EDGAR BADILLIO MERLOS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed August 26, 2008.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01309-CR
............................
EDGAR BADILLIO MERLOS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F05-72450-NI
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OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Moseley
        A jury convicted Edgar Badillio Merlos of the sexual assault of his seventeen year old daughter and assessed punishment at imprisonment for ten years, one month and a $10,000 fine. Merlos appeals, asserting in five issues the trial court erred by refusing his request for a hearing to determine the qualifications and reliability of the State's expert witness, overruling his objections to qualifications and reliability of the expert's testimony, and admitting extraneous offense evidence when the State did not give timely notice. We conclude the trial court erred in not conducting the requested hearing on the expert's qualifications and the reliability of her testimony, but that the error did not affect Merlos's substantial rights. We also conclude the trial court did not abuse its discretion in overruling his objections to the expert testimony and to the late notice of extraneous offense evidence. We affirm the trial court's judgment.
Background
        The complainant was eighteen years old at trial. She born in Honduras and her mother abandoned her when she was less than a month old. Her father, Merlos, left Honduras and came to the United States when she was still a baby. Complainant was raised by Merlos's parents in Honduras. She first met Merlos in Honduras when she was twelve. Merlos visited Honduras again when she was fourteen. He insisted on staying in her room with her, and after a few days, began sexually abusing her. She told him to stop, but he told her he was teaching her how to defend herself from men.
        When the complainant was seventeen, Merlos brought her to live with him in a small apartment in Dallas. She testified that a few days after she arrived, Merlos began having sex with her. She told him to stop, tried to stop him by pushing him away, but he refused. She said she was afraid to tell anyone because she did not think they would believe her and Merlos told her it would ruin his and her grandparents' lives if she told anyone. After a couple of months, she became pregnant and eventually called police. She told police what happened to her, was taken to a hospital, and later placed in foster care. She was desperate to have an abortion and became suicidal. She eventually had an abortion. DNA testing showed Merlos could not be excluded as the father of the aborted child.
        Merlos gave a statement to police in which he admitted having sexual relations with his daughter several times, said he knew it was wrong, but it was consensual. The defense attorney questioned the prospective jurors extensively during voir dire regarding consent in an incestuous relationship.
        The record shows a brief unrecorded bench conference immediately after the State called its expert, Graciela Montani. Thereafter, Montani testified before the jury she had a master's degree in counseling and was a licensed professional counselor and marriage and family therapist. She had over twenty-three years' experience counseling families, teenagers, and victims of sexual abuse. She is bilingual and “bicultural,” which she described as not only speaking the language, but understanding the culture. Montani was born in Argentina and other therapists in her office are from Mexico and El Salvador. Her office has contracted with Child Protective Services since 1983. She has provided counseling and psychotherapy to victims of sexual abuse many times, including a CPS group treatment program of victims and every member of the family including the perpetrator. She expanded this program to deal with boy victims. She also has experience with children born and raised in other countries. A large percentage of her clients are Hispanic.
        Montani testified that children who have been sexually abused by family members tend to internalize their feelings and blame themselves for the abuse, which prevents them from telling anyone about the abuse. Children often fear that no one will believe them if they tell. She testified that awareness of abuse and encouraging children to resist abuse is much greater in the United States than in Central American countries because of cultural differences including the level of education, lack of opportunities for women, and women are not allowed to be assertive.
        Montani testified about consent in an incestuous relationship:
 
STATE:
 
The law considers that 17 is the age when someone is able to give consent for a sexual relationship. When a child is in an abusive or incestuous relationship, reaches the age of 17, do they magically then become aware of, of that - of the way the law functions in that regard?
MONTANI:
 
No. Most children don't know the law, No. 1, and, again, it is an emotional process. It has nothing to do with the law. I've had cases that the women were way passed the age of 21 and the incest continued because it is a psychological situation. It's just hard to break away.
 
STATE:
 
Where we're dealing with a minor child in an incestuous or sexually abusive relationship with their adult parent, might a minor child, who is unwilling to consent to the relationship, nevertheless, submit to the abuse?
 
MONTANI:
 
Right. Yes, that's usually the case.
STATE:
 
And what does that involve?
MONTANI:
 
Children are not - children don't consent to sexual activity. I mean, children do not know. I mean - and between parents and children, there is no consent. I mean, there is no consensual sexual activity. We're talking about parents and children. You know, that's - you may talk about two people in the street and talk about consensual; but when you're talking about families, I don't think that applies psychologically at all.
STATE:
 
Psychologically. Especially for someone who's grown up from minor-child status to grown-up status in a sexually abusive relationship?
 
        MONTANI:
 
Right.
 
        On cross-examination, Montani testified an incestuous relationship between a parent and child cannot be consensual. She clarified she was speaking in psychological terms, and did not say that consent to a sexual relationship between a parent and an adult child was impossible.
        After Montani testified and while the jury was out, the trial court stated on the record that Merlos had objected to the State calling Montani and demanded a hearing on the matter. The trial court stated: “The Court refused to let the, let the Defense have that opportunity. The Defense has not waived its objection. I told the Defense they will have the opportunity now to present it, as to the last witness, whatever, whatever you want in the record.” Merlos then objected that he was not given notice the State was going to call an expert in the area of the cycle or dynamics of family violence or sexual abuse, that Montani was not qualified to testify in that area, and her testimony was not reliable or supported by any scientific theory. The trial court overruled the objections and motion to strike the testimony.
Standard of Review
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We reverse only when the trial court's decision was so clearly wrong as to fall outside the zone of reasonable disagreement. Id. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id.
Discussion
A. Hearing on Expert Witness
        Merlos's first two issues challenge the trial court's failure to conduct a hearing outside the presence of the jury before Montani testified as to her qualifications and the reliability of her opinions as to consent in an sexual relationship between a parent and their child and her testimony about Latin American culture. Merlos's third and fourth issues assert the trial court erred in admitting Montani's testimony because she was not qualified and her opinion was not reliable regarding consent in such a relationship and about culture. The State argues these issues were not preserved for appeal by a timely, specific objection at trial, and any error in failing to conduct a hearing was harmless.
        Rule 33.1(a) requires the record show “a timely, specific objection and a ruling by the trial court” to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). The trial court's statements in the record show the court was aware that Merlos objected to the expert and wanted a hearing before she testified and the court denied that request. After she testified, the trial court allowed Merlos to make his objections, and although he did not specifically object to the trial court's refusal to allow a hearing before the witness testified, such an objection was not required. Tex. R. App. P. 33.1(c) (formal exception to trial court ruling not required to preserve complaint for appeal). Merlos filed a pretrial motion requesting, among other things, a hearing outside the presence of the jury on any expert witness before the witness testified. At the pretrial hearing, Merlos mentioned this and several other requests in his pretrial motion, but the trial court did not expressly rule on the request for a hearing on the expert witness. Cf. Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992) (concluding error not preserved where defendant did not object to lack of rule 705(b) hearing after trial court changed previous pretrial ruling to have such a hearing). We conclude the record is sufficient to show Merlos preserved his complaint about a hearing regarding the expert. See Tex. R. App. P. 33.1(a).
        Before admitting expert testimony under evidence rule 702, the trial court should determine the expert is qualified, the opinion is reliable, and the evidence is relevant. See Tex. R. Evid. 702; Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000) (stating trial court should conduct hearing outside presence of jury to determine whether proponent has established all three criteria before admitting evidence). In addition, on timely request a party in a criminal case is entitled to conduct a voir dire examination of an expert directed at the underlying facts or data on which the expert's opinion is based before the expert gives an opinion and outside the presence of the jury. Tex. R. Evid. 705(b); Alba v. State, 905 S.W.2d 581, 587 (Tex. Crim. App. 1995). Rule 705(b) affords a party the opportunity to explore the foundation of an expert's opinion “without fear of eliciting damaging hearsay or other inadmissible evidence in the jury's presence.” Alba, 905 S.W.2d at 588 (citing Goss, 826 S.W.2d at 168). The hearing may also allow the party to develop an objection that the expert's testimony lacks a sufficient basis for admissibility. Id.; see also Tex. R. Evid. 705(c) (opinion inadmissible if trial court determines underlying facts or data do not provide sufficient basis for opinion under rule 702 or 703). The rule 705(b) hearing is mandatory and “a trial judge's denial of a timely and proper motion for such hearing would constitute error.” Alba, 905 S.W.2d at 588. The reviewing court must then determine if such error was so harmful as to require reversal. Id.; see also Tex. R. App. P. 44.2(b) (error that does not affect substantial rights must be disregarded); Tex. R. Evid. 103(a).
        On appeal, Merlos does not cite rule 705(b) as the basis of his complaint, however, his pre- trial motion requested a hearing under rule 705(b) and his argument under his second issue cites Alba. The thrust of his issues on appeal is not that the expert was allowed to present inadmissible underlying facts or data supporting her opinion to the jury, but that she was not qualified to give an opinion and her opinion regarding consent and the effects of culture was not reliable. See Alba, 905 S.W.2d at 588 (thrust of rule 705(b) is to prevent jury hearing underlying facts and data which may later be ruled inadmissible).
        The record is clear that Merlos requested a hearing on the expert and the trial court refused that request until after the expert had testified before the jury. We conclude this was error under evidence rule 705(b) and Alba, 905 S.W.2d at 588. However, because the underlying facts and data supporting Montani's opinion-her education, training, and experience, years of clinical treatment of victims of family sexual abuse, and knowledge of Hispanic culture- were not inadmissible, we cannot say on this record that the error in refusing a hearing before she testified affected Merlos's substantial rights. See id.; Harris v. State, 133 S.W.3d 760, 775 (Tex. App.-Texarkana 2004, pet. ref'd) (concluding error in refusing rule 705(b) hearing was harmless where expert testified regarding behavior patterns of family violence victims). We overrule Merlos's first and second issues.
B. Qualification and Reliability of Expert
        Merlos's third and fourth issues challenge the admissibility of the expert testimony on the basis of the qualifications of the expert and reliability of her opinion. A witness qualified as an expert by knowledge, skill, experience, training, or education may testify if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. Tex. R. Evid. 702. Qualification is a two-step inquiry, looking first to whether the witness has sufficient background in a particular field, and second to whether that background “goes to the very matter on which [the witness] is to give an opinion.” Vela, 209 S.W.3d at 131 (quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)).
        “Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case.” Rodgers v. State, 205 S.W.3d 525, 527-28 (Tex. Crim. App. 2006). An appellate court will rarely disturb the trial court's determination that a specific witness is or is not qualified to testify as an expert. Id. at 528 n.9. In determining whether the trial court abused its discretion in evaluating the qualifications of an expert, we consider: (1) the complexity of the field of expertise; (2) how conclusive is the expert's opinion; and (3) how central the area of expertise is to resolution of the case. See Vela, 209 S.W.3d at 131 (citing Rodgers, 205 S.W.3d at 527-28).
        Reliability focuses on the subject matter of the witness's testimony. The proponent of the expert testimony must demonstrate by clear and convincing evidence the expert testimony is reliable. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). To be reliable, expert testimony must meet three criteria: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Kelly also identified several non- exclusive factors that can affect a trial court's decision on reliability. See id. The Kelly reliability factors do not perfectly apply to all types of testimony; thus, the standard is flexible, but the proponent is not relieved of the requirement of showing reliability. Vela, 209 S.W.3d at 134. “When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon 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 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, 727 (Tex. Crim. App. 1999). When “soft” sciences are at issue, the trial court should inquire: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert's testimony is within the scope of that field; and (3) whether the expert's testimony properly relies on or utilizes the principles involved in the field. Russeau, 171 S.W.3d at 883. As with determinations of qualifications of an expert, we should give proper deference to the trial court's ruling regarding the reliability of the expert's opinion. See Vela, 209 S.W.3d at 136.
        The specific subject of Merlos's complaint is Montani's testimony that there is no consensual sexual activity between parents and children and her testimony about the different culture in Central America for reporting sexual abuse. Merlos argues Montani only had a general background as a psychotherapist and was not qualified to give an opinion about consent in an incestuous relationship or how culture affects reporting of sexual abuse. The record indicates Montani was trained and licensed as a psychologist and therapist. She testified to her several years of experience counseling sexual abuse victims and their family members, including the perpetrator. Many of her clients were Hispanic and she worked with children who were not raised in the United States. She testified about experience with victims who continued in an incestuous sexual relationship into adulthood because of the psychological issues and difficulty in breaking away from the relationship. Her background in dealing with sexual abuse in families was shown in her testimony and that background was important to her opinion on consent in an sexual relationship with a child.
        Merlos also argues Montani's opinions were not shown to be reliable because she did not testify her opinions were based on a valid scientific theory, a valid technique for applying the theory, and it was properly applied in this case. However, psychology is not a “hard” science and reliability is determined under less rigorous standards. See Russeau, 171 S.W.3d at 883; Nenno, 970 S.W.2d at 561. The reliability inquiry is a flexible one. See Vela, 209 S.W.3d at 134. Montani's opinion dealt with sexual abuse between a parent and minor child that continues after the child reaches the age of consent. She explained the complexity of sexual abuse, especially involving incest; how children will internalize and blame themselves for the abuse; and that it takes many years for a victim to work out the effects of sexual abuse. She explained the issues of fear, trust, betrayal, guilt, and helplessness faced by victims. Her opinion appears to be based on principles from her field of psychotherapy and her training and experience in counseling sexually abused children.
        Based on this record, and giving proper deference to the trial court's ruling, we cannot conclude the trial court abused its discretion in admitting Montani's testimony as an expert witness. See Vela, 209 S.W.3d at 136. We overrule Merlos's third and fourth issues.
C. Extraneous Offense Evidence
        Merlos's fifth issue argues the trial court erred by admitting extraneous offense evidence without timely notice to him under evidence rule 404(b). Tex. R. Evid. 404(b). Specifically, Merlos complains of the evidence that Merlos had sex with his daughter in 2001 in Honduras when she was thirteen or fourteen years old. He does not challenge the substantive admissibility of the extraneous offense evidence, but the lack of timely notice that the State intended to offer the evidence in its case-in-chief.
        Rule 404(b) relates to the admissibility of evidence of other crimes, wrongs, or acts of a person. Tex. R. Evid. 404(b). Such evidence is not admissible to show a person acted in conformity with a bad character. Id. Such evidence may be admissible for other purposes, however, provided that if a criminal defendant timely requests, “reasonable notice is given in advance of trail of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.” Id.; see also Hernandez .v State, 176 S.W.3d 821, 822 (Tex. Crim. App. 2005). It is error to admit rule 404(b) evidence when the State has failed to comply with the notice provisions of the rule. Hernandez, 176 S.W.3d at 824. Such error is reviewed under the appellate rule 44.2(b) harm standard for non-constitutional error. Id.; see Tex. R. App. P. 44.2(b). The purpose of the rule 404(b) notice provision is to prevent surprise and this purpose “is a valid consideration in conducting a Rule 44(b) harm analysis.” Hernandez, 176 S.W.3d at 825.
        Several months before trial, Merlos filed a motion requesting notice at least fourteen days before trial of any extraneous offense evidence. On the day of jury selection, the State filed a written notice describing the 2001 sexual assault evidence it intended to introduce. Before testimony began the next day, Merlos objected that this notice was not specific enough and was not timely. He argued that because the notice covered an entire year, he could not subpoena work records to develop an alibi defense. However, he did not request a continuance. The State responded that the defense was on notice of this prior sexual assault through police reports, the victim's statement, and a joint telephone conference with the victim and the prosecutor where it was discussed. Defense counsel responded that he had a great deal of information about the case, but disputed having the details of this offense. The trial court overruled the objection and ruled the evidence would be admissible to rebut the defensive issue of consent once it was raised at trial.         Assuming without deciding that the State did not give reasonable notice in advance of trial, we conclude any error in admitting the evidence without such notice did not affect Merlos's substantial rights. See Hernandez, 176 S.W.3d at 825-26. The record indicates the controlling issue was consent. Merlos did not deny having sex with his daughter, but argued it was consensual. Evidence that Merlos had sex with his daughter when she was under the age of consent would be admissible for purposes other than character conformity under these facts of this case. Although trial counsel claimed to be surprised by this evidence, there was evidence before the trial court that he was aware of the allegations that sexual abuse occurred in Honduras while the victim was a minor. Further, he did not seek a continuance to obtain evidence to establish an alibi defense or otherwise rebut the testimony. Merlos has not shown how his defense strategy might have been different if he had been given notice fourteen days before trial, as he requested, rather than the day of jury selection. See Hernandez, 176 S.W.3d at 826. It “strains credulity” that Merlos was not on notice the State would attempt to use evidence of the prior sexual abuse and could not have prepared an alibi defense relating to the time of the alleged prior assault. See id.
        We overrule Merlos's fifth issue.
Conclusion
        Having overruled each of Merlos's issues, we affirm the trial court's judgment.
 
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47.2
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