James Anthony Kirvin v. State ( 2014 )

Reversed and Remanded and Opinion Filed August 28, 2014
S 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 indecency with a child by sexual contact, one
conviction of aggravated sexual assault of a child, and one conviction of attempted indecency
with a child by sexual contact. A jury convicted appellant, and the trial court sentenced him to
fifteen years’ confinement, eight years’ confinement, and thirty-five years’ confinement,
respectively. In three points of error, appellant contends (1) the trial court erred in allowing
testimony from a second outcry witness for one child complaining witness, (2) the trial court
erred in allowing the State to present evidence and testimony concerning the credibility of the
two child complaining witnesses over defense objection, 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 trial court’s judgment and remand for a new trial.
Appellant was indicted in March 2011 as having 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 sexual 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 sexual 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 cream 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] hand 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 want 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
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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 happened at Pamela’s house. Wright testified
[M.G.] told her that [appellant] “was in the bathroom with the robe on. And he asked [M.G.] and
[A.S.] if they wanted to pet his puppy.” She stated 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 witness for M.G. regarding the
indecency with a child by exposure charge. That same month, M.G. also met with Grayson
County Children’s Advocacy Center program director 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 testified 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 further testified to the incident described in Count 3 by stating that,
while she and M.G. were sleeping, appellant came into the room and “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 determining 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 abuse of that discretion is established by the
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record. Id.; Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (trial court
abuses its discretion when its ruling is outside “zone of reasonable disagreement”).
The outcry testimony of a child victim is hearsay 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 admission of a hearsay statement made to an outcry
witness by certain abuse victims, including child victims of a sexual offense. TEX. CODE CRIM.
PROC. art. 38.072, § 2(a); Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). The
outcry witness is the first person over the age of 18, other than the 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 only 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 must 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 victim's out-of-court statement is “reliable.” Id. at
484-485. The victim must either testify or be available to testify at this hearing. Id. at 485.
The record clearly shows that the court below 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
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reliable. The record also shows the court held a 38.072 hearing for outcry witness Wieck and
found the statements she referred to were reliable. Furthermore, each outcry witness testified to
a different event, thus complying 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 this argument, appellant quotes only a portion of
Wright’s testimony in which she stated, “[M.G.] told 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 clarification, “Okay. But he was trying to is what
she told you.” Wright responded, “Yeah, he was trying to when she said she pulled back.”
Thus, Wright was the proper outcry witness regarding the indecency with a child by exposure
charge. Moreover, Wieck testified that M.G. told 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 erred in allowing, over objection,
evidence and testimony from Denison Police detective Robbie Carney and Wieck concerning the
credibility of the two child complaining witnesses. 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 overruling his counsel’s objection 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 testified “it adds a little bit more to their honesty
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. . . two victims [whose] reporting and outcries are the same . . . makes the case more believable”
when asked of the significance of having two victims 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 figures in their lives.
Appellant further argues the trial court incorrectly overruled his counsel’s objection to
Wieck’s testimony that she found M.G. to be consistent. 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 contact . . . they’re uncomfortable talking
to me.” She also stated that she goes “back and forth” to make sure “[the children] are giving
consistent answers.” The State asked Wieck whether she found “what M.G. told [you] to be
consistent.” Appellant objected that the question invaded the province of the jury. The trial
court overruled the objection. Wieck answered, “she was consistent and did 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 words 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 prosecutor asked Wieck if a child had 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 described, and neither of the girls appeared to be
exaggerating any of their story.
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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 cautioned 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 truthfulness 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 province of the jury to reconcile 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 free 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 exhibited by sexually abused children and describing how the
complainants’ behavior was consistent with those behavioral characteristics 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 truthful, 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 foreclose 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 truthful is not expert testimony of the
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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 concerning 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 cannot testify as to
whether a person is telling the truth but finding appellant’s substantial rights were not affected
where record showed, among other things, appellant 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 publication) (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 dispute, 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 specifically 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 the 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 truthfulness of M.G. was error.
Pursuant to Texas Rule of Appellate Procedure 44.2(b), a non-constitutional error must
be disregarded unless it affects the defendant’s substantial rights. Barshaw v. State, 342 S.W.3d
91, 93 (Tex. Crim. App. 2011); TEX. R. APP. 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.
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App.—Dallas 2002, no pet.). This Court will not overturn a criminal conviction for non-
constitutional error if the appellate court, after examining the record as a whole, has fair
assurance that the error did not influence the jury, or influenced the jury only slightly. Barshaw,
342 S.W.3d at 93. Important factors that are considered include the nature of the evidence
supporting the verdict, the character of the alleged error and how it might be considered in
connection with other evidence in the case, and 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 physical 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 appellant’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 were no instructions in
the court’s charge to explain how the jury was to use the expert’s testimony. One of the core
roles of a jury is to assess the truthfulness of the testimony it hears. 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 telling the truth. We conclude 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 disposition of appellant’s second issue, we need not
address appellant’s third issue.
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We reverse the trial court’s judgment and remand for a new trial.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130332F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES ANTHONY KIRVIN, Appellant On Appeal from the 59th Judicial District
Court, Grayson County, Texas
No. 05-13-00332-CR V. Trial Court Cause No. 060407-59.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices O'Neill and Brown participating.
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for a new trial.
Judgment entered August 28, 2014
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