Morris v. State

Lead Opinion

KELLER, P.J.,

delivered the opinion of the Court in which

JOHNSON, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

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.

B. 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 gifts, 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 of 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 Appellant 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” sciences, 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

C. 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.

Although 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 of 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 Expert 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 Armed 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 of 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 others 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 appellate 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 involved 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 commitment 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 and 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 his 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 horseplay,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 no 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.

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

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

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

Notes

1 .The prosecutor asked, "And hypothetically, if you were to hear of a case where a potential predator was going into a child’s bedroom and spending ten to fifteen minutes with the child for a period of time, and then moving onto an hour to two hours, with the child, and then into the wee hours of the morning in the child's bedroom, and then finally into staying overnight with the child; is that an example of grooming?” Ranger Hullum also was asked whether appellant's visits to the victim's "bedroom and the progressive nature to overnight stays” had any significance, and he responded, "Yes, I think it goes back to the amount of time.”

2 . On discretionary review, appellant does not specifically advance his complaint about Ranger Hullum's testimony concerning the "methodology” of child molesters. We address the complaint about "methodology” to the extent it is encompassed by his current complaint about "grooming.”

3 . 970 S.W.2d 549 (Tex.Crim.App.1998).

4 . 25 S.W.3d 830, 837 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

5 . Nenno, 970 S.W.2d at 561.

6 . Monis v. State, 2010 WL 2224651, 9-10 (Tex.App.-Eastland June 3) (not designated for publication).

7 . Moms, 2010 WL 2224651, at 9.

8 . Id. at 10.

9 . Id. The court of appeals appears to have misread the record in this regard. The record reflects his major participation in several hundred cases involving sexual offenses, with approximately one-third or seventy-five of those being sexual offenses committed against children. See id. This discrepancy does not affect our analysis.

10 . Morris, 2010 WL 2224651, at 10.

11 . 330 S.W.3d 253 (Tex.Crim.App.2010).

12 .See id. at 277. In Coble, the defendant did not “quarrel with the first prong — the legitimacy of the field of forensic psychiatry, nor, apparently, with the second prong' — [that] Dr. Coon's testimony is within the scope of forensic psychiatry, but he contended] that Dr. Coon's testimony did not properly rely upon the accepted principles of forensic psychiatry, at least as far as those principles apply to the prediction of long-term future dangerousness.” Id. at 274. Our conclusion in Coble concerned the third prong, that "the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coon’s methodology for predicting future dangerousness.” Id. at 279. In contrast, appellant’s petition challenges whether "the study of 'grooming' was a legitimate field of expertise,” which he argues is an attack on the first prong (the legitimacy of the field of study), and which we later consider as an attack on the second prong (whether the subject matter is within the scope of the field). See this opinion, post. Because it concerned the third prong only, Coble is of limited assistance to our inquiry today.

13 . TexR. Evid. 702.

14 . Nenno, 970 S.W.2d at 561.

15 . Coble, 330 S.W.3d at 272.

16 . Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

17 . Id. at 573.

18 . Coble, 330 S.W.3d at 274.

19 . See R. 702; see also Nenno, 970 S.W.2d at 560-61.

20 . Nenno, 970 S.W.2d at 561.

21 . Id.

22 . Id.

23 . Mat 560-61.

24 . Hernandez v. State, 116 S.W.3d 26, 29 (Tex.Crim.App.2003).

25 . Id.

26 . But not every observation with respect to the hard sciences applies to other types of expert testimony. See Nenno, 970 S.W.2d at 561 (observing that "hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences”).

27 . See Hernandez, 116 S.W.3d at 29 ("Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert/Kelly hearings, subsequent courts may take judicial notice of the scientific validity of that scientific theory based upon the process, materials, and evidence produced in those prior hearings.”)

28 . Id.; but see id. at 34-35, 37 (Keller, P.J., concurring) (matters of common knowledge can be recognized without a prior determination of reliability and a “less exacting inquiry” may be required if "a large number of jurisdictions recognize the validity or reliability of a scientific theory or technique”).

In his dissent, Judge Price claims that we run afoul of the statement in Hernandez that "judicial notice on appeal cannot serve as the sole source of support for a bare trial court record concerning scientific reliability.” Dissent by Price, J. at 678 (quoting Hernandez, 116 S.W.3d at 31-32). At oral argument, appellant’s counsel also relied upon this portion of Hernandez to argue that the federal cases cited by the State were irrelevant because they had not been presented to the trial court. But Hernandez was speaking specifically about scientific evidence. In general, judges are not scientists and lack expertise to assess the reliability of scientific principles on their own. See GE v. Joiner, 522 U.S. 136, 148, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (Breyer, J., concurring) ("judges are not scientists and do not have the scientific training that can facilitate the making of such decisions”).

But, first, as Judges Meyers, Womack, and Keasler suggested in questioning at oral argument, the evidence at issue in this case was not scientific; rather, it was testimony based upon experience. Such evidence is akin to the beekeeper example referred to in Judge Cochran’s questioning; a beekeeper may testify from experience that bumblebees always fly into the wind, because, even though he is not a scientist with an understanding of aerodynamics, he has seen a lot more bumblebees than the jurors have. See Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 724-25 (Tex.1998) (quoting from Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir.1994)). And the experience-based testimony at issue in the present case involved a topic with which courts are familiar: behaviors engaged in by criminals. Courts are far better qualified to assess the reliability of this type of evidence than scientific evidence. We will not extend Hernandez’s rule with respect to scientific evidence to the dissimilar situation before us.

And second, contrary to Judge Price's belief, this case does not present a "bare trial court record” concerning the reliability of grooming. "Reliability” in this context depends upon the accuracy of the notion that grooming is a common phenomenon. Ranger Hullum's testimony concerning his experience regarding grooming behaviors is some evidence that grooming behaviors are common.

29 . See Nenno, 970 S.W.2d at 562.

30 . Id.

31 . See Ortiz v. State, 93 S.W.3d 79, 86 (Tex.Crim.App.2002) (Sergeant with El Paso Sheriff's Department testified as an expert on prison gangs); United States v. Padilla, 387 F.3d 1087, 1094 (9th Cir.2004) (expert testimony was reliable based upon "Detective Eagle-son's extensive experience with Los Angeles street gangs, and the Cuatro Flats gang in particular”).

32 . See Ex parte Nailor, 149 S.W.3d 125, 134 n. 41 (Tex.Crim.App.2004) (citing, with approval, Williams v. State, 826 S.W.2d 783 (Tex.App.-Houston [14th Dist.] 1992, pet. ref’d), for the proposition that a police officer could testify, as either a lay witness or an expert, that he interpreted the defendant's actions to be a drug transaction); Williams, 826 S.W.2d at 785 (officer had witnessed hundreds of narcotics transactions and could recognize certain behavior, which might appear normal to an inexperienced person, to be a narcotics transaction); United States v. Winbush, 580 F.3d 503, (7th Cir.2009) (court had long recognized, along with others, that expert testimony could be helpful in explaining how seemingly innocent activity may be significant in a drug transaction; citing among other cases, United States v. Foster, 939 F.2d 445, 451 & n. 6 (7th Cir.1991) (collecting cases)).

33 .Davis v. State, 313 S.W.3d 317, 350 (Tex.Crim.App.2010) (police detective’s experience as a police officer and homicide detective gave him sufficient expertise to testify whether wounds suffered by a cat could have been inflicted by the same knife that killed the victim).

34 . See Tex.R.App. P. 47.7 ("Opinions and memorandum opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, (not designated for publication).”).

35 . Bryant v. State, 340 S.W.3d 1, 7-10 (Tex.App.-Houston [1st Dist] 2010, pet. dism'd) (rejecting claim that expert was not qualified); Weatherly v. State, 283 S.W.3d 481, 491-93 (Tex.App.-Beaumont 2008, pet. ref'd) (rejecting ineffective-assistance-of-counsel claim because the defendant failed to demonstrate that an objection would have resulted in excluding the evidence, citing Nenno); Teczar v. State, 2011 WL 1743756, 8-11, 2011 Tex.App. LEXIS 2919, 24-30 (Tex.App.-Eastland April 15, no pet.) (not designated for publication) (upholding admission under R. 702); Cook v. State, 2010 WL 3910585, 1-2, 5-6, 7-8, 2010 Tex.App. LEXIS 8095, 4, 15-16, 20-21 (Tex.App.-Beaumont October 6, pet. ref’d) (not designated for publication) (rejecting R. 403 claim; holding that evidence was not an impermissible comment on credibility); Morris, supra (present case); Van Houten v. State, 2009 WL 481883, 3-5, 5-6, 2009 Tex.App. LEXIS 1301, 10-12, 14-15 (Tex.App.-Eastland February 26, pet. ref’d) (not designated for publication) (upholding admission of testimony based upon expert's training, experience, and research); Blanchard v. State, 2007 WL 3101836, 2-3, 2007 Tex.App. LEXIS 8403, 6-8 (Tex.App.-Texarkana September 27, pet. ref'd) (not designated for publication) (rejecting claim that testimony was redundant of what is knowledge common to jurors); Davenport v. State, 2006 WL 1653320, 2-3, 4-5, 2006 Tex.App. LEXIS 5166, 8-9, 13-15 (Tex.App.-Fort Worth June 15, pet. ref'd) (not designated for publication) (upholding admission under R. 702, citing Nenno); Comeaux v. State, 2005 WL 1149795, 2, 7-8, 2005 Tex.App. LEXIS 3748, 7, 23-26 (Tex.App.-Houston [14th Dist.] May 17, pet. ref'd) (not designated for publication) (upholding admission of evidence as "fit” under R. 702); Reid v. State, 2005 WL 914500, 1, 2005 Tex.App. LEXIS 3072, 3 (Tex.App.-Fort Worth April 21, pet. ref'd) (not designated for publication) (upholding admission under R. 702, citing Nenno ); Perez v. State, 2005 WL 729517, 2-3, 3-4, 2005 Tex.App. LEXIS 2408, 6, 10 (Tex.App.-Houston [1st Dist] March 31, pet. ref'd) (not designated for publication) (upholding admission under R. 702 against claim that the evidence was not useful to the jury).

36 . Kelly v. State, 321 S.W.3d 583, 600-02 (Tex.App.-Houston [14th Dist.] 2010, no pet.).

37 . Wagner v. State, 2010 WL 2163845, 2, 3-4, 2010 Tex.App. LEXIS 4087, 4-5, 9-10 (Tex.App.-El Paso May 28, pet. ref'd) (not designated for publication).

38 . In re Commitment of Eeds, 254 S.W.3d 555, 558 n. 5 (Tex.App.-Beaumont 2008, no pet.); Mulvihill v. State, 177 S.W.3d 409, 412 (Tex.App.-Houston [1st Dist] 2005, pet. ref'd); Hernandez v. State, 973 S.W.2d 787, 790 (Tex.App.-Austin 1998, pet. ref'd); Layer v. State, 2011 WL 1331538, 7, 2011 Tex.App. LEXIS 2648, 18-19 (Tex.App.-Fort Worth April 11, no pet.) (not designated for publication); Sylvia v. Tex. Dep't of Family & Protective Servs., 2010 WL 1507827, 8, 2010 Tex.App. LEXIS 2752, 22 (Tex.App.-Austin April 15, no pet.) (not designated for publication); Barrera v. State, 2010 WL 188312, 2-3, 2010 Tex.App. LEXIS 401, 6 (Tex.App.-Dallas January 21, no pet.) (not designated for publication); Orange v. State, 2009 WL 3851068, 2, 13, 2009 Tex.App. LEXIS 8934, 5-6, 40 (Tex.App.-Texarkana November 19, pet. ref'd) (not designated for publication); Mitchell v. State, 2008 WL 4899195, 1-2, 2, 2008 Tex.App. LEXIS 8594, 2-3, 5 (Tex.App.-Austin November 14, pet. ref’d), reference also in later proceeding in, Mitchell v. Thaler, 2011 WL 652465, 5-6, 2011 U.S. Dist. LEXIS 14189, 12-16 (W.D.Tex. February 14) (opinions not designated for publication); Chandler v. State, 2008 WL 101314, 4, 2008 Tex.App. LEXIS 178, 10 (Tex.App.-Houston [1st Dist.] January 10, pet. ref’d) (not designated for publication); Petronella v. State, 2007 WL 1218692, 2-3, 2007 Tex.App. LEXIS 3198, 5-7 (Tex.App.-Eastland April 26, pet. ref’d) (not designated for publication); Hale v. Hale, 2006 WL 166518, 2, 2006 Tex.App. LEXIS 747, 6 (Tex. App.-San Antonio January 25, pet. denied) (not designated for publication); Zimmer v. State, 2004 WL 1567312, 2-3, 2004 Tex.App. LEXIS 6180, 6-7 (Tex.App.-Dallas July 14, no pet.) (not designated for publication); Carey v. State, 2004 WL 743676, 1-2, 2004 Tex.App. LEXIS 3188, 4 (Tex.App.-Texarkana April 8, no pet.), reference also in later proceeding in, Carey v. Quarterman, 2008 WL 4061420, 4—5, 2008 U.S. Dist. LEXIS 121789, 14-15 (N.D., Tex., June 13), adopted by, 2008 U.S. Dist. LEXIS 66049 (N.D.Tex. August 24) (opinions not designated for publication); Cannon v. State, 2004 WL 213667, 1, 2004 Tex.App. LEXIS 1105, 1-2 (Tex.App.-Beaumont January 2, pet. ref’d) (not designated for publication); Mendiola v. State, 2003 WL 22413903, 4, 2003 Tex.App. LEXIS 9043, 11-12 (Tex.App.-Houston [1st Dist.] October 23, no pet.) (not designated for publication); Carte v. State, 1999 WL 26929, 1-2, 1999 Tex.App. LEXIS 411, 3 (Tex.App.-Amarillo January 25, pet. ref’d) (not designated for publication).

39 . See Bryant, 340 S.W.3d at 5 (Tyler police officer, assigned to Crimes Against Children Unit, who was lead investigator on the case); Kelly, 321 S.W.3d at 602 (Dr. Gayle Burress); Weatherly, 283 S.W.3d at 491 (Detective Jeff Wilmore); Mulvihill, 177 S.W.3d at 412 (Dene Edminston, counselor, New Horizons Center in Baytown); Teczar, 2011 WL 1743756, 8-11, 2011 Tex.App. LEXIS 2919, 24-30 (Ranger Hullum); Layer, 2011 WL 1331538, 7, 2011 Tex.App. LEXIS 2648, 18-19 (Dr. William Lee Carter); Cook, 2010 WL 3910585, 1-2, 2010 Tex.App. LEXIS 8095, 4 (Dr. Roger Saunders); Wagner, 2010 WL 2163845, 2, 2010 Tex.App. LEXIS 4087, 4-5 (Ellen Elliston, Director of Victim Intervention and Rape Crisis Center at Parkland Hospital); Sylvia, 2010 WL 1507827, 8, 2010 Tex.App. LEXIS 2752, 22 (Dr. Michael Campbell); Barrera, 2010 WL 188312, 2-3, 2010 Tex.App. LEXIS 401, 6 (Cindy Alexander, clinical director Dallas Children's Advocacy Center); Orange, 2009 WL 3851068, 2, 2009 Tex.App. LEXIS 8934, 5-6 (Bunny Terrell, forensic interviewer for Children’s Advocacy Center in Longview); Van Houten, 2009 WL 481883, 3-5, 5-6, 2009 Tex.App. LEXIS 1301, 10-12, 14-15 (Andra K. Chamberlin, program director and lead forensic interviewer at Midland Rape Crisis and Children's Advocacy Center); Mitchell, 2008 WL 4899195, 1-2, 2, 2008 Tex.App. LEXIS 8594, 2-3, 5 (Emily Orozco, licensed professional counselor); Chandler, 2008 WL 101314, 4, 2008 Tex.App. LEXIS 178, 10 (Dr. Lawrence Thompson, Director of Therapy and Psychological Services at the Children’s Assessment Center); Blanchard, 2007 WL 3101836, 2-3, 2007 Tex.App. LEXIS 8403, 6-8 (Psychologist Ed Waggoner); Petronella, 2007 WL 1218692, 2-3, 2007 Tex.App. LEXIS 3198, 5-7 (David Hernandez, a therapist with the Midland Rape Crisis Center); Davenport, 2006 WL 1653320, 2-3, 4-5, 2006 Tex.App. LEXIS 5166, 8-9, 13-15 (Mary Jo Guitierrez, probation officer); Hale, 2006 WL 166518, 2, 2006 Tex.App. LEXIS 747, 6 (Shannon Peck, therapist); Comeaux, 2005 WL 1149795, 2, 2005 Tex.App. LEXIS 3748, 7 (Dr. Judy Rambur, clinical psychologist); Reid, 2005 WL 914500, 1, 2005 Tex.App. LEXIS 3072, 3 (Ron Perrett); Zimmer, 2004 WL 1567312, 2-3, 2004 Tex.App. LEXIS 6180, 6-7 (Steven Bell, supervisor Kaufman County Probation Services); Cannon, 2004 WL 213667, 1, 2004 Tex.App. LEXIS 1105, 1-2 (Victor Love, director Youth and Family Services for Montgomery County Youth Services); Mendiola, 2003 WL 22413903, 4, 2003 Tex.App. LEXIS 9043, 11-12 (Cynthia Moore, clinical psychologist).

40 . Berg v. Thaler, 2011 WL 1157290, 4, 2011 U.S. Dist. LEXIS 30761, 10 (S.D.Tex., Houston Div. March 23) (not designated for publication); Coy v. Quarterman, 2007 WL 1729877, 9-10, 2007 U.S. Dist. LEXIS 42801, 32-33 (S.D.Tex, Houston Div. June 13) (not designated for publication); Arrington v. Cockrell, 2001 U.S. Dist. LEXIS 19827, 33 (N.D.Tex., Fort Worth Div. November 6) (not designated for publication).

41 . McClellan v. Cockrell, 2003 WL 22119501, 11, 2003 U.S. Dist. LEXIS 17385, 29 (N.D., Dallas Div. Tex. September 3), adopted by, 2003 WL 22251419, 2003 U.S. Dist. LEXIS 17372 (N.D.Tex., Dallas Div. Sept. 29) (opinions not designated for publication) (When asked by prosecutor about “grooming,” the venireman explained: "It’s when an adult will befriend a child and start taking them places and doing things just like a buddy system, and it progresses from there to petting on the head to petting them in other places.” Defendant did not show that prosecutor's question was improper).

42 . United States v. Hitt, 473 F.3d 146, 152 & n. 4, 158 (5th Cir.2006); United States v. Button, 602 F.3d 1191, 1198, 1198 n. 3, 1200-02 (10th Cir.2010).

43 . United States v. Hayward, 359 F.3d 631, 636 (3rd Cir.2004) (discussing testimony by Kenneth Lanning regarding the "seduction process”); United States v. Romero, 189 F.3d 576, 583-85 (7th Cir.1999) (discussing Lanning’s testimony about "sophisticated psychological techniques” child molesters use to "■‘seduce’ their victims”). See also Hitt, 473 F.3d at 158 (citing Romero and Hayward in connection with admissibility of "grooming” evidence); Batton, 602 F.3d at 1202 (discussing Romero and Hitt and mentioning Hitt’s citation to Hayward); Jones v. United States, 990 A.2d 970, 978 (D.C.App.2010) (Kenneth Lanning referred to seduction techniques as "grooming”).

44 . United States v. Long, 328 F.3d 655, 665-68 (D.C.Cir.2003) (Lanning’s testimony about the "seduction process”).

45 . United States v. Brand, 467 F.3d 179, 203 (2nd Cir.2006); United States v. Goetzke, 494 F.3d 1231, 1235 (9th Cir.2007); United States v. Johnson, 132 F.3d 1279, 1283 & n. 2 (9th Cir.1997).

46 . United States v. Chambers, 642 F.3d 588, 593-94 (7th Cir.2011); United States v. Gladish, 536 F.3d 646, 649 (7th Cir.2008). The Third Circuit has also used the term "grooming.” Coley v. County of Essex, 462 Fed.Appx. 157, 159-61, 2011 WL 2065065, 2-3, 2011 U.S.App. LEXIS 10690, 7-8 (3rd Cir. May 26) (not designated for publication) (referring to "grooming” process in which abuse escalates over time).

47 . United States v. Fancher, 513 F.3d 424, 431 (4th Cir.2008) (finding by trial judge that defendant "grooms or grows” his victims and could not stop grooming victims even from jail); United States v. Shafer, 573 F.3d 267, 271 (6th Cir.2009) (reference by trial judge to "grooming conduct"); United States v. Young, 613 F.3d 735, 739 & n. 3 (8th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 962, 178 L.Ed.2d 793 (2011) (reference to Internet Crimes Against Children Task Force’s definition of grooming); United States v. Mikowski, 332 Fed.Appx. 250, 251 n. 2 (6th Cir.2009) (not designated for publication) (setting out a definition of grooming); United States v. Blum, 404 Fed.Appx. 89, 92 & n. 3 (8th Cir.2010) (not designated for publication) (setting forth a definition of grooming found in the record).

48 . United States v. Patterson, 54 M.J. 74, 75, 78 (C.A.A.F.2000).

49 . Jones, 990 A.2d at 978.

50 . United States v. Raymond, 700 F.Supp.2d 142, passim, 151, 156 (D.Me.2010) (suggesting that expert "grooming" testimony was not admissible and not helpful, but reserving question on whether it could be admitted in rebuttal); United States v. Burns, 2009 WL 3617448, 4-5, 2009 U.S. Dist. LEXIS 100642, 12-15 (N.D.Ill. October 27) (not designated for publication) (disparaging comments about "grooming theory”); United States v. Schneider, 83 Fed. R. Evid. Serv. (Callaghan) 820, 2010 WL 3734055, 3, 6-7, 2010 U.S. Dist. LEXIS 99662, 8, 20 (E.D.Pa. September 21) (not designated for publication) (witness found not qualified to testify about grooming and suggesting expert "grooming” testimony not helpful).

51 . Light v. Martel, 2009 WL 4456385, 3-4, 6-10, 2009 U.S. Dist. LEXIS 115715, 8-9, 17-26 (N.D.Cal. November 30) (not designated for publication); Simonton v. Evans, 2009 WL 482362, 5-6, 2009 U.S. Dist. LEXIS 13599, 15-16 (S.D.Cal. February 23) (not designated for publication).

52 . Am. Booksellers Found, v. Dean, 202 F.Supp.2d 300, 316-17 (D.Vt.2002), aff'd as modified on other grounds, 342 F.3d 96 (2nd Cir.2003) (State had compelling interest in protecting minors from grooming practices, but statute did not limit its scope to grooming practices and was unconstitutional); Ordemann v. Livingston, 2008 WL 2073992, 2-3, 2008 U.S. Dist. LEXIS 39409, 7 (E.D.La. May 14) (not designated for publication) (citing Hitt, but holding that "grooming” was not itself a civilly actionable wrong); United States v. Thomas, 2006 WL 140558, 4, 4, 22-23, 2006 U.S. Dist. LEXIS 3266, 19, 21, 87-88 (D.Md. January 13) (not designated for publication) (court "fully appreciates the significance” of grooming behavior, but such behavior was not shown here).

53 . Doe v. Liberatore, 478 F.Supp.2d 742, 749-50, 761-63 (M.D.Pa.2007).

54 . Morris v. Slithers, 246 F.Supp.2d 1120, 1132 (D.Colo.2001); Lopez v. Yates, 2008 WL 2487244, 4-5, 13-18, 18-20, 2008 U.S. Dist. LEXIS 113464, 12, 37-47, 50-54 (C.D.Cal. April 30), adopted by, 2008 U.S. Dist. LEXIS 49127 (C.D.Cal. June 12) (not designated for publication); Roca v. Cain, 2008 WL 5611801, 18-19, 2008 U.S. Dist. LEXIS 107554, 58-60 (E.D.La. December 16), adopted by, 2009 WL 331364, 2009 U.S. Dist. LEXIS 9502 (E.D.La. Feb. 9) (not designated for publication); Swiatkowski v. Berghuis, 2009 WL 8183563, 10-11, 2009 U.S. Dist. LEXIS 131192, 25-28 (W.D.Mich. July 13), adopted by, certificate of appealability granted in part on other grounds, 2011 WL 2670583, 2011 U.S. Dist. LEXIS 72926 (W.D.Mich. July 7) (opinions not designated for publication); United States v. Christy, 2010 WL 2977610, 4 & n. 5, 8, 2010 U.S. Dist. LEXIS 71300, 11-12 & n. 5, 23-24 (D.N.M. April 28) (not designated for publication); Thompson v. Parker, 2010 WL 2610941, 5-6, 2010 U.S. Dist. LEXIS 63154, 18 (W.D.Okla. April 30), adopted by, 2010 WL 2610396, 2010 U.S. Dist. LEXIS 63124 (W.D.Okla. June 25), appeal dism'd, 406 Fed.Appx. 272 (10th Cir.2010) (opinions not designated for publication); United States v. Farris, 2008 WL 1944131, 4-5, 2008 U.S. Dist. LEXIS 36937, 12-13 (W.D.Pa. May 1) (not designated for publication); Vermeal v. Parker, 2009 WL 3241749, 6, 2009 U.S. Dist. LEXIS 89830, 17-18 (E.D.Tenn. September 29) (not designated for publication).

55 . Schnitzler v. Reisch, 518 F.Supp.2d 1098, 1101 (D.S.D.2007).

56 . Force v. Hunter, 2009 WL 2407838, 2-3, 4, 2009 U.S. Dist. LEXIS 68497, 6-7, 10 (C.D.Cal. June 23, 2009), adopted by, 2009 U.S. Dist. LEXIS 68489 (C.D.Cal. July 29, 2009) (opinions not designated for publication).

57 . Sullivan v. Schriro, 2005 WL 5966149, 11, 2005 U.S. Dist. LEXIS 26339, 31 (D.Ariz. August 15) (not designated for publication); Kittle v. Vasbinder, 2010 WL 890208, 2-3, 2010 U.S. Dist. LEXIS 21788, 6-7 (E.D.Mich. March 10) (not designated for publication); Clark v. Bock, 2002 WL 31772023, 3-4, 2002 U.S. Dist. LEXIS 23577, 9-10 (E.D.Mich. October 28) (not designated for publication).

58 . United States v. Wetmore, 766 F.Supp.2d 319, 321-22 (D.Mass.2011); United States v. Blake, 2010 WL 702958, 2, 6, 2010 U.S. Dist. LEXIS 23014, 4-5, 16 (E.D.Cal. February 24) (not designated for publication) (characterizing allegations that provided probable cause for a search warrant as "grooming”); United States v. Hansel, 2006 U.S. Dist. LEXIS 54725, 2 (N.D.Iowa August 4) (not designated for publication); United States v. Gleich, 2005 WL 741921, 1-2, 3-4, 2005 U.S. Dist. LEXIS 5149, 4-6, 9-10 (D.N.D. March 30) (not designated for publication).

59 . State v. Sorabella, 277 Conn. 155, 213-14, 891 A.2d 897, 932-33 (2006) (rejecting complaints about Kenneth Lanning’s testimony); Haycraft v. State, 760 N.E.2d 203, 210-11 (Ind.App. 1st Dist.2001), transfer denied, 774 N.E.2d 514 (Ind.2002) (holding the testimony admissible as that of a "skilled witness” under Indiana’s R. 701); People v. Petri, 279 Mich.App. 407, 415-16, 760 N.W.2d 882, 888, appeal denied, 482 Mich. 1186, 758 N.W.2d 562 (2008) (Detective could give definition of "grooming” without being an expert but even assuming expert testimony was required, he would have qualified); State v. Berosik, 352 Mont. 16, 23, 214 P.3d 776, 782-83 (2009) (upholding admissibility of expert testimony on grooming against relevance and R. 403 objections and explaining, "In Montana, expert testimony explaining the complexities of child sexual abuse for the purpose of assisting jurors in understanding and evaluating a child's testimony is admissible.”); State v. Horton, 200 N.C.App. 74, 80-81, 682 S.E.2d 754, 758-59 (2009) (upholding admission of expert testimony about grooming techniques against objection that it did not corroborate the testimony of the child).

60 . State v. Grainge, 186 Ariz. 55, 58, 918 P.2d 1073, 1076 (Ariz.App.1996) (stating that "grooming can be a continuing process that fosters continued acquiescence to [the defendant’s] sexual crimes”); Cannon v. State, 296 Ga.App. 687, 688, 675 S.E.2d 560, 562-63 (2009) (observing that state had presented evidence of a pattern of "grooming”); Doe v. Sex Offender Registry Bd., 459 Mass. 603, 606, 947 N.E.2d 9, 16 (2011) (reference to "extended periods of ‘grooming’ ”); People v. Steele, 283 Mich.App. 472, 491-92, 769 N.W.2d 256, 269-70, appeal denied., 485 Mich. 996, 775 N.W.2d 146 (2009) (definition of "grooming”); State v. Sage, 357 Mont. 99, 103-04, 103 n. 3, 235 P.3d 1284, 1287 & n. 3 (2010) (definition of "grooming”); State Farm Ins. Co. v. Bruns, 156 N.H. 708, 713, 942 A.2d 1275, 1280 (2008) (citing State v. McIntyre, 151 N.H. 465, 468, 861 A.2d 767, 770 (2004) ("describing ‘grooming’ as a progression in the level of abuse”); Commonwealth v. Meals, 590 Pa. 110, 117-18, 912 A.2d 213, 217 (2006) (defining "grooming behavior”); In re Application of Nash, 317 Or. 354, 359 n. 3, 855 P.2d 1112, 1114 n. 3 (1993) (defining grooming); State v. Wairen, 165 Wash.2d 17, 35 195 P.3d 940, 949 (2008) (citing State v. DeVincentis, 150 Wash.2d 11, 22, 74 P.3d 119 (2003) as discussing evidence of grooming behaviors in child sexual abuse case); Wease v. State, 170 P.3d 94, 114, 116 (Wyo.2007) (referring to "grooming” process).

61 . State v. Jacobson, 283 Conn. 618, 628-29, 633-38, 930 A.2d 628, 635-36, 638-40 (2007); State v. Truman, 150 Idaho 714, 249 P.3d 1169, 1177-78 (Idaho App.2010) (Evidence of prior acts by defendant with the victim was admissible to show his "continuing criminal design to cultivate a relationship with [the victim] such that she would concede to his sexual demands, also known as ‘grooming.’”); State v. Reid, 2011 Ida.App. Unpub. LEXIS 261, 11-13 (July 22) (not designated for publication) (extraneous conduct evidenced a common methodology and technique in grooming, controlling, and abusing stepdaughters); Piercefield v. State, 877 N.E.2d 1213, 1216 & n. 1 (Ind.App.2007), transfer denied, 891 N.E.2d 34 (Ind.2008) (defining grooming and holding that evidence of defendant’s prior acts was admissible to show "preparation or plan” because the evidence showed the defendant’s "grooming of the children to familiarize them with touching and create more physical relationship with them’’); State v. Query, 594 N.W.2d 438, 443-44 (Iowa App. 1999) (prior bad acts could be reasonably interpreted as grooming, showing defendant's motive, intent, plan knowledge, or absence of mistake); State v. Sena, 144 N.M. 821, 827, 192 P.3d 1198, 1204 (2008) (upholding the admission of evidence of defendant’s prior behavior as “grooming evidence”); State v. Christensen, 561 N.W.2d 631, 632-33 (N.D.1997) (trial court did not abuse discretion in admitting evidence of pri- or non-criminal acts of touching to show "grooming”); State v. Borck, 230 Or.App. 619, 630-31, 633-35, 635 n. 10, 216 P.3d 915, 920-21, 922-23, 923 n. 10, modified on other grounds, 232 Or.App. 266, 221 P.3d 749 (2009), review denied, 348 Or. 291, 231 P.3d 795 (2010) (letters from defendant admissible to show grooming, which in turn tended to show that the defendant’s touching was not benign or incidental); State v. Pottebaum, 2008 WL 5397848, 9-10, 2008 Tenn.Crim. App. LEXIS 1005, 25-28 (Tenn.Crim.App.2008, appeal denied) (not designated for publication) (trial court did not err in admitting evidence of defendant’s prior behavior toward victim under Rule 404(b) because, in part, it showed "grooming”).

62 . People in the Interest of C.L.S., 934 P.2d 851, 856 (Colo.App.1996, cert. denied) (juvenile court found sufficient evidence of behaviors that might be a grooming procedure to justify requiring child’s father to submit to a sexual-aggression evaluation and possible treatment); In the Interest of D.D., 653 N.W.2d 359, 362 (Iowa 2002) (expressing concern about child protection worker's characterization of father’s behavior as "part of a grooming process” for more serious sexual abuse in upholding juvenile-court intervention on behalf of children); Newton v. Berry, 15 So.3d 262, 263-64, 266-67 (La.App. 2nd Cir. 2009) (upholding protective order under Domestic Abuse Assistance statute after recognizing that the stepfather had engaged in grooming behavior); Matter of Madge v. Huxley, 79 A.D.3d 1395, 1396-97, 914 N.Y.S.2d 339, 340-41 (A.D. 3rd Dept.2010) (upholding suspension of teacher certification because rational basis supported conclusion that teacher was engaged in grooming students); Grosinger v. M.D. (In re M.D.), 598 N.W.2d 799, 807-08 (N.D.1999) (upholding order committing subject as a sexually dangerous individual in part on evidence that subject was engaging in "grooming” conduct)l

63 . Newton, 15 So.3d at 267.

64 . Reece v. State, 881 P.2d 1135, 1138 n. 3 (Alaska App. 1994), pet. granted, 1995 Alas. LEXIS 15 (Feb. 17, 1995) (Alaska state trooper); Skrepich v. State, 740 P.2d 950, 952 (Alaska App.1987) (therapist); Curry v. State, 2009 WL 1424452, 2-3, 2009 Alas.App. LEXIS 79, 6-8 (Alas.App. May 20) (not designated for publication) (police officer specializing in child-sexual-abuse investigations); State Farm Fire & Casualty Co. v. Brown, 183 Ariz. 518, 519 n. 4, 905 P.2d 527, 528 n. 4 (Ariz.App. 1995, review denied) (marital counselor); People v. Rot, 2011 WL 2582510, 3-4, 2011 Cal.App. Unpub. LEXIS 4962, 9 (6th Dist. June 30) (not designated for publication) (Carl Lewis, former senior investigatory with District Attorney's Office); People v. Kilmer, 2010 WL 2338657, 6-7, 2010 Cal.App. Unpub. LEXIS 4397, 16-17 (1st Dist. June 11) (not designated for publication) (criminal profiler with the California Department of Justice); People v. Torres, 2009 WL 4609844, 5-6, 2009 Cal.App. Unpub. LEXIS 9713, 15-16 (2nd Dist. December 8) (not designated for publication) (Los Angeles police detective who was an expert on child exploitation); People v. Morrison, 985 P.2d 1, 3 (Colo.App.1999), aff’d, 19 P.3d 668 (Colo.2000) (licensed marriage and family therapist with a Ph.D. in clinical psychology); Clark v. State, 41 So.3d 1052, 1055 (Fla.App. 3rd Dist.2010) (psychologist); In the Interest of A.P., 299 Ga.App. 886, 887-88, 684 S.E.2d 22, 23 (2009) (psychologist); People v. Steven E. (In re Steven E.), 341 Ill.App.3d 294, 295-96, 275 Ill.Dec. 177, 792 N.E.2d 408, 410 (2nd Dist.2003) (licensed clinical psychologist with a doctorate in clinical psychology); People v. Rainey, 325 Ill.App.3d 573, 579-80, 259 Ill.Dec. 369, 758 N.E.2d 492, 498 (4th Dist.2001), appeal denied, 198 Ill.2d 604, 262 Ill.Dec. 623, 766 N.E.2d 243 (2002) (board-certified psychologist); State v. Waddell, 2009 WL 3837634, 2, 2009 Kan.App. Unpub. LEXIS 943, 5 (Kan. App. November 12), remanded on other grounds, 2010 Kan. LEXIS 683 (Sept. 7) (not designated for publication) (police detective); State v. Morgan, 948 So.2d 199, 205 (La.App. 5th Cir.2006) (detective with sheriff’s office); Coates v. State, 175 Md.App. 588, 607, 930 A.2d 1140, 1151 (2007), aff’d, 405 Md. 131, 950 A.2d 114 (2008) (social worker); In re Bieganowski, 520 N.W.2d 525, 527, 529-30 (Minn.App.1994) (psychiatrist and court-appointed examiner); State v. Standifer, 2011 WL 2672025, 2-3, 2011 Minn.App. Unpub. LEXIS 671, 5-8 (July 11) (not designated for publication); Martineau v. State, 242 S.W.3d 456, 459 (Mo.App.S.D.2007); State v. Gonzalez, 2010 WL 4241022, 4-6, 2010 Neb.App. LEXIS 165, 11-16 (2010) (not designated for publication) (investigator for the Nebraska Attorney General’s Office); In re Commitment of J.M.B., 197 N.J. 563, 587, 590, 592-94, 964 A.2d 752 (2009); State v. A.B., 2011 WL 488409, 3-4, 5-6, 2011 N.J.Super. Unpub. LEXIS 322, 9-10, 15-16 (A.D. February 14) (not designated for publication) (social worker with a PhD who was supervisor at the Audrey Hepburn Children’s House at the Hackensack University Medical Center); In re K.H., 119 Ohio St.3d 538, 539, 541, 543-44, 895 N.E.2d 809, 810, 812, 813-14 (2008) (sex-offender-treatment expert); In re C.C., 187 Ohio App.3d 365, 372, 375, 932 N.E.2d 360, 365, 367-68 (8th Dist.2010) (social worker); State v. Dillon, 788 N.W.2d 360, 364 (S.D.2010) (clinical psychologist); Commonwealth v. Miller, 273 Va. 540, 544, 643 S.E.2d 208, 210 (2007) (clinical psychologist); State v. Trochinski, 253 Wis.2d 38, 79 n. 37, 644 N.W.2d 891, 911 n. 37 (2002) (Abrahamson, C.J., dissenting) (parole officer); Roberts v. State, 912 P.2d 1110, 1112 (Wyo.1996) (child sex abuse therapist).

65 .Bieganowski, 520 N.W.2d at 530; State v. Deason, 240 S.W.3d 767, 771 (Mo.App. S.D.2007) (The trial court denied a defense motion to exclude testimony relating to "medicine tests ... because it constituted 'grooming evidence, which the courts have already ruled is admissible to show the progression of the molestation.' ”); Pottebaum, 2008 WL 5397848, 9-10, 2008 Tenn.Crim.App. LEXIS 1005, 26-27; State v. Munguia, 253 P.3d 1082, 1085, 1087 (Utah 2011) (term used by adult probation and parole department and by trial court); In re E.S., 183 Vt. 645, 936 A.2d 1318,-, 2007 Vt. Unpub. LEXIS 152, 4-5 (2007) (three-judge panel, not designated for publication); State v. Church, 262 Wis.2d 678, 684, 665 N.W.2d 141, 144 (2003) (trial court expressed concern about defendant's “grooming behavior”);

66 . Allen v. State, 374 Ark. 309, 315, 287 S.W.3d 579, 583-84 (2008).

67 . R.R. v. State, 2010 Ark. App. 689, 3, 2010 WL 4132867, 1, 2010 Ark.App. LEXIS 738, 3 (October 20).

68 . John Y. v. Chaparral Treatment Center, Inc., 101 Cal.App.4th 565, 571, 124 Cal.Rptr.2d 330, 335 (4th Dist.2002, review denied).

69 . State v. Collins, 7 Neb.App. 187, 203-05, 583 N.W.2d 341, 351-52 (1998).

70 . Id. at 352.

71 . State v. Vidrine, 9 So.3d 1095, 1103, 1110-11 (La.App. 3rd Cir.2009), writ denied, 28 So.3d 268 (La.2010) (finding testimony to be impermissible comment on credibility); People v. Diaz, 85 A.D.3d 1047, 926 N.Y.S.2d 128, 130, 132 (2011) (expert testimony on grooming admissible to explain unusual behavior of a victim, but inadmissible merely to show that the sexual assault took place or to bolster a witness’s credibility); State v. Stevens, 328 Or. 116, 126-27, 970 P.2d 215, 222-23 (1998) (murder conviction) (Although earlier case of State v. Hansen, 304 Or. 169, 173-76, 743 P.2d 157, 159-61 (1987) excluded expert testimony on grooming, it did not hold that such testimony is, in all circumstances, inadmissible. Experts can explain seemingly abnormal responses of a certain class of victims but must refrain from providing details of the victimization process.); State v. LaBounty, 168 Vt. 129, 141, 716 A.2d 1, 9 (1998) (saying that "profile” evidence has been overwhelmingly disapproved by appellate courts); In re Det. of Thorell, 149 Wash.2d 724, 757, 72 P.3d 708, 726 (2003) (profile evidence inadmissible, citing State v. Braham); Braham, 67 Wash.App. 930, 937-39, 938 n. 5, 939 n. 7, 841 P.2d 785, 789-90, 790 ns. 5, 7 (Div. 1 1992) (holding grooming evidence inadmissible under R. 403 under the facts of the case, but not foreclosing admissibility in every case and not addressing R. 702).

72 .See this opinion, ante.

73 . Eeds, 254 S.W.3d 555; Wetmore, 766 F.Supp.2d 319; Force, 2009 WL 2407838, 2009 U.S. Dist. LEXIS 68497; Clark, 41 So.3d 1052; Rainey, 325 Ill.App.3d 573, 259 Ill.Dec. 369, 758 N.E.2d 492; Bieganowski, 520 N.W.2d 525 (commitment for an indeterminate period as a psychopathic personality); Martineau, 242 S.W.3d 456; 197 N.J. 563, 964 A.2d 752; Grosinger, 598 N.W.2d 799; Meals, 590 Pa. 110, 912 A.2d 213; Thorell, 149 Wash.2d 724, 72 P.3d 708.

74 . Sylvia, 2010 WL 1507827, 2010 Tex.App. LEXIS 2752 (termination of parental rights); C.L.S., 934 P.2d 851 (juvenile dependency and neglect proceedings); A.P., 299 Ga.App. 886, 684 S.E.2d 22 (juvenile-court judgment finding child deprived due to sex abuse); Steven E., 341 Ill.App.3d 294, 275 Ill.Dec. 177, 792 N.E.2d 408 (order of wardship); D.D., 653 N.W.2d 359 (juvenile-court adjudication of children in need of assistance); Newton, 15 So.3d 262 (judgment imposing protective order under Domestic Abuse Assistance statute); K.H., 119 Ohio St.3d 538, 895 N.E.2d 809 (termination of parental rights); C.C., 187 Ohio App.3d 365, 932 N.E.2d 360 (same); E.S., 183 Vt. 645, 936 A.2d 1318, 2007 Vt. Unpub. LEXIS 152 (same).

75 . Hale, 2006 WL 166518, 2006 Tex.App. LEXIS 747.

76 . Coley, 462 Fed.Appx. 157, 2011 WL 2065065, 2011 U.S.App. LEXIS 10690; Doe v. Smith, 470 F.3d 331, 335 n. 3, 348 (7th Cir.2006); Powell’s Books, 622 F.3d 1202; Schnitzler, 518 F.Supp.2d 1098; Liberatore, 478 F.Supp.2d 742; Am. Booksellers Found., 202 F.Supp.2d 300; Ordemann, 2008 WL 2073992, 2008 U.S. Dist. LEXIS 39409; State Farm Fire & Casualty Co., 183 Ariz. 518, 905 P.2d 527; John Y., 101 Cal.App.4th 565, 124 Cal.Rptr.2d 330; Doe v. Garcia, 126 Idaho 1036, 895 P.2d 1229 (App.1995); State Farm Ins. Co., 156 N.H. 708, 942 A.2d 1275.

77 . United States v. Penley, 52 Fed.Appx. 201 (4th Cir.2002) (not designated for publication).

78 . Blake, 2010 WL 702958, 2010 U.S. Dist. LEXIS 23014.

79 . Hansel, 2006 U.S. Dist. LEXIS 54725; Thomas, 2006 WL 140558, 2006 U.S. Dist. LEXIS 3266; Christy, 2010 WL 2977610, 2010 U.S. Dist. LEXIS 71300; Farris, 2008 WL 1944131, 2008 U.S. Dist. LEXIS 36937.

80 . R.R., 2010 Ark. App. 689, 2010 WL 4132867, 2010 Ark.App. LEXIS 738; B.W. v. State, 909 N.E.2d 471, 474 (Ind.App.2009); Doe v. Sex Offender Registry Bd., 459 Mass. 603, 947 N.E.2d 9.

81 . Mudge, 79 A.D.3d 1395, 914 N.Y.S.2d 339.

82 . Nash, 317 Or. 354, 855 P.2d 1112.

83 . United States v. Berg, 640 F.3d 239, 252 (7th Cir.2011) (federal criminal enticement statute “targets the sexual grooming of minors as well as the actual sexual exploitation of them”); Powell’s Books v. Kroger, 622 F.3d 1202, 1206, 1215 (9th Cir.2010) (recognizing that Oregon criminal statutes were aimed at practices of "luring” and "grooming” that expose minors to sexually explicit materials in the hopes of lowering their inhibitions against engaging in sexual conduct but finding the statutes unconstitutional because they reach a significant amount of material that is not obscene as to minors); Am. Booksellers Found., 202 F.Supp.2d at 316-17 (Vermont statute, see this opinion, footnote 52).

84 . See this opinion, footnotes 58 and 65; United States v. Dorvee, 616 F.3d 174, 180 (2nd Cir.2010); Fancher, 513 F.3d at 431; Shafer, 573 F.3d at 271; United States v. Beith, 407 F.3d 881, 885 (7th Cir.2005); United States v. Holt, 510 F.3d 1007, 1010-11 (9th Cir.2007); Sullivan, 2005 WL 5966149 at 11, 2005 U.S. Dist. LEXIS 26339 at 31.

85 . See Penley, 52 Fed.Appx. at 202; Schnitzler, 518 F.Supp.2d at 1101.

86 . Force, 2009 WL 2407838 at 2-3, 4, 2009 U.S. Dist. LEXIS 68497 at 6-7, 10

87 . Young, 613 F.3d at 739 n. 3 (Internet Crimes Against Children Task Force).

88 . Munguia, 253 P.3d at 1085.

89 . Brand, 467 F.3d at 203 (referring to "classic ‘grooming’ behavior in preparation for a future sexual encounter”); United States v. Abston, 304 Fed.Appx. 701, 704 n. 4 (10th Cir.2008) (referring to "a classic progression-type grooming process used by pedophiles or child molesters”); Gleich, 2005 WL 741921 at 2, 2005 U.S. Dist. LEXIS 5149 at 6 (concluding that defendant "fits the classic profile of a pedophile who was engaged in a clever and calculated scheme to ‘groom’ a new victim”); United States v. Garner, 67 M.J. 734, 735-36, 738-39 (N.M.C.C.A.2009), aff'd, 69 M.J. 31 (C.A.A.F.2010) (quoting, with approval, from Brand); State v. Garcia, 200 Ariz. 471, 476, 28 P.3d 327, 332 (Ariz.App.2001) (referring to "classic ‘grooming’ activity in molestation cases”); See also Lopez, 2008 WL 2487244, 2008 U.S. Dist. LEXIS 113464 (prosecutor's argument that defendant "engaged in classic grooming"); John Y., cited in this opinion, footnote 68.

90 . Patterson, 54 M.J. at 76.

91 . See this opinion, footnotes 39 and 64; United States v. Jordan, 435 F.3d 693, 696 (7th Cir.2006) (Special Agent Eric Szatkowski); Am. Booksellers Found., 202 F.Supp.2d at 316-17 (police officer); Light, 2009 WL 4456385, 3-4, 6-10, 2009 U.S. Dist. LEXIS 115715 at 8-9, 17-26 (Carl Lewis, see Rot, cited in this opinion, footnote 64); Lopez, 2008 WL 2487244, 4-5, 13-18, 18-20, 2008 U.S. Dist. LEXIS 113464 at 12, 37-47, 50-54 (police detective); Christy, 2010 WL 2977610 at 4 & n. 5, 8, 2010 U.S. Dist. LEXIS 71300 at 11-12 & n. 5, 23-24 (Special Victims Detective with sheriff's office); Haycraft, 760 N.E.2d 203 at 210-11 (police detective).

92 . Coble, 330 S.W.3d at 274 n. 49.

93 . Id.; see also Nenno, 970 S.W.2d at 552, 561-62.

94 . Nenno, 970 S.W.2d at 562.

95 . The court of appeals in the present case also addressed claims that Ranger Hullum and another witness were improperly allowed to express an opinion on appellant’s guilt. Morris, 2010 WL 2224651 at 1-9. Assuming that the questions were improper, id. at 2, the court conducted a harm analysis and found any error to be harmless. Id. at 9. We did not grant review of the harmless error question.

Because it is beyond the scope of our review in this case, we do not address whether an expert can express an opinion on a defendant’s probable guilt based on grooming theory and, if so, what qualifications would be required to do so.

96 . See e.g., B.W., 909 N.E.2d at 474; Cook, 2010 WL 3910585 at 1-2, 2010 Tex.App. LEXIS 8095 at 4; Mitchell, 2008 WL 4899195 at 1-2, 2008 Tex.App. LEXIS 8594 at 3; Light, 2009 WL 4456385 at 3-4, 2009 U.S. Dist. LEXIS 115715 at 8-9;

97 . See e.g., Weatherly, 283 S.W.3d at 491-92; United States v. Hofus, 598 F.3d 1171, 1177 & n. 4 (9th Cir.), cert. denied,-U.S.-, 131 S.Ct. 364, 178 L.Ed.2d 235 (2010); Patterson, 54 M.J. at 76; Sorabella, 277 Conn, at 213— 14, 891 A.2d at 932-33; Garcia, 126 Idaho at 1043, 895 P.2d at 1236; Piercefield v. State, 877 N.E.2d at 1216 & n. 1.

98 . See e.g., Liberatore, 478 F.Supp.2d at 750; Lopez, 2008 WL 2487244 at 14-15, 2008 U.S. Dist. LEXIS 113464 at 39-40.

99 . See e.g., Weatherly, 283 S.W.3d at 491-92; Smith, 470 F.3d at 335 n. 3; Young, 613 F.3d at 739 n. 3; Hofus, 598 F.3d at 1177 & n. 4; Batton, 602 F.3d at 1198 n. 3; Wetmore, 766 F.Supp.2d at 321-22; Jacobson, 283 Conn, at 628-29, 930 A.2d at 635-36; Piercefield, 877 N.E.2d at 1216 n. 1; Coates v. State, 175 Md.App. at 607, 930 A.2d at 1151; Martineau v. State, 242 S.W.3d at 459; Sage, 357 Mont. at 103 n. 3, 235 P.3d at 1287 n. 3.

100 . See Van Houten, 2009 WL 481883 at 4, 2009 Tex.App. LEXIS 1301 at 11; Raymond, 700 F.Supp.2d at 151.

101 . See e.g., Hitt, 473 F.3d at 152; State Farm Fire & Casualty Co., 183 Ariz. at 519 n. 4, 905 P.2d at 528 n. 4; Steele, 283 Mich.App. at 491-92, 769 N.W.2d at 269-70; Berosik, 352 Mont, at 23, 214 P.3d at 782-83; Borck, 230 Or.App. at 630-31, 633-35, 216 P.3d at 920-21, 922-23.

102 . See e.g., Steele, 283 Mich.App. at 491-92, 769 N.W.2d at 269-70; Petri, 279 Mich.App. at 415, 760 N.W.2d at 888; State v. Horton, 200 N.C.App. at 80, 682 S.E.2d at 759; C.C., 187 Ohio App.3d at 372, 932 N.E.2d 360, 365; Borck, 230 Or.App. at 630-31, 633-35, 216 P.3d at 920-21, 922-23.

103 . See e.g., Berg, 640 F.3d at 249; Long, 328 F.3d at 665; Garcia, 200 Ariz. at 476-77, 28 P.3d at 332-33; Jones, 990 A.2d at 976.

104 . See e.g., Dorvee, 616 F.3d at 180; Powell’s Books, 622 F.3d at 1206; Long, 328 F.3d at 665; Am. Booksellers Found., 202 F.Supp.2d at 316; United States v. Banker, 63 M.J. 657, 660 (A.F.C.C.A.2006), aff'd, 64 M.J. 437 (C.A.A.F.2007); Jones, 990 A.2d 970, 976.

105 . See e.g., Hernandez, 973 S.W.2d at 790; Hitt, 473 F.3d at 152; Long, 328 F.3d at 665; Liberatore, 478 F.Supp.2d at 750; Morris, 246 F.Supp.2d at 1132; Nash, 317 Or. at 359 n. 3, 855 P.2d at 1114 n. 3.

106 . See e.g., Light, 2009 WL 4456385 at 3-4, 2009 U.S. Dist. LEXIS 115715 at 8-9 ("back rubs”); Piercefield v. State, 877 N.E.2d at 1216 (massages); Warren, 165 Wash.2d at 35, 195 P.3d at 949, citing DeVincentis, 150 Wash.2d at 22, 74 P.3d at 125-26 (massages).

107 . See Hernandez, 973 S.W.2d at 790 (tag game involving pressing penis against victim’s backside while both were clothed); Wagner, 2010 WL 2163845 at 2, 2010 Tex.App. LEXIS 4087 at 4 ("pony ride” game); Light, 2009 WL 4456385 at 3-4, 2009 U.S. Dist. LEXIS 115715 at 8-9 (may include play such as wrestling and "slapping of the butt”); Miller, 273 Va. at 544, 643 S.E.2d at 210 (using games and other methods to engage the victims' interests).

108 . Jordan, 435 F.3d at 696 (expert testified that reference to previous relationship with a much younger girl was a grooming technique).

109 . Judge Price misunderstands Nenno, or at least which prong of Nenno is at issue. He contends that "[ujbiquity does not begin to prove reliability” because "the world is full of psychics, horoscopes, tarot card readers, and fortune cookies.” Dissent by Price, J. at 678. All of these are examples of fields that have not been recognized by courts as legitimate. If a field is not legitimate, then the prevalence of a practice or subject within the field would not demonstrate anything. Assessing personality based upon one's zodiac sign may be a common occurrence in astrology, for example, but astrology itself has not been held to be a legitimate field of study. As we explained above, the relevant field of study has already been recognized as legitimate in Nen-no: the experience-based study of "the behavior of offenders who sexually victimize children." See Nenno, 970 S.W.2d at 562. How often "grooming” as a subject is addressed by practitioners within this field is clearly relevant to the reliability of grooming testimony as a whole.

Moreover, saying that a field of study or a . subject within a field occurs frequently in the world around us is not the same as saying that the matter is addressed frequently in the court system. Judge Price has offered nothing to suggest that one can find frequent references in court decisions to psychics or astrology in anything other than a pejorative sense; he has not cited a single case in which a court admitted such matters into evidence, relied upon such matters in assessing the sufficiency of the evidence, or relied upon such matters in assessing punishment or evaluating a defendant’s future dangerousness for various purposes (e.g. civil commitment, pretrial detention, child custody).

Judge Price also faults this Court for not showing "indisputable acceptance in the psychological community,” dissent by Price, J. at 678, but the psychological community is not the relevant field of study in the present case. Ranger Hullum did not testify as a psychologist but as an experience-based expert, like Kenneth Lanning, the expert in Nenno.

110 . It may not be immediately obvious that this question is implicated in appellant’s ground for review. But, having already re-characterized appellant’s claim as relating to the second, rather than the first, prong of the Nenno inquiry, we consider whether appellant's claim might also be construed as saying that this type of testimony is just common knowledge dressed up as expert testimony.

111 . Jones, 990 A.2d at 978. See also Romero, 189 F.3d at 584; Long, 328 F.3d at 667; Batton, 602 F.3d at 1201.

112 . Raymond., 700 F.Supp.2d at 151 (“Those observations are hardly rocket science. A jury in 2010 does not need expert testimony to help it understand that not every child abuser is ‘a dirty old man in a wrinkled raincoat’ who snatches children off the street as they wait for the school bus.”); Schneider, 83 Fed. R. Evid. Serv. (Callaghan) 820, 2010 WL 3734055 at 7, 2010 U.S. Dist. LEXIS 99662 at 20 ("While such evidence may have been helpful to juries in the past, this Court agrees with the conclusion that a jury in 2010 does not need expert testimony to show that child sexual abusers can often be ostensibly responsible and well-meaning adults who occupy positions of trust in society.”)

113 . Banker, 63 M.J. at 660 ("This Court's finding of a pattern of grooming is merely a conclusion we reached after careful review of the evidence in this case.”); Sena, 144 N.M. at 827, 192 P.3d at 1204 ("[W]e do not agree that the grooming evidence in the instant case needed an expert witness to explain to the jury how Defendant's behavior showed his sexual intent or his lack of mistake or accident. ... Lay persons are well-aware of what it means to act with a sexual intent, and therefore can identify behavior as exhibiting that trait without the aid of an expert witness.”).

114 . Batton, 602 F.3d at 1202 ("The methods sex offenders use are not necessarily common knowledge.”); Berosik, 352 Mont. at 23, 214 P.3d at 782 ("[The expert's] testimony concerned a subject about which lay persons would have little or no experience.”); Jones, 990 A.2d at 978. See also Van Houten, 2009 WL 481883 at 5, 2009 Tex.App. LEXIS 1301 at 15 ("[The expert] stated the concept of grooming is information that is not generally known by the common lay person and that testimony about grooming would aid lay persons in understanding a child molestation situation.”).

115 . Jones, 990 A.2d at 978.

116 . Id.

117 . Judge Price concedes that "it may sometimes be appropriate for an appellate court to take judicial notice ... for the first time on direct appeal” but contends that "judicial notice of an adjudicative fact should never be taken for the first time by a discretionary review court.” Dissent by Price, J. at 675, 676. He cites no authority for this proposition, and his reasoning is not persuasive. He argues that this Court’s job is to "shepherd the jurisprudence,” id. at 676, but that is exactly what we are doing in determining the general reliability of grooming testimony, an important issue that this Court has the ultimate responsibility to resolve. He criticizes us for "doing the vast bulk of the research for the State,” id. at 676, but the thoroughness of our analysis of this important issue should not depend upon the thoroughness of the briefs.

Judge Price also misapprehends the significance of the procedural posture of this case. He complains that the State did not ask the court of appeals to take judicial notice of the reliability of grooming testimony. Id. at 675. But as the prevailing party at trial, the State "was not required to raise any allegations before the court of appeals.” Volosen v. State, 227 S.W.3d 77, 79, 80 (Tex.Crim.App.2007) (State appellee may raise for the first time in a petition for discretionary review the argument that a statutory defense was inapplicable to the county in which the conduct occurred). See also Rhodes v. State, 240 S.W.3d 882, 886 ns. 8, 9 (Tex.Crim.App.2007) (State appellee may raise for the first time in a petition for discretionary review an estoppel argument that was not raised on original submission in the court of appeals or addressed by that court).

Judge Price also accuses this Court of taking judicial notice "without alerting the appellant beforehand to allow him to marshal some argument in this Court ... why judicial notice ... may not be appropriate.” Dissent by Price, J. at 676. He suggests that appellant’s "only opportunity ... to challenge the propriety of our action is via a motion for rehearing.” Id. at 676 n. 7. But, as the Judge Price himself acknowledges, the State advanced the judicial notice argument in its brief on discretionary review, id. at 675, 675-76, and the State cited relevant federal cases on the matter, id. at 675-76. The State cited Hitt, Hayward, and Romero on the legitimacy of grooming testimony and Batton on the methods of sex offenders not being common knowledge. On the day of oral argument, the State filed a supplemental list of authorities, which included citations to the Texas courts of appeals cases of Davenport and Van Houten.

At oral argument the State reiterated its position that judicial notice could be taken and it discussed Bryant, another Texas court of appeals case. As we noted earlier, appellant's counsel contended at oral argument that the federal cases were not relevant, under Hernandez, because they were not presented to the trial court. He did not make the argument that Judge Price now makes on his behalf regarding the absence of a request for judicial notice before the court of appeals. Appellant had the opportunity to respond and did respond at oral argument to the State’s judicial notice contention. That the defense was not blind-sided by this contention is suggested by the fact that he did not request permission to file a supplemental brief. See Tex.R.App. P. 70.4.

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Concurrence Opinion

COCHRAN, J.,

concurring in which JOHNSON, J., joined.

Given the ground for review that we granted in this case, I agree with the majority’s resolution. This is the ground that we granted:

The court of appeals erred in holding that purportedly expert testimony about “grooming” was admissible where there was no showing that the study of “grooming” was a legitimate field of expertise.

The only question that we need address is the legitimacy of a phenomenon known as “grooming” behavior by those who use a particular method to get a person to comply with what the groomer wants.¹ This is not rocket science. It does not depend upon any scientific, technical, or psychological principles or methodology. This type of testimony does not depend upon educational expertise, any calculable rate of error, learned treatises, peer review, or any other esoteric skill. This is not even “soft science.”² It is just “horse sense” expertise developed over many years of personal experience and observation. It is “modus operandi” evidence that may or may not be relevant in a particular case. We may take judicial notice of the legitimacy of such a behavioral phenomenon by, inter alia, looking to decisions from other courts that have addressed that issue. What our decision in Hernandez forbids is taking judicial notice, for the first time on appeal, of the scientific reliability of a particular machine, such as the Adx machine in that case, or of an intoxilyzer machine, or DNA or blood lab technology, or a particular scientific methodology for which there has not been some showing, in a trial court hearing, of its scientific reliability.³

Texas law has long allowed such experiential “horse sense” expertise. For example, in one 1929 case, the court of civil appeals held that an experienced cowman was qualified to give his opinion on how many men were needed to handle a herd of cattle.⁴ Just as Texas has long recognized that farmers may be expert witnesses in matters peculiarly within then-knowledge,⁵ so may police officers. We, along with federal courts and other state courts have recognized that police officers, based solely on their years of experience and training, may qualify as experts to testify about a wide variety of “modus operandi” techniques of illegal enterprises or conduct.⁶ Their expert “modus operan-di” testimony may be admissible when it is both relevant to a disputed issue and when that “modus operandi” testimony is of appreciable assistance to the jury⁷ because it is outside the average juror’s experience or full understanding.⁸

The adoption of Rule 702 by both Texas and the federal courts has not changed this aspect of experiential expertise.⁹ Indeed, the advisory committee to the Federal Rules of Evidence has explicitly discussed the “reliability” aspect of “modus operandi” expertise offered by police officers:

The [2002] amendment [to Rule 702 of the Federal Rules of Evidence] requires that the testimony must be the product of reliable principles and methods that are reliably applied to the facts of the case. While the terms “principles” and “methods” may convey a certain impression when applied to scientific knowl.edge, they remain relevant when applied to testimony based on technical or other specialized knowledge. For example, when a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of the conversations. So long as the principles and methods are reliable and applied reliably to the facts of the case, this type of testimony should be admitted.¹⁰

Appellant argued in the trial court, and on appeal, that “the State had presented no evidence that ‘the theory under which he’s going to express these opinions [is] accepted by the scientific community or the psychiatric community or the psychological communityf.]’ ”¹¹ He is absolutely correct. This Court need not take judicial notice of the scientific, psychological, or psychiatric “reliability” of expertise concerning the “modus operandi” of grooming. Indeed we should not. As the dissent appropriately notes, the concept of scientific “reliability” has no application to such testimony. “Grooming” is simply a behavioral phenomenon that may or may not apply in a given scenario. One cannot, for example, determine the scientific reliability of a police officer’s testimony that when Dan sidled up to Simon, looked around to make sure no one else was watching, then quickly gave Simon a $10 bill and took something from Simon’s hand, that this was a drug transaction. There is no determinable “error rate” for how many times this type of interaction is a drug transaction versus something else. There are probably few treatises, research studies, or peer review articles written on the topic of the reliability of a drug transaction “modus operandi.” There is no psychological principle involved in such experiential “modus operandi” expertise; it is simply that the police officer, like Justice Stewart on seeing pornography, “knows it when he sees it,”¹² or at least he has an expert opinion, based on his experience and training, concerning the significance of the particular circumstances. What the witness must be able to do is explain how his experience and training qualifies him to make assessments of a certain type of behavior and precisely why, based on that experience and training, he has formed an opinion of this particular set of circumstances.

The witness may be wrong, of course, in the particular case. Not every street corner encounter such as described above is a drug transaction. Not every developing close relationship between a young boy and an older man that involves lollipops, back-rubs, or trips to the ice-cream store is an instance of “grooming.” But the relative likelihood of these particular circumstances involving that particular “mo-dus operandi” are generally matters for cross-examination.¹³

Nor is this an example of a scientific expert, such as a psychiatrist like Dr. Coons, testifying to unscientific “horse sense” dressed up in a doctor’s white robe. As we stated in Coble v. State,¹⁴ the danger with unscientific expertise posing as science is that the jury will accept it uncritically.¹⁵ There is no such danger when evaluating a police officer’s testimony concerning a “modus operandi” such as “grooming.” It is “horse sense” in plain clothes; the jury can immediately grasp the concept and use it or reject as they see fit.

Because the only question before us is whether the behavioral phenomenon of “grooming” is a legitimate one that may a suitable subject for expert testimony, I join the majority opinion.

1 . In this case, Ranger Hullum defined "methodology” as the method of operation or how a particular crime is committed. He defined "grooming” as an attempt by an offender to get the victim to comply with what the offender wants the victim to do. Going into a child's bedroom and spending 10 to 15 minutes, then finally spending the night, he said, was an example of grooming.

2 . See Nenno v. State, 970 S.W.2d 549, 560-61 (Tex.Crim.App.1998).

3 . Hernandez v. State, 116 S.W.3d 26, 30-32 (Tex.Crim.App.2003).

4 . Texas & P. Ry. Co. v. Edwards, 21 S.W.2d 754, 757 (Tex.Civ.App.-El Paso 1929), rev’d on other grounds, 36 S.W.2d 477 (Tex. Comm’n App. 1931).

5 . See McDonald v. Webb, 510 S.W.2d 670, 673 (Tex.Civ.App.-Corpus Christi 1974, no writ) (farmer, who was qualified by his technical training and experience, could testify about quality of cotton and what makes a "below grade” bale of cotton); Kincheloe Irrigating Co. v. Hahn Bros. & Co., 132 S.W. 78, 81 (Tex.Civ.App.-San Antonio 1910), aff'd 105 Tex. 231, 146 S.W. 1187 (1912) (farmer who had grown rice for three years and stated that he knew a good rice crop from a poor one, was qualified to testify that a certain plot would have yielded a specific number of bags per acre had it been properly watered).

6 . Fields v. State, 932 S.W.2d 97, 107-08 (Tex.App.-Tyler 1996, pet. ref'd) (DPS lieutenant in narcotics service could testify to characteristics and patterns commonly existing among "people who would be traveling with quantities” of controlled substances, especially cocaine); Foster v. State, 909 S.W.2d 86, 88-89 (Tex.App.-Houston [14th Dist.] 1995, pet. ref’d) (experienced police officer could testify as an expert on modus operandi of "jug-gings' ’ — well-organized robberies — which "explained the rather complicated maneuvers of the co-actors with various automobiles and license plates”).

7 . See 7 John H. Wigmore, Evidence in Trials at Common Law § 1923, at 29 (Chadboume Rev. 1978).

8 . See e.g., United States v. Perez, 280 F.3d 318, 341-42 (3d Cir.2002) (police officers may testify as experts to modus operandi of drug traffickers based upon experience and training); United States v. Buchanan, 70 F.3d 818, 832 (5th Cir.1995) (narcotics agent may testify to the significance of conduct or modus operandi of drug distribution business); United States v. Gibbs, 190 F.3d 188, 210 (3d Cir.1999) (government agents may testify to the meaning of coded drug language); United States v. Gil, 58 F.3d 1414, 1421-22 (9th Cir.1995) (expert testimony regarding how drug-traffickers employ telephone pagers and public telephones to avoid detection by police was properly admitted); United States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir.1994) (affirming the admission of expert testimony of how drug traffickers employed telephone pagers "in order to avoid detection"); United States v. Gastiaburo, 16 F.3d 582, 588-89 (4th Cir.1994) (expert testimony about "tools of the trade" of drug traffickers, including "beepers,” was properly admitted); United States v. Solis, 923 F.2d 548, 549-51 (7th Cir.1991) (expert testimony that the use of "beepers” by drug traffickers permit them to be anonymous and mobile was properly admitted); United States v. Sellaro, 514 F.2d 114, 118-19 (8th Cir.1973) (FBI agent qualified as expert on modus operandi of bookmakers and could define the meaning of various bookmaker terms, even though he had never placed a bet with a bookie).

9 . See Fed.R.Evid. 702, advisory committee notes to 2002 amendments. The advisory committee states,

Some types of expert testimony will be more objectively verifiable, and subject to the expectations of falsifiability, peer review, and publication, than others. Some types of expert testimony will not rely on anything like a scientific method, and so will have to be evaluated by reference to other standard principles attendant to the particular area of expertise. The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted. The expert’s testimony must be grounded in an accepted body of learning or experience in the expert’s field, and the expert must explain how the conclusion is so grounded. See, e.g., American College of Trial Lawyers, Standards and Procedures for Determining the Admissibility of Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994) ("[Wjhether the testimony concerns economic principles, accounting standards, property valuation or other non-scientific subjects, it should be evaluated by reference to the ‘knowledge and experience' of that particular field.”).

10 . Id. The committee elaborated that

Nothing in this amendment is intended to suggest that experience alone — or experience in conjunction with other knowledge, skill, training or education. — may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of

reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th Cir.1997) (no abuse of discretion in admitting the testimony of a handwriting examiner who had years of practical experience and extensive training, and who explained his methodology in detail); Tassin v. Sears Roebuck, 946 F.Supp. 1241, 1248 (M.D.La.1996) (design engineer’s testimony can be admissible when the expert's opinions "are based on facts, a reasonable investigation, and traditional technical/mechanical expertise, and he provides a reasonable link between the information and procedures he uses and the conclusions he reaches”). See also Kumho Tire Co. v. Carmichael [526 U.S. 137], 119 S.Ct. 1167, 1178 [143 L.Ed.2d 238] (1999) (stating that "no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”).

If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court’s gatekeeping function requires more than simply "taking the expert’s word for it.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir.1995) ("We’ve been presented with only the experts' qualifications, their conclusions and their assurances of reliability. Under Daubert, that's not enough.”). The more subjective and controversial the expert's inquiry, the more likely the testimony should be excluded as unreliable. See O’Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir.1994) (expert testimony based on a completely subjective methodology held properly excluded). See also Kumho Tire Co. v. Carmichael [526 U.S. 137], 119 S.Ct. 1167, 1176 [143 L.Ed.2d 238] (1999) ("[I]t will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.”).

Id.

11 . Appellant’s Brief on Appeal at 29.

12 . Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring).

13 . Appellant argues that there must be empirical data to support the phenomenon of "grooming” behavior before it can be the subject for expert testimony: "Where, however, in the record before the Court is there any empirical data showing, for example, how many men who give back rubs to their children turn out to be ‘grooming’ them?” Appellant’s Brief at 23. But that is not a necessary requirement under Rule 702, nor is it a requirement of any purely experiential expertise. It is, of course, a proper topic for vigorous cross-examination.

14 . 330 S.W.3d 253 (Tex.Crim.App.2010).

15 .Id. at 279 n. 68 (noting that, if Dr. Coons’s methodology were unscientific, the intuitive appeal of his opinions would be doubly dangerous as the jury might accept his testimony uncritically) (citing Flores v. Johnson, 210 F.3d 456, 465-66 (5th Cir.2000) (Garza, J„ concurring) (”[T]he problem here (as with all expert testimony) is not the introduction of one man’s opinion on another’s future dangerousness, but the fact that the opinion is introduced by one whose title and education (not to mention designation as an ‘expert’) gives him significant credibility in the eyes of the jury as one whose opinion comes with the imprimatur of scientific fact.”)).

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Dissenting Opinion

MEYERS, J.,

dissenting in which PRICE and WOMACK, JJ., joined.

The court of appeals said that under the record in this case, the trial court did not abuse its discretion in admitting testimony regarding Appellant’s “grooming” of the victim. Appellant contends that the court of appeals based this determination on the purported expert’s experience, rather than whether “grooming” is a legitimate field of scientific examination. The majority disagrees and takes judicial notice that “grooming” is sufficiently established as a subject of expert testimony. Judge Cochran concurs that “grooming” is a legitimate issue for expert testimony, but says that this type of expertise is experiential and is not related to scientific reliability.

Irrespective of whether the study of “grooming” behavior is a legitimate field of expertise, I do not think Hullum was qualified to be an expert on this issue. He had no degree in any field of study involving human behavior, no specialized training in “grooming” behavior, and he did not show that the training and experience he did have enabled him to distinguish such behavior. His testimony that he believed Appellant engaged in “grooming” behaviors expressed to the jury his opinion as to Appellant’s guilt. Allowing him to testify was error and, although we did not grant Appellant’s ground for review regarding harm, I would say that the error was harmful. I respectfully dissent.

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Dissenting Opinion

PRICE, J.,

dissenting in which MEYERS and WOMACK, JJ., joined.

Today the Court essentially takes judicial notice of the reliability of the principle of “grooming” to explain the behavior of the appellant in this prosecution for indecency with a child. It does so for the first time at the level of discretionary review. I will concede that it may sometimes be appropriate for an appellate court to take judicial notice of an adjudicative fact for the first time on direct appeal.¹ But the State did not ask the court of appeals to take judicial notice of the reliability of grooming-based testimony in this case. The State waited until filing its reply brief, and after we had already granted the appellant’s petition for discretionary review, to broach the possibility of judicial notice. I question whether it is ever appropriate for a discretionary review court to take judicial notice of an adjudicative fact. I will reserve judgment on whether the Court is ultimately correct to conclude that expert testimony about grooming is predicated upon reliable psychological or empirical principles, and whether the particular testimony in this case derived from an appropriate application of those principles. In any event, I cannot join the Court in taking judicial notice of its reliability, thereby relieving the State, as the proponent of the evidence, of its ordinary burden to establish reliability, and hence relevance, of the testimony.

I.

As is apparent from the Court’s opinion, the appellant properly preserved objections at trial, both to Ranger Hullum’s qualifications as an expert in grooming, and as to the reliability of grooming as a psychologically demonstrable phenomenon capable of being applied to the facts of a particular case by expert opinion that may be useful to a jury.² The court of appeals acknowledged that the appellant challenged the reliability of testimony based upon grooming as a psychological principle under the “soft” science standard.³ But then the court of appeals essentially conflated the appellant’s two trial objections, concluding that Hullum’s testimony was sufficiently reliable simply because he was qualified by experience to testify about grooming.⁴ The court of appeals did not otherwise address the issue of the reliability of Hullum’s grooming-based testimony.

In his petition for discretionary review, the appellant argued that the court of appeals erred to resolve his appellate complaint in this way. Rather than to assert, as he might have, that we should remand the cause to the court of appeals to address his true contention on appeal, the appellant asked us to proceed straight to the merits, reiterating his argument that the State failed in its burden as the proponent of Hullum’s testimony to establish, by clear and convincing evidence, that grooming-based testimony is predicated upon sound psychological — or otherwise empirically demonstrable — principles. Only after we had granted the appellant’s petition did the State contend, for the first time in its reply brief, that the psychological principles that underlie grooming testimony are so well ingrained (though the State cited only a handful of federal cases for this proposition, and no psychological literature or empirical data) that the prosecution should not have been expected to have to prove them at the trial court level.

After doing the vast bulk of the research for the State, the Court now essentially holds (despite the absence of any actual litigation on the subject below) that case law from other jurisdictions demonstrates that grooming is such a well-established psychological concept that the State, as proponent of the grooming-based testimony here, need not have been required to prove it at all. The Court proceeds to take this judicial notice in the absence of any request from the State at either the trial or appellate level and without alerting the appellant beforehand to allow him to marshal some argument in this Court (having not been called upon to do so in either of the lower courts, since judicial notice was not sought there) why judicial notice of the particular adjudicative fact at issue in this case may not be appropriate. I cannot bring myself to go along with this.

Construing Rule 201(f) of the Texas Rules of Evidence, we have recognized that an appellate court may take judicial notice of an adjudicative fact, at its discretion, even for the first time on appeal.⁵ But an appellate court should do so, if at all, only when necessary to avoid an unjust judgment, and only when the fact to be judicially noticed is beyond any reasonable dispute.⁶ Otherwise, judicial notice at the appellate level simply serves to relieve the party with the burden to prove the adjudicative fact of the necessity of actually proving it, without even affording his adversary the opportunity to challenge its indisputability.

In my view, judicial notice of an adjudicative fact should never be taken for the first time by a discretionary review court.⁷ Unlike the courts of appeals, whose duty it is to assure (inasmuch as humanly possible) that justice is achieved in individual criminal cases, our primary purpose, in our capacity as a discretionary review court, is to shepherd the jurisprudence. We should be less concerned with the correctness of the resolution of individual cases, and more concerned that the courts of appeals have at their disposal the clearest possible articulation of the most important legal principles, so that they may better fulfill their role of doing justice in the many appeals-as-of-right that this Court will never choose, or even have the opportunity, to review. When this Court takes judicial notice of an adjudicative fact for the first time on discretionary review, we become involved as petty fact-finders, to the detriment of our proper role as ultimate arbiters of the law. Inserting ourselves in the adjudicative fact-finding function exposes us to accusations of judicial activism, even favoritism. We risk distorting the jurisprudence to fit a desired result in the particular case rather than accepting the case in the posture that it comes to us and using it dispassionately to shape the law, hopefully for the better. I want no part of that.

This is not to say that I doubt that, at a certain point, a principle of the soft sciences may become so well accepted that a trial or appellate court could appropriately take judicial notice of the reliability of expert testimony deriving from that principle. Far from it. Once the proponents of expert testimony have satisfied their burden to establish reliability with sufficient regularity in the course of Rule 705 hearings,⁸ it makes perfect sense at some point to ask the next trial court, or even an appellate court, to take judicial notice of that reliability.⁹ This effectively relieves the proponent of the onus, each and every time he subsequently offers such testimony, of having to re-prove the first prong of the Nenno soft-science standard — whether the field of expertise is legitimate.¹⁰ From that point on, the proponent need only prove that his expert is qualified and has appropriately utilized the reliable principle in arriving at his expert opinion. This Court may then decide, if called upon to do so in a petition for discretionary review, whether judicial notice in the lower court was appropriate — as a jurisprudential question, after comprehensive briefing from the affected parties. I agree that this approach well serves the interest of judicial economy. But today the Court skips far too many steps.¹¹

In the instant case, the State failed to demonstrate at the Rule 705 hearing either that the psychological principle behind its proffered grooming testimony was reliable or that it has been found to be reliable, after full ventilation of the issue, in a sufficient number of other cases to justify asking the trial court to take judicial notice of that adjudicative fact. Nor did the State even ask the court of appeals in this case to judicially notice reliability. Still, the Court today takes it upon itself to hold Ranger Hullum’s testimony admissible, and does so without even affording the appellant an opportunity to dispute whether the psychology behind grooming-based expert testimony is so universally acknowledged that it ought properly to be deemed the subject of judicial notice. It seems to me that the appellant could muster a pretty stout argument. In taking judicial notice today, the Court does not rely upon the frequency with which trial courts have admitted such testimony after full-blown Rule 705 hearings, in Texas or anywhere else. Nor does the Court identify an abundance of psychological literature that confirms beyond cavil the abiding reliability of grooming-based expert testimony.¹² Instead, the Court invokes case law from other jurisdictions, much of which does not even address the question of reliability, per se. It is almost as if the Court regards the sheer number of cases in which proponents have simply offered expert testimony with respect to grooming as inviolable empirical proof of the provenance of the psychological principle behind it. But the world is also full of psychics, horoscopes, tarot card readers, and fortune cookies. Ubiquity does not begin to prove reliability — much less does it prove it definitively, as is required for judicial notice.

In our per curiam opinion in Hernandez v. State, we observed that “appellate courts may take judicial notice of other appellate opinions concerning a specific scientific theory or methodology in evaluating a trial judge’s Daubert /Kelly ‘gatek-eeping’ decision[.]”¹³ But in the next breath we insisted that “judicial notice on appeal cannot serve as the sole source of support for a bare trial court record concerning scientific reliability.”¹⁴ If judicial notice cannot serve this function on direct appeal, I do not see how the Court can permit it to serve that function for the first time on discretionary review on a similarly bare trial court record. Where is the legal consistency that discretionary review is meant to foster? ¹⁵ To relieving the State of its burden to demonstrate the reliability of grooming-based expert testimony, or to at least demonstrate the propriety of taking judicial notice of that adjudicative fact by showing indisputable acceptance in the psychological community, I dissent.

II.

In her concurring opinion, Judge Cochran argues that the reliability of Hullum’s expert testimony need not be evaluated under the guise of “soft science” at all because it is based, not upon scientific or quasi-scientific principles, but on his experience and training. She makes a valid point. I do not doubt that a police officer may appropriately testify from his training and experience about such matters as mo-dus operandi. A single police officer’s many years of experience, and/or any training he may have that stems from the collective experience of other police officers over time, may well provide a sufficient empirical basis to establish the reliability of expert testimony of this kind— what Judge Cochran calls “experiential ‘horse sense’ expertise.”¹⁶ Even so, as Judge Cochran acknowledges, “What the witness must be able to do is explain how his experience and training qualifies him to make assessments of a certain type of behavior and precisely why, based on that experience and training, he has formed an opinion of this particular set of circumstances.” ¹⁷

The record in this case shows no such thing. The best that can be said is that Hullum had personally investigated approximately seventy-five cases involving sexual assaults on children, and that he had an unspecified amount of training with respect to the investigation of such offenses, including what he called “methodology.” He was not asked, and he did not say, whether that training embraced the concept of grooming. He simply acknowledged that he had “experience” “in the investigation” of “grooming techniques,” without explaining what that was. At no time did the prosecutor elicit from Hullum during the Rule 705 hearing, nor did Hul-lum ever volunteer, any information about exactly what it was he had learned in all of his training and experience to equip him to testify with respect to grooming. I cannot tell from his testimony, or from any other testimony that the State proffered at the Rule 705 hearing, what the “behavioral phenomenon” of grooming is at all,¹⁸ much less how Hullum’s experience and training have taught him to recognize it.

The prosecutor, the trial court, and Hul-lum himself, all seem to have taken the attitude that, because Hullum had been allowed to testify about grooming on prior occasions, his testimony must likewise be admissible here. But, as the court of appeals observed, appellate courts “must review the trial court’s ruling in light of what was before the trial court at the time of its ruling.”¹⁹ The State was the proponent of Hullum’s expert testimony and, as such, it was required to carry the burden of making a record to show that, from his experience and/or training, Hullum is able to say that grooming is indeed a verifiable behavioral phenomenon that he can identify and explain. I do not know whether Hullum could have said that at this Rule 705 hearing, had he been asked. But he did not, and he was not. Failing to appreciate this deficiency in the record, Judge Cochran ultimately relieves the proponent of the evidence of its burden to show reliability no less than the majority does.

1 . See Tex.R. Evid. 201(f) (“Judicial notice maybe taken at any stage of the proceeding.”); Watkins v. State, 245 S.W.3d 444, 456 (Tex.Crim.App.2008) (under Rule 201(f), appellate court may take judicial notice for first time on appeal at its discretion).

2 . Majority opinion, at 651-52.

3 . Morris v. State, No. 11-08-00069-CR, 2010 WL 2224651, at *9 (Tex.App.-Eastland, June 3, 2010) (not designated for publication) (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000)).

4 . Id. at* 10.

5 . Watkins, supra.

6 . Id.

7 . Rule 201(e) guarantees the opponent of judicial notice some opportunity to show why it is inappropriate, even if that opportunity should come only after the court has already taken judicial notice, as it is permitted by the rule to do, sita sponte. TexR. Evid. 201(e). When we take judicial notice of an adjudicated fact for the first time on discretionary review, the only opportunity the opponent has to challenge the propriety of our action is via motion for rehearing. It is highly questionable whether a motion for rehearing, of which we grant precious few, constitutes the "opportunity to be heard” contemplated by the rule.

8 . See Tex.R. Evid. 705 (providing opponent of expert testimony to conduct voir dire examination, outside jury's presence, to test factual basis for expert’s opinion testimony).

9 . Hernandez v. State, 116 S.W.3d 26, 29 (Tex.Crim.App.2003).

10 . Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998).

11 . See Hernandez, supra ("Trial courts are not required to re-invent the scientific wheel in every trial. However, some trial court must actually examine and assess the reliability of the particular scientific wheel before other courts may ride along behind. Some court, somewhere, has to conduct an adversarial gatekeeping hearing to determine the reliability of the given scientific theory and its methodology.”) There is nothing remotely adversarial in the way the Court proceeds today.

12 .The State has certainly failed to present us, even in its reply brief on discretionary review, with unassailable proof — or, indeed, with any proof whatsoever — of the reliability of grooming testimony. A court is required to take judicial notice only when asked to do so by one of the parties "and supplied with the necessary information.” Tex.R. Evid. 201(d). Here, the State has supplied nothing. Even had the State presented such information, it would be inappropriate for this Court to consider it at this level of the proceedings. As we observed in Hernandez:

In his brief to this Court, the State Prosecuting Attorney presents a plethora of cites to scientific articles and learned treatises, as well as to some cases from other jurisdictions concerning this general area of scientific endeavor. This is swell stuff. The trial court should have been given this material, and appellant should have been allowed an opportunity to cross-examine any witnesses who sponsored it. The trial court hearing is the main event for Daubert /Kelly gatekeeping hearings; it is not a try-out on the road to an appellate scientific seminar.

116 S.W.3d at 30 (referring to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992)).

13 . 116 S.W.3d at 31.

14 . Id. at 31-32. In a concurring opinion in Hernandez, Presiding Judge Keller rejected this view. Id. at 34 (Keller, P J., concurring). Writing for the Court today, she seems to adopt her own view of the matter, sub silen-tio. Has our per curiam opinion in Hernandez been overruled?

15 . "Appellate judges,” we observed in Hernandez, "cannot question the witnesses, cannot be assisted by live experts or by the parties' presentation of scientific materials which they believe are reliable and up-to-date, or by factual or scientific distinctions found in cases from other jurisdictions.” Id. at 31 n. 11. We are likewise deprived of these adversarial amenities when we take judicial notice of scientific reliability for the first time on discretionary review.

16 . Concurring opinion, at 671.

17 . Id. at 673. As Judge Cochran observes, the advisory committee to the Federal Rules of Evidence emphasized that an expert who testifies from experience (and, presumably, from the collective experience of his peers) "must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Id., at 672-73 n. 10 (quoting advisory committee notes to 2002 amendments to Fed.R.Evid. 702).

18 . Id. at 673.

19 . Morris, supra, at *9 (citing Hoyos v. State, 982 S.W.2d 419, 422 (Tex.Crim.App.1998)).

Case Details

Case Name: Morris v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 7, 2011

Citation: 361 S.W.3d 649

Docket Number: No. PD-0796-10

Court Abbreviation: Tex. Crim. App.