Gonzalez v. State

Full title: GERMAIN GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 7, 2011

No. 05-10-00017-CR (Tex. App. Jan. 7, 2011)

Opinion

No. 05-10-00017-CR

Opinion issued January 7, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80028-09.

Before Justices BRIDGES, FRANCIS, and LANG.

MEMORANDUM OPINION

Opinion By Justice BRIDGES.

Appellant Germain Gonzalez appeals from his conviction for indecency with a child, along with his accompanying sentence and fine. In two issues, appellant contends the trial court erred in overruling his objection to expert testimony offered by Sergeant Lanier concerning his ability to determine (1) if an alleged child abuse victim is telling the truth about events of abuse and (2) if the alleged child abuse victim was dreaming or hallucinating about said acts of abuse, when he had not been qualified as an expert witness for those purposes. We affirm.

Background

In October of 2008, complainant told her school counselor, Thao Nguyen, that appellant was touching her inappropriately on her breast and bottom. During trial, Nguyen recalled that, when the complainant came to talk to her, she was nervous, jittery and shaky. She used her hand to indicate where appellant had touched her. Sergeant Billy Lanier of the Collin County Sheriff's Office was assigned to investigate. He scheduled the complainant for a forensic interview and sexual assault exam. After watching the interview, he obtained a warrant for appellant's arrest. When Lanier arrived at appellant's home and asked the man who answered the door if he was Germain Gonzalez, appellant said "no" at first, then hung his head, and admitted who he was. In his interview with Lanier, appellant initially denied touching the complainant and then said it was possibly an accident that he touched her breast. When asked, appellant repeatedly insisted that the complainant was not a liar. Appellant also stated, if he did touch the complainant, it "revolved around drinking." At trial, Lanier was the State's first witness. Lanier testified he had been a licensed peace officer for thirteen years, spent three years in the narcotics division, and for the last three-and-a-half years, had been investigating child abuse cases. He attended child abuse training on neglect, physical abuse, and sexual abuse and worked out of the Collin County Children's Advocacy Center as part of the child abuse task force. Lanier explained what was involved in the investigation of the complainant's case, and the prosecutor asked what he noticed in reviewing her forensic interview:

Q: Without telling us what anyone said in the [forensic] interview, what was it that stood out in your mind as significant?

A: When we watch an interview of a child we'll look for certain things that we want to see, and I can explain that as chronological order.

[Defense Counsel]:Judge, I'm-excuse me. I'm gong to object at this time to him testifying as an expert about what he can deduce about what happened based on observing somebody's behavior. He's not been qualified as an expert to be able to do that and I object. This calls for expert testimony that he has no expertise in.

The Court:Overruled, counsel.

A: We may look for things like chronological order. What I mean by that is A, B, C, D, E. If a person can tell that story without any issues and then within that they may go back and what we call looping to see if that person can go back to maybe B and start or C and start and pick it right back up without having to start the story all over again like they were coached or something like that.

We also look for if the child can limit the abuse that they're going through. If they say oh, no, no, no, it wasn't that. It was just this. We look for that. The reason is when you do have a person that comes in that may be telling a story or making something up it tends to be everything, you know, like it was violent. Everything was done to me. We look to those things. If a child actually acts it out in a room, if they use their body, they use their hands or if they stand up or lay down on the floor, that lets us know that person was actually living that event and it's not just something that they were told could have happened to them. We look for several things like that. Following Lanier's answer, defense counsel did not renew his objection. Lanier then went on to explain that the complainant had been clear on the chronology of events and used her hands to demonstrate. The State asked Lanier if verifying chronology and looking for gestures and demonstrations was something he had been trained to look for only in child interviews or if he also looked for such things when he interviewed anyone. Lanier responded, without objection, as follows: Well, yeah, you want to see this with anyone, but specifically with children we have concerns that they my have been coached or something, and these are things that alleviate our concern. Appellant's second objection to Lanier's testimony, on the ground that it required an expertise Lanier did not possess, occurred on re-direct:

Q: Are you looking for any signs that the child was coached. [Defense objections to leading and asked-and-answered overruled.]

A: Yes, sir.

Q: Did you see any in this case?

A: No, sir.

Q: Are you looking for any signs that maybe the child was dreaming or hallucinating?

A: Yes, sir.

Q: Did you see —

[Defense Counsel]:Objection, Your Honor, it calls for expert testimony. The Court: Overruled counsel.

Q: Did you see any of those signs in this case?

A: No, sir.

In addition to the testimony of Lanier, the jury also heard the complainant testify as to the inappropriate touching. She also testified she tried to protect herself by keeping a straight pin by her bed in case he started hurting her. The complainant's mother testified that her daughter told her appellant was coming into her room at night, though she did not understand the complainant was trying to tell her that appellant was touching her. She further stated appellant asked her for forgiveness for having disrespected her daughter. Nguyen related the complainant's outcry to the jury-that appellant had touched her breast and bottom-and added the complainant had used her hands to demonstrate both touches. The parties also stipulated to the sexual assault nurse examiner's notes of what the complainant told her: I got abused, my step father [appellant] touched me. My butt and my chest. His hand touched over my clothes and rubbed his hand on my butt over my clothes. Touched over my clothes on my chest. He never knew I knew he touched me. I pretended I was asleep. This happened lots of times. I told my counselor at school. Finally, the forensic interviewer, Michelle Schuback, testified, without objection, that she looks for whether the child being interviewed is detailed, provides sensory details, can put the incident in context with other events, can maintain the same chronological order, and was as clear and consistent about what did not take place as about what occurred. She also testified, without objection, about the behavioral differences between children who have been sexually abused and those who have not been. She testified, without objection, that she believed the interview was reliable and that she had no concerns the complainant was hallucinating. The jury convicted appellant. This appeal ensued. Analysis In two issues, appellant contends the trial court erred in overruling his objection to expert testimony offered by Sergeant Lanier concerning his ability to determine (1) if an alleged child abuse victim is telling the truth about events of abuse and (2) whether the alleged child abuse victim was dreaming or hallucinating about said acts of abuse, when he had not been qualified as an expert witness for those purposes. In his first issue, appellant contends the trial court improperly overruled his objection to Lanier's testimony regarding the various techniques he used to determine if a child was telling the truth. However, the record reflects appellant only objected to Lanier's initial statement that "[w]hen we watch an interview of a child we'll look for certain things that we want to see, and I can explain that as chronological order." Following the trial court's decision to overrule appellant's objection to that statement, the record demonstrates appellant lodged no further objection to Lanier's testimony regarding the techniques he utilized to determine if a child is telling the truth. To preserve error, an objection must be timely. Tex. R. App. P. 33.1(a)(1). To be considered timely, the objection must be made when the grounds for the objection becomes apparent. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008). If the grounds for the objection have not yet arisen, the objection is premature and the trial court properly overrules the objection as not well-taken. Felder v. State, 848 S.W.2d 85, 96 (Tex. Crim. App. 1992). If the ground later becomes apparent, the party must re-urge his objection to preserve error. Id.; Bushnell v. Dean, 803 S.W.2d 711, 711-12 (Tex. 1991). Following the court's ruling on the initial objection, Lanier testified at length regarding the factors he considered in a child's story of the events. Appellant did not object to Lanier's additional testimony. Further, when Lanier made the statements, of which appellant specifically complains about in his brief (i.e. "that lets us know that the person was actually living that event"), appellant, again, failed to re-urge his objection. Therefore, appellant failed to preserve his complaint on appeal. Tex. R. App. P. 33.1(a)(1). We overrule appellant's first issue. In his second issue, appellant complains the trial court erred when it overruled his objection to expert testimony offered by Sergeant Lanier concerning his ability to determine whether the complainant was dreaming or hallucinating about said acts of abuse, when Lanier was not qualified as an expert witness for that purpose. We review the trial court's decision to admit or exclude testimony, including lay or expert testimony, under an abuse of discretion standard. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006); Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). Opinion testimony is not limited to experts. Tex. R. Evid. 701; Osbourn, 92 S.W.3d at 535-36. A lay witness may offer opinions or inferences as long as they are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. Id. Further, although police officers have training and experience, they are not precluded from offering lay testimony regarding events they have personally observed. Osbourn, 92 S.W.3d at 536. Their observations, which do not require significant expertise to interpret and are not based on scientific theory, can be admitted as lay opinions. Id. at 537. Although Lanier's testimony that he saw no signs the complainant was dreaming or hallucinating could have been admissible as expert testimony, it was also admissible as lay testimony in this case. The record demonstrates Lanier had observed the complainant's forensic interview and could testify, based on life experience, that he had not seen any signs that complainant was dreaming or hallucinating. Thus, he perceived the events of the interview and formed an opinion that a reasonable person could draw from the facts. See Tex. R. Evid. 701. Furthermore, this testimony was helpful to demonstrate the complainant's forensic interview had been subjected to investigation and evaluation. Id. Consequently, the trial court did not abuse its discretion in admitting Lanier's lay testimony that he saw no signs the complainant was dreaming or hallucinating. Ellison, 201 S.W.3d at 723. We overrule appellant's second issue. Having overruled appellant's two issues, we affirm the judgment of the trial court.