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                                        MEMORANDUM OPINION

                                                 No. 04-08-00792-CR

                                                  Frank G. SAENZ,
                                                      Appellant

                                                            v.

                                                The STATE of Texas,
                                                      Appellee

                          From the 227th Judicial District Court, Bexar County, Texas
                                       Trial Court No. 2000-CR-5021
                                   Honorable Dick Alcala, Judge Presiding

Opinion by:           Karen Angelini, Justice

Sitting:              Karen Angelini, Justice
                      Steven C. Hilbig, Justice
                      Marialyn Barnard, Justice

Delivered and Filed: March 3, 2010

AFFIRMED

           A jury convicted appellant Frank G. Saenz of two counts of aggravated sexual assault of a

child. In five issues, Saenz argues the trial court erred in denying his pretrial writ of habeas corpus,

in overruling his objections to extraneous offense evidence, and in overruling his objections to expert

testimony. We overrule Saenz’s issues and affirm the judgments of conviction.1



           1
               … The record contains a judgment for each count.
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                            FACTUAL AND PROCEDURAL BACKGROUND

        In October 2000, Saenz was indicted for aggravated sexual assault of a child in a six-count

indictment. In February 2001, a jury convicted Saenz of three of the counts in the indictment. The

conviction was affirmed on appeal. Saenz v. State, 103 S.W.3d 541, 548 (Tex. App.—San Antonio

2003, pet. ref’d). Thereafter, the Court of Criminal Appeals granted Saenz’s application for a writ

of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure and set aside the

conviction because of ineffective assistance of counsel. See Ex parte Saenz, No. AP-75461, 2006

WL 1687473, at *1 (Tex. Crim. App. 2006) (not designated for publication).

        In October 2008, Saenz was reprosecuted on an amended three-count indictment. Two counts

involved Saenz’s adopted daughter, Y.S. One count involved Saenz’s biological daughter, S.S. Both

Y.S. and S.S. testified at trial. Y.S., who was twenty-eight years old at the time of trial, testified that

during her childhood Saenz touched her sexual organs, performed oral sex on her, and engaged in

sexual intercourse with her. The touching and oral sex began when Y.S. was about four or five and

continued until she was fourteen. The sexual intercourse began when Y.S. was about thirteen and

continued until she was fourteen. S.S., who was also an adult at the time of trial, recanted her earlier

statements that Saenz had sexually abused her during her childhood, and the trial court granted a

directed verdict on the count involving S.S.

        The jury found Saenz guilty of the two counts involving Y.S. Punishment was assessed at

ten years and one day imprisonment for each count. The sentences were ordered to run concurrently.




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                                PRETRIAL WRIT OF HABEAS CORPUS

        In his first issue, Saenz argues the trial court erred when it denied his pretrial motion for a

writ of habeas corpus. In this motion, Saenz argued his reprosecution violated the double jeopardy

provisions of the federal and Texas constitutions.

        The double jeopardy provisions of the federal and Texas constitutions protect a citizen from

repeated attempts at prosecution for the same criminal offense. Ex parte Wheeler, 203 S.W.3d 317,

322 (Tex. Crim. App. 2006). However, if a defendant requests a mistrial, double jeopardy normally

does not bar reprosecution. Id. Under the federal double jeopardy clause, a retrial is prohibited after

the defendant requests and is granted a mistrial only if the prosecution intentionally commits

manifestly improper conduct with the intent to provoke that mistrial. Id. (citing Oregon v. Kennedy,

456 U.S. 667, 672-73 (1982)). The same standard applies under the double jeopardy clause in the

Texas constitution. Lewis v. State, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).

        We review the trial court’s ruling on a pretrial writ of habeas corpus for an abuse of

discretion. Ex parte Wheeler, 203 S.W.3d at 322. In conducting this review, we view the objective

facts in the light most favorable to the trial court’s ruling. Id.

        Our disposition of Saenz’s first issue is governed by Ex parte Mitchell, 977 S.W.2d 575, 576

(Tex. Crim. App. 1997). Like Saenz, the appellant in Ex parte Mitchell moved for a mistrial, which

was denied, but then had his conviction set aside in a post-conviction habeas corpus proceeding.

Thereafter, the appellant in Ex parte Mitchell filed a pretrial motion for habeas corpus relief, arguing

his reprosecution would violate his rights under the federal and state constitutions. The trial court




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denied the motion and the appellate court affirmed. In affirming the judgment of the appellate court,

the Texas Court of Criminal Appeals stated,

        The accused’s right under the double jeopardy clause to have his trial completed by
        the first tribunal is clearly protected where, as in the present case, it proceeded to
        conclusion, i.e., a verdict. Only where the prosecutor’s intentional, and deliberate
        misconduct goads the accused into moving for a mistrial—and that motion is
        granted—is the accused’s right to be tried to verdict by the first tribunal, a right
        afforded him by the double jeopardy clause of the Fifth Amendment, violated. As
        there was no mistrial in the present case, we hold applicant’s double jeopardy rights
        under the United States Constitution are not violated by the State’s retrial of
        applicant following reversal of his conviction.

Id. at 579-80 (emphasis in original). In the present case, as in Ex parte Mitchell, no mistrial was

granted. Because no mistrial was granted, there was no violation of Saenz’s double jeopardy rights.

        Saenz recognizes the holding in Ex parte Mitchell, but argues, however, that he should be

entitled to relief regardless of whether he obtained a mistrial in the trial court, a reversal on appeal,

or a reversal in a post-conviction proceeding. Thus, according to Saenz, double jeopardy would be

implicated in this case if he could show there was prosecutorial misconduct in his first trial.

        In response to Saenz’s arguments, the State points out that the double jeopardy provisions

of the federal and Texas constitutions do not preclude a retrial following a successful post-conviction

remedy. See Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (“It has long been settled, however, that the

Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the

government from retrying a defendant who succeeds in getting his first conviction set aside, through

direct appeal or collateral attack, because of some error in the proceedings leading to conviction.”);

United States v. Tateo, 377 U.S. 463, 463-64 (1964) (holding the retrial of a criminal defendant who

had a conviction overturned in collateral proceedings did not offend double jeopardy protection). The


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State further argues that even if Saenz could claim a double jeopardy violation by virtue of having

his conviction reversed, the record from the pretrial habeas corpus hearing failed to show (1) the

commission of intentional prosecutorial misconduct in the first trial, and (2) the intent to provoke

Saenz into moving for a mistrial. In fact, the State points out, Saenz’s conviction was not reversed

because of prosecutorial misconduct, but instead because of ineffective assistance of counsel. We

agree with the State’s arguments.

       We hold Saenz’s double jeopardy rights were not violated by his retrial following the reversal

of his conviction in a post-conviction proceeding. See Ex parte Mitchell, 977 S.W.2d at 581.

Accordingly, the trial court did not abuse its discretion in denying Saenz’s pretrial writ of habeas

corpus. Saenz’s first issue is overruled.

                                EXTRANEOUS OFFENSE EVIDENCE

       In his second issue, Saenz argues the trial court erred by admitting evidence of extraneous

offenses against Y.S. because the probative value of the evidence was substantially outweighed by

the danger of unfair prejudice. See TEX . R. EVID . 403. We review the admission of evidence under

an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

Under this standard, we overrule complaints about the admission of evidence, as long as the trial

court’s ruling was within the zone of reasonable disagreement. Id.

       Here, the indictment alleged Saenz sexually assaulted Y.S. on or about June 1, 1991, and on

or about June 1, 1992, when Y.S. was twelve and thirteen years old, respectively. Y.S. testified the

June 1, 1991, incident involved Saenz causing his penis to contact her vagina, and the June 1, 1992,

incident involved Saenz causing his penis to penetrate her vagina. Saenz contends Y.S.’s testimony


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should have been limited to evidence of the two offenses charged in the indictment. Saenz argues

the trial court abused its discretion by allowing Y.S. to testify about the history of her relationship

with Saenz, which included references to extraneous offenses that occurred over the course of

approximately nine years. Over Saenz’s Rule 403 objections, Y.S. testified about Saenz touching her

vagina in the bathtub when she was about four or five, performing oral sex on her when she was in

elementary school, telling her “that’s what daddies do,” touching her vagina on other occasions when

she was between the ages of five and fourteen, taking inappropriate Polaroid photos of her, having

sexual intercourse with her “[m]ore than 50, maybe more than 100” times, and giving her wine

coolers and beers to get her to relax during sexual intercourse.

       Texas Code of Criminal Procedure 38.37 provides, in pertinent part:

       Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other
       crimes, wrongs, or acts committed by the defendant against the child who is the
       victim of the alleged offense shall be admitted for its bearing on relevant matters,
       including:

       (1) the state of mind of the defendant and the child; and

       (2) the previous and subsequent relationship between the defendant and the child.

TEX . CODE CRIM . PROC. ANN . art. 38.37, § 2 (Vernon 2005).

       Upon a proper objection, the trial court may exclude relevant evidence if the probative value

of the evidence is substantially outweighed by the danger of unfair prejudice. See TEX . R. EVID . 403.

The Court of Criminal Appeals has listed several factors that a trial court should consider in

conducting a Rule 403 balancing test: (1) the probative value of the evidence; (2) the potential of the

evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the

proponent needs to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v.

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State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery v. State, 810 S.W.2d 372, 389-90

(Tex. Crim. App. 1990) (op. on reh’g). Rule 403 favors the admission of relevant evidence and

carries a presumption that relevant evidence will be more probative than prejudicial. Williams v.

State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997).

       To sustain this issue, we must conclude the probative value of the evidence was so

substantially outweighed by the danger of unfair prejudice that the decision to admit the evidence

was not even within the zone of reasonable disagreement. See TEX . R. EVID . 403; Moses,105 S.W.3d

at 627. Here, Saenz does not challenge the probative value of the evidence presented in this case. To

the contrary, Saenz acknowledges the evidence in question was probative. Instead, Saenz emphasizes

the prejudicial nature of the extraneous offense evidence, contending Y.S.’s testimony “could not

have failed to impress the jury in a way that was both irrational and unforgettable.” Saenz also

complains about the time it took to develop the evidence, asserting it took two-thirds of a day for

Y.S. to testify about these events.

       In light of Saenz’s arguments, we consider the factors pertinent to the Rule 403 balancing

test. First, the evidence in question was highly probative because it demonstrated the history and

progression of the relationship between Y.S. and Saenz, and provided insight into both of their states

of mind. This factor weighs in favor of the admission of the evidence. Second, the potential to

impress the jury in some irrational and indelible way was also high. As even the State acknowledges,

evidence of repeated sexual assaults by a father on his daughter beginning at the age of four or five

and occurring until the age of fourteen undoubtedly had a strong emotional effect on the jury. This

factor weighs against the admission of the evidence. Third, although the evidence took some time

develop, we cannot say it diverted the jury’s attention from the crucial issues in this case. The

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primary issue at trial was whether Saenz sexually assaulted Y.S. Another important issue was Y.S.’s

state of mind and her delay in disclosing the assaults. The evidence in question was closely related

to these issues. Thus, this factor is neutral. Finally, the State’s need for the extraneous offense

evidence was also high. This factor involves considering whether the State needed the evidence in

question to establish a fact of consequence and whether that fact of consequence was in dispute.

Montgomery, 810 S.W.2d at 390. Here, the only direct evidence of the charged offenses was from

Y.S., who did not disclose the sexual abuse until she was an adult. The defense attacked Y.S.’s

credibility and her delay in disclosing the charged offenses. The evidence in question was necessary

to help the jury understand why Y.S. might have delayed in disclosing the offenses charged in the

indictment. This factor weighs in favor of the admission of the evidence.

       After weighing the required factors, we conclude the trial court could have reasonably

concluded the probative value of the evidence was not substantially outweighed by the danger of

unfair prejudice. The trial court’s decision to admit the extraneous offense evidence was within the

zone of reasonable disagreement, and therefore, was not an abuse of discretion. Saenz’s second issue

is overruled.

       In his third issue, Saenz argues the trial court erred by admitting evidence of extraneous

offenses against S.S. because the probative value of the evidence was substantially outweighed by

the danger of unfair prejudice. See TEX . R. EVID . 403. The record does not show Saenz objected to

this evidence at the time of its admission. See TEX . R. EVID . 103(a)(1) (stating error may not be

predicated upon a ruling which admits evidence unless a timely objection appears of record). Saenz

acknowledges this fact, but contends he preserved this issue because he obtained a ruling on this

evidence by way of a motion in limine order. We disagree. Notwithstanding a motion in limine order,

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a defendant remains obligated to make a timely and specific objection when evidence is offered at

trial. See Gilchrest v. State, 904 S.W.2d 935, 938 (Tex. App.—Amarillo 1995, no pet.) (holding

complaints about the admission of extraneous offense evidence were waived by the defendant’s

failure to object during trial); Rawlings v. State, 874 S.W.2d 740, 742-43 (Tex. App.—Fort Worth

1994, no pet.) (“The granting or denying of a motion in limine, without more, preserves nothing for

appellate review.”). Saenz’s third issue is overruled.

                                         EXPERT TESTIMONY

        Admission of expert testimony is governed by Texas Rule of Evidence 702. Morales v. State,

32 S.W.3d 862, 865 (Tex. Crim. App. 2000). Pursuant to Rule 702, a witness may offer an expert

opinion if the witness is qualified to do so by knowledge, skill, experience, training, or education and

the witness possesses scientific, technical, or other specialized knowledge that will assist the trier

of fact to understand the evidence or to determine a fact in issue. TEX . R. EVID . 702. If the trial court

determines the underlying facts or data do not provide a sufficient basis for the expert’s opinion, the

opinion is inadmissible. See TEX . R. EVID . 705(c). Before admitting expert testimony under Rule

702, the trial court must be satisfied that three conditions are met: (1) the witness qualifies as an

expert by reason of his 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).

        We review a trial court’s decision to allow expert opinion testimony for an abuse of

discretion. Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007). We must uphold the trial

court’s ruling if it was within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d

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540, 542 (Tex. Crim. App. 2000). Moreover, we review the trial court’s ruling in light of the

evidence before the trial court at the time the ruling was made. Id.

        1. Testimony of Cheri Estrada

        In his fourth issue, Saenz argues the trial court erred in allowing expert testimony from Cheri

Estrada, a San Antonio Police Department detective who investigated sexual assault complaints,

including the complaint made by Y.S. Saenz argues Estrada was not qualified to render an opinion

about delayed outcry and recantation by sexual abuse complainants. In response, the State argues

only part of this complaint is preserved. According to the State, Saenz never objected that Estrada

was not qualified to give an expert opinion on delayed outcry.

        To preserve error for appellate review, the complaining party must make a timely and specific

objection at the earliest opportunity. TEX . R. APP . P. 33.1(a)(1); Acevedo v. State, 255 S.W.3d 162,

167 (Tex. App.—San Antonio 2008, pet. ref’d). 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. Here, the record shows Saenz specifically objected to

Estrada’s qualifications to provide expert testimony on recantation; however, the record shows no

similar objection was made as to Estrada’s qualifications to provide expert testimony on delayed

outcry. In fact, by the time Saenz objected to Estrada’s qualifications, Estrada had already testified

on delayed outcry.

        No rigid formula exists to evaluate whether a particular witness qualifies as an expert.

Matson v. State, 819 S.W.2d 839, 851 n.10 (Tex. Crim. App. 1991). A witness may be qualified by

reason of knowledge, skill, experience, or training, regardless of its source. Id. Here, Estrada testified

she held a master’s degree in psychology from Our Lady of the Lake University. To earn this degree,

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Estrada took courses in child development and abnormal psychology. Estrada’s practical experience

consisted of twenty-three years with the San Antonio Police Department, including almost three

years in the sex crimes unit of the San Antonio Police Department. Estrada testified that even though

she had been moved to another unit she continued to work on some sex crimes cases. Estrada

testified she had encountered numerous complainants who made delayed outcries or who recanted

allegations of sexual abuse. Estrada also testified she had read articles and studies on delayed outcry

and recantation by child sexual assault complainants.

       The record shows that even if Saenz had objected to Estrada’s qualifications to provide

expert testimony on delayed outcry, the trial court could have properly allowed this testimony. Based

on this record, we hold the trial court’s decision to allow Estrada’s testimony on delayed outcry and

recantation was not an abuse of discretion. Saenz’s fourth issue is overruled.

       2. Testimony of Dr. Nancy Kellogg

       In his fifth issue, Saenz argues the trial court erred in allowing the testimony of Dr. Nancy

Kellogg, professor of pediatrics at the University of Texas Health Science Center, San Antonio.

Saenz does not challenge Kellogg’s qualifications to provide expert opinions in child sexual abuse

cases. Instead, Saenz argues the trial court abused its discretion in allowing Kellogg’s testimony

because Kellogg “[w]ithout speaking to the complainants” “had incomplete data on which to base

her expert opinions.” Saenz further argues Kellogg “did not—and could not—tie the facts of the case

to the scientific principles that she testified about.” Thus, Saenz essentially argues that because

Kellogg never interviewed Y.S., she could not have tied the facts of the case to the scientific

principles about which she testified.




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         Here, the record shows Saenz specifically objected to Kellogg’s testimony based on the

expert’s failure to talk to or examine Y.S.; however, Saenz did not specifically object to Kellogg’s

testimony because of the expert’s alleged failure to tie the facts of the case to the scientific principles

about which she testified.2 Moreover, the record shows that by the time Kellogg testified, the trial

court had heard Y.S.’s testimony. Y.S. testified she did not disclose the sexual abuse to anyone until

she was an adult and living on her own. Y.S. further testified that when she finally disclosed the

sexual abuse to her mother, her mother and Saenz were experiencing marital difficulties, and her

mother was emotionally supportive of her and facilitated her reporting the sexual abuse to the police.

         For authority, Saenz relies on Acevedo, a case in which we held the trial court abused its

discretion in admitting expert testimony on the effects crystal methamphetamine had on the

defendant. 255 S.W.3d at 169. In Acevedo, the record showed the expert, a psychiatrist and

pharmacist, possessed no information whatsoever about the particular facts of the case; the expert

had no information about the defendant’s individual characteristics, previous drug use, drug

tolerance, how much of the drug was ingested, when the drug was ingested, and what other

substances were ingested. Id. Under these circumstances, we concluded the expert’s testimony was

speculative, and therefore, unreliable and irrelevant. Id. at 169-70.

         Here, by contrast, Kellogg testified she reviewed numerous documents prior to forming her

expert opinion in this case, including statements made by Y.S. and S.S., statements made by their

mother, and the transcripts of Y.S.’s and S.S.’s testimony from the first trial. Additionally, Kellogg’s



         2
          … Defense counsel stated, “I’m going to object again, Judge, we’ve had this before, but I’ll have to continue
to object. W hen we’re making specific opinions on somebody she’s never met, never talked to, never done an
examination, never gotten the history that she’s talked about just a minute ago, from her. I’m going to have to object that
we’re going far beyond any medical diagnosis or standard medical diagnosis that a doctor should be entitled to give.”

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testimony shows she had a thorough understanding of the particular facts of this case, including a

familiarity with Y.S.’s delayed disclosure of the sexual abuse, the progression of abuse alleged by

Y.S., and the circumstances of S.S.’s outcry and her recantation. We, therefore, are of the opinion

that the trial court could have reasonably concluded that Kellogg had sufficient facts and data upon

which to base her opinions. See Griffith v. State, 983 S.W.2d 282, 288 (Tex. Crim. App. 1998)

(holding the trial court did not abuse its discretion in admitting expert testimony when expert told

the jury he reviewed the investigative reports, crime scene photos, autopsy photos, witness

statements, and the defendant’s school and personnel records before developing an opinion about

the defendant’s future dangerousness).

        Additionally, we are of the opinion that even if Saenz had objected to Kellogg’s testimony

based on her alleged failure to tie the facts of this case to scientific principles, the trial court could

have properly overruled this objection. Based on the documents she reviewed, Kellogg stated she

would give Y.S. a medical diagnosis of sexual abuse. Kellogg testified her opinion was based on the

detail Y.S. provided about what happened, which was “very rich and consistent.” Kellogg also stated

her opinion was based on the circumstances of Y.S.’s disclosure, when Y.S. finally told someone

about the abuse, when she reported the situation, the family’s response, and how the family’s

response affected Y.S. Kellogg opined that all of these factors were consistent with what she had

seen in other children and adolescents she evaluated for sexual abuse. Kellogg went on to testify that

children typically disclose sexual abuse when they cannot take it anymore or when they feel safe.

Here, Kellogg said it was her understanding that Y.S. had separated herself from her home by the

time she disclosed the sexual abuse, and she was beginning to deal with the issues and emotional

problems caused by the sexual abuse. Kellogg indicated that children, adolescents, and even adult

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victims of sexual abuse delay disclosure for a lot of reasons. Kellogg went on to say that most

victims delayed disclosure because they were afraid of what would happen when they did. In

particular, Kellogg noted that when sexual abuse occurred in a family situation, the victims feared

disclosure would break up the family and cause a lot of turmoil. After reviewing the record, we

conclude Kellogg was able to tie the facts of this case to her expert opinion testimony.

       We hold the trial court’s decision to admit Kellogg’s testimony was not an abuse of

discretion. Saenz’s fifth issue is overruled.

                                            CONCLUSION

       The judgments of the trial court are affirmed.



DO NOT PUBLISH




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