Craig Jett

Craig Jett is Of Counsel to Burleson, Pate & Gibson of Dallas. Mr. Jett has practiced law and been a member of TCDLA for 42 years. He has been a regular lecturer and author on criminal law matters for TCDLA, the State Bar of Texas, various local bar associations and other professional organizations. In his time with TCDLA Mr. Jett has chaired committees, including the Criminal Defense Lawyers Project; produced continuing legal education programs across the State; served on the Board of Directors; and held all of the officer positions, including being President for 2007-08. He has also served as Chair of the Criminal Justice Section of the State Bar of Texas in 2009-10, and President of the Dallas Criminal Defense Lawyers Association in 1994-95. He is currently serving on the Criminal Law Advisory Commission of the Texas Board of legal Specialization. He argued before the United States Supreme Court in Dixon v. United States in 2006.

Expert Witnesses and Challenges to Expert Testimony Pt. 2

This is a continuation of Expert Witnesses and Challenges to Expert Testimony Pt. 1 in the December 2020 issue of Voice for the Defense.

III.  Texas Rule of Evidence 703
Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed.  If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

A. Basis of Expert Opinion

Rule 703 describes the type of information upon which an expert may base an opinion. “An expert’s opinion can be based on (1) facts the expert has personally observed, (2) facts reviewed by the expert, (3) facts the expert has been made aware of, (4) facts presented to the expert at a trial or hearing in the form of hypothetical questions, and (5) facts that are inadmissible as evidence.”  Brown and Rondon, Texas Rules of Evidence Handbook, Rule 703, p.737 (2019); Hart v. Van Zandt, 399 S.W.2d 791, 798 (Tex. 1965) (doctor should have been allowed to give an opinion on the cause of patient’s condition based on a personal examination, patient’s history and correspondence with other doctors); Williams v. Illinois, 567 U.S. 50, 67, 69 (2012) (plurality op.) (“It has long been accepted that an expert witness may voice an opinion based on facts concerning the events at issue in a particular case, even if the expert lacks first-hand knowledge of those facts. . . .  Modern rules of evidence continue to permit experts to express opinions based on facts about which they lack personal knowledge, but these rules dispense with the need for hypothetical questions.  [A]n expert may base an opinion on facts that are ‘made known to the expert at or before the hearing,’”); Duckett v. State, 797 S.W.2d 906, 920 n.17 (Tex. Crim. App. 1990) disapproved on other grounds, Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (“Rule 703 provides that the facts or information upon which an expert witness bases an opinion or inference includes that which he or she perceives or is made known to the expert at or before the hearing.”). The facts and data underlying an expert opinion need not be admissible themselves for the opinion to be admissible, as long as experts in the particular field would reasonable rely on those kinds of otherwise inadmissible facts or data in forming an opinion. In the Commitment of Regalado, 598 S.W.3d 736, 741 (Tex. App.-Amarillo 2020).

“Physicians routinely rely on a variety of sources, including patients and family members, medical records kept by others, conversations with the nurses and technicians, and x-rays, CT scans, and other test results. If physicians make treatment decisions based on such data, the argument goes, the rules of evidence should not preclude them merely from offering an opinion based on the same data. Their training and experience enable them to gauge the reliability of the hearsay data that they routinely rely on in their professional lives. Physicians also routinely consult with specialists and other physicians and rely on their opinions. Rule 703 allows an expert to consider other expert’s opinions in drawing their own opinion.”  Goode and Wellborn, Texas Practice, Guide To The Texas Rules Of Evidence, Vol. 2, 4th Ed. 2016, § 703.3, p.113; Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 352 (Tex. 2015) (“No rule prohibits experts from using other experts opinions to formulate new opinions based on their own expertise.  In fact, Tex. R. Evid. 703, and our prior cases contemplate exactly such an arrangement.”); Anderson v. Gonzales, 315 S.W.3d 582, 587 (Tex. App. – Eastland 2010, no pet.) (“An expert may rely on the opinions of other individuals that have rendered reports or diagnoses.”); Roberts v. Williams, 111 S.W.3d 113, 121-122 (Tex. 2003) (pediatrician based opinion in part on pediatric neurologist); Stam v. Mack, 984 S.W.2d 747, 749-750 (Tex. App. – Texarkana 1999, no pet.) (trial court did not err in allowing expert pediatrician to base opinion in part on expert radiologist’s opinion); Associated Indem. Corp. v. Dixon, 632 S.W.2d 833, 835-836 (Tex. App. – Dallas 1982, writ ref’d n.r.e.) (“Medical experts may rely on ‘examinations, tests and diagnosis by other doctors’”.). “Rule 703 goes beyond simply eliminating the need to introduce otherwise admissible data; expert opinion may be predicated solely on inadmissible hearsay.”  Goode and Wellborn, supra at 114; Wood v. State, 299 S.W.3d 200, 212 (Tex. App. – Austin 2009, pet. ref’d). Opinions based on evidence already admitted are admissible. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 563 (Tex. 1995).

B. Hypothetical Questions

An expert may base his or her opinion on facts presented through hypothetical questions.  To be proper under Rule 703, the hypothetical questions must be based on facts and evidence, facts within the personal knowledge of the witness, or facts assumed from common or judicial knowledge.  Gonzales v. State, 4 S.W.3d 406, 417-418 (Tex. App.–Waco 1999, no pet.). The rule does not require the expert to have personal knowledge of the facts contained in the hypothetical question.  Matson v. State, 819 S.W.2d 839, 851 (Tex. Crim. App. 1991); Moore v. State, 836 S.W.2d 255, 259 (Tex. App.–Texarkana 1992, pet. ref’d). The questions may assume facts per the questioner’s theory of the case as long as the assumed facts can be inferred from facts and evidence.  Barefoot v. State, 596 S.W.2d 875, 887-888 (Tex. Crim. App. 1980).  The questions do not have to assume all of the facts presented in evidence. The questioner can limit the facts the experts should consider on direct examination, anticipating that the opposing party will vary the hypothetical on cross-examination.

However, if an omission makes the hypothetical questions misleading, the question is improper. Harris v. Smith, 372 F.2d 806, 812 (8th Cir. 1967).  Hypothetical questions may include facts not yet admitted into evidence as long as the proponent of the expert testimony eventually introduces those facts into evidence.  If testimony supporting the hypothetical is never offered, a court has the discretion to strike the expert’s opinion and to instruct the jury not to consider the testimony in its deliberations. If an instruction to the jury appears insufficient to cure the harm the trial judge may declare a mistrial. Brown and Rondon, Texas Rules of Evidence Handbook 2019, p. 740. The use of hypothetical questions has been subjected to criticism as being clumsy, artificial, and time-consuming. Due to the change in modern evidentiary rules that allow an expert to base his opinion on a broader range of information, the use of the hypothetical question is now generally unnecessary. Williams v. Illinois, 567 U.S.50 69 (2012) (plurality op.). 

C. Confrontation Issues

Rule 703 allows expert witnesses to base opinions on inadmissible facts, but the rules of evidence are subject to constitutional provisions.  Crawford v. Washington, 541 U.S.36, 61 (2004); Wood v. State, 299 S.W.3d 200, 212 (Tex. App.–Austin 2009, pet. ref’d) (“[E]vidence rules cannot trump the Sixth Amendment”). Therefore, Confrontation Clause issues can arise in criminal cases where an expert relies on hearsay information in forming an opinion. There is not a problem if the expert is available for cross-examination and the underlying information is not used to prove the truth of the matter asserted but instead is used only to explain the basis of the expert’s opinion. Martinez v. State, 311 S.W.3d 104, 112 (Tex. App.–Amarillo 2010, pet. ref’d) (Confrontation Clause not violated merely because an expert bases an opinion on inadmissible testimonial hearsay; testifying expert’s opinion is not hearsay and testifying expert is available for cross-examination).

However, if the expert conveys the substance of the testimonial out of court hearsay statements to the jury, the defendant has not had an opportunity to cross-examine the person who made the statements and the proponent of the expert testimony does not establish the declarant’s availability, the defendant’s right to confrontation is violated.  Crawford v. Washington, 541 U.S. at 68; United States v. Mejia, 545 F.3d 179, 198-199 (2nd Cir. 2008) (expert’s reliance on the repetition of out of court testimonial statements by individuals during the course of custodial interrogations violated the defendant’s rights under the Confrontation Clause). Also, out of court testimonial statements cannot be communicated to the jury in the guise of an expert opinion.  United States v. Lombardozzi, 491 F.3d 61, 72 (2nd Cir. 2007); United States v. Flores-de-Jesus, 569 F.3d 8, 19-20 (1st Cir. 2009). Testimonial statements do not have to be spoken communication.

In Melendez-Diaz v. Massachusetts, the Supreme Court held that affidavits by chemists declaring that the evidence seized was cocaine were testimonial statements under Crawford, admission of the certificates without the chemists’ testimony violated the defendant’s confrontation rights because the certificates were functionally identical to live, in-court testimony, and there was no showing that the analysts were unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine them. Melendez-Diaz v. Massachusetts, 557 U.S. at 310-311.  However, when an expert bases an opinion on inadmissible evidence that does not reveal the contents of the evidence in his testimony, there is generally no violation of the Confrontation Clause.  Williams v. Illinois, 367 U.S. at 78, 79.

IV. Texas Rule of Evidence 704
Opinion on An Ultimate Issue

An opinion is not objectionable just because it embraces an ultimate issue

Rule 704 allows witnesses to express opinions on ultimate issues to be decided by the trier of fact.  It is a rejection of the common-law rule that no witness could testify to an ultimate issue in a trial for fear the witness might invade the province of the jury.  The current rule focuses on whether an opinion is otherwise admissible or is objectionable under another evidentiary rule.  Both lay and expert witnesses may give an opinion about an ultimate fact or issue under Rule 704 as long as the lay opinion is helpful under Rule 701 or the expert’s opinion will assist the trier of fact under Rule 702.  Helena Chem Co. v. Wilkins, 477 S.W.3d 486, 499 (Tex. 2001); Blumenstetter v. State, 135 S.W.3d 234, 248-249 (Tex. App.–Texarkana 2004, no pet.) (expert testimony that defendant was intoxicated based on his breath-test results and retrograde extrapolation should have been excluded as a scientifically unreliable opinion on an ultimate issue under Rule 704); Gonzales v. State, 4 S.W.3d 406, 417-418 (Tex. App.–Waco 1999, no pet.) (expert testimony about Child Sexual Abuse Accommodation Syndrome and typical behavior patterns of victims aided jury and did not decide ultimate fact issues); Russell v. Ramirez, 949 S.W.2d 480, 489 (Tex. App.– Houston [14th Dist.] 1997, no writ) (under Rule 704, accident reconstruction witness could testify that defendant driver’s failure to drive at a legal speed limit was a “cause in fact” of the passenger’s death). 

Opinions that do no more than tell the jury what verdict to return, whether a criminal defendant is guilty or innocent, what punishment to assess, or what witnesses to believe, are mere personal conclusions and are not helpful to a jury and therefore not admissible.  Kirkpatrick v. State, 747 S.W.2d 833, 836 (Tex. App.–Dallas 1987, pet. ref’d) (while Rule 704 authorizes opinion testimony on an ultimate issue, the opinion must be otherwise admissible and the opinion of one witness as to the veracity of another’s testimony is not otherwise admissible); Taylor v. State, 774 S.W.2d 31, 34 (Tex. App.–Houston [14th Dist.] 1989, pet. ref’d) (error to permit police officer to testify that defendant’s statement to him was not credible; witness could not give an opinion about the truth or falsity of other testimony, but error was harmless because the “jury could not logically have reached a different conclusion”); Ayala v. State, 352 S.W.2d 955, 956 (Tex. Crim. App. 1962) (counsel cannot ask a witness’ opinion on whether another witness’ testimony is true or false, but the defendant was not harmed when State cross-examined him on whether police officers were incorrect in their testimony about his intoxicated demeanor); Smith v. State, 737 S.W.2d 910, 915-916 (Tex. App.–Ft. Worth 1987, pet. ref’d) (defendant could not ask a doctor his opinion about whether a child “had been raped or not” because the response would have amounted to an inadmissible comment on the child’s credibility).

A witness cannot give an opinion on a pure question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact.  Williams v. State, 531 S.W.3d 902, 921 (Tex. App.– Houston [14th Dist.] 2017, pet. granted 3/21/18).  An expert may not instruct the jury on the requirements of the law or express an opinion on the meaning or content of the law and the jurisdiction. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 752-753. Courts have permitted expert witnesses to offer opinions on mixed questions of law and fact in which “a standard or measure has been fixed by law and the question is whether the person or conduct measures up to that standard.” Rule 704 does not permit any witness to testify that a particular legal standard has or has not been met when the standard is expressed as a legal term that would be unclear to those outside the legal profession. Thus, for the opinion to be admissible, there must be a showing that the witness knows the proper legal definition in question. If the legal term carries an ordinary meaning that is understood by or can be made clear to the witness, Rule 704 does not bar opinion testimony on that matter.  If the term is one that the witness does not normally use or that does not carry an ordinary meaning, the witness may not use that term in testimony unless the term has been defined and clarified by the judge.  Id. at pp. 753-754.

V. Texas Rule of Evidence 705
Disclosing the Underlying Facts or Data and Examining an Expert About Them

(a)  Stating an Opinion Without Disclosing the Underlying Facts or Data Unless the court orders otherwise, an expert may state an opinion–and give the reasons for it–without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

(b)  Voir Dire Examination of an Expert About the Underlying Facts or Data. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may–or in a criminal case must–be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.

(c)  Admissibility of Opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.

(d)   When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing the Jury. If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect.  If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly.

The procedural provisions of Rule 705 serve three purposes: (1) to ensure that the judge and opposing party have an opportunity to discover whether the proffered expertise is based on sufficiently reliable underlying facts or data to be admissible, (2) to ensure that inadmissible facts or data reasonably relied on by an expert and disclosed to the jury are not misused as substantive evidence by the fact-finder, and (3) to provide the trial judge with the discretion to prevent disclosure of inadmissible facts or data that, although supportive of the expert’s opinion, that are unfairly prejudicial. Rule 705 permits a broader range of expert witness testimony than the common law did and allows greater flexibility in how the expert may testify. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 755-756.

Rule 705(a) permits an expert to give an opinion without first testifying to the underlying facts or data.  Rule 705(b) requires the trial judge to give the opposing party an opportunity, if the party so requests, to voir dire the expert outside the jury’s presence on the facts and data underlying their opinions. In civil cases, the trial court has the discretion to provide such an opportunity. In criminal cases, it is mandatory. Rule 705(c) makes the expert’s opinion inadmissible if the court finds that the expert does not have a sufficient basis for their opinion.  Rule 705(d) provides that, if the probative value of the inadmissible facts or data on which the expert is reasonably relying in helping the jury to evaluate the opinion is outweighed by their prejudicial effects, courts must exclude these underlying facts or data. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992) (court must determine whether disclosure of data would be “more prejudicial than probative”); Kramer v. State, 818 S.W.2d 923, 925 (Tex. App.–Houston [14th Dist.] 1991, pet. ref’d) (evidence may be admitted if “the probative value outweighs the probability that it will be improperly used by the jury”); Speering v. State, 763 S.W.2d 801, 807 (Tex. App.–Texarkana 1988) (court must not permit disclosure of underlying evidence to the jury if evidence’s value in supporting expert’s opinion is outweighed by the danger that it will be used for an improper purpose), reformed on other grounds, 797 S.W.2d 36 (Tex. Crim. App. 1990).  Rule 705(d) is slanted more toward exclusion than is Rule 403, where the probative value must be “substantially” outweighed by a counterfactor before the relative evidence may be excluded. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 756-757.

A. Rule 705(a). Stating An Opinion Without Disclosing Underlying Facts or Data

“Rule 705(a) permits the expert to give an opinion at the outset of the explanatory testimony without first testifying to the underlying facts or data. In fact, the rule permits the witness to be qualified as an expert and then give a one-sentence opinion under direct examination.”  Brown and Rondon, supra at 757. A primary goal of Rule 705 was to eliminate the need for the cumbersome hypothetical question that had historically been the only mode for an expert with no personal knowledge of the facts to express an opinion. While the rule still allows hypothetical questions, it does not require them. The trial judge retains the discretion to require advance disclosure of facts and data that the expert used in forming the opinion.  Brown and Rondon, supra at 758. Because an expert who has no personal knowledge of the specific facts of a case, is not limited under Rule 703 to giving an opinion in response to a hypothetical question, they can base an opinion solely on inadmissible and unadmitted evidence. The rule also eliminates the need to inform the jury, before the expert gives the opinion, of all the facts taken into account in forming the opinion.  Joiner v. State, 825 S.W.2d 701, 707-708 (Tex. Crim. App. 1992); Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991). If the facts and data on which the opinion is based are not disclosed by the proponent of the evidence, ordinarily the opponent will request such disclosure on cross-examination. Nenno v. State, 970 S.W.2d 549, 564 (Tex. Crim. App. 1998); Moranza v. State, 913 S.W.2d 718, 727-728 (Tex. App.– Waco 1995, pet. ref’d) (trial court did not err in allowing State to impeach expert witness with hearsay statements included in another expert’s report because witness relied on a summary of the report to form his opinions). However, while both the direct examiner and the cross-examiner normally have great discretion to explore the factual basis for an expert’s opinion, some evidence upon which the expert relied in rendering his opinion may be inadmissible before the jury because of the danger the jury may improperly use those facts as substantive evidence which is addressed by Rule 705(b).  Brown and Rondon, supra at 760-761.

B. Rule 705(b). Voir Dire Examination of an Expert

In criminal cases, Rule 705(b) requires a voir dire examination outside the jury’s presence, upon request of the opponent, to determine the underlying facts or data of the expert’s opinion. Alba v. State, 905 S.W.2d 561 (Tex. Crim. App. 1995), cert. denied 516 U.S. 1077; Brook v. Brook, 865 S.W.2d 166 (Tex. App.–Corpus Christie 1993); Harris v. State, 133 S.W.3d 760 (Tex. App.–Texarkana 2004), pet. ref’d, habeas corpus denied, denial of post-conviction relief affirmed; Goss v. State, 826 S.W.2d 162 (Tex. Crim. App. 1992), cert. denied 509 U.S. 922 (because of mandatory nature of rule permitting defendant to conduct voir dire examination of State’s expert, the trial judge’s denial of timely and proper motion for such a hearing constitutes error). The voir dire examination under Rule 705(b) is supposed to be directed to the underlying facts or data upon which the expert’s opinion is based. Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995), cert. denied 516 U.S. 1077. It has been said that the purpose of the voir dire examination is two-fold: (1) it allows the defendant to determine the foundation of the expert’s opinion without the fear of eliciting inadmissible evidence in the jury’s presence, and (2) it may supply the defendant with sufficient ammunition to make a timely objection to the expert’s testimony on the ground that it lacks a sufficient basis for admissibility.  Shaw v. State, 329 S.W.3d 645 (Tex. App.– Houston [14th Dist.] 2010).

While the Rule 705(b) hearing is ostensibly for the opponent of the evidence to determine and explore the underlying facts and data that supports the expert’s opinion, it should be a vehicle by which the opponent may challenge the admissibility of the expert’s testimony by challenging the qualifications of the expert and the relevance and reliability of the expert testimony. The opponent should challenge the admissibility of the expert testimony and include all applicable legal grounds and should make the challenge outside the presence of the jury. However, an opponent’s objection to an expert’s qualifications is separate from a Rule 705(b) hearing, which is supposed to only explore the underlying facts or data of an expert’s opinion.  Jenkins v. State, 912 S.W.2d 783, 814 (Tex. Crim. App. 1995) (op. on reh’g) (it was harmless to deny Rule 705(b) hearing outside the jury’s presence because the defendant already had a copy of the witness’ report setting out the facts and data and the expert did not testify to damaging and inadmissible material). The opponent of expert testimony should seek to have the Rule 705 hearing well before trial. The opponent of the evidence should use such a hearing as an opportunity to subpoena the records of the expert to the hearing and all the expert’s underlying documentation in the case. Also, the opponent could serve a subpoena on the expert seeking production of the authorities, articles and publications relied on by the expert in rendering his opinion in this particular case. The opponent of the evidence should request that he be allowed to review all of the expert’s authorities before the Rule 705 hearing, or at least before the expert’s testimony at trial. The party seeking a hearing outside the presence of the jury should state all the purposes for which the opponent wants to examine the expert witness. Jenkins v. State, supra.

C. Rule 705(c). Admissibility of Opinion

Rule 705(c) makes the expert’s opinions inadmissible if the trial court finds that the expert does not have a sufficient factual basis for the opinion. While the inquiry under the Daubert/Kelly/Robinson line of cases focuses on the reliability and relevance of an expert’s scientific theory and methodology without regard for the conclusions, Rule 705(c) focuses on the specific factual data that supports the expert’s conclusions.  The issue here is not whether experts can reach reliable results on a certain issue, but whether the facts that the expert in the present case relied on were adequate to support a conclusion.”  Brown and Rondon, supra at p.763; Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017); Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832-833 & n.11 (Tex. 2014); In the Commitment of Regaldo, 598 S.W.3d 736, 741 (Tex. App.-Amarillo 2020).

In Flowers v. State, 2002 WL 31247093 (Tex. App.–Dallas, pet. ref’d), the admission of testimony from sexual assault nurse examiner that in 80% to 85% of cases of sexual assault on children the physical examination of the victims is completely normal, was not an abuse of discretion in an aggravated sexual assault case. The nurse testified to the authors of some of the articles she relied upon in her testimony and there was no evidence in the record that the expert failed to provide the titles of the articles she relied on to defense counsel as she promised.

In Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006), that expert testimony from a certified legal nurse consultant that no rape occurred because no DNA evidence or physical evidence linked the defendant to the alleged rape, was inadmissible in a sexual assault trial. The court of appeals failed to conduct an adequate inquiry into the consultant’s qualifications, evaluate the reliability of the testimony and give proper deference to the trial judge’s ruling excluding the testimony, thus the judgment of the court of appeals was vacated and the case remanded. In Escamilla v. State, 334 S.W.3d 263 (Tex. App.–San Antonio 2010, pet. ref’d), the trial court erred when it allowed a SANE to testify that the quick dilation of the victim’s anus was consistent with sexual abuse because the testimony was not reliable as the witness could not elaborate to the extent to which the underlying scientific theory and technique were accepted as valid in the relevant scientific community, she made only vague references to the literature supporting her underlying scientific theory and technique, and she did not appear to understand the concept of the potential rate of error of the technique.

In Teczar v. State, 2008 WL 4602547, 2011 WL 1743756 (Tex. App.– Eastland, pet. ref’d), a clergy abuse victim who operated counseling services to clergy abuse victims, was not qualified to testify as an expert on the psychology and behavior of those who would commit child sex abuse because the witness had a lack of actual institutional instruction in the field, other than five-weekend seminars, and the witness’ testimony was not supported by evidence of any scientific theory, soft or otherwise. The witness was not qualified as an expert to advance conclusions, and the witness’s testimony about the defendant’s activities with him was remote in time and was character conformity evidence. 

D. Rule 705(d). When Otherwise Inadmissible Underlying Facts or Data May be Disclosed

“Rule 705(d) provides that the inadmissible facts or data on which the expert is reasonably relying will be excluded if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. The balance is between the probative value of the admissible data to help the jury evaluate the reasonableness of the expert’s opinion and either, (1) the unfairly prejudicial effect of this inadmissible material on the opposing party or, (2) the likelihood that the jury may use this inadmissible data as substantive evidence for some other purpose. If the otherwise inadmissible facts and data supporting the expert’s opinion are disclosed to the jury, the opponent, upon a timely request, is entitled to an instruction restricting the jury’s consideration of that inadmissible data solely to its permissible explanatory purpose.”  Brown and Rondon, supra at p.765; Depena v. State, 148 S.W.3d 461, 470 n.10 (Tex. App.– Corpus Christi 2004, no pet.). The right to this limiting instruction would apply only when the underlying facts or data were otherwise inadmissible.

Trial courts may permit experts to give opinions, but not allow them to testify to all of the admissible facts that led to their conclusions.  Rule 705 does not give the proponent of the expert testimony the right to disclose all the facts and underlying data. First Southwest Lloyd’s Insurance Company v. MacDowell, 769 S.W.2d 954, 958 (Tex. App.–Texarkana 1989, writ denied). Thus, the trial judge has the discretion to limit the admission of such underlying inadmissible data under Rule 403 if it is unduly prejudicial, confusing, or misleading. Id. at 958.  An expert witness cannot be used as a conduit to put the party’s self-serving hearsay version of the facts before the jury. Davis v. State, 268 S.W.3d 683, 701-702 (Tex. App.–Ft. Worth 2008, pet. ref’d) (the trial court properly prohibited the defendant from asking the detective, as an expert witness, about statements that defendant had made to the detective; the defendant admitted that the value of the statements was not as an explanation or support for the detective’s expert opinion, but instead as substantive evidence to advance his own self-defense claim, a purpose that Rule 705(d) intends to prevent).

In Walck v. State, 943 S.W.2d 544, 545 (Tex. App.–Eastland 1997, pet. ref’d), the trial court did not err in barring the defendant’s expert from relating, on direct examination, the content of the interview between the defendant and the expert. The defendant claimed that under Rule 803(4), his expert could relate inadmissible hearsay on the defendant’s state of mind at the time of the offense because it was imperative to the expert’s opinion. The trial and the appellate court disagreed with that contention, concluding that the evidence was not admissible under Rule 803(4) because the expert did not examine the defendant for purposes of medical diagnosis or treatment, but instead conducted the evaluation to formulate an opinion about “sudden passion.” The court of appeals reasoned that the trial judge had the discretion to exclude the defendant’s self-serving out of court statements under Rule 705(d) because the danger that they would be used for an improper purpose outweighed any probative value they might have had in explaining the expert’s opinion. Id. at 545-546. While generally, an expert may testify to the facts underlying his or her opinion, if the underlying facts or data would otherwise be inadmissible, they may not be disclosed if their probative value is outweighed by their prejudicial effect. In the Commitment of Regalado, 598 S.W.3d 736, 742 (Tex. App.-Amarillo 2020). A limiting instruction may mitigate the prejudice of admitting testimony regarding the facts upon which the expert relied in admitting his or her opinion.  Such instruction should instruct the jury to not consider the testimony for its truth, but only as the basis of the opinion of the expert.  In the Commitment of Lares, 2020 WL 2441368, *5 (Tex. App.-San Antonio).

Rule 705(d)’s balancing test does not need to be conducted on the record. Davis v. State, 268 S.W.3d 683, 701 (Tex. App.–Ft. Worth 2008, pet. ref’d). Unlike under Rule 403, the unfairly prejudicial effect does not need to substantially outweigh the probative value before the underlying facts or data can be excluded. A preponderance of the evidence is sufficient. The balancing provision of Rule 705(d) is mandatory so that a trial judge must, upon a timely request, exclude any references to the inadmissible material if he determines that the prejudicial effect outweighs the probative value. Id.

E. Conclusion

Rule 705 substantially relies on cross-examination by the opponent to determine whether the expert testimony is admissible and to provide the trier of fact with all the necessary information needed to evaluate the testimony. In a criminal case, an opposing party (most often a defendant) is entitled to the Rule 705 hearing. So, the defense should seek a Rule 705 hearing since it is required that the court grant the hearing upon request.

Expert Witnesses and Challenges to Expert Testimony Pt. 1

The admission of expert testimony is generally governed by one statute and four rules.  Discovery of expert witnesses prior to trial is governed by Article 39.14(b), C.C.P.  Texas Rule of Evidence 702 sets forth the standard that the proponent of the evidence must meet to have expert testimony admitted before the trier of fact. Texas Rule of Evidence 703 sets forth the kind of information that an expert may rely upon in giving opinion testimony. Texas Rule of Evidence 704 provides that an opinion is not objectionable just because it embraces an ultimate issue.  Texas Rule of Evidence 705 sets forth the rules that govern the testimony of an expert in trial.  Each of the foregoing is addressed herein. 

In part one of this two-part series, Article 39.14, C.C.P. and Texas Rule of Evidence 702 will be addressed. In part two of this series, Texas Rules of Evidence 703, 704, and 705 will be addressed.

I. Article 39.14(b), C.C.P.
Discovery Relating to Experts

(b)  On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.  Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin.  On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.

Discovery relating to experts in criminal trials is governed by Article 39.14(b), C.C.P. It is a unique statute because it is the only provision that requires the defense to provide discovery to the State in a criminal prosecution. Instead of using terms such as “State” or “defense,” the statute uses the terms “party’s request,” the “requesting party,” and the “disclosing party.” A distinction is not made as to whether the requesting or disclosing party is the State or the defense.

The process required by the statute begins when a party makes a request not later than the 30th day before the date the trial is scheduled to begin. While the statute does not say what the requesting party has to request, it provides that the party that receives the request “shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Tex. R. Evid.” Rule 39.14(b), C.C.P. Article 39.14(b) requires only the disclosure of the names and addresses of persons that the party “may use” at trial to present evidence under Rules 702, 703, and 705, Tex. R. Evid. In re Stormer, 2007 WL 1783853, *2 (Tex. Crim. App. 2007); Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006).

The Court of Criminal Appeals has recognized the distinction between a “consulting expert” and “testifying expert”, which is well established in civil law. Pope v. State, supra at 359-360. “Thus, once a party designates a particular person as an expert that he may use as a witness at trial, that person is no longer a “consulting” expert, he is a “testifying” expert, and the opposing party, whether the State or the defendant, may seek further information from or about him for use at trial.” Id. at 360. The best approach for defense counsel is to initially hire an expert as a “consulting” expert and then decide later whether the expert will testify. However, if the State makes the request for disclosure of the name and address of any expert the defense may use at trial, defense counsel must make the decision as to whether the expert is going to be a “testifying” expert, and if so, make the disclosure to the State, or he will not be allowed to testify over the State’s objection.

“In order to trigger the requirements of Article 39.14, a timely request that designates the items requested to be produced must be made to the State from the defendant.  Davy v. State, 525 S.W.3d 745, 750 (Tex. App.– Amarillo 2017, pet. ref’d); Glover v. State, 496 S.W.3d 812, 815 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d).  Absent such a request the State’s affirmative duty to disclose the evidence extends only to exculpatory information.”  Hinojosa v. State, 554 S.W.3d 795, 797 (Tex. App. –Waco 2018).  “Article 39.14(b) is not ‘self-executing.’ Tamez v. State, 205 S.W.3d 32, 39 (Tex. App.–Tyler 2006, no pet.); . . . . . .  Rather,  Article 39.14(b) ‘allows [a] trial court to [order] the State to list [its] expert witnesses upon a request,’ but, ‘[w]ithout such an order, [any] complaint [is] not . . . . preserved.’  Tamez v. State, 205 S.W.3d 39-40; . . . . . .”  Harris v. State, 287 S.W.3d 785, 792 (Tex. App.–Houston [1st Dist.] 2009). In Harris, the trial court overruled a defense objection to an expert witness that was not listed on the State’s notice, expressly noting that Article 39.14(b) requires a court’s ruling on a defendant’s motion to disclose expert witnesses and that the trial court had not ruled on the appellant’s motion.  In particular, the appellant in Harris complained he had not been given the 20 day notice required by Article 39.14.  The court held that “the simple fact remains that, because he never obtained an order on his motion, appellant was not entitled to the State’s disclosure of expert witnesses not later than the 20th day before the trial began pursuant to article 39.14.”  Harris v. State, supra at 793.  Accordingly, the court of appeals held that the trial court did not err in allowing the expert witness to testify.  Id.  The Harris case was tried several years prior to the passage of the current version of Article 39.14(b), which has since been amended to be more particular.

It is clear from the language of the statute that a party is not entitled to any discovery regarding experts unless the party has first made a request, and that request was made not later than the 30th day before the date the jury selection is scheduled to begin or the evidence is scheduled to begin in a trial without a jury. While the current statute only refers to requests and disclosures, the foregoing cases would indicate that the requesting party should also file a motion and get the trial court to order production of the name and address of potential expert witnesses by a date certain or risk a court finding that the party waived any complaint it may have about a party not providing the required information. See Kirksey v. State, 132 S.W.3d 49 (Tex. App.–Beaumont 2004).  Another reason to file a motion is because a court may order an earlier time at which the other party must make a disclosure to the requesting party.  Art. 39.14(b), C.C.P.

In Branum v. State, 535 S.W.3d 217 (Tex. App.–Ft. Worth 2017), the State added an expert witness to its witness disclosure less than 20 days before the trial began.  The defendant objected to the late designation before the witness testified, but the court overruled the objection and allowed the witness to testify.  In considering whether the trial court abused its discretion in allowing the expert to testify, the appellate court considered whether there was any showing of bad faith on the part of the prosecutor in the late designation and whether the defendant could reasonably have anticipated that the witness would testify although his name was not previously disclosed.  The court of appeals found there was no showing that the State failed to disclose the witness through bad faith, and instead found that the State notified the defense as soon as it found that the previously designated witness could not be present for trial, and identified its replacement witness. The court further found that the defendant could have reasonably anticipated that a representative from the medical examiner’s office would testify to the cause of death of the decedent. The court also noted that the defendant failed to request a continuance based on the late designation therefore rendering any error on the part of the trial court harmless.  Id. at 226-227. The court also found that the aforesaid factors caused them to conclude that the trial court did not abuse its discretion by allowing the late designated expert to testify over the defense’s objection.

In White v. State, 2003 WL 865351 (Tex. App.–Ft. Worth), the appellant contended the trial court abused its discretion in permitting a State’s expert witness to testify because the State did not give timely notice of its intent to call her even though such notice was timely requested by defense counsel. The defendant had filed a request to the State seeking written notice of its intention to use evidence and statements. Unfortunately, the defendant failed to secure an order pursuant to the version of Article 39.14(b) that was in effect at the time. The appellate court found that the trial court did not abuse its discretion in allowing the witness to testify considering that there was not a showing of bad faith on the part of the prosecutor in failing to disclose the witness’s name before trial, and that the defendant could reasonably have anticipated that the witness would testify even though his or her name was not included on the list, citing Nobles v. State, 843 S.W.2d 503, 514-515 (Tex. Crim. App. 1992).

In Strawn v. State, 2003 WL 21235537 (Tex. App.–Ft. Worth), prior to trial, the State filed a motion to compel the designation of any expert that appellant might call at trial. The trial court granted the motion.  During the punishment phase of the trial, appellant sought to introduce expert testimony. The State objected to the proposed testimony because appellant had not disclosed that the expert would testify at trial. The court granted the State’s motion and excluded the testimony of the expert.  Noting that no Texas court had, at that time, published an opinion applying Article 39.14(b) to a defendant’s failure to timely disclose the identity of a testifying expert, and because Article 39.14(b) does not specify what sanctions are required or permitted should a party fail to comply with the trial court’s discovery order, the court looked at cases discussing sanctions permitted to remedy the State’s failure to timely disclose expert witnesses for guidance.  Id. at *2.  The court noted that appellate review usually encompassed two factors: (1) whether the party’s action in failing to timely disclose the expert witness constituted bad faith; and (2) whether the opposing party (the State in this case) could have reasonably anticipated that the undisclosed witness would testify, again citing Nobles v. State, supra.  The appellate court found there was no evidence in the record demonstrating that appellant’s failure to disclose the expert was in bad faith. However, the court found that the State was not on notice that the defendant intended to call the expert to testify, especially in light of the fact that a specific order was in place requiring pretrial disclosure of experts. Id. at *3. The court of appeals also noted that the expert testimony would not have been helpful to the jury in determining the appropriate sentence in that case and so held that under the specific facts of this case the defendant should not be permitted to avoid the requirements of an order entered pursuant to Article 39.14(b) by stating the expert is a rebuttal expert without demonstrating in some manner that the expert testimony was relevant to issues at sentencing. The court held that the trial court did not err in granting the State’s objections to the expert testimony. 

In Medrano v. State, 2008 WL 5050076 (Tex. Crim. App. 2008), a death penalty case, the trial court ordered the State to provide the name, address and curriculum vitae of its intended expert witnesses to defense counsel no later than July 29, 2004. The State filed its notice of possible expert witnesses on July 27, 2005, which included the name and address of witness Alvarez. The State did not provide defense counsel with Alvarez’s curriculum vitae until August 19, 2005. The guilt phase of the trial had begun on August 15, 2005. On Tuesday, August 23, 2005, the trial court held a Rule 702 hearing outside the presence of the jury on the admissibility of the testimony of Alvarez.  Defense counsel objected at the hearing that the State did not timely provide the curriculum vitae and therefore was not in compliance with the trial court’s order to provide the information at least 30 days prior to trial. The prosecutor contended that he had given the defense copies of the curriculum vitae that he had, the week before. The State contended: “It may have been an oversight, your honor, but they were provided a copy of that.” Id. at *15.  Defense counsel argued he had been given the information about four days before, which did not give him the opportunity to investigate the particular individual. The prosecutor argued that the witness had testified in three prior trials in that county, two of those cases involving the same exact murder that was the subject of this trial. The State contended that transcripts of his testimony have been offered and have been available. Defense counsel argued that the court had ordered the State to provide the curriculum vitae to them 30 days prior to trial and the State did not comply. The witness had been on a list that was provided to the defense the previous week.  The court overruled defense counsel’s objection. On appeal, the Court of Criminal Appeals determined the State only partially complied with the trial court’s order in a timely fashion by supplying only the expert’s name. However, the Court of Criminal Appeals noted that the defense did not contend the State acted in bad faith and there was not an indication in the record of bad faith. The Court of Criminal Appeals found that appellant could reasonably have anticipated Alvarez’s testimony, given that his name appeared on the State’s notice of possible witnesses three weeks prior to trial and he had previously testified in the trials of two co-conspirators. The Court of Criminal Appeals held that the trial court did not abuse its discretion in permitting Alvarez to testify. Medrano v. State, supra at *15.

In Osbourn v. State, 59 S.W.3d 809 (Tex. App.–Austin 2001), appellant complained of the trial court allowing an officer to testify under Rule 701, that a substance was marijuana. The witness was not listed as an expert witness by the State even though the State had been ordered to list its expert witnesses. When reviewing the State’s failure to list the witness, the court found that “appellate review usually encompasses two factors: (1) whether the State’s action constituted bad faith, and (2) whether the defendant could have reasonably anticipated that the undisclosed witness would testify.” Id. at 816. The court of appeals found nothing in the record that suggested the State had acted in bad faith or willfully failed to respond to the court’s Article 39.14(b) order, that the State did not consider the witness to be an expert, appellant had not shown the State intended to deceive her and did not claim the State’s action left an inadequate time to prepare.  The court of appeals found that the offense report clearly indicated that the witness’s personal knowledge of the discovered substance was rationally based on her subjective perception and that appellant could have anticipated the witness’ testimony, most of which was included in the offense report. The court of appeals also found: “If appellant was caught off guard, she did not request the trial court to grant a recess, postponement or continuance to remedy the situation . . . . . .  Having found no bad faith and that appellant could have reasonably anticipated [the witness’s] testimony, we conclude that the trial court did not abuse its discretion even if the witness’ testimony as to the marijuana was admissible only under Rule 702.”  Id. at 816.

The lessons from the foregoing cases are: (1) to file the request and a motion; (2) get a ruling on the motion; (3) scrupulously comply with the court’s orders; (4) make sure that the testimony of the expert is relevant to an issue in your case; (5) and do not be surprised when the court does not enforce its orders against the State; but (6) be prepared to make a record that the State’s failure to disclose was done in bad faith and that the defense couldn’t have reasonably anticipated the undisclosed witness would testify.

II. Texas Rule of Evidence 702
Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

A. Predicate for Admission of Expert Testimony

While the admission of expert testimony is generally governed by Texas Rule of Evidence 702, it operates in conjunction with other evidentiary rules. “The Texas Rules of Evidence set out three separate conditions regarding admissibility of expert testimony. First, Rule 104(a) requires that ‘[p]reliminary questions concerning the qualification of a person to be a witness. . . .be determined by the court . . . . . .’” Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). Second, Rule 702 provides that if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise. Third, Rules 401 and 402 render testimony admissible only if it “tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401 and 402. “These rules require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony:

(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.’

These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.”  Vela v. State, supra at 131; Harssema v. State, 2020 WL 831614, *12 (Tex. App.-Dallas, pet ref’d); Williams v. State, 606 S.W.3d 48 (Tex. App.-Houston [1st Dist.] 2020); Brantley v. State, 2020 WL 1680050, *5-6, (Tex. App.-Houston [1st Dist.]); Murray v. State, 597 S.W,3d 964, 970-71 (Tex. App.-Austin 2020, pet. ref’d)Tex R. Evid. 702. Expert testimony must aid, but not supplant the jury’s decision. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Macias v. State, 539 S.W.3d 410, 416 (Tex. App.-Houston [1st Dist.] 2017, pet. ref’d 2018). “Expert testimony does not assist the jury if it constitutes ‘a direct opinion on the truthfulness’ of a child complainant’s allegations.” Schutz v. State supra at 59; Macias v. State, supra at 416 (“The Court of Criminal Appeals has further held that an expert who testifies that a class of persons to which the victim belongs, such as child sexual abuse complainants, is truthful is ‘essentially telling the jury that they can believe the victim in the instant case as well,’ and this is not testimony that will assist the trier of fact.”).

B. Qualifications of Expert

In Rodgers v. State, 205 S.W.3d 525, 527-528 (Tex. Crim. App. 2006), the Court of Criminal Appeals stated “that an appellate court should consider three criteria when determining whether a trial court abused its discretion in evaluating a witness’s qualifications as an expert: (1) ‘is the field of expertise complex?’; ‘how conclusive is the expert’s opinion?’; and (3) ‘how central is the area of expertise to the resolution of the loss?’.” The mere fact that a witness possesses knowledge and skill not possessed by people generally does not in and of itself mean that such expertise will assist the trier of fact regarding the issue before the court. A witness will not always qualify as an expert merely by virtue of a general background. Qualification is a two-step inquiry. First, a witness must have a sufficient background in a particular field, and second, a trial judge must then determine whether the background goes to the matter on which the witness is to give an opinion. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998) (“just as not every physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case”); Harssema v. State, 2020 WL 831614,*12 (Tex. App.-Dallas, pet ref’d). “An expert’s qualifications must be greater for more complex fields of expertise and for more conclusive and dispositive opinions.” Brantley v. State, 2020 WL 1680050, *6 (Tex. App.-Houston [1st Dist.]); Rodgers v. State, 205 S.W.3d 525, 528 (Tex.  Crim. App. 2006). However, “[n]either a particular college degree nor a particular license is required under Rule 702 for a witness to qualify as a witness.” Cura-Cruz v. Centerpoint Energy Houston Electric, LLC,552 S.W.3d 565, 573 (Tex. App.-Houston [1st Dist.] 2017, reh. en banc overruled).

In Broders, a medical malpractice case, the proponent of testimony from an emergency physician argued that merely because the witness was a medical doctor he was qualified to testify on all medical matters. Broders v. Heise, supra at 152. The Texas Supreme Court rejected that argument finding there was no validity to the notion that every licensed medical doctor should automatically be qualified to testify as an expert on every medical question. Id. The court held that “[i]f a medical degree carried automatic expert qualification in medical matters, a trial judge could no longer fulfill his gatekeeping duty and ‘ensur[e] that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Id. at 152-153; Vela v. State, supra at 132. Instead, a proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on the particular subject. Broders v. Heise, supra at 153; Vela v. State, supra at 132. “The focus, then, is on the ‘fit’ between the subject matter at issue and the expert’s familiarity therewith, and not on a comparison of the expert’s title or speciality with that of the defendant or a competing expert.” Broders v. Heise, supra at 153; Vela v. State, supra at 133. Thus, in order for an expert’s qualifications to “fit,” the expert’s background must be tailored to the specific area of expertise in which the expert desires to testify.  Vela v. State, supra at 133; Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996); Harssema v. State, supra at *12. The background that gives an expert special knowledge which qualifies him to testify and “give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things.”  Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995); Wolfe v. State, 509 S.W.3d 325, 337-338 (Tex. Crim. App. 2017) (physicians with training in pediatric medicine and experience as treating physicians are qualified to testify about the nature and cause of a child’s head trauma).

While an expert must be qualified to testify regarding the specific area of expertise involved in the case, there is no “best-expert rule.” An expert does not have to be highly qualified to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (internist who had knowledge of cardiac conditions and toxicology was qualified to give his opinion that a drug did not cause a pregnant patient’s cardiomyopathy; internist was not required to be board-certified in cardiology or toxicology to testify). The proper question in assessing a physician’s qualifications to submit an expert report “is not his area of practice, but his familiarity with the issues involved and the claim before the court.” Collini v. Pustejovsky, 280 S.W.3d 456, 464 (Tex. App. – Ft. Worth 2009, no pet.). In ExxonMobil Corp. v. Pagayon, 467 S.W.3d 36, 52-53 (Tex. App. – Houston [14th Dist.] 2015), rev’d on other grounds, 536 S.W.3d 499 (Tex. 2017), the court held that a physician from one specialty may testify about the negligence of a physician from a different specialty as long as the standard of care for the task at issue is the same across specialties. There, a physician who did not specialize in emergency-room medicine was qualified to testify about negligence of an emergency-room physician in reading a chest x-ray. “A physician does not need to be a practitioner in the same specialty as the defendant to qualify as an expert. The proper inquiry in assessing a doctor’s qualifications to submit an expert report is not his area of expertise, but his familiarity with the issues involved in the claim before the court.” Estorque v. Schafer, 302 S.W.3d 19, 25-26 (Tex. App. – Ft. Worth 2009, no pet.). In Burlington N.R. v. Harvey, 717 S.W.2d 371, 377-378 (Tex. App. – Houston [14th Dist.] 1986, writ ref’d n.r.e.), a trial court did not in err when it determined that an expert anesthesiologist had the skills and knowledge necessary to give expert testimony about urology. But see Harssema v. State, 2020 WL 831614, *12-13 (Tex. App.-Dallas, rehearing en banc ref’d, pet. ref’d), where the court of appeals affirmed the trial court’s exclusion of testimony from an anesthesiologist, who was the brother of the Defendant, about the Defendant’s neuro-degenerative disorder although the anesthesiologist’s training included diseases of the brain and brain function, he attended all of the Defendant’s medical appointments with a neurologist and had observed the Defendant on a daily basis as his caretaker, and the expert witness had researched the Defendant’s disorder. The court of appeals noted that the expert had testified on voir dire that he did not have the training and experience to discuss movement disorders in great detail and had not specified what his medical research or specialized entailed. Id., at *13.

C. Reliability and Relevance of Expert Testimony

Prior to the United States Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Texas Court of Criminal Appeals decided Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), whereby it announced and implemented a process very similar to that promulgated by the Supreme Court in Daubert. The Kelly case involved the admissibility of DNA “genetic fingerprinting” evidence. In that decision, the Court of Criminal Appeals explicitly rejected the long-standing test of “general” scientific acceptance that had been promulgated in Frye v. United States, 293 F.1013, 1014 (D.C. Cir. 1923). In rejecting the Frye test, the Kelly court stated as follows: “[f]irst, there is no textual basis in [Criminal] Rule 702 for a special admissibility standard for novel scientific evidence.  Second, it should be fairly obvious, scientific evidence may be shown reliable even though not generally accepted in the relevant scientific community.” Kelly v. State, supra at 572. Thus, the Court of Criminal Appeals held that the admissibility of novel scientific evidence was governed by Rules 702 and 403, Tex. R. Evid. However, to prevent the admission of “junk science,” the court adopted several procedural and substantive limitations. Under Kelly, a trial judge must first determine whether scientific evidence is sufficiently reliable and relevant so that it would help the jury in reaching an accurate result; and then must decide whether the probative value of the expert testimony is outweighed by one or more factors identified in Rule 403. Id. at 572.1

The Court of Criminal Appeals went on to address how the proponent of novel scientific evidence proves it to be reliable.

“As a matter of common sense, evidence derived from a scientific theory, to be considered reliable, must satisfy three criteria in any particular case: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. . . . . . .  Under Rule 104(a) and (c) and Rule 702, all three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted. Factors that could affect a trial court’s determination of reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential  rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.” 

Kelly v. State, supra at 573. The Court of Criminal Appeals went on to hold that due to the difficulty lay persons have in evaluating the reliability of scientific testimony, the burden of persuasion is clear and convincing evidence rather than simply preponderance of the evidence. “In other words, before novel scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore, relevant.” Id. at 573; Jenkins v. State, 493 S.W.3d 583, 601-02 (Tex. Crim. App. 2016); Patterson v. State, 606 S.W.3d 3 (Tex. App.-Corpus Christi-Edinburg 2020) reh. and reh. en banc denied).

After the Court of Criminal Appeals’ decision in Kelly, the Texas Supreme Court, in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), adopted the same type of analysis as is set out in Daubert and Kelly and has declared that the test in Kelly and in Robinson are functionally the same. In re M.P.A., 364 S.W.3d 277, 286 n.10 (Tex. 2012). The Court of Criminal Appeals has since extended the Daubert/Kelly/Robinson reliability analysis and criteria to all scientific evidence, not merely “novel” or experimental scientific theories. Hartman v. State, 946 S.W.2d 60, 62-63 (Tex. Crim. App. 1997); Reynolds v. State, 204 S.W.3d 386, 389-390 (Tex. Crim. App. 2006); Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).

After the Daubert, Kelly, and Robinson decisions, Texas courts had to consider whether those criteria applied to all expert testimony or was limited merely to scientific evidence. The question was addressed in Nenno v. State, 970 S.W.2d 548 (Tex. Crim. App. 1998). The court held that “[t]he general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context. We do not attempt, here, to develop a rigid distinction between ‘hard’ science and ‘soft’ sciences or non-scientific testimony,” noting that “the distinction between the various types of testimony may often be blurred.” Nenno v. State, supra at 560-561. “When addressing fields of study aside from the hard sciences, such as social sciences or  fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a ‘theory’ or ‘technique’ in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly test to areas outside of hard science. And, hard science methods of validation, such as accessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside of the hard sciences.” Nenno v. State, supra at 561; Taylor v. State, 555 S.W.3d 765, 778 (Tex. App.-Amarillo 2018, pet. ref’d 2019); Patterson v. State, 606 S.W.3d 3, 31, (Tex. App.-Corpus Christie-Edinburg 2020) (“Because a pathologist must interpret data and frequently cannot reach essential conclusions with mathematical precision, we hold that the admissibility standard from Nenno may apply to the expert testimony of a pathologist”, quoting Bess v. State, 2013 WL 827479, *26 (Tex. Crim. App.)).

D. Application of the Rules to Particular Cases

  1. Application of Nenno Standard

The Nenno standard is applicable to expert evidence in the “soft sciences” as well as non-scientific expertise.  Morris v. State, 361 S.W.3d 649, 654 (Tex. Crim. App. 2011) (“[e]xpert testimony does not have to be based upon science at all: by its terms, Rule 702, by applying to ‘technical or other specialized knowledge,’ permits even non-scientific testimony.” Police officers’ testimony on “grooming” behavior by people who sexually victimize children was admissible under Nenno as a subject matter within a legitimate field of expertise); Davis v. State, 329 S.W.3d 798, 815 (Tex. Crim. App. 2010) (trial court did not abuse its discretion in admitting expert testimony under Nenno about Satanism; expert “had conferred with other experts on the subject in various cases, and had spent years teaching the subject to college students and law-enforcement personnel,” was considered an expert by others, and had read numerous books and articles on the subject); Gallo v. State, 239 S.W.3d 757, 765-767 (Tex. Crim. App. 2007) (trial court properly analyzed and rejected expert testimony under Nenno standards because witness testified that research and the study of filicide–parents killing their children–was not extensive enough); Weatherred v. State, 975 S.W.2d 323, 323-324 (Tex. Crim. App. 1998) (admissibility of expert testimony on eyewitness identification was determined under Nenno standards for “soft sciences”); Taylor v. State, 555 S.W.3d 765, 778 (Tex. App.-Amarillo 2018, pet. ref’d 2019) (psychology is considered a soft science); Rhomer v. State, 522 S.W.3d 13, 21-22 (Tex. App.–San Antonio 2017) (police officer’s testimony on point of impact in vehicle collision was evaluated using Nenno factors because accident reconstruction was based on officer’s experience and training rather than scientific inquiry); In re J.R., 501 S.W.3d 738, 747-749 (Tex. App.–Waco 2016, pet. denied) (in case terminating parental rights, court applied Nenno factors and determined that psychologist’s testimony on parental psychological assessments were admissible); Washington v. State, 485 S.W.3d 633, 639 (Tex. App.–Houston [1st Dist.] 2016, no pet.) (gang membership is legitimate field of expertise, police officer’s testimony that defendant was current or former gang member was in scope of that field, and testimony relied on self-admission and gang tattoos which are factors frequently relied on by law enforcement to identify gang members); Brewer v. State, 370 S.W.3d 471, 474 (Tex. App.–Amarillo 2012, no pet.) (in aggravated-assault case, expert could testify about “psycho-violence” to assist jury in understanding a victim’s delay in calling police; trial court properly asked expert in voir dire whether her testimony would be “standard in the industry”); Hammal v. State, 352 S.W.3d 835, 841-843 (Tex. App.–Ft. Worth 2011) (police officer’s testimony on handling drug-detection dog was reliable under Nenno), rev’d  on other grounds, 390 S.W.3d 302 (Tex. Crim. App. 2012); State v. Smith, 335 S.W.3d 706, 712 (Tex. App.–Houston [14th Dist.] 2011, pet. ref’d) (proponent of expert testimony on dog-scent lineup did not show that expert’s opinion was reliable; expert’s testimony that his dogs were reliable and accurate in identifying scents, without any evidence to support those claims, was not sufficient to show reliability); Salazar  v. State, 127 S.W.3d 355, 359-360 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (upholding exclusion under Nenno of defense expert’s testimony on “content-based criteria analysis” to evaluate interviewing techniques used with sexually abused children; method was not generally accepted, study of technique was still ongoing, and potential for error was great); Roise v. State, 7 S.W.3d 225, 236-237 (Tex. App.–Austin 1999, pet. ref’d) (testimony of psychologist that photographs would promote sexual impulses and sexual fantasies and that children in photographs would have been developmentally harmed was not relevant or reliable under Nenno standards for “soft sciences”); Chavarria v. State, 307 S.W.3d 386, 391 (Tex. App.–San Antonio 2009, no pet.) (the appropriate standard for assessing the reliability of a psychology expert’s testimony relating to his examination of a child sexual abuse victim is the Nenno soft-science standard, rather than the Kelly hard-science standard).

In In The Interest of K.L.R., 162 S.W.3d 291, 302-304 (Tex. App.–Tyler 2005, no pet.), the trial court erred in allowing a licensed counselor to testify because she did not state that counseling is a legitimate field; did not state that her testimony was within the scope of her field; and did not state that she relied on principles involved in her field. Id. In In re J.B., 93 S.W.3d 609 (Tex. App.–Waco 2002, pet. denied), DFPS offered the testimony of a psychologist who had conducted a parenting assessment of the mother whose rights they sought to terminate. The court of appeals, employing the factors set out in the E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), found that the trial court abused its discretion by admitting the evidence because the proponent of the evidence had proffered only the psychologist’s testimony to establish the reliability of his methodology, but offered no specific, independent sources to support its reliability. In American West Airlines, Inc. v. Toupe, 935 S.W.2d 908 (Tex. App.–El Paso 1996, no writ), the court ruled that the trial court did not abuse its discretion by excluding testimony from the plaintiff’s treating mental health worker, as the expert’s testimony was subjective, the peer review of the expert’s method was limited, the expert offered no examples of publication of her work, and the potential rate of error for her diagnosis was unexplored. The Court held that these factors outweighed the evidence that the expert’s techniques were accepted as valid by the psychological community and that the techniques were generally used for therapy.

  1. Reliability of the Evidence

Even where it is determined that the expert testimony is relevant to an issue in the case, the proponent of the scientific evidence still must show by clear and convincing evidence it is reliable; that is, the scientific theories underlying the expert opinion are valid and the techniques used to apply the theories are valid. State v. Jordan, 950 S.W.2d 210, 212 (Tex. App.–Ft. Worth 1997, pet. ref’d); Weatherred v. State, supra. Jordan was remanded back to the court of appeals from the Court of Criminal Appeals after it was determined that the testimony as to eyewitness reliability was relevant because it might be helpful to the jury. However, on the issue of reliability, the court of appeals found that the proponent of the evidence failed to present sufficient evidence of the validity of the scientific theories underlying the expert’s opinion or the validity of the techniques used to apply the theories. The Court criticized the proffer of the expert’s testimony as follows:

While Dr. Finn constantly referred to support for the validity of the theories in vague generalities such as “research of others,”  “some research,”  “a number of studies,” and even “one specific test”; he failed to mention by name any other person who purports to be an expert in the field or produce or name the studies he relied on to research his opinions. Dr. Finn also admitted he had never been subjected to peer review or conducted scientific research to test the validity of these theories himself. Finally, there is not evidence of error rate in applying Dr. Finn’s method of reaching his conclusions under the theories he discussed.  Based on the record before us, we cannot say that the trial court abused its discretion in excluding his testimony.

State v. Jordan, 950 S.W.2d at 212. In Weatherred v. State, 515 S.W.3d 540 (Tex. Crim. App. 2000), the Court of Criminal Appeals found the proffer of expert testimony to be lacking, noting specifically that the defendant had offered the expert’s testimony but nothing more. Although the expert had claimed that he and others had carried out extensive research on the reliability of eyewitness identification and he had written much on the subject, he failed to produce or even name any of the studies, researchers, or writings, in question. The Court of Criminal Appeals found that the trial court had not abused its discretion in excluding the expert testimony.

When the alleged crime is a child sexual abuse offense expert witness testimony may be proffered to describe the “syndrome” experienced by victims of the offense. Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993). From the prosecution’s standpoint, the purpose of offering this evidence is to assist the jury in concluding that the victim, who exhibits the described characteristics of the syndrome, was in fact the victim of a sex offense. Thus, it is the type of evidence that the offering party hopes to have considered as direct evidence of the charged act.  From the defense standpoint, the dangers inherent in syndrome evidence are not insignificant.  First, it appears to be establishing the “truth” of the allegation. Second, even if the syndrome evidence tends to explain that the victim has been the victim of a sex offense, it does not answer the question of identity of the perpetrator. To the extent that syndrome evidence is scientific theory it should be subjected to all the rigors encountered for any type of expert testimony.

Expert testimony on a topic may be admitted even though there is not universal agreement as to the validity of the expert’s opinion. In Wolfe v. State, 509 S.W.3d 325 (Tex. Crim. App. 2017), the State offered expert testimony from three separate witnesses regarding the cause of abusive head trauma to a child complainant. The State’s witnesses’ testimony was based upon a triad of symptoms – subdural hematoma, retinal hemorrhaging and brain swelling – and through a process of differential diagnosis that was an “all – encompassing process – of – elimination consideration of every possible cause” based on the patient’s particular history and presentation. The State contended that the abusive head trauma diagnosis is widely accepted among esteemed national and international medical organizations as a valid diagnosis and has been the subject of extensive research. On the other hand, the defendant’s expert testified that there was significant disagreement within various segments of the medical and biomechanical communities regarding the validity of the diagnosis based on the triad of symptoms. The court held that the lack of universal agreement in the medical profession did not render the State’s evidence “junk science,” due to other indications of reliability from the evidence. The Court of Criminal Appeals held that “even accepting that appellant’s expert and the State’s experts were all qualified, their disagreement about their methods and conclusions would not necessarily render one side’s testimony unreliable.” Wolfe v. State, supra at 341. The court noted that just because two qualified experts may reach directly opposite conclusions using similar, if not the same, databases, or disagree over which data to use or the manner in which the data should be evaluated, does not necessarily mean that one opinion is per se unreliable. “That some scientists in a field disagree with an expert’s theories or conclusions does not render those theories or conclusions unreliable.” Id. That there is disagreement in a scientific community does not render testimony from either side of the disagreement unreliable, and therefore not admissible. Id.

  1. Credibility of the Child Witness

Probably the most significant case relating to the admission of expert testimony in child sexual abuse prosecutions (and, to a lesser degree, relating to the impeachment of credibility in child sexual abuse cases) is Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). In Schutz, the Court of Criminal Appeals addressed the admissibility of five categories of evidence that touch on issues of credibility:

(1) substantive evidence of guilt which incidentally impacts on credibility; i.e., symptoms exhibited by child abuse victims and whether or not the complainant exhibited those symptoms; physical evidence and whether such evidence is consistent or inconsistent with the complainant’s allegations – admissible in case-in-chief or on cross- examination;

(2) general testimony relating to impaired witnesses or declarants; i.e., general testimony about the ability of a class of persons recognized by society as being impaired, such as young children or the mentally retarded, to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events that are at issue in the given case – admissible in case-in-chief or on cross-examination if an impaired person is the victim or an expected witness (an impaired person could be a young child);

(3) general testimony that directly attacks credibility, i.e., testimony that the child has  general character for making untruthful or dishonest statements, or fantasizing, or is the kind of child who is susceptible to manipulation, or has difficulty distinguishing between fantasy and reality;  or testimony as to the common symptoms or traits of a child who is fantasizing or being manipulated, coupled with testimony that the victim does exhibit those symptoms or traits;  or testimony that the child suffers some mental or physical handicap, disorder, or impairment, coupled with testimony about the adverse effects that would have on perception and/or memory; or testimony that third parties committed acts designed to manipulate the child into making allegations – admissible in case-in-chief or on cross-examination to attack credibility of witness or declarant  (generally falls under Texas Rule of Evidence 608(a));

(4) general testimony that directly supports credibility; i.e., that the child has a general character for making truthful or honest statements; that the child does not have a general character for fantasizing; that the child is not the type who is susceptible to manipulation; that the child does not have difficulty distinguishing between fantasy and reality – admissible in rebuttal to attacks on credibility, so long as there is a loose fit between the rebuttal and the attacks on credibility;

(5) specific testimony attacking or supporting credibility; i.e., specific instances in which the child has lied, fantasized, been manipulated, told the truth, accurately perceived reality, or resisted manipulation;  child’s allegations relating to the offense were the result of manipulation or fantasy, or were lies, or testimony that they were not; child did not, in fact, accurately perceive or remember events due to physical or mental impairment- admissible only to rebut other specific testimony attacking or supporting credibility and only if there is a tight fit between the rebuttal testimony and the previous testimony supporting or attacking credibility. Id. at 75. (See Appendix to case – chart explaining admissibility of various kinds of testimony). Expert testimony is generally not permitted to rebut lay testimony. Id. at 72, 74.  

An example of the proper admission of expert testimony about the behavioral characteristics of abused children can be found in Perez v. State, 113 S.W.3d 819 (Tex. App.– Austin 2003, pet. ref’d). The appellate court recognized the long-standing Texas rule that expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused is relevant and admissible under Rule 702. In a lengthy opinion, the Austin Court of Appeals discussed expert testimony and the “soft” sciences in terms of the Daubert test as interpreted by the Court of Criminal Appeals in Nenno. The Perez court concluded that: (1) the expert’s field is a legitimate one; (2) due to the witness’s “superior knowledge and experience”, the common characteristics and dynamics of children who have suffered sexual abuse were within the scope of his expertise; and (3) the witness’s unimpeached testimony supports a conclusion that his opinions and writings on sexual abuse of children were accepted by the relevant scientific community of psychologists.

On the other hand, it is error for a trial court to allow an expert to testify, over objection, that the testimony of the child is “consistent with child abuse” or there was grooming in the case on trial. The expert may testify to what constitutes grooming or answer a hypothetical as to whether a certain type of conduct is grooming but may not opine that the child in question was groomed. Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010, no pet.)

Expert testimony about the truth or falsity of the allegations or the truthfulness of the complainant is prohibited. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993); Lane v. State, 257 S.W.3d 22, 27 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d); Kelly v. State, supra at 602, (expert should not have been allowed to imply children were telling the truth by claiming she would not have agreed to be a witness in the case if she saw evidence of deception).

In Wilson v. State, 90 S.W.3d 391 (Tex. App.–Dallas 2002, no pet.), over objection, an employee of the children’s advocacy center was allowed to provide expert testimony that 2%  to 8% of children who make outcries of sexual abuse make false reports and the majority of those arise in custody cases.  Id. at 393.  The court of appeals held that it was error to allow this testimony because it “did not aid, but supplanted, the jury in its decision on whether the child complainant’s testimony was credible.”  Id. at 393. However, upon considering all the evidence in the case the error was found to be harmless. For the next ten years, at least in Dallas County, the prosecution continued to offer, and the courts continued to admit, such evidence.

Then, in Wiseman v. State, 394 S.W.3d 582 (Tex. App.–Dallas 2012), the successor to the expert witness in Wilson was allowed to testify, over objection, that only 2% of children who make allegations of sexual abuse are making false accusation, and that 77% of those are involved in custody or divorce-related issues. Citing Yount and its decision in Wilson, the court of appeals again found the trial court erred by admitting the testimony as to the percentage of children who lie about being sexually abused. Wiseman v. State, supra at 587. The court also rejected the State’s contention that the defendant opened the door to such testimony by eliciting testimony that some teenagers lie. The court reversed, finding that the expert testimony violated the defendant’s substantial rights because the case turned solely on the credibility of the witnesses and the testimony of the witness went directly to that issue. Id. at 588. The same result was reached regarding the same evidence in another case, Quan An Tran v. State, 2012 WL 1199102 (Tex. App.–Dallas). In Wiseman and Tran, the court of appeals found the testimony to be harmful, leading to the reversals.  The Dallas District Attorneys office quit offering this evidence after the decisions in Wiseman and Tran.

An expert’s testimony must be accurate. In In the Matter of M.P.A., 364 S.W.3d 277 (Tex. 2012), at a juvenile disposition hearing an expert testified that an Abel Assessment of the respondent juvenile showed he was a pedophile who had a significant interest children of both sexes. The expert testified that Abel testing was 85% accurate and had been validated by studies at Brigham Young University. The respondent was sentenced to 20 years.  On a writ application it was proved that this testimony was false. It was shown that according to Abel and his colleagues that the testing was only 65% accurate for classifying people with a significant interest in children under 14 years of age; and that the BYU studies failed to establish the Abel Assessment was reliable as applied to adults and it was unreliable as applied to adolescents. Id. at 286-287. The Texas Supreme Court found that if the trial court had heard accurate testimony the Abel Assessment would not have been admitted into evidence and that the false testimony contributed to the respondent’s sentence entitling him to a new disposition hearing.  Id. at 292.

In Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010), the defendant was accused of engaging in organized criminal activity based on a predicate offense of aggravated sexual assault of a child. The court ruled that although the State’s expert witness could answer a hypothetical question as to whether showing the child complainant masturbation techniques with dolls was a type of “grooming,” the prosecutor could not testify and argue in his hypothetical by asking the expert whether she would expect to see grooming in a hypothetical case where children were forced to engage in sexual intercourse with another, and where multiple children were forced to strip down, dance naked, and act out in sexual plays and fantasies. The appellate court also held that the State was improperly allowed to ask its expert witness whether the child’s testimony was consistent with child abuse, and whether “there was grooming in this case,” because both questions ask the expert to give her opinion as to whether or not the testimony of the children was true.

Even when the expert’s testimony can only be viewed as an attempt to directly bolster the complainant’s credibility and as a direct comment on the complainant’s truthfulness, the abuse of discretion in admitting that evidence may not be reversible error. In Salinas v. State, 166 S.W.3d 368 (Tex. App.–Ft. Worth, 2005, pet. ref’d), the child complainant was taken to the hospital for a sexual assault examination four and a half months after her outcry statement to her mother. The examining doctor found no physical evidence of sexual assault. At trial the doctor was allowed to testify over objection that she diagnosed sexual abuse by digital penetration of the anus based solely upon the history provided by the child, and “she had an exam which was consistent with that history [no physical evidence of abuse].” Admitting that testimony was error but after reviewing the entire record, the appellate court concluded it did not have a substantial and injurious effect or influence on the jury’s verdict, that is, it was harmless.

  1. Admissibility of Testimony on Other Issues

In In re E.C.L., 278 S.W.3d 510 (Tex. App.–Houston [14th Dist.] 2009) it was reversible error to exclude expert testimony on “battered child syndrome” because lay people who have not experienced abuse for most of their lives do not have a frame of reference to understand why a child might have thought deadly force was immediately necessary to protect himself and/or his brother.

In Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008), an examining physician’s testimony was proper where she did not testify that the child was abused or was telling the truth, but did testify that, although not definitive, the child’s physical condition was consistent with the abuse that she described. Additionally, it was proper for the doctor to testify regarding the fact that child abuse victims also delay making an outcry and initially deny the abuse as the behavioral characteristics common among abused children is an appropriate area for the physician’s testimony.

In Bryant v. State, 340 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 2010), the court found that opinion testimony of a police officer that he came to the conclusion a sexual assault had occurred and that was why he prepared an affidavit to obtain an arrest warrant was admissible in a child sexual assault prosecution. The officer testified about what he relied on to determine whether he should swear out an affidavit to obtain a warrant for the defendant’s arrest not whether the child witness was telling the truth.

In Zuniga v. State, 811 S.W.2d 177 (Tex. App.–San Antonio 1991), testimony of a physician, based on his own exam of a nine year old complainant, that history and physical examination was consistent with sexual assault, was permissible expert testimony as aiding the jury from a medical standpoint on the nature and extent of sexual assault, and did not impermissibly invade the province of the jury even though whether sexual assault had occurred was one of the ultimate issues at trial.

“Psychologists and counselors have been found to provide reliable, relevant testimony in child abuse cases, specifically regarding PTSD.”  Moreno v. State, 2020 WL 908024, *5 (Tex. App.–San Antonio), citing Johnson v. State, 432 S.W.3d 552, 557 (Tex. App.–Texarkana 2014, pet. ref’d); Zinger v. State, 899 S.W.2d 423, 432 (Tex. App.–Austin 1995, rev’d on other grounds, 932 SW2d 511 (Tex. Crim. App. 1996). However, in Lane v. State, 257 S.W.3d 22 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d), the court of appeals disapproved testimony by a social worker that the victim suffered from PTSD due to sexual abuse. Courts have found that mental health professionals are in a unique position to explain victim behavior as it pertains to a disorder, such as PTSD, that is not commonly understood by lay persons.  Moreno v. State, supra; Zinger v. State, 899 S.W.2d at 432, citing Duckett v. State, 797 S.W.2d 906, 917 (Tex. Crim. App. 1990), disapproved on other grounds by Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim. App. 1993). 

In Moreno v. State, supra, the State offered testimony from a licensed professional counselor with 14 years of experience with abused children, to testify on behaviors of sexually abused children, symptoms of PTSD, and her experience working with the complainant in that case.  The witness was, at the time of her testimony, the clinical director of a children’s advocacy center.  She testified that to be qualified to do her work she was required to have a master’s degree in psychology or counseling-related area plus 3,000 hours of supervised training.  She also testified that it was not her practice to diagnose clients with PTSD but that she could describe symptoms of the disorder in them. The trial court allowed her to testify as an expert if she did not comment on the complainant’s truthfulness. On appeal, the appellant challenged the witness’s ability to diagnose PTSD on the grounds that she was not qualified and that her testimony on PTSD would inappropriately bolster the complaint’s testimony. The trial court found the witness’ proffered testimony to be analogous to expert testimony on behaviors or symptoms consistent with child abuse.  The court of appeals concluded “that it was up to the jury to decide if the symptoms that [the witness] described really did help them understand the victim’s testimony and demeanor and whether these apparent symptoms actually reflected prior trauma caused by Moreno.” Moreno v. State, supra at *6. The court of appeals found that the trial court’s decision to admit the expert testimony on PTSD was within the zone of reasonable disagreement.

In Brantley v. State, 2020 WL 1680050 (Tex. App.–Houston [1st Dist.]), a vehicular crimes police officer was found to be qualified to testify as an expert as to the basic functioning of a crash data recorder (CDR) and the data retrieved from it.  The court of appeals found that the witness’s field of expertise – downloading black box data – was not particularly complex. The court found that the vehicular crimes officer’s field of expertise in accident reconstruction was legitimate; that he testified within the scope of his expertise in accident reconstruction; and he properly relied on and utilized principles involved in the field of accident reconstruction. The court further found that the officer’s lack of knowledge of the manufacturing process of CDR and its accelerometer, or the black box’s rate of error, did not affect the reliability of his expert testimony.

In William v. State, 606 S.W.3d 48 (Tex. App.–Houston [1st Dist.] 2020), the State called an analyst with the Texas Department of Public Safety’s Telephone Records and Analysis Center (TRAC) as an expert to testify on the approximate location of a cell phone, based on historical phone records and a list of the coordinates of Houston’s cell phone towers, provided by carriers to law enforcement. The witness testified that she was trained in cell phone mapping, employed the techniques daily, and had three years of experience doing so. The court of appeals found that the plotting software’s error rate did not impact the reliability of her opinions; the cell phone records showed the exact tower to  which the phone connected; and the witness testified that she checked the records for accuracy. The court of appeals concluded that the trial court did not abuse its discretion when it determined that the witness’s opinion on the general location of the defendant’s and the victim’s cell phones was reliable.

Some intermediate courts are giving great deference to trial court decisions regarding expert witnesses. Malone v. State, 163 S.W.3d 785 (Tex. App.–Texarkana, 2005, pet. ref’d) (social worker with undergraduate degree permitted to testify to incest offender profiles based on articles she reviewed on the internet); Longoria v. State, 148 S.W.3d 657 (Tex. App. – Houston [14th Dist] 2004, pet. ref’d) (victim–impact testimony from expert witnesses about the physical and psychological impact of child sexual abuse was admissible at guilt-innocence because of its tendency to make more or less probable whether the defendant committed sexual assault on his two stepdaughters).

Other courts of appeal seem to be holding trial courts to a higher standard. In Kelly v. State, supra at 601, the trial court erred by allowing a DFPS worker, with an associate’s degree and without medical training, to testify to the sexual development and response of children as a predicate to her testimony about grooming. The lack of consistency in the appellate courts sometimes creates a guessing game for defense lawyers, prosecutors, and judges as to who may be qualified as an expert and what “scientific” evidence  may be found to be relevant and reliable.

EXTRANEOUS CRIMES, WRONGS, AND ACTS: What are they and how can they impact your case?

I. Evolution of the Meaning of Extraneous Offense

The definition of an extraneous offense has evolved in Texas jurisprudence. It was once defined as “one that is extra, beyond, or foreign to the offense for which the party is on trial.” Ridinger v. State, 174 S.W.2d 319, 320 (Tex. Crim. App. 1943). Later, several cases held that where the State offers evidence of more than one act of criminal conduct alleged in the indictment, the acts not relied upon by the State for conviction were extraneous offenses. O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988); Crawford v. State, 696 S.W.2d 901 (Tex. Crim. App. 1985); Yzaguirre v. State, 957 S.W.2d 38, 40 (Tex. Crim. App. 1997) (Myers, J., concurring). “An extraneous offense is an offense other than the offense charged.” Guidry v. State, 896 S.W.2d 381, 385 (Tex. App. – Texarkana 1995, pet. ref’d, reh. den.), citing Parks v. State, 746 S.W.2d 738 (Tex. Crim. App. 1987). The Court of Criminal Appeals said the following about the purpose of admission of extraneous offenses:

It is a fundamental tenet of our system of jurisprudence that an accused must only be tried for the offense for which he is charged and not for being a criminal in general. See, e.g., Templin v. State, 7y99 S.W.2d 30 (Tex. Crim. App. 1986); Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972). Because extraneous offense evidence carries with it the apparent risk that a defendant may be convicted because of his propensity for committing crimes generally—i.e., his bad character—rather than for the commission of the charged offense, courts have historically been reluctant to allow evidence of an individual’s prior bad acts or extraneous offenses. Under Tex. R. Crim. Evid. 404(b), extraneous offense evidence may be admissible only if it tends to prove a material fact in the State’s case, apart from its tendency to demonstrate an accused’s general propensity for committing criminal acts.

Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992, reh’g deneid). In Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996), the Court of Criminal Appeals again altered the definition of extraneous offenses without reference to the foregoing cases. The court defined an extraneous offense “as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Id. at 741.

There was a special exception to the general admissibility of extraneous offenses for cases involving sexual abuse of a child by one standing in a parental relationship. Battles v. State, 140 S.W. 783 (1911). That exception permitted the State to introduce evidence of similar offenses committed by the accused against the same child for the purpose of showing, among other things, the broad context in which the charged offense occurred. This exception became subject to “persistent criticism over the years” until it was abandoned by the Court of Criminal Appeals in Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992), finding it to not “have any legal force independent of Rule 404(b).” Id. at 411. Thus, it became clear that the admissibility of extraneous crimes, wrongs, and acts in child abuse cases would be governed by Rule 404(b), Tex. R. Evid. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990); Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992); Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992); Pavlacka v. State, 892 S.W.2d 8972 (Tex. Crim. App. 1994).

The prosecutors came to believe that Rule 404(b) was a substantial impediment to the State’s ability to secure convictions in child abuse cases because of a perceived reluctance of jurors to believe a child, when asked to make a decision about guilt or innocence on a single identified offense, and in having the child identify a particular act upon which the State relied for a conviction and distinguishing that act from extraneous conduct. The Court of Criminal Appeal’s interpretation of Rule 404(b) limited the introduction of extraneous offense evidence at trial in a way the prosecution believed made securing convictions more difficult.

II. Article 38.37, C.C.P.

A. Original Version

This difficulty remained the state of the law in Texas until September 1, 1995, when the Legislature passed Art. 38.37, C.C.P. It appears that the Legislature was attempting to reinstate the common law exception in child abuse cases for the admission of extraneous offenses. Under the statute, evidence would be admitted of other crimes, wrongs, or acts committed by the defendant against the child who was the victim of the alleged offense “for its bearing on relevant matters,” including the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child. Art. 38.37, C.C.P. The rule has been roundly criticized as allowing the State to prosecute a defendant for generally being a “child molester.” The belief by the critics has been that the limiting instructions to the jury did not really limit its consideration of the evidence to the particular purpose set forth in the statute, but instead the jury simply considered the evidence as showing propensity and character of the accused. The admission of extraneous offense evidence under Art. 38.37, in conjunction with the Court of Criminal Appeals’ change in the definition of extraneous offense in Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2001), changed the nature of trials of child abuse allegations to trials about the character of the accused, and not trials about whether the accused committed a particular offense. That the defendant was entitled to be indicted and tried for a particular single act of conduct had become a mere pretense. That pretense was finally dropped by amendments to Art. 38.37, C.C.P., that were effective September 1, 2013.The original version of Art. 38.37 applied to cases where the victim was a child under the age of 17 in prosecutions for offenses defined under Chapter 21 (sexual offenses); Chapter 22 (assaultive offense); Section 25.02 (prohibited sexual conduct); and where the victim was younger than18 years of age, in prosecutions under Section 43.25 (sexual performance of a child); Section 20A.02(7) or (8) (human trafficking); or Section 43.05 (compelling prostitution); and any attempt or conspiracy to commit one of the foregoing offenses. Prior Art. 38.37, Section 1, C.C.P.

B. Amendments Effective Sept. 1, 2013

The 2013 amendments to Art. 38.37 combined Sections 1 and 2 of the old statute into Section 1 of the new statute, without change, and added a new Section 2, which creates a second “tier” of offenses for which evidence of extraneous offenses may be admitted at trial, for a different purpose than for the offenses set forth in Section 1 of both of the prior and amended articles. New Section 2 of Art. 38.37 applies to a narrower group of offenses than does new Section 1. Section 2 applies only to the trial of a defendant for an offense under the following provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under Section 20A.02(B)(1) (sex trafficking of a child); (B) Section 21.02 (continuous sexual abuse of a young child or children); (C) Section 21.11 (indecency with a child); (D) Section 22.011(a) (sexual assault of a child); (E) Sections 22.021(a)(1)(B) and (2) (aggravated sexual assault of a child); (F) Section 33.021 (online solicitation of a minor); (G) Section 43.25 (sexual performance by a child); or (H) Section 43.26 (possession or promotion of child pornography); or an attempt or conspiracy to commit an offense described in Section 2. See Aquillan v. State, 584 S.W.3d 701 (Tex. App.–Texarkana 2017), where a court of appeals found that evidence of the defendant having physically abused the complainant’s sisters was not an admissible extraneous offense because it was not similar to the indecency-with-a-child charge for which the defendant was being tried.   

C. Operation of Current Statute

Upon a trial of one of the offenses described in new Section 2(a)(1) and (2), evidence that the defendant “committed a separate offense described by Subsection (a)(1) or (2)” of Section 2 may be admitted “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” New Art. 38.37, Section 2(b), C.C.P.; Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.–San Antonio 2016, pet/ ref’d). Art. 38.37, § 2 creates an exception to the Rules of Evidence that otherwise make character evidence inadmissible. Manning v. State, 2015 WL 8473347, *2 (Tex. App. – Beaumont 2015, pet. ref’d).

The limitations upon the use of character evidence in Rules 404 and 405 do not apply regarding the admission of extraneous offenses upon the trial of the kind of cases listed in new Section 2 of Art. 38.37. Said another way, upon trial of a Section 2 offense, evidence of other sexual offenses committed by the defendant will be admitted as evidence of the defendant’s character and to show he acted in conformity with that character. Lara v. State, 513 S.W.3d 135 (Tex. App.–Houston [14th Dist.] 2016, no pet.); Carmichael v. State, 505 S.W.3d 95 (Tex. App.–San Antonio 2016, pet. ref’d). This appears to apply only to other offenses, not to wrongs or acts, as in new and prior Section 1; and applies to separate offenses against other victims and is not just limited to offenses against the complainant in the case being tried. Said another way, the Legislature has authorized the trial of a defendant for being a “child molester” generally, and as a practical matter has done away with the requirement that the State prove beyond a reasonable doubt that the defendant committed a particular act. See Moore v. State, 2015 WL 1317205, *2 (Tex. App. –Austin 2015, pet. ref’d) (sexual acts that were not considered sexual acts for purposes of §21.02, continuous sexual abuse statute, were admissible as circumstantial evidence that the defendant had engaged in other conduct that could form the basis of his conviction). However, evidence offered pursuant to Art. 38.37 is subject to the Rule 403 balancing test of whether its probative value is substantially outweighed by the danger of unfair prejudice. Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.–San Antonio 2016, pet. ref’d); Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.–Tyler 2015, no pet.).

Art. 38.37 requires the trial court to hold a hearing outside the presence of the jury to determine whether the evidence admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt. Art. 38.37, § 2–a. C.C.P.; Carmichael v. State, supra at 102; Agrillen v. State, 534 S.W.3d 701, 710 (Tex. App.–Texarkana 2017, no pet.). If the defendant does not request a hearing, or object to the failure to have the hearing, the right to the hearing is forfeited. Carmichael v. State, supra at 103.   Art. 38.37 does put limitations on the admissibility of such evidence. Section 2-a provides that before the extraneous conduct evidence may be introduced, the trial judge must: (1) determine that the evidence likely to be admitted at trial will be adequate to support a “finding by the jury that the defendant committed a separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose.”

Also, Section 3 of new Art. 38.37 requires that the State give the defendant notice of the State’s intent to introduce in its case in chief the evidence set forth in Section 1 or 2 of amended Art. 38.37 “not later than the 30th day before the date of the defendant’s trial.” This provision eliminates the need for a request for notice to be filed by the defense in order to trigger the State’s duty to provide notice of intent to offer extraneous offense evidence. This provision also does not include the “reasonable notice” provision of Rule 404(b) and does not require the State to give notice of the county in which the alleged extraneous acts took place, as required by Art. 37.03, Section 3, C.C.P. The purpose of the notice is to prevent surprise. In determining whether a defendant is harmed by failure to give notice of an extraneous offense, an appellate court will consider whether the defendant was surprised and how it affected his ability to mount an effective defense.

A trial court must also conduct a Rule 403 balancing test. Art.38.37, Section 2(b), C.C.P. The statute does not restrict a defendant’s right to have the State elect the incident for which it will seek conviction. Owings v. State, 541 S.W.3d 144 (Tex. Crim. App. 2017); McCombs v. State, 562 S.W.3d 748 (Tex. App.–Houston (14th Dist.] 2018, no pet.); Gauna v. State, 534 S.W.3d 7 (Tex. App.–San Antonio 2017).    

The change in Art. 38.37 applies to a criminal proceeding that commences on or after the effective date of Senate Bill 12, September 1, 2013. Section 2, SB12. This means that the change in the law applies to trials that commence on or after the effective date, whether the indictments were pending prior to the effective date of the amendment or the offense occurred prior to the effective date of the amendments to Art. 38.37. Fahrni v. State, 473 S.W.3d 486 (Tex. App.–Texarkana 2015, pet. ref’d); Bezarra v. State, 485 S.W.3d 133, 138-139 (Tex. App.–Amarillo 2016, pet. ref’d).

There is an argument to be made that application of amended Art. 38.37 to offenses that occurred prior to September 1, 2013, would violate the ex post facto prohibition of the United States Constitution. The Supreme Court has held there are four categories of ex post facto laws. The fourth category is a “law that alters the legal rules of evidence, and requires less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Carmell v. Texas, 529 U.S. 513, 522, 551 (2000). Amended Art. 38.37 certainly admits evidence different than did its predecessor. Some Texas courts have rejected claims that employment of Art. 38.37, in cases where the offense occurred before the effective date of Art. 38.37, violates ex post facto prohibitions. Baez v. State, 486 S.W.3d 592 (Tex. App.–San Antonio 2015, pet. ref’d). Courts have determined that Art. 38.37 does not violate a defendant’s right to due process of law nor lessen the presumption of innocence or the State’s burden of proof. Perez v. State, 562 S.W.3d 676 (Tex. App.–Ft. Worth 2018, pet. ref’d) (unique nature of sexual assault justified the admission of extraneous offense evidence, even though traditional notions of due process generally caution against admission of such evidence); Distefano v. State, 532 S.W.3d 25 (Tex. App.– Houston [14th Dist.] 2016, pet ref’d); Buxton v. State, 526 S.W.3d 666 (Tex. App.–Houston [1st Dist.] 2017, pet. ref’d); Ryder v. State, 519 S.W.3d 391 (Tex. App.–Amarillo 2017, pet. ref’d); Bezarra v. State, 485 S.W.3d 133 (Tex. App.–Amarillo 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840 (Tex. App. –Tyler 2015, no pet.); Robisheaux v. State, 483 S.W.3d 205 (Tex. App.–Austin 2016, pet. ref’d).  

The amendment of Art. 38.37 has probably rendered Rule 404(b) and Art. 37.07, Section 3, C.C.P., largely irrelevant in the trial of child abuse cases. Under new Art. 38.37, all extraneous offenses against any child (or perhaps adult) will be admissible under Art. 38.37, so there is no need for the State to bear the burden of showing their admissibility under Rule 404(b) and Art. 37.07, Section 3, C.C.P. However, these provisions do remain in effect and are available as a means to admit extraneous matters not covered by new Art. 38.37, or where the State does not comply with the requirements of Art. 38.37.

III. Rule 404(b), Tex. R. Evid.; Art. 37.07, Section 3, C.C.P.; and Rule 609(f), Tex. R. Evid.

A. Applicability

Rule 404(b) applies to the admission of evidence of extraneous crimes, wrongs, and bad acts during the guilt-innocence portion of a trial. Art. 37.07, Section 3 applies to the admission of extraneous crimes, wrongs and bad acts at the punishment phase of a trial but is not applicable to a pre-sentence investigation report. Hart v. State, 342 S.W.3d 659, 671(Tex. App.–Houston [14th Dist.] 2011, pet. ref’d); Fielder v. State, 2015 Tex. App. LEXIS 10554, *12, (Tex. App.–Amarillo). Rule 609(f) applies to the admission of records of prior convictions.

B. Notice Requirement

Each of these provisions have in common a notice provision which, upon request by the defendant, requires the State to give the defendant reasonable notice of the intent to introduce extraneous crimes, acts, or wrongs into evidence. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) (en banc); Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (en banc). Art. 37.07, Section 3, explicitly states that notice of the intent to introduce extraneous conduct evidence under this article shall be given in the manner required by the Rule 404(b). Worthy v. State, 312 S.W.3d 34, 37 (Tex. Crim. App. 2010). The wording of the notice provision of Rule 609(f), Tex. R. Evid., is very similar to that of Rule 404(b). In cases not covered by Art. 38.37 the defendant should specifically request notice of the State’s intent to offer evidence of extraneous matters under Rules 404 and 609. The purpose of the notice provisions for admission of extraneous offenses is to avoid surprise and allow the defendant to mount an effective defense. Pena v. State, 554 S.W.3d 242 (Tex. App.–Houston (14th Dist.] 2018, pet. ref’d).         

Filing a request for notice under Art. 38.37 should not be necessary because that provision appears to be self-executing. In child abuse cases, due to the effect of new Art. 38.37, a request for notice of extraneous offenses pursuant to Rule 404(b) and Art. 37.07 Section 3 may not be necessary. On the other hand, Rules 404(b) and Art. 37.07, Section 3, do remain in effect for all kinds of cases, so some extraneous matters may be admissible pursuant to those provisions, even if not admissible under Art. 38.37. Early discovery of the State’s case and knowledge of your prosecutor and court may inform defense counsel as to what requests and motions should be filed. It is the safer choice to file the request for notice under Rules 404(b) and 609(f) and Art. 37.07, Section 3. That request should be filed with the court very soon after you begin representation. You may want to include Art. 38.37 in your request to bolster your contention that because the State did not give the 30-day notice required by Art. 38.37, the extraneous offenses are not admissible.

C. Triggering the Duty to Give Notice

The State’s duty under Rules 404(b) and 609(f) and Art. 37.07, Section 3, to give notice to the defendant of its intent to offer evidence of other crimes, wrongs, or bad acts, or prior convictions, is triggered by timely serving a REQUEST upon the attorney for the State. Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993, reh’g denied); Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Ford v. State, 106 S.W.3d 765, 766 (Tex. App.–Texarkana 2003, no pet.); Randon v. State, 107 S.W.3d 646, 651 (Tex. App.–Texarkana 2003, no pet.). A copy of such request should be filed with the Court. Espinosa v. State, supra at 38 n. 3. The REQUEST may be in some other format, such as a letter. If the State receives a request for notice of extraneous offenses and fails to give notice of its intent to use such evidence, the evidence should not be admitted. Davis v. State, 315 S.W.3d 908, 919-920 (Tex. App.–Houston [14th Dist.] 2010) (erroneous admission of defendant’s jail disciplinary record as punishment evidence was harmless), rev’d on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011). “Rule 404(b) literally conditions the admissibility of other crimes evidence on the State’s compliance with the notice provisions of Rule 404(b).” Hernandez v. State, 176 S.W.3d 821,824 (Tex.Crim. App. 2005).

A REQUEST for notice does not need to be acted upon by a trial court before the State is obligated to comply. The State’s duty to comply is invoked by the receipt of the request. Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993). Making the request in the form of a discovery motion is insufficient to trigger the notice requirement unless the accused secures a ruling from the Court. Mitchell v. State, supra at 427; Simpson v. State, 991 S.W.2d 798 (Tex. Crim. App. 1998); Ford v. State, supra at 766-67;. Sanders v. State, 191 S.W.3d 272, 276 (Tex. App.– Waco 2006, pet. ref’d), cert. denied 127 S.Ct. 1141 (2007). The REQUEST should ask for notice under all the applicable provisions. A request for notice under one provision does not constitute a request for notice under another provision. McCarty v. State, 2014 WL 1572455, *2 (Tex.App.–Austin 2014); Hitt v. State, 53 S.W.3d 697, 705 (Tex.App.– Austin 2001, no pet.) (request for notice pursuant to Rule 404(b) does not entitle the defendant to prior notice under Art. 38.37).

D. What is “Reasonable”?

While each statute or rule requires that the State give the defense reasonable notice in response to a request, they do not define what constitutes “reasonable notice” and the appellate decisions determine reasonableness on a case -by-case basis. The State’s open-file policy does not satisfy that notice requirement. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995); Allen v. State, 202 S.W.3d 364, 367 (Tex. App.–Ft. Worth 2006, no pet.). Reasonable notice can be given by actions not constituting an explicit statement of intent. For example, where the State’s notice stated that certain witnesses would be called to testify and attached a copy of the witnesses statements, it was held that the trial court did not abuse its discretion in admitting the witnesses testimony about extraneous offenses where defense counsel had made a request for notice of extraneous offenses and did not contend that he did not receive actual notice of the State’s intent to offer the extraneous offenses into evidence. Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001).           

Whether notice under Rules 404(b) and 609(f) and Art. 37.07 Section 3 is reasonable is determined by the facts and circumstances of each case, including when the request is made, the circumstances of the request, the nature of the response, the timeliness of the response, and any other relevant circumstances, Dix and Dawson, 42 Texas Practice §27:128, 3rd Ed.; Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001); Owens v. State, 119 S.W.3d 439, 443-444 (Tex. App.–Tyler 2003, no pet.). Again, the purpose of the Rule 404(b) notice requirement is to prevent the defendant from being surprised by extraneous offense evidence and ensure he has time to counter the evidence at trial. Hernandez v. State, 176 S.W.3d 821,824 (Tex. Crim. App. 2005).

What is considered to be a timely request is not clear, although a request made on the day of trial is not timely. Espinoza v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993) (en banc, reh’g denied). The length of time that a request for notice has been pending is a relevant consideration. The longer the pendency of the request before a late notice, the stronger the case for lack of reasonableness. Whether notice is given in sufficient time to prevent unfair surprise is the primary consideration. Dix and Schmolesky, 42 Texas Practice § 27.127, p. 635, 3rd Ed.   

Notice is not reasonable simply because the record shows that the defense was not surprised. An appellate court will “consider the notice that is to be expected or required under the particular circumstances of the case.” Webb v. State, 36 S.W.3d 164, 177 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (opinion on rehearing en banc). In Webb, the notice given on the Thursday before the Monday on which trial was scheduled to start was held unreasonable primarily because the defendant made his request for notice six months prior to trial. In addition, the timing gave the defense only one business day to prepare to cross-examine an important witness and to make any necessary adjustments in trial strategy. Webb v. State, supra at 178. See also, Hernandez v. State, 914 S.W.2d 226, 234 (Tex. App.–Waco 1996) (notice filed on Friday afternoon and apparently received by defense counsel on that day was held not reasonable where the request for notice was made ten months earlier); Sebalt v. State, 28 S.W.3d 819 (Tex. App. –Corpus Christi 2000, no pet.) (receipt of notice on the Friday before Monday trial date was reasonable); Owens v. State, supra at 444 (notice was reasonable, even though received by defendant three days before trial, as State gave notice one day after it received evidence, it was presented to jury 10 days after receipt, defendant had court appointed investigator to assist investigation of evidence and defendant had opportunity to cross-examine complainant about evidence). Waguespack v. State, 2015 WL 3822314 (Tex. App. – Waco 2015) (notice of evidence of extraneous sexual encounter provided on the day of jury selection that was admitted seven days later as punishment evidence was not harmful error because the record did not reveal the deficient notice was due to prosecutorial bad faith and did not impair defendant’s ability to prepare for the evidence and present a defense, so defendant’s substantial rights not affected). Oral notification may satisfy the notice requirement of Art. 37.07, Section 3(g), C.C.P. Jackson v. State, 2004 WL 837876 (Tex. App.–Dallas 2004, no pet.); Martin v. State, 176 S.W.3d 887 (Tex. App.–Ft. Worth 2005, no pet.) (notice seven days prior to trial was reasonable when information came from State’s file which had been open to defense counsel since indictment).

While it is error to admit extraneous offense evidence where notice has not been given, the error was not reversible where defendant did not claim he was surprised or that the lack of notice prejudiced his ability to prepare or present his defense. Hernandez v. State, 176 S.W.3d 821, 825 (Tex. Crim. App. 2005); Gonzalez v. State, 337 S.W.473 (Tex. App.–Houston [1st Dist.] 2011, pet. ref’d); Padilla v. State, 254 S.W.3d 585, 593 (Tex. App.–Eastland 2008, pet. ref’d); Sharp v. State, 210 S.W.3d 835, 839-40 (Tex. App. –Amarillo 2006, no pet.). The State’s notice under Art. 37.07, Section 3, is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred, and the name of the alleged victim. Johnson v. State, 2015 Tex. Crim. App. Unpub. LEXIS 9040, *96-98, No. AP-77,030 (11/18/15). If a notice is deficient, an appellate court must determine whether the deficiency had a substantial and injurious effect on the jury’s verdict when considering the totality of the circumstances. Id. In Johnson v. State, supra, although the notice did not include the day and month of the extraneous conduct, it included sufficient other details that rendered it sufficient. Id.         

Rule 404(b) applies to actual conduct. Evidence of a defendant’s thoughts about or feelings for a minor are not covered by Rule 404(b). Green v. State, 287 S.W.3d 277, 285 (Tex. App.– Eastland 2009, pet. ref’d). When a defendant raises a defensive theory that opens the door to extraneous offenses, the State is not required to give advance notice that it will use an extraneous offense to rebut a defensive theory. Shedden v. State, 268 S.W.3d 717, 739 (Tex. App.–Corpus Christ 2009, pet. ref’d); Jaubert v. State, 74 S.W.3d 1,2-4 (Tex. Crim. App. 2002) (notice provision of Rule 404(b) applies only to the State’s case-in-chief). Rule 404(b) does not apply to impeachment during the appellant’s case in chief. Westbrooks v. State, 2015 Tex. App. LEXIS 12759, *6 (Tex. App.–Houston [14th Dist.] 12/17/15). Notice of extraneous offenses is not required for same-transaction contextual evidence. Buchanan v. State, 911 S.W.2d 11,15 (Tex. Crim. App. 1995); McDonald v. State, 179 S.W.2d571,577 (Tex. Crim. App. 2005); Worthy v. State, 312 S.W.3d 34, 39-40 (Tex. Crim. App. 2010) (sentencing evidence pursuant to Art. 37.07, § 3(g), C.C.P.).

E. Admissibility of Extraneous Offenses Under Rule 404(b) and Article 37.07, Section 3

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. All relevant evidence is admissible except as otherwise provided by constitutions, statutes, or rules. Tex. R. Evid. 402; Montgomery v. State, 810 S.W.2d 372, 376 n.3 (Tex. Crim. App. 1990). Tex. R. Evid. 404(b)(1) provides that “[e]vidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character.” It may “be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, . . . . . .” Tex. R. Evid. 404(b)(1). “The exceptions listed in Rule 404(b) are neither mutually exclusive nor collectively exhaustive.” De la Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Poindexter v. State, 942 S.W.2d 577, 583-584 (Tex. Crim. App. 1996, reh’g denied); Montgomery v. State, 810 S.W.2d 373, 387 (Tex. Crim. App. 1991) (opinion on reh’g). Rule 404(b) is considered to be a rule of inclusion rather than exclusion. De la Paz v. State, supra at 343. “The Rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character.” Id.

The proponent of uncharged misconduct evidence “must be able to explain to the trial court, and to the opponent, the logical and legal rationales that support its admission on a basis other than ‘bad character’ or propensity purpose.” Id.; Gibbs v. State, 555 S.W.3d 718 Tex. App.–Houston (1st Dist.] 2018, no pet.).

In Montgomery, the Court of Criminal Appeals prescribed a procedure that should be followed when a party offers evidence of extraneous crimes, wrongs, or acts. 810 S.W.2d 372 (Tex. Crim. App. 1990) (opinion on reh’g). The opponent must timely object to the offer of the evidence as being inadmissible under Rule 404(b), as being an “extraneous offense” or “extraneous misconduct,” or that it is not relevant (preferably citing Rules 401 and 402, Tex. R. Evid.). Thereafter, the proponent of the evidence should state the purpose for which it is offered. Once the objection is made, the proponent of the evidence must satisfy the trial court that the “other crimes, wrongs, or act” is relevant apart of its tendency to prove the character of a person in order to show that he acted in conformity with that character. Id. at 387. At this point, if he has not done so, the opponent should request that the proponent articulate into the record the purpose for which the evidence is being offered by the proponent, and, if admitted by the trial court, seek articulation by the trial court of the basis for which the evidence was admitted. Id. This is important because upon timely further requests by the opponent, “the trial judge should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded him it serves.” Id., citing Tex. R. Cr. Evid. 105(a), now Rule 105(a), Tex. R. Evid. The opponent of the evidence should object to the failure of the proponent and the trial court to follow the foregoing procedure. Failure to follow the procedure should be error. Of course, then the question becomes whether it is reversible error.        

Once a trial court has ruled that evidence has relevance apart from character conformity, it has ruled on the full extent of the opponent’s Rule 404(b), or relevance objection. Thereafter, the opponent may, and should, further object that, under Rule 403, Tex. R. Evid., the probative value of the evidence is substantially outweighed by its unfair prejudice. Id., at 388-389. Once this objection is made, the trial court must weigh the probativeness of the evidence against its potential for unfair prejudice. The burden is on the opponent to levy the objection. Thereafter, Rule 403 imposes a duty on the trial court to conduct a balancing test. When Rule 403 provides that evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” it simply means that trial courts should favor admission in close cases, in keeping with the presumption of admissibility of relevant evidence.” Montgomery v. State, supra at 389; Fowler v. State, 553 S.W.3d 576 (Tex. App.–Texarkana 2018) (trial court must balance between the probative value and danger of unfair prejudice, although that balance is slanted toward the admission of otherwise relevant evidence).        

Once the Rule 403 objection has been made, “it will not suffice for the trial court simply to determine that the evidence is relevant to some legitimate, non-character-related purpose such as one of those enumerated in Rule 404(b). ‘The determination must be made whether the danger of unfair prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 404(b).’ Advisory Committee’s Note to Fed. R. Evid. 404(b).” Montgomery, supra at 389. These factors include how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence—that is, its inherent probativeness; the strength of the proponent’s evidence to show the opponent in fact committed the extraneous conduct; the potential the ‘other crimes, wrongs, or acts’ have to impress the jury in some irrational but nevertheless indelible way (often the function of the nature of the misconduct); how much trial time does the proponent need to develop the evidence of the extraneous misconduct such that the attention of the fact finder will be diverted from the indicted offense; and how great is the proponent’s need for the extraneous transaction. Montgomery, supra at 389-390. “This last inquiry breaks down into three subparts: Does the proponent have other available evidence to establish the fact of consequence that the extraneous misconduct is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute? When the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in a probative-versus-prejudicial balance.” Id. The opponent of the evidence should ask the court to engage in the probativeness-prejudice balancing exercise on the record, and if the trial court declines to do so, further object to that failure. 

F. Use by Defendants

Although most often employed by the State, there is nothing in Rule 404(b) that “would lead one to believe that it is a rule intended solely as a benefit for the State to be applied against the defendant . . . . . .” Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998); Torres v. State, 71 S.W.3d 758, 760-762 (Tex. Crim. App. 2002). While Rules 404(a) and 405(a) “specifically disallow particular acts of the victim to demonstrate character,” Tate v. State, supra at 193, evidence of specific acts may be admissible under Rule 404(b) to show intent, motive, knowledge, and to rebut contentions (analogous to defensive theories) of the State. “Rule 404(b) permits the defense, as well as the prosecution, to offer evidence of other acts of misconduct to establish a person’s motive for performing some act – such as making a false allegation against the defendant.” Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016).

IV. Extraneous-Offense Evidence Under Article 38.371

The legislature has also carved out a special exception for the admission of extraneous-offense evidence in family- violence cases. Article 38.371 of the Code of Criminal Procedure provides an avenue for the admissibility of “all relevant facts and circumstances” that would assist the trier of fact in determining whether a defendant committed certain family-violence-related offenses as follows:

(b) In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the action and the alleged victim.

(c) This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.

Areas of relevant and admissible extraneous-offense evidence that complies with Article 38.371 include evidence that: (1) explains why a victim of domestic violence is unwilling to cooperate with prosecution; (2) confirms the victim’s initial—and later recanted— statements to police; or (3) contextualizes the nature of the relationship between victim and assailant. Fernandez v. State, __ S.W.3d __, No. 08-17-00217 (Tex.App. – El Paso, 2020) (citing Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App. – Houston [14th Dist.] 2017, no pet.); Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at *3 (Tex.App. – Fort Worth 2019, no pet.) (mem. op., not designated for publication). Importantly, though, by the very terms of the statute, this type of extraneous-offense evidence is subject to the limitations of Rule 403.

V. Particular Applications

A. Remoteness

In Crocker v. State, 2009 WL 4725299 (Tex. App.– Dallas 2009, pet. ref’d) (not designated for publication), the defendant was a preacher who was charged with indecency with an 11-year-old boy by contact and by exposure. Admitted into evidence over the defendant’s objection were three incidents that had occurred nearly 20 years before where the appellant had gone skinny dipping in the presence of three 10-to-12-year-old boys; had gone swimming in the baptistry with one of the same boys; and had been naked while fishing on an overnight fishing trip with the same boy. Although the defendant had been nude in front of 10-to-12-year-old boys, there had been no sexual suggestion, sexual contact, or any physical contact at all. The Court of Appeals found that the three incidents of extraneous conduct were not relevant to any fact of consequence under Rules 401 or 402, because it was not sufficiently similar to the charged conduct, the extraneous conduct was too remote, and there was no intervening sexual misconduct of a similar nature. Id. at *5. In reaching this decision, the Court of Appeals relied on its own prior case of Harrison v. State, 2004 WL 1663982, *6 (Tex. App. –Dallas 2004) (there was no proximity in time between the extraneous conduct 16 years earlier and the charged conduct); and James v. State, 554 S.W. 2d 680, 682-83 (Tex. Crim. App. 1977) (extraneous offense occurring two years and nine months prior to offense being tried, with only certain similarities, and no intervening offenses, too remote in time to be admissible on issue of identity and alibi). The Crocker court held the extraneous conduct offenses were not sufficiently relevant under Rules 401 and 402 and found their admission was harmful.   

In Newton v. State, 301 S.W.3d 315 (Tex. App.–Waco 2009, pet. ref’d 2010), the defendant was charged with sexual abuse of his stepdaughter who was about 10 years of age. The State also introduced into evidence extraneous conduct evidence that the defendant had repeatedly sexually abused his older stepdaughter, L.D., about 25 years before the charged offenses. The court found the extraneous offense sufficiently similar to the charged offense as both victims were the defendant’s stepdaughters; both were about 10 when the defendant sexually assaulted them; both were similar in appearance; the defendant did not threaten either of them; and the defendant abused both of them for several years. The defendant even conceded on cross-examination that the extraneous offense evidence and the charged offense were “remarkably similar.” Id. at 318. The Court of Appeals found that the extraneous offense evidence regarding L. D. was sufficiently similar to the charged offenses to be admissible under Rule 404(b) to rebut the defendant’s fabrication defense. The court found that remoteness is not a consideration under Rule 404(b) and the trial court did not abuse its discretion by overruling the defendant’s Rule 404(b) objection. Id. at 318. The court found that remoteness was to be considered in ruling on a defendant’s Rule 403 objection. In analyzing the relevant Rule 403 factors, the Court of Appeals found that two factors weighed in favor of exclusion and two weighed in favor of admission. The Court found that Rule 403 required exclusion of evidence only when there is a clear disparity between the degree of prejudice of the extraneous evidence and its probative value. Id. at 321-322. As the court could not say there was a clear disparity between the danger of unfair prejudice posed by the extraneous offense evidence and its probative value, it found the trial court did not abuse its discretion by overruling the Rule 403 objection. Id. at 322.       

There is a lack of consistency as to how much remoteness is enough, and not enough, for prior conduct to be admitted as an extraneous offense. Remoteness and the passage of time should be factors in determining whether evidence of other offenses is admissible as same-transaction evidence, but remoteness must be considered with other factors. Yates v. State, 941 S.W.2d 357 (Tex. App.–Waco 1997, pet. ref’d). An unadjudicated extraneous offense of assault against a wife approximately 10 years earlier was so remote as to make it inadmissible in a prosecution for aggravated kidnaping of a former girlfriend and her employer. Lavarry v. State, 936 S.W.2d 690 (Tex. App.–Dallas 1996, pet. ref’d), habeas corpus dismissed 2001 WL 484426. Even ignoring a period of confinement of the defendant for prior sexual assault convictions up until three months before the primary conviction, convictions five and one-half years before the primary offense were not too remote, so as to be inadmissible. Stringer v. State, 845 S.W.2d 400 (Tex. App.–Houston [1st Dist.] 1992, pet. ref’d). In West v. State, 554 S.W.3d 234 (Tex. App.–Houston [14th Dist.] 2018), where prior convictions were similar to allegations in indictment, but were for conduct that was from 29 years before, the remoteness weighed in favor of excluding the evidence.   

B. Same-Transaction Contextual Evidence

One exception to the admission of extraneous offenses, wrongs, and acts, is same-transaction contextual evidence, which is admissible when the charged offense would make little or no sense without also bringing in the same-transaction contextual evidence. Such evidence is admissible only where such evidence is necessary to the jury’s understanding of the instant offense. Beltran v. State, 517 S.W.3d 243 (Tex. App.–San Antonio 2017, no pet.). In that case, evidence that the defendant was dealing drugs was admissible same-transaction evidence that placed charges on multiple accounts of sexual assault of a child in context, as the evidence was offered to show that the victim’s mother allowed the defendant to sexually assault the victim in exchange for cocaine, and thus was relevant to show how the defendant had access to the victim and why the victim would be at the defendant’s home without her mother. Extraneous offense evidence also may be admissible as same-transaction contextual evidence where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction. In that situation, the jury is entitled to know all of the relevant surrounding facts and circumstances of the charged offense, because the trial of an offense is not in a vacuum. Id. Evidence admitted under the “same-transaction” exception to the rule excluding evidence of extraneous offenses to prove conformity is considered general evidence to be used for all purposes and does not require a limiting instruction. Id.  

On the other hand, evidence of a defendant’s possession of pills at the time of his arrest for DWI was not admissible as same-transaction contextual evidence because the evidence did not confirm the identity of the pills as necessary to show whether the defendant was committing an offense by possessing them, and even if possession of the pills was a separate offense, the evidence related to the pills was not necessary to the jury’s understanding of the charged offense because there was no evidence that the defendant’s intoxication was caused from ingesting the pills. Burnett v. State, 488 S.W.3d 913 (Tex. App.– Eastland 2016, pet. granted 2016). 

C. Doctrine of Chances

Another basis for the admission of extraneous offenses is called the “doctrine of chances,” which indicates that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance. Hinojosa v. State, 554 S.W.3d 795 (Tex. App.–Waco 2018); Duntsch v. State, 2018 WL 6445369 (Tex. App.–Dallas 2018, pet. ref’d). There are no rigid rules that dictate what constitutes sufficient similarities between charged and extraneous offenses under the doctrine of chances. A very high degree of similarity is not required where intent, as opposed to identity, is the material issue. Id.

VI. Evidence of Extraneous Conduct Properly Admitted

In a child sexual abuse case, particularly in an indecency -by-contact case, extraneous offenses commonly become admissible on the issue of intent. If the specific intent to arouse and gratify sexual desire cannot be inferred from the act itself, evidence of extraneous acts may be admitted to prove that intent. Morgan v. State, 692 S.W.2d 877 (Tex. Crim. App.1985). Extraneous offenses may also be admissible on the issue of knowledge, Prescott v. State, 123 S.W.3d 506 Tex. App. – San Antonio 2003, no pet.), and motive, Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1 (Tex. Crim. App. 1994), cert denied 116 S.Ct. 314. Additionally, if there is any defensive testimony or evidence that the contact or exposure was accidental or innocent, the door is then opened to evidence of extraneous acts to show the intentional nature of the charged offense. Baldonado v. State, 745 S.W.2d 491 (Tex. App.–Corpus Christi 1988, pet ref’d). Extraneous act evidence may be admissible to rebut defensive theories of retaliation, Moses v. State, 105 S.W.3d 611 (Tex. Crim. App. 2001); and lack of opportunity, Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001), Rivera v. State, 269 S.W.3d 697 (Tex. App.–Beaumont 2008); Blackwell v. State, 193 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d); Dennis v. State, 178 S.W.3d 172 (Tex. App.– Houston [1st Dist.] 2005, pet. ref’d).

In an attempt to give meaning to the prohibition of character conformity evidence, courts of appeal in Texas distinguished a frame-up defense from a fabrication defense. Case law defined a frame-up theory as where the defendant suggests that he is the victim of a conspiracy, while a fabrication defense is where a defendant contends that the allegations are entirely made up. Courts generally found that extraneous offenses were admissible to rebut a frame-up theory, but not admissible to rebut a fabrication defense. Bass v. State, 222 S.W.3d 571 (Tex. App.– Houston [14th District.] 2007, rev’d in Bass v. State, 270 S.W.3d 557). On petition for discretionary review, the Court of Criminal Appeals held that its case law makes no categorical distinctions between ‘fabrication’ defenses and ‘frame-up’ or ‘retaliation’ defenses. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). The issue does not necessarily turn on the type of defense presented, but on whether the extraneous-offense evidence has non-character conformity relevance by, for example, rebutting a defensive theory or making less probable defensive evidence that undermines an elemental fact. Id. at n.8. Since its decision in Bass, the Court of Criminal Appeals has reversed other courts of appeals’ decisions regarding the distinction between the frame-up and fabrication defenses, instructing the courts of appeals to reconsider their decisions in light of Bass. Galvez v. State, 2008 WL 5259226 (Tex. Crim. App. 2008); Newton v. State, 275 S.W.3d 490 (Tex. Crim. App. 2009). The Court of Criminal Appeals partially relied on Bass in reversing the 5th Court of Appeals in De La Paz v. State, 279 S.W.3d 336, 347 n.33 (Tex. Crim. App. 2009).

The Court’s decision in Bass was noteworthy in other respects. The Court clearly held that a defendant’s opening statement that suggested he did not have the character flaws which would cause him to sexually abuse a child opened the door to the admission of extraneous offense evidence to rebut the defensive theory presented in the defense’s opening statement. Bass v. State, supra at 563, citing Powell v. State, 63 S.W.3d 435, 438-440 (Tex. Crim. App. 2001) (defendant’s opening statement that he lacked opportunity to molest the complainant under the circumstances of the charged offense opened the door to admission of extraneous offense evidence that defendant molested others under almost identical circumstances to rebut defendant’s lack of opportunity theory); Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (defendant’s sweeping direct examination testimony disavowing any sexual misconduct with minors opened the door to admission of extraneous offense evidence of defendant’s sexual misconduct with another minor to rebut his sweeping testimony).

In Bass, the defense’s opening statement put the defendant’s character in issue, and also mentioned that there might be evidence of other allegations. The Court held that the opening statement opened the door to the admission of extraneous offense testimony, in the State’s case in chief, of two other girls who claimed that the defendant molested them. Further, the Court went on to agree with the State’s contention that if the State can show that a defendant has committed similar sexual assaults against unrelated and unconnected children, an affirmative defense allegation that the victim [of the charged offense] fabricated her claim is less likely to be true. By showing that the victim’s allegations are less likely to be fabricated, the evidence directly rebuts the defensive claims and has logical relevance aside from character conformity. Bass v. State, supra at 562-563.

In James v. State, 555 S.W.3d 254 (Tex. App.–Texarkana 2018, pet. dismissed as untimely filed), the trial court did not abuse its discretion in admitting evidence of extraneous offense that defendant evaded arrest 20 days prior to charged crime, as evidence of his modus operandi, and prosecution for evading arrest where the defendant placed his identity at issue during opening statement, which allowed the State to offer evidence of an extraneous offense to prove his identity where there were distinguishing characteristics common both to the extraneous offense and the offense for which he was on trial. The State presented evidence that, in each instance, the defendant led the police on a high-speed chase, took the same roads during the chase, abandoned the same vehicle at the same train crossing, and fled on foot.

In Struckman v. State, 2011 WL 4712236 (Tex. App.–Waco 2011, no pet.) (not designated for publication), the defendant was charged and convicted of continuous sexual abuse of a young child, indecency with a child, and aggravated sexual assault. The complainant was the daughter of the defendant. The conduct began at ages two to three. She was seven at the time of the trial. At trial testimony was admitted from a seven- and a nine-year-old girl of incidents of sexual abuse by the defendant. While the conduct was not the same, the court found it similar enough to be admissible to rebut a defensive theory as both of the victims were young girls, both had their privates rubbed by the defendant’s hand or finger, and both offenses occurred while the victims were in bed. Id. at *4.

In Cross v. State, 2012 WL 6643832 (Tex. App.–Beaumont, pet. ref’d 2013), the defendant was convicted of continuous abuse of a young child. At trial the State was allowed to introduce, over objection, evidence he forced an 18-year-old female to have intercourse with him, even though the criminal charge based on that allegation had been dismissed. The State offered the testimony to rebut defensive theories of fabrication and that the complainant’s claims were not humanly possible because the defendant was of average size. The victim of the extraneous offense was somewhat smaller in size than the complainant in the indictment. The appellate court held the testimony was admissible under Bass to rebut the defendant’s defensive theories, Id. at *2, and the trial court did not abuse its discretion in overruling the defendant’s Rule 403 objection. Id. at 3.

CAVEAT: In the past, extraneous offenses were often admitted in order to rebut a false impression left by a defendant or his witnesses that he is not the type of person to commit such an offense. Townsend v. State, 776 S.W.2d 316 (Tex. App.–Houston[1st Dist.] 1989, pet. ref’d). However, in Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002), the Court made it clear that false impression evidence may only be rebutted by cross-examination of the witness as to the extraneous offenses, not by introducing extrinsic evidence of them. Id., at 885. The Court, nonetheless found that the admission of extrinsic evidence was proper in Wheeler, to rebut the defendant’s frame-up evidence.

VII. Admission of Extraneous Conduct Evidence Was Error

Although there appears to be wide latitude in the admission of extraneous offenses, courts have found some evidence goes too far. In Pittman v.State,321S.W.3d 565 (Tex. App. –Houston [14th Dist.] 2010, no. pet.), the defendant was indicted, as part of the “Mineola Swingers” investigation, for one count of aggravated sexual assault in which he was alleged to have caused two minor children to engage in sexual conduct with one another. The trial court admitted extensive evidence pertaining to the other Swinger defendants and complainants on the theory that it showed the defendant’s plan to engage in a sexual exploitation/abuse scheme with several other defendants. However, the court of appeals held that the evidence of the many extraneous acts did not show a plan to sexually assault the two complainants for whom the defendant was indicted, but rather, was evidence of repeated occurrences of the same bad act, compounded by numerous additional bad ones. Id. at 573. The court found the evidence was inadmissible under Rule 404(b) because it was character conformity evidence, and under Rule 403.      

In Fox v. State, 283 S.W.3d 85 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d), the defendant was charged with indecency by contact with his former stepson. The defendant complained on appeal of the admission at trial, over objection, that he was a cross dresser, had a homosexual experience as a teenager, and was the victim of attempted sexual abuse by an adult male. The Court of Appeals found that the evidence of cross dressing was not relevant because it did not assist the jury in its determination of whether the defendant sexually assaulted the complaining witness.

In Atnipp v. State, 517 S.W.3d 379 (Tex. App.–Eastland, pet ref’d), a witness’ testimony that she heard gunshots, saw the defendant shoot chickens, and saw the defendant pile them on the road in front of his residence was not admissible in prosecution of the defendant for cruelty to a non-livestock animal, because this other act evidence did not logically relate to the impeachment of the testimony given by the defendant during his direct examination, namely that the dog, which was outside the house, acted aggressively toward the defendant and the defendant’s dog, and that the defendant was concerned for the safety of his dog, and this evidence was aimed to discredit the defendant by demonstrating that he had a bad character or that he had a propensity for committing bad acts.

VIII. Conclusion

The appellate courts have steadily widened the circumstances where extraneous offenses may be admitted. If evidence has relevance for a reason other than character conformity, the extraneous evidence will likely be found to be relevant, pursuant to Rules 401, 402 and 404(b), Tex. R. Evid. and Art. 37.07, Section 3, C.C.P. Defense counsel should be sure to follow any adverse relevancy ruling with a Rule 403 objection. As the relevancy window widens, the Rule 403 balancing exercise becomes even more important.