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                                 MEMORANDUM OPINION

                                        No. 04-08-00452-CR

                                       Alejandro FIGUEROA,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                  From the 81st/218th Judicial District Court, Karnes County, Texas
                                 Trial Court No. 06-03-00087-CRK
                                Honorable Ron Carr, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice, concurring without opinion
                  Marialyn Barnard, Justice

Delivered and Filed: July 22, 2009

AFFIRMED

           A jury convicted appellant Alejandro Figueroa of indecency with a child and assessed his

punishment at two years with community supervision. On appeal, Figueroa contends the trial court

erred by excluding expert testimony regarding the Abel Assessment for Sexual Interest Test during

the guilt/innocence phase of trial. We affirm the trial court’s judgment.
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                                           BACKGROUND

       On April 15, 2008, Figueroa stood trial for indecency with a child after his wife’s six-year-

old granddaughter accused him of improperly touching her. During the trial, Figueroa attempted to

proffer expert testimony from Mark Steege regarding the Abel Assessment for Sexual Interest Test,

a psychological test he administered to Figueroa, and the State objected.

       To determine the admissibility of Steege’s expert testimony regarding the Abel Assessment

for Sexual Interest Test, the trial court conducted a gatekeeper hearing outside the presence of the

jury. At the hearing, both parties provided the court with cases to support their standpoints, and

Steege testified. Steege testified that he examined Figueroa in his office and administered the Abel

Assessment for Sexual Interest Test and the Sexual Adjustment Inventory as well as conducted a

clinical evaluation. Steege testified that the Abel Assessment for Sexual Interest Test examines the

sexual interest of a person by using variable reaction times based on the temporal disparity the

person displays after seeing slides of human beings portrayed in different situations. Based on all

three evaluations, Steege testified that he did not see any “red flags” that would alert him to believe

Figueroa had problematic sexual behaviors.

       At the end of the gatekeeper hearing, the trial court granted the State’s objection to the

admissibility of Steege’s testimony regarding the Abel Assessment for Sexual Interest Test, but the

trial court denied the State’s objection to the admissibility of Steege’s testimony regarding Steege’s

clinical evaluation of Figueroa and Figueroa’s results from a Sexual Adjustment Inventory. After

hearing Steeges’s testimony, the jury convicted Figueroa of indecency with a child, assessed his

punishment at two years confinement. The jury also recommended that his sentence be suspended,




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and he be placed on community supervision. The trial court suspended Figueroa’s sentence of

confinement and placed him on community supervision for two years

                                      STANDARD OF REVIEW

       We review a trial court’s decision to admit or exclude expert testimony under an abuse of

discretion standard.     See Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005);

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Under an abuse of discretion

standard, we defer to the trial court if the record supports the trial court’s decision to admit or

exclude the expert testimony. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002);

see also Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). Merely because a trial

court may decide to admit or exclude evidence differently than our court does not demonstrate an

abuse of discretion. See Montgomery, 810 S.W.2d at 380. An abuse of discretion occurs when the

trial court acts arbitrarily or unreasonably and without reference to any guiding rules and principles.

Id. So long as the trial court’s decision to admit or exclude the expert testimony lies “within the

zone of reasonable disagreement,” then the decision is not an abuse of discretion. Weatherred, 15

S.W.3d at 542; Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992); Montgomery, 810

S.W.2d at 391 (op. on reh’g). “In addition, [we] must review the trial court’s ruling in light of what

was before the trial court at the time the ruling was made.” Weatherred, 15 S.W.3d at 542.

                                            DISCUSSION

       In his sole issue on appeal, Figueroa challenges the trial court’s decision to exclude from

evidence Mark Steege’s expert testimony regarding his evaluation of Figueroa’s lack of sexual

deviancy under the Abel Assessment for Sexual Interest Test. According to Figueroa, Steege’s

evaluation of Figueroa under the Abel Assessment for Sexual Interest Test was admissible because



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Steege’s testimony showed by clear and convincing evidence that the test was reliable. Figueroa

contends the trial court did not have any evidence to support the exclusion of Steege’s testimony;

therefore, its decision to exclude the test lies outside the zone of reasonable disagreement.

       The State contends, however, that the trial court did not abuse its discretion because the Abel

Assessment for Sexual Interest Test is not a reliable test. The State contends the underlying theory

is invalid and inaccurate. The State also contends that although Steege is a qualified expert, he

misapplied the Abel Assessment for Sexual Interest Test because the test is to be used for treatment

rather than diagnostic purposes. According to the State, the test is not designed to detect whether

a person has sexually abused children, but instead the test is designed to treat individuals with

problems involving sexual arousal towards minors. The State further contends that Steege

undermined the reliability of the test as applied to Figueroa when Steege admitted that the research

on the test’s accuracy with regard to Hispanic victims has not been completed.

       Under Rule 702 of the Texas Rules of Evidence, the proponent of scientific evidence must

show by clear and convincing proof that the evidence he is proffering is not only relevant, but also

reliable in assisting the jury in accurately determining a fact issue or understanding other evidence.

TEX . R. EVID . 702; Weatherred, 15 S.W.3d at 542. To determine the reliability of a “soft” science,

including fields such as economics, political science, psychology, anthropology, and sociology, the

proponent must satisfy three criteria by showing that: “(1) the underlying theory is valid; (2) the

technique applying said theory is valid; and (3) the technique was properly applied on the occasion

in question.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); Kelly, 824 S.W.2d at

573; see also Weatherred, 15 S.W.3d at 542.




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        To determine whether the record supports the trial court’s decision to exclude Steege’s

testimony regarding the Abel Assessment for Sexual Interest Test, we must decide whether Figueroa

showed by clear and convincing proof that the test is reliable under the three criteria set out in Kelly,

824 S.W.2d at 573-74. See Bignon, 252 S.W.3d at 367.

        A. Whether the Underlying Scientific Theory Is Valid

        During the gatekeeper hearing, Steege testified that the Abel Assessment for Sexual Interest

Test examines the sexual interest of a person by using variable reaction times based on the temporal

disparity the person displays after seeing slides of human beings portrayed in different situations.

Steege testified that the test is primarily an objective test that measures the amount of time a person

spends looking at the images on the slide. Steege testified that the test also includes a subjective

component in which the person answers questions regarding how much he or she was sexually

aroused or disgusted by an image on the slide. Steege testified that the information is then sent to

Dr. Abel’s for-profit company to determine the results. See also United States v. Birdsbill, 243 F.

Supp. 2d 1128, 1131, n. 3 (D.C. Mont. 2003) (explaining that the information, including the person’s

answers to the questions as well as the person’s visual reaction times, are sent to Dr. Abel’s office

in Atlanta, Georgia and the results are faxed back to the test administrator).

        On cross examination, Steege admitted that Dr. Abel’s formula and the scales Dr. Abel uses

to determine the results are not released to the public for outside review; however, Steege added that

the test “has been subject to independent review by a variety of people.” Steege also testified that

there is a potential error rate, and the test does not fall within the ninety-three to ninety-eight

percentile of accuracy. Steege also acknowledged that Dr. Abel testified in an earlier case that the




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test has a “significant potential” for error.1 When asked twice whether the test is generally accepted

by the public, Steege equivocated and answered that he was not asked to testify whether Figueroa

was guilty or innocent and indicated that he can diagnose pedophilia.

         B. Whether the Technique Applying the Theory Is Valid

         Prior to Steege’s testimony, both parties provided the court with cases discussing whether

the Abel Assessment for Sexual Interest Test is a diagnostic or treatment tool. The record reflects

that after reviewing the cases, the trial judge stated the cases did not provide a definitive answer as

to whether the Abel Assessment for Sexual Interest Test is a diagnostic or treatment tool or whether

the test is admissible. The trial court noted that in In re C.D.K., 64 S.W.3d 679, 684, n.8 (Tex.

App.—Amarillo 2002, no pet.), the Seventh Court of Appeals held that although it did not categorize

the test as “junk science,” the test was inadmissible because the proponent of the evidence did not

satisfy the Robinson test. The trial court also noted that some of the cases provided by Figueroa

upheld the admission of the test because the opponent of the evidence did not object to its admission.

See e.g.,Carlson v. State, No. 01-98-00367-CR, 1999 WL 182445, at *1 (Tex. App.—Houston [1st

Dist.] April 1, 1999, no pet.) (allowing the admission of the Abel Assessment report because the

defendant failed to object to the admission of the report and waived any error).

         The trial court also reviewed United States v. Birdsbill, 243 F. Supp. 2d at 1136, in which

the United States District Court of Montana held that the test was not reliable for the purpose of



         1
           … See Birdsbill, 243 F. Supp. 2d at 1135-36 (reviewing several independent studies regarding the Abel
Assessment for Sexual Interest Test’s error rate, including Dr. Abel’s own calculation of a 32% error rate, where it was
clear that the potential error rate for the test varied from “poor” to “appalling). But see United States v. Robinson, 94
F. Supp. 2d 751, 753, 755 (W .D. La. 2000) (hearing testimony from Dr. Abel, who stated that the potential rate of error
in diagnosing sexual interest in cases of incest/non-incest was between 78% and 79% accurate and that the Abel
Assessment for Sexual Interest Test was between 86% and 90% reliable). In this case, the court held that based on the
evidence before it, the expert’s testimony regarding the Abel Assessment for Sexual Interest Test was admissible under
the Daubert standard. Id. at 755.

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characterizing a defendant as sexually interested or uninterested in boys under the age of twelve. In

addition to highlighting the test’s potential for error, the Montana court stated that the test is a

treatment test and is designed for the purpose of monitoring the progress of individuals being treated

for problems regarding sexual arousal toward minors. Id. at 1131, 1136. The Montana court also

stated that test is not designed to diagnose whether a person has sexually abused children. Id. at

1131.

        In addition to the case law, the trial court heard the following testimony regarding whether

the test should be characterized as a diagnostic or treatment tool. On cross examination, the State

asked Steege whether the Abel Assessment for Sexual Interest Test is “generally used for the purpose

of diagnosis,” and Steege testified he “could diagnose pedophilia from it if that is what you are

asking.”

        C. Whether the Technique Was Properly Applied on the Occasion in Question

        The trial court asked Steege whether the test was limited to race in any kind of way, and

Steege testified that the slides involve only Caucasian and African-American children. Steege also

testified that his site is working on adding a series of slides involving Hispanic individuals, but the

test’s accuracy toward Hispanic victims is not completed. The trial court then asked “how reliable

would it be on a Hispanic subject.” Steege testified that he believed it would not make much

difference; however, he noticed that Hispanic individuals show more preference for women of color

than Caucasian women. Steege also added that his beliefs were based on his own anecdotal research

and not any “clear research.”




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D. Conclusion

          Viewing the evidence in the light most favorable to the trial court’s decision, we conclude

that Figueroa did not demonstrate by clear and convincing evidence that Steege’s evaluation of

Figueroa under the Abel Assessment for Sexual Interest Test was reliable for the purpose of

characterizing Figueroa as being sexually uninterested in minors. See Bignon, 252 S.W.3d at 367;

Weatherred, 15 S.W.3d at 542; Kelly, 824 S.W.2d at 574. As the sole judge of the weight and

credibility of the evidence, the trial court’s decision to exclude the testimony did not fall outside the

zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542; Kelly, 824 S.W.2d at 574;

Montgomery, 810 S.W.2d at 391. Here, it was within the trial court’s discretion to weigh Steege’s

testimony regarding the test’s significant potential for error and its inaccuracy in Hispanic subjects

more heavily than Steege’s testimony regarding the test’s objectiveness. Accordingly, the trial court

did not act arbitrarily, unreasonably, or without reference to any guiding rules and principles, and

its decision to exclude Steege’s testimony regarding Figueroa’s evaluation under the Abel

Assessment for Sexual Interest Test was not an abuse of discretion.2 See Montgomery, 810 S.W.2d

at 380.

                                                    CONCLUSION

          Based on the foregoing, the judgment of the trial court is affirmed.



                                                                 Marialyn Barnard, Justice

DO NOT PUBLISH


          2
           … W e express no opinion as to whether the Abel Assessment for Sexual Interest Test could be found reliable
if different evidence had been presented. W e simply hold that the trial court did not abuse its discretion in determining
that Figueroa did not demonstrate by clear and convincing evidence that the Abel Assessment for Sexual Interest Test
was admissible based on the evidence in this case.

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