Kirkpatrick v. State

• Decision Date: 22 December 1987
• Docket Number: No. 05-86-01094-CR,05-86-01094-CR
• Citation: 747 S.W.2d 833
• Parties: Riley KIRKPATRICK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 833

747 S.W.2d 833

Riley KIRKPATRICK, Appellant, v. The STATE of Texas, Appellee.

No. 05-86-01094-CR.

Court of Appeals of Texas Dallas.

Dec. 22, 1987.

John G. Tatum, Dallas, for appellant.

Gary A. Moore, Dallas, for appellee.

Before HOWELL, STEWART and THOMAS, JJ.

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) , 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. 702 ²); 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

Expert testimony has been admitted widely for the purpose of explaining general behavior characteristics of child sexual abuse victims as a class. See, e.g., State v. Moran, 151 Ariz. 378, 381, 384, 728 P.2d 248, 251, 254 (1986), and cases cited therein; State v. Hansen, 82 Or.App. 178, 182-85, 728 P.2d 538, 540-42 (1986). The rationale is that while the common experience of jurors enables them to assess the credibility of alleged assault victims generally, the unique pressures surrounding a child victim, and their concomitant effects on the child's behavior, are such that an expert's testimony is deemed useful in assisting the jurors' assessment of the child's credibility. State v. Middleton, 294 Or. 427, 440, 657 P.2d 1215, 1222 (1983) (Roberts, J., concurring). The expert's testimony about the general behavioral traits of child victims--e.g., delay in reporting the incident, recantation, truancy, embarrassment, running away from home, and inconsistent versions of abuse--explains to the jurors that such behavior, which might otherwise be attributed to inaccuracy or falsification, is typical of the class of victims and does not necessarily indicate a lack of credibility. Thus, such testimony, which allows the jury to assess the credibility of a particular complainant more fairly by explaining the emotional antecedents underlying the typical victim's behavior, meets the requirements of Rule 702. See Rose v. State, 716 S.W.2d 162, 168 (Tex.App.--Dallas 1986, no pet.) (citing Holloway v. State, 613 S.W.2d 497 (Tex.Crim.App.1981)) (expert opinion evidence admissible when jurors' unfamiliarity with a body of relevant expertise renders them incompetent to infer the existence of facts to be determined from other facts actually proved without the aid of greater skill than their own); cf. Chambers, 568 S.W.2d at 325-26 (psychiatric testimony describing the typical traits of a sociopathic personality held admissible). Further, we conclude that, although the receipt of evidence of the general behavioral characteristics of child victims as a class will usually benefit the State's case, it will not unfairly prejudice the defendant. Indeed, without such testimony, the defendant might maintain an unfair advantage.

However, after the jurors have become familiarized with the typical behavioral traits of the class, there is no need for further expert testimony, through which the expert expresses, either directly or indirectly, her opinion as to the credibility of a particular child complainant. It is well settled that a witness may not give an opinion as to the truth or falsity of other testimony. Ayala v. State, 171 Tex.Crim. 687, 689, 352 S.W.2d 955, 956 (1962) (cited in Black v. State, 634 S.W.2d 356 (Tex.App.--Dallas 1982, no pet.)); accord United States v. Azure, 801 F.2d 336, 339 (8th Cir.1986) (Rule 702 precludes admission of expert testimony that alleged child victim is "believable").

The need for expert testimony in child sexual abuse cases is limited to information that explains the aspects of a child victim's behavior that are beyond the jurors' common experience, and thus permits the jury more properly to draw inferences and conclusions from other evidence. Once the jurors possess the same enlightening information as the expert witness, and can more fully understand the matter at hand, further expert testimony is unnecessary and inadmissible. Steve, 614 S.W.2d at 139. A psychiatric or psychological expert must not be permitted, even implicitly, to advise the jury as to which witness is more credible, especially in cases lacking physical evidence or eyewitnesses, where the resolution of the pivotal issues entirely depends on the complainant's credibility. In the case in hand, as is typical of child molestation cases, there was no evidence outside the child complainant's testimony that a crime even occurred.

Of course, Rule 704 authorizes opinion testimony that embraces an ultimate issue to be decided by the trier of fact. However, such opinion testimony must be "otherwise admissible," and the opinion of one witness as to the veracity of another's testimony is not "otherwise admissible." Cf. Ayala, 171 Tex.Crim. at 689, 352 S.W.2d at 956. Rule 704, in and of itself, cannot be construed as authority permitting an expert to tell the jury whom the expert considers that the jury should believe. Moran, ...