

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. 


