### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 9 -00 079 -CR

M ar k Da vid Bar sha w , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF B ELL COUNTY , 264TH JUDICIAL DISTRICT NO. 6276 1 , HO NORAB LE MARTH A J. TRUDO , JUDGE PRESIDI NG

D I S S E N T I N GO P I N I O N
Iag ree wi th the majority that the trial cour

t abused its discretion in per mitti ng Ba rthlow to te stify that mentally reta rded persons, as a class, tend to be truthful. Se e Sc hu tz v . S tat e , 9 5 7 S
. W .2d 52, 70 (Tex. Crim. App. 1997) (“ Sc hu tz I ” ); Y ou nt v . S tat e , 8 7 2 S. W. 2 d

7 0 6 , 7 11 (Tex. Crim. App. 1993). However, b ec ause Iwould hold that the err or is harmless, I
re sp e c tf ull y dis se nt. A trial court’ s evidentiary ruling s, including those involving err or under Schutz I and Y ount , are subject to harmless e rror analy sis. Se e Sc hu tz v . S tat e , 6 3 S. W.3 d 4 42 , 4 43 (T e x. Cr im. App. 20 01) (“ Schutz II

”) ( holding that a dmission of testim ony that was “ direc t comment on the tru th f u ln e s s o f c o mp la in an t’ s a ll e g a ti o n s ” w a s h ar ml e s s e r r o r )
. T h e r

u le s o f a p p e ll a te p r o c e d

ure provide that any err or other than constitutional e rror “that does not aff ect substantial rig hts must be disreg arde d.” Te x . R. App. P. 44.2(b). Substantial rights ar e not affe cted by the er roneous2

admission of evidenc e if, a fter e x amining the rec ord as a whole, the court has a fair assurance that the er ror did not influenc e the jury , or had but a slight ef fec t. Schutz II

, 63 S.W .3d at 444. Wit h reg ard to violations of Schutz I and Y ount , the “dang er posed by the er roneous admission of expert testimony that was a

direc t comment on the complainant’s cre dibilit y was that the jury could have allowed that testimony to suppla nt its decision.” Schutz II , 63 S.W .3d at 445. I n evaluating whe ther the jury ’s decision on the cr edibility of witnesses wa s supplanted, the cour t must consider eve ry

thing in the recor d, including te stimony and phy sical evide nce, the nature of the evidenc e supporting the ver dict, and the c hara cter of the err or and its re lationship to ot her e vidence
. Id. Ad dit ion a lly , c ourt s ma y a lso c on sid e r o the r f

a c tor s, inc lud ing th e tr ia l c ourt ’s ins tr uc tio ns to the jury , the theorie s of the ca se that the State and defe ndant have espoused, and arguments to the jury
. Id. at 444-45.
Evidenc e Admitted at Trial

T h e in it ia l i n qu ir

y c o n c e r n s th e e v id e n c e a d mi tt e d a t t r ia l, in c lu d in g th e e v ide nce supporting the verdic t. The majority states that this was a “ she said, he sa id” ca se. Howe ver, the re
was a g reat deal of a dditional evidence and testimony that the jury

could h av e co n s idere d when de te rm ini ngthe re la tiv e c re dib ili ty of the wi tne sse s a

nd re a c hin g its ve rd ic t. Reg ardingthe evidenc e supporting K.B .’s testimony , K.B . tes t ified at trial that Ba rshaw ha d remove d her pa jamas and unde rwe ar a

nd had then touched her br easts and he r “pe lvis.” Thoug h K.B . functions at roug hly the level of

a ten- to-twelve y ear old with a verbal I Q of 67 a nd an estimated ac tual I Q in the fifties, her testimony at t rial was consistent with both the initi al outcry sheWhil e def ense c ounsel alluded during closing to a statement K.B . made that she was “ mad” 1 at B arsha w prior to her

outcry , the re cord c ontains no other indication of a motive for K.B. to lie or t o c o n c o c th e r

s t o r y. There is no evidence in the rec ord to indicate that K.B
. was sexually active at the time of 2 the alleg ed incident. Porter , K.B .’s MHMR case worke r for two y ear s, stated that to her knowle dg e, K.B . had neve r had a

romantic or se x ual re lationship. There wa s n o b l o od, howeve r, on the pa nties K.B. indicated she wa s wea ring afte r the 3 inc ide nt, no r w a s th e DN A o f a ny oth e r p e rs on

fo un d o n K .B .’ s c lot

hin g or be ds he e ts. 3 ma de to h e r m oth e r a

nd to t he statemen ts sh e gave to the inv e sti g a tin g of fi c e r a nd to K le y pa s, the SANE nurse
. 1

F u rt h e r , t h e p h ys i c a l e v i d e n c e a t t r i a l w a s a l s o c o n s i s t e n tw i t h K
. B
. ’ s t e s t i m o n y. Kl e y pa s e xami ne d K .B . on the same da y a s the a lle g e d inc ide nt. Whil e K. B . in dic a te d th a t sh e did not remembe r wh e th e r

B a r s h a w had pene trated he r whe n touching her pe lvis, Kley pas’s e x amination
reve aled a n abra sion inside of K.B.’s labia majora that could onl y have been caused by penetr ation. 2 Kley pas testified that the a

brasion wa s rec ent, as the skin in the affec ted area of the body heals ve ry quickly
. Acc ording to K ley pas, the abra sion would have c aused ble eding at the time it happene d,
an d cl o thing put up ag ainst the are a would have blood on it. Forensic sc ientist P atricia Retzl aff found blood stains o n K. B. ’s pajama shorts and on her

bedshee ts, which DNA te sts showed was K.B .’s blood. T h i s e v i d e n c e i s c o n s i s t e n tw i t h K
. B
. ’ s t e s t i m o n y.

3 Whil e B arsha

w’s testimony

contra dicted that of K.B., there is ot her e vidence in the
rec ord besides K .B.’ s testimony tha t c onflicts with Ba

rshaw’ s testimony . Specifica lly , the testimony of B e rn dt, K. B .’ s mo the r, dif fe rs fr om B ars ha

w’ s i n seve ra l im

po rt ant r e sp e c ts. Ac c or din g to B ars ha w, on the mor nin g of the a lle g e d inc ide nt, he sa w B e rn dt at the sto re wh e re sh e wo rk s and tol d her that he nee ded to che ck on the he ater in Be rndt’s hom e; h e t h en p roceede d to her home a ndTh e date of the inc ide nt was Decem ber 18 th. B e rn dt t e sti fi e d th a t K .B .’ s b ir thd a y is 4 Dec ember

30th. 4 encounte red K .B. the re. B erndt, howeve r, testified that Ba rshaw a sked about the he ater , but that she told him that there wer e no problems with it, and that she did not g ive him pe rmission to go to her h o me th a t d ay . B ar s h aw a ls o te s ti f ie d th a t he r e tu

r n e d to B e r n d t’ s h o me
—

w h e r e K
. B
. w a s
—th e n e xt day to look for his “multimeter,” a piece of equipment he thought he had left behind. Whil e B arsha w testified that h e d ro v e to the home and then f ound the multimeter in his truck, Be rndt, who had followed him, testified that B arsh aw i nstead attempted to enter the home, finding the door to be locked. She r elay ed this information to 911 as the incident wa s in prog ress. In addition, Ba rshaw te sti fi e d that he did no t kn ow a s of the date of the inc ide nt that K .B . w a s me nta lly re tard e d, de sp ite having had se vera l conver sations with K.B. B erndt, howe ver, te stified that it was “c ommon kn owl edge” t hat K.B. was men tal ly chal len ged, an d Kl ey

pas tes ti fi ed t hat sh e cou ld tel l t hat K.B. exhibi ted sig ns of deve lopmental delay when she first met her. T his conflictingtestimony provides
a b a s i s f o r t h e j u r y t o d i s c r e d i tB ar s h aw ’ s c r e d i b i l i t y e v e nw i t h o u tK
. B
. ’ s t e s t i m o n y. I n addition, portions of Ba rshaw’ s own testimony

place him at the s cene of the incident. B arsha

w himself admitted that he wa s i n t h e house alone with K.B. on the date of the incident in question, and consequently had the opportunity to eng ag e in the charg ed ac ts. He fur ther stated that he had g raspe d her shoulder s and g iven her a kiss on the che ek whe n she told him it was h e r b i rt h d ay. I n addition, Ba rshaw a dmitted that he returne d to the home the n ex t day without 4 having asked B erndt’s pe rmission.5 Given the testimony

and phy sical evide nce a dmitted at trial, Idisag ree with the
ma jor ity that th is w a s simp ly a “ sh e sa id, he sa id” c a se . F ur the r, e ve n if

the ou tc ome re ste d s ole ly on the jury ’s cr ed ibilit y

assessments of K.B ., the fa ct that the prose cution is gr ounded on the
cre dibilit y

of the victim, while sig nificant, is not conclusive in de termining harm. Schutz II , 63 S.W .3d at 446. Even i n ca s es i n which cr edibility is paramount, Te x as cour ts have found violations of S

c h u tz I and Y ou nt to b e ha

rm le ss w he re the re c or d a s a wh ole pr ov ide s a de qu a te
assura nce that the j ury was a

ble to exercise its function to deter mine the cr edibility

of witnesses. See id. (h old inge rr or

wa s h arm le ss e ve n thou g h “ the c a se a g a ins t th e a pp e lla nt r e ste d o n th e c re dib ili ty of the c omplainant”). Character of the Error

The ne x t inquiry conce rns the char acte r of the e rror and its relationship to the other evidenc e. When aske d ab o u t t h e ability of mentally

reta rded pe ople to “fa

bricate or make up elabor ate stories,” Ba

rthlow stated:
Gene rally speakingif y o u ’r e— wh en we ’re dealingwith mental reta rdation and there ’s not any

thin g go ing on, the re’ s just a diag nosis of mental reta rdation, pr ima ri ly , th e re ’s no t a

pe rs on a lity

dis or de r o r so me thi ng a dd ing to t hat, i t’ s b e e n my experience that folks with mental retardation can be painfully honest, rea lly . Imean, it’s like a l i t t l e kid who looks at somebody and say s in the supermar ket, “You’ re r e a l l y o l d , ” o r , yo ukn o w , w h a tl i t t l e k i d s s ay.
The de fense objected, indica ting that the “ testimony

is not rele vant bec ause you cannot testify to a class of pe ople beingtruthful.” The trial court ove rruled the objection, and B arthlow c ontinued:6

Iwas discussing individual’s me ntal reta rdation, and kind of their a bility to make up things. I ’m not g oing to sa y it would never happen. Imean, a ny body is capa ble of makin g up so me thi ng , bu t it’ s ve ry sim pli sti c in natur e . I t wo uld be —li ke Isa id, it wo uld be lik e a lie that a c hil d w ou ld te ll, a sto ry a c hil d w ou ld m a ke up . I t w ou ld be ver y easy as an a dult or pare nt to kind of see throug h t hat when you’re thinking of that. An d, a g a in, it’ s bee n my e xpe ri e nc e in t he hund re ds and hund re ds of pe op le wi th me nta l re tard a tio n th a t I ’v e se e n, that it ’s mor e g oin g to b e that th e y ’r e pa inf ull y honest. They

haven’ t learne d the social skills and probably never will to know when y ou sh ou ld l ie or wh e n it wo uld be so c ia lly a pp ro pr ia te to no t te ll the tr uth be c a us e it might hurt someone’s fee lings, or things of that nature , to hold things ba ck. The y jus t sa y wh a t c ome s into the ir min ds , ve ry muc h, a g a in, lik e a six- or se ve n- y e ar- old child would. They see something and they make a n observation, and they ’re g oing to say that beca

use they haven’ t learne d the s o ci al et iquette of whe n that’s appropr iate and w hen that’s not appr opriate.
As re c og nize d a

bo ve , p or tio ns of thi s te sti mony inv olv e the pr op e ns ity of me nta lly re tard e d p e op le
as a class to be truthful, and are conseque ntly inadmissible under Sc hu tz I and Y ount . How e ve r, it is noteworthy

that Ba rthlow equivocated at the star t of the statement, sa

y ing, “I ’m not g oing to sa y it would never ha

ppen. I mean, a ny body is capa ble of makingup something . . . .” Cf. Lon g v . S tat e , No. 12-07-00256- CR, 2009 Tex. App. L EXI S 1090, at *8 (Tex. App.—Ty ler F eb. 18, 2009, no pet.) (mem. op., not d es i gn ated f or publication) ( holding e rror harmful whe re e x pert “ staked he r reputation on her conc lusion that there wa s nothing troubling about the complainingwitness’s tes t i m o n y and the St ate’ s case ”). In addition, the quoted passag es constitute the entire ty of B art hlo w’ s im pe rm iss ibl e te sti mony . Sh e did no t r e vis it o r e xpand

he r s ta te me nts a t any

oth e r t ime during the trial, nor did the State attempt to e licit a ny further testimony on the matter. See G arza v. Sta te , N o. 05 -0 4- 01 10 4- CR, 20 06 Te x. Ap p. L EX I S 69 , at *1 2 ( Te x. Ap p. —D a lla s Jan . 5 , 2 00 6, pe t. ref ’d) ( mem. op., not de signated for publication) (noting that “[t] he State did not pursue the matter further ” af

ter e rrone ous admission of Sc hu tz / Y ount testimony

in holding er

ror ha rmless).7 Fur ther, a n examination of t he relationship of t he error to the ot her e vidence in the
rec ord indicates that the jury had much more than just B arthow’ s testimony on which to ga ug e the
c r e d ib il it y o f K .B. S

ee Schutz II

, 63 S.W .3d at 446 (h old inge rr or ha rm le ss w he re ina dmi ssi ble
e xpe rt te sti mony

wa s “ a sma ll p or

tio n of a larg e a mou

nt o f e vid e nc e pr e se nte d th a t th e jur y c ou ld have c onsidered in a ssessing the victim’s c redibility ”). First and f oremost, the jury

was a ble to listen to K .B .’ s o wn

tes ti mo ny in its e nti re ty , a nd to m a ke its ow n d e te rm inatio ns ba se d o n th e ir observation s o f h er dur ing he r time on the witness stand. The jury was a lso presente d with the phy sical evide nce de scribed above, including evidence that K.B
. had been penetrated in a manner consistent with the offe nse cha rg ed. Finally , the jury was a ble to hear

the competingtestimony of B ars ha w i n a dd iti on

to c ha ra c te r wit ne sse s supp or

tin g B ars ha

w i n ma kin gits de te rm inatio n. Whil e the majority

relies on the a ssertion that Ba rshaw “wa s, on the fac e of it, a cre dible witness,” the f act that the jury

was a ble to evaluate his conflicting testimony reinfor ces the notion that the jury had a larg e a moun t of e vid e nc e to c on sid e r b e y on d th e te sti mony of the e xpe rt

in m a kin g its c re dib ili ty deter minations. See id. (indicating that harm of err or wa s miti g ated by amount of other e vidence jury hear d, including t est imony that defe ndant “wa s a truthful, pea cef ul, law-a biding pe rson who exhibi ted no unnatura l sex ual tendenc ies toward c hildren”)
. Jury I nstructions Turning to the instructions give n to the jury , the re cord indicates that the jury was expli citly instructed, “Y ou are the exclusive judge s of the fa cts proved, of the cr edibility

of the wi tne sse s and

of the we ig ht t o b e g ive n to the te sti mony .” Th is ins tr uc tio n r e inf

or c e d th e jur

y ’s ro le in making c redibility

deter minations. Se e W

ils on v . S tate , 90 S.W .3d 391, 394 (Tex. App.—Dallas8

2002, no pet.) (notingthat “the trial court inst ructe d [t he jury ] that they wer e the exclusive judge s of a w itness’s cre dibilit y ” in finding err or har mless). Closing Argument

Finally , as noted by

the majority , the State did not refe renc e the inadmissible portion of B arthow’ s testimony during closing
. Fur ther, the State beg an it s argument, “You sa w [K.B.] You g ot to see her in pe rson. And that’s important, for y ou all to se e her , to hear her, and to judge her

c re dib ili ty .” (E mph a sis a dd e d. ) T he State als o ma de oth e r r e fe re nc e s to the c re dib ili ty deter mination at t h e hea

rt of the c ase, te lling the jury , “You’ re g oing to have to dec ide who y ou believe, [K.B .], or Mark B arsha w.” These stateme nts indicated that the ultimate dete rmination of
cre dibilit y

rested w i t h t h e j u ry . See id. (n oti ngthat “ [d]ur ingc los ingargume nts , th e State emphasized to the jurors that they wer e the judge s of [complainant] ’s cre dibilit y and never ref err ed to [ inadmissible] testimony about the per centa g e of children who lie about being sexually abused” in finding e rror

harmless). B a se d o n th is r e vie w o f t

he re c or d a s a

wh ole , in c lud ingthe e vid e nc e a dmi tte d at tr ia l, the cha rac ter of the err or and its relationship to the evidence , the instructions g iven to the jury , and the State’s closing argument, I conclude that there is a fair a ssuranc e that the e rror did not influence the jury , or had but a

slight ef fec t. See Sc hutz II

, 6 3 S. W.3 d at 44 4- 46 ; W ilson , 90 S.W .3d at 394; Ga rza , 2 0 0 6 T ex . Ap p . L E XIS 6 9 , at * 1 2 (h o l d i n g Sc hu tz / Y ount err or harmless beca

use jurors we re pr e se nte d w ithlarg e a mou nt of e vid e nc e to co ns ide r in mak ing c re dib ili ty de te rm inatio n, Sta te did not pursue inadmissible evidenc e af ter a dmission of ini tial testimony , jury was inst ructe d that it was sole judg e of c redibility

of witnesses, a

nd State did not refe renc e Sc hu tz / Y ount testimony

during9

closing ). As I would there fore overr ule B arsha

w’s first issue a

nd proce ed to addr ess his remaining iss ue s o n a

pp e a l, I re sp e c tf ull y dis se nt.

__________________________________________

Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Filed: August 31, 2010 Pub lis h