Duckett v. State, 330-88

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation797 S.W.2d 906
Decision Date10 October 1990
Docket NumberNo. 330-88,330-88
PartiesAndrew Jackson DUCKETT, Jr., Appellant, v. The STATE of Texas, Appellee.

Page 906

797 S.W.2d 906
Andrew Jackson DUCKETT, Jr., Appellant,
The STATE of Texas, Appellee.
No. 330-88.
Court of Criminal Appeals of Texas,
En Banc.
Oct. 10, 1990.

Richard Alley (court appointed on appeal only), Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Delonia A. Watson, Brent Carr, Paul

Page 907

Dickson and David K. Chapman, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.


W.C. DAVIS, Judge.

Appellant was convicted of the offense of indecency with a child. V.T.C.A., Penal Code § 21.11(a)(1). Punishment, enhanced by two prior felony convictions, was assessed at 80 years in the Texas Department of Corrections. 1

On direct appeal, appellant challenged his conviction in four points of error. In the fourth and sole point of error reviewed by the Court of Appeals, it was argued the trial court committed reversible error when it permitted an expert witness employed by the Department of Human Services to testify concerning the dynamics of intrafamily child sexual abuse. Relying on this Court's decision in Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972), the Court of Appeals in an unpublished opinion concluded the expert opinion was not admissible under the Texas Rules of Criminal Evidence Rule 702. 2 Duckett v. State, No. 2-86-217-CR (Tex.App.-Ft. Worth, delivered February 17, 1988). The cause was remanded for a new trial. We granted the State's petition for discretionary review to determine whether the appeals court erred in holding the trial court abused its discretion in admitting expert testimony regarding intrafamily sexual abuse of young children. 3 We will reverse the judgment of the Court of Appeals.

At trial, the six and one-half year old child complainant, S___ S___, testified she was in the bathroom when her uncle, the appellant, entered, removed her clothes, and rubbed her genitalia with his hands and penis. On cross-examination, the defense established the complainant had testified differently on direct examination than she had during her videotaped interview about two years earlier. 4 During the videotaping session on September 14, 1984, S___ S___ had stated it was her birthday. Defense counsel brought out through her testimony that her birthday was in fact in the month of November, but her mother had promised her "presents" if she would meet with Jackie Smith, a police investigator and videotape operator. A second inconsistency was that S___ S___ identified appellant as the perpetrator at trial, but admitted on cross-examination she had previously named "Lawrence", as well as "Junior", as the individual committing the assault. 5 She had told the authorities on tape both she and appellant were partially clothed. At trial, she stated he had taken both their clothes off before touching her. There was an additional discrepancy in that the child had previously told the authorities appellant threatened to "wring her neck" if she told anyone of his conduct, while at trial she stated appellant threatened to burn her with cigarettes and stab her with a knife. The child's testimony was clear in naming appellant as the perpetrator, but she did have some difficulty in remembering certain facts or events about which she had made statements during the earlier video session.

Page 908

The complainant's mother also took the stand for the State. Patsy S___ testified she went to the doctor on September 10, 1984, leaving S___ S___ in the care of her brother. She noticed nothing unusual that night when she returned home. In the morning, however, her daughter complained of itching and irritation of the vagina. Responding to the complaint, she took the child to the doctor. According to Patsy, the doctor informed her S___ S___ had been molested, to which Patsy stated, "Oh my God." Although she told her husband about the incident that night, she did not call the authorities until the next day, because that was the day set for appellant's regular meeting with his parole officer. In response to questions by both sides, Patsy admitted to having been convicted of murder in 1974 and having lost parental rights to both children living at that time with her. She also admitted one of these children had been sexually abused by her father. Contrary to S___ S___'s testimony, Patsy denied her daughter usually slept in the same bed with her and her husband.

The defense was able to cast doubt on the credibility of the complainant and her mother through cross examination of the physician who examined S___ S___. Dr. Robert Casanova testified he gave the child a general and pediatric pelvic examination which showed nothing out of the ordinary. S___ S___ told him the itching and irritation had been going on for some time, but did not mention she had been molested. Casanova stated he did not tell Patsy the child had been molested and did not recall her saying, "Oh my God." He did not report the results of his examination because he did not believe the child had been sexually molested.

To counter this potentially damaging testimony to its case, the State called John Brogden, a certified social worker and advanced clinical practitioner who also holds a certificate as an instructor with the Texas Commission on Law Enforcement Officer's Standards and Education in the area of child sexual abuse investigation. Brogden testified children who are sexually abused almost always go through certain phases over the period of time of abuse and in its aftermath. 6 After discussing each phase or "element", Brogden then proceeded to apply these abstract elements to the particulars of the instant case. Establishing that the expert had heard the various witnesses testify, had read the police reports and viewed the videotaped interview taken with the complainant, Brogden was asked whether he "found any of these elements in this case?" Over defense objection that allowing such testimony would constitute an invasion of the province of the jury, bolstering of the State's witness and was both prejudicial and immaterial to the case, Brogden was permitted to opine he found every element existing in the case. Questioning thereafter focused first on the individual element or phase in terms of manifestations in general, and second, specific questions regarding manifestations illustrating the particular phase in the case at bar. He was asked to give his opinion why abuse victims in general would fail to

Page 909

report improper sexual advances, and testified children often indirectly report abuse by way of complaining of physical ailments in the area of the genitalia. The State then questioned Brogden specifically as to whether he had "seen some manifestation of that (indirect report) in this case?" Again overruling the same objection as made previously by the defense, the trial court allowed the witness to respond in the affirmative and to further specify S___ S___'s complaints of itching and irritation as evidence demonstrating her manifestation of this element or phase. Element by element and over objection, the State was allowed to question Brogden first in general terms and then solicit his opinion how each element was manifested by specific facts in the instant case. In particular, Brogden was questioned why the complainant would change her recollection of the events between the time of the offense and trial, and whether it was unusual not to discover some physical manifestation of trauma around the genital area. He responded to the first question by stating that forgetfulness is part of the repression phase. To the latter query, Brogden cited certain statistical studies showing in over 80% of child molestation cases, there is no physical evidence of assault. In sum, the witness was permitted not only to identify the six elements or phases but also was allowed to testify how specific facts fit within each abstract element. He was not asked and did not volunteer an opinion whether the complainant was in fact telling the truth. 7 He did explain why children in general would act in a manner consistent with that of S___ S___.

The Court of Appeals, with no guidance from this Court on the subject, examined the admissibility of Brogden's expert testimony under Rule 702 from the standpoint of the effect of the testimony on the State's case and how similar testimony has been treated in the past by this Court, as well as by other jurisdictions. The court noted that although Brogden "did not give these 'elements' a specific name, there can be little doubt he was describing the phenomenon known as the "Child Sexual Abuse Syndrome." Slip at p. 4, citing as authority People v. Grady, 133 Misc.2d 211, 506 N.Y.S.2d 922 (N.Y.Sup.Ct.1986). The court recognized the cases cited by the State "represent a small but growing number of jurisdictions that allow psychological and emotional testimony to explain the child's behavior in cases involving sexual abuse." 8 Nevertheless, the court declined to read Rule 702 "as controlling in the State's effort to have us overrule the precedent established by the Court of Criminal Appeals in Hopkins." It is that interplay and possible conflict which is the crux of the issue before us and to which we shall now turn.

Admissibility of expert testimony is governed by Tex.R.Crim.Evid. 702 which provides:

Page 910

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.

The decision whether to allow a witness to testify as an expert is committed to the sound discretion of the trial court. Pierce v. State, 777 S.W.2d 399 (Tex.Cr.App.1989), and cases cited therein. In our recent decision in Pierce, supra, we had the opportunity to discuss the proper standard for...

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