By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
The juvenile court erred when it permitted
a psychologist to testify that the complaining witness’ testimony in a sexual
assault case was truthful [In re A.H.] (00-3-27)
On July 27, 2000, the Dallas Court of Appeals reversed an adjudication of
delinquency for aggravated sexual assault because the juvenile court permitted a
psychologist to testify that in her professional opinion the complaining witness
was telling the truth.
00-3-27. In the Matter of A.H., UNPUBLISHED, No. 05-97-01166-CV, 2000 WL
1031306, 2000 Tex.App.Lexis ___ (Tex.App.—Dallas 7/27/00)[Texas Juvenile Law
172 (4th Edition 1996)].
Facts: A.H., a juvenile, appeals the trial court's finding that he engaged in
delinquent conduct by committing the offense of aggravated sexual assault. The
trial court adjudicated appellant delinquent and committed him to the Texas
Youth Commission for ten years. In four issues on appeal, appellant argues the
trial court lacked jurisdiction, the evidence was legally and factually
insufficient to support his adjudication, and the trial court erred in
overruling objections to expert witness testimony.
Appellant was accused of sexually abusing a younger boy, C.E. Appellant's mother
is also C.E.'s mother. C.E. testified appellant told him to take off his shorts
and underwear and lie down on a couch. C.E. testified appellant "put his
private part in my butt." C.E. testified appellant was thirteen at the time
and C.E. was seven. The trial court found appellant had engaged in delinquent
conduct by causing his sexual organ to contact C.E.'s anus. This appeal
followed.
Held: Reversed and remanded.
Opinion Text: In appellant's first point of error, he argues the juvenile court
did not have jurisdiction because the State failed to prove he was within the
jurisdictional age of the court. Specifically, appellant claims the stipulation
entered into between his trial counsel and the prosecutor that he was thirteen
at the time of the offense was ineffectual because it was done unilaterally by
his counsel.
The juvenile court has jurisdiction over a child who is alleged to have engaged
in delinquent conduct. Tex.Fam.Code Ann. § 51.04(a) (Vernon 1996). A child is a
person who is ten years of age or older and under seventeen years of age. Id. §
51.02(2)(A). At the beginning of the adjudication, the defense and the State
agreed to a stipulation that appellant's date of birth was "7-3-81,"
making him thirteen years of age at the time of the incident. Appellant argues
that, for such a stipulation to be effective, it must be made by the child and
the attorney for the child. See Tex.Fam.Code Ann. § 51.09(a)(1) (Vernon 1996).
For a child to be subject to the juvenile court's jurisdiction, there must be
some evidence in the record of the child's age. In the Matter of A.S., 875
S.W.2d 402, 403 (Tex.App.--Corpus Christi 1994, no writ); see also Miguel v.
State, 500 S.W.2d 680, 681 (Tex.App.--Beaumont 1973, no writ) An admission of a
child's age, combined with his attorney's stipulation as to his age, is
sufficient proof of the child's age for purposes of jurisdiction. In the Matter
of S.C., 790 S.W.2d 766, 776 (Tex.App.--Austin 1990, writ denied).
In this case, the State and defense stipulated appellant was born on July 3,
1981, making him thirteen at the time of the offense. The record is unclear
whether appellant joined in the stipulation. However, the record indicates
appellant was present when his attorney stated the "defense"
stipulated to appellant's age. Further, C.E. later testified that appellant was
thirteen at the time of the offense, and the record contains no evidence to
contradict that statement. Thus, we conclude sufficient evidence supports the
stipulation that appellant was thirteen years old at the time of the offense.
See A.S., 875 S.W.2d at 403; S.C., 790 S.W.2d at 776. We overrule appellant's
first point of error.
We next address appellant's third point of error in which he argues the evidence
is legally insufficient to establish that he caused C.E.'s anus to contact his
sexual organ. The requirements governing an appeal [of an order of a juvenile
court] are as in civil cases generally. Tex.Fam.Code Ann. § 56.01(b). However,
the State is both constitutionally and statutorily required to prove the
allegations in its petition beyond a reasonable doubt. See In re Winship, 397
U.S. 358, 368 (1970); Tex.Fam.Code Ann. § 54.03(f). As a matter of federal
constitutional due process, an adjudication of delinquent conduct cannot stand
on evidence constituting less than proof beyond a reasonable doubt. See Winship,
397 U.S. at 368. Thus, we are required to apply the due process standard for
testing the legal sufficiency of the evidence articulated by the U.S. Supreme
Court in Jackson v. Virginia:
the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979) In the Matter of C.D.F., 852
S.W.2d 281, 284 (Tex.App.--Dallas 1993, no writ). The civil "no
evidence" standard, specifically rejected in Jackson, does not provide
constitutionally sufficient review of the legal sufficiency of the evidence and
may not be used in the context of an appeal from an adjudication proceeding. See
Jackson, 443 U.S. at 319-20; see also King v. State, 895 S.W.2d 701, 709
(Tex.Crim.App.1995) (Meyers, J., dissenting); In the Matter of C.F., 1 S.W.3d
204, 206 (Tex.App.--Tyler 1999, no pet.).
A person commits the offense of aggravated sexual assault if the person causes
the penetration of the anus of a child by any means and the victim is younger
than fourteen. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon
Supp.2000).
In this case, C.E. testified that appellant "put his private part in my
butt." C.E. testified that it hurt afterwards, and he felt like he had to
go to the bathroom to "poop." We conclude this evidence is legally
sufficient to support appellant's adjudication for aggravated sexual assault.
This evidence is sufficient for a rational trier of fact to find beyond a
reasonable doubt that appellant committed the offense of aggravated sexual
assault. See Tex.Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B); Jackson, 443
U.S. at 319; Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.--Dallas 1994, no pet.)
(testimony of sexual assault victim alone sufficient to prove assault, even if
victim is child). We overrule appellant's third point of error.
In his fourth point of error, appellant argues the trial court erred in
overruling his objections to the testimony of a psychologist who was allowed to
give his opinion as to the truth of C.E.'s testimony. An expert witness may
testify if his scientific, technical, or other specialized knowledge will assist
the trier of fact in determining a fact issue. Tex.R. Evid. 702. However, the
testimony of an expert witness must aid the trier of fact and not supplant its
determination. Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997). Expert
witness testimony concerning child sexual abuse does not aid the trier of fact
when it constitutes a direct opinion on the child victim's truthfulness and in
essence, decides an ultimate fact issue for the trier of fact. Schutz, 957
S.W.2d at 59; Yount v. State, 872 S.W.2d 706, 711-12 (Tex.Crim.App.1993). Thus,
an expert witness may not give his opinion as to the testifying child's
truthfulness. See Schutz 957 S.W.2d at 59; Yount, 872 S.W.2d at 711-12.
In this case, the State called psychologist Douglas Cheatham as a witness.
Cheatham testified he counseled C.E. and had two conversations about the abuse
by appellant. C.E. was able to demonstrate what happened to him using dolls. The
prosecutor asked Cheatham whether he had "any doubts that something did
happen to [C .E.]." Appellant's counsel objected that the prosecutor was
asking for Cheatham's "opinion as to the truth and veracity of another
witness." The trial court overruled appellant's objection and allowed
Cheatham to testify, in response to further questioning by the prosecutor and
over appellant's further objections, that Cheatham "had no doubt that [C.E.]
was telling the truth." We conclude it was error to admit this testimony.
See Schutz, 957 S.W.2d. at 59; Yount, 872 S.W.2d at 711-12.
Having concluded the admission of this testimony was error, we must conduct a
harmless error analysis under Texas Rule of Appellate Procedure 44.2 (Reversible
Error in Criminal Cases). In doing so, we note that we do not presume that the
trial judge disregarded incompetent evidence in a trial before the court. See
Gipson v. State, 844 S.W.2d 738, 740-41 (Tex.Crim.App.1992). Because the error
complained of does not involve a violation of the constitution, we apply the
other error rule under rule 44.2(b). See Tex.R.App.P. 44.2(b); 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. See Tex.R.App.P. 44.2(b). A substantial right is affected when the
error has a substantial or injurious effect or influence in determining the
trial's outcome. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).
Appellant was charged with aggravated sexual assault in that he contacted C.E.'s
anus with his sexual organ. On the first day of appellant's adjudication
hearing, the State called C.E. as a witness, and C.E. testified that appellant
hit him. However, C.E. testified appellant did not touch him on his
"behind." The prosecutor requested a brief recess. After the recess,
the prosecutor asked C.E. why he had to leave the house where he and appellant
used to stay, and C.E. again testified appellant hit him. The prosecutor asked
"What else," and C.E. testified "I forgot." The next day,
the State again called C.E. to testify, and the prosecutor asked C.E. if he had
something he wanted to tell the judge. C.E. then testified "[appellant] put
his private part in my butt."
The only evidence of the assault was C.E.'s testimony that appellant "put
his private part in my butt." Because the outcome of the proceeding thus
depended on whether C.E.'s testimony was truthful, we conclude appellant's
substantial rights were affected when the trial court improperly admitted
opinion testimony regarding C.E.'s truthfulness in this case. Accordingly,
harmful and reversible error was committed. See Tex.R.App.P. 44.2(b). We sustain
appellant's fourth point of error. Because of our disposition of appellant's
fourth point of error, we need not address his remaining point of error
challenging the factual sufficiency of the evidence.
Accordingly, we reverse the trial court's adjudication of appellant as a
delinquent and remand this cause for further proceedings. See Tex.Fam.Code Ann.
§ 51.041 (Vernon 1996).