Opinion
01-20-00088-CR
07-28-2022
CLONE KINSEY, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas Trial Court Case No. 165008701010
Panel consists of Justices Kelly, Goodman, and Guerra.
MEMORANDUM OPINION
Amparo Guerra Justice
A jury convicted appellant, Clone Kinsey, of continuous sexual abuse of a child. See Tex. Penal Code § 21.02. The jury found both enhancement paragraphs true and sentenced Kinsey to 33 years' imprisonment. In four issues on appeal, Kinsey argues that the trial court abused its discretion by: (1) excluding evidence of the complainant's prior sexual behavior under Texas Rule of Evidence 412 in violation of his right to confrontation; (2) admitting the testimony of an unreliable expert; (3) admitting irrelevant victim-impact testimony during the guilt/innocence phase of the trial; and (4) allowing an expert witness to comment on the complainant's credibility and truthfulness.
We affirm.
Background
The complainant, who was 16 years old at the time of trial, lived with her mother Nichole Lewis Kinsey ("Nichole"), her stepfather Kinsey, and her younger brother in Houston from the time she was about six years old until the end of 2014. Kinsey is the biological father of the complainant's younger brother.
The complainant testified that she remembered an incident that occurred around Valentine's Day when she was ten years old and in fifth grade. Nichole went to the store with the complainant's brother to get Valentine's candy and left the complainant at home with Kinsey because she had gotten in trouble at school that day. Kinsey came into her room to ask if she wanted to "do it one time before [her] mom and [her] brother came back home." The complainant testified that because "something like this [had] happened before," she believed "do it one time" meant that Kinsey "wanted to touch [her.]"
Kinsey called the complainant into the bathroom, bent her over the toilet with her bottoms down, and rubbed his penis against the outside of her vagina. His penis did not go inside her vagina. He rubbed it back and forth, but it did not last very long. When he stopped, he told her to "clean up before [her] mom and [her] brother came back from the store." The complainant testified that he gave her money after the assault to go to the Valentine's dance at school, even though Nichole had told her she could not attend.
The complainant testified about a second incident that occurred close to the end of the school year, on the day she took the STAAR test. She recalled that Nichole had left for work and the complainant was getting her and her brother ready for school. Kinsey asked the complainant if she wanted to "do it before [she] [went] to school." The complainant said no, but Kinsey continued to follow her around the house. She told him she did not want to because she "didn't have time" and had a test that day.
Kinsey pulled the complainant into his bedroom, shoved her onto the bed, and covered her head with a pillow so she could not see anything. She felt him pull down her bottoms and underwear, "he got on top of [her] and rubbed his penis on [her] vagina." After he finished, he told her to "clean up before [she] got ready for school." The complainant testified that she felt "[d]isgusted" while this was happening. She explained that Kinsey told her not to tell Nichole what had happened because Kinsey and Nichole would go to jail, and the complainant and her brother would end up in foster care.
The complainant described a third incident when she and her brother were watching a "cowboy movie" in Kinsey's bedroom and her brother fell asleep. The complainant moved her brother to the couch to sleep, and then she returned and sat on Nichole's side of the bed to continue watching the movie. Kinsey told her "[c]ome on, come on," and "[j]ust one time. It won't take long." The complainant told him no, but then she felt scared of what he would do. When he asked again, she "just let it happen[.]" He put the pillow and covers over her head so she would not see, he pulled her bottoms down, and rubbed his penis against her vagina. After he finished, she thought he would tell her to clean up. Instead, he told her "he's been doing [her]. So it was [her] turn to do him." Kinsey then sat on the bed and told the complainant to "get on [her] knees."
Kinsey told her to "just go ahead," indicating that he wanted her to perform oral sex on him. She refused. He told her it would not hurt and to 'just do it like a sucker[.]" She put his penis in her mouth but did not continue for very long before she went to the bathroom and cleaned up. She only remembered him demanding oral sex on that one occasion.
That same year, when the complainant was ten years old, she wrote a note explaining that Kinsey had rubbed his penis on her vagina and gave the note to Nichole. Nichole testified that the note said, "When you leave in the morning, Daddy comes and . . . touches [me]." The complainant did not disclose the oral sex to Nichole in the note. The complainant testified that she "wrote it all down" because she did not feel she could not tell Nichole "face to face because [she] was scared [of] what was going to happen."
The complainant described Nichole's reaction to the note as "freaking out" and confused. Nichole confronted Kinsey about the note, in front of the complainant, and he claimed he "didn't do it" and that the complainant was lying.
Kinsey threw the complainant's letter away, but Nichole took it out of the trash and kept it for a few days. Eventually, Nichole "threw it away" because it was "disgusting." Nichole testified that she did not call the police about the note because "this was [her] daughter and [her] husband of seven, eight years" and she did not want to believe it. But Nichole pressed the complainant about it again, asking if she was sure and if she understood what she was saying, to which the complainant replied, "Yes, he did it."
Although Nichole did not call the police at this time, she made sure the complainant and Kinsey were not alone together. Nichole changed her job schedule so she could take the complainant to and from school. Nichole, the complainant, and her brother moved out of the house without Kinsey on December 31, 2014. They stayed with family until Nichole was able to afford an apartment.
The complainant made a second disclosure to Nichole about the sexual abuse sometime in 2015. The complainant testified that she was in seventh grade at the time. The complainant's then-stepfather, Darrick Collins, who had been abused himself, encouraged the complainant to tell her mother everything that happened. The complainant told Nichole more about the abuse, including that Kinsey had the complainant put his penis into her mouth. Nichole testified that she was "furious" and asked the complainant, "Why didn't you tell me this before?" The complainant said she was scared and did not know how Nichole would react.
There is conflicting testimony in the record as to whether Collins was the complainant's stepfather, or just a boyfriend or friend of Nichole. Collins was deceased at the time of trial.
The next day, Nichole reported the abuse to police. She explained she decided to go to the authorities because she thought the complainant "needed counseling," "her grades were slipping," and "she had started . . . cutting on herself." After the abuse was reported to police and Child Protective Services, the complainant gave a forensic interview at the Children's Assessment Center.
Susan Odhiambo testified that she conducted the complainant's forensic interview. Odhiambo described the complainant as exhibiting the typical demeanor of a 12-year-old child, she appeared willing to talk, and she could distinguish between the truth and a lie. The complainant used appropriate language to describe her allegations, and she remained consistent about the events she described.
Dr. Reena Isaac conducted a medical examination on the complainant on September 22, 2015. During the medical history portion of the exam, the complainant revealed that her "little brother's dad, Clone Kinsey," touched her on her "private" and touched her on her skin with his private part. She stated that she did not bleed or feel pain when he did it. She said it happened more than one time, but she could not remember how many times. The complainant told Dr. Isaac that Kinsey made her put his private part into her mouth at least twice, but she denied that he ejaculated. Dr. Isaac did not observe any injuries and did not collect any DNA because it had been months since the last contact.
The State also presented expert testimony from Dr. Jordana Strong about the symptoms and behaviors of sexual abuse victims. Kinsey objected to Dr. Strong's testimony on the basis that she was not qualified as an expert under Texas Rule of Evidence 702. The trial court overruled Kinsey's objections and allowed Dr. Strong to testify. Thereafter, Dr. Strong testified that "unsupervised" children, children "who may not have a good or close relationship with their families," and those who are "lonely or insecure" are often targeted for sexual abuse. Dr. Strong testified to the general signs or symptoms in sexually abused children, including aggressive behaviors and "reverting back" to younger childhood behaviors such as "bed-wetting" or "sucking [their] thumb." She testified that a child might display symptoms of depression, anxiety, or behavioral issues like fighting or other aggressive behavior. The child might also display "inappropriate sexual behaviors." Dr. Strong further testified that a child might also be asymptomatic, meaning they were "not showing outward symptoms," but that did not mean the child was not having "internal struggles." Dr. Strong stated there was "no blueprint" for how a child may respond to being sexually abused. She further testified that a child might exhibit long-term effects, including interpersonal issues, struggles maintaining relationships, intimacy issues, depression, anxiety, or PTSD symptoms.
Dr. Strong also explained that delayed outcry is quite common in child sexual abuse cases. She testified that children delay disclosing abuse because of fear of or threats from the abuser, or because they want to maintain a relationship with the abuser. A child might also delay disclosure out of embarrassment or shame. Dr. Strong further testified that a child could also have a gradual outcry, whereby they disclose some abuse at first and then more components of the abuse over time.
In his case-in-chief, Kinsey presented four witnesses and his own testimony. Two of his neighbors, Rodney Ploucha and his wife Candace Williams, said they trusted Kinsey with their own children. Ploucha also testified that he believed the complainant was afraid of her mother, and Williams testified that she did not approve of the way Nichole treated the complainant and described the complainant as "freez[ing] up" when her mother yelled.
Joseph Stoneham, Kinsey's friend and neighbor, testified he saw Kinsey around the children, including the complainant often, and he never saw anything inappropriate occur between Kinsey and the children. A fourth witness, Debra Williams, known as Bertha, testified that she lived in the same house as Kinsey from 2000 until 2017, and lived there at the same time Nichole and her children lived there. She testified that Kinsey acted in a safe manner around the children, she did not see him do "immoral things" around them, and he "was a good dad." She testified that Nichole did not like her, and that Nichole was dishonest and "tells a bunch of lies." She also testified that she did not appreciate the way Nichole treated the complainant, but also indicated that she did not think the complainant seemed like a "nice girl."
Kinsey testified that he started dating Nichole when the complainant was two years old. He testified that he and Nichole had a "rocky" marriage and that they "did a lot of arguing because the way [Nichole] talked to people and the way she treated the kids." Kinsey testified that Nichole moved in and out of the house with him over the years, leaving with the children every three weeks or so.
Kinsey testified that Nichole was always on the complainant "about everything she [did]," and if the complainant got "a bad grade in school, her mom would stay on her." He testified that Nichole would "beat" the complainant, but he denied ever "whooping" her. Kinsey testified that the complainant called him "Dad," and that she cared for him and trusted him. Kinsey testified that he was never alone with the complainant from the time she was two until she moved out when she was ten or 11, because there was "always . . . somebody in [the] house." He denied ever "hanging out" with the complainant, because "the only thing [he] d[id] [was] go to work and come home." Kinsey denied ever rubbing his penis against the complainant's vagina or putting his penis in her mouth. He testified that he believed Nichole made up these allegations and told them to the complainant. Kinsey testified that he thought Nichole "got it from her boyfriend [Collins] because he was the one that's been molested when he was a child." He believed Nichole and Collins came up with this scheme against him "[b]ecause [he] was dating one of [Nichole's] cousins." Finally, he testified that he believed the complainant had memorized her story and that he knew "for sure she's lying."
Standard of Review
In four issues on appeal, Kinsey challenges the trial court's rulings on the admission or exclusion of various evidence, including expert testimony. Each of Kinsey's issues on appeal requires us to apply an abuse-of-discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). A trial court has considerable discretion in determining whether to admit or exclude evidence. See id. Absent an abuse of discretion, we will not disturb a trial court's decision to admit or exclude evidence. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Under this standard, we will uphold a trial court's evidentiary ruling so long as the ruling is reasonably supported by the record and is correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008).
Similarly, we will not disturb a trial court's determination of whether a witness is qualified as an expert, absent a clear abuse of discretion. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). We gauge an abuse of discretion by testing whether the trial court acted without reference to any guiding rules or principles. Dennis v. State, 178 S.W.3d 172, 182 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Overall, "a trial court enjoys wide latitude in determining whether expert testimony is admissible." Hernandez v. State, 53 S.W.3d 742, 750 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd).
Confrontation Clause
In his first issue, Kinsey argues that the trial court abused its discretion by refusing to permit Kinsey to cross-examine Nichole about her statement to police that she had been called to the complainant's school because the complainant had been taking nude photographs of herself. Kinsey argues that the exclusion of this testimony violated his right to cross-examine witnesses under the Sixth Amendment's Confrontation Clause. See U.S. Const. amend VI. The trial court excluded this evidence under Texas Rule of Evidence 412, which generally prohibits the introduction of a victim's past sexual behavior. He acknowledges that evidence of this kind is generally excluded under Rule 412 but asserts that this evidence was admissible to demonstrate Nichole's lack of credibility. Because his need to impeach Nichole's credibility "far outweighed any arguable protection afforded under [Rule] 412," Kinsey contends the introduction of this evidence was constitutionally required.
A. Nichole's Testimony and Bill of Exception
During Nichole's cross-examination, Kinsey's counsel asked Nichole if she told a CPS caseworker and police that the complainant had been acting out by taking nude and semi-nude photographs of herself. The State objected on the basis that the question called for hearsay and was "improper evidence that goes toward some sort of sexual promiscuity of our victim." Kinsey's counsel disagreed, arguing that it was admissible evidence because it went to Nichole's credibility, i.e., that if it was true the complainant took these photographs, the school, as a mandatory reporter for sexual abuse, would have reported it and there was no evidence the school did so. The trial court sustained the State's objection. After attempting twice to rephrase the question, objections to which were sustained by the trial court, Kinsey's counsel argued that Kinsey was "being denied the ability to put on a defense," and requested to proffer a bill of exception. The trial court agreed he could do so.
During argument, Kinsey's counsel argued that Nichole made a statement to police that she was called up to the school because there were nude photographs found on the complainant's phone. Nichole stated that she "didn't know about [the photographs] until the school told [her.]" Kinsey's counsel argued that, because part of the defensive theory was the allegations against Kinsey were "a contrived fantasy by Nichole," he should be able to question her about the photographs because if her statement is to be believed, the school would have been required to report the discovery of the photographs and there was no report. The State objected based on Rule 412 and relevance, which the trial court sustained.
Kinsey proceeded elicit the testimony of Detective Tafishla McCoy and Nichole in his bill of exception. Kinsey's counsel reviewed Nichole's statement to police related to the discovery of the nude photographs with Detective McCoy. Detective McCoy testified that if schools learn of sexual abuse involving a child, they are required to report it to police. She explained, however, that the discovery of the nude photographs, as described in Nichole's statement, was "not something that [the school] would have to report to [police.]" And she explained that "[u]nless they physically actually saw the photos, [the school] would not actually have to report that to CPS [Child Protective Services]. That is something that they can report to the parents[.]" Detective McCoy further testified that Nichole's statement that she did not know about the photographs until the school told her did not necessarily mean that the school actually saw the photographs. She also testified that she did not report anything regarding "child pornography regarding [this] case."
Nichole testified that she was called to the school because of the nude photographs found on the complainant's phone and that she saw the photographs herself on the complainant's phone while at the school. She testified that she had not spoken to police about the photographs since that time. She explained that she spoke with a security guard and the assistant principal at the complainant's school, but she did not know whether the school reported the incident to police.
Following this testimony, Kinsey's counsel again argued that he was being denied the opportunity "to go into [Nichole's] truthfulness and veracity in front of the jury regarding these allegations" because "if a school heard about this, they would have mandatory reported it." Kinsey's counsel agreed that the crux of his argument was that the school's lack of reporting called into question Nichole's credibility. The trial court reaffirmed its ruling.
B. Applicable Law
Rule 412, the "rape shield" provision, is primarily a rule of exclusion that applies in any prosecution for "sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault." Tex. R. Evid. 412(a). Under the rule, specific instances of a complainant's past sexual behavior are inadmissible, with limited exceptions. See id. (a)(2), (b)(2). Even if the proponent of the evidence of past sexual conduct can satisfy his burden to demonstrate its relevance and an applicable exception under Rule 412, the evidence of specific instances of past sexual behavior must still be excluded unless the probative value of the evidence outweighs the danger of unfair prejudice. Tex. R. Evid. 412(b)(3). Unlike Rule 403 of the Texas Rules of Evidence, which presumes relevant evidence admissible even if it has some potential to be unfairly prejudicial, under Rule 412, the defendant must show that the probative value of the evidence outweighs its unfairly prejudicial effect. Compare Montgomery, 810 S.W.2d at 389 ("Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial."), with Robisheaux v. State, 483 S.W.3d 205, 223-24 (Tex. App.-Austin 2016, pet. ref'd) (noting that Rule 412 balancing test is more stringent than rule 403 balancing and weighs against admissibility).
The Rule 412 exception at issue in this case involves the admissibility of specific instances of past sexual behavior if the evidence "is constitutionally required to be admitted." See Tex. R. Evid. 412(b)(2)(E). The proponent of challenged evidence generally has the burden of establishing its admissibility by a preponderance of the evidence. See White v. State, 549 S.W.3d 146, 151-52 (Tex. Crim. App. 2018); Pierson v. State, 426 S.W.3d 763, 770 (Tex. Crim. App. 2014).
Kinsey contends that by not allowing testimony regarding the complainant's alleged nude photographs, the trial court violated his right to confrontation because he was not able to impugn Nichole's credibility. But the exclusion of a victim's sexual history has been held not to violate the defendant's confrontation and cross-examination rights. See Allen v. State, 700 S.W.2d 924, 930 (Tex. Crim. App. 1985). In Allen, the Court of Criminal Appeals noted there have been numerous attacks on rape-shield laws as violative of the Sixth Amendment, but those attacks generally have been rejected. See id. Rape-shield laws are not intended to exclude "highly relevant evidence and violate the defendant's right of confrontation[.]" Id. at 931.
Moreover, the United States Supreme Court has held that "the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295 (1973); see also Allen, 700 S.W.2d at 931. The right to cross-examine for the purpose of attacking the credibility of a witness is "not inviolate." Allen, 700 S.W.2d at 931. The Sixth Amendment protects an accused's right to cross-examine a witness, but it does not prevent a trial court from exercising its wide latitude to limit cross-examination on legitimate concerns such as harassment, prejudice, confusion of the issues, or to exclude evidence that is marginally relevant. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996). Whether there has been a violation of the Confrontation Clause is determined on a case-by-case basis. Henley v. State, 493 S.W.3d 77, 95 (Tex. Crim. App. 2016). To determine whether evidence must be admitted under the Confrontation Clause, a trial court must balance the defendant's right to cross-examine and the probative value of the proffered evidence against the risk factors associated with the evidence. Id. Under the constitutionally required exception to Rule 412, Kinsey had the burden to establish that the Confrontation Clause required the admission of testimony related to the complainant's nude photographs and that the evidence was more probative than unfairly prejudicial.
C. Analysis
Here, the trial court did not abuse its discretion when it excluded the proffered testimony related to Nichole's discovery of nude photographs taken by the complainant because Kinsey did not meet his burden under Rule 412 or the Confrontation Clause. Kinsey's argument for admission of this evidence requires multiple steps to understand its purported relevance: (1) Nichole told police that the complainant took nude pictures of herself, (2) Nichole did not know about these pictures "until the school told [her]," (3) a school is a "mandatory reporter" of sexual abuse, (4) the school did not report these photographs to police, (5) because the school did not report these photographs to police, Nichole must be lying about the existence of the photographs.
But Kinsey has not demonstrated that Nichole's statement to police regarding the nude photographs was false, i.e., that there were no nude photographs found. In her bill-of-exception testimony, Nichole maintained that she was called to the school because of the nude photographs found on the complainant's phone and that she saw the photographs herself on the complainant's phone while at the school. She explained that she spoke with a security guard and the assistant principal at the complainant's school, but she did not know whether the incident was reported to the police. Although Kinsey's counsel argued that the school had a mandatory obligation to report any nude photographs, Detective McCoy explained in her bill-of-exception testimony that the circumstances surrounding the discovery of the photographs, as described by Nichole, was "not something that [the school] would have to report to us." She testified that unless the school actually saw the photographs, the school could report to parents rather than to CPS or police. She also testified that this evidence would not have caused her to open a criminal investigation, and she did not open one. Further, Kinsey did not offer any testimony or evidence from any witness from the school to demonstrate the existence, or lack thereof, of the photographs. Nor did he offer any evidence regarding whether there was a CPS investigation and, if so, how CPS handled such investigation.
The simple fact that there was not a police investigation into the photographs does not establish that Nichole made a false statement to the police regarding the existence of nude photographs. Without proof that Nichole's statement to police about the nude photographs was false, the trial court reasonably could have concluded that the proposed cross-examination had little or no probative value and that any probative value was outweighed by the danger of unfair prejudice. Cf. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000) (holding Confrontation Clause did not require admission of evidence of prior sexual assault accusation because evidence had no probative value where appellant did not establish prior accusation was false); Willis v. State, No. 14-17-00559-CR, 2019 WL 1941067, at *7 (Tex. App.-Houston [14th Dist.] Apr. 30, 2019, pet. ref'd) (mem. op., not designated for publication) ("Without proof that the sexual-assault allegation against the foreign exchange student was false, the trial court reasonably could have concluded that the evidence had little or no probative value and what there was, was outweighed by the danger of unfair prejudice.").
Thus, the trial court did not abuse its discretion when it excluded the proffered evidence. We overrule Kinsey's first issue.
Expert Witness Testimony
In his second issue, Kinsey argues that the trial court abused its discretion in permitting Dr. Strong to testify as an expert on the general behaviors and symptoms of children victimized by sexual assault. Specifically relying on Kelly v. State, 824 S.W.2d 568, 575 (Tex. Crim. App. 1992), Kinsey contends that Dr. Strong's testimony was inadmissible under Texas Rule of Evidence 702 because her testimony was not accepted by the scientific community; she admitted there were no reliable indicators to tell whether a child had been sexually abused; she lacked professional experience; and she had not conducted any research and was unable to cite to any authority upon which she relied for her testimony.
A. Dr. Strong's Qualifications and Testimony
Dr. Strong testified that she has a Bachelor of Science in Psychology from Loyola University Chicago, and a master's and doctorate in Clinical Psychology from the Illinois School of Professional Psychology. She testified that she is a staff psychologist at the Children's Assessment Center, which is "an advocacy center for children and families who have been impacted by child sexual abuse." As a staff psychologist, Dr. Strong testified that she provides individual, family, and group therapy for victims of childhood sexual abuse. She also supervises three doctoral interns and does presentations and training to future volunteers and staff members at the Children's Assessment Center. At the time of trial, Dr. Strong was undergoing "training [in] trauma focused cognitive behavioral therapy, which is a type of treatment for traumas to include sexual abuse." Dr. Strong testified that does not conduct research as a part of her practice. She explained that she had not met with the complainant and was only offering an opinion about the general effects of childhood sexual abuse.
Dr. Strong previously testified as an expert in at least five trials. In the past five years, she has treated more than 50 children who were victims of sexual abuse. She agreed that there were "probably elements of sexual abuse that [she] ha[d] not dealt with." She explained that she was providing testimony to the jury about the "dynamic of childhood sexual abuse," which was based on her experience and knowledge about how childhood sexual abuse can occur, as well as literature she had read. Dr. Strong admitted that she was unable to recall the "exact name[s]" of the literature she had read but was primarily basing her opinions on her "actual clinical work of providing individual and family and group therapy." She testified that there were articles discussing "the signs and symptoms of sexual abuse," but agreed that it is "also an area that has been understudied."
The trial court ruled that, based on her "educational background, her years of working with children at the Children's Assessment Center, the 50 children that she has seen in her capacity as a psychologist there at the CAC[,] and her other training and experience," Dr. Strong was qualified to "testify to the general behaviors and symptoms that . . . child victims of sexual abuse exhibit."
Thereafter, Dr. Strong testified that "unsupervised" children, children "who may not have a good or close relationship with their families," and those who are "lonely or insecure" are often targeted for sexual abuse. Dr. Strong testified to the general signs or symptoms in sexually abused children, including aggressive behaviors and "reverting back" to younger childhood behaviors such as "bed-wetting" or "sucking [their] thumb." She testified that a child might display symptoms of depression, anxiety, or behavioral issues like fighting or other aggressive behavior. The child might also display "inappropriate sexual behaviors." Dr. Strong further testified that a child might also be asymptomatic, meaning they were "not showing outward symptoms," but that did not mean the child was not having "internal struggles." Dr. Strong stated that there was "no blueprint" for how a child may respond to being sexually abused. She further testified that a child might exhibit long-term effects, including interpersonal issues, struggles maintaining relationships, intimacy issues, depression, anxiety, or PTSD symptoms.
Dr. Strong also explained that delayed outcry is quite common in child sexual abuse cases. She testified that children delay disclosing abuse because of fear of or threats from the abuser, or because they want to maintain a relationship with the abuser. A child might also delay disclosure out of embarrassment or shame. Dr. Strong further testified that a child could also have a gradual outcry, whereby she disclosed some abuse at first and then more components of the abuse over time.
B. Factors For Determining Reliability of Nonscientific Expert Testimony Under Rule 702
Kinsey relies on the Court of Criminal Appeals' opinion in Kelly v. State in support of his argument that Dr. Strong's testimony was not reliable expert testimony and should have been excluded. In Kelly, the Court of Criminal Appeals listed factors that could affect a trial court's determination of reliability of expert testimony, including:
(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained;
(2) the qualifications of the expert(s) testifying;
(3) the existence of literature supporting or rejecting the underlying scientific theory and technique;
(4) the potential rate of error of the technique;
(5) the availability of other experts to test and evaluate the technique;
(6) the clarity with which the underlying scientific theory and technique can be explained to the court; and
(7) the experience and skill of the person(s) who applied the technique on the occasion in question.824 S.W.2d at 573.
Although Kinsey relies on Kelly, the Court of Criminal Appeals held in Nenno v. State that the Kelly factors utilizing "hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences," such as in areas of "the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method." 970 S.W.2d 549, 561 (Tex. Crim. App. 1998). In areas of nonscientific expert testimony or those outside of hard science, the following factors, translated from those set out in Kelly, may be applied: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter is within the scope of the expert's field of expertise; and (3) whether the expert's testimony properly relies upon or utilizes the principles involved in the field. Nenno, 970 S.W.2d at 560-61; accord Hernandez v. State, 53 S.W.3d 742, 751 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd).
This Court has noted that expert testimony regarding the effect of sexual abuse on children is "nonscientific expert testimony" and, in determining whether such nonscientific testimony is reliable and, therefore, admissible, we must consider (1) whether the expert's field of expertise is a legitimate one; (2) whether the symptoms exhibited by sexually abused children are within the scope of the expert's field of expertise; and (3) whether the expert's testimony properly relied upon or utilized the principles involved in her field. Hernandez, 53 S.W.3d at 749. And, where appropriate, "experience alone may provide a sufficient basis for an expert's testimony." Id. at 751. Accordingly, we apply the Nenno factors, as applied to expert testimony regarding the effect of sexual abuse on children by this Court in Hernandez, to determine the reliability of Dr. Strong's expert testimony.
With respect to the first question, contrary to Kinsey's assertion that Dr. Strong's area of expertise is not accepted by the scientific community, both the Court of Criminal Appeals and this Court have recognized that Dr. Strong's field of expertise is legitimate. Cohn v. State, 849 S.W.2d 817, 818-19 (Tex. Crim. App. 1993) (recognizing that research concerning behavioral characteristics of children is legitimate field of expertise); Hernandez, 53 S.W.3d at 751 (recognizing that experience regarding characteristics and dynamics of sexually abused children is legitimate field of expertise); Mulvihill v. State, 177 S.W.3d 409, 412 (Tex. App.- Houston [1st Dist.] 2005, pet. ref'd) (recognizing that experience concerning symptoms and behaviors exhibited by sexually abused children is legitimate field of expertise).
As to whether the subject matter of Dr. Strong's testimony was within the scope of her field, Dr. Strong testified about the signs and behaviors that sexually abused children generally exhibit. Dr. Strong testified that her opinions were based on her education, training, and experience as a staff psychologist at the Children's Assessment Center. She had earned a Bachelor of Science in Psychology and a master's and doctorate in Clinical Psychology. At the Children's Assessment Center, she provided individual, family, and group therapy on a weekly basis for victims of sexual abuse. Moreover, in her over five years as a staff psychologist at the Children's Assessment Center, Dr. Strong had counseled over 50 children who had been sexually abused. Thus, the trial court was presented with ample evidence to support an implied finding that the subject matter of Dr. Strong's testimony was within the scope of her field.
Finally, we conclude that Dr. Strong's testimony properly relied upon or utilized the principles in her field. Her opinions regarding the symptoms and behaviors exhibited by sexually abused children were based on her advanced educational experience, her knowledge gained through her continuing education classes, and, primarily, her experience as a staff psychologist at the Children's Assessment Center. Although Kinsey asserts that Dr. Strong's testimony was not reliable because there was "no scientific theory or technique" supporting her testimony or "evidence of the potential rate of error," and she "had written no professional works, . . . could not name even one book or article she had read," and "had very limited experience in her field working given the small number of patients she had seen and the short period of time she had been in practice," the evidence of Dr. Strong's education, training, and experience discussed above provide a sufficient basis for the trial court to find that her testimony was reliable. The absence of studies quantifying or providing a statistical analysis does not affect the reliability and, therefore, admissibility, of her testimony but only affects the weight of the evidence. Hernandez, 53 S.W.3d at 749-50. Furthermore, this Court has held that a witness with similar education and professional experience was qualified to testify as an expert with respect to the symptoms exhibited by sexually abused children. See Mulvihill, 177 S.W.3d at 413-14 (holding that counselor who had master's degree in behavioral sciences and human services, completed internship working with young adults who had been sexually abused, taken numerous continuing education courses that concerned working with sexually abused persons, worked for two-and-one-half years as counselor, counseled between 25 and 30 children who had been sexually abused, was qualified as expert to render opinion on symptoms exhibited by sexually abused children).
Accordingly, we hold that the trial court did not abuse its discretion in admitting Dr. Strong's testimony regarding the behavioral symptoms generally exhibited by sexually abused children. We overrule Kinsey's second issue.
Admission of Victim Impact Testimony
In his third issue, Kinsey argues that the trial court abused its discretion by permitting Dr. Strong to testify about the long-term effects exhibited by a child who is a victim of sexual abuse. Kinsey argues that this was irrelevant victim impact testimony that was inadmissible during the guilt/innocent phase of trial. Specifically, Kinsey complains about the following testimony solicited by the State from Dr. Strong:
State: What are some of the long-term effects that a child may exhibit?
Defense: Objection, Your Honor. Outside of the scope of what this witness was offered for.
The Court: Overruled.
Dr. Strong: So some --
Defense: Also relevance to this phase of the trial.
The Court: Overruled.
Dr. Strong: Some long-term effects that can be exhibited by a child who may have been sexually abused could be interpersonal issues. So struggles with maintaining
relationships with individuals along with intimacy issues, having depressive or anxiety or PTSD symptoms, as well.
Victim-impact testimony is generally irrelevant at guilt/innocence because it does not tend to make more or less probable the existence of any fact of consequence at that phase of trial. See Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990); see also Stavinoha v. State, 808 S.W.2d 76, 78 (Tex. Crim. App. 1991). Outside the context of homicide cases, victim-impact evidence is generally defined as evidence regarding "the physical or psychological effect of the crime on the victims themselves." Lane v. State, 822 S.W.2d 35, 41 (Tex. Crim. App. 1991).
"To preserve a complaint regarding the erroneous admission of victim-impact evidence for appellate review, the defendant must object on the ground that the evidence constitutes impermissible victim-impact evidence." Reynolds v. State, 371 S.W.3d 511, 525-26 (Tex. App.-Houston [1st Dist.] 2012, pet. ref'd) (holding that objection to testimony at trial on grounds that testimony was irrelevant did not preserve appellate complaint that testimony was inadmissible victim-impact testimony); Karnes v. State, 127 S.W.3d 184, 195 (Tex. App.-Fort Worth 2003, pet. ref'd) (holding that objection to testimony at trial on grounds that testimony was "irrelevant, highly prejudicial, and below the threshold requirement of admissibility" does not preserve appellate challenge that testimony constitutes inadmissible victim-impact testimony); see also Tex. R. App. P. 33.1(a) (requiring complaining party to object in trial court and state basis for requested ruling with sufficient specificity to make trial court aware of complaint and basis for ruling requested); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) ("Whether a party's particular complaint is preserved depends on whether the complaint on appeal comports with the complaint made at trial.") (citing Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)).
Here, Kinsey's objections to the complained-of testimony were that it was "outside the scope of what this witness was offered for" and not "relevan[t] to this phase of the trial." He did not argue that the testimony would constitute impermissible victim-impact evidence, as he does now on appeal. Like in Reynolds and Karnes, these objections at trial did not preserve Kinsey's appellate complaint that the testimony constitutes inadmissible victim-impact testimony because they do not comport with the complaint raised on appeal. See Reynolds, 371 S.W.3d at 26; Karnes, 127 S.W.3d at 195; see also Pena, 285 S.W.3d at 464 (noting that preservation depends on whether complaint on appeal comports with complaint made at trial); Reyna, 168 S.W.3d at 177 ("The issue . . . [is] whether the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal.").
To the extent Kinsey argues on appeal that this testimony was not just improper victim-impact evidence, but also irrelevant, and thus, should have been excluded, we disagree. Kinsey argues that "[a]ny struggles from which [the] complainant suffered which may appear to be similar to those suffered by child abuse victims per Dr. Strong did not make more or less probable that appellant had sexually assaulted complainant." As the State points out, however, evidence related to a complainant's change in behavior is relevant to allegations of sexual abuse or assault if either occurrence or consent are disputed, because the change in behavior makes it more probable that the alleged abuse or assault took place. See, e.g., Gonzalez v. State, 455 S.W.3d 198, 203-04 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd) (evidence of child's post-traumatic stress disorder held admissible in case in which source of trauma-sexual assault by defendant or physical abuse by mother-was disputed); Yatalese v. State, 991 S.W.2d 509, 511 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (teenager's transformation from "normal, regular little girl" to having "very bad attitude" and "a lot of anger" since alleged sexual assault held admissible in case in which defendant disputed that assault occurred).
Additionally, a qualified expert may testify about the behaviors one would expect children who have been sexually abused to exhibit. Cohn v. State, 849 S.W.2d 817, 818-19 (Tex. Crim. App. 1993) (psychiatrist); see also Mulvihill, 177 S.W.3d at 412-14 (counselor who was neither psychologist nor psychiatrist). Under Cohn, such testimony may be relevant and admissible even if the behavior at issue is merely consistent with sexual abuse rather than of a sort that would only be exhibited because of sexual abuse. Frohne v. State, 928 S.W.2d 570, 575 (Tex. App.- Houston [1st Dist.] 1996, pet. ref'd); Conner v. State, 891 S.W.2d 668, 669-70 (Tex. App.-Houston [1st Dist.] 1994, no pet.). This sort of behavioral testimony must be tied to the facts of the case either through the expert's own testimony or the testimony of other witnesses regarding the behavior exhibited by the child. Tillman v. State, 354 S.W.3d 425, 439-40 (Tex. Crim. App. 2011) (discussing Cohn). But the fit between the expert testimony and the facts of the case need not be perfect; it suffices if the child displayed some of the symptoms or behaviors discussed by the expert. Williams v. State, 895 S.W.2d 363, 365-66 (Tex. Crim. App. 1994) (discussing Cohn).
Here, Kinsey, who testified at trial, disputed that complainant was assaulted. Kinsey's defensive theory was that Nichole and Collins came up with the story because Kinsey "was dating one of [Nichole's] cousins." Kinsey testified that he believed the complainant got the story from Collins because Collins had been molested as a child.
Moreover, Nichole testified that, after the complainant's second disclosure in 2015, she felt the complainant "needed counseling," the complainant's "grades were slipping," and the complainant "had started . . . cutting on herself." Nichole also testified that the complainant had been getting in trouble at school. The complainant testified that although she felt "a little relief" after telling Nichole what happened to her, she was "still scared." The complainant testified she is "doing good in school" now and her "grades have improved," but she was "worried" that the trial would cause her to "start slipping again." She testified that this created stress for her.
Given Kinsey's defensive theory, Dr. Strong's testimony about comparable symptoms Dr. Strong saw in other victims of child sexual abuse was relevant and admissible to show that it was more probable than not that the sexual assault occurred. See Tex. R. Evid. 401 ("Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence[.]"); Gonzalez, 455 S.W.3d at 203-04; Yatalese, 991 S.W.2d at 511. Additionally, because the record contains evidence that the complainant exhibited some behaviors about which Dr. Strong testified, Dr. Strong's testimony about the behaviors exhibited by children who have been sexually abused was relevant and admissible. Tillman, 354 S.W.3d at 439-40; Williams, 895 S.W.2d at 365-66; see also Fuller v. State, No. 01-14-00796-CR, 2016 WL 1267912, at *12 (Tex. App.-Houston [1st Dist.] Mar. 31, 2016, pet. ref'd) (mem. op., not designated for publication) (holding trial court did not abuse its discretion in admitting expert testimony that children who have been sexually abused often experience depression, anxiety, interpersonal difficulties, sexual acting out, and suicidal tendencies because there was testimony in record that child had suicidal feelings, anxiety, problems in school, depression, and desire to self-harm). Thus, the trial court did not abuse its discretion by admitting this evidence.
We overrule Kinsey's third issue.
Consistency of Complainant's Story
In his fourth issue, Kinsey argues that the trial court abused its discretion by permitting Susan Odhiambo, a forensic interviewer who interviewed the complainant and testified as an expert for the State, to tell the jury that the complainant's story remained consistent. Specifically, Kinsey complains about the following testimony from Odhiambo:
State: In your interview with [the complainant], did she provide -- obviously without getting into anything she said, did she provide sensory details when describing the events?
Odhiambo: Yes.
State: And did her story remain consistent?
Defense: Object. Invading the province of the jury. Calls for hearsay. Calls for speculation.
The Court: Overruled.
State: Thank you, Judge.
State: You can answer.
Odhiambo: Yes.
Kinsey contendsthis testimony invaded the province of the jury because, although not a direct comment on the complainant's credibility, it was "an effort by the State to demonstrate that complainant was not lying." Although an expert is not permitted to give an opinion on the truthfulness of a child complainant's allegations, see Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997), several courts of appeals have held that a witness's testimony about the consistency of a child complainant's statements does not constitute an inadmissible direct opinion on the child's truthfulness, as long as the witness does not offer an opinion on the significance of the consistency. See Lopez-Salas v. State, No. 02-15-00294-CR, 2017 WL 1173831, at *6 (Tex. App.-Fort Worth Mar. 30, 2017, pet. ref'd) (mem. op., not designated for publication) (holding that although witness may not give direct opinion of complainant's truthfulness, witness's testimony that child complainant's statements were consistent over time, without giving opinion as to significance of that consistency, does not constitute inadmissible direct opinion on complainant's truthfulness); Matamoros v. State, No. 13-13-00692-CR, 2015 WL 6759331, at *10 (Tex. App.-Corpus Christi Nov. 5, 2015, pet. ref'd) (mem. op., not designated for publication) (holding expert's testimony that findings and observations contained within hospital records were consistent with child's outcry of abuse was not direct opinion on child's truthfulness and was admissible expert testimony); Martinez v. State, No. 08-12-00191-CR, 2014 WL 3763649, at *1 (Tex. App.-El Paso July 30, 2014, pet. ref'd) (not designated for publication) (rejecting appellant's argument that witness's testimony that child was consistent throughout his story was indirect or direct comment on child's truthfulness or credibility because witness "did not offer an opinion regarding or otherwise discuss the truthfulness of [child's] statements or testimony, the truthfulness of [child's] allegations, or the characteristics of child victims as a class"); cf. Verdun v. State, No. 14-08-00864-CR, 2010 WL 183523, at *4-5 (Tex. App.-Houston [14th Dist.] Jan. 21, 2010, pet. ref'd) (mem. op., not designated for publication) (rejecting appellant's ineffective-assistance claim based on counsel's failure to object to police officer's testimony that complainant's statements at trial were similar to facts she had previously given to officer because officer "offered no opinion as to the truthfulness of the complainant's allegations," did not "express an opinion as to whether appellant committed the conduct alleged," and "did not draw any conclusions regarding the substance of the complainant's statements" and, thus "did not contain a direct opinion on the complainant's truthfulness or credibility").
See also Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993) (concluding that "expert testimony that a particular witness is truthful is inadmissible under [Texas] Rule [of Evidence] 702").
Here, Odhiambo did not offer an opinion regarding the truthfulness of the complainant's testimony, statements, or allegations. Nor did she provide any opinion on the significance of the consistency or the substance of the complainant's statements. Her testimony consisted of an affirmative response of "[y]es" to the State's question, "did [the complainant's] story remain consistent?" We agree with the cases cited above and hold that this testimony did not contain a direct (or indirect) opinion on the complainant's truthfulness or credibility. See Lopez-Salas, 2017 WL 1173831, at *6; Matamoros, 2015 WL 6759331, at *10; Martinez, 2014 WL 3763649, at *1 Verdun, 2010 WL 183523, at *4-5. We overrule Kinsey's fourth issue.
Conclusion
We affirm the trial court's judgment.