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.

Footnotes

  1. The Court of Criminal Appeals held that Rule 702 incorporates Rules 402 and 403 analysis.  Id.
TCDLA
TCDLA
Craig Jett
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.
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