Kirkpatrick v. State

747 S.W.2d 833, 1987 Tex. App. LEXIS 9284, 1987 WL 45355
Court of Appeals of Texas·Decided December 22, 1987·No. 05-86-01094-CR·Published·Cited by 49 cases

Opinions

HOWELL, Justice.

Appellant was convicted by a jury of indecency with a child. The trial court assessed punishment at ten years’ confinement. We reverse and remand on a holding that it was error to allow expert opinion to the effect that the child complainant was telling the truth.

The prosecution was based on an incident allegedly occurring on March 24, 1986. Appellant, who was retired, lived with his common-law wife; she provided day care for children in her home. The seven-year-old complainant testified that, shortly after lunch, the common-law wife and the other children took a nap, but that she (the complainant) could not go to sleep. She stated that appellant asked her to come to the kitchen table where he was sitting alone, and that he then pulled down her jeans and panties, and then touched her in the “wrong spot,” “in the middle of the legs,” with his hand.

According to appellant’s version of the facts, the complainant got up from her nap to use the bathroom and returned to tell him that her zipper was stuck. Appellant testified that he fixed her zipper and that he never touched the complainant in the way she described. No medical evidence was adduced at trial, and there were no eyewitnesses to the alleged incident.

In points three through seven, appellant urges that the trial court erred in permitting expert witnesses to testify that (1) they could determine whether the complainant was telling the truth when she told them that she had been sexually abused, (2) in their opinion, the complainant was in fact sexually abused, and (3) the complainant exhibited the same behavioral characteristics as those exhibited by children who in fact had been sexually abused. With one exception,1 defense counsel’s objections to the admissibility of testimony concerning common behavioral characteristics and the complainant’s credibility were overruled.

The admissibility of expert testimony in a child sexual abuse case (1) that concerns the alleged victim’s credibility or (2) that compares behavioral characteristics of the complainant with those of other victims of abuse is an issue of first impression for this court. However, we perceive no reason why the admissibility of expert testimony in a child sexual abuse case should not be governed by the same rules of evidence that apply to all expert opinion testimony, notwithstanding the obvious temptation to liberalize those rules, given the offensive nature of child molestation. See State v. Rivera, 139 Ariz. 409, 413 n. 1, 678 P.2d 1373, 1377 n. 1 (1984).

We recognize that expert testimony is no longer objectionable on the ground that it “invades the province of the jury.” See Hopkins v. State, 480 S.W.2d 212, 218 (Tex.Crim.App.1972). However, expert testimony in a criminal proceeding is admissible only when (1) the witness is competent and qualified to testify; (2) the testimony will assist the jurors, as triers of fact, in evaluating and understanding matters not within their common experience, Chambers v. State, 568 S.W.2d 313, 325 (Tex.Crim.App.1978), [835] cert. denied, 440 U.S. 928, 99 S.Ct. 1264, 59 L.Ed.2d 484 (1979) (citing Hopkins, 480 S.W.2d at 218) (see also TEX.R.CRIM.EVID. 7022); and (3) the testimony’s probative value outweighs its prejudicial effect. Rule 403. Because appellant has not challenged the competency or qualifications of the experts who testified in this case, the question before us narrows to (1) whether the experts’ testimony was limited to providing information that was outside the jurors’ common understanding or experience, and (2) whether the testimony’s usefulness was substantially outweighed by the danger of unfair prejudice.

Our review is further limited to whether the court abused its discretion. Steve v. State, 614 S.W.2d 137, 139 (Tex.Crim.App.1981); Mullins v. State, 699 S.W.2d 346, 348 (Tex.App.—Corpus Christi 1985, no pet.). However, such discretion is not unlimited. Ginther v. State, 672 S.W.2d 475, 477 (Tex.Crim.App.1984); see also Abrams v. Interco, Inc., 719 F.2d 23, 28 (2d Cir.1983) (appellate courts need not uphold “a purported exercise of discretion [that] was infected by an error of law”); Williams v. State, 159 Tex.Crim. 443, 449, 265 S.W.2d 92, 95 (1954) (on reh’g) (“an abuse of discretion usually means doing differently from what the reviewing authority would have felt called upon to do”). In some instances, the Texas Court of Criminal Appeals has restricted the use of psychiatric opinion testimony. See, e.g., Hopkins, 480 S.W.2d at 220 (psychiatric testimony not permissible for impeachment purposes). Conversely, the court has permitted psychiatric and psychological testimony for other purposes. See, e.g., Rumbaugh v. State, 629 S.W.2d 747, 755-56 (Tex.Crim.App.1982) (psychiatric testimony that defendant suffered from antisocial behavior rather than organic brain damage admissible to rebut testimony supporting insanity defense); Ex Parte Harris, 618 S.W.2d 369, 371 (Tex.Crim.App.1981) (psychiatric testimony that defendant was a sociopath held admissible). Because the courts of this state have not yet addressed directly the admissibility of psychiatric or psychological opinion testimony for the purposes present in this child sexual abuse case, we have analyzed the decisions of other jurisdictions, which permit such testimony in varying degrees.3

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Kirkpatrick v. State, 747 S.W.2d 833, 1987 Tex. App. LEXIS 9284, 1987 WL 45355 (Tex. Ct. App. 1987).

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