Schutz v. State
| Decision Date | 03 December 1997 |
| Docket Number | No. 726-95,726-95 |
| Citation | 957 S.W.2d 52 |
| Parties | Ben Wayne SCHUTZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Frank Blazek, Huntsville, for appellant.
David P. Weeks, District Attorney, Kay Douglas, Assistant District Attorney, Huntsville, Matthew Paul, State's Attorney, Austin, for State.
Before the court en banc.
OPINION ON APPELLANT'S
PETITION FOR DISCRETIONARY REVIEW
A jury convicted appellant of the aggravated sexual assault of his six-year-old daughter, A.S., and sentenced him to thirty years confinement. In his fourth and fifth points of error on appeal, appellant complained that the trial court erroneously admitted expert testimony concerning the credibility of the child complainant. The Court of Appeals affirmed the conviction, Schutz v. State, No. 01-94-00257-CR, 1995 WL 325769 (Tex. App--Houston, June 1, 1995)(unpublished) and appellant petitioned for discretionary review. We will reverse.
A. The Testimony
During the State's case-in-chief, Patricia Burns, a social worker, 1 and Dr. David Poole, a psychologist, testified about interviews they conducted with the complainant. When asked about the characteristics of a child who is being manipulated, Burns testified as follows:
There are several things that I try to observe, and that is I first of all pay attention to the event that a child is describing, the way that that child describes it. If it's done in an appropriate--age appropriate manner.... I feel like if the child is being manipulated and coerced into something that often times the language would be more sophisticated than a child that age would know....I look for emotions and behaviors that are consistent with what she is describing or with what a child is describing. If a child is describing a situational sexual abuse then she many times will have a very distressed, painful expression of emotions, emotions where she would be exhibiting emotions that she does not realize that she is supposed to be exhibiting and describing in describing such events. So there is some parallel between the emotions she has and the event they are describing or she is describing....I look for the description. I look at the child and her age. I examine her language and her knowledge of certain things. In the case of sexual abuse, if the child has an advanced knowledge in this area then that is indicative of something that perhaps did definitively occur....I feel that if the child is being manipulated in a situation such as sexual abuse the behaviors that I would predict would be more of enthusiasm on the part of the child in telling the story where she would want to use the events and the happenings as a tool to get attention....Or, as I said before, if I saw a child with her emotions did not match up to the events that she was describing I would examine that, also.
(Ellipses inserted). When asked about the possibility of fantasizing, Burns responded:
If I feel like that there is a situation where the child is making up a story or fantasizing the story I will continue questioning the child's difficulties. I think my feeling is if a child is lying about something like this then that is what I need to get a handle on because that's just as big a problem as, you know, telling the truth about this.
(Emphasis added). Finally, the State elicited Burns' opinion about whether A.S. exhibited the characteristics of manipulation or fantasy:
Q. Do you have an opinion as to whether [A.S.] exhibited any of those traits or characteristics of manipulation that you have described to the jury?
....
A. Yes I have.
Q. What is that opinion?
....[intervening objections by defense counsel]
A. My opinion is that [A.S.] has not exhibited--in my professional opinion she has not exhibited behaviors that point to having been manipulated.
Q. And based upon your experience, training and expertise, your close relationship and therapy of [A.S.], do you have an opinion as to whether she has exhibited any of the traits of fantasizing?
...
A. Yes.
Q. And what is your opinion?
....[intervening objections by defense counsel]
A. My opinion is she has not exhibited any evidence of fantasizing.
(Emphasis added). Likewise, Dr. Poole testified about the possibility of manipulation:
The point of the material that the kid generates in the testing has to do with what is on their mind. Usually if a kid is prepared to dispose of a relationship with one parent, trash it, be a party to getting them in trouble, they are usually coming under some significant pressure from some other source. The kinds of things that you will find the kid worrying about is the source of the pressure. If they are getting threats, if they are getting told they might get abandoned, nobody loved anymore, they will never see them again or pressure like that you will see the kid worried about losing a parent who would be putting the pressure on them. It's depending upon where their anguish and anxiety is coming from.
Concerning the issue of fantasizing, Poole testified as follows:
Well, one of the aspects you look at in the testing is seeing if the reactions that the child has, the interpretation, shapes of the ink blots, the identification of the content of the picture has some relevance to what is really there. If they are talking about material that is actually depicted, if their perception of things is common and it's recognizable to other people, that is one of the ways you judge whether the kid is in touch with reality and whether their perception of what is going on has any similarity to what is really out there. It's one of the things we evaluate. You usually find kids distorting those kind of interpretations in pretty dramatic ways if they are really out of touch with reality. And it's usually evident clinically in a lot of other different ways, too, if a child is so convinced about the reality of the situation that they're distorting what is really going on.
After this testimony and defense objections, the State elicited Poole's opinion concerning whether the complainant's statements were the product of manipulation or fantasy:
Q. Dr. Poole, based upon your experience, your training, your education in your profession, my question to you is do you have an opinion based upon your examination of [A.S.] whether she has been the subject of manipulation.
A. Yes.
Q. And what is that opinion?
[renewed objections]
A. The evidence I have available to me made that the less likely explanation.
Q. Do you have an opinion based upon your experience, training and expertise and examination of [A.S.] whether her allegations are the subject of fantasy?
A. My opinion is that they were not the result of fantasy.
Q. Do you have an opinion?
A. Yes.
Defense counsel: Same objection. 2
A. That they were not to [sic] result of fantasy.
(Emphasis and bracketed material added). We note two important differences between Burn's and Poole's testimony. First, Burns testified as to the characteristics of children who fantasize or are manipulated while Poole gave opinions as to whether the complainant had in fact been manipulated and whether her allegations were the result of fantasy. Second, Burn's testimony essentially equated "fantasizing" with "lying" while Poole's testimony about "fantasy" involved the ability of a child to perceive reality accurately. The significance of these differences will be explored later in this opinion.
B. The Court of Appeals' Opinion and the State's Arguments
To the Court of Appeals, appellant argued that the expert testimony regarding "manipulation" and "fantasy" constituted impermissible comments on the child complainant's truthfulness or credibility. The Court of Appeals advanced two reasons for rejecting appellant's position: (1) that the experts' opinions were not direct comments on the child's truthfulness, and (2) that appellant opened the door to the testimony by impeaching the child's credibility. These reasons are likewise advanced by the State in opposition to appellant's petition for discretionary review.
With regard to its first reason, the Court of Appeals held that the experts' opinions, taken in context, merely showed that the child did not exhibit any of the traits commonly associated with manipulation or fantasy, and hence, were not direct comments upon the child's truthfulness. The State argues additionally that these opinions were not an expression of the experts' belief in the child's testimony and that their testimony did not foreclose the possibility that the child could have made up the allegations.
In support of its holding that appellant opened the door, the Court of Appeals noted several instances in which appellant attempted to impeach the complainant's credibility through cross-examination. Appellant cross-examined the complainant about whether her grandmother told her what to say, about babysitters, and about whether she was afraid of an 11-year-old male cousin. Further, appellant cross-examined the complainant's mother about whether the child had ever fabricated or fantasized, whether the child was a truthful person, whether the child was unwilling to talk about abuse to her mother "because it might not be true," and whether the child had ever told her mother that babysitters had hurt her. Both the child and the mother categorically answered these questions in the negative. The court also found that the defense "implied, through cross-examination of the child's pediatrician, that the mother and the grandmother had caused the child's physical injuries when they performed a 'clumsy and unprofessional' physical examination of the child." Finally, the court stated that: "Throughout the testimony of all the witnesses was the suggestion that the child's...
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