Schutz v. State

998 S.W.2d 903, 1999 Tex. App. LEXIS 6729, 1999 WL 681999

• Court: Court of Appeals of Texas
• Decided: August 27, 1999
• Docket: 01-94-00257-CR
• Status: Published

Opinions

OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS

MARGARET GARNER MIRABAL, Justice.

A jury found appellant, Ben Wayne Schütz, guilty of the aggravated sexual assault of his six-year-old daughter, and assessed punishment at 30-years confinement. In an opinion and judgment dated June 1, 1995, this court affirmed the conviction. On appellant’s petition for discretionary review, the Court of Criminal Appeals reversed our judgment, holding that the trial court erroneously admitted expert testimony concerning the credibility of the child complainant. Schutz v. State, 957 S.W.2d 52 (Tex.Crim.App.1997). The case has been remanded to this court to conduct a harmless error analysis.

In points of error four and five, appellant asserts the trial court erred by allowing a social worker (Patricia Burns), and a psychologist (Dr. David Poole), to testify about manipulation and fantasy, arguing that such testimony impermissibly bolstered the testimony of the complainant. The Court of Criminal Appeals analyzed each portion of the complained-about testimony and concluded that the following testimony was improperly admitted into evidence:¹

1. Burns’ testimony that “the complainant had not exhibited any evidence of fantasizing” was a “direct comment on the truthfulness of complainant’s allegations” because Burns had not described any “traits” of fantasizing, but instead merely equated fantasizing with lying. Id. at 73.

2. Poole’s testimony conveying to the jury his opinion that “complainant’s allegations were not the result of manipulation” was a direct comment on the truthfulness of complainant’s allegations. Id.

3. Poole’s testimony that “complainant’s allegations were not the result of fantasy” constituted a direct comment on the truthfulness of complainant’s allegations. Id.

The Court pointed out that the credibility of a complainant’s specific allegations has generally been considered an issue within the exclusive province of the jury. Id. at 68. Expert testimony must aid — not supplant — the jury’s decision. Id. at 59. Expert testimony does not “assist” the jury if it constitutes a “direct opinion on the truthfulness” of a child complainant’s specific allegations. Id.

We will conduct a harmless error analysis under Texas Rules of Appellate Procedure rule 44.2 (Reversible Error in Criminal Cases). Because the error complained of does not involve a violation of the constitution, we apply the “other” error rule under Tex.R.App. P. 44.2(b). See Merritt v. State, 982 S.W.2d 634, 636 (Tex.App.—Houston [1st Dist.] 1998, pet. ref'd, untimely filed). Accordingly, we must determine whether appellant’s substantial rights were affected by the trial court’s erroneous admission of the expert witness testimony. A substantial right is affected when the error has a substantial or injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 267 (Tex.Crim.App.1997).

In the present case, the complainant was six-years-old at the time of the offense, and nine-years-old when she testified. The two-paragraph indictment charged appellant with aggravated sexual assault by (1) penetration of complainant’s sexual organ, and (2) contact between appellant’s sexual organ and complainant’s sexual organ. Complainant was the only eyewitness to testify the offense occurred. Appellant testified at the guilt-innocence phase and denied the charges. The jury found appellant “not guilty” of penetration as alleged in the first paragraph of the indictment, and convicted appellant of “contact” as alleged in the second paragraph of the indictment. In closing argument, the prosecutor told the jury:

The Judge has just told you that you are the exclusive judges of the credibility of all of the witnesses. But what this really comes down to is one witness, [the complainant] ... She’s all we have got. But you promised in voir dire that one witness would be enough.

Because the outcome of the trial of the charge of “contact” as alleged in the first paragraph of the indictment² depended on whether the jury believed complainant or appellant, we conclude appellant’s substantial rights were affected when the trial court improperly admitted opinion testimony regarding the truthfulness of complainant’s allegations. Accordingly, harmful and reversible error was committed. Tex. R.App. P. 44.2(b).

We sustain appellant’s points of error four and five.

We reverse the judgment and remand the case to the trial court.

1 . As Justice Taft’s dissenting opinion points out, much of the expert witness testimony of Burns and Poole was properly admitted into evidence. We note that Judge Womack argued in his concurrence in the Court of Criminal Appeals opinion that, in light of the properly admitted testimony of Burns and Poole, the jury would have inevitably known what the experts’ opinions were regarding the credibility of the child complainant, Schutz v. State, 957 S.W.2d 52, 79 (Tex.Crim.App.1997); however, a majority of the Court of Criminal Appeals specifically rejected Judge Womack's argument. Id. at 71.

2 . As pointed out in the dissenting opinion, complainant gave detailed testimony regarding appellant’s alleged "contact” with her, but her testimony regarding "penetration” was limited to answering "yes” once, and "no” twice, in response to leading questions from the State, which questions may not have been fully understood by the child complainant. In light of complainant's limited testimony, the physical evidence, the inconclusive medical testimony, and the initial report to the police, it is understandable that the jury had reasonable doubt as to the penetration charge. The acquittal on the penetration charge is not inconsistent with the jury’s decision to believe the child complainant, rather than appellant, with regard to the "contact” testimony.