                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-031-CR


JACINTO SALINSE CORTEZ                                            APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                    ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                               I. INTRODUCTION

      Appellant Jacinto Salinse Cortez appeals his convictions and sentences

for aggravated sexual assault of a child and indecency with a child. We affirm.




      1
          … See Tex. R. App. P. 47.4.
                 II. FACTUAL AND PROCEDURAL HISTORY

      The State charged Cortez with committing aggravated sexual assault and

indecency with a child against his six-year-old granddaughter, N.C. After the

assault, N.C.’s parents took her to Cook Children’s Hospital, where she was

examined by family nurse practitioner Jacqueline Sue Hess.          Hess was a

member of the hospital’s CARE team, which was responsible for performing

physical exams of children who had been physically or sexually abused. N.C.

told Hess that Cortez had “put his mouth over her private area” and that he had

put his tongue in her “gina” and “butt.” She also told Hess that Cortez “rubs

his hands all over her body” and “has sex with her” and that he had caused her

to manually stimulate his sexual organ. Hess’s physical examination of N.C.

revealed no abnormal findings other than a yellow vaginal discharge, which

Hess said could indicate an infection. Ultimately, after considering the evidence

and testimony of Hess and other witnesses, the jury convicted Cortez and

sentenced him to 50 years’ confinement for aggravated sexual assault and 20

years’ confinement for indecency with a child, with the sentences to run

concurrently. Cortez now appeals.




                                       2
                   III. LAW AND APPLICATION TO FACTS

      In two issues, Cortez complains of the following testimony given by Hess,

the nurse practitioner, on redirect examination by the State during the guilt-

innocence phase of trial:

            Q.   Okay. Are you aware of statistics that Cook’s keeps
      on confirmed cases of sexual abuse and the number of confirmed
      cases where you would have no physical findings?

                   [Defense counsel]: Object, Your Honor.         It’s not
      relevant to this case.

                  THE COURT: It’s overruled.

            Q.    (BY [the State]:) Are you aware of those statistics?

           A.    I don’t -- I don’t have statistics from Cook’s, but in my
      own experience and from research it’s -- it is my understanding that
      more than 95 percent of the children with alleged sexual abuse
      have normal exams.

            Q.    And there are people who keep studies on cases where
      there is -- where that is confirmed by either confessions from
      defendants or DNA, actual biological findings?

            A.    That’s true.

                  [Defense counsel]: I’m going to object to relevance of
      that and also it’s -- it’s speculation.

                  THE COURT: All right.       That’s overruled.    It was
      brought up in cross.




                                       3
A.    Relevance Objection

      In his second issue, Cortez argues that the trial court erred by overruling

his relevance objection to the State’s question about statistics on confirmed

sexual abuse cases with no physical findings of abuse. Cortez contends that

the normal physical exams involved in other sexual abuse cases have no

connection to his case and do not have any bearing on whether N.C. was telling

the truth.

      The State’s questions about sexual abuse statistics tended to elicit expert

testimony based on Hess’s knowledge and training rather than just her personal

perceptions of the events in this particular case. See Tex. R. Evid. 702 (“If

scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to 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.”).        To be relevant, expert

testimony must be tied or related to the pertinent facts of the case. See Tex.

R. Evid. 401; Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000).

      Before the State questioned Hess about the sexual abuse statistics,

Cortez’s counsel had cross-examined Hess about her experience with false

allegations of sexual abuse and whether the lack of physical findings would

indicate that no sexual contact had occurred. Therefore, Hess’s testimony

                                        4
about the statistical frequency of the absence of physical findings in alleged

sexual abuse cases was relevant to explain that the absence of physical

findings could still be consistent with the type of abuse described by N.C. We

hold that the trial court did not err by denying Cortez’s relevance objection and

overrule his second issue.

B.    Speculation Objection

      In his first issue, Cortez argues that Hess was not qualified to testify

about the statistical frequency of confirmed sexual abuse in cases without

physical evidence. A challenge to expert qualifications must be made at trial

to preserve a complaint about them on appeal. Martinez v. State, 22 S.W.3d

504, 507 (Tex. Crim. App. 2000). Error may not be predicated upon a ruling

that admits or excludes evidence unless a timely objection or motion to strike

appears of record, stating the specific ground of objection, if the specific

ground was not apparent from the context. Tex. R. Evid. 103(a)(1). When the

correct ground for exclusion was obvious to the judge and opposing counsel,

no forfeiture results from a general or imprecise objection. Resendez v. State,

306 S.W.3d 308, 313 (Tex. Crim. App. 2009). But when the context shows

that a party failed to effectively communicate his argument, then the error will

be deemed forfeited on appeal. Id.




                                       5
      Cortez contends that his speculation objection was, in context, a

challenge to Hess’s expertise.    We disagree.    The purpose of requiring the

objection is to give to the trial court or the opposing party the opportunity to

correct the error or remove the basis for the objection. Martinez, 22 S.W.3d

at 504.   Here, Cortez did not tell the trial court that he challenged Hess’s

qualifications to testify on the statistical frequency of normal physical exams

in confirmed cases of child sexual abuse. Had he made that specific objection,

the State would have been given an opportunity to satisfy that objection. The

trial court also would have been sufficiently informed of the basis for the

objection so that the court could have excluded the evidence if the State had

failed to establish the qualifications of its witness. But instead, Cortez simply

asserted that “it’s speculative.” An objection that a witness’s testimony is

speculative does not preserve a challenge to the witness’s qualifications as an

expert. See Karkutt v. State, No. 02-04-00560-CR, 2006 WL 1714706, at *2

(Tex. App.—Fort Worth Nov. 1, 2006, pet. ref’d) (mem. op., not designated for

publication); Villarreal v. State, No. 02-04-00102-CR, 2005 WL 1994316, at

*2 & n.2 (Tex. App.—Fort Worth Aug. 18, 2005, pet. ref’d) (mem. op., not

designated for publication).   Cortez’s trial objection to Hess’s testimony as

speculative did not obviously communicate to the court and opposing counsel

that he was challenging her expert qualifications, so it did not preserve this

                                       6
complaint on appeal. We therefore hold that Cortez has forfeited his complaint

about Hess’s qualifications, and we overrule his first issue.

                              IV. CONCLUSION

      Having overruled both of Cortez’s issues, we affirm the trial court’s

judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: WALKER and MCCOY, JJ.; and DIXON J. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).

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

DELIVERED: July 22, 2010




                                       7
