Reversed and Remanded and Opinion Filed August 28, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-00332-CR JAMES ANTHONY KIRVIN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. 060407-59 

### MEMORANDUM OPINION Before Justices Bridges, O'Neill, and Brown Opinion by Justice Bridges James Kirvin appeals one conviction of inde cency with a child by sexual contact, one conviction of aggravated sexual assault of a ch ild, and one conviction of attempted indecency with a child by sexua l contact. A jury convicted appellant, and the trial court sentenced him to fifteen years’ confinement, eight years’ conf inement, and thirty-five years’ confinement, respectively. In three points of error, appell ant contends (1) the trial court erred in allowing testimony from a second outcry witness for one ch ild complaining witness, (2) the trial court erred in allowing the State to present evidence and testimony c oncerning the credibility of the two child complaining witnesses over defense object ion, and (3) his trial counsel was ineffective for failing to object to multiple State witnesses testifying regarding the credibility of the two child complaining witnesses. We reverse the tr ial court’s judgment and remand for a new trial.–2– Appellant was indicted in March 2011 as ha ving engaged in ten counts of sexually based offenses. The State proceeded with Counts 1, 2, and 3 only, as follows:
COUNT 1 with the intent to arouse or gratify the sexual desire of said defendant, cause M.G., a child younger than 17 years, to engage in sexual contact by causing the said M.G. to touch the genitals of the defendant, COUNT 2 with the intent to arouse or gratify the se xual desire of said defendant, cause A.S., a child younger than 17 years, to engage in sexual contact by causing the said A.S. to touch the genitals of the defendant, COUNT 3 intentionally or knowingly cause the sexua l organ of A.S., a child who was then and there younger than 6 years of age, to contact the mouth of the defendant,

M.G. is the victim described in Count 1, whereas A.S. is the victim described in Counts 2 and 3. They are distant cousins who went to the home of A.S.’s grandmother, Pamela Snell, to play and spend the night on or about July 4, 2009. At the time, they were both under the age of six. M.G.’s grandmother, Charlene Wright, is a sister of Pamela’s mother, Barbara Snell. Appellant was living with Pamela at the time. M.G. testified she went to Pamela’s house to visit with A.S. and spend the night. M.G. stated that she and A.S. asked Pamela for ice cr eam before Pamela left to go to the store, and Pamela told her to ask appellant. M.G. and A.S. went looking for appellant in the bathroom. M.G. testified appellant was “out of the shower and going to get his robe and he came out of the shower naked” and that he “told [her] to come here” and “pulled [her] ha nd and made [her] touch his privacy area.” Using a naked doll, the State had M.G. point to where a man’s “privacy area” is and confirm that it is “what a boy uses to go pee pee.” M.G. further testified she pulled her hand away from appellant because she “didn’t wa nt to touch it,” and afterward appellant told A.S. to “come here,” and then “pulled her hand and tried to make her touch it” but “she yanked it–3– away from him.” M.G. proceeded to tell Pamela what generally happened and stayed the night. The next day, Pamela took M.G. home to her grandmother, Wright. M.G. later explained to Wright what happe ned at Pamela’s house. Wright testified [M.G.] told her that [appellant] “was in the bath room with the robe on. And he asked [M.G.] and [A.S.] if they wanted to pet his puppy.” She st ated that M.G. affirmed “puppy” was “the private part.” Wright also testified that M.G. told her appellant “exposed his self” and “was putting [M.G.’s and A.S.’s] hands on his balls.” Wright clarified appellant “was trying to when [M.G.] said she pulled back.” Thus, Wright was the first outcry w itness for M.G. regarding the indecency with a child by exposure charge. Th at same month, M.G. also met with Grayson County Children’s Advocacy Center program dir ector Bobbie Wieck, who interviewed her about the alleged sexual abuse. During the interview, M.G. made an outcry to Wieck regarding the indecency with a child by contact charge. Wieck testified that M.G. told her appellant “pulled her by the arm and had [M.G.] touch his butt,” which referred to his penis. The other child complainant, A.S., also tes tified appellant “got out of the shower and asked us to touch his privacy part and we said no, and he got [M.G.’s] hand and was trying to make her touch it.” She stated M.G. “touched it a little bit and he tried to get [A.S.’s] hand, but [A.S.] didn’t touch it.” She furt her testified to the incident desc ribed in Count 3 by stating that, while she and M.G. were sleeping, appellant came into the room a nd “got [A.S.] out of the bed and sat [her] on his lap and it felt like a cat licking [her].” In his first issue, appellant contends the trial court erred in allowing Wieck to testify as a second outcry witness for the child complainant (M .G.), in addition to the first outcry witness, Wright. A trial court has broad discretion in de termining the admissibility of the proper outcry witness. Garcia v. State , 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). The exercise of that discretion will not be disturbed unless a clear a buse of that discretion is established by the–4– record. Id .; Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim . App. 1990) (trial court abuses its discretion when its ruling is outsi de “zone of reasonable disagreement”). The outcry testimony of a child victim is hear say when it is offered for the truth of the matter asserted. Dorado v. State , 843 S.W.2d 37, 38 (Tex. Crim. App. 1992). However, it is admissible if it falls within an exception to the hearsay rule. Id . Article 38.072 of the Texas Code of Criminal Procedure allows the admissi on of a hearsay statement made to an outcry witness by certain abuse victims, includi ng child victims of a sexual offense. T EX
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. P ROC . art. 38.072, § 2(a); Lopez v. State, 343 S.W.3d 137, 140 (Tex. Cr im. App. 2011). The outcry witness is the first person over the age of 18, other than th e defendant, to whom the child spoke about the offense. Lopez , 343 S.W.3d at 140. To qualify as a proper outcry statement, the child must have described the alleged offense in some discernible way that is event-specific rather than person-specific and must be “more than words which give a general allusion that something in the area of child abuse is going on.” Id . (citing Garcia , 792 S.W.2d at 91). Multiple outcry witnesses are permissible, but on ly if they testify about different events. Id

. Article 38.072 has additional requirements that must be met before an outcry witness may testify. Sanchez v. State , 354 S.W.3d 476, 484–85 (Tex. Crim. App. 2011). At least 14 days before the trial on the merits begins, the State must notify the defendant of its intention to call an outcry witness, who mu st be identified. Id . at 484. The State must provide a summary of the outcry statement that will be offered into evidence. Id . Furthermore, the trial court must hold a hearing outside the presence of the jury to determine “based on the time, content, and circumstances of the statement” whether the vi ctim's out-of-court statement is “reliable.” Id . at 484-485. The victim must either testify or be available to testif y at this hearing. Id . at 485. The record clearly shows that the court be low held a 38.072 hearing outside the presence of the jury for the first outcry witness, Wright, and found the statements made by M.G. to be–5– reliable. The record also shows the court he ld a 38.072 hearing for outcry witness Wieck and found the statements she referred to were reliable. Furthermore, each outc ry witness testified to a different event, thus comp lying with article 38.072. Appellant argues Wieck should not have been allowed to testify because M.G. “first made an outcry involving her physically touching Appellant when she told Wright that Appellant made her touch his balls.” In support of th is argument, appellant quotes only a portion of Wright’s testimony in which she stated, “[M.G.] to ld me that -- the only thing she told me was when he exposed his self and brought – had their hands and he was putting their hands on his balls.” Immediately after, the State asked for cl arification, “Okay. But he was trying to is what she told you.” Wright responded, “Yeah, he wa s trying to when she said she pulled back.” Thus, Wright was the proper outcry witness re garding the indecency with a child by exposure charge. Moreover, Wieck testified that M.G. to ld her “[appellant] pulled [M.G.] by the arm and had her touch his butt,” confirming that “butt” was the victim’s “child word” for penis. Wieck was speaking to a different event; therefore, her testimony was admissible because she was the proper outcry witness regarding the indecency with a child by contact charge. Accordingly, we overrule appellant’s first issue. In appellant’s second issue, he argues the trial court erre d in allowing, over objection, evidence and testimony from Deni son Police detective Robbie Carn ey and Wieck concerning the credibility of the two child complaining witn esses. Carney was assigned the case when contacted by Child Protective Services. Carney assisted with setting up forensic interviews between the child victims and Wieck, observed the interviews, and also interviewed appellant. Appellant argues the trial court erred in overru ling his counsel’s objecti on to the admission of part of Carney’s interview with appellant in which Carney notes the complainants “told him things that could not be misconstrued.” Carney te stified “it adds a little bit more to their honesty–6– . . . two victims [whose] reporting and outcries are the same . . . makes the case more believable” when asked of the significance of having two vic tims making claims against appellant. Carney testified that several victims getting together and planning the complaints was not behavior typical for four-year-olds and confirmed that it was atypical for them to tell the same story to different authority fi gures in their lives. Appellant further argues the trial court incorrectly overrule d his counsel’s objection to Wieck’s testimony that she found M.G. to be c onsistent. In response to the State’s question about how to determine whether a child is lying or not, Wieck testified, “A lot of times when a child is lying they aren’t consistent . . . don’t make eye c ontact . . . they’re uncomfortable talking to me.” She also stated that she goes “back an d forth” to make sure “[the children] are giving consistent answers.” The State asked Wieck wh ether she found “what M.G. told [you] to be consistent.” Appellant objected that the question invaded the prov ince of the jury. The trial court overruled the objection. Wieck answered, “s he was consistent and di d not seem to be lying to me.” Wieck also described how to identify coached children by finding inconsistencies in their stories and a lack of sensory details. Wieck testified that few children have lied to her in the context of many interviews and described the things she looks for to “determine if a child is lying or not.” Wieck testified, “A lot of times when a child is lying they use word s that are beyond their age capability.” In such cases, Wieck asked the child to “go back through the incident more than one time to make sure that they’re consistent.” The pr osecutor asked Wieck if a child ha d more difficulty than an adult in being consistent with a lie, and Wieck answered, “Yes, because they forget what they said previously.” Wieck also testified she did not have concerns about A.S. being coached, A.S. used sensory words to describe the events she descri bed, and neither of the girls appeared to be exaggerating any of their story.–7– A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Torres v. State , 71 S.W.3d 758, 760 (Tex. Crim . App. 2002). An appellate court will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Id. The court of criminal appeals has cautione d that expert testimony which assists the jury in determining an ultimate fact is admissible, but expert testimony which decides an ultimate fact for the jury, such as “a direct opinion on the trut hfulness of the child,” crosses the line and is not admissible under Rule 702. Yount v. State , 872 S.W.2d 706, 708 (Tex. Crim. App. 1993). The jury is the exclusive judge of the credibility of the witnesses and the weight to give their testimony, and it is the exclusive pr ovince of the jury to reconcil e conflicts in the evidence. Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State , 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (appellate court must give deference to jury’s determination of weight and credibility of a witness’s testimony). The jury is fr ee to accept or reject any part of a witness’s testimony. Wesbrook , 29 S.W.3d at 111. The court of criminal appeals has held that a State expert’s testimony identifying certain behavioral characteristics e xhibited by sexually abused child ren and describing how the complainants’ behavior was consistent with thos e behavioral characteri stics is admissible.
Yount , 872 S.W.2d at 709 (quoting Cohn v. State , 849 S.W.2d 817, 819 (Tex. Crim. App. 1993)). An expert witness may not testify that a witness is trut hful, but an expert may testify that the child exhibits symptoms consistent with sexual abuse. Cohn , 849 S.W.2d at 818-19. Also, evidence regarding manipulation or fantasy is distinguishable from direct comments on truthfulness because such evidence does not forecl ose the possibility that the child witness may be lying. Schutz v. State , 957 S.W.2d 52, 68 (Tex. Crim. App. 1997) . Still, expert testimony that a particular class of persons to which the victim belongs is truthf ul is not expert testimony of the–8– kind that will assist the jury, and is thus inadmissible. Barshaw v. State , 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Wiseman v. State , 394 S.W.3d 582, 587-89 (Tex. App.–Dallas 2012, pet. ref’d) (trial court erred in admitting expert testimony conc erning truthfulness of class of persons to which complainant belonged, i.e., children alleging sexual abuse); Wilson v. State , 90 S.W.3d 391, 392-94 (Tex. App.–Dallas 2002, no pet.) (recognizing expert ca nnot testify as to whether a person is telling the truth but finding a ppellant’s substantial ri ghts were not affected where record showed, among other things, appella nt impregnated eleven-year-old daughter and fled the state); Tran v. State , No. 05-10-00621-CR, 2012 WL 1194102 (Tex. App.–Dallas April 11, 2012, no pet.) (mem. op., not designated for pub lication) (appellant’s substantial rights affected where expert permitted to testify it has been scientifically proven that children tell the truth except in few instances where custody disput e, mental health issue, or adult coaching is involved). Wieck’s testimony that M.G. “did not seem to be lying” constituted a direct opinion on M.G.’s truthfulness. Further, the prosecutor sp ecifically asked multiple times how Wieck could tell if a child was lying. Weick testified that neither M.G. nor A.S. exhibited behaviors that would indicate they were lying. To the extent the prosecutor asked Wieck about “consistency,” or being “consistent,” the record is clear th e prosecutor meant consistent with lying, not consistent with behaviors exhibited by a victim of sexual assault. We conclude the admission of Wieck’s testimony relating to the tr uthfulness of M.G. was error. Pursuant to Texas Rule of Appellate Pro cedure 44.2(b), a non-cons titutional error must be disregarded unless it affects th e defendant’s substantial rights. Barshaw v. State , 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); T EX
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. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. See Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Wilson , 90 S.W.3d 391, 393 (Tex.–9– App.—Dallas 2002, no pet.). This Court will not overturn a crimin al conviction for nonconstitutional error if the appellate court, af ter examining the record as a whole, has fair assurance that the erro r did not influence the jury, or in fluenced the jury only slightly. Barshaw , 342 S.W.3d at 93. Important fact ors that are considered include the nature of the evidence supporting the verdict, the character of the alle ged error and how it might be considered in connection with other evidence in the case, an d may include whether the State emphasized the error and whether overwhelming evidence of guilt was present. Bagheri v. State , 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). Here, the evidence consisted of M.G.’s and A.S.’s testimony and the outcry witness testimony, including Wieck’s testimony. There is no phys ical evidence of abuse in this case. This is not a case where a confession or some piece of physical evidence makes it easy to conclude that an unrelated error did not affect ap pellant’s rights. The evidence in this case was not so powerful that we can have a fair assurance that appellant’s substantial rights were not harmed. Barshaw , 342 S.W.3d at 93. Further, the State, in focusing its inquiry on how to tell if the child witnesses were lying and whether Wieck believed they were lying, emphasized the error far beyond a single, unsolicited reference to “lying.” On the contrary, the State repeatedly sought Wieck’s opinion on how to tell when children were lying. There we re no instructions in the court’s charge to explain how the jury was to use the expert’s test imony. One of the core roles of a jury is to assess the truthfulness of the testimony it h ears. Wieck’s testimony invaded the province of the jury in a fundamental way by putting the weight of expert opinion behind the conclusion that the complaining witnesses were tel ling the truth. We concl ude the error in this case affected appellant’s substantial rights and was therefore harmful. See id. We sustain appellant’s second issue. Because of our dispos ition of appellant’s second issue, we need not address appellant’s third issue.–10– We reverse the trial court’s judgment and remand for a new trial.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JAMES ANTHONY KIRVIN, Appellant No. 05-13-00332-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 59th Judicial District Court, Grayson County, Texas Trial Court Cause No. 060407-59. Opinion delivered by Justice Bridges. Justices O'Neill and Brown participating. Based on the Court’s opinion of this da te, the judgment of the trial court is REVERSED and the cause REMANDED for a new trial.
Judgment entered August 28, 2014