Randall Lee Johnstone v. The State of Texas--Appeal from 277th District Court of Williamson County

Johnstone TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00263-CR
Randall Lee Johnstone, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 93-155-K26, HONORABLE JOHN CARTER, JUDGE PRESIDING

A Williamson County jury found Randall Johnstone guilty of three counts of aggravated sexual assault of a child. Tex. Penal Code Ann. 21.11(a)(1) (West 1994). Appellant pleaded true to two prior felony offenses of indecency with a child, and the jury assessed punishment of life imprisonment and a fine of $10,000 for each count. Johnstone brings a single point of error, complaining of the trial court's denial of his request to hire an expert witness. We will affirm the trial court's judgment.

 
BACKGROUND

The victim in this case was appellant's stepdaughter. The assistant principal at her school notified the Department of Human Services that in the opinion of a teacher's aide, appellant displayed inappropriate affection toward the child when he brought her to school. The child made an outcry statement to an investigator from Children's Protective Services that appellant had touched her inappropriately. She later demonstrated with anatomical dolls that appellant had inserted his finger in her vagina, put his penis in her vagina, made her lick his penis, and then told her not to tell anyone. Dr. Beth Nauert, a pediatrician with extensive experience in the examination of sexually abused children, examined the victim and found evidence consistent with penetration of the vagina by finger or penis. The child identified appellant as her perpetrator to Dr. Nauert, as well as to the investigator.

The State introduced two magazines with photographs of nude children, ordered by appellant and found in his closet, along with a letter of apology and regret from appellant to his wife. The child's therapist testified that she presented many symptoms associated with children who have been sexually abused. She admitted that the symptoms could arise from abuse by some person other than appellant.

Appellant did not testify but subpoenaed two expert witnesses, a special education teacher who had evaluated the child and did not find the child to exhibit symptoms associated with sexual abuse, and a neuropsychologist who reviewed the other expert's written evaluation of the child.

 
DISCUSSION

In a pretrial motion, Johnstone asked the court for permission to hire an expert to testify about the suggestibility and impressionability of children's memories regarding sexual abuse. On appeal, he complains that he needed this testimony to counter the State's expert testimony that the complainant exhibited characteristics of a sexual abuse victim. The State complains that this point of error is waived by Johnstone's failure to include a copy of the written request in the record on appeal. At oral argument we received a motion to amend the transcript to include the request which was inadvertently left out of the transcript because it had been filed under another cause number in another case involving this same defendant. Finding in the trial court's records a motion to consolidate the two causes involving this same appellant, we grant the motion to supplement the transcript and hold that appellant has preserved his point of error for our consideration.

A lawyer appointed to represent an indigent defendant may be reimbursed for expenses related to an expert witness. Tex. Code Crim. Proc. Ann. art 26.05(a) (West 1989). Under the Due Process Clause, the State must provide an indigent defendant access to an expert if there is a substantial need for the expert on an issue that is likely to be a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985); Rey v. State, 897 S.W.2d 333, 338-39 (Tex. Crim. App. 1995). But the defendant has the burden of presenting evidence to show the substantial need to the trial court. Id. at 338-39. In general, such evidence must take the form of an affidavit or sworn testimony. Davis v. State, 905 S.W.2d 655, 660 (Tex. App.--Texarkana 1995, pet. ref'd). To prevail, Johnstone must convince us that the trial court abused its discretion in denying his requested expert. Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim. App. 1990), overruled in part on other grounds by Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993) (decision regarding request for expert witness is committed to sound discretion of trial court).

Johnstone's request was not accompanied by any affidavit advising the trial court of the substantial need for this expert testimony in this case. Furthermore, Johnstone did not request an expert to interview this child victim and refute the anticipated child abuse syndrome testimony of the State's witnesses; rather, he sought expert testimony on the credibility of children generally in sexual abuse cases. Appellant argued persuasively at oral argument that because child abuse syndrome testimony serves to bolster the credibility of a young child such as this, defendants should be entitled to present controverting expert testimony that children may be influenced by their interviewers to create allegations that may never have occurred.

Generally a child's allegations of sexual abuse and her identification of her perpetrator can be properly evaluated by the jury, whose duty is to determine the credibility of all witnesses, young and old. If there is evidence that a particular child has been asked leading questions by a particular interviewer and that such inappropriate interviewing may have led to inventions of sexual abuse that are unlikely to have occurred, the defendant in such circumstances may be entitled to an expert witness describing the effects of such questioning on young and impressionable children. But this defendant gave the trial court no notice of such problems in this case, and our review of the record reveals none.

The threshold determination is whether the specialized knowledge of the expert will assist the trier of fact to understand the evidence or to determine a fact in issue. Id.; Tex. R. Crim. Evid. 701. In Pierce v. State, the court held that expert testimony addressing the credibility of an eye-witness as to identification is not helpful to a jury and therefore not admissible. 777 S.W.2d 399, 415-16 (Tex. Crim. App. 1989), cert. denied, 496 U.S. 912 (1990). The admissibility of expert testimony on an issue at trial may be considered in deciding whether there is a substantial need for the expert. Wunnenburger v. State, 844 S.W.2d 864, 868 (Tex. App.--Amarillo 1993, pet. ref'd). Just as the reliability of eye-witness testimony is within the general knowledge of a juror, the reliability of a young witness's testimony may be properly weighed by a jury, aided by cross-examination and the jury's common knowledge of memory and perception, absent other factors that specifically raise the issue of suggestibility or overbearing because of a particular interviewing technique. Furthermore, the issue of fantasized sexual exploits suggested by inappropriate interviewing techniques must relate to the defendant's theory of the case; Johnstone did not attempt to deny that the child had been sexually abused but attempted to suggest there were other perpetrators. In this circumstance, any expert evidence of the child's impressionability would assail the child's identification of the perpetrator rather than the child's report of abuse.

In the absence of any notice to the court establishing sufficient need for this expert testimony under the circumstances of this case, we hold that the trial court did not abuse its discretion in denying appellant's request for expert testimony. We overrule the sole point of error and affirm the trial court's judgment.

 

Bea Ann Smith, Justice

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: May 15, 1996

Do Not Publish

3, 338-39 (Tex. Crim. App. 1995). But the defendant has the burden of presenting evidence to show the substantial need to the trial court. Id. at 338-39. In general, such evidence must take the form of an affidavit or sworn testimony. Davis v. State, 905 S.W.2d 655, 660 (Tex. App.--Texarkana 1995, pet. ref'd). To prevail, Johnstone must convince us that the trial court abused its discretion in denying his requested expert. Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim. App. 1990), overruled in part on other grounds by Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993) (decision regarding request for expert witness is committed to sound discretion of trial court).

Johnstone's request was not accompanied by any affidavit advising the trial court of the substantial need for this expert testimony in this case. Furthermore, Johnstone did not request an expert to interview this child victim and refute the anticipated child abuse syndrome testimony of the State's witnesses; rather, he sought expert testimony on the credibility of children generally in sexual abuse cases. Appellant argued persuasively at oral argument that because child abuse syndrome testimony serves to bolster the credibility of a young child such as this, defendants should be entitled to present controverting expert testimony that children may be influenced by their interviewers to create allegations that may never have occurred.

Generally a child's allegations of sexual abuse and her identification of her perpetrator can be properly evaluated by the jury, whose duty is to determine the credibility of all witnesses, young and old. If there is evidence that a particular child has been asked leading questions by a particular interviewer and that such inappropriate interviewing may have led to inventions of sexual abuse that are unlikely to have occurred, the defendant in such circumstances may be entitled to an expert witness describing the effects of such questioning on young and impressionable children. But this defendant gave the trial court no notice of such problems in this case, and our review of the record reveals none.

The threshold determination is whether the specialized knowledge of the expert will assist the trier of fact to understand the evidence or to determine a fact in issue. Id.; Tex. R. Crim. Evid. 701. In Pierce v. State, the court held that expert testimony addressing the credibility of an eye-witness as to identification is not helpful to a jury and therefore not admissible. 777 S.W.2d 399, 415-16 (Tex. Crim. App. 1989), cert. denied, 496 U.S. 912 (1990). The admissibility of expert testimony on an issue at trial may be considered in deciding whether there is a substantial need for the expert. Wunnenburger v. State, 844 S.W.2d 864, 868 (Tex. App.--Amarillo 1993, pet. ref'd). Just as the reliability of eye-witness testimony is within the general knowledge of a juror, the reliability of a young witness's testimony may be properly weighed by a jury, aided by cross-examination and the jury's common knowledge of memory and perception, absent other factors that specifically raise the issue of suggestibility or overbearing because of a particular interviewing technique. Furthermore, the issue of fantasized sexual exploits suggested by inappropriate interviewing techniques must relate to the defendant's theory of the case; Johnstone did not attempt to deny that the child had been sexually abused but attempted to suggest there were other perpetrators. In this circumstance, any expert evidence of the child's impressionability would assail the child's identification of the perpetrator rather than the child's report of abuse.

In the absence of any notice to the court establishing sufficient need for this expert testimon