              In the
         Court of Appeals
 Second Appellate District of Texas
          at Fort Worth
       ___________________________

            No. 02-17-00415-CR
            No. 02-17-00416-CR
            No. 02-17-00417-CR
       ___________________________

     ROBERTO GUTIERREZ, Appellant

                      V.

           THE STATE OF TEXAS


     On Appeal from the 297th District Court
             Tarrant County, Texas
Trial Court Nos. 1404391D, 1404390D, 1404387D


 Before Sudderth, C.J.; Gabriel and Womack, JJ.
   Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Roberto Gutierrez appeals his convictions for burglary of a

habitation, aggravated kidnapping, and aggravated sexual assault. See Tex. Penal Code

Ann. §§ 20.04, 22.021, 30.02. After a jury found him guilty, the trial court sentenced

him to thirty years’ confinement for each offense. Appellant argues that the trial

court abused its discretion by allowing the State’s trauma-therapy expert to testify

about traumatic experiences and the typical behaviors of victims of such crimes.

Because we conclude that the trial court did not abuse its discretion by admitting the

expert’s testimony, we affirm the trial court’s judgments.

                                 I. BACKGROUND

                                  A. THE OFFENSE

      In the early hours of February 22, 2015, E.K.1 was in bed watching television

when she heard several loud noises. A man, whom E.K. later identified as Appellant,

broke open E.K.’s front door, threatened her with a knife, and forced her to lie down

on her bed. Appellant tied E.K.’s hands with rope, put a glove in her mouth because

“he [did not] want [her] to scream,” and tied her legs with a shirt that he found in her

bedroom. After removing E.K.’s clothing, Appellant put his hands and mouth on her

sexual organ at knife point and forcibly penetrated her mouth with his penis until he

ejaculated. Appellant then told E.K. that he would untie her but that if she screamed

      1
       We use an alias to refer to the complainant. See Tex. R. App. P. 9.8 cmt.;
2d Tex. App. (Fort Worth) Loc. R. 7.


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or ran, he would kill her. Appellant removed his clothes and penetrated her sexual

organ with his penis before again forcing her to perform oral sex until he ejaculated.

E.K. tried to escape when Appellant went to the bathroom, but she could not because

he had blocked the front door with furniture. Appellant grabbed E.K., and she said

that “he hurt [her] right in the face while struggling with him.”

      Appellant later watched E.K. while she showered and got dressed. When E.K.

asked him to leave so she could go to church, Appellant refused. E.K. then changed

tactics and asked him if she could go to the store to buy groceries. After confirming

that E.K. had no food in her kitchen, Appellant agreed that they could walk to 7-11

for cigarettes, but he took his knife with him. E.K. did not try to escape because he

remained armed and because she did not think she could outrun him.

      After leaving 7-11, Appellant let E.K. call a taxi to take them to Walmart.

Although she tried to alert the driver, he did not notice and dropped them off at

Walmart. Once inside, E.K. began looking for someone who could help her. E.K.

approached David Dooley—an electronics-section employee—and asked for help.

Clutching him and trembling, E.K. told Dooley how Appellant broke into her house

and “had [her] in [her] apartment since 1:00 a.m.” Appellant tried to go around

Dooley while reaching in his pocket for his knife, but Dooley told him to back off.

Appellant then walked away and left Walmart. Upon his arrest, Appellant provided

the police a false name and pretended not to understand English.



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                                       B. TRIAL

      At trial, the evidence showed that Appellant had left his fingerprints in E.K.’s

apartment and that his DNA profile matched the DNA found during E.K.’s sexual-

assault exam and in her apartment, which was consistent both with E.K.’s testimony

about the assault and with Appellant’s theory that their sexual relations had been

consensual. The State proffered Susie Stewart as an expert witness on trauma-victim

issues, including trauma behavior, trauma memory, and how E.K.’s post-assault

conduct was consistent with someone suffering from trauma.

      The trial court conducted a hearing outside the presence of the jury at

Appellant’s request to determine whether Stewart could testify as an expert. Stewart

has a master’s degree in social work and has worked as a clinical therapist for the

Tarrant County Women’s Center for approximately eight years. She testified that

“trauma-informed care” is recognized in the field of social work, well researched, and

practiced throughout the country by counselors and therapists like her. Stewart used

her prior experiences from working with hundreds of trauma victims—combined

with watching surveillance footage of E.K. at 7-11 and Walmart and E.K.’s police

interview—to testify about trauma behavior, trauma memory, and how E.K.’s

conduct was consistent with that of trauma victims.        Stewart testified that her

testimony was based upon her experiences as a licensed clinical social worker at the

Tarrant County Women’s Center where she teaches trauma-related classes and

exclusively counsels crime victims. Her opinions also were based on the Diagnostic

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and Statistical Manual of Clinical Disorders and on “numerous medical studies.” The

trial court overruled Appellant’s objections, finding that Stewart’s “field of expertise

[was] a legitimate one,” the subject matter “[was] within the scope of that field,” and

Stewart was “a qualified expert in this particular field.” Stewart was then allowed to

testify before the jury.

                            II. EXPERT TESTIMONY

       Appellant argues in two issues that the trial court abused its discretion by

allowing Stewart to give her opinion based on her experience as a trauma therapist

because it “cannot be empirically validated,” did not “assist the trier of fact,” and

“invaded the purview of the jury.” See Tex. R. Evid. 702, 703. In other words,

Appellant asserts that Stewart’s testimony was not reliable or relevant. We review a

trial court’s decision to admit expert testimony for an abuse of discretion. See Russeau

v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). As such, we will not disturb the

trial court’s ruling if it was within the zone of reasonable disagreement. Tillman v.

State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).

                      A. STEWART’S TESTIMONY WAS RELIABLE

       Appellant argues that Stewart’s testimony was unreliable because it “wholly

abandoned any standards for verification, efficacy, or truthfulness.” He further argues

that because Stewart’s testimony was “purely anecdotal,” it “cannot be verified using

any scientific measurement or process.”



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       Under the rules of evidence, testimony requiring scientific, technical, or

specialized knowledge is admissible if three conditions are met: (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 assist the fact-finder in deciding

the case. See Tex. R. Evid. 702; Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App.

2006). Appellant only challenges the latter two here.

       To show reliability for “soft sciences”2 such as Stewart’s, the proper 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.” Coble v. State, 330 S.W.3d 253, 274 (Tex. Crim. App. 2010).

       The behavior of trauma victims has been held to be a legitimate field of

expertise.   See, e.g., Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim. App. 1993)

(recognizing research concerning the behavioral characteristics of sexually abused

children as a legitimate field of expertise); Mulvihill, 177 S.W.3d at 413 (recognizing

research concerning the effect of sexual abuse on children as a legitimate field of


       Although Appellant’s reliability trial objections relied on the stricter standard,
       2

which is applicable to scientific testimony, the trial court overruled the objections
under the soft-sciences standard. See Rhomer v. State, No. PD-0448-17, 2019 WL
408186, at *4–5 (Tex. Crim. App. Jan. 30, 2019); see also Mulvihill v. State, 177 S.W.3d
409, 413–14 (Tex. App.—Houston [1st Dist.] 2005, pet ref’d) (applying less rigor to
nonscientific testimony about symptoms of sexual abuse).

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expertise). And Stewart sufficiently showed that her testimony was within the scope

of the field and that she properly relied upon that field’s principles. See Tex. R. Evid.

703. We conclude that the trial court did not abuse its discretion by finding that

Stewart’s testimony was reliable and overrule Appellant’s first issue.

                B. STEWART’S TESTIMONY ASSISTED THE FACT-FINDER

          Appellant argues in his second issue that Stewart’s testimony did not assist the

jury because she “contend[ed] that people claiming to be traumatized are a class of

persons worthy of belief,” which was “essentially telling the jury they can believe the

victim in the instant case as well.” Appellant contends that this impermissibly resulted

in an “expert’s global attribution of credibility based solely on membership within a

class.”

          Expert testimony must assist the trier of fact in understanding the evidence or

in determining a fact at issue to be admissible. See Tex. R. Evid. 702. Such testimony

assists the trier of fact when a jury would not be qualified to intelligently determine

the issue without the expert’s testimony. See Schutz v. State, 957 S.W.2d 52, 59 (Tex.

Crim. App. 1997). “But, the expert testimony must aid—not supplant—the jury’s

decision.” Id.

          In this case, Appellant raised a material issue concerning whether any offense

occurred based on his assertion that all sexual acts were consensual. Beginning in his

opening statement, Appellant’s counsel clearly described the defensive theory that the

sexual encounters alleged were consensual, characterizing one act as a “sexual fantasy”

                                              7
for E.K. Appellant raised the issue of whether a sexual assault had occurred and thus

whether E.K. was a victim.

       Although Stewart never personally spoke with E.K., Stewart concluded that

E.K.’s behavior was consistent with a victim of trauma based on her review of the

surveillance videos and E.K.’s police interviews. Regarding the 7-11 video, Stewart

testified that a close relationship between E.K. and Appellant was not apparent “due

to the victim’s physical distance and demeanor.” Stewart explained that E.K. stayed

with Appellant because she was “in freeze mode,” which occurs if a victim cannot

decide if it is safe to run from her captor. And Stewart testified that E.K.’s behavior

on the Walmart surveillance video was “consistent with victims” because it appeared

she was looking for “a possible opportunity . . . to make an escape or to find safety.”

Stewart also explained that E.K.’s memory lapses during her police interviews were

caused by E.K.’s physical trauma.        Stewart opined that after viewing all of the

evidence, E.K.’s behavior was “consistent with someone who has seen trauma and

reacted to trauma.”

       Because Appellant asserted at trial that E.K. had consented to sexual

intercourse with him, Stewart’s expert opinion regarding E.K’s emotional state

assisted the fact-finder on a fact at issue in the case. See, e.g., Key v. State, 765 S.W.2d

848, 850 (Tex. App.—Dallas 1989, pet. ref’d). Additionally, an expert may compare

general or classical behavioral characteristics of a certain type of victim with a specific

victim’s behavior patterns. See Fielder v. State, 756 S.W.2d 309, 321 (Tex. Crim. App.

                                             8
1988); Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no pet.);

see also Nwaiwu v. State, No. 02-17-00053-CR, 2018 WL 3763899, at *3 (Tex. App.—

Fort Worth Aug. 9, 2018, pet. ref’d) (mem. op., not designated for publication). We

conclude that the trial court did not abuse its discretion by finding that Stewart’s

testimony would assist the fact-finder and overrule Appellant’s second issue.

                                III. CONCLUSION

      Stewart’s expert testimony was reliable and assisted the fact-finder to determine

a fact at issue; therefore, it was admissible and the trial court did not abuse its

discretion by so finding. We overrule Appellant’s issues and affirm the trial court’s

judgments. See Tex. R. App. P. 43.2(a).


                                                     /s/ Lee Gabriel

                                                     Lee Gabriel
                                                     Justice


Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 28, 2019




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