Gabriel Torres Salinas v. State ( 2009 )

Affirmed and Memorandum Opinion filed October 8, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00183-CR

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GABRIEL TORRES SALINAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 43,968

M E M O R A N D U M   O P I N I O N

A jury found appellant Gabriel Torres Salinas guilty of aggravated sexual assault of a child and the trial judge assessed punishment at thirty-six years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  On appeal, Salinas contends that the trial court reversibly erred in allowing a pediatrician to testify concerning delayed outcry in children.  For the reasons explained below, we affirm.

I

Salinas does not challenge the sufficiency of the evidence.  The State alleged that in September 1999, when the complainant, O.A., was nine years old, her mother, Andrea Rodriguez, invited Salinas to live with them in the two-bedroom apartment they shared with O.A.=s little brother and Rodriguez=s sister.  On or around November 1 of that year, O.A. was asleep in one of the bedrooms when Salinas woke her up and sexually assaulted her.  Later, when Rodriguez came home, O.A. did not tell her what had happened because she was scared and afraid that her mother would be ashamed of her.  In January 2000, Salinas moved out of the apartment.  Shortly after that, O.A. told her best friend Crystal what Salinas had done to her, but she made Crystal promise not to tell anyone.^[1] Several years later, O.A. told her cousin Erica, but also made her promise not to tell anyone.  Finally, in February 2006, on her sixteenth birthday, O.A. told her mother that Salinas had raped her.  At first Rodriguez did not believe her, but later she apologized and informed O.A.=s school counselor about the rape.  The counselor contacted the authorities and Salinas was charged with aggravated sexual assault of a child.  At the time of trial, O.A. was seventeen years old.

In connection with the rape allegation, the Fort Bend Child Advocacy Center referred O.A. to Dr. Rebecca Girardet for a medical evaluation.  At trial, Dr. Girardet explained that she was a pediatrician employed at the University of Texas Medical School in Houston and that she specialized in child maltreatment.  She testified that she was experienced in examining children who have made sexual-abuse allegations, that she had examined over a thousand such children, and that she was considered to be an expert in issues surrounding sexual abuse.  Dr. Girardet explained the examination process generally and her examination of O.A.  Among other things, Dr. Girardet testified that O.A. told her that Salinas had raped her one time when she was nine years old. 

On appeal, Salinas complains about the following exchange between the prosecutor and Dr. Girardet concerning delayed outcry:

Q [Prosecutor]:  Dr. Girardet, in your experience, with over thousands of children you have personally examined and the research you have read and participated in, would you say a lot of children make a delayed outcry?

[Defense counsel]: Objection.  I don=t think the witness has been qualified as an expert in any kind of psychology or psychiatry.

[The Court]:  Overruled.  You can finish the question.

Q [Prosecutor]:  In your experience, do children always tell right away?

A:  In my experience, no.  A lot of children do make a delayed outcry.

Q [Prosecutor]:  And based on your training and experience and your information you=ve been given from some of the children you=ve examined who have made a delayed outcry, do you have an opinion as to why children don=t always tell right away?

[Defense Counsel]: Same objection.

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[The Court]: Overruled.

A: Sometimes children are threatened and told they shouldn=t tell about the abuse.  Sometimes children have been made to feel ashamed by  - - that it=s their fault or that they=re dirty because this has happened to them.  So, they=re afraid or ashamed is often why there=s a delayed outcry.

The prosecutor then asked Dr. Girardet what fears children had expressed to her as a reason for delaying outcry.  Dr. Girardet testified without objection that some children have expressed fear arising from threats, fear of getting into trouble, or fear of not being believed.  She also testified that some children had told an adult who did not do anything about it.^[2]

II

Salinas contends that the trial court abused its discretion in admitting Dr. Girardet=s testimony because she was not qualified to opine on the psychology of delayed outcry and because the record does not reflect that she has any knowledge, training, or expertise in this area.  We apply the abuse-of-discretion standard to review a trial court=s decision on whether to allow expert testimony.  See Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2872 (2008); see also In re E.C.L., 278 S.W.3d 510, 518 (Tex. App.CHouston [14th Dist.] 2009, pet. denied).  Before reversing the trial court=s decision, we must find that the trial court=s ruling was so clearly wrong as to lie outside the realm within which reasonable people might disagree.  Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Green v. State, 191 S.W.3d 888, 895 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).

A

The Court of Criminal Appeals has held that a trial court must make three separate inquiries in determining whether it should admit expert testimony: (1) Does the witness qualify as an expert by reason of his knowledge, skill, experience, training, or education; (2) is the subject matter of the testimony an appropriate one for expert testimony; and (3) will admitting the testimony actually assist the fact‑finder in deciding the case?  See Vela v. State, 209 S.W.3d 128, 130B31 (Tex. Crim. App. 2006) (relying on Tex. R. Evid. 104(a), 401, 402, and 702, and quoting Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006)).  These conditions are commonly referred to as qualification, reliability, and relevance.  Id. at 131.  In the present case, we are concerned only with qualification.

Because a witness will not always qualify as an expert merely by virtue of a general background, qualification is a two‑step inquiry.  Vela, 209 S.W.3d at 131.  A witness must first have a sufficient background in a particular field; but a trial judge must then determine whether that background A>goes to the very matter on which [the witness] is to give an opinion.=@  Id. (quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)).  The proponent also must A>establish that the expert has >knowledge, skill, experience, training, or education= regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.=@  Id. at 132.  Just as the subject matter of an expert=s testimony should be tailored to the facts of a case, the expert=s background must be tailored to the specific area of expertise about which he intends to testify.  Id. at 133.

B

The prosecutor first asked whether, in Dr. Girardet=s personal experience, many children who have been sexually assaulted make a delayed outcry.  Dr. Girardet had testified earlier that she had examined over a thousand sexually abused children, and her answer was based on her personal experience over the course of her practice.  Therefore, this question was not one that required her to express an opinion on the psychological or social reasons for a child to delay her outcry.  See Barnes v. State, 165 S.W.3d 75, 83 (Tex. App.CAustin 2005, no pet.) (physician=s testimony concerning differences in delay of outcry by children abused by family members or strangers did not constitute expert opinion because question asked physician to state what she had observed during the course of her career).

The question that followedCwhether Dr. Girardet had an opinion as to why children delay outcryCarguably extended beyond merely inquiring into Dr. Girardet=s personal experience with children who delay outcry.  Therefore, we will consider whether Dr. Girardet was qualified to opine concerning the reasons why children may delay outcry.

In Vela v. State, the court recognized there was no validity to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question.  209 S.W.3d at 132.  Rather, the proponent of the testimony must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.  Id. Consequently, the focus of the inquiry is on the Afit@ between the subject matter at issue and the expert=s familiarity with it.  Id. at 133.  The expert=s background must be tailored to the specific area of expertise in which the expert desires to testify.  Id.

Here, Dr. Girardet, a pediatrician and specialist in child maltreatment, has published research in the area of maltreatment, particularly in the area of child abuse.  She has personally examined over one thousand children and is considered an expert in the area of sexual abuse.  Also, Dr. Girardet=s ten-page curriculum vitae, which was admitted into evidence without objection, reflects her extensive training, skills, education, experience, and publications in the area of child sexual abuse.  The prosecutor specifically requested Dr. Girardet=s opinion based on her training and experience, as well as her examinations of children who have made a delayed outcry for an opinion on why sexually abused children may delay outcry.  We hold that this question, as posed, did not require a greater or more specific degree of expertise in the psychology or sociology of sexually abused children than possessed by Dr. Girardet.^[3] Moreover, Dr. Girardet=s testimony would assist the jury in understanding why children may delay reporting sexual abuse.  See Tex. R. Evid. 702; Vela, 209 S.W.3d at 131; Barnes, 165 S.W.3d at 83. On this record, therefore, we cannot say that the trial abused its discretion by admitting Dr. Girardet=s testimony. 

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We overrule Salinas=s issue and affirm the trial court=s judgment.

/s/      Jeffrey V. Brown

Justice

Panel consists of Justice Seymore and Justices Brown and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  When O.A. told Crystal, Crystal suggested that they tell O.A.=s aunt, and so Crystal and O.A. went to the aunt=s bedroom and told her what had happened.  But the aunt, who Ahad a drinking problem,@ apparently took no action in response.

^[2]  The State contends that even if the objected-to testimony was erroneously admitted, any error is harmless because Dr. Girardet subsequently testified without objection to the same evidence.  See Saldano v. State, 232 S.W.3d 77, 102 (Tex. Crim. App. 2007).  Over objection, Dr. Girardet opined that fear and shame were reasons that children delayed outcry. But in the subsequent question, the prosecutor merely asked Dr. Girardet to recount some of the reasons children had given her for being afraid.  The prosecutor did not ask for Dr. Girardet=s opinion, and she did not inquire further into shame as a reason for delayed outcry.  Given the differences in the questions asked and the testimony given, we decline to hold that Salinas failed to preserve error and we address the merits of his issue.

^[3]  This opinion should not be read to authorize similarly qualified medical personnel to opine on any matter relating to the psychological or social effects of child sexual assault.  Our holding is limited to the facts of this case.