No. 05-04-00267-CR
Opinion Filed June 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81091-03. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
A jury convicted appellant Brandon Wayne Lively of aggravated sexual assault of a child and assessed punishment at seventy-eight years' imprisonment. In one issue, appellant contends that the trial court abused its discretion by allowing an expert witness's testimony about sex offenders and the effects of sexual abuse on victims. We affirm.
BACKGROUND
Appellant was staying at the home of thirteen-year-old C.G., her mother, stepfather, and younger brother. Early one morning, C.G. awoke from sleeping on the couch to find appellant leaning over the couch, reaching into her pants and under her panties, and rubbing his fingers around her vagina. Later she awakened to find appellant again rubbing his fingers around the opening of her vagina. Appellant gave statements to law enforcement admitting his guilt. EXPERT TESTIMONY
In one issue, appellant contends that the trial court erred in allowing Dan Powers to testify during punishment as an expert about sex offenders because he lacked the credentials to do so. The question of whether a witness offered as an expert possesses the required qualifications rests solely in the trial court's discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). Absent a clear abuse of discretion, a trial court's decision to admit testimony will not be disturbed. Id. Admission of expert testimony is governed by Texas Rule of Evidence 702. Tex. R. Evid. 702; Morales v. State, 32 S.W.3d 862, 865 (Tex.Crim.App. 2000). The trial court's first task in addressing the admissibility of expert testimony is to determine whether it is sufficiently reliable and relevant to help the jury in reaching accurate results. Morales, 32 S.W.3d at 865 (citing Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992)). It must then determine whether the evidence meets the Rule 702 standard and assists the trier of fact in understanding the evidence or in determining whether the expert makes an effort to tie pertinent facts of the case to the scientific principles which are the subject of his testimony. Id. When considering testimony regarding social sciences under Rule 702, the appropriate questions are: (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 upon and/or utilizes the principles involved in the field. 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 (1998). The special knowledge which qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a combination of these things. Wyatt, 23 S.W.3d at 27. In a hearing outside the presence of the jury, Powers testified that he had a master's degree in clinical social work and was currently the chief clinical director of the Collin County Children's Advocacy Center. He had more than sixteen years of experience in the area of sexual abuse and offenses, including over three years as an investigator with Child Protective Services, over nine years treating the general population, including sex offenders, and four years at the Children's Advocacy Center working with children, law enforcement, and the district attorney's office. He was a licensed social worker and a registered sex offender treatment provider for the State of Texas. He attended at least twelve hours of continuing education related to sex offenders annually and had a total of over seven hundred hours of continuing education. He had training and experience in identifying the emotional effects of sexual abuse on victims, had provided treatment to sex offenders, and had provided training to law enforcement, child protective services, other therapists, and university interns. He consulted with law enforcement and district attorney's offices regarding sex offenders and sexual abuse. He had previously testified several times regarding sex offenders and the effects of sexual offenses on victims. Powers stated that he based his opinions and evaluations of sex offenders and victims upon his training, experience, and a vast array of research, seminars, materials, periodicals, and treatises he reviewed over years of experience. He had treated over thirty sex offenders and had extensive experience and training in identifying the emotional effects of sex abuse upon victims. The trial court overruled appellant's objections and held that Powers was qualified to testify. Appellant does not argue that Powers's testimony was unreliable or irrelevant. But he contends that the trial court abused its discretion by allowing Powers to testify because his testimony was based on personal opinion rather than scientifically validated expertise, because he could cite no empirical support for his position, because he was an investigator rather than a therapist and did not have expertise in sex offender treatment, and because he had no expertise in counseling female victims of sexual abuse. Contrary to appellant's contentions, Powers testified that he had experience both in sex offender treatment and in identifying the emotional effects of sexual abuse. The factors appellant raises do not necessarily undercut the reliability of the testimony and effect the weight of the evidence rather than the admissibility. See Nenno, 970 S.W.2d at 561-62. We conclude that the training, experience, research, seminars, materials, periodicals, and treatises about which he testified and upon which he based his opinions qualified him to testify as an expert witness. See Wyatt, 23 S.W.3d at 27. Accordingly, we overrule appellant's sole issue. CONCLUSION
Having overruled appellant's sole issue, we affirm the trial court's judgment.