Opinion
No. 05-10-00621-CR No. 05-10-00622-CR
04-11-2012
QUAN ANH TRAN, Appellant v. THE STATE OF TEXAS, Appellee
REVERSE and REMAND and Opinion Filed April 11, 2012
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F07-41443-PY & F07-41444-PY
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice O'Neill
Appellant appeals two convictions for aggravated sexual assault of a child under fourteen years of age. After a jury found appellant guilty of the offenses, the trial court assessed punishment at thirty years' confinement in each case. Appellant raises six issues complaining of various rulings of the trial court. Appellant's first issue is dispositive of this appeal. In that issue, appellant asserts the trial court erred in admitting expert testimony as to the percentage of children that are truthful when reporting claims of sexual abuse. Because we agree with appellant, we reverse the trial court's judgment and remand these cases for proceedings consistent with this opinion.
The grand jury indicted appellant for the aggravated sexual assault of his much younger half- sister, C.C.D. At the time of trial, C.C.D. was eighteen years old and a senior in highschool. C.C.D. testified appellant lived with her and their family from the time she was born until she was in seventh grade. She testified the first time appellant assaulted her, she was in kindergarten. She said the first assault was the one and only time appellant had intercourse with her. After that, appellant would go into her room from time to time when she was asleep and touch her "private areas." The second charged assault occurred when C.C.D. was in fourth grade. C.C.D. provided detailed testimony that appellant assaulted her by touching her genitals with his mouth. The assaults stopped when she was in seventh grade when one night, C.C.D. yelled at appellant when he entered her room and threatened to tell.
She testified appellant never told her not to tell or threatened her. She could not explain why she did not tell an adult. C.C.D. finally told her parents a few years later, when she was fifteen. She said one day, her mother caught her in her room lying in bed fully clothed kissing her boyfriend. C.C.D. was not allowed to have a boyfriend and was not allowed to have boys in her room. Her mother was very angry and upset, and C.C.D. wanted to explain to her mother how she knew about such things. C.C.D. acknowledged that her mother and father are strict disciplinarians. When she was caught kissing the boy in her room, she told her parents about appellant because she thought it was relevant to her actions. Her mother did not believe her, thinking she had made the story up so she would not get in trouble for having a boy in her room. C.C.D. told her mother that was not the reason and she had told a childhood friend years earlier.
C.C.D.'s mother testified. She said when she found C.C.D. in her room kissing the boy she was very mad. C.C.D. was not allowed to be in her bedroom with a boy and was not allowed to date. When Mother told C.C.D. that she was going to tell her father. C.C.D. responded that Mother was being unfair and that appellant "had sex" with her and had been molesting her for years. Mother did not believe C.C.D. thinking she was just trying to stop Mother from telling her father. Mother said her husband is a strong disciplinarian and C.C.D. was very scared of him. When Mother accused C.C.D. of making the story up, C.C.D. told Mother she had told a friend years earlier. Mother called the friend that night. After Mother spoke to C.C.D.'s friend, it was hard for Mother to believe C.C.D. only made up the story to avoid getting in trouble. However, Mother also said she would not believe appellant did it if she did not see it herself. She also questioned the allegations because she never noticed anything wrong with C.C.D. during this time period. Instead, C.C.D. was a very good student, was in band, and played tennis.
C.C.D.'s childhood friend, A.D. testified at trial. She said she has known C.C.D. since they were six or seven years old because they go to the same church. When they were in fifth grade, she and C.C.D. were outside and C.C.D. fell to the ground crying uncontrollably. She cried for ten or fifteen minutes. A.D. was shocked. C.C.D. told her she was crying because things were "going on" with appellant. A.D. did not tell anyone what C.C.D. had told her because she asked her not to and it was "her business," so "why should she" tell anyone else. She said she did not tell anyone until C.C.D.'s mother called and asked. At that time, she and C.C.D. no longer attended the same church and they were not as close.
Ashley Lind, senior director of clinical services at the Dallas Children's Advocacy Center testified for the State. Her testimony forms the basis of appellant's complaint on appeal. Lind first testified about delayed outcry and stated that it was not unusual for a victim to delay reporting abuse for a long time. She also testified that it was not uncommon for caregivers in an incestuous situation to not support the victim. During her testimony, Lind also testified over appellant's objection about false allegations of abuse. She was permitted to testify that about two percent of all allegations of sexual abuse are found to be false. She testified that in that two-percent of cases, the reasons are a custody dispute/divorce situation, the child has mental health issues, or the child was coaxed by an adult. She referenced three specific studies done on thousands of children and testified that all of the studies found "similar specifics." She concluded that these studies show that ninety-eight percent of the time, the child is telling the truth.
The therapist that saw C.C.D. at the Dallas Children's Advocacy Center testified C.C.D. was very intelligent and was so well-functioning because she did have a supportive family environment.
Appellant testified in his own defense. When C.C.D. made her outcry, appellant was in the army in basic training. His mother called him one day and asked whether he committed the offense. He testified that he never sexually assaulted C.C.D. and that he has consistently denied her accusations. After hearing the evidence, the jury found appellant guilty of the offenses.
In this appeal, appellant asserts the trial court erred in admitting expert testimony as to the percentages of child abuse allegations that were true or false. An expert witness may testify to their specialized knowledge, but may not testify, in the form of an opinion or otherwise, whether a complainant or a class of persons to which the complainant belongs is truthful. Wilson v. State, 90 S.W.3d 391, 392 (Tex. App.-Dallas 2002, no pet.). Almost ten years ago, in a published opinion, this Court held expert testimony presented by the same district attorney's office on this very issue was not admissible. Id. at 393. Specifically, in Wilson, Lind's predecessor at the Children's Advocacy Center testified that only two to eight percent of children lie about being abused and of those two to eight percent, most would involve a custody dispute. Although we concluded the evidence was improper, we concluded the error was harmless.
Here, the State concedes admission of the evidence was error, but contends appellant, like the defendant in Wilson, was not harmed. We cannot agree. We will not overturn a conviction for nonconstitutional error if, after reviewing the entire record, we have a fair assurance that the error did not influence the jury, or influenced the jury only slightly. Schultz v. State, 63 S.W.3d 442, 444- 45 (Tex. Crim. App. 2001). In making this determination, we should consider everything in the record, including testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. In addition, we can consider the trial court's instructions to the jury, the theories of the case that the State and the defendant have espoused, arguments to the jury, and relevant voir dire. Schultz,63 S.W.3d at 444-45.
Appellant also alleges that Lind actually misrepresented the studies about false allegations. He attaches studies to his brief that facially appear to be the ones to which Lind was referring, but do not support her testimony. The State urges we cannot consider the studies because they were not presented in the trial court and because we do not know that the studies are in fact the ones on which Lind relied. Regardless, Lind's statistics are questionable on their face. Specifically, her testimony assumes the studies were able to determine truth or falsity with certainty in 100% of the cases and she gives no indication on how the researchers made such determinations. The State contends its office -that routinely prosecutes sexual assault cases against children - it is not familiar with these studies of false allegations and is not aware whether or not its witness's testimony is supported by the studies.
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The danger posed by the erroneous admission of expert testimony concerning a child's credibility is that the jury could have allowed that testimony to supplant its credibility decisions. In Wilson, we reviewed the record in light of this danger and concluded the admission of the expert testimony was harmless. In that case, the child was twenty-years-old when the defendant, her stepfather, was tried for sexually assaulting her for several years, from the time she was six to eleven years old. The child made her outcry at the age of eleven when she became pregnant with appellant's child. Medical evidence confirmed the child's pregnancy and subsequent abortion. At the same time the child's pregnancy was discovered, appellant left the family home and fled the state. The State thus had significant evidence supporting the child's claims beyond her credibility and it does not appear there was any evidence the child had a motive to lie. Further, in closing, the State did not rely on, or even mention, the expert testimony. The appellant, on the other hand, attempted to use the testimony to his advantage, arguing that up to eight percent of children do make false accusations. We concluded the record as a whole left us with a fair assurance that the error did not influence the jury or only influenced the jury slightly.
Here, Lind not only testified that only two percent of children make false allegations, compared to the two-to-eight percent range in Wilson, but she also claimed that ninety-eight percent of accusers were telling the truth. She testified that three independent studies proved these statistics. Thus, Lind's testimony was far more damaging than the testimony in Wilson.
Further, appellant's defensive theory was that the child, who was still in highschool at the time of trial, was very frightened of her strict parents and made up the accusation so her mother would not tell her father she was kissing a boy in her room. Mother's first reaction was the child was lying so she would not get in trouble. Mother continues to question the assault because she never noticed anything wrong with C.C.D. Indeed, C.C.D was an exceptional student, participated in band and tennis, did not have any outward signs of trauma and was generally very well-adjusted. We recognize the State countered appellant's defense by presenting evidence that C.C.D. had told her friend A.D. about the allegations many years earlier. A.D. testified generally that C.C.D. had told her things were "going on" with her brother. A.D.'s testimony supports the State's theory that the child did not fabricate the claim to avoid to avoid getting in trouble. Nevertheless, this case remained entirely about credibility. Finally, in closing the State argued:
We know that [appellant] is guilty because we know the false allegation research. We know we talked to the doctor who has done three independent studies. Three studies done totally separately. All of them involve hundreds of children, all of them coming up with the same results that ninety-eight percent of the time children are telling the truth, two percent of the time they're not.
The State suggests we should not consider this argument in our harm analysis because it was invited by argument of counsel. The State's argument might be persuasive if appellant was complaining about the argument. But the issue is not whether the argument was proper or improper, but whether the error in the admission of evidence affected appellant's substantial rights. In making this determination, we review the entire record, including arguments of counsel.
Here, the only issue in this case was credibility and appellant's sole defense was that the child had falsely accused him and had a motive to do so. The complained-of testimony struck at the heart of appellant's defense. In essence, Lind was permitted to testify that it has been scientifically proven that children tell the truth except in the few instances where a custody dispute, mental health issue, or adult coaching is involved. The complained-of evidence did not aid, but supplanted the jury in its decision on whether the child's testimony was credible. Wilson, 90 S.W.2d at 393. We conclude the jury could not properly perform its function as arbiter of fact with that evidence before it. After reviewing the nature of the error, in relation to the other evidence, we are left with "grave doubt" as to whether the result was free from the substantial influence of the error. Therefore, we resolve the first issue in appellant's favor.
We reverse the trial court's judgments and remand for further proceedings consistent with this opinion.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100621F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
QUAN ANH TRAN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00621-CR
Appeal from the Criminal District Court No. 7 of Dallas County, Texas. (Tr.Ct.No. Cause No.F07-71443-PY).
Opinion delivered by Justice O'Neill, Justices Bridges and Fillmore.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered April 11, 2012.
MICHAEL J. O'NEILL
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
QUAN ANH TRAN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00622-CR
Appeal from the Criminal Court No. 7 of Dallas County, Texas. (Tr.Ct.No. F07-41444- PY).
Opinion delivered by Justice O'Neill, Justices Fillmore and Bridges participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered April 11, 2012.
MICHAEL J. O'NEILL
JUSTICE