Opinion Issued November 6, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00593-CR
CARLOS COY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 908426
MEMORANDUM OPINION
Appellant Carlos Coy was charged with aggravated sexual assault of a child. The jury found appellant guilty and assessed punishment at 45 years confinement and a fine in the amount of $10,000. We affirm.
In eight points of error, appellant complains about the following: (A) the prosecutor’s closing arguments; (B) certain testimony by a police officer; (C) certain testimony by the State’s expert; and (D) the refusal of the trial judge to quash the indictment.
Background
In September 2001, the then nine-year-old complainant told her mother about sexual acts appellant had performed on her. The mother took her daughter to the authorities, who began an investigation of the complainant’s allegations. The evidence at trial showed that appellant’s daughter had invited the complainant to spend the night at appellant’s home on September 1, 2001. Both children were watching television in appellant’s bedroom when appellant entered the room and began watching television with the children. While sitting on the bed, appellant inappropriately touched and rubbed her. After this incident, the complainant left appellant’s bedroom.
The children eventually entered the daughter’s bedroom. Both children climbed into bed and began watching television. After appellant’s daughter fell asleep, appellant entered the room, sat on the bed, reached under the covers, and again inappropriately touched her. Eventually, appellant sexually assaulted the complainant by causing her sexual organ to come into contact with his mouth. The complainant testified that appellant persisted in this conduct for approximately one minute.
The complainant did not, after this incident, stay overnight at appellant’s home as was originally planned, but returned home. The following morning, she informed her mother what occurred at appellant’s home, and the authorities were contacted to investigate the incident.
Points of Error One, Two, and ThreeIn his first three points of error, appellant contends that the trial court erred when it overruled his objections to the prosecutor’s statements in closing argument. In his first point of error, appellant complains about the following statement:
I don’t know what that has to do with anything. That’s just another thing that they’re putting out there hoping that one of you buys it. That’s all they have to do, one of you thinks there’s any credibility to any of these crazy theories. Because they don’t want you to look at the evidence and the truth. Our job as prosecutors is to seek the truth. That’s not his job. His job is to represent Carlos Coy.
Appellant’s objection in the trial court to the above statements was: “Your Honor, I’m going to object. My job is the same as theirs.” In his second point of error, appellant contends that the trial court erred when it refused to sustain his objection to the prosecutor’s statement in closing argument that “His job is to represent Carlos Coy, keep him from going to jail. That’s what he gets paid to do. [The other prosecutor] and I get paid - -”. Appellant’s objection in the trial court to these statements was: “I’m going to object, Your Honor, the State of Texas gets paid just like I do. Improper argument.” In his third point of error, appellant contends that the trial court erred when it overruled his objection to the prosecutor’s statements in closing argument that “[The other prosecutor] and I get paid to prosecute people who abuse children. And I can tell you we’ve got enough work to do without having to manufacture a case. We don’t care that he’s a rapper or a musician.” Appellant’s objection in the trial court to the above statements was: “Your Honor, I’m going to object. [The prosecutor’s] personal feelings are improper.” On appeal, appellant contends that these statements are outside the record, manifestly improper, and prejudicial.
An objection at trial must correspond with the argument on appeal, and this Court may not consider grounds not raised before the trial court. State v. Romero, 962 S.W.2d 143, 144 (Tex. App.—Houston [1st Dist.] 1997, no pet.). If the objection at trial does not correspond with the argument on appeal, error is not preserved and the objection is waived. Id. Appellant’s objections to the prosecutor’s argument during trial do not conform to his argument on appeal. The error, if any, is waived.
We overrule appellant’s first three points of error.
Point of Error Four
In his fourth point of error, appellant contends that the trial court erred when it refused to sustain his objection to testimony from Officer Ruiz, the lead police investigator, that the complainant made outcry statements to another non-testifying witness. The following exchange took place in the trial court:
[Prosecutor]: Okay. And from what [the complainant] told Fiona [Stevenson], was that consistent with what she had told you just three days before?
[Defense Counsel]: Objection, Your Honor, hearsay.
[The Court]: Overruled. You may answer that question? [sic]
[Officer Ruiz]: It was absolutely consistent with everything that [the complainant] told me.
Appellant urges that this statement constituted hearsay and does not comply with Article 38.072 of the Texas Code of Criminal Procedure. The State does not dispute that the requirements of Article 38.072 of the Texas Code of Criminal Procedure were not satisfied. It argues that admission of the statements was harmless because the State had previously, without objection, introduced evidence that proved the same facts.
At the time the trial court ruled on the admissibility of the disputed testimony, the jury had already heard the complainant testify, without objection, that she had been interviewed at the police station by Officer Ruiz and that she told Ruiz in the interview that appellant touched and licked her. The complainant also testified that she was interviewed at the Children’s Assistance Center, and, that during this interview, she informed the interviewer that appellant touched and licked her, and described the location on her body where appellant had touched and licked her. Officer Ruiz testified that she was present at that interview, which was conducted by Fiona Stevenson.
“It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence.” Jensen v. State, 66 S.W.3d 528, 535 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). Any error regarding the improper admission of the disputed testimony was rendered harmless because the same facts were proven by the complainant’s properly admitted testimony. We overrule appellant’s fourth point of error.Point of Error Five
In his fifth point of error, appellant contends the trial court erred by allowing the State’s expert, Susan Szczygielski, to testify that she did not see the complainant exhibit any signs of coaching. The State argues that appellant waived error because (1) defense counsel stated prior to the Daubert hearing that he had no objection specifically to the expert’s qualifications, (2) defense counsel did not state the specific ground for his objection to the State’s testifying expert, and the specific ground was not apparent from the context, and (3) defense counsel did not object at the earliest opportunity when the State’s expert testified at trial that the complainant experienced headaches and stomach aches, which are consistent with symptoms of sexual abuse.
Waiver - Point of Error Five
The following exchange took place during the Daubert hearing qualifying the State’s expert:
[Defense Counsel]: Your Honor, for the purposes of brevity, I’m familiar with prior testimony. I don’t have an objection specifically as to her qualifications. If we could just have the prosecution elicit what opinions she may give about this case that may conclude our necessity for a Daubert hearing. I’m not trying to tell them how to do their business. I’m telling you just to make it quick that it might suffice.
[The Court]: Okay. She’s an expert. Go ahead.
[State]: Go into her opinions?
[The Court]: Yes.
Although defense counsel conceded that the State’s expert was qualified to testify about children victimized by sexual abuse, defense counsel did not concede that the State’s expert was qualified to render an opinion on the specific topic of coaching. Furthermore, during the Daubert hearing, defense counsel questioned the State’s expert with respect to her opinions on coaching, and objected to the opinions she intended to give regarding the case. As a basis for his objection, defense counsel asserted that the expert’s testimony would be unreliable. We hold that appellant preserved error with respect to point of error five.
Standard of Review
We will not disturb a trial court’s determination that a witness is or is not qualified as an expert unless a clear abuse of discretion is shown. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). A reviewing court cannot conclude that a trial court abused its discretion if, in the same circumstances, it would have ruled differently or if the trial court committed a mere error in judgment. Hernandez v. State, 53 S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (citing E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995)). The test is not whether the facts present an appropriate case for the trial court’s action in the opinion of the reviewing court. Id. We will gauge an abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. Id.
Analysis
Appellant contends that the testimony of the State’s expert witness is unreliable, because “the State wholly failed to satisfy Daubert’s predicate with respect to Szczygielski’s testimony regarding coaching.” In Hernandez v. State, 53 S.W.3d 742, 746 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d), we reviewed the pertinent case law in order to clarify the standard of reliability applicable to that case and the general confusion surrounding Daubert and its Texas progeny. We recognized that the Daubert inquiry is flexible, and that there exists a distinction between fields of study within the hard sciences such as physics, which is based upon the scientific method, and fields of study aside from the hard sciences, such as the social sciences, which are not based upon the scientific method, but principally on training and experience. Id. at 749.
Expert testimony regarding the effect of sexual abuse on children is nonscientific expert testimony. Hernandez, 53 S.W.3d at 750. Because the Daubert factors “do not necessarily apply outside of the hard science context” we applied the test described by the Court of Criminal Appeals in Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998) overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999), which requires that, in determining whether nonscientific expert testimony is reliable, and therefore admissible, we determine (1) whether the expert’s field of expertise is a legitimate one; (2) whether coaching is within the scope of the expert’s field of expertise; and (3) whether the expert’s testimony properly relied upon or utilized the principles involved in her field. Hernandez, 53 S.W.3d at 749.
With respect to the first element of the test, both the Court of Criminal Appeals and this Court have recognized that Szczygielski’s field of expertise is legitimate. Clark v. State, 881 S.W.2d 682, 698 (Tex. Crim. App. 1994); Hernandez, 53 S.W.3d at 751; See also Kipp v. State, 876 S.W.2d 330, 335 (Tex. Crim. App. 1994) (expert allowed to testify about whether child sex abuse victim had been coached). Regarding whether the subject matter of Szczygielski’s testimony was within the scope of her field, she testified that her opinions were based upon her experience as a therapist and supervisor at the Children’s Assessment Center, and were, to some extent, based upon the knowledge she gained from reading pertinent literature throughout her career. She testified that coaching is a term that describes “another individual trying to get a child to tell a certain story in a certain way” and that, although she has reviewed articles on coaching, her opinion as to whether an individual had been coached was based primarily upon her experience. Szczygielski also testified that she is familiar with conduct that a child who had been coached would exhibit. She has a Master’s degree in social work, is licensed by the State of Texas, has an advanced clinical practitioner credential, and is qualified to diagnose depression. Szczygielski has practiced at the Children’s Assessment Center, a multi-disciplinary program that provides services to children who have been sexually abused, for 10 years. During her first seven years as a therapist at the Children’s Assessment Center, she saw approximately 50 children per year, and during the past three years, she saw between 20 and 30 children per year. We conclude that the subject matter of Szczygielski’s testimony was within the scope of her field.
We also conclude that Szczygielski’s testimony properly relied on and/or utilized the principles involved in the field. Szczygielski testified during the Daubert hearing that she was, in part, basing her conclusions on articles she had read concerning coaching, but primarily on her 10 years of experience as a therapist at the Children’s Assistance Center. Her opinions regarding coaching and other common characteristics of sexually abused children and the physical symptoms they exhibit are based primarily upon her experience derived from providing therapy to hundreds of abused children over the past 10 years. Additionally, her advanced education, current professional certification, and qualification to diagnose depression in this State evidence that she properly relies on and/or utilizes the principles involved in her field.
Although defense counsel complained that Szczygielski’s testimony was unreliable, Szczygielski’s qualifications discussed above provided a sufficient basis for the trial court to have found that her testimony would be reliable. The absence of studies quantifying or providing a statistical analysis does not affect the reliability and therefore admissibility of her testimony, but only affects the weight of the evidence. Hernandez, 53 S.W.3d at 749-50. We are unable to conclude that the trial court failed to act with reference to guiding rules and principles in determining that the State’s testifying expert was qualified to render her opinion on whether the complainant had been coached, and will, therefore, not disturb its ruling. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000); Clark v. State, 881 S.W.2d 682, 698 (Tex. Crim. App. 1994). The trial court’s decision to overrule appellant’s objection and allow the testimony of Szczygielski was not an abuse of discretion. We overrule appellant’s fifth point of error.
Point of Error Six
The State contends that appellant waived error with respect to appellant’s sixth point of error because defense counsel failed to object at the earliest opportunity when the State’s expert testified at trial that the complainant experienced headaches and stomach aches which were consistent with sexual abuse. We agree.
To preserve error, appellant must object at the earliest opportunity and continue to object each time the objectionable evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). The following exchange between the prosecutor and Szczygielski took place in front of the jury:
[Prosecutor]: Now, in determining, I guess, her level of functioning, did you find out whether or not she was exhibiting any symptoms?
[Witness]: She was having an increased difficulty in sleeping since the abuse had happened. She had previous problems with sleeping, but since the abuse the sleeping problems had worsened. She had trouble falling asleep at night. She had trouble staying asleep at night. She talked about having nightmares. She talked about - -
Her mother also talked about that she was a lot more sensitive than usual, cried a lot more easily, became angry a lot more easily. She also complained of a lot of semantic complaints, stomach aches, nausea, continuing headaches, those types of things.
[Prosecutor]: Were those symptoms typical or what you might expect from a person who had been sexually abused?
[Witness]: Yes, those symptoms can be consistent with sexual abuse.
When appellant failed to object to Szczygielski’s opinion at this time, he waived any challenge to her qualification to render an opinion on whether the symptoms exhibited by the complainant were because of sexual abuse. We overrule appellant’s sixth point of error.
Points of Error Seven and Eight
In his seventh point of error, appellant contends the trial court erred by denying his motion to quash the indictment because the indictment did not allege that appellant knew the complainant was younger than 17 years of age at the time of the incident. In his eighth point of error, appellant contends the trial court erred by denying appellant’s jury instruction which would require the jury to find, in order to convict appellant, that he knew the complainant was younger than 17 years of age at the time of the incident.
The Court of Criminal Appeals has held that in cases involving the sexual assault of a child, the State is not required to prove the defendant knew the victim was younger than 17 years of age at the time of the offense. Vasquez v. State, 622 S.W.2d 864, 866 (Tex. Crim. App. 1981). Recently, in Black v. State, the Court of Criminal Appeals spoke of this rule with respect to cases involving aggravated sexual assault of a child: “No scienter with respect to the lack of consent in sexual assault
and aggravated sexual assault is required when the victim is a child.” Black v. State, 26 S.W.3d 895, 898 (Tex. Crim. App. 2000). The Fourteenth Court of Appeals indirectly addressed this issue in Jackson v. State, 889 S.W.2d 615, 617 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). In Jackson, the appellant was convicted of aggravated sexual assault of a child. Id. at 616. The trial court instructed the jury on the lesser included offense of sexual assault of a child, in addition to the charged offense of aggravated sexual assault of a child. Id. at 617. The Court of Appeals determined that the trial court correctly refused to include an instruction on mistake of fact, which would have required a verdict of not guilty had the jury concluded that Jackson mistakenly believed that the complainant was 17 years of age or older. Id. For the foregoing reasons, we hold that in a prosecution for aggravated sexual assault of a child the State is not required to prove the defendant knew the complainant was under 14 years of age. We overrule appellant’s seventh and eighth points of error.
Conclusion
The judgment of the trial court is affirmed.
Adele Hedges
Justice
Panel consists of Justices Hedges, Nuchia, and Higley.
Do not publish. Tex. R. App. P. 47.4.