                                         NO. 07-09-0233-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL C

                                             APRIL 28, 2010




                           DARRELL LYNN COCKRELL, APPELLANT

                                                     v.

                               THE STATE OF TEXAS, APPELLEE



               FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

                 NO. 1184; HONORABLE STEVEN RAY EMMERT, JUDGE




Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                     MEMORANDUM OPINION



        Appellant, Darrell Lynn Cockrell, was convicted by jury verdict of aggravated

sexual assault1 of a child, J.C.2, and sentenced to fifteen years confinement. Appellant

        1
         See Tex. Penal Code Ann. § 22.021 (a)(1)(B)(i) and (a)(2)(B) (Vernon Supp. 2009).
        2
         Appellant is J.C.'s natural father. At the time of trial, J.C. was twelve years of age. According to
her testimony, she was between the ages of four and eleven when the incidents in question occurred.
asserts the trial court erred by: (1) qualifying Priscilla Kleinpeter as an expert witness

on the discrete subject of child recantations in sexual assault cases; (2) admitting

Kleinpeter's testimony regarding recantations by sexually assaulted and abused

children because that testimony was unsupported by evidence of scientific theory; and

(3) permitting Kimberly Booth, a lay witness, to express an opinion describing the

character of a conversation between J.C. and her brother which ascribed a motive on

his part to influence her sworn testimony. We affirm.


I.       First and Second Points of Error


         By his first point, Appellant contends the trial court erred by finding that

Kleinpeter was qualified to render an expert opinion on the discrete subject of child

recantations in sexual assault cases.      By his second point, Appellant contends the

subject matter itself is inappropriate for expert testimony because it lacks the requisite

reliability to be admissible. For logical reasons, we will address the reliability contention

first.


                                        Background


         In addition to accusing her father of sexually assaulting her, J.C. had previously

accused her brothers, Steven Cockrell and Anthony Cockrell, of also sexually assaulting

her. Prior to trial, J.C. had recanted these allegations and defense counsel sought to

introduce evidence of her recantation for purposes of attacking her credibility. During

the State's case-in-chief, but prior to the submission of any evidence regarding J.C.'s

recantation, the State proffered Kleinpeter as an expert "in the area of sex offender

                                              2
treatment providers." 3 Without objection, the court acknowledged her as an expert and

allowed her to present opinion testimony on subjects related to signs, symptoms, and

behavioral characteristics that she commonly observed, or are commonly observed, in

child victims of sexual assault and sexual abuse.                 Those behavioral characteristics

included progressive and tentative outcries, withdrawal, anger, self-blame, effects of

exposure to pornography, coached or forced accusations, consistency of accusations,

common reactions to such abuse by children, their ability to recall specific acts of

abuse, and the frequency of abuse among family members. At that time, Appellant's

cross-examination focused on Kleinpeter's contracts with the government, and truth-

telling characteristics of child sexual assault victims in general.                 During the State's

redirect examination, Kleinpeter testified she did not have sufficient information to

assess whether J.C.'s statements were truthful because she had not personally spoken

with J.C. nor counseled her.


        Following the presentation of Kleinpeter's initial testimony, evidence of J.C.'s

recantations was presented through defense counsel's cross-examination of J.C. The

State then recalled Kleinpeter. After testifying she was familiar with the phenomenon of

recantation, she cited a study conducted by a council established by the United States

Department of Justice. Appellant then made the following objection, in pertinent part:

        3
          Kleinpeter testified she had a master's degree in clinical psychology and had been in practice for
thirty-seven years. She also accumulated one hundred post-college credit hours in psychology-related
courses and, since 1971, attended forty hours of continuing education annually. Since 1994, she has
been designated a registered sex offender treatment provider based upon the completion of forty hours of
course work in the area of sex offender treatment and two hundred hours of supervised work in sex
offender treatment. As part of her practice, she also works with sexual assault victims--infancy through
geriatric, male and female, adolescent to adult. Her practice is comprised of twenty percent sex
offenders, ten percent sex assault victims with the remainder general and marital counseling.

                                                     3
       I'd object . . . . This is not her qualification. She's not done clinical studies
       on this. She's merely read documentation. She can't -- I can't cross her
       because she doesn't know it other than reading it. She's not an expert.
       She doesn't qualify under Kelly Fry[e]. . . . It doesn't qualify under the
       Kelly Fry[e] standard as an expert in this area, just because you're an
       expert as a clinical psychologist, doesn't make you an expert in every little
       aspect of it. . . . She hasn't done clinical studies, she hasn't done studies,
       she knows other than what she read. We could have read the same
       documents ourselves. It doesn't make her capable of testifying in that
       area.



The trial court overruled Appellant's objection and Kleinpeter was allowed to opine

regarding why some child sexual assault victims recant their original allegations of

sexual assault.    Kleinpeter was then allowed to describe how J.C.'s testimony was

consistent with that model.


                                      Standard of Review


       If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education may testify thereto in the form of

an opinion or otherwise. Tex. R. Evid. 702.4 Thus, before admitting expert testimony

under Rule 702, the trial court must be satisfied the following conditions are met: (1) the

witness qualifies as an expert by reason of his or her 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




       4
        Tex. R. Evid. 702. For convenience, citations to the Texas Rules of Evidence throughout the
remainder of this opinion will be simply "Rule ___."

                                                4
finder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex.Crim.App.

2006).


         A.     Reliability of Expert Testimony on the Subject of Recantations


         Expert testimony is unreliable if it is not grounded "in the methods and

procedures of science" and is no more than "subjective belief or unsupported

speculation." Acevedo v. State, 255 S.W.3d 162, 169 (Tex.App.--San Antonio 2008,

pet. ref'd). The reliability of "soft" science evidence, such as behavioral sciences, may

be established by showing that (1) the field of expertise involved is a legitimate one, (2)

the subject matter of the expert's testimony is within the scope of that field, and (3) the

expert's testimony properly relies upon or utilizes the principles in that field. Weatherred

v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). An objection based on reliability is

distinct from an objection based on an expert's lack of qualifications and each should be

evaluated independently.          Acevedo, 255 S.W.3d at 168.              However, here, Appellant

failed to make any objection questioning the reliability of Kleinpeter's testimony.5


         To preserve error for appellate review, the complaining party must make a

specific objection and obtain a ruling on the objection. Wilson v. State, 71 S.W.3d 346,

349 (Tex.Crim.App. 2002). A specific objection regarding expert testimony must detail

         5
         Whether we cast Appellant's objection that Kleinpeter did not personally interview the victim as
an objection of qualification or reliability is of no moment. There is no requirement that an expert witness
personally interview the victim for his or her testimony to be admissible. See Tex. R. Evid. 703, 418. See
also Gonzales v. State, 4 S.W.3d 406, 418 (Tex.App.--Waco 1999, no pet.). In fact, the Court of Criminal
Appeals has held that the preferred practice for a child sexual abuse testifying expert witness is to not
have the expert personally examine the alleged victim, lest the testimony become tainted by personal
reference to the credibility of the child victim's claims. Id. (citing Duckett v. State, 797 S.W.2d 906, 920
n.18 (Tex.Crim.App. 1990).

                                                     5
the particular deficiency in the expert's qualifications or the reliability of the expert's

opinions; Acevedo, 255 S.W.3d at 167, otherwise the complaining party has failed to

preserve an issue for review. See id. See also Stewart v. State, 995 S.W.2d 251, 258

(Tex.App.--Houston [14th Dist.] 1999, no pet.) (objection to expert qualification alone

does not preserve issue of reliability for appeal); Chisum v. State, 988 S.W.2d 244, 250-

51 (Tex.App.--Texarkana 1998, pet. ref'd) (objection to expert opinion alone without

specifying particular deficiency in reliability preserves no issue for appellate review);

Hepner v. State, 966 S.W.2d 153, 159-60 (Tex.App.--Austin 1998, no pet.) (broad

objection to expert evidence on the authority of Kelly and Rules 403, 702, and 705 does

not preserve for appeal complaints that State did not prove the reliability of that

evidence). Because Appellant made no objection to the reliability of expert testimony

on the discrete subject of child recantations in sexual assault cases, Appellant did not

preserve his second point of error for review. Therefore, for purposes of addressing

Appellant's first point, we will assume, without deciding, that expert testimony on this

subject is admissible.         See generally Kirkpatrick v. State, 747 S.W.2d 833, 836

(Tex.App.--Dallas 1987, pet. ref'd).6



       6
       The Kirkpatrick Court observed the following:

       The expert's testimony about the general behavior traits of child victims--e.g., delay in
       reporting the incident, recantation, truancy, embarrassment, running away from home,
       and inconsistent versions of abuse--explains to jurors that such behavior, which might
       otherwise be attributed to inaccuracy or falsification, is typical of the class of victims and
       does not necessarily indicate a lack of credibility. Thus, such testimony, which allows the
       jury to assess the credibility of a particular complainant more fairly by explaining the
       emotional antecedents underlying the typical victim's behavior, meets the requirements of
       Rule 702.

       747 S.W.2d at 835-36 (emphasis added).

                                                     6
      B.     Kleinpeter's Qualifications as an Expert


      No rigid formula exists for determining whether a particular witness is qualified to

testify as an expert; Matson v. State, 819 S.W.2d 839, 852 n.10 (Tex.Crim.App. 1991),

the inquiry is "a flexible one." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594,

113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Therefore, we review a court's decision to

admit expert testimony based upon an abuse of discretion standard. Carrasco v. State,

154 S.W.3d 127, 129 (Tex.Crim.App. 2005). An appellate court must uphold the trial

court's ruling if it is reasonably supported by the record and is correct under any theory

of law applicable to the case. Id. "Because the possible spectrum of education, skill,

and training is so wide, a trial court has great discretion in determining whether a

witness possesses sufficient qualifications to assist the jury as an expert on a specific

topic in a particular case." Rodgers, 205 S.W.3d at 527-28


      Appellant asserts the trial court abused its discretion by qualifying Kleinpeter as

an expert witness because the State failed to establish Kleinpeter's qualifications in the

specific area of recantation. Appellant also asserts Kleinpeter's testimony is unreliable

because she failed to: (1) identify case-specific facts upon which she based her opinion;

(2) identify the number of cases she had studied related to recantation; (3) support her

opinions with information garnered from patients she had treated; (4) identify peer

review articles addressing the same or similar field of inquiry; and (5) conduct

counseling sessions with J.C.


      Here, Kleinpeter was qualified by the State as an expert on the behavior of child

victims of sexual assault and abuse.      She testified to their signs, symptoms, and
                                            7
behavioral characteristics without objection and, on cross-examination, Appellant did

examine Kleinpeter on her qualifications as an expert in that area. After Kleinpeter was

re-called to testify regarding recantation by child victims of sexual assault and abuse,

Appellant objected to her testifying because the State had not presented evidence

Kleinpeter had participated in clinical studies on the subject.


       We find that the evidence of her education, training, and experience discussed

above provided a sufficient basis for the trial court to have found Kleinpeter qualified to

testify as an expert on the behavior of sexually assaulted and abused children, including

recantation. The subject matter of such testimony is an appropriate one for an expert

witness and such testimony can assist the trier of fact in determining how child victims

of abuse typically behave.      See Kirkpatrick, 747 S.W.2d at 836.       Further, whether

Kleinpeter participated in clinical studies related to recantation by child sexual assault

and abuse victims does not affect the admissibility of her testimony but only affects the

weight her testimony. See Hernandez v. State, 53 S.W.3d 742, 749-50 (Tex.App.--

Houston [1st Dist.] 2001, pet. ref'd).


       Accordingly, we find the trial court did not abuse its discretion in qualifying

Kleinpeter as a testifying expert on the behavior of child sexual assault and abuse

victims, including the specific subject of recantation.           Accordingly, we overrule

Appellant's first and second points of error.




                                                8
II.      Third Point of Error


         Appellant next contends the trial court erred by permitting Kimberly Booth, a

receptionist in the Lipscomb County Courthouse, to testify to the content and character

of a conversation that occurred in the courthouse between J.C. and her brother.

Appellant asserts the trial court improperly permitted Booth to express an opinion

regarding the mental state of J.C.'s brother during the conversation.


                                    Standard of Review


         Rule 701 covers the more traditional witness, i.e., one who "witnessed" or

participated in the events about which he or she is testifying. Osbourn v. State, 92

S.W.3d 531, 535 (Tex.Crim.App. 2002). As a general rule, observations which do not

require significant expertise to interpret and which are not based on a scientific theory

can be admitted as lay opinions if the requirements of Rule 701 are met; id. at 537, i.e.,

the opinions or inferences are (a) rationally based on the witness's perceptions and (b)

helpful to the clear understanding of the testimony or the determination of a fact in

issue.    92 S.W.3d at 535 (citing Fairow v. State, 943 S.W.2d 895, 898 (Tex.Crim.App.

1997)).


         The requirement in Rule 701 that the opinion or inference be "rationally based on

the perception of the witness" has two elements. Scott v. State, 222 S.W.3d 820, 828

(Tex.App.--Houston [14th Dist.] 2007, no pet.). The first element is personal knowledge

gained by perception of fact by the senses of the witness, including what was seen,

heard, smelled, tasted, touched, or felt. Id. (citing Harnett v. State, 38 S.W.3d 650, 658

(Tex.App.--Austin 2000, pet. ref'd)). The second element is the opinion must be one
                                             9
that a reasonable person could draw from the underlying facts. Id. The trial court's

decision to admit opinion testimony under Rule 701 is subject to an abuse of discretion

standard. Osbourn, 92 S.W.3d at 539.


                                                Analysis


        Here, Booth personally overheard a conversation between J.C. and another

gentleman at the courthouse the day before J.C. testified at trial. Booth knew J.C. and

recognized her voice.         From the context of the conversation, she knew J.C. was

conversing with her brother.7 During the conversation, Booth heard J.C. say, "I know

you don't believe me, but I'm telling the truth." Booth also heard J.C.'s brother say, "I

love you, you're my sister, but you've got to stop this. You're hurting people or affecting

a lot of people and this is a really big deal. This isn't a game." Booth also testified she

had an older brother who had pressured her into doing things and, based on those

experiences, could tell from the conversation that J.C.'s brother was pressuring her to

change her testimony.


        Given the circumstances, location and content of the conversation, it would be

within the trial court's discretion to determine that Booth's opinion regarding the

emotional undercurrent of the conversation was rationally based on her hearing

perception. Further, Booth's opinion was relevant to assist the jury's understanding, or

credibility determination, with regard to prior testimony by J.C.'s brother. See Turro v.

State, 950 S.W.2d 390, 402-03 (Tex.App.--Fort Worth 1997, pet. ref'd).


        7
         During the conversation, her brother addressed the victim by name and as "his sister," while the
victim called her brother by name.

                                                   10
       That Booth may have expressed an opinion regarding the purpose or nature of

the brother's conversation with his sister is of no moment. Although Booth could not

possess personal knowledge of the mental state of J.C.'s brother, she possessed

personal knowledge of facts from which an opinion regarding the purpose or the nature

of his conversation could be drawn. Fairow, 943 S.W.2d at 899. Having heard Booth's

testimony, "[t]he jury [was] then free to give as much or as little weight to the opinion as

it [saw] fit." Id. Accordingly, Appellant's third point of error is overruled.


                                         Conclusion

       The trial court’s judgment is affirmed.


                                                    Patrick A. Pirtle
                                                        Justice




Do not publish.




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