Opinion
No. 12-07-00256-CR
Opinion delivered November 26, 2008. DO NOT PUBLISH.
Appeal from the 241st Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Billy Darnell Long appeals from his conviction for sexual assault. In three issues, he argues that the evidence is legally and factually insufficient and that the trial court allowed improper expert testimony. We reverse and remand.
Background
The parents of a fourteen year old girl found a notebook in which she and a classmate wrote notes back and forth to one another. In the notebook, the girl recounted a sexual encounter with her grandmother's boyfriend, an adult. Her parents called the police, and the girl told the authorities that Appellant had sexually assaulted her. A Smith County grand jury indicted Appellant for the felony offense of sexual assault of a child. A trial was held, and Appellant was found guilty as charged. The punishment phase of the trial was conducted without a jury. Appellant pleaded true to a sentencing enhancement allegation that he had a prior conviction for sexual assault. The trial court assessed punishment at imprisonment for life. This appeal followed.Sufficiency of the Evidence
In his first and second issues, Appellant argues that the evidence is legally and factually insufficient to support the verdict. Specifically, he argues that the evidence is legally insufficient to prove that the offense occurred in Smith County and that the evidence is factually insufficient to show that an offense occurred at all.Standards of Review
The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia , 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Ross v. State , 133 S.W.3d 618, 620 (Tex.Crim.App. 2004); Willis v. State , 192 S.W.3d 585, 592 (Tex.App.-Tyler 2006, pet. ref'd). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; see also Rollerson v. State , 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires further review of the factual sufficiency of the evidence. Clewis v. State , 922 S.W.2d 126, 129-30 (Tex.Crim.App. 1996). Factual sufficiency review differs from legal sufficiency review only slightly. See Marshall v. State , 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). In a factual sufficiency review, we review the evidence without the light most favorable to the verdict and we are authorized, "albeit to a very limited degree," to disagree with the jury's resolution of contested factual issues. See id. ; Watson v. State , 204 S.W.3d 404, 414, 417 (Tex.Crim.App. 2006). In a review of the factual sufficiency of the evidence, we will conclude that the evidence is insufficient only if the great weight and preponderance of the evidence contradicts the jury's verdict or the verdict is clearly wrong and manifestly unjust. See Rollerson , 227 S.W.3d at 724; Watson , 204 S.W.3d at 417. Under either standard, our role is that of appellate review, and the fact finder is the principal judge of the weight and credibility of a witness's testimony. Wesbrook v. State , 29 S.W.3d 103, 111-12 (Tex.Crim.App. 2000). The fact finder may choose to believe all, some, or none of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State , 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is tried." Id. The State was required to prove that Appellant intentionally or knowingly caused the penetration of the sexual organ of a child by any means. Tex. Penal Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2008). A child is a person who is younger than seventeen years of age and not the spouse of the actor. Id. at § 22.011(c)(1).Analysis
With respect to the legal sufficiency of the evidence, Appellant argues only that there is insufficient evidence to prove venue, that is, that the offense occurred in Smith County. Venue in a criminal case need only be proven by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005); Murphy v. State , 112 S.W.3d 592, 604 (Tex.Crim.App. 2003). Proof of venue may be established by direct or circumstantial evidence, and the jury may draw reasonable inferences from the evidence. Black v. State , 645 S.W.2d 789, 790 (Tex.Crim.App. 1983); Edwards v. State , 97 S.W.3d 279, 285 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). The evidence is sufficient if the jury may reasonably conclude that the offense was committed in the county alleged. Rippee v. State , 384 S.W.2d 717, 718 (Tex.Crim.App. 1964). In this case there was evidence that the assault occurred in Smith County. Appellant argues that the evidence shows the assault occurred in Wright City, but there is not evidence that Wright City is in Smith County. The complaining witness testified that the assault occurred at her grandmother's house, but she did not say it was in Smith County. Her grandmother testified that she lived in Arp, Texas, but did not state that her home was in Smith County. However, the complaining witness's father and an investigating officer both testified that the assault occurred in Smith County and both knew the location of the alleged assault. This is sufficient evidence for the jury to conclude by a preponderance of the evidence that the assault occurred in Smith County. We overrule Appellant's first issue. With respect to the factual sufficiency of the evidence, Appellant argues that the complaining witness cannot be believed because she offered inconsistent accounts of the assault, because she stated that some of the things written in her notebook were untrue, because she was jealous of Appellant's relationship with her grandmother, because the nurse who examined her could not say that the evidence of penetration revealed by a pelvic examination pointed specifically to an assault by Appellant, and because the witness's grandmother testified that the picnic table could not have sustained the activity that the witness testified occurred thereon. The uncorroborated testimony of a child witness is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Satterwhite v. State , 499 S.W.2d 314, 315 (Tex.Crim.App. 1973); Jensen v. State , 66 S.W.3d 528, 534 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). The complaining witness is a child and testified that Appellant penetrated her sexual organ. Appellant's arguments invite us to reweigh the evidence and assess the credibility of the complaining witness in light of evidence that corroborates her testimony and evidence that Appellant argues calls it into question. But our review of the factual sufficiency of the evidence must not substantially intrude upon the jury's role as the principal judge of the weight and credibility of witness testimony. See Marshall , 210 S.W.3d at 625. And where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See Van Zandt v. State , 932 S.W.2d 88, 96 (Tex.App.-El Paso 1996, pet. ref'd). In this case, there were some variations in the witness's account of the assault. On one occasion she said that Appellant digitally penetrated her, but she testified that he did not, and she also made conflicting statements as to whether a condom was used. We are not persuaded that these variations mean that the witness's testimony should be disregarded or that a manifest injustice has occurred. In fact, the other corroborating evidence is persuasive. The witness wrote a near contemporaneous account of the assault to a friend in a notebook that she did not expect anyone else to see. Furthermore, the results of a medical examination of the witness were consistent with her having been assaulted. Balanced against this evidence is testimony by the grandmother that the picnic table the witness said the assault occurred on was not strong enough to support the described assault. It is the task of the jury to weigh and resolve these kinds of factual issues. Their resolution of the factual issues in this case was reasonable. Our review of the evidence does not show that the evidence is too weak to support the verdict standing alone or that the evidence is outweighed by contrary proof. We overrule Appellant's second issue.Expert Testimony
In his third issue, Appellant argues that the trial court erred in allowing an expert witness to testify as to whether the complaining witness was telling the truth.Applicable Law
A witness may offer an expert opinion if the witness is qualified to do so by knowledge, skill, experience, training, or education and the witness possesses scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. Tex. R. Evid. 702. We review a trial court's decision as to whether to allow expert opinion for an abuse of discretion. See Gallo v. State , 239 S.W.3d 757, 765 (Tex.Crim.App. 2007). Expert testimony about victims of child sexual assault presents difficult questions. Some expert testimony, like the medical testimony in this case, is relatively straightforward and ordinarily admissible if the witness is qualified. See, e.g., Gregory v. State , 56 S.W.3d 164, 179-82 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd) (nurse was qualified to give expert opinion after conducting physical examination of child). Children who are sexually assaulted may exhibit traits or engage in behavior that could result from the assault and that might otherwise be bewildering or incomprehensible to a jury. For example, some victims of sexual assault may act out sexually after the assault. See, e.g., Mosley v. State , 141 S.W.3d 816, 822 (Tex.App.-Texarkana 2004, pet. ref'd). That circumstance can be explained by expert testimony. And an expert witness may testify that the expert has observed a child exhibit behaviors that are consistent with child sexual abuse or some other traumatic event. See Cohn v. State , 849 S.W.2d 817, 820 (Tex.Crim.App. 1993). In Cohn , the court recognized a difference between a "central core of sexual behaviors which are strongly associated with sexual abuse" and "nonsexual behaviors which are commonly observed in sexually abused children." Id. at 818-19 (quoting Myers, Bays, Becker, Berliner, Corwin Saywitz, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L.Rev. 1, 60 (1989)). The testimony in that case was about nonsexual behavior, and the court held that it was admissible to show that the children had suffered from "some traumatic event." Cohn , 849 S.W.2d at 819. Such testimony might indirectly serve to buttress the proof that the child was sexually assaulted, but it is not admitted for that purpose, and an expert witness may not testify that a witness is truthful. Yount v. State , 872 S.W.2d 706, 712 (Tex.Crim.App. 1993); Lane v. State , 257 S.W.3d 22, 27 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). An expert may testify as to behavioral markers that accompany an account of an assault that is manipulated or the result of fantasy, but the expert may not testify that a person's allegations are the result of manipulation or fantasy. Schutz v. State , 957 S.W.2d 52, 69-70 (Tex.Crim.App. 1997). Likewise, an expert may testify about the signs of coaching, coercion, or suggestion. Id. at 69. But it is not for the expert to testify that those signs are present in the case being considered by the jury. Id. ("Once the expert has imparted his specialized knowledge to the jury, the jury can use that knowledge, along with its own lay knowledge of human nature, to arrive at its own conclusion."). In Schutz , after an exhaustive review of relevant law from other jurisdictions, the court of criminal appeals identified five categories of general and specific evidence that touch on a complainant's credibility in child sexual assault cases and set out the circumstances under which each category of evidence is admissible: (1) substantive evidence of guilt that incidentally impacts on credibility (admissible during offering party's case in chief); (2) general testimony relating to impaired witnesses or declarants (admissible during offering party's case in chief if impaired person is expected to be a witness or declarant); (3) general testimony that directly attacks credibility (admissible during offering party's case in chief to attack credibility of witness or out of court declarant); (4) general testimony that supports credibility (admissible as rebuttal to attacks on credibility so long as there is a loose fit between the rebuttal evidence and the predicate attacks on credibility); and (5) specific testimony supporting or attacking credibility (may be admitted only to rebut other specific testimony attacking or supporting credibility and only if there is a "tight fit" between the rebuttal testimony and the previous specific testimony attacking or supporting credibility). Id. at 75-76.Admissibility of Expert Testimony
Appellant argues that the trial court erred in allowing an expert witness to testify as to whether the witness was "telling the truth about the alleged assault" and as to whether the expert had "any reason to question the veracity or truthfulness" of the witness's account. The State argues that the expert did not make a direct comment on whether the victim was telling the truth, but rather an opinion "that the victim acted in a manner consistent with a child that has been sexually abused." The State argues that it was appropriate for the expert "to opine on whether the victim shared characteristics of the kind that the doctor's training and experience has taught her are consistent with other children who have been sexually abused," that such testimony is evidence of "behavioral manifestations of external influences or events acting upon the child," quoting Schutz , 957 S.W.2d at 69, and that such testimony is permissible, citing Cohn , 849 S.W.2d at 818-21. The expert witness did not directly testify that the child was telling the truth. However, her testimony did more than simply lay out the behavioral characteristics exhibited by victims of sexual assault or tell the jury what she had observed in treating the witness. In fact, the expert had not treated the witness, and it was clear from the initial hearing on the expert's qualifications that she saw her role as assisting the jury in determining whether the complaining witness was telling the truth. In describing her role, the expert said that the "process here is reading, determining and at the end of that, based on my clinical experience and my training, do I have any crying questions that I believe need to be answered, do I have an opinion about what occurred." And that is precisely what the expert did. The expert observed most of the trial and was asked whether "[b]ased on what you saw of [the witness] did she appear to be acting appropriate when she was relaying to the Ladies and Gentleman of the Jury what she had gone through." The expert testified that the witness "reacted admirably," the fact that she was observably upset was consistent with her being a victim, that she was as detailed as she could have been, and that she did not exaggerate or diminish what it was that happened to her. The expert was also asked by the State whether, after observing the cross examination of the detective and the testimony presented that day in trial, "we need to back up and reconsider some things." She said, "No." The expert was asked by the State whether the victim's "behavior, what she told people, her reluctance to initially tell people, her demeanor in front of the jury today, was that consistent, based on your training and experience, of [sic] somebody who had been a victim of a sexual assault." The expert replied, "Yes, in my opinion." Later the expert was asked by the State about her practices for agreeing to testify. She responded that there were cases in which she told either the State or the defense that she could not testify. She testified that she would tell the State that she could not give "a good opinion," which "typically mean[t] that [she did not] believe the victim." She further testified that when she told a defendant she would "read" the case but could not testify, it meant that she thought "their guy is guilty." The expert concluded by agreeing with the State that she understood "the importance of [her] word and [her] decision," and that she would not "jeopardize that for any reason." Some of the expert's testimony in this case is of the kind permitted by the rules of evidence. For example, although she did not testify as to the basis for her expertise in evaluating courtroom testimony, her statement about the witness's emotionality is likely within the bounds. Additionally, her testimony about the difficulty witnesses have in recalling specific details, while not necessarily outside the jury's knowledge, would appear to be permissible. Indeed, an expert can go a little farther. In Schutz , the court analyzed four opinions that had been offered. The first, and the only one the court found acceptable, was an expert opinion that in clinical observation of the child, the child did not "exhibit behaviors that point to being manipulated." Schutz , 957 S.W.2d at 73. Although this is an application of a standard to observed behavior, the court concluded that this was not a direct comment on the truth of the child's allegations, in part because the witness had described indicia of manipulation that would not be obvious to a jury. Id. The court held that it was error to admit the same expert's testimony as to whether the child was fantasizing, because the expert had not testified as to any "traits" that identify fantasizing and her testimony was, essentially, that the witness was telling the truth. Id. For the same reasons, the court held that testimony of another expert was also inadmissible, this time on both the issues of fantasy and manipulation. Id. The court rejected "expert testimony on truthfulness" because of the subjective nature of such an assessment and because there was disagreement in the legal and psychological community as to which factors could be applied "to guarantee the reliability of children's testimony." Id. at 69. Appellant objected to two main areas of the expert's testimony in this case. In the first area, the expert witness graded the complaining witness's performance on the witness stand, stating that she "reacted admirably," was as detailed as she could have been, and that she did not diminish or exaggerate what had happened to her. In the second area, the expert was asked if the victim's behavior, from initial report to her testimony in the case, was "consistent, based on [the expert's] training and experience, of [sic] somebody who has been a victim of a sexual assault." The expert answered, "Yes, in my opinion." She also testified that she felt no need to reevaluate her analysis after observing the testimony of the victim and the investigating officer. With respect to the evaluation of the victim's testimony, the expert never offered any explanation for how it was that she was able to assess witness testimony and cross examination. Her qualifications were in the area of clinical psychology. She did not offer any factors that she would take into account to reach a conclusion that a witness's reaction was "admirable." And there appears to be no basis, scientific or otherwise, for her conclusion that the child was as detailed as she could be or that her account was not diminished or exaggerated. Her testimony is susceptible to the interpretation that she was stating the witness's story had remained consistent throughout the process. That conclusion would have unnecessarily done the jury's work for it-no reason was advanced that a jury could not determine if the story had remained the same from initial report to testimony at trial. But there is a more pressing problem. The only reason the expert gave for evaluating whether the story of a child has changed from initial report through the investigatory phase is as a check for accuracy. The expert explained that a child who embellishes or expands an account can be "a little pathological and sick," or that it can mean that "it didn't happen." In other words, an embellished account means that the child is unreliable or lying. Whereas a child who diminishes an account is transposing the story or trying to cover something up, which is to say that the account is a "partial lie." Therefore, the expert's reason for gauging the consistency of a story was to determine whether the child was telling the truth. The expert then applied this test and opined that the child's account had been consistent throughout, with the exception of some facts the expert did not consider to be important. This is like the testimony forbidden in Schutz . See Schutz , 957 S.W.3d at 73 ("Although Burns was asked whether the complainant displayed the `traits' of fantasizing, Burns had not described any `traits' of fantasizing in her testimony. Instead, she merely equated fantasizing with lying. Her testimony that the complainant had not exhibited any evidence of fantasizing was therefore a direct comment on the truthfulness of the complainant's allegations.") This is different from permissible testimony about behaviors commonly observed in victims of sexual assault. We do not doubt that consistent accounts of an assault are more believable than inconsistent accounts. But giving a consistent account is not a characteristic of the victim of child sexual assault apart from the fact that it means the child is telling the truth. This differs from, for example, a child who acts out sexually. The fact that such a child exhibits behaviors consistent with sexual assault is consistent with the child having been sexually assaulted. Expert testimony about those behavioral markers is admissible, not because makes it more likely the child is telling the truth, but because it is substantive evidence of abuse, as a scar is evidence of a laceration. See Cohn , 849 S.W.2d at 819. A consistent account is consistent with sexual assault, according to this expert, because it means that the child is telling the truth, not because it is substantive evidence of abuse. Not only is it usually unnecessary to tell juries how to assess credibility, but it is error for an expert to testify, in essence, that a person is telling the truth. See Edwards v. State , 107 S.W.3d 107, 116 (Tex.App.-Texarkana 2003, pet. ref'd) (error to allow expert to testify about what "factors" were used to determine if a child was telling the truth and to apply those factors); see also Heathco v. State, Nos. 12-04-00011-CR, 12-04-00012-CR, 2006 Tex. App. LEXIS 346, at *12 (Tex.App.-Tyler Jan. 13, 2006, pet. ref'd), cert. denied, ___ U.S.___, 127 S. Ct. 2942, 168 L. Ed. 2d 270 (2007). Also, the expert in this case had no greater knowledge than did the jury of what happened to the complaining witness. Therefore, her assessment that the child did not diminish or exaggerate her account is nothing more than a vouching for the testimony of the child. Related to this is the second area of concern, specifically, the expert's testimony that there was no need to "back up and reconsider some things" after observing the testimony of the complaining witness and the investigating officer. Again, there is no basis for the expert's opinion that, essentially, all was well with the State's case. In her later testimony about which cases she would agree to testify in, the expert made clear that she testified only in cases in which she believed the complaining witness, and that she understood the importance of this matter and staked her professional reputation on it. The expert did identify several factors that could be problematic in a child's account. For example, exaggeration or diminishment could indicate problems with the account. Furthermore, she testified that it was common for victims in cases such as these to have problems relaying all the details of the event. Also, the expert testified that victims are traumatized by sexual assault. So if her assessment of the trial were merely a judgment that the child was traumatized, and could not give a lot of detail, her testimony would have simply approached the province of the jury, although in a way perhaps countenanced by Cohn . But Cohn dealt with an expert who offered an opinion about the behavioral characteristics of children after an assault, and who had personally examined the children shortly after the assault and then after several days. Cohn , 849 S.W.3d at 817-18. In this case, the expert offered an opinion about the appropriateness of the witness's testimony and whether anything else about the case caused her concern. In conjunction with her statement that a matching of the story to the actual event was a method to test whether a lie was being perpetrated, and her statement about testifying when she believed a child, her testimony was an assessment that the witness's story was believable. The expert's testimony went well beyond simply explaining features of a victim of sexual assault or even offering an opinion as to whether those features were present in this case. Instead, the expert made an assessment, almost in real time, of the complaining witness's testimony, and testified that she found the witness's account to be acceptable. The expert staked her professional reputation on her assessment of the case, which was essentially that the witness was telling the truth. This application of whatever principles the expert used to assess the State's case and the testimony of the witness was for the jury to perform. Schutz , 957 S.W.2d at 69; Fuller v. State , 224 S.W.3d 823, 835 (Tex.App.-Texarkana 2007, no pet.) (improper for witness to testify that, based on interview with victim, she saw nothing in her demeanor or the information she offered by the victim to indicate that the victim was not being truthful.) And a witness may not testify that another witness is telling the truth. See, e.g., Weathersby v. State , 627 S.W.2d 729, 730 (Tex.Crim.App. 1982) (improper for two detectives to testify that they believed defendant was guilty); Greene v. State , 928 S.W.2d 119, 124 (Tex.App.-San Antonio 1986, no pet.) (improper for detective to vouch for State's main witness's credibility). Therefore, the admission of the expert's testimony relating to the truthfulness of the child was error.Harm Analysis
As the parties agree, this kind of error is nonconstitutional error, and we review the entire record to see if Appellant's substantial rights were harmed. See Tex. R. App. P. 44.2(b); Tex. R. Evid. 103(a); Sexton v. State , 93 S.W.3d 96, 101 (Tex.Crim.App. 2002). Substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State , 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. We may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, and even voir dire, if applicable. Id. at 355-56. We may also consider whether the State emphasized the error. Id. at 356. Applying the first part of this test, we conclude that while there was evidence of Appellant's guilt, this was not a case where a guilty verdict was the only likely outcome. As the State points out, the complaining witness's testimony is essentially uncontroverted, with the exception of her grandmother's testimony that the picnic table was unsuitable for the described sexual assault. And the witness had made a near contemporaneous account of the sexual assault to her friend in her notebook. There was physical evidence in the form of an observed thinning of the witness's hymen, which was consistent with the described sexual assault. There was not physical evidence in the form of DNA evidence — the report to the authorities of the assault came too late for that — and there was no statement or confession from Appellant. The complaining witness's mother corroborated the facts regarding the grandmother's broken arm and the witness's spending time at the house, and she testified that the witness became withdrawn and her grades dropped after the time of the assault. The nurse who examined the witness testified as to the witness's version of events. A detective testified about his investigation and was permitted to testify, over Appellant's objection, that he believed the child. Finally, there is the nonobjectionable portion of the expert's testimony, which essentially served to explain that child witnesses often forget or misremember unimportant details, that such an assault will be traumatizing to a victim, and how an adult might manipulate a fourteen year old into a sexual assault. In sum, the evidence presented is substantial, though not overwhelming. This is not a case where a confession or some piece of physical evidence makes it easy to conclude that an unrelated error did not affect Appellant's substantial rights. We cannot assess, from this vantage, how effective the complaining witness was. But her near contemporaneous account of the assault in her notebook is evidence that serves to buttress her testimony, as well as to negate Appellant's argument that she fabricated the event because she wanted to punish Appellant for not leaving the witness's grandmother. When we evaluate the character of the error and consider it in connection with other evidence in the case, we conclude that Appellant's substantial rights were harmed. The character of the error is such that it cuts at the heart of the jury's fact finding role. Whether the complaining witness was telling the truth was the singular issue in this trial. The expert witness has a Ph.D. and more than thirty years of experience in her field. Although some of her testimony was along the lines of permissible testimony about kinds of behavior that is commonly seen in child sex victims, she testified that she told the State she could not give a "good opinion" when she did not believe the victim and refused to testify for the defense where she thought "their guy is guilty." And although the expert never offered a specific basis for an expert opinion on evaluating the testimony of complaining witnesses or police officers, she testified that she had watched much of the trial, saw nothing that caused her concern, and that the witness gave an account of the assault that was not exaggerated or diminished. In essence, she testified that the complaining witness testified truthfully. It is likely that this was powerful. There were no instructions sought or given to the jury to explain how the jury was to use the expert's testimony. The State emphasized the expert's opinion repeatedly in its final summation. Some of the mentions were innocuous. For example, the State said that the expert had said it was a shame that child victims do not come forward quickly, a shame that victims cannot easily remember details of events that happened a year and a half ago, and a shame that some child victims are reluctant to testify. But the State also repeated and emphasized the objectionable kernel of the expert's testimony. One passage is as follows:Now, the Defense wants you to say, [complaining witness], we don't believe you, flat out we don't believe you. What they want you to do is something that her parents didn't do, that [the detective] didn't do, that [the expert] didn't do and that even her grandmother didn't do.The State also argued:
Find him guilty. He did it. Hold him responsible. And in doing so, tell [the complaining witness] that you trust her and you believe her just like her parents, just like [the detective], just like [the expert] and just like even her grandmother.If there was any question in the jury's mind that the expert had testified that the witness told the truth, this argument answered it. It reiterated that the witness's truthfulness was the only issue in the trial and that the expert had told the jury that the witness was telling the truth. In many cases, expert testimony that invades the province of the jury by applying principles to a specific fact pattern is harmless error, precisely because the jury can do that work itself. See Schutz , 957 S.W.2d at 69. We cannot conclude that this happened here. Not only is the expert's testimony as to how to assess the accuracy of a witness's account problematic even without the expert having drawn conclusions, but the character of the error points directly to the central issue of whether the complaining witness was telling the truth. One of the core roles of a jury is to assess the truthfulness of the testimony it hears. The expert's testimony invaded the province of the jury in a fundamental way by putting the weight of expert opinion behind the conclusion that the complaining witness was telling the truth. The evidence in this case was not so powerful that we can have a fair assurance that Appellant's substantial rights were not harmed. Compare Kirby v. State , 208 S.W.3d 568, 573 (Tex.App.-Austin 2006, no pet.) (harmful error were evidence was erroneously admitted in a case that turned on an assessment of credibility), with Taylor v. State , No. PD-1370-07, 2008 WL 4724147, at *14-15 (Tex.Crim.App. Oct. 29, 2008) (error has only slight effect where erroneously admitted hearsay was only referenced in an oblique way in summation). We sustain Appellant's third issue.