Lakim Mintrell Guild v. State ( 2013 )

NUMBER 13-10-00687-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROBERT SCOTT HOWELL, Appellant,
v.
SANDRA LILIANA HOWELL, Appellee.
On appeal from the 444th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Benavides
This is an appeal from a divorce and child-custody jury trial. By eleven issues—
which we consolidate into five—appellant Robert Scott Howell contends that the trial
court erred by: (1) making an improper comment on the evidence; (2) overruling several
of his evidentiary objections; (3) overruling his expert challenge; and (4) overruling his
motion for judgment notwithstanding the verdict on the issue of separate property values.
He also contends that the cumulative effect of these errors prejudiced his right to a fair
trial. We affirm.
I. BACKGROUND
A. The Marriage
Robert and Sandra Liliana Howell met in late 1999 in Bogota, Colombia through a
matchmaking agency called Latin Mate. The agency provided a service to Americans
who wanted to meet Latin Americans for dates and possible romances. Robert, a
native-born American, utilized Latin Mate’s services to meet Sandra, a native-born
Colombian. After a few dates in Colombia with Sandra, Robert returned home to
Rancho Viejo, Texas.
Less than a month after his return, Robert invited and paid for Sandra to fly to
Texas. After she arrived, Sandra lived with Robert while they continued their courtship.
The couple eventually married in December 2000. Prior to the wedding, Robert and
Sandra executed and entered into a premarital agreement. The Howells have one
child, B.H., who was born in March 2003.1
At trial, Robert testified substantially about his role as the family’s provider.
During the marriage, Robert was a self-employed chiropractor in Brownsville, who
purportedly earned, at one point, more than $300,000 annually, while Sandra stayed at
1
We will use initials to protect the child’s identity. See TEX. R. APP. P. 9.1.
2
home. Robert testified that during the marriage, he paid for Sandra to attend
English-language classes and hired a housekeeper and groundskeeper to help the
family with house work, to take care of B.H., and to tend to the yard. Robert also
testified that he helped Sandra and her family financially in Colombia, including the
purchase of a condominium for Sandra’s mother. Robert also mentioned that he and
Sandra vacationed to several locations, including Europe, St. Thomas, and Colombia.
During the marriage, Sandra eventually became a United States citizen. Sandra
did not dispute that Robert provided financially for the family, or that he was a loving
father to B.H. Sandra presented evidence that at times, however, Robert was
controlling and sometimes wanted to be left alone at the home. Sandra introduced into
evidence a two-page list of chores, prepared by Robert, for her to complete. Some
items on the list included making sure Robert’s clothes were organized in his closet,
putting together photo albums from various vacation trips, and making sure that no
fattening foods were available in the house. Robert asserted that this list was prepared
as part of an assignment during a marriage counseling session and that Sandra had
prepared a similar list for him, but he could not find it. Sandra and Robert sought
marriage counseling in 2005, but according to both of them, the marriage reached a
tipping point after an incident at their home in early November 2006.
B. November 4, 2006 Incident
Sandra testified that on the morning of November 4, 2006, Robert left home to
attend to some business at his chiropractic clinic. When he returned, Sandra stated
that Robert’s behavior was like that of “[another] person.” Sandra said that she was
3
using the master bathroom with the door closed when Robert returned. While she was
in the bathroom, Robert pounded on the door and demanded that she open it. When
she complied, Sandra saw Robert holding B.H. in his arms and asked her if she had
seen B.H. Sandra told Robert that B.H. was asleep when she last checked on him. At
that point, Sandra testified that Robert placed B.H., who was crying, back into his room
and closed the door. Sandra attempted to calm Robert down, but he told her that she
was “going to get out of [his] life today.”
Later that morning, Sandra testified that she found herself alone with Robert in the
master bathroom with the door closed. Sandra testified that Robert then told her that
she “[needed] to start to pay [him] the money [he] spent on [her] over the years.” At that
point, Sandra stated that Robert put his hands around her neck. She attempted to stop
him, but failed. Once he removed his hands from her neck, Sandra said that Robert
then grabbed her body and bent her over the bathroom counter. At that point, Robert
began to spank Sandra “like a child.” According to Sandra, when he stopped the
spanking, he attempted to have anal sex with her, but Sandra refused and pushed him
away. Robert then asked Sandra to leave the house, which shocked Sandra.
Sandra then went to B.H.’s room and stayed there while Robert took a shower in
the master bathroom. In a panic, Sandra testified that she began to call her friends and
acquaintances for help. One of Sandra’s friends, Maria Pelly, advised her to call 9-1-1,
which she did. Rancho Viejo police officers were subsequently dispatched to the home.
Robert did not dispute that he and Sandra argued on November 4, 2006. Robert
testified that he returned home on the morning of November 4, 2006 to find B.H. alone
4
and crying. Robert stated that he was upset with Sandra for allowing B.H. to cry and be
left alone. He denied, however, that he physically assaulted Sandra or attempted to
have anal sex with her.
Rancho Viejo Police Officer Arturo Huerta testified that he arrived at the Howell
residence the afternoon of November 4, 2006 to find Sandra and B.H. outside the home.
Officer Huerta described Sandra as “shaken” and indicated that she was crying and very
nervous. Officer Huerta entered the home to find Robert inside the home and just out of
the shower. Robert told Officer Huerta that the couple fought earlier that day because
Sandra was upset that Robert would not sign some immigration forms which would have
allowed Sandra’s mother to visit the United States. Officer Huerta placed Robert under
arrest and charged him with assault.2 At the home, police photographed Sandra and
some prescription drug bottles found inside of the residence, all of which appeared to
belong to Robert. Following his arrest, Robert and Sandra ceased living together, and
B.H. continued to live with Sandra.
C. Divorce Proceedings
On November 22, 2006, Sandra petitioned for divorce from Robert and requested
a temporary restraining order and other temporary orders. Robert answered and filed a
counter petition. In January 2007, the trial court entered temporary orders which
appointed Sandra temporary sole managing conservator of B.H. and Robert as
temporary possessory conservator. The temporary orders required Robert to pay $650
2
According to testimony, this charge was dismissed for insufficient evidence.
5
per month in child support and $350 per month alimony directly to Sandra. The trial court
further ordered a social study of B.H., Robert, and Sandra, and appointed licensed
attorney Leticia Barguiarena as B.H.’s guardian ad litem. The trial court also ordered
Robert to continue to pay, among other things, liabilities and expenses associated with
the home in Rancho Viejo, cellular phone service for Sandra, and payments toward an
Oldsmobile vehicle. Sandra was given exclusive use and possession of the home in
Rancho Viejo as well as the Oldsmobile.
After more than three years after the original petition for divorce was filed, trial
commenced in January 2010. Daniel Gomez, a social investigator stated that he met
with Robert, Sandra, and B.H. at different times during the course of his court-ordered
social study. Gomez said that he witnessed B.H.’s interaction with Robert during his
evaluation and described it as “normal” and that it did not raise any “red flags” for him.
Gomez described B.H. and Robert’s relationship as a loving and caring one. Robert
indicated to Gomez that he was concerned about Sandra’s grasp of the English
language and how it related to B.H.’s language ability but stated that Sandra was a good
mother to B.H.3 Gomez described B.H. and Sandra’s relationship as very loving and
indicated that Sandra’s condominium, where she and B.H. lived at the time, was
“excellent.” 4 Sandra and Gomez also discussed the incident which took place on
November 4, 2006. Sandra told Gomez that Robert would not allow B.H. to be
3
B.H.’s kindergarten teacher, Laurie Oliveira, testified that B.H. was labeled a “gifted and talented”
student and had no problems with the English language.
4
The record indicates that the home in Rancho Viejo was eventually foreclosed upon during the
pendency of the divorce proceedings due to Robert’s failure to pay the mortgage.
6
vaccinated for diseases. Robert admitted in testimony that he believed that certain
vaccinations were unnecessary and did not need to be given to B.H. In his report,
Gomez recommended that (1) Robert seek a psychological evaluation, (2) Sandra be
named sole managing conservator of B.H., and (3) Robert be granted regular visitations
with B.H.
Barguiarena testified that early-on during her appointment, she wanted Sandra
and Robert to be joint-managing conservators of B.H. According to Barguiarena, her
opinion changed after a meeting where Robert and Sandra could not sit in the same
room. Barguiarena described B.H.’s interactions with his father as “good,” but not as
“touchy feely” as B.H.’s interaction with his mother. Barguiarena stated that she
thought that Gomez’s recommendation for Robert to get a psychological evaluation was
unfounded. Barguiarena observed that Sandra followed court orders, while Robert did
not, such as discussing the divorce proceedings with B.H. According to Barguiarena,
Robert appeared to put his own interests before B.H.’s. Barguiarena recommended
that Sandra be appointed sole-managing conservator and that Robert be given
possessory visitation.
Robert disputed both Gomez and Barguiarena’s recommendations. Robert
testified that Gomez and Barguiarena had an “agenda” against him. He insinuated in
testimony that Gomez and Sandra may have had a romantic relationship and
Barguiarena wanted Sandra to be sole-managing conservator because Barguiarena and
Sandra shared the same gender and ethnicity.
7
Other witnesses testified at trial, including Ana Dolores Gomez, a
psychotherapist5 and licensed professional counselor with Bienestar Counseling Center.
Gomez testified that she counseled B.H. from June 2008 until March 2009 and again in
October 2009 and January 2010. Sandra brought B.H. to Gomez to help him adjust to
the separation of his parents. During her sessions with B.H., she implemented play
therapy.6 At the start of B.H.’s therapy, Gomez testified that B.H. exhibited play themes
of fear and anger due to the play’s aggressive nature. As the sessions continued,
Gomez noted that B.H.’s initial aggressive behavior lessened and his play would become
“a lot more nurturing.” B.H.’s initial aggressive-play behavior, according to Gomez,
indicated trust issues and fear of “having to get the bad guy.” Gomez opined that B.H.
needed a home that is “encouraging,” “stable,” “consistent,” where he is “encouraged to
be a child,” and can “feel safe.”
Maria Pelly, Sandra’s friend, also testified. Pelly recounted how she became
acquainted with Sandra, described her involvement in the November 4, 2006 incident,
and admitted that she had loaned approximately $5,000 to Sandra since her separation
from Robert.
Barbara and Dennis Overton, Juan Carlos Rodriguez, and Norma Valladores
each testified on Robert’s behalf. Each of them was, at one point in time, Robert’s
former employee, but all considered him a friend and had personal knowledge of his
5
Ana Dolores Gomez defined a “psychotherapist” as someone who “works with different
populations” and “help[s] them through emotional or psychological problems.”
6
According to Gomez, play therapy is used for children who do not have the vocabulary that adults
have to express themselves. Therefore, the children play with age-appropriate toys and the therapist will
look for different themes in their play to allow the therapist to make an evaluation.
8
family life with Sandra and B.H. Barbara described Robert as a meticulous boss who
cared about his employees and was a patient father to B.H. Dennis stated that he had
no problems with Sandra and noted that Robert and B.H. did “normal things” as father
and son. Rodriguez testified that Sandra called him on November 4, 2006 in tears and
stated that an incident took place between Robert and her and that the police had
arrested Robert. Rodriguez also described Robert as a “very caring father.”
Valladores testified that she had known Sandra and Robert since they were married.
She described Robert and B.H.’s relationship as “normal.”
After a ten-day trial, the jury found that: (1) grounds existed for divorce between
Robert and Sandra; (2) Sandra should be appointed sole-managing conservator of B.H.;
(3) Robert should be appointed possessory conservator of B.H.; (4) Sandra did not
commit fraud or waste with respect to Robert’s separate property; and (5) the value of
each item of Robert’s separate property listed in the charge was zero. Robert filed a
motion for judgment notwithstanding the verdict with regard to the jury’s fifth finding,
which the trial court denied. On September 27, 2010, the trial court entered Sandra and
Robert’s final decree of divorce. The trial court filed findings of fact and conclusions of
law on October 20, 2010. Robert’s motion for new trial was overruled by operation of
law on January 25, 2011, and this appeal ensued.7
II. THE TRIAL COURT’S COMMENT
By his first issue, Robert asserts that the trial court fundamentally erred in
7
On April 27, 2011, Sandra filed a motion with this Court to dismiss Robert’s appeal for failure to
prosecute. Robert filed a response on May 13, 2011. The motion was previously carried with the case,
and today, it is hereby denied. See TEX. R. APP. P. 10.4.
9
commenting on the evidence that Sandra’s counsel had “pretty well established” that
Robert was a controlling individual.
A. Preservation of Error
A party must preserve error for appellate review to complain about a trial court’s
improper conduct or comment, unless the conduct or comment cannot be rendered
harmless by proper instruction. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001) (citing State v. Wilemon, 393 S.W.2d 816, 818 (Tex. 1965)). A party properly
preserves error when the record shows that (1) a complaint was made to the trial court
by timely request, objection, or motion that: (a) states the grounds for the ruling that the
complaining party sought with sufficient specificity to make the trial court aware of the
complaint; and (b) complies with the requirements of the Texas Rules of Evidence or
Texas Rules of Civil or Appellate Procedure; and (2) the trial court: (a) ruled on the
request, objection, or motion either expressly or implicitly; or (b) refused to rule on the
request, objection, or motion and the complaining party objected to the refusal. TEX. R.
APP. P. 33.1.
B. Discussion
The crux of Robert’s complaint relates to the trial court’s comment during the
following exchange, with emphasis added below:
[ROBERT’S COUNSEL]: I guess at this point I want to object to the line
of testimony. I don’t understand the relevance
of going to the doctor and the dentist every six
months. I can’t understand whether she’s
complaining about it or she’s saying it’s
something good. So I just don’t understand
10
the relevance. It doesn’t make any event any
more or less likely.
[SANDRA’S COUNSEL]: Your Honor, basically I’m having [Sandra] show
that [Robert] is basically a very controlling
individual, that he is instructing her on the
minutia of day-to-day living.
TRIAL COURT: I think you’ve pretty well established that. So
let’s move on.
[SANDRA’S COUNSEL]: Now, [Sandra], did you attempt to satisfy these
requirements made by [Robert]?
....
The record shows that no objection was raised after the trial court made the
complained-of remark and questioning by Sandra’s counsel resumed. Despite the
failure to preserve error, Robert argues that such judicial comments are “inappropriate”
and violate Robert’s fundamental due process rights, “vis-à-vis, his rights to be with and
raise his child without undue governmental/court control and interference,” and thus, we
should still review his complaint because due process so requires. We decline the
invitation. Unwaivable error must be of the type that “cannot be repaired” and therefore
needs no objection. See Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 472 (Tex.
2005) (finding unwaivable reversible error in a party’s personal expression of gratitude to
the jury at the close of the case). In an analogous criminal case, the court of criminal
appeals held that error was not waived by a defendant who failed to object to a trial
court’s comments before the venire which tainted the defendant’s presumption of
innocence because such comments amounted to “fundamental error of constitutional
11
dimension.” Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (en banc)
Here, Robert fails to explain how the trial court’s off-hand comment violated his
fundamental rights and could not be rendered harmless by a proper curative instruction.
See Francis, 46 S.W.3d at 241; Fed. Deposit Ins. Corp. v. White, No. 13-08-00263-CV,
2011 WL 4998515, at *7 (Tex. App.—Corpus Christi Oct. 20, 2011, no pet.) (mem. op.).
Accordingly, Robert’s first issue is overruled.
III. EVIDENTIARY RULINGS
By his second issue, Robert contends that the trial court made several erroneous
evidentiary rulings.
A. Standard of Review
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its
discretion if its decision is “arbitrary, unreasonable, and without reference to guiding
rules and principles.” Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). If the
appellant can show that the trial court’s evidentiary ruling was erroneous, in order to
show reversal, the complaining party must show that the error “probably (though not
necessarily) resulted in improper judgment.” Nissan Motor Co. Ltd. v. Armstrong, 145
S.W.3d 131, 144 (Tex. 2004); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.
1995); see TEX. R. APP. P. 44.1.
We review the entire record to determine whether the complaining party made a
successful challenge by showing that the judgment turns on the particular evidence
excluded or admitted. Nissan Motor Co., 145 S.W.3d at 144; Alvarado, 897 S.W.2d at
12
753. Determination of whether an erroneous admission is harmful is “more a matter of
judgment than precise measurement.” Nissan Motor Co., 145 S.W.3d at 144. In
making that judgment, a reviewing court should sometimes look to the efforts made by
counsel to emphasize that erroneous evidence and whether there was contrary evidence
that the improperly admitted evidence was calculated to overcome. Id.
B. Discussion
1. Text Message from Robert to Sandra
We disagree with Robert’s first argument that the trial court erred under the best
evidence rule when it allowed Sandra to read a text message into evidence during the
following exchange at trial:
Q. [BY SANDRA’S COUNSEL]: Okay. How long did you stay at Maria
Pelly’s condominium?
A. [SANDRA]: One week. Yes, one and a half weeks.
Q. During that week and a half, did you
have any contact with [Robert]?
A. No, he sent to me e-mail—text message.
Q. And what did this text message say?
A. “This is the last opportunity you have”—
[ROBERT’S COUNSEL]: Objection, best evidence.
TRIAL COURT: I’m sorry?
[ROBERT’S COUNSEL]: Best evidence. They can produce the
document that has the text messages.
[SANDRA’S COUNSEL]: Your Honor, there is no document when
you have a text message.
13
[ROBERT’S COUNSEL]: There absolutely is. It’s all recorded.
All you have to do is request it and bring
it in.
TRIAL COURT: Overruled.
Q. [BY SANDRA’S COUNSEL]: What did the text message say?
A. It says, “Your last opportunity to contact
me. You are—if you don’t, you are
going to live like poor people who wait
for the stamps, Medicaid. This is the
life I don’t want for my son. Contact me
to my office now,” text message. I
didn’t answer. I never answered these
text messages.
Generally, to prove the contents of a writing, recording, or photograph, the original
writing, recording, or photograph is required, except as otherwise provided by the rules
of evidence or by law. See TEX. R. EVID. 1002. An original is not required, and other
evidence of a writing is admissible, however, if the originals are: (1) lost or destroyed; (2)
not obtainable; (3) outside the state; (4) in possession of the opponent; or (5) not closely
related to a controlling issue. See TEX. R. EVID. 1004.
Here, Sandra’s counsel represented to the trial court that a document of the text
message was not obtainable. Robert’s counsel argued in response that text messages
were recorded but did not offer anything else to substantiate that argument.
Accordingly, the trial court was within its discretion to determine that an original
document of the text message sent to Sandra was unavailable.
Robert further contends that the contents of the text message were used to leave
the jury with the impression that Robert “looks down his nose on people who are less
14
fortunate.” Even assuming that Sandra’s purpose in introducing the text message was
for the purposes that Robert contends, it was nonetheless within the trial court’s
discretion to determine that the original text messages were not closely related to any
controlling issue in the case—namely whether grounds for divorce existed and what
were B.H.’s best interests—and thus, exempt from the best evidence rule and not
erroneously admitted into evidence. See id.
2. Sandra’s 9-1-1 Call Transcript
Next, Robert argues that the trial court abused its discretion by admitting a
translated transcript of Sandra’s November 4, 2006 9-1-1 call because it violated rule of
evidence 1009(a).
Rule 1009(a) states the following:
A translation of foreign language documents shall be admissible upon the
affidavit of a qualified translator setting forth the qualifications of the
translator and certifying that the translation is fair and accurate. Such
affidavit, along with the translation and the underlying foreign language
documents, shall be served upon all parties at least 45 days prior to the
date of trial.
Robert claims that because the translation took place contemporaneously with trial and
not at least 45 days prior to the date of trial, he was inadequately prepared for trial and
objected to the contents of the phone call. However, Robert did not object to the
translated transcript at trial. When Sandra moved to admit the translation, Robert’s
counsel twice expressed no objection to the English transcript, and it was accordingly
admitted. Therefore, we conclude that Robert’s argument under Rule 1009(a) is
15
waived.8 See TEX. R. APP. P. 33.1.
3. Prescription Pill Bottles
Robert next contends that the trial court abused its discretion by admitting
prescription pill bottles belonging to Robert and the instructions that accompanied the pill
bottles and by allowing Sandra to read the labels of the pill bottles over his relevance,
authentication, and hearsay objections.
First, Robert argues that Sandra laid no predicate as to why the prescription pill
bottles were relevant. Relevant evidence is evidence that has any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. TEX. R. EVID. 401.
The admission of the pill bottles followed a line of questioning by Robert’s counsel to
Sandra regarding a photograph of Robert’s medications. During cross-examination,
Robert introduced, without objection, a photograph of several prescription bottles
purportedly belonging to Robert that were found on November 4, 2006 when Rancho
Viejo police arrived at the couple’s home. After this exchange, Robert’s counsel elicited
testimony from Sandra which appeared to explain circumstances such as stress and
depression related to Robert’s taking prescription medication. Following this exchange,
Sandra’s counsel asked her on re-direct examination to identify the various prescription
medication bottles found at the Howells’ home and placed in plastic bags. Robert’s
8
Robert was provided with a compact disc copy of Sandra’s 9-1-1 call during the appropriate
pretrial discovery phase. When considered in the entire record, this fact further weakens his argument to
this Court that the contemporaneous translation did not allow him to adequately prepare for trial.
Additionally, when Sandra moved to play the original November 4, 2007 audio in Spanish for the jury,
Robert objected that the audio would be cumulative, which was also overruled.
16
objection to the relevance of Sandra’s identification was overruled. Sandra’s counsel
specifically sought to introduce the pill bottles to rebut Robert’s questioning on
cross-examination as to whether the medications were current.
Therefore, in light of Robert’s prior introduction of a photograph of the prescription
medication, stipulation that the bottles were in the household on November 4, 2006, and
Robert’s prior questioning about the prescriptions and their uses, we conclude that the
trial court did not abuse its discretion in admitting the actual prescription bottles over
Robert’s relevance and authentication objections. See In re J.P.B., 180 S.W.3d at 575;
TEX. R. EVID. 401; cf State v. City of Greenville, 726 S.W.2d 162, 168 (Tex. App.—Dallas
1986, writ ref’d n.r.e) (holding that a trial court did not abuse its discretion by admitting a
photograph that depicted a prior verbal description which was admissible. “If a verbal
description of the item is admissible, a photograph depicting it is also admissible.”).
Next, Robert objected on hearsay grounds to the trial court’s admission of a
prescription information sheet from Walgreens for the drug Seroquel listed in Robert’s
name on hearsay grounds. Robert’s counsel conceded at trial that Sandra had
authenticated the information sheet, but continued to argue that allowing her to read from
the sheet constituted hearsay. We agree. Hearsay is a statement, other than one
made by the declarant while testifying at a trial or hearing, offered in evidence to prove
the truth of the matter asserted. TEX. R. EVID. 801(d). Here, Sandra testified from the
information sheet that Robert’s prescription for Seroquel was used to treat “emotional or
mood disorders, including schizophrenia” and “may also be used to treat other conditions
as determined by the doctor.” Sandra read from a document that she did not create,
17
and it was offered by her for the truth of the matter asserted—that is, reasons one would
take Seroquel. Therefore, we conclude that the trial court abused its discretion in
overruling Robert’s hearsay objection on this evidence.
Having determined that the trial court’s ruling was erroneous, we must now
evaluate for harm by determining whether the preceding error “probably (though not
necessarily) resulted in improper judgment.” Nissan Motor Co., 145 S.W.3d at 144;
TEX. R. APP. P. 44.1. Robert argues that Sandra’s testimony was “highly prejudicial”
because documents which stated that he suffered from mood or emotional disorders was
“damning without the proper expert context to put it into.” We disagree. In this case,
Robert’s counsel’s cross-examination of Sandra as well as Robert’s own testimony
opened the door to questions regarding Robert’s mental health. Robert’s attorney
questioned Sandra about circumstances during November 4, 2006 that could possibly
cause someone to be depressed, such as Robert’s pending bankruptcy. Furthermore,
Robert also admitted numerous times in testimony that he was depressed over financial
matters. Because Robert, himself, raised issues with respect to his mental health,
nothing in the record indicates that the erroneous admission of the Seroquel prescription
information sheet and corresponding testimony probably resulted in improper judgment.
See Nissan Motor Co., 145 S.W.3d at 144.
4. Photograph Testimony
Robert’s final argument focuses on the testimony of witness Isidro Cavazos.
Over Robert’s objections under evidentiary rules 403, 404(a), and 404(b), the trial court
allowed Cavazos to testify that Robert once showed him photographs on his cell phone
18
of young girls he allegedly engaged in sex with. Cavazos opined that the girls in the
photographs, including one depicted with Robert, appeared to be younger than eighteen.
Rule 403 provides that relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence. TEX. R. EVID. 403.
Robert argues that the admission of Cavazos’s testimony served no legitimate
purpose under rule 403 and should have been excluded.9 We disagree. A trial court is
given wide latitude to exclude or admit evidence under rule 403. See Doe v. Mobile
Video Tapes, Inc., 43 S.W.3d 40, 57 (Tex. App.—Corpus Christi 2001, no pet.). One
issue before the jury in this case is B.H.’s best interests. While the substance of
Cavazos’s testimony was graphic, it was nonetheless relevant to the decision of B.H.’s
best interest. The trial court’s decision to admit this testimony based upon the ultimate
issue of B.H.’s best interests was within its wide discretion. Furthermore, even
assuming arguendo that the trial court abused its discretion in allowing Cavazos to
testify, Robert does not argue how the error “resulted in improper judgment” based upon
a review of the entire record. See Nissan Motor Co., 145 S.W.3d at 144.
9
Robert’s briefing on this issue focuses almost exclusively on the trial court’s 403 ruling. Robert
inserted two sentences in his brief which state:
Further, the court’s overruling of Appellant’s Texas Rule of Evidence 404(a) and 404(b)
objections were erroneous. This testimony was meant [sic] character evidence and as
alleged acts of other crimes, wrongs, or acts.
Without appropriate citation to authorities and to the record, we are unable to address Robert’s 404(a) and
404(b) complaints. See TEX. R. APP. 38.1(i).
19
Robert’s second issue is overruled.
IV. EXPERT CHALLENGE
By his third issue, Robert contends that the trial court erred by overruling his
expert challenge to the play therapy testimony of licensed professional counselor Ana
Dolores Gomez.
A. Applicable Law and Standard of Review
A witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise, if scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue. TEX. R. EVID. 702. The trial court serves as
gatekeeper in determining whether proffered expert testimony meets the requirements of
Rule 702. See TEX. R. EVID. 104(a); E.I. du Pont de Nemours & Co., Inc. v. Robinson,
923 S.W.2d 549, 556 (Tex. 1995). The trial court’s role at this stage is to not determine
the truth or falsity of the expert’s opinion, but rather to make the initial determination
whether the expert's opinion is relevant and whether the methods and research upon
which it is based are reliable. Robinson, 923 S.W.2d at 558.
In making a threshold determination of admissibility under Rule 702, the trial court
may consider the following non-exhaustive list of factors:
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective
interpretation of the expert;
(3) whether the theory has been subjected to peer review and/or
publication;
20
(4) the technique's potential rate of error;
(5) whether the underlying theory or technique has been generally
accepted as valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or
technique
Id.
The burden to prove that the witness is qualified under Rule 702 rests with the
offering party. Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718 (Tex. 1998).
A trial court’s acceptance of a witness’s qualification as an expert is reviewable for an
abuse of discretion. Id. at 718–19.
B. Discussion
Robert argues that the trial court abused its discretion by denying his expert
challenge and by allowing Gomez to testify about her observations of B.H. during her
play-therapy sessions. We disagree.
Gomez testified that her educational background includes a master’s degree in
counseling from the University of Houston—Clear Lake and that she was a licensed
professional counselor by the State of Texas and also a registered play therapist and
supervisor. In order to qualify as a registered play therapist and supervisor, Gomez
stated that she was required to complete 150 hours of training in play therapy, attended
North Texas State for a week of training, and also took classes under Dr. Gary Landreth
and was supervised by Dr. Emily Owee.
Gomez testified that her therapy utilizes a “humanistic, child-centered play
therapy” theory. She testified that several studies show that play therapy is an effective
21
treatment for children and cited one study by Charles Schafer who found that “the
primary treatment for children is play therapy” in hospitals, agencies, and mental health
centers. Gomez testified that under humanistic, child-centered play therapy, children
communicate through the play of the toys because the children do not have the verbal
capacity to express themselves. Gomez admitted that there are other theories that may
be used to make evaluations, but that these different theories were merely different ways
of seeing the same problem.
Based on our review, we cannot conclude that the trial court abused its discretion
as gatekeeper to admit Gomez’s testimony under Rule 702 and the Robinson standard.
See 923 S.W.2d at 556–58. Robert’s third issue is overruled.
V. J.N.O.V. ON VALUE OF PROPERTY
By his fourth issue, Robert contends that the jury’s decision to award no value to
Robert’s separate property was against the great weight and preponderance of the
evidence and the trial court erred in overruling his judgment notwithstanding the verdict
on this issue.
In light of the jury’s uncontested finding that Sandra did not commit fraud or waste
with respect to Robert’s separate property, we fail to find—and Robert does not articulate
for this Court—how the jury’s zero valuations amounted to reversible error in this case.
See TEX. R. APP. P. 38.1(i); TEX. R. APP. P. 44.1(a). Accordingly, this issue is overruled.
See TEX. R. APP. 47.1.
VI. RIGHT TO A FAIR TRIAL
22
By his final issue, Robert argues that the cumulative effect of the trial court’s
errors, articulated by his issues on appeal, deprived him of a right to a fair trial under the
United States and Texas Constitutions.
Because we concluded that the trial court committed only one error and that such
error was harmless, we overrule this issue. See TEX. R. APP. P. 47.1.
VII. CONCLUSION
The trial court’s judgment is affirmed.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
28th day of February, 2013.
23