R DONALD ROBERT POE,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00691-C
R
 
DONALD ROBERT POE,FROM A DISTRICT COURT
 
        APPELLANT,
                
v.
THE STATE OF TEXAS,
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE LAGARDE
JULY 20, 1989
        Donald Robert Poe was convicted by a jury of aggravated sexual assault. The trial court assessed punishment at fifty years' confinement and a $10,000 fine. Poe asserts that the trial court erred in: 1) overruling his motion to quash the indictment; 2) overruling his objection to the admission of hearsay testimony of the complainant's mother; 3) overruling his objection to the prosecutor's argument; and 4) overruling his objection to the testimony of an expert witness because the probative value of the witness's testimony was outweighed by its unfair prejudice in violation of rule 403 of the Texas Rules of Criminal Evidence.
        Based on this Court's opinion in Kirkpatrick v. State, 747 S.W.2d 833 (Tex. App.--Dallas 1987, pet. ref'd), we must sustain Poe's fourth point of error. Consequently, we reverse and remand for further proceedings not inconsistent with this opinion.
 
        The expert witness testimony about which Poe complains was given by Gail Inman, an assistant staff coordinator of the Dallas County Rape Crisis and Child Support Abuse Center. Without objection, Inman was qualified as an expert witness in the field of child sexual abuse and, over objection, testified in the abstract to general matters concerning child sexual abuse. She then applied that general information to her professional interviews with the complainant, the complainant's mother, and other persons. Based on those interviews, she then testified that in her expert opinion, the complainant had been sexually abused.
        The State offered the testimony based on authority of rule 704 of the Texas Rules of Criminal Evidence which permits, with limited exceptions, expert opinion testimony as to an ultimate fact in the case. See TEX. R. CRIM. EVID. 704. Through counsel, Poe objected on the basis that the prejudicial effect outweighed the probative value of the testimony. See TEX. R. CRIM. EVID. 403. Further objections were that it invaded the province of the jury and that it constituted bolstering.
        The State called three witnesses at trial: the complainant, the complainant's mother and Inman. Inman's testimony was offered after cross-examination of the thirteen-year-old complainant and a suggestion by the defense that he had fabricated a story against Poe because Poe would not give him $100 to play video games.
        Inman testified in the abstract concerning the five predictable phases of interaction in a case of child sexual abuse, the tactics used against children by abusers, and general behavioral characteristics of child sexual abuse victims as a class; she also testified as to her personal observations of the complainant's behavior during an interview with him the week before trial; and finally, over objection, she testified that, "[she] believe[d] that [complainant] was sexually abused." Immediately following Inman's testimony, the State rested. The defense rested without presenting any evidence.
        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 and 3) the testimony's probative value outweighs its prejudicial effect. Kirkpatrick, 747 S.W.2d at 834-35. This court's review of the trial court's admission of expert testimony is limited to whether the trial court abused its discretion. Steve v. State, 614 S.W.2d 137, 139 (Tex. Crim. App. 1981).
        No challenge is made to Inman's qualifications as an expert in the field of child sexual abuse. Poe argues that the expert's testimony was offered to show that the sexual assault had in fact occurred; that the matter of sexual assault by an adult upon a child is one of common knowledge, not an issue where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the issue; that the jury was fully capable, based on the evidence presented as to the events and circumstances themselves and from a common sense perspective, of resolving the contested issue based on the credibility of the witnesses. Poe further argues that, even if relevant, the testimony's prejudicial effect outweighs its probative value.
        Thirteen-year-old K H received his mother's permission to go with his friend and Poe to a video arcade, after which the complainant and his friend were to spend the night with Poe. Poe picked the boys up at the friend's house. While in the car, immediately after picking the boys up, Poe began "tickling [the friend] on the middle of his leg above the knee." He also talked about "dirty things" and told dirty jokes on the route to his apartment. During the trip, Poe asked the boys, "If someone gave you a $100 would you let them give you a blow job?" During the trip, he also referred to the boys as "dicks" and told them of an experience his nephew had with group sex.
        After changing clothes at his apartment and preparing dinner for the three of them, they stopped by the store where Poe bought some drink mix, on their way to the arcade. At the arcade, Poe sat in the bar and watched TV, and the boys played the video games for at least a couple of hours. In the car enroute back to Poe's apartment, Poe again "talk[ed] dirty" to the boys. Upon arriving at his apartment, he fixed a drink "that tasted like alcohol" for the boys to drink. They didn't like it, and refused to drink it. Upon being told that Poe only had one bedroom and that the boys "would have to argue over who slept with him and who slept on the couch", the complainant volunteered to sleep with Poe upstairs.
        The complainant got sleepy and went to bed first, wearing only his underwear. After falling asleep, he was awakened by a conversation downstairs between his friend and Poe. Although he could not overhear the entire conversation, he did hear his friend say "No" and Poe say that he was going to have to get someone else to come over the next weekend instead of him. Shortly, Poe went to bed in the same bed where the complainant was sleeping. Poe "sprawled out" on the king-size bed, putting his leg over the complainant's. He first put his arm under the complainant's pillow and then put his hand between the complainant's legs over his underwear. Poe then took the complainant's hand and placed it around Poe's penis, first outside, then inside, his underwear. Frightened, the complainant pulled his hand away, got up and went downstairs. His friend was asleep on the couch downstairs. The complainant got some orange juice from the refrigerator and sat downstairs and drank it. After awhile, Poe told him they had to get up early the next morning and that he had better come back to bed. The complainant was afraid Poe would hurt him if he did not do as he was told. He went back upstairs and got into bed; finally, he went to sleep, only to be awakened by Poe's hand on the complainant's penis. Then Poe put his mouth on the complainant's penis. Again frightened, the complainant got up and went downstairs to watch TV. That time, Poe followed the complainant and told him that he could sleep in his nephew's room, which he did. The next morning, the complainant awakened his friend but did not tell him what had happened. After making breakfast, Poe took the boys home. The complainant did not immediately tell his mother about what had happened, but upon being asked, indicated that he had a good time.
        The following weekend, the complainant's mother had a conversation with his friend's mother, after which she questioned the complainant about the prior weekend with Poe. Upon being told what had happened, she called the police.
         Although not cited by the appellant, the State recognizes that this court's prior opinion in Kirkpatrick is a case which we must consider in resolving the issue raised in Poe's fourth point. The State argues, however, that Kirkpatrick is wrongly decided on the narrow issue of the admissibility of an expert's opinion that a child has been sexually abused, and asks us to overrule that decision; alternatively, the State argues that Kirkpatrick is factually distinguishable from this case.
        In Kirkpatrick, 747 S.W.2d at 836, this court held that evidence of the general behavioral traits of child abuse victims, as a class, is admissible under rule 702 of the Texas Rules of Criminal Evidence. However, it also held that the jury is granted the exclusive responsibility for applying those general behavioral traits to a specific victim's behavior. See Kirkpatrick, 747 S.W.2d at 836-38.
        The State argues that here, however, the expert's testimony was proper in order to rebut the effect of, and aspersions cast by, the cross-examination of the complainant by the defense. During cross-examination of the complainant, the defense attempted to cast doubt on the complainant's credibility by emphasizing that he had opportunities to escape, to make phone calls, and to cry out to others present, but did not do so; and that he made no voluntary outcry and told his mother what happened a week after the incident only upon being confronted by her. The State further argues that Inman's opinion was not bolstering because it was not an expression of Poe's guilt or innocence. In Farris v. State, 643 S.W.2d 694, 696-97 (Tex. Crim. App. 1982), the State, over objection, presented the testimony of a psychiatrist that children were incapable of fantasizing concerning the kinds of acts the defendants in that case were accused by the child witnesses of committing. The court held that such testimony constituted improper bolstering, rejected the argument that the error was harmless, and reversed the convictions. Id. at 697. Further, in Black v. State, 634 S.W.2d 356, 358 (Tex. App.--Dallas 1982, no pet.), this court emphasized that [an expert's] testimony that "I believe [complainant is] telling the truth" constituted impermissible bolstering. Black, 634 S.W.2d at 357-58. In doing so, we repeated the rule that "an unimpeached witness may not be bolstered simply because [his] testimony may be disbelieved. Id. at 358, citing Adams v. State, 514 S.W.2d 262, 264 (Tex. Crim. App. 1974) and Lyons v. State, 388 S.W.2d 950 (Tex. Crim. App. 1965). Attempted impeachment by vigorous cross-examination is similarly insufficient to allow bolstering where a witness's testimony is unwavering. Black, 634 S.W.2d at 358. It is only when a witness is placed in the position of having testified differently from earlier testimony that a party will be permitted to bolster its own case. See Adams, 514 S.W.2d at 264. We conclude that here that requirement was not met. Kirkpatrick denounced not only direct expression of opinion on credibility but also indirect expression. Kirkpatrick, 747 S.W.2d at 836.
        In Kirkpatrick, this court stated:
        The only issue in this case was whether the          complainant's allegation of sexual abuse was true. The necessary inference from the expert's testimony, "[y]es, [the complainant] was abused," was that the expert believed that the complainant's version was true and that she had indeed been sexually abused. We hold that such testimony was an improper comment on the complainant's credibility and was, therefore, erroneously admitted.
Kirkpatrick, 747 S.W.2d at 838, citing Black, 634 S.W.2d at 357-58. Likewise, in this case, the necessary inference from Inman's testimony that "[she] believe[d] that [complainant] was sexually abused" was that the complainant's version was true. Thus, we hold, as this court did in Kirkpatrick, that the expert's testimony was an improper comment on the complainant's credibility and was, therefore, erroneously admitted.
        For the reasons above, we conclude that the trial court abused its discretion in admitting the opinion evidence of Gail Inman that she believed the complainant had been sexually abused. We sustain Poe's fourth point.
        We must now determine whether such error was reversible error. We are mandated by rule 81 of the Texas Rules of Appellate Procedure that "the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. TEX. R. APP. P. 81(b)(2). See also Green v. State, 727 S.W.2d 263, 267 (Tex. Crim. App. 1967).
        This case turns solely on the credibility of the complainant's testimony. There were no eyewitnesses to the events and no physical evidence. It would be unreasonable not to conclude that the testimony of the thirteen-year-old complainant was bolstered immeasurably by the direct testimony of Inman that she believed the complainant had been sexually abused and, thus, the necessary inference that the complainant was telling the truth. We hold that the average juror would have found the State's case less persuasive in the absence of the expert's testimony. See Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031, (1986)(citing Schneble v. Florida, 405 U.S. 427 (1972)). Accordingly, we reverse and remand for a new trial.         Because of our disposition of Poe's fourth point, it is not necessary that we address his remaining points of error. TEX. R. APP. P. 90(a).
 
                                                 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00691.1/sll                                                                            
 
 
File Date[01-02-89]
File Name[880691F]