Opinion
No. 10-02-118-CR.
Opinion delivered and filed July 30, 2003. Concurring opinion delivered and filed July 30, 2003. DO NOT PUBLISH.
From the 359th District Court, Montgomery County, Texas, Trial Court # 01-09-05568-CR.
Stephen D. Jackson, Law Office of Stephen D. Jackson, Conroe, Texas, for Appellant. Michael A. McDougal, Montgomery County Asst. Dist. Attorney, Montgomery, Texas, for Appellee.
Before Chief Justice Davis, Justice Vance, and Senior Justice Hill (Sitting by Assignment) (Justice Vance concurring)
MEMORANDUM OPINION
Danny Howard Beatley appeals his conviction of the offense of sexual assault of a child upon his plea of guilty before the court without an agreement as to punishment. After a punishment hearing, the trial court assessed his punishment at ten years in the Texas Department of Criminal Justice, Institutional Division. He contends in a single issue that the trial court abused its discretion by allowing a licensed professional counselor to rebut the testimony of licensed psychologists whom Beatley had previously called to testify. We affirm. Rule 702 of the Texas Rules of Evidence provides that, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Under Rule 702, the proponent of scientific evidence must show, by clear and convincing proof, that the evidence offered is sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or in determining a fact in issue. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The reliability of "soft" science evidence may be established by showing that: (1) the field of expertise involved is a legitimate one; (2) the subject matter of the expert's testimony is within the scope of that field; and (3) the expert's testimony properly relies upon or utilizes the principles involved in that field. Id. In reviewing a trial court's ruling on the admissibility of evidence, we must utilize an abuse-of-discretion standard, upholding the trial court's ruling if it is within the zone of reasonable disagreement. Id. Aisling Ryan, a licensed professional counselor, testified that she has a master's degree in clinical psychology from the college of Dublin, Ireland, although she is not licensed as a clinical psychologist. She said that she is eligible to administer, score, and interpret tests that speak to aptitude, intelligence, and characteristics of personality. She specifically stated that she is eligible to administer "these kinds of tests," referring to the MSI and the MMPI. She stated that she was unsure as to whether she could purchase such a test from its producer. She indicated that in the past she had administered these tests under the direction of a licensed psychologist. She also related that she had conducted psychological evaluations under the direction of a psychologist, but not outside such direction. She acknowledged that she was not currently under the direction of a psychologist, nor was she currently doing any psychological evaluations. Ryan testified that the last time she had administered the MMPI was during her tenure at Corpus Christi, working with Dr. Fisher and Dr. Michael, but she did not say when that was. Beatley asserts that Ryan conceded that she had never administered or scored the test. However, Ryan stated that the MMPI2 is a self-administered test with results that can be generated by scoring with templates or by computer, and that she can speak to the results of those tests. She acknowledged that she had probably interpreted the results of such tests more than ten times, but was unsure if she had done it more than twenty. She further acknowledged that the administration, scoring, and interpreting of the MMPI and MMPI2 tests are typically done by clinical psychologists, and that her interpretations were done under the supervision of licensed clinical psychologists. She said that she had not previously testified as an expert. When her qualification as an expert on the MMPI2 test was questioned, she stated that she was specifically trained on "MMPI." She had previously testified that use of the MMPI test had slowly been phasing into use of the MMPI2. While Beatley insists there is evidence Ryan was not allowed to possess or interpret the MMPI unless she was working under the guidance of a licensed psychologist, the evidence to which he refers shows that she was not required to be under the supervision of a psychologist in order to administer and interpret the MMPI2 test. Her testimony in court concerned only the MMPI2 test. Dr. Carmen Petzold, a psychologist called by Beatley, testified that by her license she could not turn over certain materials concerning the test to a licensed professional counselor who was not a licensed psychologist because that person would not have the training of a psychologist. Ryan also testified that she had been trained in the Giaretto model of treating sex offenders. She indicated that was a model of treating sexual abuse in families, including treatment of the offender. She said it requires individual and family therapy, and that it incorporates principles generally used in treating sex offenders. She stated that she had treated sex offenders and hundreds of children who were victims of sex crimes. She acknowledged that she had treated less than one dozen offenders. She related that she had attended a treatment symposium for treating sex offenders, in addition to a generalized reference to sex offenders in her education, and the training on the Giaretto model. The trial court could reasonably have determined that the State established, by clear and convincing evidence, that Ryan was a licensed professional counselor; with experience and training in the area of administering, scoring, and interpreting the MMPI2 test; and with experience and training in the treatment of sexual offenders. The trial court could also have reasonably determined that the State also established, by clear and convincing evidence, that Ryan's testimony was sufficiently reliable to assist the jury by showing that her field is a legitimate one, that the subject matter of her testimony was within the scope of that field, and that her testimony properly relied upon or utilized the principles involved in that field. Consequently, we hold that the trial court did not abuse its discretion in allowing Ryan to testify as an expert. Beatley notes several deficiencies in Ryan's experience, including the following: (1) she had not administered or evaluated the MMPI or its results on a person for some period of time (he says over two years, but it is unclear from the record); (2) she had only administered tests like the MSI and the MMPI while supervised by a psychologist with credentials; (3) she had only conducted psychological evaluations under the auspices of another psychologist's credentials; (4) she had only administered the MMPI2 approximately six times in twenty years; (5) she probably had administered the MMPI more than ten times; (6) she had never previously testified as an expert; and (7) she had only interpreted test results of the MMPI while under the supervision of a licensed psychologist. Based upon these deficiencies in Ryan's background, Beatley asserts that Ryan had no qualifications, experience, or authority to interpret the results of the tests in evidence. This argument ignores Ryan's testimony that she was qualified by training and experience to interpret the results of the MMPI2 test and had recently administered that test 20-25 times. Although she had previously interpreted the results of this test while under the supervision of a clinical psychologist, she testified that she was not required to do so. As we have previously noted, the trial court could have reasonably concluded that the State established by clear and convincing evidence that she was an expert whose testimony was reliable so that it would assist the jury in accurately understanding other evidence or in determining a fact in issue. Beatley primarily relies upon the case of Fox v. State, ___S.W.3d ___, 2002 WL 122056 (Tex.App.-Houston [14th Dist.] Jan. 31, 2002, pet. ref'd). We find Fox to be distinguishable. In that case the trial court did not allow the testimony of a witness due to her limited experience in dealing specifically with abused children and in the technique typically used to interview such children. Id. at ___. We first note that the court did not analyze the witness's reliability in accordance with the standards set forth in Weatherred. Id. Even if the opinion is correctly decided, we note that in Fox the trial court denied the admission of the expert's testimony, while in the case at bar the trial court allowed the admission of the testimony. As noted in Fox, the trial court has wide latitude in determining whether to admit such testimony. Id. at ___. We overrule Beatley's sole issue. The judgment is affirmed. Affirmed
CONCURRING OPINION
I concur in affirming the judgment. I would, however, sustain Beatley's complaint about the admissibility of the "expert" testimony, because the State failed to meet its burden of showing that the witness is qualified on the specific matter in question. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). A court of appeals may no longer presume that the trial judge disregarded inadmissible testimony in a bench trial. Gipson v. State, 844 S.W.2d 738, 741 (Tex.Crim.App. 1992). Thus, a harm analysis is required. In light of the reports and extensive testimony from Dr. Roger Saunders and Dr. Carmen Petzold, both offered by Beatley and heard by the trial judge who was the fact finder at the punishment hearing, I would find the error harmless. Tex.R.App.P. 44.2(b) (error harmless unless substantial rights violated).