Jacinto Salinse Cortez v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-031-CR
JACINTO SALINSE CORTEZ APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
Appellant Jacinto Salinse Cortez appeals his convictions and sentences
for aggravated sexual assault of a child and indecency with a child. We affirm.
1
… See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL HISTORY
The State charged Cortez with committing aggravated sexual assault and
indecency with a child against his six-year-old granddaughter, N.C. After the
assault, N.C.’s parents took her to Cook Children’s Hospital, where she was
examined by family nurse practitioner Jacqueline Sue Hess. Hess was a
member of the hospital’s CARE team, which was responsible for performing
physical exams of children who had been physically or sexually abused. N.C.
told Hess that Cortez had “put his mouth over her private area” and that he had
put his tongue in her “gina” and “butt.” She also told Hess that Cortez “rubs
his hands all over her body” and “has sex with her” and that he had caused her
to manually stimulate his sexual organ. Hess’s physical examination of N.C.
revealed no abnormal findings other than a yellow vaginal discharge, which
Hess said could indicate an infection. Ultimately, after considering the evidence
and testimony of Hess and other witnesses, the jury convicted Cortez and
sentenced him to 50 years’ confinement for aggravated sexual assault and 20
years’ confinement for indecency with a child, with the sentences to run
concurrently. Cortez now appeals.
2
III. LAW AND APPLICATION TO FACTS
In two issues, Cortez complains of the following testimony given by Hess,
the nurse practitioner, on redirect examination by the State during the guilt-
innocence phase of trial:
Q. Okay. Are you aware of statistics that Cook’s keeps
on confirmed cases of sexual abuse and the number of confirmed
cases where you would have no physical findings?
[Defense counsel]: Object, Your Honor. It’s not
relevant to this case.
THE COURT: It’s overruled.
Q. (BY [the State]:) Are you aware of those statistics?
A. I don’t -- I don’t have statistics from Cook’s, but in my
own experience and from research it’s -- it is my understanding that
more than 95 percent of the children with alleged sexual abuse
have normal exams.
Q. And there are people who keep studies on cases where
there is -- where that is confirmed by either confessions from
defendants or DNA, actual biological findings?
A. That’s true.
[Defense counsel]: I’m going to object to relevance of
that and also it’s -- it’s speculation.
THE COURT: All right. That’s overruled. It was
brought up in cross.
3
A. Relevance Objection
In his second issue, Cortez argues that the trial court erred by overruling
his relevance objection to the State’s question about statistics on confirmed
sexual abuse cases with no physical findings of abuse. Cortez contends that
the normal physical exams involved in other sexual abuse cases have no
connection to his case and do not have any bearing on whether N.C. was telling
the truth.
The State’s questions about sexual abuse statistics tended to elicit expert
testimony based on Hess’s knowledge and training rather than just her personal
perceptions of the events in this particular case. See Tex. R. Evid. 702 (“If
scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.”). To be relevant, expert
testimony must be tied or related to the pertinent facts of the case. See Tex.
R. Evid. 401; Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000).
Before the State questioned Hess about the sexual abuse statistics,
Cortez’s counsel had cross-examined Hess about her experience with false
allegations of sexual abuse and whether the lack of physical findings would
indicate that no sexual contact had occurred. Therefore, Hess’s testimony
4
about the statistical frequency of the absence of physical findings in alleged
sexual abuse cases was relevant to explain that the absence of physical
findings could still be consistent with the type of abuse described by N.C. We
hold that the trial court did not err by denying Cortez’s relevance objection and
overrule his second issue.
B. Speculation Objection
In his first issue, Cortez argues that Hess was not qualified to testify
about the statistical frequency of confirmed sexual abuse in cases without
physical evidence. A challenge to expert qualifications must be made at trial
to preserve a complaint about them on appeal. Martinez v. State, 22 S.W.3d
504, 507 (Tex. Crim. App. 2000). Error may not be predicated upon a ruling
that admits or excludes evidence unless a timely objection or motion to strike
appears of record, stating the specific ground of objection, if the specific
ground was not apparent from the context. Tex. R. Evid. 103(a)(1). When the
correct ground for exclusion was obvious to the judge and opposing counsel,
no forfeiture results from a general or imprecise objection. Resendez v. State,
306 S.W.3d 308, 313 (Tex. Crim. App. 2009). But when the context shows
that a party failed to effectively communicate his argument, then the error will
be deemed forfeited on appeal. Id.
5
Cortez contends that his speculation objection was, in context, a
challenge to Hess’s expertise. We disagree. The purpose of requiring the
objection is to give to the trial court or the opposing party the opportunity to
correct the error or remove the basis for the objection. Martinez, 22 S.W.3d
at 504. Here, Cortez did not tell the trial court that he challenged Hess’s
qualifications to testify on the statistical frequency of normal physical exams
in confirmed cases of child sexual abuse. Had he made that specific objection,
the State would have been given an opportunity to satisfy that objection. The
trial court also would have been sufficiently informed of the basis for the
objection so that the court could have excluded the evidence if the State had
failed to establish the qualifications of its witness. But instead, Cortez simply
asserted that “it’s speculative.” An objection that a witness’s testimony is
speculative does not preserve a challenge to the witness’s qualifications as an
expert. See Karkutt v. State, No. 02-04-00560-CR, 2006 WL 1714706, at *2
(Tex. App.—Fort Worth Nov. 1, 2006, pet. ref’d) (mem. op., not designated for
publication); Villarreal v. State, No. 02-04-00102-CR, 2005 WL 1994316, at
*2 & n.2 (Tex. App.—Fort Worth Aug. 18, 2005, pet. ref’d) (mem. op., not
designated for publication). Cortez’s trial objection to Hess’s testimony as
speculative did not obviously communicate to the court and opposing counsel
that he was challenging her expert qualifications, so it did not preserve this
6
complaint on appeal. We therefore hold that Cortez has forfeited his complaint
about Hess’s qualifications, and we overrule his first issue.
IV. CONCLUSION
Having overruled both of Cortez’s issues, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: WALKER and MCCOY, JJ.; and DIXON J. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 22, 2010
7