Joe Flores, Jr. v. The State of Texas--Appeal from 39th District Court of Haskell County

Opinion filed April 12, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00289-CR

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   JOE FLORES, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 39th District Court

Haskell County, Texas

Trial Court Cause No. 5995

O P I N I O N

The jury convicted Joe Flores, Jr. of the offense of aggravated sexual assault of a child younger than fourteen years of age. See Tex. Pen. Code Ann. ' 22.021(a)(1)(A)(i), (a)(2)(B) (Vernon Supp. 2006). The jury assessed appellant=s punishment at fifty years confinement and a $5,000 fine. In two appellate issues, appellant complains of evidentiary error. We affirm.

At trial, the State presented expert testimony, over appellant=s objection, from Dr. Terry Johnson. Dr. Johnson testified about the results of a sexual abuse examination that he performed on the child. Dr. Johnson said that his examination of the child revealed a lack of hymenal tissue, which was indicative of healed trauma. Appellant attempted to present expert testimony from April Bennett. At the time of trial, Bennett was pursuing a registered nurse=s license. She had completed a nursing school program, but she had not taken her nursing boards. The State objected to Bennett=s testimony on the ground that she was not qualified to testify as an expert witness. The trial court ruled that Bennett was not qualified as a medical expert. Therefore, the trial court excluded her testimony. In appellant=s bill of proof, Bennett testified that trauma to the hymen can occur in a number of ways.

In his first issue, appellant asserts that the trial court erred in admitting the testimony of Dr. Johnson. In his second issue, appellant asserts that the trial court erred in excluding the testimony of Bennett. We use an abuse of discretion standard in reviewing a trial court=s determination of a witness=s qualifications as an expert and its judgment regarding the admission of any expert testimony. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). Absent a clear abuse of discretion, a trial court=s decision to admit or exclude testimony will not be disturbed. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Thus, an appellate court must uphold the trial court=s ruling if it was within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Tex. R. Evid. 702 governs the admissibility of expert testimony. Under Rule 702, a witness may qualify as an expert by virtue of Aknowledge, skill, experience, training, or education.@ Rule 702 does not require a witness to hold a license or a certification for the purpose of qualifying as an expert. Duran v. State, 163 S.W.3d 253, 258 (Tex. App.CFort Worth 2005, no pet.); Gregory v. State, 56 S.W.3d 164, 179-80 (Tex. App.C Houston [14th Dist.] 2001, pet. dism=d).

Dr. Johnson testified about the results of his examination of the child. Appellant does not assert that medical testimony from a qualified expert witness is an unreliable type of evidence. Rather, appellant asserts that Dr. Johnson could not provide reliable testimony because A[he] was abusing addictive drugs just weeks before [the child=s] physical examination@ and that A[he] had been caught in a recurrence shortly before trial.@

At the time of trial, Dr. Johnson was serving a ninety-day suspension of his medical license. He testified that the suspension related to his abuse of a hydrocodone-based cough syrup. Dr. Johnson said that hydrocodone is a form of codeine. He said that he began taking the cough syrup for treatment of a sinus infection in early 2003 and that his use progressed to an addiction. Dr. Johnson said that, during 2003, he tried to stop using the cough syrup a number of times but that he was unable to stop. Dr. Johnson testified that he voluntarily turned himself into the medical board in December 2003. Dr. Johnson said that the board placed him on probation for ten years and required him to submit to random urine drug testing on approximately a weekly basis. He said that he was tested more than once during some weeks.

Dr. Johnson testified that he examined the child on February 4, 2004. He said that he did not have any kind of drug in his system on that day. He also said that he had not taken any kind of drug in between the time he turned himself in to the medical board and the date he examined the child. Dr. Johnson also testified that he took about fifty random drug tests during 2004 and that he did not fail any of the tests.

Dr. Johnson said that, in February 2005, he went on a medical mission trip to Sri Lanka to help with tsunami relief efforts. He said that, while there, he used a drug similar to hydrocodone on a one-time basis. When he returned to the United States, he failed a drug test, and the board suspended his license for ninety days and placed him on probation for fifteen years. He testified that his license would be re-instituted on September 1, 2005.

Dr. Johnson also testified in detail about his education, training, and experience as a medical doctor. He said that he had received specialized training in examining child sexual assault victims. Dr. Johnson said that he became board certified in pediatrics in 1992. He further testified that he had performed about six hundred examinations on children to determine whether sexual abuse had occurred. Dr. Johnson also explained the criteria and procedures used during sexual assault examinations. Dr. Johnson testified that his findings during the examination of the child in this cause were consistent with sexual abuse.

The record demonstrates that Dr. Johnson had extensive training and experience in examining child sexual assault victims. He testified that he had performed about six hundred sexual assault examinations. The record does not show that Dr. Johnson was under the influence of any type of drug when he examined the child or when he testified at trial. Thus, the record does not support appellant=s claim that Dr. Johnson could not give reliable testimony. Based on Dr. Johnson=s training and experience, the trial court did not abuse its discretion in allowing Dr. Johnson to testify as an expert witness. See Gregory, 56 S.W.3d at 179-81 (nurse who had received training and had performed over 650 sexual assault examinations was qualified to testify as an expert witness). We overrule appellant=s first issue.

In his second issue, appellant argues that Bennett was qualified to testify as an expert witness under Rule 702. Bennett=s proposed testimony related to activities that can cause damage or trauma to the hymen. During the bill of proof, Bennett identified a number of ways that she believed a hymen could be torn. The trial court ruled that Bennett was not qualified to testify as a medical expert.

In sexual abuse cases, a nurse may qualify as a medical expert witness based on the nurse=s special knowledge or experience in a particular area. Gregory, 56 S.W.3d at 180. Bennett testified about her training and experience. Bennett said that she was a graduate nurse; that she had completed a two-year nursing school program; that she was pursuing her registered nurse=s license; that she had not taken her nursing boards; that she had studied the areas of anatomy and physiology during nursing school; that she had served one year as a student nurse intern; that, as part of her curriculum and her experience as an intern, she had studied and understood the female reproductive organ; and that she was familiar with the terms hymen and broken hymen. Bennett also testified that she had observed two sexual assault examinations.

Bennett=s testimony demonstrated that she had minimal training and experience in the areas of sexual abuse and causes of trauma to the hymen. Given her lack of training and experience, the trial court did not abuse its discretion in finding that she was not qualified to testify as an expert witness.

Appellant also argues that Bennett=s testimony was admissible as lay opinion testimony under Rule 701 of the Texas Rules of Evidence. Tex. R. Evid. 701. In Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002), the Court of Criminal Appeals explained the differences between lay opinion testimony under Rule 701 and expert opinion testimony under Rule 702:

Rule 701 covers the more traditional witness B one who Awitnessed@ or participated in the events about which he or she is testifying B while Rule 702 allows for a witness who was brought in as an expert to testify.

Osbourn, 92 S.W.3d at 535. Rule 701 allows a witness to testify in the form of an opinion if the opinions or inferences are (a) rationally based on his or her perceptions and (b) helpful to the clear understanding of the testimony or the determination of a fact in issue. Id. (citing Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997)). Perceptions refer to a witness=s interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted). Id. Because Rule 701 requires the testimony to be based on the witness=s perception, it is necessary that the witness personally observed or experienced the events about which he or she is testifying. Id. (citing Fairow, 943 S.W.2d at 898). Thus, the witness=s testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own experiences or observations. The Aperception of the witness@ portion of the rule incorporates the personal knowledge requirement of Tex. R. Evid. 602, which states that a witness may not testify to a matter unless he or she has personal knowledge of the matter. Id.; Fairow, 943 S.W.2d at 903; Bigby v. State, 892 S.W.2d 864, 889 (Tex. Crim. App. 1994). The proponent of lay opinion testimony has the burden to establish that the witness has personal knowledge of the events upon which his or her opinion is based. Fairow, 943 S.W.2d at 898.

Bennett=s testimony failed to satisfy the personal knowledge requirement. She had no personal knowledge of the facts in this case. She did not personally observe any events or activities involving the child. Bennett was not present during Dr. Johnson=s examination of the child. Bennett did not offer any opinions relating specifically to the child. Rather, she testified about trauma to the hymen in general. Bennett=s testimony was not admissible as lay opinion testimony under Rule 701.

The trial court did not abuse its discretion in excluding Bennett=s testimony. We overrule appellant=s second issue.

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

April 12, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.