Vela, Richard, Jr.


IN THE COURT OF CRIMINAL APPEALS OF TEXAS




NO. PD-1388-04

 

RICHARD VELA, JR., Appellant

v.

THE STATE OF TEXAS


ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS NUECES COUNTY

Cochran, J., filed a concurring opinion, in which Johnson, J., joined.

O P I N I O N



I join the majority opinion. I add these comments only to emphasize that when an expert offers an opinion which is so outside the general mainstream of a particular scientific field as to be extraordinary, the proponent of that expertise must provide a greater-than-usual foundation for its reliability.

In this case, the complainant, J.S., testified that she started dating appellant while she was estranged from her husband. She moved into his garage apartment. Appellant owed people a lot of money, and he was frequently angry. On August 25th, appellant was drinking heavily and got angry at J.S. He told her that he needed to teach her a lesson "in respect." He said that she was a whore, and if she wanted to be treated like a whore, he would do so. According to J.S., that is when the sexual assault started.

Appellant grabbed her by the hair, pushed her down on the couch, and tried to force her to perform oral sex on him. He slapped her, turned her over, pulled down her pants and began to anally rape her. J.S. said she

was crying and I told him to stop and I said, "You're hurting me. Why are you doing this?" And he wouldn't stop, and then he- he raped me vaginally, and then he stopped and he said- he said, "I'm so mad," he said, "I can't even finish." He said, "I'm so mad at you." And then he took his- he took his belt off from his pants and he started beating me with it across my legs and I tried to turn around and I was, you know, blocking myself and then he hit me in the butt and the legs.

J.S. repeatedly testified that she did not then agree, and never before had agreed, to have anal sex with appellant. She said that she did not agree to have vaginal or oral sex with him on this occasion, although she had agreed to do so on prior occasions, under different circumstances.

When J.S. went into the bathroom after the incident, she was bleeding profusely from the anus. Appellant came into the bathroom and told her that he had done this to teach her a lesson about respect. He said, "And if you act up anymore, next time I'll tear you from one end to the other." She was in shock. She went into the bedroom and cried until she fell asleep.

The next morning, appellant woke her up and said, "Bitch, get up and go make me some breakfast." J.S. was scared, but obeyed, all the while planning to "buy some time" and then leave. Two days later, appellant got mad at J.S. again- "he went crazy"- and started to choke her. She tried to call 911, but appellant pulled the phone out of the wall. As appellant stepped outside to block J.S. from running away, she closed the door on him and locked him out. He then came around to the back of the apartment to climb through a window, so she ran out the front door and escaped, banging on people's doors for help.

Some neighbors allowed her to use the phone, and she called the police. When the police arrived, they took her back to the apartment where appellant was already in custody. She told the police about the physical assault, but not about the sexual assault two days earlier because she was ashamed and embarrassed. She asked the officers to drive her to her estranged husband's home. Once there, she told her husband about appellant's sexual assault two days earlier and he took her to the hospital the next morning.

Although it was three days after the sexual assault, a S.A.N.E. nurse, Sonia Eddleman, examined J.S., noting an "oozing" anal tear, purple and yellow bruises on her left breast, left hip, left thigh, and left buttocks, as well as scrapes on her right buttocks. Nurse Eddleman said that J.S. did not have any other genital injuries.

After the State rested, appellant called his expert witness, Nurse Cheryl Hartzendorf, outside the presence of the jury, on a Daubert (1) hearing. Nurse Hartzendorf testified that she had examined J.S.'s medical records and found that the "rape kit" materials, gathered more than two days after the incident, did not uncover any sperm or fingernail scrapings that linked appellant to J.S. From these physical findings, she concluded that no sexual assault had occurred. She said that she was testifying pro bono because she saw "a right that needs to be wronged": (2)

There is no evidence to indicate that this particular person, no sperm, no head hair combings, no vaginal swabs, fingernail swabs, oral smears, vaginal smears, anal smears that- there's no DNA evidence linking this particular-Mr. Vela to the alleged rape of [J.S.]. . . . I think it is consensual sex.

There may well be a scientifically reliable basis for this opinion, but if so, the basis for that opinion is nowhere in this record. Of course, Nurse Hartzendorf was certainly qualified to testify to the absence of vaginal trauma, and to the lack of other physical evidence linking appellant to the complainant. (3) However, there is nothing at all in the record that supports any scientific connection between the absence of vaginal trauma and the conclusion that therefore any sexual encounter was consensual. Nor is there any explanation for concluding that this encounter was "consensual sex" from the fact that there was no DNA evidence linking appellant to the vaginal swabs taken from J.S. DNA evidence usually indicates ejaculation of sperm or the presence of some human portion of anatomy. The record contains no scientific support for an opinion that a lack of DNA evidence indicates consensual sex.

Here, Nurse Hartzendorf admitted that she had not consulted any scientific articles, nor was she aware of any that supported her hypothesis. She agreed that hers was not a widely accepted belief with persons in her profession. The defense reiterated that she was a nurse and had testified "in cases like this" once before. Therefore, she was qualified to express this particular opinion in this particular case without any further foundational showing of scientific reliability. When questioned by the trial court, Nurse Hartzendorf stated:

According to the medical records, there's no trauma to this particular client that she's claiming to of the neck bruising and- or fingerprints. According to the medical records of Christus Spohn Memorial or Doctor's Regional or Ms. Eddleman's report, it's not indicated that there is any marks around the - [J.S.'s] neck. There is no evidence that was collected in terms of hair samples, sperm, wet mounts, vaginal swabs or anything that indicate there was any evidence linking this particular client to the rape, alleged rape.

After thanking the witness, listening to the arguments of counsel, hearing Ms. Eddleman testify that she had never heard of this theory or of any scientific articles or other experts that supported the defense expert's position, the trial court sustained the State's objection to Nurse Hartzendorf's testimony.

Appellate courts must examine the trial court's Daubert ruling within the context of the specific factual situation, the specific "fit" between those facts and the expert's opinion, the expert's qualifications concerning the specific area of proffered testimony, and the scientific basis for any proposed expert opinion. Although the general theory of "no rape if no physical trauma or physical findings" may have a scientific basis, it is such a scientifically unusual theory that a trial court would not abuse its discretion in excluding testimony about such a theory unless the expert provided ample scientific documentation to support its reliability and applicability in a situation such as the present one.

Furthermore, the defense made no showing that Nurse Hartzendorf was aware of controlling Texas law concerning sexual assault. (4) Unless an expert is using the same legal standards as the jury must use, he cannot give his opinion on a legal term because his opinion would be of no assistance to the jury. (5) First, of course, Texas law does not require ejaculation, only penetration, for a sexual assault. (6) Second, Texas law does not require the use of physical force; sexual assault occurs when a person penetrates the sexual organ of another without that person's consent. (7) Further, even a layman might conclude that recovering physical evidence from a sexual assault that had occurred more than two days earlier might be a difficult proposition if the complainant had performed normal hygiene.

With these comments, I join the majority.

Filed: December 13, 2006

Publish



 

 

1.

Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593 (1993); see also Nenno v. State, 970 S.W.2d 549, 560-62 (Tex. Crim. App. 1998); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

2. Perhaps this statement is a word-sized spoonerism.

3. The State's expert had already testified to these facts. The defense offered Nurse Hartzendorf's testimony solely for her ultimate opinion that if there is no physical evidence, there is no rape.

4.

See Tex. Penal Code § 22.011.

5.

See, e.g., Lum v. State, 903 S.W.2d 365, 370 (Tex. App.-Texarkana 1995, pet ref'd) (holding that a witness's testimony regarding whether the defendant behaved negligently was properly excluded because the witness was "not shown to be an expert on negligence or to know the legal definition or standard of negligence"); see also Lindley v. Lindley, 384 S.W.2d 676, 682 (Tex. 1964) (stating that "a doctor's concept of what constitutes an insane delusion may be quite different from the legal concept").

6.

Id. § 22.011(a)(1)(A) ("A person commits an offense if the person intentionally or knowingly causes the penetration of the anus or sexual organ of another person, without that person's consent").

7.

Id.