Opinion filed July 22, 2010



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 08

- 00 285

- CR

__________ ANTWON TREVON COTTRELL , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR33742

M E M O R A N D U M O P I N I O N
After a jury had been selected, Antwon Trevon Cottrell entered a plea of guilty to a charge of aggravated sexual assault of a child. Cottrell elected to have the jury assess his punishment. Based upon the evidence that it heard, the jury assessed Cottrell’s punishment at confinement for ten years and a fine of $619.07. We affirm. There is no challenge to the sufficiency of the evidence. The evidence, including appellant’s own testimony, shows that appellant intentionally and knowingly caused the penetration of the victim’s female sexual organ with his own sexual organ.2

In his first issue, Cottrell maintains that the trial court erred w hen it allowed David
Hernandez , a therapist with the Children’s Rape Cris i s and Children’s Advocacy Center, to testify about the impact of an incident such as this upon a child victim

. Although Hernandez had not counseled the victim, he detailed g eneral ly the effects that such an event c ould have on a child ; he did not opine on the effects on this particular victim. The victim’s mothe r, however, testified to the changes in the victim after the assault. The State argues that Cottrell has waived any error in th e admission of this testimony because he failed to make a specific objection to it. While the State might be correct, we will address the issue as Cottrell presents it on appeal: the trial court allowed Hernandez to testify outside the scope of his expe rtise. We review decisions to admit expert testimony for an abuse of discretion. Gallo v. State
, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007). A trial court abuses its discretion when its
decision lies outside the zone of reasonable disagreement. Casey v . State , 215 S.W.3 d 870, 879 (Tex. Crim. App. 2007). Rule 702 of the Texas Rules of Evidence provides: “ If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a w itness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. ” T EX

. R. E VID

. 702

. Before a witness may testify about scientific, technical, or other specialized matters, t he party offering the testimony bears the initial burden of demonstrating, by clear and convincing evidence, that the evidence is reliable. Russeau v. State , 171 S.W. 3 d 871, 881 (Tex. Crim. App.
2005 ). It must be such that it will “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). When a party offers expert testimony, he must show that the testimony is reliable because
unreliable evidence will not assist a jury to understand the evidence or accurately determine a
fact in issue. State v. Medrano , 127 S.W.3d 781, 784

- 86 (Tex. Crim. App. 2004). The proponent of the expert testimony must establish that the expert has knowledge, skill, experience, training, or education that would qualify the expert to give an opi nion on that particular subject
before the trial court. Malone v. State , 163 S.W.3d 785, 793 (Tex. App.

— Texarkana 2005, pet.
ref ’ d).3

In Kelly , the Court of Criminal Appeals announce d a three

- pronged test for use in determining whether novel scientific evidence would be admissible. Kelly v. State
, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)

. The three inquiries were: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Id

. Later, the court held that the test applied to all scientific evidence. Hartman v. State , 946 S.W.2d 60, 62

- 63 (Tex. Crim . App. 1997). Subsequently, the court held that Kelly qualifiedly applied to nonscientific expert testimony. Nenno v. State , 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas , 4 S.W.3d 720, 727 (Tex. Crim. App. 1 999). “ When addressing fields of study aside from the hard sciences, such as the 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 ri gor than to the hard sciences. ” Nenno , 970 S.W.2d at 561. Before a trial court admits expert testimony in the soft sciences
, it should determine (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 te stimony properly relies upon and utilizes the prin ciples involved in the field. Medrano , 127 S.W.3d at 785 (citing Nenno , 970 S.W.2d at 561). Ultimately, reliability is the corne rstone of all scientific evidence cases.
Medrano , 127 S.W.3d at 785.
T he Court of Criminal A ppeals has recognized that the type of evidence offered in this

case by Hernandez is within a field of legitimate expertise. Cohn v. State , 849 S.W.2d 817, 818

- 1 9 (Tex. Crim. App. 1993); see also Dennis v. State , 178 S.W.3d 172, 181

- 82 ( Tex. App.

— Houston [1 st Dist.] 2005, pet. ref’d) (child psychotherapist and social worker testified about general characteristics of child sexual assault victim) ; Jens e n v. State , 6 6 S.W.3d 528, 542

- 43 (Tex. App.

— Houston [1 4 th Dist.] 200 2 , pet. ref’d) ( c hild advocacy worker testified about difficulty of detecting sexual abuse of children by observing just the relationship between victim and accused); Hernandez v. State , 53 S.W.3d 742, 744, 750

- 51 (Tex. App.

— Houston [1 st Dist.] 2001, pet. ref’d) (child advocacy witness testified about “Child Abuse Accommodation Syndrome”)

. Further, the record reflects that the subject matter of Hernandez’s testimony falls within the scope of the pr eviously recogni zed field of expertise

. Also , Hernandez did not testify that he relied upon any particular methodology as a basis for his testimony

. H e based h is testimony upon his practice and experience. A person may acquire special knowledge that wil l4

qualif y him to give an expert opinion “ from specialized education, practical experience, a study of technical works, or a varying combination of these things.” Wyatt v. State , 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).
The evidence showed that
, a t the t ime of trial, Hernandez had been employed by the Children’s Rape Crisis and Children’s Advocacy Center for over five years. He is a licensed professional counselor. In order to be licensed as a professional counselor in Texas, one must obtain a master’s degree in education, counseling, or psychology and obtain 3,000 hours as an
intern. In order to maintain his license, the State of Texas requires twenty

- four hours of continuing education each year. During the course of his career, Hernandez has counsele d hundreds of people, the majority of whom were victims of sexual abuse. Hernandez specializes
in trauma and sexual abuse and has testified many times as an expert in cases such as this one

. H e told the jury that he was basing his testimony upon his “ pra ctice and experience.”
We believe that this evidence is sufficient to establis h Hernandez’s qualifications to testify as an expert on the effects that sexual abuse could have on child victims

. The State established, through the testimony we have outlined , that Hernandez ha d the knowledge, skill, experience, training, and education that would qualify him to give an opi nion on the particular

s ubject before the trial court. In view of Hernandez’s background and the admissibility of such matters generally , w e hold that the State demonstrated the reliability underlying his testimony.
T he trial court did not abuse its discretion when it allow ed Hernandez to testify as an expert. Cottrell’s first issue is overruled. In his second issue, Cottrell argues that the trial court erred when it admitted hearsay
statements attributed to the SANE nurse who examined the victim. T he
State called the victim’s mother to testify. Early in her testimony, the victim’s mother was attempting to explain that the SANE nurse “ex plained who she was

. ” Cottrell’s counsel interjected an objection that the answer was not responsive and also called for hearsay. Later in her testimony, the victim’s mother testified that the SANE nurse told her that the victim had been penetrated. Bef

ore she could finish the entire answer , the tria l court asked Cottrell’s lawyer:

“ [I] s your objection continuing?” Counsel responded, “Yes, sir, it is, Your Honor.” The trial
court told the victim’s mother that she could not testify to things that the n urse told her. Defense counsel asked the trial court to strike the testimony and to instruct the jury to disregard it , and t he
trial court did.5

We note at the outset that the hearsay statement was not admitted before the jury. Although the victim’s mother testified about what the nurse said, the trial court struck the testimony and instructed the jury to not consider it. Because the trial court did not admit the testimony, Cottrell’s complaint is without merit. Further, to preserve error for appe al, a defendant must obtain an adverse ruling by objecting, by requesting an instruction to disregar d, or by moving for a mistrial. Cook v. State
, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993)

. I f a defend ant has been given all the relief that he requested at trial, then there is nothing of which to complain on appeal. Id. The trial court
sustained Cottrell’s objections and gave the requested instruction to disregard

. Because Cottrell received all of the relief that he sought from the t rial c ourt, there is nothing about which h e can complain on appeal. We overrule Cottrell’ s second issue. We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

July 22, 2010 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel con sists of: Wright, C.J., McCall, J., and Strange, J.