                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00373-CR
                             NO. 02-16-00374-CR


JAMES R. HERNANDEZ                                                APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                 TRIAL COURT NOS. 1413791D, 1413902D

                                   ----------

                        MEMORANDUM OPINION 1

                                   ----------

      A jury convicted Appellant James R. Hernandez of continuous sexual

abuse of a child under fourteen years of age and retaliation and assessed his

punishment at thirty-five years’ confinement and two years’ confinement,

respectively.   See Tex. Penal Code Ann. § 21.02 (West Supp. 2017),

§ 36.06 (West 2016). The trial court sentenced Appellant in accordance with the

      1
       See Tex. R. App. P. 47.4.
jury verdicts. In two issues, Appellant contends that the evidence is insufficient

to support his conviction for retaliation and that the trial court reversibly erred by

allowing the younger complainant’s forensic interviewer to testify about coaching

and her lack of concern that the younger complainant had been coached. We

affirm.

                           I.    BACKGROUND FACTS

          Appellant moved in with J. (Mother), her sons, and her daughters Mi.

(Older Sister) and Ma. (Younger Sister) (collectively, the girls) around July 1,

2014, and began periodically sexually assaulting at least one of the girls. 2 On

the evening of September 8, 2014, the day after Appellant allegedly anally raped

Younger Sister, she told Mother that Appellant had “made [her] put his weenie in

[her] mouth” and that he had threatened to kill her if she told anyone. Mother

confronted Appellant, who denied it, grabbed her by the neck, pushed her

against a wall, and threatened to kill her and her family if she told anyone.

Appellant repeatedly thwarted Mother’s efforts to take the children away from the

house, but she and the children finally escaped and stayed with a friend

overnight. When they returned to the house the next morning, Appellant was

gone. Mother and the children did not see him again until his trial.


          2
       Two of the four acts specified in the count alleging continuous sexual
abuse of a child name Older Sister as the complainant, and two name Younger
Sister as the complainant. We do not know which two acts the jury relied on to
reach its verdict, and Appellant does not challenge the sufficiency of the
evidence to support his conviction for continuous sexual abuse of a child.


                                          2
         Because she was afraid of Appellant, Mother did not report his assaultive

behavior against her or Younger Sister’s allegations that he had sexually

assaulted her for about six months; Mother then finally told her counselor. Her

counselor in turn notified Child Protective Services and the Lake Worth Police

Department, and Appellant was ultimately indicted for continuous sexual abuse

of a child, lesser-included counts of child sexual abuse, and retaliation.

                       II.   RELEVANT PROCEDURAL FACTS

         Mother, her elder son, the girls, their forensic interviewers, the sexual

assault nurse examiner, Mother’s counselor, Mother’s friend, the police detective,

and Appellant’s sister all testified during the guilt-innocence phase of Appellant’s

trial.      Before the testimony of Samantha Shircliff, the Alliance for Children

forensic interviewer who interviewed Younger Sister, Appellant requested and

received a gatekeeping hearing outside the jury’s presence.         At the hearing,

Shircliff testified about her experience and training, peer-review participation, and

knowledge of up-to-date research relevant to forensic interviews of children

alleging sexual abuse. She also testified generally about coaching and stated

that during the interview, she had no concerns that Younger Sister had been

coached; Appellant objected on reliability grounds to the admission of this

testimony before the jury. His objection was overruled.

     III.     SUFFICIENCY OF THE EVIDENCE TO SUPPORT RETALIATION

         In his first issue, Appellant contends that the evidence is insufficient to

support his retaliation conviction.


                                          3
A.    We Review the Evidence in the Light Most Favorable to the Verdict.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583,

599 (Tex. Crim. App. 2016). This standard gives full play to the responsibility of

the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016).              Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.          See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015).      We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at

448–49; see Blea, 483 S.W.3d at 33.


                                          4
      The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

guilt. Jenkins, 493 S.W.3d at 599.

      In determining the sufficiency of the evidence to show an appellant’s intent,

and faced with a record that supports conflicting inferences, we “must presume—

even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflict in favor of the prosecution, and must defer to that

resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

B.    A Jury Can Infer a Defendant’s Retaliatory Intent from His Words and
      Behavior.

      Section 36.06 of the Texas Penal Code provides in relevant part:

      (a)   A person commits an offense if the person intentionally or
            knowingly . . . threatens to harm another by an unlawful act:
            (1)   in retaliation for or on account of the service or status of
                  another as a:
                  ...
                  (B)    person . . . who the actor knows intends to report
                         the occurrence of a crime.
Tex. Penal Code Ann. § 36.06. A person’s intent to retaliate may be inferred

from circumstantial evidence, such as his acts, words, or conduct.         Brock v.

State, 495 S.W.3d 1, 16 (Tex. App.—Waco 2016, pet. ref’d); In the Matter of

B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.).

      The Texas Court of Criminal Appeals has explained the policy behind the

statute:



                                        5
             A central purpose of the retaliation statute is to encourage a
      specified class of citizens—which includes public servants,
      witnesses, prospective witnesses, and informants—to perform vital
      public duties without fear of retribution. Those public duties may
      include reporting criminal activities, testifying in official proceedings,
      or cooperating with the government in a criminal investigation. The
      Legislature keeps increasing that statutorily protected class to
      ensure that all of those who participate in the administration of
      justice may do so without fear of harm or physical injury. In Jones v.
      State, this Court held that the word “witness” in the retaliation statute
      refers only to a person who has already testified in some official
      proceeding. This holding left a large number of citizens who had or
      were expected to assist the criminal and civil justice systems outside
      the scope of protection. Therefore, in 1983, the Legislature
      amended the retaliation statute to include a “prospective witness”
      within the protected class, and, in 1989, it extended protection to “a
      person who has reported the occurrence of a crime.”                   The
      Legislature again expanded the statutory protections afforded this
      class of citizens by adding “or one who the actor knows intends to
      report” to the phrase “a person who has reported the occurrence of a
      crime” in 1993. Finally, in 1997, it added the alternative of “status,”
      as well as “service,” as a member of any one of the protected
      categories. Thus, the [L]egislature has attempted to account for
      every category of person who might possess information regarding
      criminal activity which may lead to the apprehension of a criminal
      offender. We can conceive of no existing gap in the persons
      protected under section 36.06.
Cada v. State, 334 S.W.3d 766, 771–72 (Tex. Crim. App. 2011) (citations and

selected internal quotation marks omitted).

C.    The Evidence         Sufficiently       Supports   Appellant’s        Retaliation
      Conviction.

      Appellant   concedes     that   Mother’s    “and   Older   Sister’s    testimony

established that [he] threatened to harm [Mother] by an unlawful act[,]” but he

contends that “there is no evidence . . . that [when he] threatened her, [Mother]

intended to report the occurrence of a crime, much less that [he] knew she



                                          6
intended to report the occurrence of a crime.” We disagree.

      Older Sister testified that after Younger Sister made her outcry to Mother

and Mother verbally confronted Appellant, he grabbed Mother by the neck,

pushed her against the wall, and said, “If you ever tell anybody, then I’m going to

come after you and your family and kill them.”

      Mother testified:

      •     Appellant said, “I’ll kill you, and you know I will, and no one is going
            to believe you”;

      •     Mother believed Appellant and thought he was threatening her so
            she “wouldn’t say anything”;

      •     When Appellant repeatedly blocked Mother and the children from
            leaving the house on the night of Younger Sister’s outcry to Mother,
            Mother assured him that they would not say anything: “Just let us
            go[;] we won’t tell”;

      •     Mother did not call the police and report Appellant’s child sexual
            abuse that evening because she was afraid of Appellant and his
            family;

      •     Mother “th[ought the girls] knew not to say anything because they
            were scared. They didn’t want to die”;

      •     Mother thought “if nobody knew, [her family] would be okay”;

      •     Mother reported the child sexual abuse to her counselor about six
            months after Younger Sister’s outcry;

      •     When Appellant was arrested, Mother and her children went to stay
            in a hotel for about a week; and

      •     Mother was scared when she told her counselor and still scared at
            trial.

Mother’s counselor testified that Mother was scared when she reported the child

sexual abuse in counseling, and the Lake Worth Police Department detective in


                                        7
charge of the case similarly testified that Mother was scared when the

investigation began.

      Viewing the record in the light most favorable to the verdict, the jury could

have inferred that Appellant threatened to kill Mother and the children so she

would not report him to authorities. That is, the jury could have inferred that

Appellant knew that Mother would report him for sexually abusing Younger Sister

and that he threatened her to prevent her from doing so. See, e.g., Goode v.

State, No. 03-10-00254-CR, 2011 WL 477038, at *5–6 (Tex. App.—Austin Feb.

9, 2011, no pet.) (mem. op., not designated for publication); Cardenas v. State,

No. 05-08-01210-CR, 2009 WL 2973664, at *3–4 (Tex. App.—Dallas Sept. 18,

2009, no pet.) (mem. op., not designated for publication); Burroughs v. State,

Nos. 03-07-00424-CR, 03-07-00425-CR, 2008 WL 3540054, at *4–5 (Tex.

App.—Austin Aug. 13, 2008, no pet.) (mem. op., not designated for publication).

      That Appellant’s threat was effective for several months does not affect the

analysis of the facts at the time he issued it; neither Mother’s state of mind nor

her reaction to his threat is an element of the offense of retaliation. See Penson

v. State, No. 03-07-00549-CR, 2009 WL 416470, at *3 (Tex. App.—Austin Feb.

19, 2009, no pet.) (mem. op., not designated for publication); Pollard v. State,

255 S.W.3d 184, 189 (Tex. App.—San Antonio 2008), aff’d, 277 S.W.3d 25 (Tex.

Crim. App. 2009). Accordingly, we hold that the evidence is sufficient to support

Appellant’s retaliation conviction, and we overrule his first issue.




                                          8
                          IV.    EXPERT TESTIMONY

      In his second issue, Appellant contends that the trial court abused its

discretion by allowing forensic interviewer Samantha Shircliff to testify (1) about

coaching generally and (2) that during her interview, she had no concerns that

Younger Sister had been coached. Appellant contends that Shircliff’s testimony

is unreliable because (1) the underlying facts do not provide a sufficient basis for

Shircliff’s opinion and (2) her testimony does not properly rely on or apply the

principles of her field. Appellant bases his arguments on Shircliff’s failure to ask

direct, introductory questions and similarly specific follow-up questions of

Younger Daughter regarding whether she had been coached.

A.    We Review a Trial Court’s Ruling that Expert Testimony Is Admissible
      for an Abuse of Discretion.

      We review a trial court’s reliability determination of expert testimony for an

abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.

2000).

B.    The Party Offering Expert Testimony Must Prove that It Is Reliable
      and Relevant.

      Rule 702 governs the admission of expert testimony. Tillman v. State,

354 S.W.3d 425, 435 (Tex. Crim. App. 2011). It provides that a witness qualified

as an expert “by knowledge, skill, experience, training, or education may testify in

the form of an opinion or otherwise if the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue.” Tex. R. Evid. 702. The party proffering the evidence


                                         9
must show by clear and convincing evidence that the expert testimony is

sufficiently reliable and relevant to help the jury reach an accurate result. Everitt

v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013).

      Rule 705(c) provides 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). To establish the reliability of expert testimony in a soft-science

context like this one, the State must prove that (1) “the field of expertise

is . . . legitimate”; (2) “the subject matter of the expert’s testimony is within [that

field’s] scope”; and (3) “the expert’s testimony properly relies upon and/or utilizes

the principles involved in the field.” Nenno v. State, 970 S.W.2d 549, 561 (Tex.

Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d

720 (Tex. Crim. App. 1999).

C.    The Trial Court Did Not Abuse Its Discretion by Determining that
      Forensic Interviewer Samantha Shircliff’s Testimony Was Reliable or
      by Admitting Her Testimony.

      1.     The Trial Court Held a Voir Dire Hearing to Determine the
             Admissibility of Shircliff’s Testimony.

      The following exchange on coaching occurred between the prosecutor and

Shircliff during the hearing:

      Q.     Samantha, are you familiar with the term “coaching”?
      A.     Yes.
      Q.     What is coaching?
      A.     Coaching refers to . . . when a child has been told to say or
             not to say certain things.



                                          10
      Q.    And is coaching and red flags for coaching something that
            you’re trained in as part of your training as a forensic
            interviewer?
      A.    Yes. We’re trained to ask questions to help the investigators
            to figure out if there might have been coaching.
      Q.    In your interviews?
      A.    Yes.
      Q.    So are you familiar with some red flags that you are supposed
            to look for—
      A.    Yes.
      Q.    —for coaching?
      A.    Yes.
      Q.    And so in your interview with [Younger Sister], were you
            looking for those coaching red flags?
      A.    Yes. I would have been asking those kinds of questions.
      Q.    And based on your training and experience regarding
            coaching, in your opinion, were there any red flags present?
      A.    No.
            ....
      Appellant’s defense counsel cross-examined Shircliff in the gatekeeping

hearing on the coaching issue:

      Q.    . . . So what specifically—what indicators are you alleging to
            have seen in the interviews with [Younger Sister]?

      A.    In the interviews, I can talk about how she had really good
            peripheral and sensory details. I didn’t have concerns for
            coaching. I utilized my forensic interview protocol, and if I had
            had any concerns, I would have told the investigators.
      Q.    What kind of . . . concerns would you normally have in regards
            to coaching that you speak of?
      A.    . . . [W]hen we interview children, we are looking for peripheral


                                       11
     and sensory details, because sometimes if children can’t
     provide those kinds of details, we might have concerns for
     coaching, and then at the same time, we might ask if anybody
     had told them to tell us anything while they’re here to talk to us
     or anybody had told them to lie to us or not say anything to us,
     those kinds of questions.
Q.   Did you ask those specific questions of [Younger Sister]?
A.   I don’t believe I did ask those specific questions. I would be
     just referring to her peripheral and sensory details.
Q.   So then you wouldn’t be able to give an accurate expert
     opinion in regards to whether or not there’s been coaching,
     since you didn’t ask those specific questions in regards to “did
     someone ask you to lie” and/or follow-up questions regarding
     “did someone put you up to this.” Is that a fair statement?
A.   I didn’t ask those specific questions, but based on her
     peripheral and sensory details, I didn’t have concerns.
Q.   Based on the training that you are relying on to be an expert,
     aren’t those all part of those things that are used to help make
     that determination?
A.   Yes.
Q.   It’s more than just sensory, being able to describe sensory
     details, correct?
A.   Yes.
Q.   And also, . . . since we are outside the presence of the jury,
     you are aware that she has gone through this . . . kind of thing
     before, correct?
A.   Yes.
Q.   Wouldn’t that make a difference in regards to her sensory
     details?   She would have a better working knowledge,
     wouldn’t she?
A.   It’s possible.
Q.   So would it be more accurate as well as reliable to ask those
     follow-up questions, especially in a situation like this?



                                 12
      A.     Yes, it probably would have been.
      2.     The Trial Court Ruled Shircliff’s Coaching                Testimony
             Admissible Over Appellant’s Objections.
      The following discussion with defense counsel, the prosecutor, and the trial

court occurred at the end of the voir dire hearing:


      [PROSECUTOR]:             Judge, we would just argue that based on
                                her training and experience, the fact that
                                forensic interviewing, grooming, child
                                abuse dynamics have been recognized by
                                the Court of Appeals in Fort Worth and also
                                the Court of Criminal Appeals, we would
                                argue that she should be qualified as an
                                expert in those topics.
                                 ....
      [DEF. COUNSEL]:           . . . Judge, I would object to her being able
                                to get into specifics in regards to [Younger
                                Sister] and giving an expert opinion in
                                regards to coaching.        She just stated
                                herself she did not ask all the necessary
                                questions or the normal protocol that is
                                typically and normally used to make that
                                kind of assessment, especially based on
                                the situation where a young lady has
                                already gone through those things. She
                                keeps going back and relying on her
                                sensory details, but she has a working
                                knowledge based on her previous
                                experience of going through the situation
                                with CPS as well as the Alliance for
                                Children.
      THE COURT:                Response?
      [PROSECUTOR]:             Judge, based on her training and
                                experience, as an expert, she’s qualified to
                                testify that based on her training and
                                experience, she didn’t notice any of the red
                                flags that she typically looks for when


                                         13
                        conducting these interviews.
THE COURT:              She can testify to that, and I find that she’s
                        also qualified under [rule] 705. I find that
                        the—that her—the scientific theory is valid,
                        is accepted in her community, and I find
                        that she is qualified. I find that there is—
                        and she’s testified, too, that there is
                        existence of literature supporting these
                        theories.
                        So I find the field of expertise is valid. I find
                        that her subject matter that she’s going to
                        be testifying on is within the scope of her
                        field, and I find that her testimony relied on
                        the principles in the field. So she can
                        testify to what . . . we talked about outside
                        the presence of the jury.
                        ....
[DEF. COUNSEL]:         Judge, before we move on, can I just get a
                        ruling in regards to—I’m objecting to her
                        specifically testifying as an expert in
                        regards to the coaching dynamics in
                        regards to [Younger Sister] based on her
                        lack of specific and detailed questions that
                        are typically relied upon in this field.
THE COURT:              I said she can testify to that.
[DEF. COUNSEL]:         So is it overruled then, Your Honor?
THE COURT:              Yes, it is.
[DEF. COUNSEL]:         Thank you. [Emphasis added.]
3.    On Direct Examination, Shircliff Testified About Coaching
      Generally and that She Had No Concerns During the Interview
      that Younger Sister Had Been Coached.
      In the jury’s presence, Shircliff testified as follows on direct

examination by the prosecutor:

Q.    Are you familiar with the term “coaching”?


                                 14
A.   Yes.

Q.   What is coaching?
A.   Coaching refers to when a child is told to say something or not
     to say something.
Q.   And do you learn about coaching in the course of your training
     and experience?
A.   Yes, I do.
Q.   Are you looking for red flags for coaching during your
     interviews?
A.   Yes.    At some—we ask certain questions to help the
     investigators decide if there might have been coaching or not.
Q.   What types of questions in general do you ask?
A.   Well, one thing we do look for are peripheral and sensory
     details. If the child is able to offer a lot of peripheral and
     sensory details, oftentimes, that can alleviate some concerns
     for coaching, but then we also might ask—when we ask, how
     come you’re here to talk to me today, did anybody tell you that
     you were coming to talk to me today, did anybody tell you to
     tell me anything today, did anybody tell you not to tell me
     anything today, different things like that.
Q.   Have you ever interviewed a child where you had concerns
     that coaching may have possibly occurred?
A.   Yes, I have.
Q.   When you have that situation, what do you do?
A.   I let the investigators know.
Q.   Do you know if a criminal case is filed in every forensic
     interview that you conduct?
A.   No.
Q.   Do you have any role in deciding whether a criminal case is
     filed or not?
A.   I do not.



                                 15
       Q.    I want to point your attention to March 18th of 2015. Did you
             have the opportunity to interview . . . [Younger Sister] on that
             date?
       A.    Yes, I did.
       Q.    How old was [Younger Sister] when you interviewed her?
       A.    [Younger Sister] was nine years old.
       Q.    And have you had an opportunity to review that interview
             before you testified today?
       A.    Yes, I have.
       Q.    Did you follow the CornerHouse protocol that you described
             earlier during this interview?
       A.    Yes, I did.
       Q.    Was [Younger Sister] able to provide peripheral and sensory
             details?
       A.    Yes, she was.
       Q.    Was she able to correct you at points during the interview
             about things you had gotten wrong?
       A.    Yes, she did correct me.
       Q.    What was her demeanor during the interview?
       A.    She appeared slightly shy, but she maintained the same
             demeanor throughout the majority of the interview.
       Q.    Did you have any concerns for coaching during that interview?
       A.    I did not.
       4.    On Cross-Examination, Shircliff Admitted that Follow-Up
             Questions and Pointed Introductory Questions About Whether
             a Child Had Been Directed to Tell Her or Not Tell Her Something
             Are Important.
       The following exchange occurred when defense counsel cross-examined

Shircliff:




                                        16
Q.   Ms. Shircliff, in regards to the CornerHouse protocol that
     you’ve been talking about and explaining to the jury, . . . is
     your analysis or your opinion on coaching, is it encompassed
     in that same protocol, or is it separate?
A.   It’s not specifically—we learned about it when we learn[ed]
     about the protocol. We learn[ed] about coaching, yes.
Q.   But is it actually included in that CornerHouse protocol or [is] it
     . . . separate and distinct from the CornerHouse protocol?
A.   I wouldn’t say it’s separate and distinct.
Q.   Based on your training and experience, what are the kind of
     things that you learned to look for in helping you make a
     determination and reach an opinion regarding coaching?
A.   So if a child says somebody touched me and I ask them
     where it happened, what they were touched with and they
     can’t give those just kind of basic details, that would be a
     concern. And then I also ask, has anybody told you to say
     anything about this, has anybody told you not to say anything
     about this, and based on—if they say that, you know, mom
     told me to say this, and she told me to lie, something like that,
     that would be a concern.
Q.   So in your field of expertise, these things are all used together
     to help in making you reach that conclusion or make that
     determination; would you agree with that statement?
A.   Yes, it could be.
Q.   So each and every one of those items are necessary, right?
A.   They are important.
Q.   In this instance, when you were speaking to [Younger Sister],
     did you ask those follow-up questions or even those
     introductory questions regarding coaching that you normally
     would?
A.   I didn’t ask any follow-up questions. I did ask her why she
     was there to talk to me and asked her if anybody talked to her
     about coming to talk to me.
Q.   But you did not specifically ask her if anyone had told her to
     say something or not to say something to you; is that correct?


                                 17
A.   That’s correct.
Q.   And you would agree with me that those are important in
     helping you make that determination whether or not you
     believe that there is a possibility of coaching, right?
A.   Those could be important, yes.
Q.   And those—that opinion there is— is widely known and widely
     used throughout your field of expertise; is that correct?
A.   Yes.
     ....
Q.   And I believe [the prosecutor] had asked you in regards to you
     don’t know what happens—you don’t always know what
     happens after the interview, do you?
A.   No, I don’t.
Q.   You also don’t have the decision-making power whether to file
     a case or not to file a case?
A.   No, I do not.
Q.   But you stated that you have had instances where you
     believed that coaching was apparent or evident, correct?
A.   I would say I have concerns of coaching. I do not make
     decisions as to whether or not a child has been coached. I
     don’t make any kind of case-making decisions at all.
Q.   Well, I’m not talking about a case-making decision, but if not
     you—you’re the expert here, so if not you, who would make
     the determination of whether or not they believe coaching was
     there?
A.   The investigators would, based on not just the interview, but
     other—other facts that they might find or other interviews and
     things like that they would have throughout their investigation.
Q.   So then how do you—how do you share your opinion with an
     investigator regarding an issue or an instance where you
     believe coaching is a possibility?
A.   After the interview, I would just let the investigator know, you
     know, I had concerns that she wasn’t able to give the kinds of


                                18
             details I would have expected from her development. I have
             some concerns with maybe a conversation a child had
             reiterated to me that they had had with a parent. I would just
             let the investigators know that I had concerns with maybe
             some of the child’s statements that would make me concerned
             that someone had either told the child to tell me something or
             not tell me something.
      Q.     So then it’s safe to say that of these almost 1,000 interviews
             that you’ve done, you can tell this jury that children lie even in
             that type of situation; is that correct?
      A.     Yes, children do lie.
      5.     The State Sufficiently Established the Reliability of Shircliff’s
             Testimony on Coaching.

      Appellant does not challenge the State’s showing on the first two prongs of

the Nenno test but argues that the State did not prove that Shircliff’s testimony

properly relied on or utilized the principles of her field.

      Shircliff testified in the gatekeeping hearing:

      •      She had been conducting forensic interviews for about two and a
             half years;

      •      She had undergone extensive training before conducting any
             interviews;

      •      She had conducted 885 forensic interviews before the trial;

      •      She participates in peer review;

      •      She stays current on “[r]esearch on perpetrator/victim relationships,
             child abuse dynamics, the disclosure process, those kinds of things”;

      •      She had testified as an expert before;

      •      Using a protocol helps ensure consistency and best practices and
             leads to obtaining as much accurate information as possible;

      •      She knows what coaching means;



                                           19
      •     She is trained to ask questions and look for “red flags” when
            interviewing to help investigators make their decisions about whether
            children are coached;

      •     She used the CornerHouse Forensic Interview Protocol, which is
            nationally recognized, when interviewing Younger Sister;

      •     She saw no red flags and developed no concerns that Younger
            Sister had been coached because Younger Sister provided sufficient
            peripheral and sensory details to support her allegations;

      •     She did not ask Younger Sister “if anybody had told [her] to tell
            [Shircliff] anything while [Younger Sister was] here to talk to [Shircliff]
            or [if] anybody had told [Younger Sister] to lie to [Shircliff] or not say
            anything to [her]”; and

      •     Given Younger Sister’s previous sexual abuse at the hands of a
            prior boyfriend of Mother’s, it probably would have been more
            accurate and reliable to ask those specific questions.

      The record does not establish whether Shircliff knew of Younger Sister’s

prior sexual abuse at the time of the forensic interview. Regardless, the trial

court heard Shircliff’s testimony about her experience, the protocol, Younger

Sister’s grasp of peripheral and sensory details about the alleged offenses, and

Shircliff’s choice based on her experience and training to forego asking Younger

Sister probing questions regarding coaching when Shircliff had not heard

anything from Younger Sister justifying them. We therefore hold that the trial

court did not abuse its discretion by determining that Shircliff’s testimony was

sufficiently reliable and allowing her to testify about coaching in general and her

lack of concern during the forensic interview that Younger Sister had been

coached. See Jenkins, 493 S.W.3d at 604–05; Tillman, 354 S.W.3d at 437–38;

see, e.g., Rojas v. State, No. 02-15-00144-CR, 2016 WL 6648748, at *4 (Tex.


                                         20
App.—Fort Worth Nov. 10, 2016, pet. ref’d); cf. Schutz v. State, 957 S.W.2d 52,

73 (Tex. Crim. App. 1999) (holding expert’s “testimony that the complainant did

not exhibit the traits of manipulation” admissible because it “did not constitute a

direct comment upon the truth of the complainant’s allegations”); Cantu v. State,

366 S.W.3d 771, 778 (Tex. App.—Amarillo 2012, no pet.) (holding that asking

about indications of coaching is a permissible inquiry of an expert). We overrule

Appellant’s second issue.

                              V.    CONCLUSION

      Having overruled Appellant’s two issues, we affirm the trial court’s

judgments.



                                                   /s/ Mark T. Pittman
                                                   MARK T. PITTMAN
                                                   JUSTICE

PANEL: SUDDERTH, C.J.; WALKER and PITTMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 9, 2018




                                        21
