The district cour t ordere d that the prison terms run concurr ently and that Kirby

be plac ed 1 on community

supervision for he r ten-y ear sentenc e af

ter she c ompleted her

term in prison. 

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

NO. 03-04-00667- CR
Lynd a M ar ie Kir by a ka Ly nda D unn, A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF WILLI AMSO N COUNTY , 26TH JUDICIAL DISTRICT NO. 01-1 172- K3 6, HO NORAB LE BI LLY RAY STUB B LEF IELD, JUDGE PRESI DING

O P I N I O N A jury found Ly nda Kirby g uilty of three counts of agg ravated s exual assault, three counts of indec ency

with a child by contac t, and two counts of indec ency with a child by

exposure,
a l l ar i s i n g o u to f

a l l e g a t i o n s t h a ts h e s e x u a l l y a b u s e d h e r s o n T
. H
. K
. S h e w a s s e n t e n c e d t o t w e n t yfive y ear s in pr ison f

or eac h of the ag g ravated assault counts and te n y ear s in prison for the indec ency with a child counts. The jur y rec ommended that Kirby be place d on community supervision for the two counts of indec ency

with a child by

exposure. 1 Kirby challeng es her

conviction in twenty -four points of error . We will group K irby ’s points of error in the foll owing issues: (1) the district court erre d by admitting evidence that she hadTh e State c on c e de s th a t K ir by ’s c on vic tio ns fo r i nd e c e nc y wi th a c hil d by e xpos ur e vio la te 2 the double jeopar dy clause in lig ht of her conviction for indece ncy with a child by con t ac t arising out of the same a cts. For clar ity , we will re fer

to Terr an ce and Ly

nn Kirby by their first name s, and to L y nda 3 K i r b y a s K i r b y. 2 been se x ually

abused in the pa st, (2) the district cour t erre d by failing to limit the j ury ’s consider ation of the State’s e vidence in light of the State’ s elec tion of the acts it r elied upon for conviction, (3) the
e vid e nc e is i ns uf

fi c ie nt t o s us ta in t he con vict ion in l ig ht o f t

he State ’s e le c tio n to re ly on a c ts
occur ring on or about Mar ch 31, 2001, and ( 4) the c onviction fo r b o t h i n dece ncy with a child by contac t and indece ncy

with a child by exposure violates the Double Jeopardy Clause of the U nited State s Con sti tut ion
. We h old that th e dis tr ic t c ourt

e rr e d b y a dmi tti ngte sti mony

tha t K ir by wa s a 2 vic timof se xua l a bu se . We re ve rs e the c on vic tio ns and re mand to the dis tr ic t court fo r a n e w tri a l.

BACK GR OUND Terr ance Kirby

and Ly nda Kirby wer e mar

ried in 1992. T.H.K. w as born in 1993, and the c ouple divorce d while he wa s still an infa nt. Soon after the divorce , Terr ance marrie d L y nn Kirby , and T.H.K.’s primary residenc e has rema ined with his fathe r and stepmother i n Ba s t rop. 3 B e fo re makin g his ou tc ry of se xua l a bu se , T .H .K . tr a ve le d to Ki rb y ’s ho me in Wi lli a mso n Co un ty
ever y other we ekend to visit her. I n April 2001, T.H.K. told his first g rade teac her, Melissa Rathman, that his mother was sexually

abusing him. Rathman testified t hat T.H.K. had previously been a n exemplary

student but that she no t i ce d a “drastic cha ng e” in his beha

vior in the first wee k of April 2001. T.H.K
. beca me def iant and ang ry . He c omplain ed of stomacha ches a nd other phy sical problems, but theL y nda Kirby had a daug hter, A.B ., from a pr ior relationship. A.B. is approximately five 4 y e ars old e r t

ha n T .H .K . a

nd li ved wi th K ir

by up un til the tim e of

tr ia l. T he inc ide nt d e sc ri be d in T.H.K.’s te stimony

was purpor

ted to have taken plac e whe n T.H.K. was four and A.B . was nine.

3 school nurse f

ound nothing wr ong with him. W hen Rathman sat down w ith T.H.K. and a sked about his pr ob le ms, T. H. K. c on fi de d th a t “ he jus t fe lt all tw ist e d up insi de be c a us e he ha d s o ma

ny se c re ts g oing on.” When Rathman asked him to descr ibe his secr ets, T.H.K. told her that he had be en taking showers w ith h i s m o t h er and that, in the showe r, his mother made him touch her “ pee- pee.” He demonstrated to Rathman howhis mother would have him touch he r vag ina. He told Rathman that his mot he r w ou ld k iss him

wi th h e r t on g ue , to uc h a

nd kis s h is p e nis , a

nd have him ru

b h e r b re a sts
. A couple of

wee ks later, T.H .K. told Rathman, “I want to ta lk to you about a letter I wr ote to Go d. ” T. H. K. the n d e sc ri be d h owhis mot he r w ou ld p us h h is f

a c e int o h e r v a g ina

wh ile the two wer e in the showe r. He then bent over and g rabbe d his kne es saying, “This is what she doe s in the shower, a

nd she m akes me put my penis in her bottom
. . . . Sometimes it doesn’t g o all the way in so she’ll turn around and she’ll pus h it in.” During this conversation, T.H.K. also desc ribed a sexual g ame he play ed with his older half -sister. 4 Af te r T .H .K .’ s in iti a l outc ry , Rathm an n oti fi e d th e sc ho ol c ouns e lor and c hil d protec tive service s. She also called T .H.K.’s father and s tepmother, Terra nce and L y

nn. T.H.K. wa s interviewe d by

Mindy Gra ber, a fore nsic interviewe r at the Children’s Advoca cy Center in B astrop. The videota

pe of that interview wa s not introduced int o evidenc e. I t appea rs from testimony

in the
rec ord that in this interview T.H.K. minimi zed his mother’s abuse and denie d some of the a lleg ations h e h a d r e p o rt e d t o R a t h m an . T
. H
. K
. w a s r e f e r r e d t o s o c i a l w o r

k e r C a n d r a H o u s t o nf

o r t h e r a p y. Al tho ug h it

too k s ome ti me for

Ho us ton to e sta bli sha ra pp or t w ithT. H. K. , h e e ve ntu a lly fe lt4

comforta ble enoug h to tell her a

bout the sexual abuse. Houston testified that “f or appr ox imately

the last 18 months of our treatment tog ether , [T.H.K.] has been consistent over and over ag ain with the details and the nature a

nd the seve rity

and the c hronicity

of the a buse.” Houston testified that T.H.K. exhibi ted a number

of beha viors that wer e consistent with a history of sexual abuse. In May 2002, about a y ear

afte r T.H.K.’s initial outcry , Houston beca me conc erne d that T.H.K. wa s suicidal. She testified that T.H.K. w as ver y ang ry during thera

py and he told Houston that he wanted to die; he wa s
e xtre me ly ne rv ou s a

bo ut s e e inghis mot

he r i n c ourt
. On May 10 , 2 00 2, T.H. K. wa s a dmi tte d to the Sho a l Cr e e k p sy c hiatr ic ho sp ita l in Austin. Records indicated t hat T.H.K. r eporte d hear ing voic es telling him he did not deserve to live and see ing ha llucinations of “mea n clowns.” In a “Chil d Self Assessment,” T.H.K. chec ked a box ind ic a tin g “ Ihave pr ob le ms w ith[l]y ingor ste a lin g .” T. H. K. wa s d isc ha rg e d f our d ay s late r w ith a diag nosis of “major de pressive disorde r” and was presc ribed Z oloft. He quickly improved af

ter the hospitaliz ation but remaine d in therapy throug h the time of trial in J uly 2004. Terr ance and Ly

nn both testified that they wer e unhappy with the ca re T.H .K. re ceive d at Shoal Creek a nd felt that the pr e sc ri be d me dic a tio n w a s unn e c e ssa ry . T he y

te sti fi e d th a t th e y

sto pp ed giving T. H. K. his
me dic a tio n s oo n afte r h e le ft the ho sp ita l and

tha t T .H .K .’ s c on dit ion

g re a tly imp ro ve d w ith continued ther apy

and the use of a f

ish oil suppl ement that promotes e motional stabili ty
. At the tim e of tr ia l, T. H. K. wa s ten y e ars old and ha d not se e n his moth e r sin c e his initial outcry

over thre e y ear s ear lier. T.H.K. te stified articulately and at leng th about t he abuse . He te sti fi e d th a t th e a

bu se ha d o c c ur

re d d ur inghis biw e e kly

vis its wi th h is m oth e r a

nd that he and

his mot he r o ft e n s ho we re d to g e the r t wi c e a da y . In th e sh ow e r, T. H. K. wo uld ru b h is m oth e r’ s b re a stsNone of the wit nesses re called e x actly when T.H .K. last visited with Kirby . Kirby place d 5 the visit during springbrea k, either the second or

third wee kend of Ma

rch 2001. She te stified that a sc he du le d v isi t f

or the fi rs t w e e ke nd

in A pr il w a s c anc e le d s o th at T. H.K. c ou ld atte nd a T- ba ll g ame. The State alleg ed that the a buse took place on or about Mar ch 31, 2001.

5 and that she w ould “bend ove r and spr ead he r botto m ap ar t and make me stick my [penis] in her bottom, which—Inow I ’m knowing that is sex .” He testified t hat hi s mother would also bend over and suck on his pe n i s an d that he would suck a nd lick her va g ina. T.H.K. r ecounte d that he wa s dir e c te d to ru

b his moth e r’ s vag ina and that she wo uld fr e nc h k iss him . T .H .K . s ta te d th a t th e a bu se
occur red “many times” and that it had been happening for as long as he could r emember . He did not
name a ny specific date or

time that the abuse took pla ce. T.H.K. testified that abuse “ probably” took place on his last visi t with his mother but qualified, “I don’t reme mber much.” This last visit t ook place on either the second or third wee kend in Marc h 2001. 5 Kirby testified i n her ow n defe nse and de nied abusing her son. She insisted that she stopped bathing with her son in 1997, when he rea ched the ag e of f our. However, onc e in the
s u mm e r o f 2 0 0 0 s h e h a d s h o w e r e d w it h h im in o r d e r to r in s e o f f f r o m th e b e a c h w h il e they wer e
v a c a t i o n i n g . K i r

b y d i d n o tr e c a l l t h e s p e c i f

i c e v e n t s o f

h e r l a s t v i s i t w i t h T
. H
. K
. b e f o r e h i s o u t c r

y. She did r eca ll taking T.H.K. swimming and to a park to pla y tennis. Kirby

testified that she did not shower w ith T.H.K. but would have turned on the water for him and put shampoo in his hair. She
re c ounte d th a t T .H .K . s le pt in he r be d tha t we e ke nd be c a us e sh e ha d be e n r a isi ngPe rs ian k itt e ns in T.H.K.’s r oom and bec ause she did not trust T.H.K. to play g ently with the newbor

n kittens. Three m ental health experts testified on Kirby ’s beha lf. Ba sed on hy pothetical questions, psy chiatrist Richard Coons testified that T.H .K.’s account of sexual abuse could be ba sed6

on delusional thinki ng . Matthew F err ara , a for ensic psy cholog ist specializing in sex offender s
a g re e d w ithDr . Co on ’s c on c lus ion . D r. F e rr ara te sti fi e d that it is po ssi ble fo r a c hil d to make a

fa lse
s t a t e m e n ta

b o u ts e x u a l a

b u s e an d t h e n c o m e t o b e l i e v e t h a t s t a t e m e n t t h r o u g h r e p e t i t i o ni nt h e r a p y. Considering T. H. K. ’s s t atements and his mental health history , Dr. F err ara testified that the
a lle g a tio n o f a

bu se “ loo ks lik e it’ s mo re in l ine wi th a pr od uc t of a de lus ion a l pr oc e ss o r f

a nta sy pr oc e ss. ” Dr . F e rr ara

a lso dis c us se d th e c ha

ra c te ri sti c s o f s e x off

e nd e rs g e ne ra lly
. I n re sp on se to
a hy po the tic a l qu e sti on

de sc ri bin g Ki rb y , D r. F e rr ara te sti fi e d th a t sh e did

no t e ve n c ome cl os e to matching the profile of

a woman w ho would act out sexually with her own c hild. Kirby was e valuated by

Vivian L ewis, a r ecog nized ex pert in sex offende r treatment with over twe nty

y ear s’ experienc e in the fi el d
. L ew i s testified that she met with Kirby over the
course of seve ral months, admin is te r ing a number of psycholog ical tests. L ewis testified that Kirby ’s pe rf or manc e and

he r l if e his tor y we re inc on sis te nt w ith

the pr o f i l e o f c o nv ic te d f

e ma le se x off

e nd e rs :
Over all, Idid not see what Iwould have e x pecte d to see or w hat I have a ctually

seen or re ad about or

rec eived tra ining a

bout in terms of female sex offe nders. The meat of what Iwould have be en looking for wa s simply not there.
On c ro ss- e xami natio n, L e wi s a g re e d th a t no t a ll f e ma le se x off

e nd e rs fi t th e no rm a l pr of ile . L e wi s admitted that Kirby ’s history of chemical dependenc y , “sexually actingout,” family

instabilit y

—and the fa ct t hat Kirby

had bee n a victim of sexual abuse—we re c onsistent with traits found in the population of fema le sex offende rs.

Havinghear d all of the e vidence , the jury found Kirby g uilty on all counts cha rg ed.7 DI SCU SSIO N Evi de nc e th atLynd a K

ir by H ad Be e n Se xua llyAbu se d as a C hild I n her f irst issue, Kirby co n t en d s that the district court er red in a dmitti ng evidenc e that she had be en a vic tim of sex ual assault as a child. She as s er t s that (1) the e vidence was improper c hara cter

evidenc e under

rule of evidence 404(b), (2) any probative va lue of the e vidence was substantially

outweig hed by

its prejudicial nature under r ule of e vidence 403, and (3) the district court e rre d in admitting the evidenc e and later failing to instruct the j ury to disreg ard it. Be cause we ho ld t hat K ir by ’s his tor

y a s the vic timof

se xua l a bu se wa s im

pr op e r c ha

ra c te r e vid e nc e un de r r

ule of evide nce 404, w e sustain her first issue. The State fir st elicited testimony from De tective John Com bs that Kirby had bee n sexually abused by

her g randf

ather . Def

ense c ounsel objecte d to the State’s question. At a benc h
c on fe re nc e , th e State argue d th a t th e te sti mony wa s r e le va

nt:
The fa ct that she wa s sexually abused a s a child by her g randf

ather and that the a

buse, we’ ll find out, took pl ace i n t h e bathr oom just l ike these a lleg ations are , Ithink, highly rele vant to this c ase. Also, if we’ re g oing to g et into—at some point I ’m sure they are g oing to g et into Ho u s t o n ’s ps y cholog ical testimony , may be eve n call sex offe nder the rapists; all that would be re levant to—y ou know, may be they ’re g oing to put in some evidenc e that she does not fit the prof ile of a se x offe nder. B ut Ithink particula rly the fa ct that the ty

pe of a buse that she disclosed to c erta in people that she su ff e re d a s a c hil d, so me of

it i nv olv e s ana l se x an d it too k pl ace in t

he bathr oo m. I t’s very rele vant to our ca se.
L ater during this bench conf

ere nce, the district court aske d whether the State would ca ll an expert to t e sti fy tha t a his tor y of se xua l a bu se lik e the on e de sc ri be d w ou ld i nc re a se the lik e lih oo d th a t a8

person would become a sex offende r. The State r esponded, “ Ibelieve so, y es. I think we will have one. . . .” T he trial c ourt then over ruled the obje ction. Detec tive Combs related that Kirby told him t hat “up until about the age of 10 or 11, her g randf

ather would take he r into the bathroom and ha ve interc ourse with her .” Combs clarifie d thi s h e ars ay st ate me nt, e xpla ini ngtha t it wa s h is u

nd e rs tand ingthat th e se xua l a c tiv ity wa s “ jus t vag inal intercour se.”

Th e State e lic ite d a

no the r hear say

state me nt r e g ard ingKi rb y ’s e arl y se xua l a bu se duri ngthe dir e c t e xami natio n o f he r ex- hu sb and Te rr anc e . T e rr anc e re la te d th a t K ir by ha d to ld h im that she had been sexually abused by her g randf ather from the time she was three , that the abuse took place in a bathroom, and that she had be come pr eg nant from that a buse. De fense counsel’s objections to this li ne of que stioning we re he ard outside the pr esenc e of the jury , and the tria l court ag ain over

ruled the obje ction. Consist ent wit h her objections at trial, Kirby contends on a

ppeal that the a dmission of these he arsa

y statements violated rule of evidenc e 404(b). Rule 404(b) prohibits the admission of evidenc e of other crimes, wrong s, or acts “to prove the char acte r of a person in or der to show action in conf

ormity there with.” Kirby

argues that the State was improperly permitted to use the f

act that she wa s a v ic ti m o f s e xu a l a b u s e to s h o w th at s h e h a d a p r o p e n s it y to a b u s e c h il dr e n . The State’s only

response is that Ki rb y ’s “st atus as a pe rson who wa s sexually abused” cannot be char acte rized as a “cr ime, wrong , or act” under rule 404(b) , and ther efor e, the r ule’s prohibition does not apply . Howeve r, rule 404( a) g ener all y p ro h i b i ts the admission of evidence of a pe rson’s char acte r or c hara cter

trait for the purpose of

proving action in conf

ormity there with. We de clineThe State ha s not arg ued that this evidenc e wa s admissible for some other purpose suc h 6 as those listed in rule 404(b)
. See Te x. R. E vid . 4 04 (b ) ( e vid e nc e of oth e r c ri me s, wro ngs or a c ts admissible for other

purposes such a s p ro o f of moti ve, opportunity , intent, prepa ration, plan, knowledg e, identity , or abse nce of mistake or ac cident).

9 the State ’s inv itatio n to c on str ue Ki rb y ’s iss ue so na

rr ow ly . Wh e the r v iew ed as a chara c te r t ra it under r ule 404(a ) or a

n act unde r rule 404( b), we hold that the evidenc e wa s improperly admitted. B y its ow n a dmi ssi on

a t tr ia l, t he State e lic ite d th is h e ars a y te sti mony to s ho w that, be c a us e Ki rb y wa s a vic timof pa st s e xua l a

bu se , s he wa s mor e lik e ly to h a ve c omm itt e d th e of

fe ns e char g ed. Although w e have found no Texas ca ses direc tly addre ssing the a dmissibi lity of a 6 defe ndant’s past sexual abuse in prose cuting the cr ime of sex u al abuse, Kirby has cited se vera l op ini on s f ro m ot he r s ta te s e xclu din g su c h e vid e nc e fo r the purp os e of sh ow ingthat de fe nd ant l ike ly committed a sex offense. See State v . Pulizzano , 45 6 N. W.2 d 32 5, 33 5- 36 (Wi s. 19 90 ); Nelson v. Sta te , 7 82 P.2 d 2 90 , 2 96 (A la sk a 19 89 ); State v. Jahnk

e , 3 5 3 N
. W. 2 d

6 0 6 , 6 1 0 ( M inn . 1 9 8 4 )
. We ag ree that, to the ex tent that such evidence is rele vant at all, it is char acte r evidence that may not be admitted as proof

of g uilt. See Tex. R. Evi d. 404. I n response to Kirby ’s objection to t he admissi on of evide nce that Kirby had bee n the vic timof se xua l a bu se , th e State a ssu

re d th e dis tr ic t c ourt

that it wo uld presen t an e xpe rt

wi tne ss who w ou ld l ink

thi s e vid e nc e wi th K ir

by ’s g uil t. T he State fa ile d to do so . E ve n h a d th e Sta te fulfilled its promise to call an e x pert on sex offende rs to tie Kirby ’s hi story to a sex offende r prof ile, such testimony

would not have be en a dmissibl e. In Bushell v. De an , this Court held ex pert testimony that the def

endant met the pr ofile of a s ex u al hara sser to be ina dmissable char acte r
ev i d en ce under rule of evide nce 404. 781 S.W.2d 652, 656 (Tex. App.—Austin 1989), r e v ’ d on10

other grounds , 8 0 3 S
. W
. 2 d 7 1 1 ( T e x . 1 9 9 1 ) ( a

p p e l l an tf a i l e d t o p r e s e r v e e v i d e n t i ar

y i s s u e )
. In
re a c hin g thi s h old ing , th is Court c ite d c a se s fr om o the r j ur isd ic tio ns e xclu din g pr of ile te sti mony

in child abuse c ases. Se e id
. at 6 5 6 (c i t i n g Un ite d S tat es v . G ill esp ie , 852 F.2d 475, 479- 480 (9th Cir. 19 88 ); State v. Hanse n , 743 P.2 d 1 57 , 1 61 (1 98 7) ); see also United States v. Traum , 60 M.J . 226, 234 (CAAF 2004) (use of any char acte ristic “prof

ile” as e vidence of g uilt in criminal trial improper); Br un so n v . S

tat e , 79 S.W .3d 304, 312-13 (Ar k. 2002) (c iting numer ous fede ral a nd state ca ses); Pulizzano , 45 6 N .W. 2d

a t 33 5- 36 ; Jahnke , 3 53 N. W.2 d at 61 0; Sta te v . S an de rs , 303 S.E.2d 13, 17- 18 (G a . 1 98 3) ; c

f. B re win gto n v . S

tat e , 802 S.W .2d 691, 692 (Tex. Crim. App. 1991) (evidenc e that defe ndant was “ fix ated pe dophile” inadmissible to show g uilt in s exual abuse prose cution).

A def endant may

open the door

to such testimony

by prese nting e vidence that she does not meet a

profile. Howeve r, that did not oc cur in this case
. Se e Ma y na rd v . S tat e , 685 S.W .2d 60 , 6 6 ( Tex
. Cr im. Ap p. 19 85 ) ( de fe nd ant n ot r e qu ir e d to sit mut e in f a c e of ha rm fu l e vid e nc e to pr e se rv e iss ue fo r a

pp e llate re vie w) . A ft e r t

he State re ste d w ith ou t c a lli ng an ex pert , th e de fe ns e made an unsucce ssful motion to s trike the testimony that Kirby

had bee n the victim of sexual abuse. I n arg uing th is mo ti o n , d e f e n s e c o u n s e l s tate d

th a t h e “ c ar e f

u ll y p la n n e d ” to a v o id

r a is in g the
c ha ra c te ri sti c s of se x of

fe nd e rs a t th e g uil t/i nn oc e nc e ph a se of the tr ia l and

pla nn e d to pr e se nt t

his testimony only at punishment. He explained that, in light of the district c ourt’s ruling admitting the evidenc e, he w ould now have to a ddress the issue:
We a nticipated that if somehow this issue opened up [our experts] would be prepa red to talk about this iss ue, but in or der to now e x plain or mee t this evidence, I ’m g oing to h a ve to p ut t

hat is su e on . Ms. Ki rb y wa s no t pr e pa re d fo r t ha t r e ve la tio n in

c ourt
. She had not be en prepa

red to te stify about that in the g uilt/i nnocenc e phase. Ihad not planned to open the issue up at the g uilt/i nnocenc e phase
.11

Under these c ircumstance s, Kirby did not open the door to the objec tionable evidenc e of he r prior sexual abuse. Error

in the admis sion of evidence is subject t o a harm analy sis under rule 44.2( b) of the rules of

appellate proce dure. Se e J oh ns on v . S

tat e , 967 S.W .2d 410, 417 (Tex. Crim. App. 1998). A violation of the evide ntiary rules that re sults in t he er roneous a dmission of evide n ce is nonconstitutional error. Se e Kin g v . S tat e , 9 53 S.W. 2d

26 6, 27 1 ( Te x. Cr im. Ap p. 19 97 ); Tat e v . S tat e , 988 S.W .2d 887, 890 (Tex. App.—Austin 1999, pet. ref ’d). Any non-constitutional error

“that does
no t a ff e c t su bs tanti a l ri g hts mus t be dis re g ard e d. ” Te x. R. A pp . P. 44 .2 (b ); see also Tex. R. Evi d. 103(a) (er ror may not be predic ated on a dmission or ex clusion of evidenc e unless substantial rig ht of par ty aff ecte d). A substantial rig ht is affe cted whe n the er ror ha d a substantial and injurious ef fec t
or influence in de termining the jury ’s ver dict. See King , 953 S.W .2d at 271. A criminal conviction should not be overturne d for non- constitutional error if the appellate cour

t, after examining the
rec ord as a whole, has fair assura nce that the er

ror did not influenc e the jury , or had but slig ht effe ct on its verdict. See J

ohnson , 967 S.W .2d at 417. This was a c lose ca se re solve d by a cr edibility

deter mination between T .H.K. and Ki rb y . T .H .K . te sti fi e d th a t hi s mo ther sex ua lly a bu se d h im. Hi s te sti mony wa s b ols te re d b y

his outcry state me n ts to h is f ir s t g r a d e te a c h e r . T h e St a te a ls o p r e s e n te d te s ti mo n y

f r o m T
. H .K.’s thera pist that his behavior was c onsistent with his being the victim of sexual abuse. Howe ver, T.H.K. wa s shown to have be en mentally ill, at one point r equiring hospitaliz ation for hear ing voic es
an d h av i n g h al l u ci n at i o n s . He al s o as s e s s e d h i m s e l f a s h av i n g p ro b l em s wi t h l y i n g o r s t ea l i n g. Ex pert witnesse s testified that T.H.K.’s acc usations c ould be the product of delusional thinking a ndB e c a us e we re ve rs e the c on vic tio ns on thi s g ro un d, we ne e d n ot r e a c h K ir by ’s oth e r p oin ts 7 of er ror. See Tex. R. App. P . 47.1. 12 that, afte r repe ating such a story in therapy , a child could c ome to believe it wa s true. Kirby testified and denie d abusing her son. The testimony that Kirby

had bee n the v i ct i m o f s ex ual abuse , even when discounte d by

expert testimony , i m p ro p er l y called into play

the commonly

held belief

that victims of sex ual abuse are more likely to a buse others. V iewing the re cord a s a whole, w e ar e not fairly assured t h at t h e t es t i mony that Kirby

had bee n the victim of sexual abuse as a child did not influence the jury ’s cr edibility deter mination. Accor dingly , we sustain Kirby ’s first issue.
CO NC LU SION We hold that the district c ourt err ed by admitting evide nce that Kirby had bee n the vic timof se xua l a bu se . We re ve rs e the c on vic tio ns and re mand the c a se fo r a

ne w tri a l. 7

Be a Ann Smith, J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pemberton: Opinion by J ustice B . A. Smith; ConcurringOpinion by

J ustice Pemberton Reverse d and Remande d Filed: Apr il 6, 2006 Pub lis h