Lorenzo Ybarra Jr. v. Dora Aguiar F/K/A Dora Lopez Ybarra ( 2011 )

NUMBER 13-10-00613-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI–EDINBURG
RANULFO CANO PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court
of Gonzales County, Texas1
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Ranulfo Cano Perez, appeals his conviction for two counts of
aggravated sexual assault of a child and one count of continuous sexual abuse of a child.
See TEX. PENAL CODE ANN. §§ 21.02, 22.021 (West 2003 & Supp. 2010). Following a jury
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We note that the reporter’s record, clerk’s record, and the trial court’s judgment identify the trial
court as the ―2nd 25th District Court‖ of Gonzales County, Texas.
trial on guilt-innocence, for each of the three counts, the jury found appellant guilty and
assessed punishment at ninety-nine years of confinement in the Texas Department of
Criminal Justice—Institutional Division. The sentences are to run concurrently. By a
single issue, appellant argues the trial court erred in permitting a psychologist to provide
expert testimony when he had interviewed neither the victim nor appellant, and his
testimony did not meet the ―fit requirement‖ under Texas Rule of Evidence 702. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant sexually abused his daughter. At trial, the State called William Lee
Carter, Ph.D. as an expert witness. After explaining his background and qualifications,
Dr. Carter stated he had not evaluated appellant or the victim, but testified concerning
hypothetical scenarios and the dynamics of child sexual abuse generally. Appellant’s
trial counsel did not object to Dr. Carter testifying at trial and did not object to any question
posed to Dr. Carter at trial. On cross examination, defense counsel elicited expert
testimony from Dr. Carter that arguably supported the defensive theory of the case.
II. ANALYSIS
On appeal, appellant argues the admission of Dr. Carter’s testimony into evidence
was ―plain error,‖ and he was therefore not required to object at trial to preserve his
complaint for appellate review. We disagree.
Texas Rule of Evidence 103(d) provides that in a criminal case, nothing in the rules
of evidence ―precludes taking notice of fundamental errors affecting substantial rights
although they were not brought to the attention of the court.‖ TEX. R. EVID. 103(d). In
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Saldano v. State, the Texas Court of Criminal Appeals addressed whether a
capital-murder defendant was required to object to preserve a complaint concerning
purported error in admitting a psychologist’s testimony during the punishment phase of
trial. 70 S.W.3d 873, 884–85 (Tex. Crim. App. 2002). The Saldano Court identified two
narrow categories of errors that are so fundamental that timely objection is unnecessary
to preserve a complaint for appellate review—violations of ―waivable only‖ rights and
denials of ―absolute systemic requirements.‖ Id. at 887–88. Waivable only rights
include the right to a jury trial and the right to effective assistance of counsel. See id. at
888. Absolute systemic rights include the requirements that the trial court have personal
and subject-matter jurisdiction. See id. The Saldano Court concluded that neither
category included the admission of the psychologist’s testimony into evidence and that,
as a result, the defendant waived appellate review of his complaint by not objecting to the
admission of the testimony at trial. Id. at 890.
Here, as in Saldano, appellant has not preserved for appellate review his
complaint concerning Dr. Carter’s testimony because he did not object to the admission of
the testimony in the trial court. See id.; see also Doyle v. State, 24 S.W.3d 598, 602
(Tex. App.—Corpus Christi 2000, pet. ref’d) (holding that complaint about expert
testimony was not preserved for appellate review because the defendant failed to make
an objection to the expert opinion testimony in the trial court); Shaw v. State, 329 S.W.3d
645, 655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (concluding that a complaint
concerning the reliability of expert testimony concerning paternity testing was not
preserved for appellate review). Appellant’s sole issue on appeal is overruled.
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III. CONCLUSION
We affirm the trial court’s judgment.
______________________
Gregory T. Perkes
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Delivered and filed the
21st day of December, 2011.
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