
                                          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
assault[1] of a child, J.C.[2], and sentenced to fifteen years confinement.   Appellant  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  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:


      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 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 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]


      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  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.


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 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).

      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.
-----------------------
      [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.



      [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.

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

      [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).

      [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).

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



