i i i i i i
MEMORANDUM OPINION
No. 04-08-00792-CR
Frank G. SAENZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-5021
Honorable Dick Alcala, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: March 3, 2010
AFFIRMED
A jury convicted appellant Frank G. Saenz of two counts of aggravated sexual assault of a
child. In five issues, Saenz argues the trial court erred in denying his pretrial writ of habeas corpus,
in overruling his objections to extraneous offense evidence, and in overruling his objections to expert
testimony. We overrule Saenz’s issues and affirm the judgments of conviction.1
1
… The record contains a judgment for each count.
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FACTUAL AND PROCEDURAL BACKGROUND
In October 2000, Saenz was indicted for aggravated sexual assault of a child in a six-count
indictment. In February 2001, a jury convicted Saenz of three of the counts in the indictment. The
conviction was affirmed on appeal. Saenz v. State, 103 S.W.3d 541, 548 (Tex. App.—San Antonio
2003, pet. ref’d). Thereafter, the Court of Criminal Appeals granted Saenz’s application for a writ
of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure and set aside the
conviction because of ineffective assistance of counsel. See Ex parte Saenz, No. AP-75461, 2006
WL 1687473, at *1 (Tex. Crim. App. 2006) (not designated for publication).
In October 2008, Saenz was reprosecuted on an amended three-count indictment. Two counts
involved Saenz’s adopted daughter, Y.S. One count involved Saenz’s biological daughter, S.S. Both
Y.S. and S.S. testified at trial. Y.S., who was twenty-eight years old at the time of trial, testified that
during her childhood Saenz touched her sexual organs, performed oral sex on her, and engaged in
sexual intercourse with her. The touching and oral sex began when Y.S. was about four or five and
continued until she was fourteen. The sexual intercourse began when Y.S. was about thirteen and
continued until she was fourteen. S.S., who was also an adult at the time of trial, recanted her earlier
statements that Saenz had sexually abused her during her childhood, and the trial court granted a
directed verdict on the count involving S.S.
The jury found Saenz guilty of the two counts involving Y.S. Punishment was assessed at
ten years and one day imprisonment for each count. The sentences were ordered to run concurrently.
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PRETRIAL WRIT OF HABEAS CORPUS
In his first issue, Saenz argues the trial court erred when it denied his pretrial motion for a
writ of habeas corpus. In this motion, Saenz argued his reprosecution violated the double jeopardy
provisions of the federal and Texas constitutions.
The double jeopardy provisions of the federal and Texas constitutions protect a citizen from
repeated attempts at prosecution for the same criminal offense. Ex parte Wheeler, 203 S.W.3d 317,
322 (Tex. Crim. App. 2006). However, if a defendant requests a mistrial, double jeopardy normally
does not bar reprosecution. Id. Under the federal double jeopardy clause, a retrial is prohibited after
the defendant requests and is granted a mistrial only if the prosecution intentionally commits
manifestly improper conduct with the intent to provoke that mistrial. Id. (citing Oregon v. Kennedy,
456 U.S. 667, 672-73 (1982)). The same standard applies under the double jeopardy clause in the
Texas constitution. Lewis v. State, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).
We review the trial court’s ruling on a pretrial writ of habeas corpus for an abuse of
discretion. Ex parte Wheeler, 203 S.W.3d at 322. In conducting this review, we view the objective
facts in the light most favorable to the trial court’s ruling. Id.
Our disposition of Saenz’s first issue is governed by Ex parte Mitchell, 977 S.W.2d 575, 576
(Tex. Crim. App. 1997). Like Saenz, the appellant in Ex parte Mitchell moved for a mistrial, which
was denied, but then had his conviction set aside in a post-conviction habeas corpus proceeding.
Thereafter, the appellant in Ex parte Mitchell filed a pretrial motion for habeas corpus relief, arguing
his reprosecution would violate his rights under the federal and state constitutions. The trial court
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denied the motion and the appellate court affirmed. In affirming the judgment of the appellate court,
the Texas Court of Criminal Appeals stated,
The accused’s right under the double jeopardy clause to have his trial completed by
the first tribunal is clearly protected where, as in the present case, it proceeded to
conclusion, i.e., a verdict. Only where the prosecutor’s intentional, and deliberate
misconduct goads the accused into moving for a mistrial—and that motion is
granted—is the accused’s right to be tried to verdict by the first tribunal, a right
afforded him by the double jeopardy clause of the Fifth Amendment, violated. As
there was no mistrial in the present case, we hold applicant’s double jeopardy rights
under the United States Constitution are not violated by the State’s retrial of
applicant following reversal of his conviction.
Id. at 579-80 (emphasis in original). In the present case, as in Ex parte Mitchell, no mistrial was
granted. Because no mistrial was granted, there was no violation of Saenz’s double jeopardy rights.
Saenz recognizes the holding in Ex parte Mitchell, but argues, however, that he should be
entitled to relief regardless of whether he obtained a mistrial in the trial court, a reversal on appeal,
or a reversal in a post-conviction proceeding. Thus, according to Saenz, double jeopardy would be
implicated in this case if he could show there was prosecutorial misconduct in his first trial.
In response to Saenz’s arguments, the State points out that the double jeopardy provisions
of the federal and Texas constitutions do not preclude a retrial following a successful post-conviction
remedy. See Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (“It has long been settled, however, that the
Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the
government from retrying a defendant who succeeds in getting his first conviction set aside, through
direct appeal or collateral attack, because of some error in the proceedings leading to conviction.”);
United States v. Tateo, 377 U.S. 463, 463-64 (1964) (holding the retrial of a criminal defendant who
had a conviction overturned in collateral proceedings did not offend double jeopardy protection). The
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State further argues that even if Saenz could claim a double jeopardy violation by virtue of having
his conviction reversed, the record from the pretrial habeas corpus hearing failed to show (1) the
commission of intentional prosecutorial misconduct in the first trial, and (2) the intent to provoke
Saenz into moving for a mistrial. In fact, the State points out, Saenz’s conviction was not reversed
because of prosecutorial misconduct, but instead because of ineffective assistance of counsel. We
agree with the State’s arguments.
We hold Saenz’s double jeopardy rights were not violated by his retrial following the reversal
of his conviction in a post-conviction proceeding. See Ex parte Mitchell, 977 S.W.2d at 581.
Accordingly, the trial court did not abuse its discretion in denying Saenz’s pretrial writ of habeas
corpus. Saenz’s first issue is overruled.
EXTRANEOUS OFFENSE EVIDENCE
In his second issue, Saenz argues the trial court erred by admitting evidence of extraneous
offenses against Y.S. because the probative value of the evidence was substantially outweighed by
the danger of unfair prejudice. See TEX . R. EVID . 403. We review the admission of evidence under
an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Under this standard, we overrule complaints about the admission of evidence, as long as the trial
court’s ruling was within the zone of reasonable disagreement. Id.
Here, the indictment alleged Saenz sexually assaulted Y.S. on or about June 1, 1991, and on
or about June 1, 1992, when Y.S. was twelve and thirteen years old, respectively. Y.S. testified the
June 1, 1991, incident involved Saenz causing his penis to contact her vagina, and the June 1, 1992,
incident involved Saenz causing his penis to penetrate her vagina. Saenz contends Y.S.’s testimony
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should have been limited to evidence of the two offenses charged in the indictment. Saenz argues
the trial court abused its discretion by allowing Y.S. to testify about the history of her relationship
with Saenz, which included references to extraneous offenses that occurred over the course of
approximately nine years. Over Saenz’s Rule 403 objections, Y.S. testified about Saenz touching her
vagina in the bathtub when she was about four or five, performing oral sex on her when she was in
elementary school, telling her “that’s what daddies do,” touching her vagina on other occasions when
she was between the ages of five and fourteen, taking inappropriate Polaroid photos of her, having
sexual intercourse with her “[m]ore than 50, maybe more than 100” times, and giving her wine
coolers and beers to get her to relax during sexual intercourse.
Texas Code of Criminal Procedure 38.37 provides, in pertinent part:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other
crimes, wrongs, or acts committed by the defendant against the child who is the
victim of the alleged offense shall be admitted for its bearing on relevant matters,
including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
TEX . CODE CRIM . PROC. ANN . art. 38.37, § 2 (Vernon 2005).
Upon a proper objection, the trial court may exclude relevant evidence if the probative value
of the evidence is substantially outweighed by the danger of unfair prejudice. See TEX . R. EVID . 403.
The Court of Criminal Appeals has listed several factors that a trial court should consider in
conducting a Rule 403 balancing test: (1) the probative value of the evidence; (2) the potential of the
evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the
proponent needs to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v.
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State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery v. State, 810 S.W.2d 372, 389-90
(Tex. Crim. App. 1990) (op. on reh’g). Rule 403 favors the admission of relevant evidence and
carries a presumption that relevant evidence will be more probative than prejudicial. Williams v.
State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997).
To sustain this issue, we must conclude the probative value of the evidence was so
substantially outweighed by the danger of unfair prejudice that the decision to admit the evidence
was not even within the zone of reasonable disagreement. See TEX . R. EVID . 403; Moses,105 S.W.3d
at 627. Here, Saenz does not challenge the probative value of the evidence presented in this case. To
the contrary, Saenz acknowledges the evidence in question was probative. Instead, Saenz emphasizes
the prejudicial nature of the extraneous offense evidence, contending Y.S.’s testimony “could not
have failed to impress the jury in a way that was both irrational and unforgettable.” Saenz also
complains about the time it took to develop the evidence, asserting it took two-thirds of a day for
Y.S. to testify about these events.
In light of Saenz’s arguments, we consider the factors pertinent to the Rule 403 balancing
test. First, the evidence in question was highly probative because it demonstrated the history and
progression of the relationship between Y.S. and Saenz, and provided insight into both of their states
of mind. This factor weighs in favor of the admission of the evidence. Second, the potential to
impress the jury in some irrational and indelible way was also high. As even the State acknowledges,
evidence of repeated sexual assaults by a father on his daughter beginning at the age of four or five
and occurring until the age of fourteen undoubtedly had a strong emotional effect on the jury. This
factor weighs against the admission of the evidence. Third, although the evidence took some time
develop, we cannot say it diverted the jury’s attention from the crucial issues in this case. The
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primary issue at trial was whether Saenz sexually assaulted Y.S. Another important issue was Y.S.’s
state of mind and her delay in disclosing the assaults. The evidence in question was closely related
to these issues. Thus, this factor is neutral. Finally, the State’s need for the extraneous offense
evidence was also high. This factor involves considering whether the State needed the evidence in
question to establish a fact of consequence and whether that fact of consequence was in dispute.
Montgomery, 810 S.W.2d at 390. Here, the only direct evidence of the charged offenses was from
Y.S., who did not disclose the sexual abuse until she was an adult. The defense attacked Y.S.’s
credibility and her delay in disclosing the charged offenses. The evidence in question was necessary
to help the jury understand why Y.S. might have delayed in disclosing the offenses charged in the
indictment. This factor weighs in favor of the admission of the evidence.
After weighing the required factors, we conclude the trial court could have reasonably
concluded the probative value of the evidence was not substantially outweighed by the danger of
unfair prejudice. The trial court’s decision to admit the extraneous offense evidence was within the
zone of reasonable disagreement, and therefore, was not an abuse of discretion. Saenz’s second issue
is overruled.
In his third issue, Saenz argues the trial court erred by admitting evidence of extraneous
offenses against S.S. because the probative value of the evidence was substantially outweighed by
the danger of unfair prejudice. See TEX . R. EVID . 403. The record does not show Saenz objected to
this evidence at the time of its admission. See TEX . R. EVID . 103(a)(1) (stating error may not be
predicated upon a ruling which admits evidence unless a timely objection appears of record). Saenz
acknowledges this fact, but contends he preserved this issue because he obtained a ruling on this
evidence by way of a motion in limine order. We disagree. Notwithstanding a motion in limine order,
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a defendant remains obligated to make a timely and specific objection when evidence is offered at
trial. See Gilchrest v. State, 904 S.W.2d 935, 938 (Tex. App.—Amarillo 1995, no pet.) (holding
complaints about the admission of extraneous offense evidence were waived by the defendant’s
failure to object during trial); Rawlings v. State, 874 S.W.2d 740, 742-43 (Tex. App.—Fort Worth
1994, no pet.) (“The granting or denying of a motion in limine, without more, preserves nothing for
appellate review.”). Saenz’s third issue is overruled.
EXPERT TESTIMONY
Admission of expert testimony is governed by Texas Rule of Evidence 702. Morales v. State,
32 S.W.3d 862, 865 (Tex. Crim. App. 2000). Pursuant to Rule 702, a witness may offer an expert
opinion if the witness is qualified to do so by knowledge, skill, experience, training, or education and
the witness possesses scientific, technical, or other specialized knowledge that will assist the trier
of fact to understand the evidence or to determine a fact in issue. TEX . R. EVID . 702. If the trial court
determines the underlying facts or data do not provide a sufficient basis for the expert’s opinion, the
opinion is inadmissible. See TEX . R. EVID . 705(c). Before admitting expert testimony under Rule
702, the trial court must be satisfied that three conditions are met: (1) the witness qualifies as an
expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter
of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony
will actually assist the fact-finder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex.
Crim. App. 2006).
We review a trial court’s decision to allow expert opinion testimony for an abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007). We must uphold the trial
court’s ruling if it was within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d
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540, 542 (Tex. Crim. App. 2000). Moreover, we review the trial court’s ruling in light of the
evidence before the trial court at the time the ruling was made. Id.
1. Testimony of Cheri Estrada
In his fourth issue, Saenz argues the trial court erred in allowing expert testimony from Cheri
Estrada, a San Antonio Police Department detective who investigated sexual assault complaints,
including the complaint made by Y.S. Saenz argues Estrada was not qualified to render an opinion
about delayed outcry and recantation by sexual abuse complainants. In response, the State argues
only part of this complaint is preserved. According to the State, Saenz never objected that Estrada
was not qualified to give an expert opinion on delayed outcry.
To preserve error for appellate review, the complaining party must make a timely and specific
objection at the earliest opportunity. TEX . R. APP . P. 33.1(a)(1); Acevedo v. State, 255 S.W.3d 162,
167 (Tex. App.—San Antonio 2008, pet. ref’d). A specific objection regarding expert testimony
must detail the particular deficiency in the expert’s qualifications or the reliability of the expert’s
opinions. Acevedo, 255 S.W.3d at 167. Here, the record shows Saenz specifically objected to
Estrada’s qualifications to provide expert testimony on recantation; however, the record shows no
similar objection was made as to Estrada’s qualifications to provide expert testimony on delayed
outcry. In fact, by the time Saenz objected to Estrada’s qualifications, Estrada had already testified
on delayed outcry.
No rigid formula exists to evaluate whether a particular witness qualifies as an expert.
Matson v. State, 819 S.W.2d 839, 851 n.10 (Tex. Crim. App. 1991). A witness may be qualified by
reason of knowledge, skill, experience, or training, regardless of its source. Id. Here, Estrada testified
she held a master’s degree in psychology from Our Lady of the Lake University. To earn this degree,
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Estrada took courses in child development and abnormal psychology. Estrada’s practical experience
consisted of twenty-three years with the San Antonio Police Department, including almost three
years in the sex crimes unit of the San Antonio Police Department. Estrada testified that even though
she had been moved to another unit she continued to work on some sex crimes cases. Estrada
testified she had encountered numerous complainants who made delayed outcries or who recanted
allegations of sexual abuse. Estrada also testified she had read articles and studies on delayed outcry
and recantation by child sexual assault complainants.
The record shows that even if Saenz had objected to Estrada’s qualifications to provide
expert testimony on delayed outcry, the trial court could have properly allowed this testimony. Based
on this record, we hold the trial court’s decision to allow Estrada’s testimony on delayed outcry and
recantation was not an abuse of discretion. Saenz’s fourth issue is overruled.
2. Testimony of Dr. Nancy Kellogg
In his fifth issue, Saenz argues the trial court erred in allowing the testimony of Dr. Nancy
Kellogg, professor of pediatrics at the University of Texas Health Science Center, San Antonio.
Saenz does not challenge Kellogg’s qualifications to provide expert opinions in child sexual abuse
cases. Instead, Saenz argues the trial court abused its discretion in allowing Kellogg’s testimony
because Kellogg “[w]ithout speaking to the complainants” “had incomplete data on which to base
her expert opinions.” Saenz further argues Kellogg “did not—and could not—tie the facts of the case
to the scientific principles that she testified about.” Thus, Saenz essentially argues that because
Kellogg never interviewed Y.S., she could not have tied the facts of the case to the scientific
principles about which she testified.
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Here, the record shows Saenz specifically objected to Kellogg’s testimony based on the
expert’s failure to talk to or examine Y.S.; however, Saenz did not specifically object to Kellogg’s
testimony because of the expert’s alleged failure to tie the facts of the case to the scientific principles
about which she testified.2 Moreover, the record shows that by the time Kellogg testified, the trial
court had heard Y.S.’s testimony. Y.S. testified she did not disclose the sexual abuse to anyone until
she was an adult and living on her own. Y.S. further testified that when she finally disclosed the
sexual abuse to her mother, her mother and Saenz were experiencing marital difficulties, and her
mother was emotionally supportive of her and facilitated her reporting the sexual abuse to the police.
For authority, Saenz relies on Acevedo, a case in which we held the trial court abused its
discretion in admitting expert testimony on the effects crystal methamphetamine had on the
defendant. 255 S.W.3d at 169. In Acevedo, the record showed the expert, a psychiatrist and
pharmacist, possessed no information whatsoever about the particular facts of the case; the expert
had no information about the defendant’s individual characteristics, previous drug use, drug
tolerance, how much of the drug was ingested, when the drug was ingested, and what other
substances were ingested. Id. Under these circumstances, we concluded the expert’s testimony was
speculative, and therefore, unreliable and irrelevant. Id. at 169-70.
Here, by contrast, Kellogg testified she reviewed numerous documents prior to forming her
expert opinion in this case, including statements made by Y.S. and S.S., statements made by their
mother, and the transcripts of Y.S.’s and S.S.’s testimony from the first trial. Additionally, Kellogg’s
2
… Defense counsel stated, “I’m going to object again, Judge, we’ve had this before, but I’ll have to continue
to object. W hen we’re making specific opinions on somebody she’s never met, never talked to, never done an
examination, never gotten the history that she’s talked about just a minute ago, from her. I’m going to have to object that
we’re going far beyond any medical diagnosis or standard medical diagnosis that a doctor should be entitled to give.”
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testimony shows she had a thorough understanding of the particular facts of this case, including a
familiarity with Y.S.’s delayed disclosure of the sexual abuse, the progression of abuse alleged by
Y.S., and the circumstances of S.S.’s outcry and her recantation. We, therefore, are of the opinion
that the trial court could have reasonably concluded that Kellogg had sufficient facts and data upon
which to base her opinions. See Griffith v. State, 983 S.W.2d 282, 288 (Tex. Crim. App. 1998)
(holding the trial court did not abuse its discretion in admitting expert testimony when expert told
the jury he reviewed the investigative reports, crime scene photos, autopsy photos, witness
statements, and the defendant’s school and personnel records before developing an opinion about
the defendant’s future dangerousness).
Additionally, we are of the opinion that even if Saenz had objected to Kellogg’s testimony
based on her alleged failure to tie the facts of this case to scientific principles, the trial court could
have properly overruled this objection. Based on the documents she reviewed, Kellogg stated she
would give Y.S. a medical diagnosis of sexual abuse. Kellogg testified her opinion was based on the
detail Y.S. provided about what happened, which was “very rich and consistent.” Kellogg also stated
her opinion was based on the circumstances of Y.S.’s disclosure, when Y.S. finally told someone
about the abuse, when she reported the situation, the family’s response, and how the family’s
response affected Y.S. Kellogg opined that all of these factors were consistent with what she had
seen in other children and adolescents she evaluated for sexual abuse. Kellogg went on to testify that
children typically disclose sexual abuse when they cannot take it anymore or when they feel safe.
Here, Kellogg said it was her understanding that Y.S. had separated herself from her home by the
time she disclosed the sexual abuse, and she was beginning to deal with the issues and emotional
problems caused by the sexual abuse. Kellogg indicated that children, adolescents, and even adult
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victims of sexual abuse delay disclosure for a lot of reasons. Kellogg went on to say that most
victims delayed disclosure because they were afraid of what would happen when they did. In
particular, Kellogg noted that when sexual abuse occurred in a family situation, the victims feared
disclosure would break up the family and cause a lot of turmoil. After reviewing the record, we
conclude Kellogg was able to tie the facts of this case to her expert opinion testimony.
We hold the trial court’s decision to admit Kellogg’s testimony was not an abuse of
discretion. Saenz’s fifth issue is overruled.
CONCLUSION
The judgments of the trial court are affirmed.
DO NOT PUBLISH
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