                      DISSENTING AND CONCURRING OPINION
                                          No. 04-09-00530-CR

                                        Pedro A. ESCAMILLA,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 406th Judicial District Court, Webb County, Texas
                                 Trial Court No. 2008-CRS-777-D4
                             Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice
Dissenting and Concurring Opinion by: Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: October 13, 2010

           Although I agree that the judgment of the trial court should be affirmed, I disagree with

the majority that the trial court erred in admitting the testimony of the State’s expert America

Garza. I believe the trial court did not abuse it discretion by admitting the testimony because the

State’s expert’s testimony meets the standards for reliability.

                                          MAJORITY OPINION

           Escamilla asserts the trial court abused its discretion in allowing Garza to testify that an

anal fissure found on D.A.E., and dilation of the anus within thirty seconds after retraction of the

child’s buttocks, are symptoms consistent with sexual abuse. He claims the State failed to
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demonstrate the validity of the underlying scientific theory, the technique applying the theory

was valid, and that the technique was properly applied by the witness. 1

        The majority concludes the trial court abused its discretion in admitting the testimony

concerning the rapid dilation because the State failed to establish “some foundation” for the

reliability of Garza’s testimony that a rapid dilation was consistent with sexual abuse. Majority

opinion at __. The majority appears to ground its decision on Garza’s failure to adequately

explain the reasoning or methodology used to form her opinion.                       Majority opinion at __.

Although the majority acknowledges Garza testified her opinion was based on the works of Dr.

Kellogg and Dr. McCann, it attaches significance to the fact that Garza could not name a specific

article or study produced by Dr. Kellogg, or that when referencing an article by Dr. McCann that

appeared in Family Medicine, Garza could only state it “probably” was published in 2008. I

disagree with the majority’s analysis of Garza’s testimony.

                                            GARZA’S TESTIMONY

        As related by the majority, D.A.E. made an outcry to her mother that she was sexually

abused by Escamilla.          D.A.E. was examined by Garza, a sexual assault nurse examiner

(“SANE”), as part of the investigation into D.A.E.’s complaint. The State called Garza to testify,

and Escamilla objected on the grounds she was not qualified and her testimony lacked a reliable

basis. A hearing outside the jury’s presence took place to determine Garza’s qualifications and

the reliability of her testimony.

        At the hearing, Garza testified she has been licensed by the State of Texas as a registered

nurse since 2004, and has been certified as a SANE nurse since 2007. She explained that a

SANE nurse receives special training to “perform medical examinations on sexual assault

1
  Escamilla provides argument only as to the dilation issue and does not present any argument as to the testimony
regarding the fissure. Although not directly addressed by the majority, it appears the majority rejects Escamilla’s
complaint about the testimony concerning the fissure due to his failure to properly brief this complaint.

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patients and to demonstrate what come out [sic] from medical forensic examinations.” Garza

testified her training as a SANE nurse included sixty-five hours of classes conducted by the

Office of the Attorney General where she was taught to differentiate between normal and

abnormal findings relating to sexual abuse. As part of her training, she also participated in

twenty-four hours of physical examinations with a gynecologist or family nurse practitioner

involving pelvic examinations, and twenty-four hours of examinations involving children. Garza

also testified she participates in peer reviews with other SANE nurses, which she described as

“looking at slides and exchanging information; you know, looking at the normal from the

abnormals, and keeping up.” Garza explained that every two years she renews her SANE

certification, which requires her to complete eight hours of continuing education regarding “a

pediatric sexual assault survivor, [and] eight hours of pediatric sexual assault.” She is also

required to submit ten child sexual assault cases and six adult cases for peer review. Garza

estimated that she has conducted “close to 200” SANE exams, of which sixty percent were on

children.

        Garza testified the protocols accepted in the “scientific community” for conducting a

SANE exam include taking a history of the victim, a “head to toe” physical assessment checking

for trauma, and a detailed examination of the vaginal and anal area. During the exam Garza

looks for bruises and other marks on the body. Garza testified she conducted an examination on

D.A.E. using these protocols and in her opinion D.A.E. exhibited physical symptoms consistent

with sexual abuse.

        When questioned regarding her reasoning or methodology used in reaching her

conclusion, Garza explained it was based in part on the rapid dilation of the anus. Garza testified

she was familiar with and relied upon Dr. McCann’s studies concerning anal dilation as it related



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to sexual abuse. Garza testified Dr. McCann is a practicing physician who performs medical

diagnosis of sexual abuse in children. Garza stated she learned of his work from an article

published in Family Medicine, which was probably published in 2008. Garza testified that based

on Dr. McCann’s studies, sexual abuse is indicated when the victim’s anus dilates more than two

centimeters in less than thirty seconds, and there is no stool present and no history of

constipation. All three criteria were present when she examined D.A.E.

        When questioned whether she knew of any studies that confirmed sexual abuse was

indicated when the anus dilated rapidly, Garza responded:

        Any studies? I guess — this is how all the SANE nurses practice, you know, based on
        the research and articles from doctors. And — pretty much, when I go to peer reviews,
        you know, that’s what they stand [sic] — you know, base themselves on.

When challenged as to why she knew a rapid dilation was not normal, Garza responded that it

was based of work done by Dr. McCann and Joyce Adams and her own observations. Garza also

gave a detailed explanation, complete with a drawing, as to how the anus is stimulated to dilate

during the examination and stated that a rapid dilation is not normal. When asked if she knew

the number of children that comprised the McCann study, Garza stated that she could not recall

and agreed the number of children tested would be important in validating the theory. However,

she also stated her observations were based on “close to 200” anal examinations, and rapid

dilation occurred in less than 20 of the examinations. Garza acknowledged that rapid anal

dilation could be caused by other medical issues. She further testified that her work had been

subjected to peer review. When questioned about the “potential error rate,” Garza acknowledged

that David Chadwick had conducted some studies on the matter, but she did not provide any

number as to the error rate. Garza also testified studies indicate that eighty percent “of the time”

no trauma will be found. When questioned whether the “technique or theory” used to form the



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Dissenting and Concurring Opinion                                                  04-09-00530-CR


diagnosis of D.A.E. was generally accepted in the medical community, Garza responded

“absolutely.” She testified she based her answer on the training she received through the Office

of the Attorney General.

        At the conclusion of the testimony, Escamilla argued that Garza was not qualified to offer

an opinion “in the area of medical diagnosis of sexual abuse,” and the State failed to prove the

underlying scientific theory was valid. The trial court overruled the objection and found that

Garza was qualified as an expert to testify about sexual assault examinations, and her opinion

was sufficiently reliable and relevant to assist the jury.

        When testifying before the jury, Garza repeated most of her testimony from the earlier

hearing. Garza also testified that as to the trauma noted during the anogenital examination,

Garza found that D.A.E. had a small bruise to the left side of her anus, mild redness on the labia

minor, a healed fissure at the nine o’clock position on the anus, and the anus dilated to two

centimeters within seven seconds without the presence of stool. Garza stated that the location of

the fissure was not consistent with it being the result of normal causes, such as the passing of a

large stool or constipation. Garza testified the direction of the fissure was from the outside

toward the inside, and the direction of the fissure was significant because if the fissure was

caused by natural causes, the direction of the injury would be from the inside toward the outside.

Garza stated the fissure could have been caused by forcible penetration of the anus when it was

dry, but agreed it could have been resulted from other causes. Garza also testified that the anus

takes no less than thirty seconds to begin dilation in the presence of stool and D.A.E.’s anus

dilated two centimeters in seven seconds. She explained a normal anus, when being retracted

during an examination, will take a minute to begin dilation. Garza also stated the size of the

dilation was significant because the normal anus does not dilate as wide open as D.A.E anus



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Dissenting and Concurring Opinion                                                   04-09-00530-CR


during the examination. Garza testified that the rapid dilation and size of the dilation was

consistent with being a result of sexual abuse. In summing up the nurse’s opinion, the prosecutor

asked:

         Q.     Now, in this situation, you have a case where there’s a bruise to the left
                side of the anus. You have a tear, a fissure — a healed fissure at nine
                o’clock. You have dilation, and you have it within — at 7 seconds, and
                you have the size of the dilation at 2 centimeters. Based on all that, were
                you able to render an opinion?

         A.     (Nodded head up and down)

         ...

         Q.     And what is your opinion in regards to your findings?

         A.     Due to the findings, they are consistent with sexual abuse.

         On cross-examination, Garza testified she based this opinion on the literature prepared by

Dr. Nancy D. Kellogg, a doctor at the University of Texas at San Antonio, and studies by Dr.

McCann. Garza acknowledged that Dr. Kellogg’s work indicated that other causes of rapid

dilation should be considered when evaluating children with anogenital symptoms. Garza also

testified that the dilation alone did not mean, nor was she testifying, that D.A.E. was “definitely

sexually abused.” She also stated there were numerous other causes other than sexual abuse that

could have produced the rapid dilation. She also acknowledged Dr. McCann’s article states that

physical findings often attributed to sexual abuse are present in non-abused children.

                                     RELIABILITY STANDARD

         We review a judge’s decision to admit expert testimony under an abuse of discretion

standard. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). The trial court’s

decision will be affirmed unless it is outside the zone of reasonable disagreement. Gallo v. State,

239 S.W.3d 757, 765 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2872 (2008). A reviewing



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Dissenting and Concurring Opinion                                                         04-09-00530-CR


court must give proper deference to the trial judge’s ruling on the admissibility of an expert

witness’s testimony. Vela v. State, 209 S.W.3d 128, 136 (Tex. Crim. App. 2006).

           The proponent of expert testimony must demonstrate that the expert is qualified to render

the opinion, the opinion is reliable, and the opinion is relevant to the determination of an issue in

the case. Id. at 131. In determining reliability, the proponent must demonstrate the validity of

the underlying scientific theory, the validity of the technique applying the theory, and the

technique was properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573

(Tex. Crim. App. 1992). In Kelly the court listed some factors that could affect the trial court’s

decision include, but are not limited to: (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. Id. However, the Court of Criminal Appeals in Vela recognized that:

            [E]ven if the traditional Kelly reliability factors do not perfectly apply to
           particular testimony, the proponent is not excused from proving its reliability. As
           the Texas Supreme Court recognized, “The court in discharging its duty as
           gatekeeper must determine how the reliability of particular testimony is to be
           assessed.” 2 The reliability inquiry is, thus, a flexible one. In some cases, the
           reliability of scientific knowledge will be at issue; in others, “the relevant
           reliability concerns may focus upon personal knowledge or experience.” 3 But the
           proponent must establish some foundation for the reliability of an expert's



2
    (quoting Gammill v. Jack Williams Chevrolet, Inc, 972 S.W.2d 713, 715 (Tex. 1988)).
3
    (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)).


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Dissenting and Concurring Opinion                                                     04-09-00530-CR


           opinion. “Experience alone may provide a sufficient basis for an expert's
           testimony in some cases, but it cannot do so in every case.” 4


Vela, 209 S.W.3d at 134. The trial court should consider the “fit between the expert’s testimony

and the facts of the case. Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996).

Additionally, appellate courts may take judicial notice of other appellate opinions concerning a

specific scientific theory in evaluating a trial judge’s gatekeeping decision. Hernandez v. State,

116 S.W.3d 26, 31 (Tex. Crim. App. 2003).

                                               ANALYSIS

           It was within the trial court’s discretion to determine Garza’s testimony had a reliable

basis. Garza provided “some foundation” for the theory linking rapid dilation with possible

sexual abuse by testifying about her experience and others factors outlined in Kelly. The basis of

Garza’s opinion was her training, her experience, and published studies and articles. Garza

testified she was taught that rapid dilation was an indication of sexual abuse. She stated the

theory was accepted in the community involved in the detection of sexual abuse when she

discussed her training by the Office of the Attorney General and her peer reviews with other

experts including Dr. Kellogg. She also testified that the phenomenon was noted by several

authors including Dr. Kellogg and Dr. McCann. Garza also testified she had conducted nearly

200 anal examinations and found rapid dilation in less than twenty cases. This means a rapid

dilation occurred in roughly ten percent of her examinations. Accordingly, her testimony that a

rapid dilation is not “normal” was based not only on her training and reading of literature in the

field, but also on her own experience.

           The majority takes issue with the fact that Garza could not identify the names of specific

articles written by Dr. McCann and Dr. Kellogg, and could not identify the potential rate of error
4
    (quoting Gammill, 972 S.W.2d at 726.)

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Dissenting and Concurring Opinion                                                     04-09-00530-CR


for the methodology. Although these are recognized factors for determining reliability, there is

no requirement that every expert’s testimony be judged on all seven of the Kelly criteria. As

discussed above, the reliability inquiry is flexible and the gatekeeper “must determine how the

reliability of particular testimony is to be assessed.” Vela, 209 S.W.3d at 134.

        Testimony regarding anal dilation in sexual abuse cases is certainly not novel or new.

This court, and many of our sister courts, have referenced rapid dilation of the anus in discussion

of the legal or factual sufficiency of a conviction. See Smith v. State, Nos. 07-09-0009-CR & 07-

09-0010-CR, 2010 WL 2010914, at *3 (Tex. App.—Amarillo May 20, 2010, pet. ref’d) (mem.

op., not designated for publication) (immediate dilation of victim’s anus cited to support finding

of factual sufficiency of the evidence in indecency with child case); Kachoian v. State, No. 04-

09-00250-CR, 2010 WL 1905002, at *4 (Tex. App.—San Antonio May 12, 2010, no pet.) (mem.

op., not designated for publication) (rapid dilation used to support finding of factual sufficiency

in aggravated sexual assault case); Padilla v. State, 278 S.W.3d 98, 105 (Tex. App.—Texarkana

2009, pet. ref’d) (“rapid dilation” of the victim’s anus cited in support of finding evidence legally

sufficient in aggravated sexual assault case); Cramer v. State, No. 12-08-00061-CR, 2009 WL

4264331, at *4 (Tex. App.—Tyler Nov. 30, 2009, pet. stricken) (mem. op., not designated for

publication) (“abnormal” dilation of victim’s anus cited in support of legal sufficiency of

evidence in aggravated sexual assault case); In re C.B., No. 05-05-00064-CV, 2008 WL 327226,

at *2 (Tex. App.—Dallas Feb. 7, 2008, no pet.) (mem. op., not designated for publication) (in

prosecution of juvenile for aggravated sexual assault, “immediate” dilation of the complainant’s

anus cited to support finding of legal and factual sufficiency); Steinke v. State, No. 11-04-00072-

CR, 2005 WL 3008417, at *4 (Tex. App.—Eastland Nov. 10, 2005, pet. ref’d) (mem. op., not




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Dissenting and Concurring Opinion                                                    04-09-00530-CR


designated for publication) (dilation of victim’s anus within five seconds cited to support finding

of factual sufficiency of the evidence in aggravated sexual assault case).

        Furthermore, in the context of an expert’s qualifications, the Court of Criminal Appeals

has applied a sliding scale when addressing the issue of whether an expert is qualified to testify

on certain topics. See Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006). The court

has stated that an expert’s qualifications are scrutinized less if (1) the area of expertise is less

complex and closer to the common understanding of the jury; (2) the expert’s opinion is less

conclusive; and (3) the testimony is less dispositive of the disputed issues. Id. To illustrate this

point, the court in Rodgers contrasted expert testimony concerning DNA profiling with expert

testimony concerning latent-print comparisons such as shoe, tire, or fingerprint. The court noted

that DNA testimony is scientifically more complex and removed from the common

understanding of the jury, and is often more precise and thus conclusive than latent-print

evidence.    The court concluded from this comparison that the expert who offered DNA

testimony should possess a higher degree of expertise or greater qualifications than an expert

who testifies that a particular shoe made the bloody footprint in the victim’s apartment. Id.

        I believe the same reasoning should apply to the issue of reliability. Here, Garza simply

testified that the rapid dilation was consistent with the occurrence of sexual abuse, but she

acknowledged there were other medical conditions that could have caused the condition to occur.

Garza testified that the anus acted abnormally during the examination of D.A.E., but standing

alone, the rapid dilation did not conclusively establish that sexual abuse had occurred. This

testimony is more akin to the latent print example in Rodgers than the DNA testimony. Further,

it is not beyond the ken of the average person that trauma to a body part may cause the body part

to react different than it would normally, i.e. react “abnormally.” In essence, Garza testified that



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Dissenting and Concurring Opinion                                                 04-09-00530-CR


the anus acted abnormally during the examination of D.A.E. Given Garza’s testimony that she

was taught this reaction was consistent with possible sexual abuse, other SANE nurses and

experts expressed the same view during peer reviews, literature describing the phenomenon

associated with sexual abuse had been published and the theory was accepted within the medical

community, and this and other appellate courts have relied on this theory, there was some

foundation to support the trial court’s determination that the testimony was reliable. The trial

court did not abuse its discretion by admitting the testimony of Garza because there was some

foundation for her expert opinion.


                                                                  Steven C. Hilbig, Justice




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