Milton Escamilla Jr. v. The State of Texas--Appeal from 33rd District Court of Llano County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00082-CR

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MILTON ESCAMILLA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 33rd Judicial District Court

Llano County, Texas

Trial Court No. CR5533

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Milton Escamilla, Jr., was found guilty by a jury of the offense of aggravated sexual assault of a child. Escamilla elected to have the trial court assess punishment, which was set at thirty years' confinement. Escamilla submits that the trial court erred in two instances: (1) in allowing two witnesses to testify concerning "Child Abuse Accommodation Syndrome" and delayed outcry when they had no expertise in the field; and (2) in refusing to delay the punishment phase of the trial to allow a witness to be brought into the courtroom.

Escamilla does not challenge the sufficiency of the evidence. It was alleged that this sexual assault occurred on or about May 9, 2004, over the Mother's Day weekend in a park in Llano County, Texas. // The child was twelve years old at the time and had known Escamillo since she was about four years of age. The victim did not tell anyone about this until one week later when she told her sister.

Issue 1 Did the trial court err in allowing witnesses to testify concerning the delayed outcry?

Escamilla argues that two witnesses testified about findings made by a pediatric psychiatrist regarding something he has termed "Child Abuse Accommodation Syndrome." Essentially, Escamilla argues that witnesses Laurie Brock and Debbie Coats were improperly allowed to give expert testimony regarding a subject about which they had no expertise. We will review testimony of each of these witnesses.

A. Laurie Brock's Testimony

Laurie Brock testified that she is an investigator for the Llano County Sheriff's Department with a Bachelor of Science degree in criminal justice. She has worked for the Child Advocacy Center for two years as a forensic interviewer interviewing children allegedly sexually assaulted. As the State began to question Brock regarding "delayed outcry," the defense attorney was allowed voir dire examination concerning Brock's qualifications. The defense attorney then objected to Brock's ability to testify as an expert witness. The court initially overruled the objection. After a stipulation was entered, the defense attorney further objected to Brock testifying as an expert in certain subjects, including the delayed outcry issue. After further discussion, the court reversed its earlier ruling and limited Brock's testimony to her own experiences in investigating a sexual assault, but said that it would not allow her to testify as to reasons or explanations for a delayed outcry because, "I do not believe she is an expert on those so the Court would sustain the objection as to that." Brock continued to testify and explained that the event occurred on May 9, 2004, and that it was reported eight days later on May 17. She was then asked whether delayed outcry is expected or uncommon. An objection was presented as follows:

[Defense counsel]: Objection, predicate and witness incompetent to testify to this issue.

THE COURT: That's overruled.

The question was repeated as follows:

Q. . . . When you have a delayed outcry, -- when there's that time -- in this case from May 9th to May 17th -- before a child tells someone, is that something that's normal in your experience?

A Yes, ma'am, that's normal.

That was the extent of Brock's testimony on the issue of delayed outcry.

We do not believe that this involves expert testimony. The trial court limited Brock's testimony to what she had seen in her own experience, and the actual question asked of her was simply whether delayed outcry was normal in her experience. The testimony concerned only factual matters that Brock had personally observed. Brock had several years of experience as a forensic interviewer at a children's advocacy center and, therefore, had some basis on which to answer that, in her experience, it was normal for children to delay reporting the crime of sexual assault. We do not believe any error was committed by the trial court in allowing this testimony.

B. Debbie Coats' Testimony

During the course of her testimony, Coats was asked if she was familiar with the term "delayed outcry." She was asked to explain that term. At that time, an objection was made to the predicate that "she hasn't been proved an expert in this field." The objection was overruled. Her answer was:

ASome of the children don't tell because of fear. Other children don't tell because of other reasons, knowing and/or being told by a family member that it will disrupt their whole family. Many times when kids tell, it does, their family dynamics change, and children are often very scared about that.

QNow is that -- delayed outcry something that you would consider normal or something you see often or is it rare?

A This is very frequent with children.

Immediately after this testimony, Coats was asked if she was familiar with the term "grooming." After answering that she was familiar with the term, she was asked to explain it, and an objection was made and overruled as to relevance. Coats then went on to explain that, in her training and experience, she has learned that "grooming" refers to a perpetrator gaining the trust of a child; telling a child not to tell "our secret"; or that, if someone finds out, the child may be taken away from his or her mother. Coats testified the effect of "grooming" is to keep the child quiet. Then Coats related that, in this case, there was a delay in the outcry for seven days. The only objection concerning the "grooming" testimony was that it was irrelevant, not that it involved expert testimony from a witness without sufficient authority to testify.

We review the trial court's decision to admit expert testimony for abuse of discretion. Alvarado v. State, 912 S.W.2d 199, 216 (Tex. Crim. App. 1995). The test for determining whether an abuse of discretion occurred is not whether the facts present an appropriate case for the trial court's action; rather, the test is whether the trial court acted without reference to any guiding rules and principles, or in other words, acted in an arbitrary and unreasonable manner. Malone v. State, 163 S.W.3d 785 (Tex. App. Texarkana 2005, pet. ref'd).

Rule 702 of the Texas Rules of Evidence states 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. Tex. R. Evid. 702.

Escamilla argues the trial court erred in admitting testimony "made by a pediatric psychiatrist regarding something he has termed Child Abuse Accommodation Syndrome." He then argues that such evidence is inadmissible based on Perez v. State, 25 S.W.3d 830 (Tex. App. Houston [1st Dist.] 2000, no pet.), and Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). We disagree for several reasons.

One primary reason for disagreeing with Escamilla's argument is that no witness in this case testified concerning a psychiatrist's theory of Child Abuse Accommodation Syndrome. This argument apparently emanates from Perez. In Perez, a witness, who had not seen the victim, testified about her interpretation of the theories of Dr. Ronald Summit, a pediatric psychiatrist. The witness testified that Dr. Summit, who also had never seen the victim, had written articles concerning common reactions by victims of sexual assault, such as secrecy, helplessness, accommodation, delayed disclosure, and disclosure. Perez, 25 S.W.3d at 833. The court found the witness did not qualify as an expert to render an opinion regarding Dr. Summit's theories. The facts of this case differ significantly here, Coats did not describe the findings of a psychiatrist or attempt to describe a syndrome, but explained her role as a sexual assault nurse examiner, the physical findings she encountered, and that her training and experience made her aware that some children delay reporting this crime for several reasons. In Hernandez, the holding of Perez was limited to the witness' testimony about a psychiatrist's theories of pediatric psychiatry and did not address the admissibility of that witness' own opinions based on her own experiences as an expert. Hernandez v. State, 53 S.W.3d 742, 751 (Tex. App. Houston [1st Dist.] 2001, pet. ref'd) (allowed same witness to testify to "Child Abuse Accommodation Syndrome" that had been found to present reversible error in Perez because in Hernandez, she expressed her own opinion, not theories of another). Perez is not applicable to this case.

Escamilla also argues that the test of admissibility of this type of evidence is governed by Kelly. See Kelly, 824 S.W.2d 568. The Kelly test of admissibility involved the consideration of seven factors. Escamilla analyzes in his brief the evidence presented in light of the seven Kelly factors and concludes that Coats' testimony falls short of meeting the requirement of Kelly. However, Escamilla fails to recognize that the Texas Court of Criminal Appeals has, since Kelly, applied a different test to nonscientific expert testimony (i.e., that involving technical or other specialized knowledge). The general principles of Kelly apply, but the specific factors outlined in Kelly may or may not apply, depending on the context. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled in part on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999). When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily on experience and training as opposed to the scientific method, Kelly's requirement of reliability applies, but with less rigor than to the hard sciences. Nenno, 970 S.W.2d at 561. The reliability of "soft" scientific evidence may be established by showing that (1) the field of expertise is a legitimate one, (2) the subject matter of the expert's testimony is within the scope of that field, and (3) the expert's testimony properly relies on and/or utilizes the principles involved in the field. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Nenno, 970 S.W.2d at 561.

We will apply the test set out in Nenno to determine the admissibility of Coats' testimony. We point out that the only objection concerning the expertise of Coats was made when Coats originally began to discuss a delayed outcry. Escamilla only objected as to relevance concerning Coats' testimony of the subject of "grooming" a child; therefore, the objection as to Coats' status as an expert is not preserved as to that testimony. See Tex. R. App. P. 33.1(a).

(1) Is the field of expertise a legitimate one?

In Hernandez, the Houston First District Court stated that the field of expertise (characteristics and dynamics of sexually abused children) was "certainly" a legitimate field as recognized by Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990). Hernandez, 53 S.W.3d at 751. Our law has recognized this field of expertise as a legitimate one. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993); Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993); Kirkpatrick v. State, 747 S.W.2d 833, 835 (Tex. App. Dallas 1987, pet. ref'd) (expert testimony admissible about general behavioral traits of child victims, e.g., delay in reporting incident); Hernandez, 53 S.W.3d at 751.

(2) Is the subject matter of Coats' testimony within the scope of her field of expertise? Coats is a registered nurse and is the director of surgical services at the Llano Hospital. She is also the sexual assault nurse examiner (SANE) certified by the Texas Office of the Attorney General. To become certified by the attorney general, she was required to have ninety-six hours of clinical training, which consists of doing examinations, and she must also perform the required number of examinations every two years on children and adults. She received her initial training eleven years ago and has been doing sexual assault examinations since. She had previously testified many times. Coats explained that her examination consists of taking a patient history, a head-to-toe examination, a detailed genital examination looking for trauma, and the collection of forensic evidence. She received training regarding the type of phenomenon that sexually assaulted children exhibit. The three nurses in the SANE program do a quality assurance by reviewing the others' charts for each examination, they attend peer review sessions, and a medical doctor reviews the quality assurance. With her eleven years of experience with child sexual assault victims, Coats has abundant personal observation and experience of common characteristics of sexually assaulted children. It is well within her field of expertise and training to study and observe behavior of affected children and to form the opinion that, for various reasons, children may not report this crime immediately. "Experience alone may provide a sufficient basis for an expert's testimony." Id. at 751 (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998)). Coats did not attempt to describe a medical or psychiatric syndrome, but presented evidence to allow the conclusion that her training and experience provided an explanation for the reasons children delay reporting sexual assaults. We find the subject matter of Coats' testimony within the scope of her field of expertise.

(3) Does Coats' testimony properly rely on or utilize the principles involved in the field?

Coats trained as a registered nurse and had further training as a sexual assault examiner. It is important to realize the scope of the testimony in dispute. Coats did not attempt to testify regarding an overall profile or description of the characteristics of sexually assaulted children. Rather, her testimony was limited to basically describing what she had seen and experienced over eleven years of conducting examinations of persons who had allegedly been sexually assaulted. Particularly, her testimony was that it was common for children who had been sexually assaulted to delay reporting the assault because of fear or because such a report could have life-changing consequences. This case illustrates this very point by the testimony of the child in question after reporting the assault to her sister, she had very mixed feelings about whether she wanted her sister to tell their mother (i.e., "In a way I did, but in a way I didn't want her to say anything."). One of the principles of this field would require the nurse/interviewer to accurately record the history from the victim, physical findings, and observations of the child, and then to properly report them. Based on Coats' years of experience with similar children, Coats could testify that it was common for children to delay reporting this crime for the reasons she had observed. We find her testimony meets the reliability requirement and hold that the trial court did not commit error by allowing her testimony.

Issue 2 Did the trial court err in failing to delay the trial to allow for a defense witness?

Escamilla argues that, during the punishment phase, he had a witness who had been brought to the courthouse by ambulance and that he had requested the trial court to delay the trial for a few minutes. The trial court denied the request. Escamilla argues that such denial showed that the trial court had already decided the issue of punishment and failed to consider the full range of punishment.

After the State rested, the following occurred:

THE COURT: State has rested, [defense counsel]. Do you have witnesses?

[Defense counsel]: Judge, let me run downstairs and see who's arrived.

(Break was taken)

[Defense counsel]: Judge, the one witness that I have, that's what the ambulance is here for, and they've treated her and she needs a little bit more time before she can come up the steps. Can you give me about another five minutes?

THE COURT: No.

[Defense counsel]: We'll rest, Judge.

[State's counsel]: We close.

The only authority cited for Escamilla's argument is Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). In Brown, the trial court told the defendant that, if he violated community supervision, the court would impose the maximum punishment and, in fact, did so. The Texas Court of Criminal Appeals held that those actions indicated the trial court was prejudging the punishment issue, and reversed. That authority has no bearing on the facts of this case. In essence, Escamilla has presented no authority for the argument. Escamilla does not argue that the trial court abused its discretion in denying the requested delay or that he was denied due process of law. No evidence was presented regarding the content of the testimony of the witness. On appeal, the argument is presented that the "only conclusion that can be drawn from such a refusal to grant a five (5) minute delay is that the Judge had already made up his mind regarding Appellant's term of confinement." There may have been numerous reasons for the trial court's actions, and it certainly cannot be deduced that the "only" conclusion is that the court had already determined the punishment to be assessed and did not consider the full range of punishment.

Further, an oral motion for a continuance or postponement is not a statutory motion for continuance and is addressed only to the equitable powers of the court. See Darty v. State, 149 Tex. Crim. 256, 193 S.W.2d 195 (1946). It is reviewable only for abuse of discretion. See Vega v. State, 898 S.W.2d 359, 361 (Tex. App. San Antonio 1995, pet. ref'd). Here, Escamilla presented no information to the trial court concerning the nature of the testimony of the witness, whether it was unique, or any other information regarding the necessity for the witness' testimony.

The trial court has the discretion to grant or deny continuances or delays of the trial and did not err in denying the motion.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: January 20, 2006

Date Decided: January 31, 2006

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