Opinion
10-20-00080-CR
03-30-2022
REGINALD DWAYNE SHAW, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
From the 19th District Court McLennan County, Texas Trial Court No. 2019-795-C1
Before Chief Justice Gray, Justice Johnson, and Justice Smith
MEMORANDUM OPINION
TOM GRAY, CHIEF JUSTICE
Reginald Dwayne Shaw was convicted of continuous sexual assault of a young child and sentenced to 33 years in prison. Because the trial court did not err in excluding expert witness testimony, the trial court's judgment is affirmed.
Background
M.B. was Shaw's former step-daughter. She delayed her outcry of abuse until she was 18 years-old. At trial, a year later, she testified that Shaw penetrated her anus on multiple occasions, estimating that she could probably count the number of times on both hands. She specifically recounted two times in which the abuse occurred in McLennan County when she was 8 years-old.
Expert Testimony
In his sole issue on appeal, Shaw contends the trial court erred in excluding the testimony of his expert witness and that error caused him egregious harm.
We review a trial court's decision to admit or exclude expert testimony for an abuse of discretion, and we may not reverse those rulings unless they fall outside the zone of reasonable disagreement. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim. App. 2012). Pursuant to Texas Rules of Evidence 702 and 705, three requirements must be met before expert testimony can be admitted: "(1) The witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case." Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see Tex. R. Evid. 702; 705; Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017). These requirements are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). The proponent of the expert evidence has the burden to show these three requirements by clear and convincing evidence. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). See also Rhomer v. State, 569 S.W.3d at 669 ; Wolfe, 509 S.W.3d at 335.
Only the reliability and relevance requirements are at issue here. The qualification of Shaw's expert was not contested.
Reliability
Texas Rule of Evidence 705(c) governs the reliability of expert testimony and states that "[a]n expert's opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion." Tex. R. Evid. 705(c); see Vela v. State, 209 S.W.3d 128, 133 (Tex. Crim. App. 2006). Reliability depends upon whether the evidence has its basis in sound scientific methodology which demands a certain technical showing. Vela v. State, 209 S.W.3d 128, 133 (Tex. Crim. App. 2006); Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996). Thus, the proponent of the expert must establish some foundation for the reliability of an expert's opinion. Vela, 209 S.W.3d at 134. Without more than credentials and a subjective opinion, an expert's testimony that 'it is so' is not admissible. Id.; See also Coble v. State, 330 S.W.3d 253, 277 n.62 (Tex. Crim. App. 2010).
Here, Shaw's expert, a Sexual Assault Nurse Examiner (SANE), wanted to give an opinion that, based on the information the victim gave at the time she reported the abuse, the expert could not say "that any anal penetration occurred due to lack of injuries that she did not report[;]" that she could say, "based on what the young lady reported that occurred, what happened to her, how she felt after the penetration or after the supposed sexual assault occurred, that compared to literature, research, and my experience, it doesn't come together." In other words, the expert wanted to say that based on the victim's initial report and the expertise of the expert, no offense occurred.
When initially questioned about the basis of this opinion, the expert replied that she based it on her experience and her knowledge. She stressed that she had "done over 1, 900 cases, many of those pediatric patients, and it doesn't change. Research literature will tell you what normally occurs before and after anal penetration, and so that's what I go on, my experience, my research - - my experience." But when questioned further, she stated,
There is not a lot of literature, there is not a lot of research done on anal penetration and injuries that occur due to the fact it's very difficult to get people to partake in some research like that. There are some literature out there. Dr. Joyce Adams does - - made some literature on that, and there was an ER physician in Dallas that has done research. There are others, but not a lot that you will find research on that particular subject.
And when pressed by the trial court about what specifically she looked at in forming her opinion, the expert replied, "I looked at police reports. I think they were police reports. I looked at research on background studies. I looked at what the victim in this particular case stated, - - what her outcry was, family background."
Although the general theory of no offense due to lack of injuries or pain reported may have a scientific basis, it still requires documentation to support its reliability in a situation such as this. See Vela v. State, 209 S.W.3d 128, 138 (Tex. Crim. App. 2006) (Cochran, J. concurring). The expert did not testify about what the research showed or how it supported her opinion. She ultimately testified that there was not much research on the subject; however she still failed to state what the research showed. The support for the expert's opinion was nothing more than credentials and a subjective opinion that, 'it is so.' This is not admissible, and the trial court did not abuse its discretion in excluding Galvan's testimony as unreliable.
Relevant
Because Galvan's testimony did not meet the reliability requirement of expert testimony, we need not discuss whether it met the relevance requirement. All three requirements must be met.
Conclusion
Accordingly, Shaw's issue is overruled, and the trial court's judgment is affirmed.
Affirmed.