Opinion
Nos. 05-02-01661- CR 05-02-01662-CR
Opinion issued October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-40492-HN F01-40493-HN. AFFIRMED
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Donald Phillip Moore appeals his convictions for aggravated sexual assault. After finding appellant guilty, the jury assessed punishment at thirty years' confinement and a $10,000 fine in each case. In a single issue, appellant contends the trial judge erred in excluding certain testimony by appellant's expert witness. We affirm the trial court's judgments. Appellant was charged with the aggravated sexual assault of his daughters, eight-year-old S.M. and nine-year-old B.M. During trial, both daughters testified their father had touched them in a bad way. B.M. testified her father undressed her and put his private in her private and that it hurt. S.M. also testified her father had put his private in her private. Their younger brother, J.M., testified he saw his father touch S.M. and B.M. in a bad way. Following the case in chief, appellant called Debra West, an advanced practice nurse providing primary care to families at the Ferguson Rural Health Clinic in Dewitt, Arkansas, to testify. The jury was excused, and the judge held a hearing to determine whether West could testify that it would be physically impossible for an adult male to penetrate a female child without rupturing the hymen. The judge then ruled West was not qualified to testify as an expert on the significance of an intact hymen. Although appellant assigns this ruling as error, we cannot agree. "The special knowledge which qualifies a witness to 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); see Tex.R.Evid. 702. Whether a witness offered as an expert possesses the required qualifications is left to the trial judge's determination, and we review such determinations under an abuse of discretion standard. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000) ("The question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court's discretion.") Absent a clear abuse of discretion, we will not disturb the trial judge's decision to admit or exclude testimony. Wyatt, 23 S.W.3d at 27; Penry, 903 S.W.2d at 762. The party proffering the expert witness bears the burden of showing the witness is qualified on the specific matter in question. Penry, 903 S.W.2d at 762. During the hearing, West testified she had experience conducting "initial" rape examinations on children suspected of being sexually abused. In a "initial" exam, she examines the child visually for obvious signs of vaginal or rectal tearing, bleeding, discharge, or scarring. She then refers the child to another hospital for further testing. West testified that in her professional opinion, there "is just no physical way [for an adult penis] to enter the [child's] vagina without rupturing that hymen." On cross-examination, West testified she based her opinion on studies mentioned at sexual seminars she had attended but conceded she did not specialize in "gynecology or anything like that." Although she did pelvic exams on adult rape victims, she did not perform them on the female children, referring them, instead, to a hospital. When asked how many initial exams she had performed on children who were allegedly victims of sexual abuse, she stated she had examined "between thirty and fifty" boys and girls. She conceded she had not performed any examination of the children in this case for indications of sexual abuse. At the conclusion of the hearing, the trial judge ruled West was not qualified to testify as an expert that it is physically impossible for an adult male to penetrate a female child without rupturing the hymen. The judge noted:
The other thing you should be aware of, this is by penetration and it has nothing to do with how far the penetration is. Any breaking of the cavity itself is sufficient to establish legally the guilt. So, I'm not going to let her come up here and testify as an expert about whether or not the hymen being intact, not intact has anything to do with whether or not the aggravated sexual assault has been committed, because it can be committed in different ways.After reviewing the record, including West's testimony and responses to cross-examination. we cannot conclude the trial judge's decision was "so clearly wrong as to fall outside the zone of reasonable disagreement" or that he acted arbitrarily and unreasonably, without reference to any guiding rules or principles. See Fox v. State, 2002 WL 122056, *12 (Tex.App.-Houston [14th Dist.] Jan. 31, 2002, pet. ref'd) (holding that trial judge did not abuse discretion in finding witness not qualified to testify as expert when witness had little experience in dealing specifically with abused children and little experience in techniques used to interview abused children); see also Frierson v. State, 839 S.W.2d 841, 850 (Tex.App.-Dallas 1992, pet. ref'd) (concluding trial judge did not abuse discretion in finding sergeant not qualified to testify as expert on law of warrantless searches); cf. Gregory v. State, 56 S.W.3d 164, 179 (Tex.App.-Houston [14th Dist.] 2001 pet. dism'd) (holding nurse was qualified to testify as expert: nurse had completed one-year course dedicated to sexual assault cases, studied medical literature on genital findings in sexually abused children, performed sexual assault examinations for more than four years, and completed over 650 examinations, approximately eighty percent of which were performed on children under age twelve; nurse outlined procedures she performs during examination of suspected sexual assault victim, explaining in detail discrete steps in process, including taking brief history from patient for diagnosis and treatment, conducting complete physical examination, performing detailed genital examination with child in lithotomy position, and conducting examination of hymenal rim using colposcope, which magnifies tissues and enables examiner to see abrasions, tears, or abnormalities), cert. denied, 123 S.Ct. 1787 (2003). We cannot conclude the trial judge abused his discretion in excluding West's testimony. We overrule appellant's sole issue. We affirm the trial court's judgments.