Opinion issued January 10, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00211-CV
———————————
DENIA MUELLER, Appellant
V.
JOHN MICHAEL BRAN, Appellee
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Case No. 2007-50969
MEMORANDUM OPINION
Appellant, Denia Mueller, challenges the trial court’s order entered after a
jury trial, appointing appellee, John Michael Bran, sole managing conservator and
Mueller possessory conservator of their child. In three issues, Mueller contends
that the trial court erred in holding that anonymous telephone calls made to a juror
regarding a “survey” about child abuse did not constitute sufficient evidence of
jury contamination to declare a mistrial, allowing Bran’s expert witness to testify,
and conducting voir dire without providing her the assistance of a Spanish
language interpreter.
We affirm.
Background
In August 2009, Mueller brought a Suit Affecting Parent Child Relationship
(“SAPCR”) against Bran concerning their minor child, and the trial court
appointed them joint managing conservators of the child, giving Mueller the
exclusive right to determine the child’s residency.
Subsequently, Bran filed the instant suit, seeking a temporary restraining
order. Virginia Smith, the child’s paternal grandmother, intervened in the case,
and the trial court placed the child with her temporarily. The case was tried to a
jury, which returned a verdict in favor of changing the conservatorship of the child
to Bran as sole managing conservator with the exclusive right to determine the
child’s residence and Mueller as possessory conservator of the child.
The trial court then entered its Order in Suit to Modify the Parent-Child
Relationship, appointing Bran as sole managing conservator and granting Mueller
2
supervised visitation with the child. Mueller then filed a motion for new trial,
which the trial court denied.
Jury Contamination
In her first issue, Mueller argues that the trial court erred in not declaring a
mistrial and empaneling a new jury because the jury was “contaminated.” Mueller
complains that a juror received two recorded telephone messages asking her to
participate in a “survey” concerning child abuse. We note that jury misconduct
includes outside influence on jurors. See Losier v. Ravi, 362 S.W.3d 639, 646
(Tex. App.–Houston [14th Dist.] 2009, no pet.).
After the juror alerted the court that she had received the telephone
messages, the trial court held a brief hearing and questioned her about the
messages. See TEX. R. CIV. P. 327(b) (allowing juror testimony regarding outside
influence). The juror testified that she received the initial recorded message on her
cellular telephone stating that the caller was conducting a survey and asking if she
had been in contact with or knew anyone that could have suffered from child
abuse. The juror explained that she immediately stopped listening to the message.
She received a second message from the same telephone number the next day at
lunchtime. The juror listened to only the first few words of the recording, which
was long enough to determine that it was a repeat of the first message. Neither
recording referred to the case or mentioned the parties, and the juror noted that the
3
messages would not influence her decision in this case. The juror explained that
she had asked the other jurors if they had received any similar calls. Another juror
then testified that she had received a call on her cellular telephone that came from
the same area code as the calls placed to the first juror, but not the same number,
and the caller did not leave a message. The court concluded the hearing, noting
that it was “not worried about what [it] heard.”
Mueller made no objection during the hearing, did not ask the trial court to
declare a mistrial based on jury misconduct, and did not raise the issue of jury
misconduct in her motion for new trial. A complaint for jury misconduct must be
raised in a motion for new trial. See TEX. R. CIV. P. 324(b). Because Mueller did
not preserve error regarding her complaint of jury misconduct, we hold that she has
waived the issue on appeal. See id.; Dunn v. Houston Lighting & Power Co., No.
01-99-00595-CV, 2001 WL 996082 at *2 n.2 (Tex. App.—Houston [1st Dist.]
Aug. 30, 2001, pet. denied) (not designated for publication) (alleged error for jury
misconduct waived on appeal when not raised in motion for new trial and amended
motion was untimely filed).
We overrule Mueller’s first issue.
Expert Testimony
In her second issue, Mueller argues that the trial court erred in allowing the
expert testimony of psychologist Daphne Johnson because Bran did not qualify her
4
as an expert. See TEX. R. EVID. 702. Mueller objected to Johnson’s testimony on
the ground that she was “[n]ot competent to testify, Judge, not qualified.”
We will not disturb a trial court’s determination that a witness is or is not
qualified as an expert unless an abuse of discretion is shown. See Gammill v. Jack
Williams Chevrolet, Inc., 972 S.W.2d 713, 718–19 (Tex. 1998). Consequently, we
may not conclude that the trial court has abused its discretion simply because, in
the same circumstances, we 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, no pet). Instead, we gauge an abuse of
discretion by determining whether the trial court acted without reference to any
guiding rules or principles. E.I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 558 (Tex. 1995). Thus, a trial court enjoys wide latitude in
determining whether expert testimony is admissible. Hernandez, 53 S.W.3d at
750.
At the outset, we note that, on appeal, Mueller suggests that Johnson’s
testimony was not relevant and she questions Johnson’s “scientific methodology.”
To the extent that Mueller attempts to raise these issues in her briefing to this
Court, we note that she waived them because she made no such objections at trial,
nor did she move to strike any of Johnson’s testimony. See Guadalupe–Blanco
River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002) (stating that to preserve
5
complaint regarding unreliability of expert’s testimony, party must have objected
to testimony on that basis before trial or when testimony was offered). In order to
preserve a complaint for appellate review, the complaining party must make a
timely objection, request, or motion with sufficient specificity and obtain a ruling
on the objection, request, or motion. TEX. R. APP. P. 33.1(a); TEX. R. EVID.
103(a)(1). A specific objection enables a trial court to understand the precise
complaint and make an informed ruling and it affords the offering party an
opportunity to remedy the defect, if possible. McKinney v. Nat’l Union Fire Ins.
Co., 772 S.W.2d 72, 74 (Tex. 1989). And any complaint made on appeal must
comport with the objection made before the trial court. Religious of Sacred Heart
of Tex. v. City of Houston, 836 S.W.2d 606, 614 (Tex. 1992).
In regard to Mueller’s argument that Bran did not qualify Johnson to testify
as an expert, we note that the party calling the expert witness must show that the
witness is qualified by having “knowledge, skill, experience, training, or
education” to testify on the specific issue that is before the court. See TEX. R.
EVID. 702; Gammill, 972 S.W.2d at 718. Under rule 702, expert testimony is
allowed if it would assist the trier of fact in understanding the evidence or
determining a fact issue. Gammill, 972 S.W.2d at 718. Whether an expert is
qualified under rule 702 is a preliminary matter that is to be determined by the trial
court. See id. The trial court must “ensur[e] that those who purport to be experts
6
truly have expertise concerning the actual subject about which they are offering an
opinion.” Id. at 719 (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)).
“General experience in a specialized field is insufficient to qualify a witness as an
expert.” General Motors Corp. v. Burry, 203 S.W.3d 514, 526 (Tex. App.—Fort
Worth 2006, pet. denied). Testimony from an expert who is not qualified to offer a
particular opinion in a case is not admissible because it does not rise above mere
speculation, and thus, does not offer genuine assistance to the jury. Broders, 924
S.W.2d at 150-54 (Tex. 1996).
Here, Johnson testified that she has a master’s degree in counseling and is a
licensed professional counselor. To become a licensed professional counselor, she
had to perform an internship and pass a National Counselor’s Exam. Johnson is a
supervisor and trains other counselors and therapists. She is also a “certified
expert” through Newsom Psychological, which provides therapeutic services for
people working with Child Protective Services (“CPS”). Johnson is also certified
by CPS as an expert witness regarding children’s issues, and she has been for
seven years a certified anger management therapist and anger management trainer,
which authorizes her to train other therapists on how to provide anger management
services.
Johnson further testified that she has 15 years experience as a foster parent
and as a licensed childcare administrator. She is a certified special education
7
teacher and has worked for the Houston Independent School District, the Lamar
Consolidated School District, and at the Harris County Juvenile Probation in the
Juvenile Justice Alternative Education program as a special education teacher. As
a special education teacher, Johnson has worked with children with mental and
physical disabilities and with those who are emotionally disturbed. In her private
counseling practice, “Wise Counseling,” Johnson has provided therapy services to
hundreds of children. And she has seen child abuse and is familiar with it.
Johnson has worked with several children who have been abused, and she has
regularly reported the abuse of “quite a few,” but “less than a hundred,” children to
CPS.
Johnson further explained that she provided therapeutic counseling,
consisting of approximately 30 sessions, for the child in this case beginning in
February 2011 up to the time of the trial in September 2011. Johnson noted that
when the child started her therapy sessions, her head had been shaved by Mueller.
Johnson opined that Mueller’s act of shaving the child’s head constituted child
abuse because most young girls are attached to and defined by their hair. Johnson
explained that to shave all the hair from a young girl’s head would be punitive, i.e.,
used “as a form of punishment or some sort of retaliation for something” and was
“excessive and abusive.” Johnson further opined that shaving a child’s head as did
8
Mueller is degrading and humiliating, and may cause permanent psychological
damage without therapeutic intervention.
During her therapy, the child told Johnson that Mueller had also made her
eat her own feces when she had a bathroom accident. Johnson concluded that this
constituted child abuse as well. Johnson explained that the child went into detail
when she told Johnson what had happened and was very concerned about not
having another bathroom accident. Johnson opined that a parent who would do
this to her child was not qualified to be a parent or to have unsupervised visitation
with the child. Johnson noted that when Mueller made the child eat feces, she had
actually committed “family violence,” and that many of the things that Mueller did
to punish the child were “abusive” and “excessive.”
Johnson highlighted another incident in which the child tried to take her
clothes off when she climbed into bed with her stepmother. The child learned this
behavior from Mueller, and Johnson opined that it made Mueller an unfit parent.
Johnson also opined that Mueller’s action in putting the child in an unlit closet
with the door closed for long periods of time as a punishment constituted child
abuse.
Finally, based only on her exposure to the child through the therapy
sessions, Johnson opined that the child would be best served by being placed with
Bran who would meet the physical and emotional needs of the child. And Johnson
9
opined that Virginia Smith, the child’s grandmother, would also meet the child’s
physical and emotional needs. Johnson concluded that Mueller was not qualified
to meet the child’s physical and emotional needs and Mueller had not provided the
child with a stable home. Johnson explained that Bran had provided the child with
a very stable home environment. She noted that Bran and his wife and his mother
work together and are supportive of the child. And Bran, his wife, and his mother
all have good parenting skills, which Mueller does not possess. Johnson opined
that Bran should have custody of the child.
As is evident from the record, Johnson’s testimony was not of a scientific or
technical nature. Rather, Johnson’s opinions were based on her observations
during her approximately 30 sessions with the child. Johnson’s testimony was also
based on her years of experience and training as a licensed professional counselor
and having provided therapy to children and parents.
Johnson has extensive training and experience working with CPS and
parents and children utilizing CPS services. And she has provided therapy to
hundreds of children during her seven years as a licensed professional counselor.
Based on Johnson’s education, training, and experience counseling parents and
children similarly situated to the child in this case, as well as her 30 therapy
sessions with the child, we hold that the trial court acted within its discretion in
10
concluding that Johnson is an expert with specialized knowledge and was qualified
to render her opinions in this case. See TEX. R. EVID. 702.
We overrule Mueller’s second issue.
Voir Dire
In her third issue, Mueller argues that the trial court violated her due process
rights under the Fourteenth Amendment by conducting voir dire without providing
her the assistance of a Spanish language interpreter. Mueller asserts that she
needed an interpreter to “assist her in the trial of the case” and she was deprived of
an opportunity to “meaningfully participate in the jury selection process.”
Our review of the record reveals that Mueller failed to indicate to the trial
court in any manner, whether by objection, motion for continuance, motion to
dismiss the panel, or otherwise, that she believed that her rights were being
violated. Mueller makes no citation to the record indicating otherwise. In fact, the
record reveals that before voir dire began, the trial court and the attorneys were
aware that the interpreter who normally worked in the court was absent and a
substitute had stopped by and would later return. At that time, Mueller’s attorney
provided interpretation so that two Spanish-speaking witnesses could be sworn and
excused from the courtroom. Mueller’s counsel made no objection to the absence
of the interpreter and did not ask the trial court to wait until the substitute
11
interpreter could be brought back to the courtroom. Thus, Mueller has failed to
preserve her complaint for appellate review. See TEX. R. APP. P. 33.1
We also note that despite Mueller’s assertions that she was deprived of due
process and the opportunity to participate in the jury selection process, the record
does not reflect that the complained of action probably caused the rendition of an
improper judgment. See TEX. R. APP. P. 44.1(a)(1). Mueller was represented by
counsel at trial, and he actively participated in questioning potential jurors and
exercised Mueller’s right to strike certain potential jurors that he found
objectionable.
We overrule Mueller’s third issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley and Sharp.
12