                             NUMBER 13-10-00266-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

FRANCIS FLOOD,                                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                                           Appellee.


                  On appeal from the 2nd 25th District Court
                        of Gonzales County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides
       By three issues, appellant, Francis Flood, argues that the trial court erred when it

allowed a witness to testify because:       (1) the witness improperly provided expert

testimony despite being called as a lay witness; (2) the State failed to give proper notice

that this witness would testify as an expert; and (3) the State failed to lay the proper
predicate for the witness’s testimony. We affirm.

                                    I. BACKGROUND

        Flood was indicted on four counts each of aggravated sexual assault of a child

and indecency with a child by contact.    See TEX. PENAL CODE ANN. §§ 22.021, 21.11

(West Supp. 2010). During the jury trial on these offenses, the State called Tiffany

Rankin, executive director and forensic interviewer for the Children’s Advocacy Center in

Gonzales, Texas to the stand.     Rankin videotaped an interview with the alleged child

victim in this case, C.K., after she made an outcry to her mother and her doctor.

        During Rankin’s direct examination, the prosecution asked her about her

educational background.     Flood’s counsel, Noel H. Reese, objected and asked to

approach the bench, where the following exchange occurred outside the presence of the

jury:

        REESE:       Your honor, before we get into her background and asking
                     her to testify as an expert witness, we were not given notice
                     on that. We were the ones that subpoenaed her for the sole
                     purpose of proving up the video she took. So if he’s going—

        STATE:       I’m going to use her to prove up the video, your Honor. I’m
                     not going to get into any area of expertise. I’ve told Defense
                     Counsel I relied on their subpoena. They’re the ones who
                     subpoenaed her; I didn’t.

        JUDGE:       He—you can do it.

        STATE:       But they’ve at least got the right to know who she is, she can
                     explain herself in the capacity of her job. They have to have
                     some background on of [sic] how she ended up in this
                     position, and based on her training and experience, she can
                     opine on observations.

        REESE:       But according to the rules, you did not give us 20 days notice

                                            2
                    that she was going to be testifying as an expert.

      STATE:        I’m not calling her as an expert, Judge.

      REESE:        If she’s going to opine about stuff, she’s being called as an
                    expert.

      STATE:        We haven’t gotten there yet, Judge.

      COURT:        When we get there, I’ll decide; but you can do what
                    you’re—what he’s talking about. I think he’s right on the
                    point.

      STATE:        Yeah, I agree.

      COURT:        Keep it clean.

      STATE:        I’m not going to do anything that’s going to open the
                    envelope.

      COURT:        Keep it clean.

      The State proceeded to ask Rankin about her education background and work

experience.   Rankin went on to explain her responsibilities in her present position:

      RANKIN:       As a forensic interviewer that—when a child is brought to the
                    advocacy Center through a referring agency, I talk to the
                    child in—in a private setting, in a child[-]friendly setting, make
                    them as comfortable as possible to tell what may or may not
                    have happened to them.

      STATE:        Okay, and you say what may or may not have happened.
                    Do children tell you stories or lack of stories?

      REESE:        Your honor, I’m going to object to this line of testimony.       I
                    don’t think it’s appropriate.

      COURT:        I’m going to allow it.   Overruled.



                                             3
         STATE:        What’s the purpose of the interview?

         RANKIN:       The purpose of the interview is the child has been brought to
                       the center . . . because there’s believed to be some sort of
                       abuse . . . by someone.

         Rankin then proceeded to testify about the procedure that children follow when

they arrive at the Children’s Advocacy Center, the room in which the children are

interviewed, the recording equipment used to videotape the interview, and the events

leading up to C.K.’s interview.       Through her testimony, the State laid the proper

predicate to request the court to admit the video of C.K.’s interview into evidence.     The

video was admitted into evidence without objection.

         The jury found Flood guilty on all eight indicted charges, and sentenced him to life

in prison at the Texas Department of Criminal Justice—Institutional Division.      See TEX.

PENAL CODE ANN. § 12.32 (West Supp. 2010). This appeal followed.

                                        II. ANALYSIS

A.       Expert vs. Lay Witness Testimony

         By his first issue, Flood contends that Rankin provided improper expert testimony.

―The admissibility of evidence generally, and the qualifications of a witness to testify as

an expert or as a lay witness, are within the discretion of the trial court.‖     Harnett v.

State, 38 S.W.3d 650, 657 (Tex. App.—Austin 2000, no pet.); see TEX. R. EVID. 104(a).

The trial court’s decision will not be overturned on appeal absent a showing that the court

abused its discretion.    See Harnett, 38 S.W.3d at 657; Ventroy v. State, 917 S.W.2d

419, 422 (Tex. App.—San Antonio 1996, pet. ref'd).

         The Texas Court of Criminal Appeals dealt with a similar issue in Osbourn v.

State.    92 S.W.3d 535 (Tex. Crim. App. 2002). In Osbourn, the court considered

                                              4
whether a police officer had to be qualified as an expert before testifying how he

recognized the smell of marihuana emanating from a vehicle.         In analyzing the issue,

the court stated the following:

       Both lay and expert witnesses can offer opinion testimony. Rule 701
       covers the more traditional witness—one who ―witnessed‖ or participated in
       the events about which he or she is testifying—while Rule 702 allows for a
       witness who was brought in as an expert to testify. . . . When a witness
       who is capable of being qualified as an expert testifies regarding events
       which he or she personally perceived, the evidence may be admissible as
       both Rule 701 opinion testimony and Rule 702 expert testimony.

Id. at 536. The court summarized that experts are not precluded from offering lay

testimony regarding events which they have personally observed.        Id.

        Here, although Flood argues that Rankin was an expert, she did not offer an

opinion about C.K.’s interview based on her expertise.       Rankin simply testified about

where she interviewed C.K., the recording process, and the steps leading up to C.K.’s

videotaped interview.     This testimony was based on the events she personally

observed.   See TEX. R. EVID. 701 (explaining that lay testimony is ―(a) rationally based

on the perception of the witness and (b) helpful to a clear understanding of the

witness’[s] testimony or the determination of a fact in issue.‖); Osbourn, 92 S.W.3d at

536.   Rankin’s testimony did not, as Flood contends, rely on her knowledge, skill,

experience, training, or education as a forensic interviewer of child abuse victims.    See

TEX. R. EVID. 702.   For example, Rankin did not opine about whether C.K. exhibited any

physical or behavioral manifestations of a child abuse victim, or whether she believed

C.K. was telling the truth about her sexual experiences with Flood.     See Yount v. State,

872 S.W.2d 706, 708–10 (Tex. Crim. App. 1993). To the extent that Flood argues that

Rankin improperly testified about ―children’s stories or lack of stories,‖ the record clearly


                                             5
shows that Rankin never answered that question.       Instead, the State asked Rankin a

different question before she responded.

       In light of the foregoing, we hold that the trial court did not abuse its discretion

when it found that Rankin testified as a lay witness.    See Harnett, 38 S.W.3d at 657.

We overrule Flood’s first issue.

B.     Failure to Provide Proper Notice

       By his second issue, Flood argues that the State failed to provide proper notice

that Rankin would testify as an expert.      Texas Code of Criminal Procedure article

39.14(b) requires that experts be designated as follows:

       On motion of a party and on notice to the other parties, the court in which
       an action is pending may order one or more of the other parties to disclose
       to the party making the motion the name and address of each person the
       other party may use at trial to present evidence under Rules 702, 703, and
       705, Texas Rules of Evidence. The court shall specify in the order the
       time and manner in which the other party must make the disclosure to the
       moving party, but in specifying the time in which the other party shall make
       disclosure the court shall require the other party to make the disclosure not
       later than the 20th day before the date the trial begins.

TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (West Supp. 2010).                We previously

concluded, however, that the trial court did not abuse its discretion when it admitted

Rankin’s testimony as lay witness testimony under Texas Rule of Evidence 701, as

opposed to expert testimony under Rule 702.      See TEX. R. EVID. 701, 702; Harnett, 38

S.W.3d at 657. Accordingly, the prosecution was not required to give Flood twenty

days’ notice of Rankin’s testimony under article 39.14 given that Rankin was a lay

witness and not an expert witness.      See TEX. CODE CRIM. PROC. ANN. art. 39.14(b).

We overrule Flood’s second issue.

C.     Failure to Lay Proper Predicate


                                            6
       Flood’s third issue argues that the State failed to lay the proper evidentiary

predicate for Rankin to testify as an expert.    See TEX. R. EVID. 702.    Again, because

we have concluded that the trial court did not abuse its discretion when it admitted

Rankin’s testimony as lay testimony, there was no need for the State to lay an expert

predicate.   Id.   Accordingly, we overrule Flood’s third issue.

                                      III. CONCLUSION

       Having overruled all of Flood’s issues, we affirm the trial court’s judgment.




                                                         ________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of July, 2011.




                                             7
