Lee v. State

ANGEL ROSE LEE, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 12-19-00265-CR

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

September 9, 2020

APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Angel Rose Lee appeals her conviction for sexual assault of a child. In four issues, Appellant contends the trial court abused its discretion in admitting certain pieces of evidence. We affirm.

BACKGROUND

Appellant was arrested and charged by indictment with four counts of sexual assault of a child. Appellant pleaded "guilty," and the matter proceeded to a jury trial on punishment. Following evidence and argument, the jury sentenced Appellant to ten years confinement on each count, to be served concurrently. This appeal followed.

COMMENT ON TRUTHFULNESS

In her first issue, Appellant argues the trial court abused its discretion when it allowed an expert witness to testify as to the child victim's credibility.

Standard of Review and Applicable Law

The admission 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). A trial court's ruling on the admissibility of expert testimony will rarely be disturbed by an appellate court. Vela v. State, 209 S.W.3d 128, 136 (Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527-28 & n.9 (Tex. Crim. App. 2006). As with other types of evidentiary rulings, we will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009) (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). If the record supports the trial court's decision on the admission of evidence, there is no abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379; Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. ref'd).

Pursuant to Texas Rule of Evidence 702, before admitting expert testimony, the trial court must be satisfied that three conditions are met: (1) the witness qualifies as an expert by reason of her knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is appropriate for expert testimony; and (3) admitting the expert testimony will actually assist the factfinder in deciding the case. Vela, 209 S.W.3d at 131; see also Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000); TEX. R. EVID. 702. These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Vela, 209 S.W.3d at 131. Reliability focuses on the subject matter of the witness's testimony. Id. at 133. The proponent of the expert testimony must demonstrate by clear and convincing evidence that the expert testimony is reliable. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). The focus of the reliability analysis is to determine whether the evidence is based on sound scientific methodology such that testimony about "junk science" is weeded out. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996). When addressing fields of study outside the hard sciences, such as the social sciences or fields that are based primarily on experience and training as opposed to the scientific method, the requirement of reliability still applies but with less rigor than to the hard sciences. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999); Perez v. State, 113 S.W.3d 819, 833 (Tex. App.—Austin 2003, pet. ref'd), overruled on other grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008).

Even if the expert's testimony meets the Rule 702 requirements, expert testimony that a particular witness is truthful is inadmissible under Rule 702. See Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). Moreover, an expert may not offer a direct opinion on thetruthfulness of a child complainant's allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997).

Analysis

Appellant contends that the trial court abused its discretion when it allowed Annie Henderson, the forensic interviewer, to testify regarding the child victim's credibility. Henderson was questioned on voir dire outside the presence of the jury prior to her testimony. On voir dire, Henderson testified regarding her employment, educational background, training, and experience as a forensic interviewer. She further testified about her training to detect grooming and coaching. When asked whether she believed John Doe was coached, Henderson replied as follows:

Q. And could that coaching even come from the pressure of under grooming?

A. Yes.

Q. Okay. Did you see in John Doe coaching?

A. Yes.

Q. How so?

A. He talked about, during his second interview with me, he talked about why he lied in his first interview. He said, "I lied because Angel and I talked, and we said we weren't going to talk about what happened if the police asked us. We were going to lie. But I found out that she talked about it."

Q. And in your opinion was John Doe coached by the Defendant?

A. Yes.

On cross-examination, Henderson testified to the following:

Q. Ma'am, if I understand your opinion about coaching is based upon what John Doe told you, that he'd been told to say something?

A. Correct.

Q. And that's in the second interview?

A. During the second interview, he said that he lied during the first one because Angel told him if the cops come asking questions or anyone asks questions, "we're just going to lie."

Q. Okay. And that's the basis of your opinion?

A. It's not my opinion. It's what he said.

On redirect, Henderson clarified that she is not trained to testify about the credibility of a child victim:

Q. You're not trained to testify about credibility of the child, right?

A. Correct. It's -

Q. You're just giving your opinion based on your observations and your training?

A. Correct.

Q. Okay. And looking at everything in totality, the first interview, the second interview, you believe he was coached?

A. Correct.

Appellant objected to Henderson's opinion on coaching and argued that Henderson's opinion was based on her belief that John Doe was telling the truth and simply bolstered John Doe's credibility. The trial court overruled the objection and clarified that Henderson was not permitted to testify about John Doe's credibility. However, Appellant could question Henderson on whether she was relying on something being true or untrue.

When Henderson testified before the jury, the trial court gave the jury a limiting instruction:

I'm going to give you a limiting instruction, ladies and gentlemen, about the basis of Ms. Henderson's opinion. She's going to be testifying about what the child allegedly said. All right? That's hearsay until you hear from the child himself.

I'm instructing you that she's not rendering an opinion about the credibility of that. She's not permitted to. She's just rendering the basis of the opinion, and you, as the sole and exclusive judges of evidence and testimony to be presented, will determine if the basis of that opinion is true or not.

Henderson then testified regarding coaching:

Q. Did you sense that he was coached in forensic interview number one?

A. Yes.

Q. Okay. How so?

A. Because of the excuses and the things that -- the reasoning he was putting behind the messages¹ and the way he was trying to cover up the messages, I guess.

Q. And he was telling you he was -- in what way was he talking about those messages?

A. That they were just really good friends, and his mom was just jealous of them.. . .

Q. Okay. And in the second interview, he gave you reasons why he was not truthful in the first one?

A. Yes.

Q. Okay. And did that give an indication that he had been coached even further when you compare the two together in forensic interview number one?

A. Yes.

Q. Can you tell them why. What did he do or say in the second interview that made you think there was coaching, that you gave that opinion?

A. Yes, he said, "She said she wanted to keep things secret. She didn't want to tell nobody. Me and her were not going to tell the cops -- if the cops asked. That's why I didn't tell the truth the first time. She told me not to."

Thereafter, John Doe testified before the jury. During that testimony, he admitted that he was not honest during the first forensic interview because he had made a plan, and denied being anything more than friends with Appellant. He admitted this was not true and admitted lying during the first interview. John Doe testified that he and Appellant agreed they "wouldn't tell nobody." He denied that Appellant coached him or told him what to say in the interview.

On appeal, Appellant argues that Henderson's opinion that coaching occurred necessarily means that she believed John Doe's statement to be credible and truthful. He further contends that her testimony should have been excluded as a result.

Henderson testified about her observations of John Doe's behavior during the first interview, including that he did not make an outcry during the first interview and that his answers were common among children who have been coached. Her opinion that John Doe may have been coached was based on her observations. Although direct opinion on the truthfulness of a child is inadmissible because it does not assist the trier of fact, testimony about the behavior of child sex abuse victims is admissible under Rule 702. Yount, 872 S.W.2d at 709; Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993). Henderson testified about John Doe's behavior during the interviews; she did not provide a direct opinion on whether he was telling the truth or was a credible witness. See Krause v. State, No. 12-19-00081-CR, 2020 WL 3276650, at *8 (Tex. App.—Tyler June 17, 2020, pet. filed) (mem. op., not designated for publication) (forensic interviewer's testimony about S.T.'s recollection of sensory...