## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00001

- CR

KENNIE LEWIS COOK, JR. , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2019F00062

B efore Morriss, C.J., Burgess and Stevens, JJ. Opinion by Justice Burgess Dissent ing Opinion by Justice S tevens2 

### O P I N I O N A Cass County jury convicted Kennie Lewis Cook, Jr. , of aggravated sexual assault of a child. Cook was sentenced to forty years’ imprisonment and was ordered to pay a $1,000.00
fine. On appeal, Cook argues that the jury’s verdict is not supported by legally sufficient
evidence , 1 the trial court should have ruled on his Batson 2 challenge, and his counsel rendered ineffective assista nce by failing to preserve his Batson challenge . Cook also argues that the trial court erred by allowing an officer to testify that he bel ieved the child victim and by permitting a witness to testify in violation of Rule 614, the witness sequestration rul e . We find that legally sufficient evidence supported the jury’s verdict of guilt . However, we find that the trial court erred in admitting the officer’s direct opinion on the child victim’s
cred i bility and conclude that Cook was harmed by the testim o ny . As a result of this finding, which is dispositive of Cook’s remaining issues , we reverse the trial court’s judgment and
remand the case for a new trial.
I. Legally Sufficient Evidence Supports the Jury’s Verdict of Guilt A. The Evidence at Trial
T he State’s first witness was the victim, Chance Scallion , 3 who was seven years old when he made an outcry of sexual abuse against Cook. According to Chance, Cook sexually abused him at his great

- grandmother ’s home after a church service at Hendrix Temple In stituti onal

1 In companion ca use numbe rs 06

- 20

- 00002

- CR and 06

- 20

- 00003

- CR, Cook al so appeals from two other convi cti ons o f ag gravate d se xual as sault of the same child.

2 Batson v. Kentucky , 476 U.S. 79 (1986).

3 We use pseudonyms for the child victim and his fami ly to protect the id entity o f th e child. See T EX
. R. A PP
. P. 9. 10.3

Church of God and Christ , where Cook served in various capa cities, including as an organ ist and music director. The evidence at trial established that Chance often went to church with Laura, who was his great

- grandmother and the chu rch sup e ri ntendent

. Laur a lived two blocks from the church and, after church concluded at 1:30 p.m., would always return to her home to prepare and serve a meal for the bishop and her grandson, Da rrius, who attended almost every Sunday, and Cook,

w ho ate with th e g roup every othe r Sunday. Chan ce alleged that Cook abused him when he and Cook were alone in the living room of Laura’s house after church on Sunday “when Granny
went to the bathroo m. ” According to Chance , Cook directed him to retrieve t he television r em ote, “ cut off t he TV, [and] then

. . . pulled [his] pants down , ” followed by his underwear. Chance said that Cook “put his finger in [his] butt,” and “sucked [his] little thing.” The child identified his “little thing” as “what [he] u se[d] to go to th e b athroom with

. . . numbe r one.” Chance said his little thing was “[h]ard” and that Cook said, “ I t tastes good.” The child also testified that Cook “made [him] suck his little thing” with his mouth and that Cook’s “little th ing” was soft and looked lik e a black crayo n. Chanc e testified that the acts made him feel sad and that he felt “[m]ad” when he
saw Cook because of what he did. Cook stopped when they heard Laura c o m ing out of the bathroom and made “[ Chance ] pull back up [his] pants.” Chance’s mot h er , Fio na, te stified th at she found Chance sucking the head of a yellow rubber duck during bath time and later caught him sucking his brother’s penis. When she asked Chance about his behavior, Fiona said Chance pointed to his penis a nd alleged that Cook h ad4

suck ed it. Fi ona al so said that Chance “put his hands in two girls’ tops, in their shirt tops, and was touching their bottoms.” Chance testified that he had “[s]ucked his [four

- year - old brother’s] little thing” because he had tho ught about Cook.
F i on a tes tified that she had grown up with Cook, that their families had close ties, and that she allowed Chance to be around Cook and accept gifts from him. According to Fiona and Laura, Cook gave Laura money for Chance and bought Cha nce ev erything he ask e d for, includ ing clothe s, a backpack, school supplies, and toys. Cook also took Chance to the movies, would drop the child off at school, and took him to band practice at another school where Cook was employed as the ban d director. Testimony from both C h an ce an d Cook showed th at Chance was also allowed to spend two nights at Cook’s apartment, unsupervised, where he slept with Cook in Cook’s bed. Laura testified that Cook lived alone and did not have a wife or girlfriend. After Cha nce’s outcry to Fiona , F iona went t o the chur ch with Chance and asked him to tell Darrius about his allegation s against Cook

. Chance testified that he denied the allegations in front of Darrius “[b]ecause somebody else was outside that day” who did not “n eed to know”
about th e a buse and s aid instea d that Cook had only “whooped [him].” Both Fiona and Laura testified that Cook span ked Chance. According to Laura, with her permission, Cook hit Chance with a belt for “ showing out ” in church by playing with o ther boys during class

. Da rrius te stified th at he told Cook about his conversation with Fiona and Chance. According to Chance , Cook never touched him again after Fiona went to the church to speak to Darrius

. In spite of the allegations, t he eviden ce showed that Cook was a tr u sted family friend and that few believed Chance. Laura test ified that she did not believe Chance’s allegations because5

she knew Cook well and it was “not his character” and because the incidents allegedly occurred at her home. Darrius’s sister, Dolly , d e scribed Cook , who she had known since she was a little girl, as an honest, church

- going man. Chance’s great

- aunt, Lucille, also testified that Cook was an upstanding gentleman who m she had known for fifteen years and that he had never told a lie

. The o du s Luckett, II I, dir ecto r of fine arts at the school where Cook worked, testified that he had known Cook for fourteen years and had supervised him at work, and he described Cook as a phenomenal worker who had professional relationships with his students.
Laura , Darrius , and Lucill e al so believed that Co ok lacked an opportunity to abuse Chance at Laura’s home. Th ey testified that Cook was never left alone with Chance because there was always someone else at Laura’s home a fter church, that there was a cl e ar line o f sight into the li ving room from the kitchen, and that someone else would have witnessed the abuse had it occurred. Laura added that she only used the restroom when she first returned home from church before othe rs arrived and never used the re s tr oom whi le guests wer e in h er h ome. Darrius said he watche d television in the living room every Sunday that he was present and that, if Laura took a nap, she would sleep on the couch in the living room. Howeve r, Darrius also testified that he and the b i sh op w ere not present ever y Sunday a nd that Cook had arrived at Laura’s house before him on one or two occasions. Several family members also thought that Chance had been sexually abused by Fi ona’s husband, Tucker, although the testimony establish ed that h e had been and remained incarcerated duri ng the alleged in ci dent for domestic violence against Fiona. Laura testified that she believed Tucker had sexually abused Chance because she had always been suspicious o f him and because6

Chance had told he r that Tu cker had “messed with” him. Darrius als o testified that C ha nce did not make an allegation against Cook but made one against Tucker instead

. During cross

examination, Fiona, who was under susp icion of committing two felony offenses after Chance’s

a llega ti ons were reported, admitted that Tucker had recorded him se lf playi ng with his own bottom. However, Chance testified in front of the jury that Tucker did not inflict any abuse on him and that Cook was the only person who had sexually assaulted hi m . Never th eless, Laura opined that Chan ce had been coached by Fion a to make up the allegations against Cook because she w as “a liar , ” “ a manipulator , ” and “ just not right

. ” D arrius and Lucille, who described Fiona as “a liar, a sc hemer, and

. . . a trouble ma ker,” a greed with that

a ssessment. Dolly also testif ied that Fiona “ likes to lie and manipulate ” compulsively , that she had witnessed Fiona teaching Chance how to lie to obtain government benefits , and that Fiona had falsely ac cused her of sexually touc hi ng on e of her other sons

. To dis credit Chance’s outcr y , Laura mad e an audio recording of the child several months after the allegations. The audio recording showed that Laura repeatedly told Chance that Cook lo ved him and missed him. As a result of La ur a’s l ea din g questions, Chance denied th e alleg ations and s aid that Cook had only spanked him and that his “momma [was] the one that started it.” When Laura asked Chance if anybody had “messed with” him, Chance said that Tucker had. Yet, the Atlanta Po lice De partment arrested Cook after Chance sp oke with Jessic a Kelly, a forensic interviewer with the Texarkana Child ren ’ s Advocacy Center (CAC), who testified that Chance made three allegations of abuse

. Acco rding to Kelly, Chance said that “ somebody at7

c hurch h ad been touch ing him” and that “Cook had ma de him suck his little thing,” which looked like a crayon and “tasted nasty.” Kelly explained that “little thing” was Chance ’s term for penis. Kelly also te stified that Chance said that Cook had “ put hi s finge r in his bottom” an d that it felt hard “on the ins ide.” Kelly t o l d the jury that she looked for signs of coaching , deception, or manipulation but found “ nothing that made [ her ] believe that that child “ had been coached or had said something that he d id no t believe t o be true.” Kelly described the process of
gro o ming for the jury and explained that predators groom children, their families, and the community

. Kelly also testified that Laura’s recording of Chance , which showed the leading nature of
L au ra’s qu estions, a mounted to an improper intervie w that was not c apable of obtaining an unbiased statement. According to Kelly , Chance denie d having been sexually abused by anyone other th an Cook

. Jima Hicks, a sergeant with the Atlanta Police Departmen t, test if ied that, while there was no DNA evidence substantiating the allegations, he arrested Cook after Chance said during his CAC interview that his re ctum had been penetrated by Cook’s finger

. Kaleigh Dodson , Chance ’s licensed professional counselor, test if ie d t ha t she had many counselling sessions with Chance , who exh i bited signs of and was experiencing trauma

. Dodson reported that Chance said Cook had touched his private parts when he sho uld not have

. Dodson testified that Chance brought up Cook on his o wn du ri ng counse l ing sessions and that Chance never menti oned that anyon e else h ad touched him

. Dodson saw no red flags indicating deception, believed Chance was not faking the trauma symptoms , which were consistently present in his many counseling sess io ns , a nd did n ot think that Chance was being manipulated8

in to making a fal s e accusation. Dodson added that Chance , who had been held back one grade, “was definitely developmentally beh ind a 7

- year - old, even,” and would not have been able to sustain any d ec ep tio n over t ime given his intellectual stage. Cook, who had never been c onvicted or accused of a crime, testified in his defense. Cook said that Chance’s home life was horrible and that he felt that he needed stability in his life from a man that he c ou ld lo ok up t o . As a result, Cook acted as Chance’s caregiver and ro le model becaus e he was told that the child was not getting much care. He admitted that he spanked Chance on the bu ttocks, but claimed it was with his hand, not a belt. Cook told the j ur y tha t Laura was supportive of his role in Chance’s life

. Cook de nied the allega t ions, claimed that he was not sexually attracted to boys , and said that Darrius was present every ti me he went to Laura’s home. Cook, who had a doctorate in

e ducatio n an d wa s c er tified as a school principal , admitted that Chance had s lept in his bed with him twice but told the jury that he saw no problem with sleeping in t he same bed with a child that he was not related to. Cook opined that Fiona made up th e allegations be ca use h e had spanked Chance. In rebuttal, the State called Fiona ’s s ister, Arwin, a n d Fiona ’s mother, Georgia. Arwin
testified that , when Fiona brought Chance to speak with Darrius at the church, Chance was “scared and nervous

. . . [in] a way [she] had n ev er s e en him before.” Arwin testified that she believed Chance’s allegati on s , that the ch i ld would not lie about something so serious, and that she did not believe that he was coached. Arwin testified that Laur a talked with her about the allegations b ut w as mo s t concerned with Cook’s reputation , not Chance

. Georgia testified t hat9

Chance woul d not lie about the allegations against Cook and that she did not believe Fiona taught him to lie.
Af ter hearing all the conflicting evidence, the jury convicted C ook of th r ee counts of aggravated sexual assault of Chance.
B. Standard of Revi ew “In evalua t ing legal sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to determine whether any rational jury could have foun d t h e e ss e ntial elements of the offense beyond a reasonable doubt.” Williamso n v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkana 2019, pet. ref’d) (c iting Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia , 4 43 U .S. 3 0 7, 319 (1979); Hartsfield v.
State , 305 S.W.3d 859, 863 (Tex. App.

— T exark ana 2010, p et. ref’d)). “Our rigorous [legal sufficiency] review fo cuses on the quality of the evidence presented.” Id. (citing Brooks , 323 S.W.3d at 917

– 18 (Cochran, J., con c urr in g )). “We examine legal sufficiency under the direction
of the Brooks opin ion, while giving deference to the responsibility of the jury ‘to fa irly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic fac t s
t o u ltimate facts.’” Hooper v. State , 214 S.W.3d 9, 13 (Te x. Cr im. App. 2 0 07) (citing Jackson , 443 U.S. at 318

– 19; Clayton v. Stat e , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))

. “Legal sufficiency of the evidence is measured by the elements of the o ffe n se as defined by a hypothetically correct jury charge.” Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)

. “The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the law, is authorized by the indictme n t, does not unnecess ari l y i nc rease the State’s burden of proof or10

unne cessa rily restr i ct the State’s theories of liability, and adequately de scribes the particular offense for which the defendant was tried.’” Malik , 953 S.W.2d at 240

. In th i s case , the State alleged that Coo k i n ten ti onally or knowingly caused “the penetratio n of the anus of Chance Scallion (pseudonym), a child wh o was then and there younger than 14 years of age, by defendant’s finger.” See T EX
. P ENAL C ODE A NN
. § 22.021 (a)(1 ) (B). In companion cause number 06

- 20

- 000 02

- CR, the State alleged tha t Cook “intenti onally or knowingly caused ‘ the penetration of the mout h of Chance Scallion (pseudonym), a child who was then and there younger than 14 years of age, by the defendant’s s exual o rgan. ’ ” In companion cause n umb e r 0 6

- 20

- 00003

- CR, the State all eged that Cook intentionally or knowingly caused “the sexual organ of Chance Scallion (pseudonym), a child who was then and there younger than 14 years of age, to contact the mouth of the defendant.” 4
C. Analysis Chan ce, who w as younger than fourteen, testified (1) in support of Cook’s conviction in this case, that Coo k removed his pants and underwear and “ put his finger in [his] butt” ; (2) in support of Cook’s convi ction in 0 6

- 20

- 00002

- CR, that Cook “made [him] suck h is l itt le thing,”
which was soft a nd looked like a black crayon, w ith his mouth ; and (3) in support of Cook’s
conviction in 06

- 20

- 00003

- CR, that Cook “sucked [his] little thing.” Chance told the jury that the te r m “little thing” meant “what [he] used to g o to th e bathroom with

. . . number o ne.”

4 C ook has question ed the legal suf fic iency of the evi denc e in al l three cases. For the sake of judicial economy, we address whether the evidence was legally sufficient to supp ort Cook’ s convi ctions in the companion cases in this opinion

.11

Cook ar gues that the evidence is legally insufficient b ecause Chance’s testimony was not corroborated. However, corroboration of Chance’s testimony is not required because “ [t] he testimony of a child victim alo ne i s s uf ficient to support a convict ion for aggrava ted sexual assault

. ” Scott v. State , 202 S.W.3d 405, 408 (Tex. App.

— Texarkana 2006, pet. ref ’ d). As a result, Chance’s t estimony alone was legally s ufficient to establish each and every element of t he

o ffen ses a lleged by the State. Moreover, Ch ance’s allegations were corroborated

. Fiona te sti fied that Chance pointed to his penis and alleged that Cook sucked it , and acco rding to Hicks, Chance said during his CAC interview that Cook had penetrated C hanc e’s rec tu m with his finger

. Dodso n testified t hat Cha nce made allegations of sexual abuse against Cook during counseling sessions, and according to Kelly, Chance said Cook had put his “ hard ” fing e r “on the inside” of his bottom and made him suck Cook’ s pe nis, wh ic h looked like a crayon and “tasted na sty.”
Ev en so, Cook argues that the jury’s verdict was not rational due to conflicting evidence refuting the plausibility of Chance’s allegations an d implying the possibility of coaching by Fiona. In other wor ds, Coo k wants this Court to re - weigh the ev idence. H owever, “ [u] nder a legal sufficiency review, ‘our role is not to b ecome a thirteenth juror. This Court may not re

evaluate the weight and c r edibility of the record evidence and thereby substitute o ur j udgm ent f or that of the fact

- finder.’ ” Willi ams v. Sta te , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (quoting Dewberry v . State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). As the fact

- finder, i t

was the jury ’ s role to decide whether it believed Chance ’s t est imon y that Cook abused him at Laura’s hous e o r th e testimony addressing lack of opportunity. Because Darrius testified that12

there were occasions that Cook arrived at Laura’s house before him and Chance testified that the abuse happened when Laura w as u sin g th e restroom, the jury w as free to beli eve Cha nce. Given Kelly’s testimony about the statements Chance made in his CAC interview and Dodson’s testimony that Chance consistently referred t o Cook during counseling sessions, exhibit ed no signs of co achi ng, and lacked the in tellectual ca pa bility to sustain any deception over time, the jury was free to reject the speculati ve te stimony that Fiona had coached Chance. Because we find t h e evidence legally sufficient to support each of Cook’s convictions o f
ag gra vate d sexual a s sault, we over rule Co ok’s first point of error.
II. Cook Was Harmed b y the Admission of the Officer’s Direct Testimony of Chance’s Credibility Next, Cook arg u es that the trial court erred in allowing Hicks to testify about the

cr edib ili ty o f Chance ’ s allegations, as sho wn by the following exchange :

Q [The State ]

. . . . Why did you think that that CAC interview was sufficient to go forward ?
A That victim, I felt like that victim, of his age, gave a credible statement t hat

–

[ Def ens e At t orney ] : Objection, Your Honor. He’s not qualified to say that the victim’s statement is cre dible. Additionally, he’s not qualified to go into the det a ils of victim’s statement

. THE COURT: Any response? [ The St ate ] : This is the basis for his fo llow i ng ac tions. It’s ju st what formed hi s basis for continuing the case, Your Honor.

[ Defense Attorney ] : Judge, he can’t pass on the cr e dibility of a witness.13 THE COURT: The jury will be able to decide the credibil ity of the witness. That’l l be su stai n ed as to credibility. Y ou may continue. Q [ The State ]: Did you think the child was lying?
A No. [ Defense Attorn e y ] : Objection, Your Honor.
THE COURT: Overr uled. [ Defense Attorney ] : That’ s a comment on the credibility of the witness

. THE COU R T: Overru le d. A. Standard of Review
“We review a tri al court’s decision to admit or exclude evidence for an abuse of discretion.” Flowers v. State , 438 S.W.3d 96, 103 (Tex. App.

— Texarkana 2014, pet . ref’d) (citing Martinez v. State , 327 S.W.3 d 72 7, 736 ( Tex. Crim. App. 2010)). “ Abuse of dis cretion

occurs o nly if the decision is ‘so clearly wrong as to lie outside the z one within which reasonable people might disagree.’” Id. (quoting Taylor v. Stat e , 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) ) (ci ti n g Mo n tgomery v. State , 810 S.W. 2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)). “We may not substitute our own decisio n for that of the trial court.” Id. (citing Moses v.
State , 105 S.W.3d 622, 627 ( Tex. Crim. App. 2003)). “We will uphold an e vide nt i ary r uling if it
was correct on any theory of law applicabl e to the case.” Id. (citing De La Paz v. State , 279 S.W.3d 336 , 344 (Tex. Crim. App. 2009)).14

B. Admission of the Officer ’s Testimony Was Errone ous

“ The Texas Court of Criminal Appeals fo und th a t ‘ [ v ]irtually e very jurisdicti on which has addressed, in t he context of a child sexual assault case, the admissibility of direct testimony as to the truthfulness of the child compl ainant, has held that s uch direct testimony is inadmissible. ’ ” Full er v . S tate , 224 S.W.3d 823, 832 (Tex. App.

— Texarkana 2007 , no pet

. ) (quoting Yount v. State , 872 S.W.2d 706, 7 11 n.8 (Tex. Crim. App. 1993) ). In Yount , the Court of Criminal Appeals reas oned that “a direct op inion as to the truthfulness of a witness ‘cro sses
t h e li n e’ under Ru le 702 because it does more than ‘assist th e trier of fact to understand the evidence or to determine a fa c t in issue’ ; it decides an issue for the jury. ” Yount , 872 S.W. 2 d at
7 09 ( citing Duckett v. State , 797 S.W.2d 906, 914

– 15 (Te x . C ri m . Ap p . 199 0) , disapproved on other gro unds by Cohn v. State , 849 S.W.2d 817 , 819 (Tex. Crim. App. 1993 ) )

. This rule applies equally to exp ert and lay witness testimony. Brown v. State , 580 S.W.3d 755, 765 (Tex. App.

— Houston [14th Dist.] 2019 , pet. r ef ’d )

. A c cordi ngly, the trial court erred b y admitting Hicks’s opinion on wheth e r Chance was testifying truthfully

. C. The Admission of the Officer’s Testimony Affected Cook’ s Substantial Rights
A v iolation of an evidentiary rule constitute s “ non - const itut io n al [ e rror]

. . . and will be disregarded unle ss it affected the appellant ’ s sub s tantial rights.” Allen v. State , 436 S.W. 3d 815,
823 (Tex. App.

— Texarkana 20 14, pet

. ref ’ d) (quoting Bryant v. State , 282 S.W.3d 156, 161 (Tex. App.

— Texarkana 2009, pet . re f ’ d ) (q u oting Russ ell v. State , 155 S.W.3d 176, 18 1 (Tex. Crim. App. 2005)) )

. Thus , “we need not reverse if, after examining the record as a whole, we have fai r assurance that the error did not influence the jury ’ s deliberations to appellant ’ s15

detrime nt o r h a d b u t a slight effect.” Id. (citing Ladd v. St ate , 3 S.W.3d 547, 566 (Tex. Cri m . App. 1999) ; T EX
. R. A PP
. P. 44 .2(b) )

. In conducting our harm analysis on this issue , we may consider, among other things: (1) the strength of the evidence of the d efen da n t ’ s g uilt; (2) w hether the jury heard the same or substantially similar admissib l e evidence through another source; (3) the strength or weakness of [Hicks’s] conclusions, including whether [his] opinion was effectively refuted; and (4) whether the S tate d i r e ct e d the jury ’ s attention to [Hicks’s] testimon y during arguments. Sandoval v

. State , 409 S.W.3d 259, 293

– 94 (Tex. App.

— Austin 2013, no pet [.] ) (citing Co ble [ v. State ] , 330 S.W.3d [253,] 286

– 88 [ (Tex. Crim. App. 2010 ) ]

. Brown , 580 S.W.3d at 76 5

– 66 ( f indi n g harmless err or in officer’s testimony that th e victim was credible while the defendant was not). As for the first factor, though legally sufficient , the evidence of guilt was far from overwhelming. The trial court heard Chance’s testimony abo ut the a c ts, which wer e corroborated by Fiona and Kelly . Dodson testified that Chance exhibited signs of trauma and sexual abuse and identified Cook as the per petrator. Yet, Fiona, Kelly, and Dodson’s testimony all depended on the credibility of Chan ce’s a l lega t i ons. Considering the testimony from other

mem bers of the family who believed that Chance had been sexually abused by Tucker, we must conclu de that this first factor does not weigh in favor of finding harmless error. As for the second factor , we n o te t h at typically, “[e] rror in the improper admissio n of evidence is harmless if th e same or similar evidence is admitted without objection at ano ther point in the trial. ” Brown , 580 S.W.3d at 766

– 67 (citing Estrada v. State , 313 S.W.3d 274, 302

n. 29 ( Te x . Cr i m. App. 2010); Valle v. State , 109 S.W.3d 500, 5 09 (Tex. Crim. App. 2003) )

. He r e, while Kelly said that, during C h ance ’ s interview, “ there wa s nothing that made [her]16

believe that that child had been coached or had said something that he did no t be l ie ve t o be true , ” she clarified during cross

- examinatio n that she could not render an opinion on the child’s credibility. Though Dodson testif ied that she saw no signs of deception and did not believe
C h ance was faking his trauma or that he was manip ulat e d into making up alleg ations , her testimony did not cro ss the line of offering a dire c t opinion on Chance’s credibility

. While Arwin testifi ed that she did not believe Chance would lie about the allegations, that she believed Chance , and that she di d not th ink h e had b een coached , Co ok objected to the entirety of Ar win’s testimony on Ru l e 614 grounds

. Cook also lodged strenuous obje ctions to Georgia’s testimony about Chance’s credibility. As a result, we do not find that the s econd factor alleviated har m f ro m t he admission of Hicks’s testimony.
Consid ering the last two fa ctors , Hicks’s testimony on Chance’s credibility was short , but carried with it the weight of testimony from a peace officer who had been with the Atlanta Police Department for n inet e en y ea r s. In closi ng, the State posited that Ch ance’s CAC in te rview was “a credible statement.” The prosecu tor als o interjected h e r personal opinion into the trial and referred to Hicks’s testimony when she argued , “ [ T he State called Laura to testif y ] b e ca use I was so confident in [Chance’s] credible, clear statement, that there was nothin g [Laura ] coul d say that was going to undermine that . And i n fact, we got a whole lot that corroborated that. ” (Emphasis added)

. 5 The State’s last words to the j ury e mp hasi z ed the importance of the issue of Chance’s
credib ility when it argued,

5 “For a prosecutor to argue ou tside the record and in ject personal op inio n is im proper.” Boyd v. State , 643 S.W.2d 700, 706 (Tex. Crim. App. [Panel Op.] 1982); see Johnson v. State , 698 S.W.2d 15 4, 167 ( Te x. Cri m . App. 1985) ( “ The implication of special expertise coupled with an impli ed appeal to the jur y t o rel y on that e x per tise in deciding the contested issues before it is improper. ” ), superseded on other grounds by Mayes v. State , 816 S.W.2d 79 (Tex.17

It’s not go od enough to j ust say, “ I believe Chance. I believe something happened, but

-- . ” If you return a verdict of not guilty, you’re saying that Chance is lying, and you’ r e beli e ving that tainted, deceptive audio recording that [Laura] tried to pass off as the truth. I f you do that, you’re going to set a child molester free to prey upon other children.

. . . Wolves walk among us. We caught one. You need to call him what he is, guilty of aggravated sexual assault of a child

. In the context of ineffective assist ance o f counsel, this Court has found that counsel’s failure to object to an officer’s testimony about a child victim’s credibility resulted in prejudice
bec ause it ser v ed as “unchecked bolstering of the victim , ” w hich denied the defendant a fair trial. Fuller , 224 S. W.3d at 836 ; see Sessums v. State , 129 S.W.3d 242, 248 (Tex. App.

— Texarkana
2004 , pet. ref’d ) . Similarly, Chance’s credibility was the central issu e a t tr i al. While the jury was instructed that statem ents made by an d questions asked by counsel wer e not e vidence and that they were to resolve issues of “the believability of the witnesses and what weight to give their testimony,” those instructions per m it ted t he jury to consider Hicks’s inadmissible opini on in decidi ng the issue of Chance’s cred ibili ty

. Moreover, in cases like this where there is no physical evidence to support the charges , the jury must make its decision based solely upon credibili ty d e te rmin a tions. And in this case, the jury was not onl y called upon t o evaluate Chance’s credib ility , but also Cook’s credibility
and the credibility of competing witnesses presented by both sides

. Because an investigating officer is not directly alig ned w it h ei t her part y, his testimony carries an independen t quality not f ound in the other witnesse s . A nd , due to his position and experience investigating such cases , his testimony also carries an aura of reliability as well as the State’s imprimatur. A ccor d in gly,

Cr im . App. 1991); Irving v. State , 573 S.W.2d 5, 6 (Tex. Crim. App. [Panel Op.] 19 78 ) ; Ezernack v. Sta te , No. 06

- 19

- 00014

- CR, 2019 W L 3949964, at *2 (Tex. App.

— Texarkana Aug. 22, 2019 , no p et. ) (mem. op.)

.18

a llowing the investigating officer to give an opinion regard ing the child victim’s tr uthfu ln e ss in such cases carries a greater risk of harm than similar testimony by other witness es because it invites the jury to forego the difficult credibil i ty e v al uati o ns of competing witnesses and simply defer to the credibility opinio n of the one au thoritative witness not a ligne d w ith either side

. Twenty

- five years ago, the Court of Criminal Appeals acknowledged this very risk in Schutz v. State , where it note d , A ju ry would ex pect a moth er to testify that her son was truthful, and woul d likely view s uch testimony with nat ural ske pt i cism. On the other hand , the testimony of a police officer qualified as an expert on the investigation of sexual assault cases wo ul d lik ely carry e xcep tional weight and an aura of reliability which could lea d the jury to a bdicate its role in de terminin g [ the complainant’s ] credibility. Schutz v. State , 957 S.W.2d 52, 72 (Tex. Crim. App. 1997) (quoting Matter of G.M.P

. , 909 S.W.2d 1 98 , 206 (Tex. App.

— Hou ston [1 4 th Dist.] 1995, no pet.) (noting that , “in the ab sence of

concre te evidence, the jury may be un d uly inclined to rely upon the expert’s opinion on the issue
as to whether the sexual abuse occurred ”)). As noted by the Court of C ri minal Appeals, t he j ury in this case might have expect ed the various witness es for and agai nst the prosecution t o be bia se d in favor of the side presenting their testimony but give “exceptional weight and an aura of reliability” to Hicks’s testimony. By
p resen ting Hicks’ s te stimony and by emphasizing that testimony in final argum ent, the State gave the jury an oppo rtunity to forego making its own determination regarding the credibility of the witness es and defer to Hicks’ s more authoritative and independ en t tes timony that Cha nce

was being truthful. As a result, we do not have fair assurance that the State did not ess en tially

“ d ecid e [the] issue for the jury.” Yount , 872 S.W.2d at 709 (emph asis added)

. Stated differently,19

we do not have a fair assurance t hat t he trial co urt ’ s error in this case did not influence th e jury ’ s deliberations to Cook ’ s detriment or had but a slight effect

. W e s ustain this poi nt o f error. 6
IV. Conclusion
We reverse the judgment and remand the case for a new trial.

Ralph K. Burgess Just ice

DISSENTING OPINON I agree with the majority opinion’s conclusion that the trial court erred in admitting Officer Hicks’s te stimony about the child victi m’s credibility . Even so, because the record here included (1) the c hild’ s testimony abo ut the abuse from which the jury could ma ke its own credibility assessment and (2) unobjected

- to evidence from other wi tnesses about t h e child victim’s credibility, t he admission of Hick s ’s statement did not affect Cook’s substantial ri ghts

. As a resu lt, I respe ctfully dissent. The ma jority opinion correctly states that we consider the following factors in assessing harm from this non

- co nstitutional error: (1) the st rength of the evidence of the defendant ’ s guilt; (2) whether the j ur y hea rd the same or substan tially similar admissible e vidence through another source; (3) the strength or weakness of [Hicks’s] conclusions, including wheth er [his]

6 Because the issues we address are dispositive, we do not address Cook ’ s Batson or ineffective assistance of counsel issues.20

opinion was effectively refuted; and (4) whether the State directed the jury ’ s attention to [Hic ks’s] testi mony during arguments. Brown v. Sta te , 580 S.W.3d 755, 765

– 66 (Tex. App.

— Houston [14th Dist.] 2019 , pet. ref’d). (finding harmless error in offic er’s testimony that the victim was credible while the defendant was not). My considerati on of t hese factor s le ads to the conclusion that the err or in admitting Hick s ’s testimony about Chance’s credibility did not affect Cook ’ s substant ial rights. T h i s is because , “ [e] ven in cases i n which credibility is paramount, Texas courts have fou nd har ml ess

e rror when t he i nadmiss ible expert testimony w as only a small portion of a large amount of evidence presented that the jury could have conside red in assessi n g the victim ’ s credibility.” Id

. (quoting Barshaw v. State , 342 S.W.3d 91, 96 (Tex. Cr im. Ap p. 2011 ) )

. Our conc lusion that the evidence was l egally sufficient supports a finding that this non constitutional error was harm less

. Chance testified about th e acts of sexu a l abuse , and t he jurors, who witness ed his testimony , w ere in the best positi on to a ssess his c redi bility. Chan ce’s testimony was corroborated by Fiona and Kelly , and Dodson said Chance had identified Cook as the perpetrator. While the majority opinion discou n t s this corroborating evidence b ecause “Fiona, Kelly, and Dodson’s test im ony a ll depended on the cre dibili ty of Chance’s allegations,” Dodson also testified that, based on her experience, Chance exhibited signs of trauma and sexual abuse. M embers of the f a mily also believed that Chance had been sexually abused, but they plac ed the blame on Tu cker . The majori ty opinion cites to this evidence but wholly ignores Chance ’s denial of being abused by Tucker . Instead, Chance told the jury that Coo k was the21

only p erson who had abused him. As a result, I find that this first factor we igh s slightly in fav or of f inding harmless error. In assessing the second factor, the majority correctly notes that error from the admission of testimony is harmless if similar tes t i mony is admitted without object ion. Brown , 580 S.W.3d
at 766 ; see Val le v. S tate , 109 S .W.3 d 500, 509 (T ex. Crim. App. 2003) (“An error in the
admission of evidence is cured where the same evidence comes in elsewhere without objection.”); Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“[O]verruling an object ion t o evi dence will not result in rev ersal when other such evidence was received without objection, either before or after the complained

- of ruling.”) )

. Here, several witn esses testifie d about Chance’s credibility. La ura testified that , even though she dis be lieve d Chance’s
alle gations again st Cook, she beli e ved that Chance wou ld tell the judge and jury the truth

. Kelly said that, during C h ance ’ s interview, “ there was noth ing that made [he r] believe that that child had been coached or had said something tha t he di d not belie ve t o be tr u e .” Dodson testified that she saw no signs of deception and did not believe C h ance was faking his trauma or that he was manipulated into ma king up allega t i ons . Also, Arwin testified tha t she did not believe Chan ce would lie ab out t he allegati ons, that s h e believed Chance , and that she did not think he had been coached

. 7 As a result, the second factor weighs heavily in favor of finding no har m. See Sandov a l v State , 409 S.W.3d 259, 29 4 ( Tex. App.

— Austin 2013, no pet.)

.

7 In seeking to de

- emphasiz e t his t estimony, t he m a jor ity simply writes that Cook objected t o the entirety of Arwin’s testimony bas ed on Rule 614 of the Texas Rule s of Evidence , the witness sequestration rule, but fails to explain how such an objection could preserve any complaint t hat t he witness was tes tifying about the child’s credibility a fter the trial c ourt overruled the Rul e 614 objection. Had the majority opinion addressed the point of error raised, the law would le a d to the conclusion that the trial court did not abuse its dis cr eti on in admit t ing Arwin’ s testimony because she was neit her listed nor e xpected to be a witnes s. See Guerra v. State , 771 S.W.2d 453, 474 (Tex. Crim. App.22

Cons ide ring the third f acto r, Hick s ’s testimony on Chance’s credibility was not particularly strong given his short answer and the existence of other evidence that the Atlanta Police Depart m e nt found Chance’s statement to be cre dible, such as the testim ony of O ff icer Greg Restel le, who tes tified that Cook was arrested because of Chance’s CAC interview. See
Brown , 580 S.W.3d at 767 (citing Sandoval , 409 S.W.3d at 295) (finding of ficer’s t estimo ny regarding credibility not par ticularly strong because “[g] iven th at he fo rwarded thi s ca se to t he district attorney ’ s office for prosecution after his investigation, one could logically assume that he found [victim] credible, her allegati ons tru th ful, a nd believed appellant was guilty of committing this sexual assault ”) )

. The strength of Hic ks’s te stimony was further lessened by the testimony of the family members who said they did not believe the allegations.
As for the last factor, th e State d id not mention Hicks’s testimony in cl osing argument. Instead, the State foc used on Chanc e’s tes timony and the consistent nature of his allegations made to Fiona, Kelly, and Dodson. Also, t he jury was instructed on the pre sumption of Cook’s
inno cence a nd the r equirement that the State prove every element of the offense beyond a

r eason able dou bt. Th e jury was also instructed that statements made and questions asked by counsel were not evidence and that they were to resolve issues of “the believab ility o f the wi tnesses and what weight to give their testimony.” After hearing Coo k’s test imony an d

o bser ving hi s demeanor, in conjunction with all the other evidence admitted at trial, the jury reasonably could have decided on its own that Chance was cre dible. S ee Brown , 580 S.W.3d at
767 ( “ holding tria l court ’ s error in admitting psy cho logis t ’ s test imo ny r egardin g children ’ s
1988); Harris v. State , 122 S.W.3d 871, 882 (Tex. App.

— Fort Worth 2003, pet

. ref’d); Loven v. Sta te , 8 31 S.W.2d 3 87 , 3 99 (Te x. App.

— Amarillo 1992, no pet.).23

truthfulness did not affect defendant ’ s substantial rights when the testimony was not calculated to inflame jury ’ s emotions, substanti all y similar te stimony was allowed without obje ction, jury charge instructed ju ry that it was t he sole judge of credibilit y of witnesses, and jury heard complainant provide detailed account regarding defendant ’ s sexual assault ” ) (citing Flores v.
State , 51 3 S .W .3d 146, 1 71

– 72 (Tex. App.

— Houston [14th D ist.] 2016, pet. ref ’ d) )

. A fter re viewi ng the e nti re r ecord, I have fair assurance that the error in the admission of Hicks’s opinion on Chance’s credibility either had no influence on the jury ’ s deliberation s o r had such a slight effect that it was imper ceptible. As a result, I wo uld aff irm t he trial co urt’ s judgm ent.

Scott E. Stevens Justice Date Submitted: November 23, 2020 Date Decided: October 20 , 2021 Publish