COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ROBERTO SILVAS , Appellant,

v. THE STATE OF TEXAS , Appellee. § § § § § § No. 08

- 14

- 00147

- CR

Appeal from the
120th District Court
of El Paso County , Texas (TC# 20110D02228 )

O P I N I O N A jury found Ap pellant Roberto Silvas guilty of indecency with a child by sexual contact and aggravated sexual assault of a child and sentenced him to 20 years and 35 years imprisonment , respectively

. On appeal, Appellant contends the trial court erred in excluding the testimony of his expert witness . He also contends the trial court erred in denying his motion for mistrial based on a juror’s alleged failur e to disclose she worked at the Child Advocacy C enter, and because an
outside influence was improperly brought to bear on the jury. We affirm.
BACKGROUND The charges against Appellant aro se from his contact with J.E. when she was eleven years old. Appellant and J.E.’s mother met at a bar where Appellant played in a band. They dated, and Appellant later met her children , including J.E. Eventually, they all came to live together in2

Appell ant ’s apartment

. At one point, Appell ant made the family move out of his apartment after a fight , but they mov ed back in three months later. J.E. testified that about a week after they moved back in, Appellant grabbed her buttocks while she was giving him a hug. Later, Appellant touched her inappropriately by putting his hands down her pants and his fingers inside her vagina. Appellant then unzipped his pants and
tried to get J.E. to put her hand on his penis. She refused. About three weeks later, J.E. was returning with Appellant from a trip to a convenience store when Appellant stopped the car and tried to force her legs apart. J.E.’s mother testified that a fter J.E. tol d her what Appellant had done, she confronted Appellant, who said he was sorry, he didn’t know why he did it, and he knew he was wrong. Appel lant testified at trial. Appellant denied that he had ever grabbed J.E.’s buttocks, denied that
the incident in his apartment described by J.E. ever happened, and denied that anything improper

oc curred during the trip to the con venience store . Appellant also denied that any conversation
had occurred with J.E.’s mother where he said he was sorry.
DISCUSSION Expert Witness In Issue One, Appellant contends the trial court erred when it excluded the testimony of his expert witness Judy Ackers. The admissibility of expert testimony is reviewed on appeal for an
abuse of discretion. Coble v. State , 330 S.W.3d 253, 272 (Tex.Crim.App. 2010)

. Background Joe Zimmerly, a forensic inter viewer with th e El Paso Child Advocacy Center, 1

1 Zimmerly testifie d t he Child Advocacy Center i s a nonprofit organization that facilitates investigations of physical and sexual abuse of children. The Center houses the Crime Against Children section of the El Paso Police3

interviewed J.E. several mon ths after the assault

. Appellant offered the video recording of Zimmerly ’s interview of J.E

. into evidence during his cross

- examination of J.E. The video was later played to the jury immediately before Zimmerly testified

. Zimmerly testified in general

terms concerning the interview , including his recollection that J.E. had not contradicted herself during the interview . Zimmerly opined that the existence of minor discrepancies b e tween the video recording and the child’s testimony at trial four years later would not mean the child was lying. Zimmerly also discussed a detailed drawing J.E. had made of the layout of the apartment where Appellant h ad molested her, on the back of whic h she had written “I hate Bobby

. ”
After the State had rested , defense coun sel announced Appellant would call as his first
witness his expert, Ju dy Ackers. T he trial court first allowed the parties to voir dire Ackers on her qualific ations and proposed tes timony. During this voir dire, t he trial court interspersed its own questions to Ackers. Among other things , Ackers stated her opinion that Zimmerly’s interview of J.E. was “very amateurish, very inconsistent, [and he was] basically leading the child.” Ackers
admitted during voir dire that while she is a licensed and board

- certified professional counselor and psychotherapist who had interviewed over 100 child abuse victims in therapy , she wa s not a forensic interviewer and wa s not licensed in forensic wo rk. Accordingly, Appellant offered Judy Ackers as an exper t in “ child victim interviewing, not forensic interviewing [

. ] ” T he trial court
ruled Ackers could testify re garding her field of expertise

— providing ther apy and interviewing
children

—

but did not h ave sufficient expertise to testify about forensic interviewing in general,

nor about Zimmerly’s forensic i nterview in particular. Ultimately, Appellant did not call Ackers

Department, investigator s for Child Protective Services, and offices for district and county attorneys. Zimmerly described the Child Advocacy Center as a child

- friendly environment where children are brought to be interviewed by Center staff, CPS, and law enforcement. Zimmerly stat ed he was a neutral fact finder for the Child Advocacy Center and did not work for the police or CPS.4

as a witness. Appellant makes a narrow argument on appeal. Appellant argues the trial court abused its
discretion because Ackers established her expertise in the area of counseling and child interviewing, and there was no basis to “ exclude ” Ackers’ “expert opinion that Zimmerly’ s interview techniques employed improper and leading questions and [ was ] amateurish. ” 2 Analysis
We conclude the trial court did not abuse its discretion. A s the State correctly points out, the trial court did not exclude Ackers’ testimony. Rather, the court was not satisfied that Ackers had the experienc e to testify as an expert about forensic interviewing, and rule d only that it “would not permit her to testify or provide an opinion about forensic interviewing.” This was consistent with Appellant’s offer of Ackers as an exper t in “ child victim interview ing, not forensic interviewing [

. ] ” More importantly, the trial court specifically found that Ackers’ testimony would be “helpful to a jury,” and ruled that “I’ll let her testify . . . but as an expertise [sic] in her field, which is, she does have expertise in therapy and interviewing children.” In explaining her
rul ing, the trial court stated that Acke rs had the qualifications “to give her opinions about what’s better interviewing . . . and I [ will ] permit that [

. ] ” The court also made clear that Ackers could “talk about her concerns” that she had described in her voir dire testimony. One of the concer n s Ackers expressed in voir dire was that Zimmerly’s interview of J.E. was “very amateurish, very

2 When asked in voir dire if she would testify about “the truthfulness or untruthfulness of this child in this video,” Ackers responded that she would “testify about the [child’s] demeanor and my impression.” Appellant offered Ackers as an expert witness in part “to give an opinion as to the demeanor of a child and what a typical response is to

— what a normal response to a question about rape or sexual abuse would be.” At one point i n her ruling, the trial court indicated that Ackers would not be allowed to testify whether J.E. was tellin g the truth n or would she be allowed to imply from J.E.’s demeanor whether J.E. was telling the truth. At other times, however, it appears the trial court would allow some testimony in this regard. In any event, Appellant d oes not attack this part of the trial court’s ruling on appeal, but rather complains only about the exclusion of Ackers’ opinion that Zimmerly employed improper and le ading questions and that his interview was amateurish.5

inconsistent, [and he was] basically leading the child,” which is the very testimony Appellant claims was erroneously excluded. In sum, the record shows that the trial court was going to allow Ackers to testify about t he very subject Appellant contends was excluded. 3 Issue One is
overruled. 4
Motion for Mistrial Appellant’s second and third issues concern Appellant ’s contentions that the trial court erroneously denied his motion for mistrial after the trial court informed the parties that she had
been informed that a juror allegedly had not disclosed dur ing jury selection that she worked at the Child Advocacy Center

. Standard of Review
A mistrial is a n appropriate remedy in “extreme circumstances” for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App. 2009) ; see also Mendoza v. State , No. 08

- 13

- 00293

- CR, 2015 WL 5999596, at *5 (Tex.App.

– El
Paso Oct. 14, 2015 , pet. ref’d) (not designated for publication)

. We review the denial of a mistrial
for an abuse of discretion. Ocon , 284 S.W.3d at 884; Mendoza , 2015 WL 5999596, at *5. We must uphold the ruling if it w as within the zone of reasonable disagreement. Ocon , 284 S.W.3d at 884; Mendoza , 2015 WL 5999596, at *5. In determining whether a trial court abused its discretion by denying a mistrial, we would balance three factors: (1) the severity of the

3 If Appellant had any doubts abou t the scope of the trial court’s ruling, he should have asked for further clarificat ion ; or Appellant should have had Ackers testify, which he declined to do.

4 Even if the trial court had abused its discretion, we could not determine whether the claimed “exclusion” of Ackers’ testimony was harmful, because the record fails to show the basis of Ackers’ bare opinion that Zimmerly’s interview of J.E. was “very amateurish, very inconsistent, [and he was] basically leading the child.” See Coble , 330 S .W.3d at 277 n. 62 (citing Burrow v. Arce , 997 S.W.2d 229, 235 (Tex. 199 9) ( “Although expert opinion testimony often provides valuable evidence in a case, ‘it is the basis of the witness ’ s opinion, and not the witness ’ s qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse di xit of a credentialed witness.’ ” ).6

misconduct (the magnitude of the prejudicial effect); (2) the effectiveness of the curative measures taken; and (3) the certainty of conviction or the punishment assessed absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Mosley v. Sta te, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998); Mendoza , 2015 WL 5999596, at *5. Background After the jury had retired to deliberate, the trial court info rmed the parties that Juror
Number 8

— Heather Jones, the presiding juror

—had called the court reporter and advised her “that one of the jurors works at the Advocacy Center.” The trial court further informed the parties that she had reviewed the juror information forms and that no one seated on the jury had indicated they worked for the Advocacy Center. The court recalled that during voir dire the parties had questioned the jury panel about involvement with any rape crisis advocacy groups , and that one panel member had indicated that her husband was on the Board of the Child Advocacy Center.
The trial co urt believed this would have prompted any other panel member to “have stood up and informed the parties” of “even a vague involvement” with the Advocacy Center. The court also
inf ormed the parties that th e staff of the Advocacy Center wa s very sm all and t hat she did not
believe that any of the staff were on the jury. The court informed the parties that other than its prior admonishment of the jury that the case must be decided on the law and the evidence, the court would not further inquire with the juror s about the info rmation that had been relayed.
Defense counsel then moved for a mistrial stating: [ W ] e ’ re going to be asking for a mistrial, due to an obviously biased juror. It sounds like she withheld information during the voir dire process, and is be coming an advocate in this jury room because, obviously, she's relaying information to the rest of the jury that she's a member of the Child Advocacy group. And I believe that the jury is now tainted. I do not believe Mr. Silvas can receive a fair trial at this point.7

The t rial court denied the motion

. Analysis In Issue Two, Appellant argues that mistrial should have been granted because his ability to select an impartial jury was hindered by a juror withholding information about working at the
Child Ad vocacy Center despite counsel’s diligence, thereby violating his federal and state constitutional rights to due process. In particular, Appellant argues that the presiding juror,

“ Heather Jones

. . . did not say anything about her association/employment/relationship with the Child Advocacy Center and Joe Max Zimmerly. ” Appellant is correct that if despite the defendant’s due diligence, a juror withholds material information during the voir dire process, the parties are denied the o pportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury , thereby violating the Sixth Amendment guarantees of the assistance of counsel and trial before an impartial jury. Franklin v. State, 138 S.W.3d 351, 354

- 56 (Tex.Crim.App. 2004). Appellant’s argument, however, fails for two reasons. First, the record does not show that juror Heather Jones had any association with the Child Advocacy Center. Rather, the record shows only that Heather Jones
was the juror who reported “that one of the jurors works at the Advocacy Center.” Second, the record does not establish that any juror in fact had any association with the Child Advocacy Center or Zimmerly. The record sh ows only that Heather Jones told the cour t reporter that one of the jurors works at the Advocacy Center , and contains no evidence supporting that accusation

. Further, the record reveals that after inquiry and reflection, the trial court did not believe that anyone from the staff of the Child Adv ocacy Center was on the jury. Put simply , the record before us does not establish that any juror in fact had any association8

with the Child Advocacy Center or that a juro r actually withheld information during the voir dire
process . And , Appellant did not attempt to establish during or after trial that a juror had actually withheld information during the voir dire process. 5 Because the record before us does not show that any juror in fact had any association with the Child Advocacy Center or that a juror a ctually withheld information during the voir dire process , we cannot conclude the trial court abused its discretion in refusing to grant Appellant’s motion for mistrial. Issue Two is overruled. In Issue Three, Appellant contend s in a related argument that mistrial should have been granted because the jury panel as a whole was prej udiced by an improper outside influence

— the knowledge that a fellow juror worked with Zimmerly, “the State’s key witness,” thereby violating his federal constitutional right to a fair and impartial jury. We recognize that i n some instances, a juror bringing outside information into jury room deliberations can constitute an improper outside influence requiring a new trial. See, e.g., McQuarrie v. State , 380 S.W.3d 145 , 155 (Tex.Crim. App. 2012) (i nternet research conducted by a juror about effects of date rape drugs constituted “outside influence” about which defendant should have been permitted to conduct post

- trial inquiry, without delving into deliberations, on motion for new trial on charge for sexual assault, to determine whether such influence impacted outcome of case ). But, as above , Appellant’s contention in Issue Three fails for a total lack of evidence. Appellant stated in his motion for mistrial that the juror who allegedly withheld information during the voir dire process “ is becoming an advocate in this jury room because, obviously, she ’ s relaying information to the rest of the jury that she ’ s a member of the Child

5 Appellant did not complain in his motion for mistrial, nor does he complain on appeal, that the trial court should have ma de further inquiry into this matter with the jury . And, while Appellant moved for a new trial based on “juror misconduct,” he did not attach any evidence to that motion to establish that any juror in fact had any association with the Child Advocacy Center , nor does Appellant complain on appeal that the trial court erred in denying his motion for new trial.9

Advocacy group. And I believe that the jury is n ow tainted. ” But, the record does not bear out any of these allegations. The record does not show that any juror became “an advocate in [ the ] jury room,” or if any juror relayed any information to the rest of the jury that “she’s a member of
the Child Ad vocacy group.” The record shows only that the presiding juror believed one of the jurors worke d for the Child Advocacy Center, and even then t he record fails to show the source of that knowledge. More importantly , the record does not reflect the jury had become “tainted ” or in
other words that any such influence impacted the outcome of the case. Certainly, based on the state of the record when it denied Appellant’s motion for mistrial, the trial court did not abuse its
discretion. And, while Appellant m oved for a new trial based on “juror misconduct,” he did not
attach or present any evidence to establish that any juror in fact had any association with the Child Advocacy Center or had relayed that information to the other jurors, or that any such influen ce impacted the outcome of the case. 6 We therefore conclude the trial court did not abuse its discretion in denying Appellant’s motion for mistrial. Issue Three is overruled.
CONCLUSION The trial court’s j udgment is affirmed

.
STEVEN L. HUGHES, Justice October 5, 2016 Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)

6 As noted above, Appellant does not complain on appeal that the trial court erred in den ying his motion for new trial.