Morris v. State

delivered the opinion of the Court in which

We granted review to determine whether the “grooming” of children for sexual molestation is a legitimate subject of expert testimony. We hold that it is.

I. BACKGROUND

A. Appellant’s Conduct toward the Victim

When the victim in this case was eleven years old, his mother began dating appellant. Appellant and the victim would go to the park, rollerblade, and ride mountain bikes. They would discuss sexual matters, including sex and masturbation. Appellant told the victim that this was “guy talk” and not to mention it to his mother. Later, appellant gave the victim back rubs, and these back rubs continued after appellant married the victim’s mother.

Once, after seeing a movie, appellant asked the victim if he had masturbated yet. Appellant was persistent in this questioning until the victim gave him an answer. At some point, the victim got a full-sized bed, and appellant would tuck him into bed. At this time, he would talk to the victim about masturbation and sex and would rub the victim’s back. While rubbing the victim’s back, appellant was wearing only briefs. And sometimes appellant would take those off, and take the victim’s underwear off, so they could have skin-to-skin contact. Appellant would also rub the victim’s buttocks and sometimes rub his chest and thighs. Occasionally, appellant’s hands would brush against the victim’s testicles. At first, appellant stayed in the victim’s room for thirty minutes to an hour, but eventually he stayed the entire night.

A couple of times, appellant measured the victim’s penis. By the time the victim was fifteen years old, appellant wanted to cuddle with the victim every night for the entire night. During that time, appellant would take him on trips to haul hay. On the way back from two of those trips, appellant stopped at an adult bookstore to buy adult magazines or a pornographic video for the victim. One time, appellant also showed the victim how to find free pornography on the internet. On the trips, appellant touched the victim’s penis through the victim’s clothing two or three times. Each time, it was part of a “game.”

At night, appellant would also play a “game” where the victim would have to guess whether it was appellant’s finger or penis that was poking the victim’s back. Appellant also touched the victim’s penis a number of times under the victim’s underwear for four to five seconds.

*651B. Rule 702 Hearing

The State sought to offer the testimony of Special Texas Ranger David Hullum regarding the conduct of child molesters. Ranger Hullum had been in law enforcement for over twenty-nine years and had over 3500 hours of law-enforcement training. He had been a Texas Ranger in Eastland for approximately nine years and had played a major role in the investigation of several hundred sexual offenses, approximately seventy-five of which involved child victims. In these cases, Ranger Hullum interviewed both child victims and suspects. Ranger Hullum was also a member of a “cold case” committee that met quarterly to discuss unsolved murders and sexual offenses.

In response to questioning from the State, Ranger Hullum affirmed that he had been recognized as an expert in the trial court and other courts in connection with sexual offenses against children. He explained that he had experience in his investigations with determining the existence of grooming techniques. He testified that he had specialized experience and training in the techniques or ploys used by child molesters against children.

On cross-examination, Ranger Hullum acknowledged that he had no education in psychology or psychiatry. When asked about his specialized training, Ranger Hul-lum responded that he had quite a few classroom hours at the Department of Public Safety (DPS). The teachers included DPS employees, officers from other law-enforcement agencies, and employees of Child Protective Services. At least one of the teachers was a psychiatrist. However, Ranger Hullum could not name any of the individual instructors or where they received their education or training. When asked by the defense whether he had ever read a book or article on “grooming,” Ranger Hullum responded, “Yes,” but he could not recite any authors or titles.

On redirect examination, Ranger Hul-lum responded that he had testified numerous times in court regarding grooming techniques.

The defense objected that the State had not demonstrated that Ranger Hullum was qualified to testify as an expert. The defense also objected that “there’s no testimony before the court from Ranger Hul-lum that the theory under which he’s going to express these opinions are accepted by the scientific community or the psychiatric community or the psychological community.” The trial court responded that he had “previously found that Ranger Hullum is an expert in these areas” due to his “knowledge, skill, his experience, training and his education.” Defense counsel further argued, “[Tjhere’s been no finding as to reliability, and that it’s an accepted theory by the scientific community, and its relevance.” The trial court responded that the evidence was highly relevant and overruled the defense objections. After the defense sought further clarification that the trial court’s ruling embraced “reliability,” the trial court responded, “Your objections are overruled.”

C. Ranger Hullum’s Testimony

Before the jury, Ranger Hullum described “grooming” as “an attempt by the offender to get the victim compliant with what he wants to happen.” He explained that grooming typically occurs over an extended time period and involves spending intimate time alone with the child. Ranger Hullum further explained that grooming involves an element of trust, created by an emotional tie between the offender and the victim. Ranger Hullum cited specific examples of grooming such as supplying the child with alcohol or pornography, engaging in sexual banter, giving or withholding *652gifts, or telling the child about the adult’s own prior sexual experiences. The prosecutor framed a hypothetical that involved a gradual increase in the amount of time an adult stayed each night in a child’s bedroom, until the adult spent the entire night there, and asked if that would be an example of grooming.1 Ranger Hullum responded that it would be a “perfect example.”

Ranger Hullum elaborated that grooming was really no different from behavior that occurs in high school dating. He explained that a boy on a date might put his “arm around the young .lady to see how she would react to that, if she would object.” Likewise, Ranger Hullum explained, an adult offender “wants to see how that child’s going to react to that first touching,” with the object of the offender’s behavior being to “desensitize” the child. When asked about whether back rubs can sometimes be grooming, Ranger Hullum responded affirmatively, saying, “It’s also a way to desensitize the child of having those hands placed on that back. And you start off in a neutral area where the child doesn’t believe that there is anything wrong with this touching, and then you progress to other areas, more sensitive areas.”

Further, he explained that grooming can involve joking about or minimizing the offender’s conduct — which communicates to the child, “Hey, look, there’s nothing serious happening here.” When asked whether it would be “unusual for a defendant to fool the victim with games ... to obtain sexual contact,” Ranger Hullum replied that what is being, described is “just disguised foreplay,” which can take the form of a game or horseplay.

When asked whether pornography had anything to do with grooming, Ranger Hullum said, “It’s critical in this aspect. Pornography overstimulates — sexually overstimulates the child.” He also explained that it was fairly common for pornography to be involved in sex offenses against children.

D. Court of Appeals

Appellant was convicted of indecency with a child. On appeal, appellant contended that the trial court erred in allowing Ranger Hullum to testify as an expert about “methodology”2 and “grooming.” Appellant complained that the State had presented no evidence that the theory had been accepted by the scientific, psychiatric, or psychological community. He noted that Ranger Hullum could not recall the title or author of a single book or article he had read and could not identify the lone psychiatrist involved in his training. He also pointed out that Ranger Hullum was not himself a psychiatrist or psychologist.

Appellant then cited Nenno v. State3 for the test for determining the admissibility *653of evidence from fields of expertise outside the hard sciences. Relying upon Perez v. State,4 appellant claimed that the State had failed to satisfy the first Nenno prong, “whether the field of expertise is a legitimate one,”5 because the record is silent concerning the existence of literature that supports or reflects the underlying theory. Appellant stated that he could find no reported Texas case holding that an expert may testify as to “grooming.” Finally, appellant asserted that experience alone cannot establish reliability, or else “twenty years of reading tea leaves would make fortune-telling a legitimate field of expertise.”

The court of appeals rejected these claims.6 Characterizing Ranger Hullum’s testimony as involving a “soft science,” the appellate court employed the Nenno test.7 It found that Ranger Hullum’s qualifications “were not only based upon the writings or experiences of others but were also based upon his own considerable experience.” 8 The court noted Ranger Hullum’s 3500 hours of law-enforcement training and the numerous cases that he investigated that related to sexual offenses against children.9 The court of appeals found Ranger Hullum’s training, background, and experience to differ significantly from the witness that was found insufficiently qualified in Perez.10

II. ANALYSIS

A. Appellant’s Argument

In his ground for review, appellant contends: “The court of appeals erred in holding that testimony about ‘grooming’ was admissible where there was no showing that the study of ‘grooming’ was a legitimate field of expertise.” In support of this ground, appellant argues that the State had “the burden to introduce some sort of research or other evidence to support the expert’s opinion.” He equates the situation here with what occurred in Coble v. State,11 where the psychiatrist, Dr. Coons, “cited no books, articles, journals, or even other forensic psychiatrists” for the validity of his methodology.12 Appel*654lant complains that Ranger Hullum’s “methodology appears to have been nothing more than his own observations as a law enforcement officer, without testing from any source as to the validity of his conclusions.” Appellant ■ further states that there is nothing “to show that anyone has undertaken a scientific study of ‘grooming.” ‘ “Perhaps offenders who prey on children do act as Ranger Hullum testified,” appellant says, “but there is only his word for it.” Appellant contends that Ranger Hullum’s testimony should not have been admitted absent empirical data in the record showing, “for example, how many men who give back rubs to their children turn out to be ‘grooming’ them?” Appellant argues that the court of appeals erroneously “equate[d] the experience of an expert witness with the reliability of his testimony.”

B. Rule 702 Framework

Rule 702 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 witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”13 The rule was designed “to relax the traditional barriers to opinion testimony.”14

When the subject of an expert’s testimony is “scientific knowledge,” then the basis of that testimony must be grounded in the accepted methods and procedures of science.15 For expert testimony based upon “hard” science, we employ the Kelly16 test for reliability: (1) the underlying scientific theory must be valid, (2) the technique applying the theory must be valid, and (8) the technique must have been properly applied on the occasion in question.17 Although the inquiry is somewhat more flexible for soft sciences than for Newtonian and medical science, “‘soft’ science does not mean soft standards.”18 But expert 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 nonscientific expert testimony.19

Recognizing the flexible nature of a Rule 702 inquiry, in Nenno, we set forth a framework for evaluating the reliability of expert testimony in fields of study outside the hard sciences.20 This framework consisted of three questions: (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 (8) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.21 We explained that this was simply a translation of the Kelly test appropriately tailored to areas outside of hard science.22 In employing the Nenno framework, we also explicitly refrained from developing rigid distinctions between “hard” science, “soft” *655sciences, and nonscientific testimony because we recognized that the distinction between various types of testimony may often be blurred.23

In addressing “hard” science under the Kelly test, we have observed that trial courts do not necessarily have to relitigate what is valid science in every case: “It is only at the dawn of judicial consideration of a particular type of forensic scientific evidence that trial courts must conduct full-blown ‘gatekeeping’ hearings under Kelly.”24 “Trial courts are not required to re-invent the scientific wheel in every trial.” 25 This observation with respect to the hard sciences logically applies to all types of expert testimony.26 Whether a field of study is legitimate and whether the subject matter is within the scope of that field are questions that are capable of being resolved as a general matter, so that courts can take judicial notice of the reliability (or unreliability) of. the type of evidence at issue.27 Taking judicial notice of reliability usually requires that a trial court somewhere has examined' and assessed the reliability of the evidence.28

*656C. Legitimate Field of Expertise?

We believe that appellant’s claim that “grooming”' has not been shown to be a legitimate field of expertise misapprehends where the concept of “grooming” fits into the Nenno framework. In Nenno we recognized the experience-based study of “the behavior of offenders who sexually victimize children” as a legitimate field of expertise.29 “Grooming” is a subject matter that may fall within the scope of that field.

We also disagree with the suggestion that a field of expertise must incorporate a scientific study or empirical data. In Nen-no, we found expert testimony from Kenneth Lanning, a Supervisory Special Agent in the FBI’s behavioral science unit, to be sufficiently reliable based upon his own research, which included personal interviews with inmates convicted of child sex offenses, examining the inmates’ psychological records, and examining the facts of the offenses involved.30 Other generally accepted areas of expert testimony may involve the gaining of specialized knowledge through experience or personal research: the behavior of gangs,31 the behavior of drug dealers,32 or whether injuries could have been made by a particular weapon.33

D. Subject Matter within the Scope of the Field?

Because we have already held that the behavior of people who sexually victimize children is, under Nenno’s first prong, a legitimate field of expertise, we will construe appellant’s claim as an attack under Nenno’s second prong. We address, then, whether the subject matter of “grooming” is within the scope of the field of studying the behavior of people who sexually victimize children. In answering that question, we must ascertain whether “grooming” has been established as a phenomenon and what kind of expertise is required to recognize that phenomenon.

*657Although the record in this case may be sparse, an examination of court decisions establishes rather clearly that we are not at the “dawn of judicial consideration” for this type of testimony. Cases that refer to “grooming” in one way or another are legion. The number of published cases is significant, but once one considers unpublished cases as well, the number is overwhelming. We cite the unpublished cases, not as authority,34 but simply as an indication that the concept of grooming has gained widespread recognition.

References to the concept of grooming can be found in at least twenty-nine Texas court-of-appeals cases from eleven courts of appeals. In eleven of those cases, from six courts of appeals, the appellate courts upheld the admission of expert testimony on grooming against various challenges, including some based upon Rule 702.35 In another case, a court of appeals found one witness to be unqualified and held that another witness improperly addressed the facts of the case, but the court nevertheless recognized testimony about what constitutes grooming to be legitimate.36 At least one court relied upon expert testimony on grooming in a sufficiency-of-the-evidence analysis,37 and numerous other Tex-as court-of-appeals cases have referred to expert testimony on grooming.38 A review *658of all of these cases makes clear that “grooming” is not something that Ranger

Hullum made up; the cases reveal a num-her of witnesses, including those in law enforcement, speaking about the matter.39 *659Expert testimony about grooming has also been discussed in at least a few decisions from federal district courts in Texas.40 And one federal district-court decision even involved a Texas venireman who explained the concept of grooming during voir dire.41

But recognition of the concept of grooming extends far beyond Texas. The concept has become well known in the federal system. The Fifth and Tenth Circuits have expressly held that expert testimony on “grooming” is admissible under Federal Rule of Evidence 702.42 Earlier cases from the Third and Seventh Circuits have held such evidence to be admissible under Rule 702, but have referred to this kind of evidence as “seduction” rather than “grooming.”43 Similarly, an earlier case from the DC Circuit upheld the admission of such “seduction” evidence against a challenge under Federal Rule of Evidence 403.44 The Second and Ninth Circuits have expressly recognized the concept of “grooming,”45 and the Seventh Circuit has done so in later cases.46 Opinions from the Fourth, Sixth, and Eighth Circuits contain definitions of, or other references to, grooming.47 The Court of Appeals for the *660Armed Forces has upheld the admission of expert testimony about grooming to show the psychological impact of the defendant’s offenses on the victim.48 And the District of Columbia Court of Appeals has upheld the admission of expert testimony about grooming under its- standard for the admissibility of expert testimony.49

A number of federal district courts, in published and unpublished opinions or orders, have also discussed or referred to “grooming.” A few of these criticized the concept of grooming or indicated that expert testimony about it was not admissible,50 others expressly determined that such evidence was admissible,51 and others expressly recognized the concept of “grooming” but suggested that the concept was not applicable under the circumstances presented.52 One court, in recognizing the concept, cited Wikipedia.53 Other federal district courts discussed expert testimony about grooming,54 cited a claim *661of grooming made by a treatment program for sex offenders55 or by a state hospital,56 referred to evidence of the defendant’s extraneous conduct as admissible to show grooming,57 or made their own determinations that grooming had occurred.58

Further, the concept of grooming has been discussed or at least referred to in opinions from state appellate courts in at least thirty-eight other states. A few of these opinions have specifically upheld the admission of expert testimony on the subject,59 but many more have referred to the concept of grooming in a way that contributes to the conclusion that it is a well-recognized phenomenon. Many of these courts have defined or recognized the concept of grooming in the abstract,60 while *662others have relied upon the concept of grooming as a basis for admitting other evidence,61 and still others have relied upon the concept of grooming in deciding to take protective action.62 In acting to protect the welfare of a child, a Louisiana *663appellate court pointedly stated: “[W]e find nothing in the law that would require the courts to ignore such behavior and leave a child at the mercy of the perpetrator until more harm is done.”63

Numerous other state court opinions have at least referred to expert testimony on grooming, and such testimony has come from experts from a variety of occupational backgrounds.64 Some appellate opinions contain trial-court references to the concept of grooming.65 Cases have also in*664volved an extraneous-offense victim who learned about the grooming process in sex offender counseling for sex offenses of his own,66 a subject’s admission that he had engaged in grooming,67 and a clinician’s warning to parents that a counselor was engaging with their child in “classic grooming behavior engaged in by child molesters.”68 There is also a case in which a psychotherapist engaged in the grooming of his step-children for sexual abuse.69 In that case, the Nebraska court of appeals stated: “We believe the evidence is ample to establish that Collins’ manipulation and deception of J.C. rendered her incapable of resisting or appraising the real nature of the sexual penetration that he visited upon her during the relevant time period. Moreover, that someone of Collins’ training knew or should have known of such diminished capacity needs no further discussion.”70 A handful of state appellate courts have excluded some expert testimony on grooming, but at least some of those seem to recognize that there may be instances in which expert testimony on grooming may be admissible.71

The earliest published state cases explicitly referring to “grooming” appear to be Skrepich and Hansen, decided in Alaska and Oregon in 1987, while the earliest published federal circuit case appears to be Johnson, from the Ninth Circuit in 1997.72 As can be seen throughout our discussion, the frequency with which the concept of “grooming” appears in the cases has risen dramatically as the years have passed, with numerous cases containing such references in the last three years. Although most of these cases involved the use of grooming evidence at criminal trials, a significant number of cases involved other types of proceedings, such as: civil com*665mitment proceedings for sexually dangerous predators,73 proceedings involving the termination of parental rights or to protect children,74 a proceeding regarding child visitation,75 civil lawsuits,76 the modification of supervised release,77 a motion-to-suppress hearing,78 bail or pretrial-detention hearings,79 appeals from orders requiring sex-offender registration,80 the suspension of teacher certification,81 and a denial of reinstatement after being disbarred.82

Some courts have recognized the targeting of grooming as one of the purposes of a particular criminal statute,83 and the term “grooming” has been used by trial courts84 *666and sex-offender treatment programs,85 and by at least one state hospital,86 criminal task force,87 and probation and parole department.88 Some courts have used the word “classic” in connection with the term “grooming” — e.g., “classic grooming behavior” — which suggests that these courts view the existence of such a phenomenon as well established.89 At a military court martial, the expert witness — the Chief of Child Adolescent Family Psychiatry at the Eisenhower Medical Center — testified that grooming was “a fairly well documented phenomena of what certain individuals do to seduce children.”90

As can be seen from the above discussion, grooming evidence has been received by courts from numerous types of experts — which include psychiatrists, psychologists, therapists, and social workers— but, of importance here, also includes some people who work in law enforcement.91 In Coble, we explained, “Although Nenno dealt with the admission of expert testimony concerning future dangerousness, it dealt with the testimony by a layman whose analysis was based on his experience studying sexual victimization of children.” 92 In characterizing Lanning as a “layman,” we did not mean to suggest that he was not an “expert” — we had just finished saying that Nenno dealt with the admission of expert testimony.93 Rather, we meant that Lanning was not a psychiatrist or psychologist. But because of his research, “Lanning possessed superior knowledge concerning the behavior of offenders who sexually victimized children.” 94 Grooming evidence is, at its most basic level, testimony describing the common behaviors of child molesters and whether a type of evidence is consistent with grooming.95 A person can, through *667his experience with child-sex-abuse cases gain superior knowledge regarding the grooming phenomenon.

Virtually all of Ranger Hullum’s testimony about the phenomenon of grooming finds support in the cases: that it is an attempt by the offender to create a compliant victim;96 that it involves an escalation of conduct over a (sometimes extended) period of time;97 that it can involve spending intimate time alone with the child;98 that it involves having the child’s trust;99 that it is like dating;100 that it is designed to desensitize the child;101 that it often begins with innocuous touches that progress to more sensitive areas or with minor touching that progresses to more blatant sexual acts;102 and that it can involve supplying the child with alcohol103 or pornography,104 giving gifts,105 giving back rubs or massages,106 engaging in “games” or *668horseplay,107 or talking about the adult’s own prior sexual experiences.108

From our discussion, we conclude that grooming as a phenomenon exists and that a law enforcement-official with a significant amount of experience with child sex abuse cases may be qualified to talk about it.109

E. Usefulness to the Jury

Now we consider the inverse question. Is the grooming phenomenon just common knowledge? Does expert testimony add anything to what the jury already knows?110 We recognize that social awareness of child sex abuse has grown through the years. One of the original justifications for grooming testimony was to dispel what was thought to be “a widely held stereotype of a child molester as ‘a dirty old man in a wrinkled raincoat’ who snatches children off the street as they wait for the school bus.”111 Some courts have suggested that the stereotype is no longer widely held and that jurors today *669no longer need to be informed by experts about the grooming techniques of child molesters.112 Other courts have suggested that the factfinder or the appellate court can infer grooming from the defendant’s conduct without the assistance of an expert.113

Nevertheless, we find the weightier and more persuasive authority to be that expert grooming testimony is useful to the jury. Recent appellate cases suggest that grooming testimony still involves matters beyond the understanding of the jury.114 The District of Columbia Court of Appeals has explained that, “[wjhile the continuing vitality of such stereotypes may be debatable, we cannot conclude that the trial judge in this case abused her discretion in ruling that Lanning’s grooming testimony ‘was beyond the ken of a lay trier of fact and would be helpful to the jurors in their consideration of the evidence.’ ”115 We think the D.C. court put the issue in proper perspective when it said, “Modus oper-andi testimony may be helpful ... even though it may be familiar to ‘the average reader of the daily press.’ ”116 Although it may be true that many jurors will be aware of the concept of grooming (in practice if not necessarily by name), that does not mean that all jurors will be aware of the concept or that the jurors will have the depth of understanding needed to resolve the issues before them.

III. CONCLUSION

We reject appellant’s claim that the record failed to show the legitimacy of “grooming” as a subject of expert testimony because the legitimacy of “grooming” as a subject of expert testimony has been established sufficiently to be judicially noticed.117 We affirm the judgment of the court of appeals.

*670COCHRAN, J., filed a concurring opinion in which JOHNSON, J., joined.

PRICE, J., filed a dissenting opinion in which MEYERS, and WOMACK, JJ., joined.