COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ROBERTO SILVAS, §
No. 08-14-00147-CR
Appellant, §
Appeal from the
v. §
120th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20110D02228)
§
OPINION
A jury found Appellant Roberto Silvas guilty of indecency with a child by sexual contact
and aggravated sexual assault of a child and sentenced him to 20 years and 35 years imprisonment,
respectively. On appeal, Appellant contends the trial court erred in excluding the testimony of his
expert witness. He also contends the trial court erred in denying his motion for mistrial based on
a juror’s alleged failure to disclose she worked at the Child Advocacy Center, and because an
outside influence was improperly brought to bear on the jury. We affirm.
BACKGROUND
The charges against Appellant arose from his contact with J.E. when she was eleven years
old. Appellant and J.E.’s mother met at a bar where Appellant played in a band. They dated, and
Appellant later met her children, including J.E. Eventually, they all came to live together in
Appellant’s apartment. At one point, Appellant made the family move out of his apartment after a
fight, but they moved back in three months later.
J.E. testified that about a week after they moved back in, Appellant grabbed her buttocks
while she was giving him a hug. Later, Appellant touched her inappropriately by putting his
hands down her pants and his fingers inside her vagina. Appellant then unzipped his pants and
tried to get J.E. to put her hand on his penis. She refused. About three weeks later, J.E. was
returning with Appellant from a trip to a convenience store when Appellant stopped the car and
tried to force her legs apart.
J.E.’s mother testified that after J.E. told her what Appellant had done, she confronted
Appellant, who said he was sorry, he didn’t know why he did it, and he knew he was wrong.
Appellant testified at trial. Appellant denied that he had ever grabbed J.E.’s buttocks, denied that
the incident in his apartment described by J.E. ever happened, and denied that anything improper
occurred during the trip to the convenience store. Appellant also denied that any conversation
had occurred with J.E.’s mother where he said he was sorry.
DISCUSSION
Expert Witness
In Issue One, Appellant contends the trial court erred when it excluded the testimony of his
expert witness Judy Ackers. The admissibility of expert testimony is reviewed on appeal for an
abuse of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App. 2010).
Background
Joe Zimmerly, a forensic interviewer with the El Paso Child Advocacy Center, 1
1
Zimmerly testified the Child Advocacy Center is a nonprofit organization that facilitates investigations of physical
and sexual abuse of children. The Center houses the Crime Against Children section of the El Paso Police
2
interviewed J.E. several months after the assault. Appellant offered the video recording of
Zimmerly’s interview of J.E. into evidence during his cross-examination of J.E. The video was
later played to the jury immediately before Zimmerly testified. Zimmerly testified in general
terms concerning the interview, including his recollection that J.E. had not contradicted herself
during the interview. Zimmerly opined that the existence of minor discrepancies between the
video recording and the child’s testimony at trial four years later would not mean the child was
lying. Zimmerly also discussed a detailed drawing J.E. had made of the layout of the apartment
where Appellant had molested her, on the back of which she had written “I hate Bobby.”
After the State had rested, defense counsel announced Appellant would call as his first
witness his expert, Judy Ackers. The trial court first allowed the parties to voir dire Ackers on her
qualifications and proposed testimony. During this voir dire, the trial court interspersed its own
questions to Ackers. Among other things, Ackers stated her opinion that Zimmerly’s interview of
J.E. was “very amateurish, very inconsistent, [and he was] basically leading the child.” Ackers
admitted during voir dire that while she is a licensed and board-certified professional counselor
and psychotherapist who had interviewed over 100 child abuse victims in therapy, she was not a
forensic interviewer and was not licensed in forensic work. Accordingly, Appellant offered Judy
Ackers as an expert in “child victim interviewing, not forensic interviewing[.]” The trial court
ruled Ackers could testify regarding her field of expertise—providing therapy and interviewing
children—but did not have sufficient expertise to testify about forensic interviewing in general,
nor about Zimmerly’s forensic interview in particular. Ultimately, Appellant did not call Ackers
Department, investigators for Child Protective Services, and offices for district and county attorneys. Zimmerly
described the Child Advocacy Center as a child-friendly environment where children are brought to be interviewed by
Center staff, CPS, and law enforcement. Zimmerly stated he was a neutral fact finder for the Child Advocacy Center
and did not work for the police or CPS.
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as a witness.
Appellant makes a narrow argument on appeal. Appellant argues the trial court abused its
discretion because Ackers established her expertise in the area of counseling and child
interviewing, and there was no basis to “exclude” Ackers’ “expert opinion that Zimmerly’s
interview techniques employed improper and leading questions and [was] amateurish.”2
Analysis
We conclude the trial court did not abuse its discretion. As the State correctly points out,
the trial court did not exclude Ackers’ testimony. Rather, the court was not satisfied that Ackers
had the experience to testify as an expert about forensic interviewing, and ruled only that it “would
not permit her to testify or provide an opinion about forensic interviewing.” This was consistent
with Appellant’s offer of Ackers as an expert in “child victim interviewing, not forensic
interviewing[.]” More importantly, the trial court specifically found that Ackers’ testimony
would be “helpful to a jury,” and ruled that “I’ll let her testify . . . but as an expertise [sic] in her
field, which is, she does have expertise in therapy and interviewing children.” In explaining her
ruling, the trial court stated that Ackers had the qualifications “to give her opinions about what’s
better interviewing . . . and I [will] permit that[.]” The court also made clear that Ackers could
“talk about her concerns” that she had described in her voir dire testimony. One of the concerns
Ackers expressed in voir dire was that Zimmerly’s interview of J.E. was “very amateurish, very
2
When asked in voir dire if she would testify about “the truthfulness or untruthfulness of this child in this video,”
Ackers responded that she would “testify about the [child’s] demeanor and my impression.” Appellant offered
Ackers as an expert witness in part “to give an opinion as to the demeanor of a child and what a typical response is
to—what a normal response to a question about rape or sexual abuse would be.” At one point in her ruling, the trial
court indicated that Ackers would not be allowed to testify whether J.E. was telling the truth nor would she be allowed
to imply from J.E.’s demeanor whether J.E. was telling the truth. At other times, however, it appears the trial court
would allow some testimony in this regard. In any event, Appellant does not attack this part of the trial court’s ruling
on appeal, but rather complains only about the exclusion of Ackers’ opinion that Zimmerly employed improper and
leading questions and that his interview was amateurish.
4
inconsistent, [and he was] basically leading the child,” which is the very testimony Appellant
claims was erroneously excluded. In sum, the record shows that the trial court was going to allow
Ackers to testify about the very subject Appellant contends was excluded. 3 Issue One is
overruled.4
Motion for Mistrial
Appellant’s second and third issues concern Appellant’s contentions that the trial court
erroneously denied his motion for mistrial after the trial court informed the parties that she had
been informed that a juror allegedly had not disclosed during jury selection that she worked at the
Child Advocacy Center.
Standard of Review
A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class of
highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.
2009); see also Mendoza v. State, No. 08-13-00293-CR, 2015 WL 5999596, at *5 (Tex.App. – El
Paso Oct. 14, 2015, pet. ref’d) (not designated for publication). We review the denial of a mistrial
for an abuse of discretion. Ocon, 284 S.W.3d at 884; Mendoza, 2015 WL 5999596, at *5. We
must uphold the ruling if it was within the zone of reasonable disagreement. Ocon, 284 S.W.3d at
884; Mendoza, 2015 WL 5999596, at *5. In determining whether a trial court abused its
discretion by denying a mistrial, we would balance three factors: (1) the severity of the
3
If Appellant had any doubts about the scope of the trial court’s ruling, he should have asked for further clarification;
or Appellant should have had Ackers testify, which he declined to do.
4
Even if the trial court had abused its discretion, we could not determine whether the claimed “exclusion” of Ackers’
testimony was harmful, because the record fails to show the basis of Ackers’ bare opinion that Zimmerly’s interview
of J.E. was “very amateurish, very inconsistent, [and he was] basically leading the child.” See Coble, 330 S.W.3d at
277 n.62 (citing Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) (“Although expert opinion testimony often
provides valuable evidence in a case, ‘it is the basis of the witness’s opinion, and not the witness’s qualifications or his
bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a
credentialed witness.’ ”).
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misconduct (the magnitude of the prejudicial effect); (2) the effectiveness of the curative measures
taken; and (3) the certainty of conviction or the punishment assessed absent the misconduct.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Mosley v. State, 983 S.W.2d 249, 259
(Tex.Crim.App. 1998); Mendoza, 2015 WL 5999596, at *5.
Background
After the jury had retired to deliberate, the trial court informed the parties that Juror
Number 8—Heather Jones, the presiding juror—had called the court reporter and advised her “that
one of the jurors works at the Advocacy Center.” The trial court further informed the parties that
she had reviewed the juror information forms and that no one seated on the jury had indicated they
worked for the Advocacy Center. The court recalled that during voir dire the parties had
questioned the jury panel about involvement with any rape crisis advocacy groups, and that one
panel member had indicated that her husband was on the Board of the Child Advocacy Center.
The trial court believed this would have prompted any other panel member to “have stood up and
informed the parties” of “even a vague involvement” with the Advocacy Center. The court also
informed the parties that the staff of the Advocacy Center was very small and that she did not
believe that any of the staff were on the jury. The court informed the parties that other than its
prior admonishment of the jury that the case must be decided on the law and the evidence, the court
would not further inquire with the jurors about the information that had been relayed.
Defense counsel then moved for a mistrial stating:
[W]e’re going to be asking for a mistrial, due to an obviously biased juror. It
sounds like she withheld information during the voir dire process, and is becoming
an advocate in this jury room because, obviously, she's relaying information to the
rest of the jury that she's a member of the Child Advocacy group. And I believe
that the jury is now tainted. I do not believe Mr. Silvas can receive a fair trial at
this point.
6
The trial court denied the motion.
Analysis
In Issue Two, Appellant argues that mistrial should have been granted because his ability to
select an impartial jury was hindered by a juror withholding information about working at the
Child Advocacy Center despite counsel’s diligence, thereby violating his federal and state
constitutional rights to due process. In particular, Appellant argues that the presiding juror,
“Heather Jones . . . did not say anything about her association/employment/relationship with the
Child Advocacy Center and Joe Max Zimmerly.”
Appellant is correct that if despite the defendant’s due diligence, a juror withholds material
information during the voir dire process, the parties are denied the opportunity to exercise their
challenges, thus hampering their selection of a disinterested and impartial jury, thereby violating
the Sixth Amendment guarantees of the assistance of counsel and trial before an impartial jury.
Franklin v. State, 138 S.W.3d 351, 354-56 (Tex.Crim.App. 2004). Appellant’s argument,
however, fails for two reasons. First, the record does not show that juror Heather Jones had any
association with the Child Advocacy Center. Rather, the record shows only that Heather Jones
was the juror who reported “that one of the jurors works at the Advocacy Center.” Second, the
record does not establish that any juror in fact had any association with the Child Advocacy Center
or Zimmerly. The record shows only that Heather Jones told the court reporter that one of the
jurors works at the Advocacy Center, and contains no evidence supporting that accusation.
Further, the record reveals that after inquiry and reflection, the trial court did not believe that
anyone from the staff of the Child Advocacy Center was on the jury.
Put simply, the record before us does not establish that any juror in fact had any association
7
with the Child Advocacy Center or that a juror actually withheld information during the voir dire
process. And, Appellant did not attempt to establish during or after trial that a juror had actually
withheld information during the voir dire process.5 Because the record before us does not show
that any juror in fact had any association with the Child Advocacy Center or that a juror actually
withheld information during the voir dire process, we cannot conclude the trial court abused its
discretion in refusing to grant Appellant’s motion for mistrial. Issue Two is overruled.
In Issue Three, Appellant contends in a related argument that mistrial should have been
granted because the jury panel as a whole was prejudiced by an improper outside influence—the
knowledge that a fellow juror worked with Zimmerly, “the State’s key witness,” thereby violating
his federal constitutional right to a fair and impartial jury. We recognize that in some instances, a
juror bringing outside information into jury room deliberations can constitute an improper outside
influence requiring a new trial. See, e.g., McQuarrie v. State, 380 S.W.3d 145, 155
(Tex.Crim.App. 2012) (internet research conducted by a juror about effects of date rape drugs
constituted “outside influence” about which defendant should have been permitted to conduct
post-trial inquiry, without delving into deliberations, on motion for new trial on charge for sexual
assault, to determine whether such influence impacted outcome of case). But, as above,
Appellant’s contention in Issue Three fails for a total lack of evidence.
Appellant stated in his motion for mistrial that the juror who allegedly withheld
information during the voir dire process “is becoming an advocate in this jury room because,
obviously, she’s relaying information to the rest of the jury that she’s a member of the Child
5
Appellant did not complain in his motion for mistrial, nor does he complain on appeal, that the trial court should
have made further inquiry into this matter with the jury. And, while Appellant moved for a new trial based on “juror
misconduct,” he did not attach any evidence to that motion to establish that any juror in fact had any association with
the Child Advocacy Center, nor does Appellant complain on appeal that the trial court erred in denying his motion for
new trial.
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Advocacy group. And I believe that the jury is now tainted.” But, the record does not bear out
any of these allegations. The record does not show that any juror became “an advocate in [the]
jury room,” or if any juror relayed any information to the rest of the jury that “she’s a member of
the Child Advocacy group.” The record shows only that the presiding juror believed one of the
jurors worked for the Child Advocacy Center, and even then the record fails to show the source of
that knowledge. More importantly, the record does not reflect the jury had become “tainted” or in
other words that any such influence impacted the outcome of the case. Certainly, based on the
state of the record when it denied Appellant’s motion for mistrial, the trial court did not abuse its
discretion. And, while Appellant moved for a new trial based on “juror misconduct,” he did not
attach or present any evidence to establish that any juror in fact had any association with the Child
Advocacy Center or had relayed that information to the other jurors, or that any such influence
impacted the outcome of the case. 6 We therefore conclude the trial court did not abuse its
discretion in denying Appellant’s motion for mistrial. Issue Three is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
STEVEN L. HUGHES, Justice
October 5, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
6
As noted above, Appellant does not complain on appeal that the trial court erred in denying his motion for new trial.
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