David Contrereas Degollado v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00404-CR
David C. DEGOLLADO,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-1147
Honorable Phil Chavarria, Jr., (1) Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: August 1, 2007

 

AFFIRMED

David Degollado appeals his conviction for aggravated sexual assault, complaining that the trial court erred in 1) refusing to grant a mistrial after evidence of his other bad acts was improperly introduced and 2) admitting the opinion testimony of a pediatrician who was not proffered as an expert by the State. We affirm the judgment of the trial court.

Denial of Mistrial

Degollado first argues that the trial court erred in failing to grant a mistrial when the State twice elicited prejudicial evidence of other bad acts committed by Degollado, in violation of a motion in limine to which it had agreed. In the first instance, the complainant, A.P., testified that Degollado, her mother's common law husband, sexually abused her from approximately the ages of five to nine by fondling her and performing oral sex on her. In an attempt to prove why A.P. had waited several years to tell anyone about the abuse, the State asked her if she was scared of Degollado. A.P. answered yes, "[b]ecause I would see him beat my mother." The defense objected, asking that the testimony be stricken and that the jury be given an instruction to disregard. The trial court instructed the jury to disregard the testimony regarding the assault. The defense then asked for a mistrial, which the trial court denied.

In the second instance, the State asked A.P. how often she saw Degollado after he had moved out of her mother's apartment. A.P. answered that Degollado came around a couple of times, and once came to her "mother's house when the father of my child was there, and he came to meet him, and so - - I don't know if it's appropriate for this, but to buy drugs from him." Again, the defense objected, and asked that the jury be instructed to disregard the statement, and the trial court complied; the defense's request for a mistrial, however, was denied.

Our review is limited to determining whether the trial court erred in denying the motion for mistrial. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We review the trial court's denial of a motion for mistrial under an abuse of discretion standard. Trevi o v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). Mistrial is an appropriate remedy for highly prejudicial and incurable errors, Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000), and should only be granted if the prejudice resulting from the admission of the evidence is incurable. Hawkins, 135 S.W.3d at 77. To determine whether the trial court abused its discretion in denying the motion for mistrial, we consider the magnitude of the prejudicial effect, the measures adopted to cure the error, and the certainty of conviction absent the erroneous admission of evidence. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see also Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004) (applying Mosley test to question of whether a mistrial should have been granted and noting the issue involves most, if not all, of the same considerations that attend a harm analysis).

After examining the record in consideration of the three Mosley factors, we cannot conclude that the trial court abused its discretion in denying the motions for mistrial. First, although the extraneous offense evidence was prejudicial, its admission was not incurable error. There was no other evidence to support the statements that Degollado assaulted A.P.'s mother or that he abused drugs. A.P.'s mother, Patricia Perez, testified that she had a good relationship with Degollado and even stated that she had not been scared of Degollado while living with him. Moreover, the extraneous offenses were not more heinous or inflammatory than the aggravated sexual assault offenses with which Degollado was charged. See Gregory v. State, 159 S.W.3d 254, 262 (Tex. App.--Beaumont 2005, pet. ref'd). Second, in both instances, the trial court instructed the jury to disregard the improper statements, therefore curing any prejudice. See Hawkins, 135 S.W.3d at 77 (an instruction to disregard generally cures any prejudice). Third, there was ample evidence to support Degollado's conviction absent the improper admission of the extraneous offense evidence. A.P. testified that Degollado fondled her vagina and chest over her clothes starting at age five. Later, he began to perform oral sex on her "about every weekend." Degollado moved out of her mother's apartment when A.P. was nine, but A.P. would sometimes visit him at his new apartment and he would fondle her and perform oral sex on her. In seventh grade, she began using drugs and became pregnant. Her grades also dropped, she skipped school, and she had a second baby at age sixteen; she also became bulimic. Patricia testified that A.P. was initially a good student, but was rebellious from the ages of eight to fifteen. A.P. began menstruating at age ten, and became pregnant at age twelve. A.P. had since had another baby, and was also pregnant at the time of trial. Patricia stated that A.P. told her about the abuse by Degollado when she was sixteen and Patricia then took A.P. to the police to make a report. Once A.P. told her mother that Degollado had molested her, Patricia cut off all contact with Degollado. Dr. Nancy Kellogg, a pediatrician, testified as to why a person might delay in reporting sexual abuse, and also described certain behaviors that abused children commonly display, such as changes in school grades, eating disorders, and drug use. Kellogg stated that there is some connection between early childhood abuse and the onset of early puberty and teenage pregnancy. Having decided all of the Mosley factors against Degollado, we cannot conclude the trial court erred in denying the motions for mistrial. Degollado's first issue is overruled.

Admission of Expert Testimony

Next, Degollado complains the trial court erred in admitting opinion testimony from a pediatrician who was not "proffered" as an expert by the State, whose testimony was of no assistance in determining the issues in the case, and who served only to bolster the testimony of the complainant. Nancy Kellogg, M.D., testified that she is a professor of pediatrics at the University of Texas Health Science Center at San Antonio, where she has clinical, teaching, and research responsibilities. Kellogg stated that she is also the medical director of three other institutions which focus on the investigation and treatment of victims of suspected sexual abuse. She has personally conducted about 8,500 physical exams on children who have made claims of sexual abuse. Kellogg did not examine or interview A.P., but reviewed her medical records and police statement before trial. Kellogg has also published between 400 and 500 articles, book chapters, and books on sexual abuse and the patterns of disclosure in sexual abuse victims. Her education includes college, medical school, and a pediatric residency. Kellogg responded in the affirmative when asked if she was recognized as an expert throughout the country in regard to sexual abuse of children.

Kellogg then continued with testimony regarding the reasons children do not make an outcry immediately after the abuse has occurred, at which point the defense objected to the "opinion question" and stated that "[n]o proffer as an expert in this case" has been made. The trial court overruled the objection. The defense later made a similar objection to the opinion testimony of Kellogg, urging that she had not been "proffered;" this objection was also overruled. At the conclusion of Kellogg's testimony, the defense asked that her entire testimony be stricken because "she was never actually proffered as an expert in this case." The trial court replied that the State was not required to use any particular words, such as "I now offer this witness as an expert," to use Kellogg has an expert. The trial court then stated that due to Kellogg's "qualifications and all her experience . . . I think she's been recognized as an expert and testified as an expert and so forth." The trial court denied the request to strike Kellogg's testimony, and also denied the defense's request for a mistrial.

We agree that no express words were required to offer Kellogg as an expert, and Degollado certainly has not cited us to any cases standing for that proposition. (2) The testimony Kellogg gave regarding her qualifications, experience, and education all go to her status as an expert. Accordingly, Kellogg was offered as an expert. Before admitting expert testimony, the trial court must be satisfied that the following 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 fact-finder in deciding the case. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see also Tex. R. Evid. 104(a), 702, 401, and 402. The defense never objected that Kellogg was unqualified to be an expert or that the subject matter of her testimony was inappropriate for expert testimony. Degollado does argue on appeal that Kellogg's testimony was of no assistance to the jury in determining the issues in the case and served only to bolster the testimony of the complainant; however, those objections were not preserved at trial. (3) Tex. R. App. P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (to present a complaint for appellate review, record must show that a timely and specific complaint was made to the trial court and the trial court ruled adversely). Because Kellogg was offered as an expert, the trial court did not abuse its discretion in admitting her testimony. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) (trial court's decision to admit or exclude expert testimony is reviewed for an abuse of discretion). Degollado's second issue is overruled.

Based on the foregoing reasons, the judgment of the trial court is affirmed.

 

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. Sitting by assignment.

2. In his brief, Degollado concedes that "the trial court may have been correct in its assumption that there is no requirement for the incantation of 'magic words' to formalize the proffer of a witness as an expert," but argues that the trial court seems to have allowed Kellogg's testimony on the basis that she had previously been recognized as an expert. We do not agree, however, that the trial court admitted Kellogg's testimony on this basis. Kellogg extensively testified as to her qualifications, education, and experience, and it was on this basis that the trial court admitted Kellogg's expert testimony.

3. The defense did make one objection during Kellogg's testimony; however, a general objection to "bolstering" is not sufficient to preserve error because it does not sufficiently apprise the trial court of the nature of the objection. In re J.G., 195 S.W.3d 161, 183 (Tex. App.--San Antonio 2006, no pet.).