Devin DeWayne Johnson v. State

• Court: Court of Appeals of Texas
• Decided: April 28, 2011
• Docket: 14-10-00095-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 28, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00095-CR

Devin DeWayne Johnson, Appellant

v.

The State of Texas, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 1244099

MEMORANDUM OPINION

            Appellant Devin Dewayne Johnson challenges his conviction for aggravated sexual assault of a child, claiming in a single issue that the trial court reversibly erred in admitting the trial testimony of an expert witness.  We affirm.

Factual and Procedural Background

Appellant pleaded “not guilty” to a charge of aggravated sexual assault of a child, enhanced by a previous offense.  At trial, the State indicated its intention to call Dr. Lawrence Thompson to testify as an expert witness.  Appellant objected, asserting Dr. Thompson’s testimony was inadmissible under Texas Rule of Evidence 702.  According to appellant, the testimony served to bolster the credibility of the complainant. 

The trial court held a hearing outside of the presence of the jury to determine the admissibility of the testimony.  At the hearing, Dr. Thompson testified about his background and experience as a psychologist.  As relevant to this case, Dr. Thompson testified that, in his experience, children who have been sexually abused generally have interpersonal problems and, in some cases, a child may be less truthful.  He testified, however, that a child rarely makes a false allegation of sexual abuse.  The trial judge admonished Dr. Thompson not to testify at trial (1) as to whether the child complainant in the case was lying about the specific allegations of sexual abuse or (2) that children rarely lie about being sexually abused.  The trial court stated that such testimony would be highly prejudicial and not probative.  Dr. Thompson also testified that children who have been sexually abused act differently after being sexually abused and that some children have a tendency to lie about bad behaviors, misbehave or “act out,” and perform poorly in school.  The trial court ruled that Dr. Thompson could testify about the typical behaviors exhibited by children who have been sexually abused.

In the jury’s presence, Dr. Thompson testified that children who have been sexually abused commonly act out or exhibit problematic behaviors.  According to Dr. Thompson, children who have been sexually abused may perform poorly in school, steal, or fail to follow directions.  Dr. Thompson testified that sexually abused children may lie about bad behaviors as a way of deflecting attention or to present themselves in the best possible light.  Dr. Thompson did not testify as to the truthfulness of children who claim to have been sexually abused, nor did Dr. Thompson express an opinion as to the truthfulness of the child complainant in this case.

The jury found appellant guilty as charged and also found the enhancement paragraph true.  The jury assessed appellant’s punishment at confinement for life.

Issue Presented

In a single appellate issue, appellant asserts the trial court erred in concluding that Dr. Thompson’s testimony was admissible under Rule 702.  According to appellant, the State’s sole purpose for eliciting Dr. Thompson’s testimony was to persuade the jury that the child complainant was credible and telling the truth about the allegations of sexual abuse.[1]  At trial, appellant characterized Dr. Thompson’s testimony as improperly bolstering the child complainant’s allegations.

Analysis

We review the trial court’s decision to admit or exclude expert testimony under an abuse-of-discretion standard.  Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007).  If a trial court’s evidentiary ruling is reasonably supported by the record and is correct under any theory of law, then the ruling is within the zone of reasonable disagreement and should be upheld.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g.).  

Texas Rule of Evidence 702, entitled “Testimony by Experts,” 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.

TEX. R. EVID. 702; see Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997).  An expert’s testimony is admissible when a jury is not qualified “to the best possible degree” to intelligently determine an issue without the testimony.  Schutz, 957 S.W.2d at 59.  As such, expert testimony is intended to aid, rather than supplant, a jury’s decision.  Id.  But Rule 702 does not permit an expert to give “a direct opinion on the truthfulness” of a child complainant’s allegations.  Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993).  

“Bolstering” is the utilization of evidence solely for the purpose of improperly adding credence or weight to a particular witness or source of evidence “without substantively contributing to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.”  See Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993); see also Rivas v. State, 275 S.W.3d 880, 886–87 (Tex. Crim. App. 2009) (indicating that “bolstering” has ties to Texas Rule of Evidence 613(c), which involves prior consistent statements, and reiterates principles of hearsay).  When the additional evidence makes a substantive contribution, corroborates other evidence, or has an “incrementally further tendency to establish a fact of consequence,” offering that evidence does not constitute bolstering.  See Cohn, 849 S.W.2d at 819–20.  As substantive evidence an expert may provide testimony that a child exhibits symptoms consistent with sexual abuse, but that expert may not offer an opinion as to the child’s truthfulness.  Id. at 819. 

Dr. Thompson did not offer an opinion that children rarely make false allegations about being sexually abused.  See Yount, 872 S.W.2d at 708 (holding that a pediatric doctor was not allowed to testify that she had seen very few cases where the child was not actually telling the truth in her experience dealing with abused children).  Dr. Thompson testified that children who have been sexually abused typically exhibit problematic behaviors, such as performing poorly in school, stealing, or failing to follow directions.  See id. (holding that expert testimony concerning behavioral characteristics typically exhibited by children as a result of sexual abuse was admissible as substantive evidence).  According to Dr. Thompson, children who have been sexually abused may lie about their bad behaviors as a way of deflecting attention.  But, notably, Dr. Thompson did not express an opinion as to the child complainant’s truthfulness.  See Johnson v. State, 970 S.W.2d 716, 720 (Tex. App.—Beaumont 1998, no pet.) (concluding expert did not express an opinion as to the credibility of any witness).  In offering Dr. Thompson’s testimony, the State was not bolstering.  See Cohn, 849 S.W.2d at 819.  Moreover, Dr. Thompson’s testimony could have assisted the jury in determining an issue for which it was not qualified to the “best possible degree.”  See Schutz, 957 S.W.2d at 59 (holding that a doctor and social worker were able to testify that the child complainant of sexual abuse did not exhibit the classic traits of manipulation because the jury did not share the experts’ qualifications in determining the traits of such manipulation).  Therefore, the trial court did not abuse its discretion in admitting Dr. Thompson’s testimony.  See id.  Accordingly, we overrule appellant’s only issue.

The trial court’s judgment is affirmed.

/s/        Kem Thompson Frost

            Justice

Panel consists of Justices Anderson, Frost, and Brown.

Do Not Publish—TEX. R. APP. P. 47.2(b).

---

[1] At the hearing to determine admissibility of the disputed testimony, appellant did not contest Dr. Thompson’s qualifications as an expert in the field of psychology.  We presume without deciding that Dr. Thompson was a qualified expert.  See Johnson v. State, 970 S.W.2d 716, 720 (Tex. App.—Beaumont 1998, no pet.).