinions and the underlying facts and data the
State relied on when the experts testified during the State’s case-in-chief.
Appellant’s trial counsel did not object at that time on the basis of reliability.
Although the Court of Criminal Appeals has stated that “strict timeliness of a
complaint may not be quite ‘as crucial’ in proceedings before a judge (as opposed to
a jury),” id., we still conclude that Appellant failed to timely object. See TEX. R.
APP. P. 33.1. Accordingly, we overrule Appellant’s third issue because it has not
been preserved for our review.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
March 30, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.8
8
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
16