Kevin Nabors v. The State of Texas--Appeal from 159th District Court of Angelina County

In The
Court of Appeals
Ninth District of Texas at Beaumont
______________________
NO. 09-05-381 CR
______________________
KEVIN NABORS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th District Court
Angelina County, Texas
Trial Cause No. CR-25342
MEMORANDUM OPINION

Kevin Nabors appeals a judgment of conviction on five counts of indecency with a child. See Tex. Pen. Code Ann. 21.11(a) (Vernon 2003). The offenses involved two children. The jury assessed punishment for counts one, two, four, and five at fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice, and ten years' confinement for the third count. Nabors argues the trial court erred in (1) denying his Batson (1) challenges to the State's peremptory strikes of three jurors; (2) requiring that Nabors wear "shackles" during trial; and (3) admitting expert testimony that commented on the truthfulness of the children. Finding no reversible error, we affirm the trial court's judgment.

In issues one, two, and three, Nabors challenges the State's exercise of peremptory strikes to remove jurors numbered 14, 16, and 23. Nabors contends that the State's race-neutral reasons for striking the jurors were insufficient and that the strikes appeared to be systematic exclusions. The Equal Protection Clause of the Fourteenth Amendment prohibits race-based jury selection. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (citing Batson, 476 U.S. at 85). In Simpson v. State, the Court of Criminal Appeals explained the Batson procedure as follows:

A Batson challenge generally gives rise to a three-step process. First, the defendant must make a prima facie case that a venire member was peremptorily excluded on the basis of race. Next, the prosecution must come forward with race-neutral reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's explanations. The burden of persuasion remains with the defendant to prove purposeful discrimination.

 

Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003) (citations omitted). If the State proffers race-neutral explanations for its peremptory strikes, the defendant has the burden to convince the trial court that the prosecution's reasons were not race-neutral. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). The defendant's "failure to offer any real rebuttal to a proffered race neutral explanation can be fatal to his claim." Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). A trial court's ruling on a Batson challenge will generally be upheld on appeal unless it is clearly erroneous. Jasper, 61 S.W.3d at 421-22.

The prosecutor articulated her reasons for the strikes of the three venire members. Juror No. 14 was the same age as the defendant, did not have children, and did not seem to understand the questions the prosecutor asked him during voir dire. As to Juror No. 16, the prosecutor stated that in a previous voir dire for another case, this juror indicated that he would hold the State to a "beyond all doubt" burden of proof. Although the State noted that this juror's voir dire on this issue was not "as strong" as it was in the previous voir dire, the prosecutor apparently remained concerned. The prosecutor struck Juror No. 23 because he slept through most of the State's voir dire. Because defense counsel did not question the prosecutor or provide the trial court with any evidence in rebuttal, the prosecutor's explanations for the strikes remained uncontradicted. See Ford, 1 S.W.3d at 693. The trial court's Batson rulings were not clearly erroneous. Issues one, two, and three are overruled.

Issues four, five, and six complain that the trial court erred in requiring that Nabors wear "shackles" during trial without a specific finding that the restraints were necessary. The "shackles" apparently were knee braces worn under Nabors's clothing. After jury selection, the prosecutor questioned the trial court on the use of the knee braces, and the court explained that efforts would be made to prevent the jury from seeing Nabors walk while wearing the knee braces. At trial, because the prosecutor was concerned that the jury would think Nabors walked with a limp due to a physical handicap, the prosecutor attempted to elicit testimony from Nabors regarding the knee braces. Before any evidence regarding the use of restraints could be introduced, defense counsel objected, and the trial court sustained the objection.

We have reviewed the record, and we do not see where Nabors made a clear objection to the trial court about the use of the knee braces. To preserve error for appellate review, a party must make a specific objection and obtain a ruling. Tex. R. App. P. 33.1(a). Nabors only objected to the State's questions regarding his limp. The court sustained Nabors's objection.

Even if error has been preserved, an appellate court must consider whether the error requires reversal. See Tex. R. App. P. 44.2. Nabors argues that when he took the stand at trial, the jury could see that he had difficulty walking in the restraints. The knee braces were worn underneath his clothing and the trial court limited the instances where Nabors had to walk in front of the jury. See Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991) (no showing jury actually saw shackles). The record does not establish that Nabors objected to the use of the restraints, or that the jury actually saw the restraints. Issues four, five, and six are overruled.

Issues seven and eight complain that the trial court admitted direct expert testimony as to the truthfulness of the children's allegations. During the direct examination of Ruth Roberts, a licensed professional counselor, the State asked Roberts whether the first child had a "motive . . . to lie or make up these allegations" and whether the second child had a "motive or reason . . . to fabricate" the allegations. Roberts indicated that the children had no motive to lie. The State asked Lindsay Tomes, a conservatorship worker for Child Protective Services, whether the children had remained consistent with their accounts of sexual abuse and whether they had ever recanted their allegations. Tomes indicated that the children's accounts of sexual abuse have remained consistent and they had not recanted their allegations.

To be admissible, expert testimony must assist the trier of fact. See Tex. R. Evid. 702. "Expert testimony does not assist the jury if it constitutes 'a direct opinion on the truthfulness' of a child complainant's allegations." Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (quoting Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993)). Expert opinion testimony that a particular witness is being truthful is generally inadmissible, because the jury is as capable as the expert of making that determination. See Yount, 872 S.W.2d at 709-12. Also, an expert generally may not opine that a person's "allegations are the result of manipulation or fantasy," as "[s]uch evidence never assists the jury because the jury is just as capable as the expert of drawing the conclusions involved." Schutz, 957 S.W.2d at 70-71. Expert testimony that provides useful background information to aid the jury in evaluating the testimony of the child victim may be admissible, however. For instance, an expert may testify concerning the typical characteristics of victims of sexual abuse, whether a child exhibits behavioral characteristics consistent with sexual abuse, and whether a child exhibits the traits of fantasy or manipulation. See Schutz, 957 S.W.2d at 69; Cohn v. State, 849 S.W.2d 817, 818-19 (Tex. Crim. App. 1993). There is a "fine but essential" line between helpful expert opinion testimony and impermissible comments on credibility. Schutz, 957 S.W.2d at 60. An expert may not simply vouch for a witness's credibility.

If a trial court crosses this "fine line" in overruling a proper objection, an appellate court must consider whether the error is reversible. See Tex. R. App. P. 44.2. An appellate court must not reverse a judgment based on error in admitting evidence if, after examining the record as a whole, the court has a fair assurance that the error did not influence the jury or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); see also Tex. R. App. P. 44.2(b). The improper admission of evidence is not reversible error when the same evidence was admitted without objection, "either before or after the complained-of ruling." Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

Assuming that the testimony challenged here should not have been admitted, the admission of the evidence is not reversible error. In this case, other testimony relevant to the truthfulness of the children was admitted, without objection, through the same expert witnesses. Roberts testified without objection that the first child's allegations of sexual abuse have remained consistent and the child has not recanted. Tomes testified without objection that the children had no motive or reason to lie about the allegations. Tomes answered in the affirmative when the State asked her if the children had been "consistent and truthful" with her; Nabors did not object.

Both children testified in detail to the specific acts Nabors committed against them. One witness's testimony indicated that she saw Nabors committing one of the alleged offenses against one of the children. Nabors denied committing the offenses alleged. He presented testimony from several witnesses, including the children's brother. Nabors also argued that the children's allegations were a result of their mother's anger toward him.

In the context of the entire record in this case, and considering that similar testimony from the experts was admitted without objection, we have a fair assurance that the asserted error did not influence the jury or had but a slight affect. See Motilla, 78 S.W.3d at 355. Issues seven and eight are overruled. The trial court's judgment is affirmed.

 

AFFIRMED.

___________________________

DAVID GAULTNEY

Justice

 

Submitted on November 29, 2006

Opinion Delivered March 28, 2007

Do Not Publish

 

Before Gaultney, Kreger, and Horton, J.J.

1. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).