Date: 03-18-2016

Case Style: Larry Lee Poor v. The State of Texas

Case Number: 11-14-00090-CR

Judge: John M. Bailey, Mike Willson, Jim R. Wright

Court: In The Eleventh Court of Appeals

Plaintiff's Attorney: Michael Bloch, R. N. (Bobby) Bland

Defendant's Attorney: Lane Haygood

Description: In a single issue, Appellant argues that the trial court abused its discretion when it allowed the investigating detective to give an opinion as to Appellant’s truthfulness during his interview with police. We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is outside the “zone of reasonable disagreement.” Id. A witness’s direct opinion on the truthfulness of another witness is inadmissible. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Yount v. State, 872 S.W.2d 706, 711–12 (Tex. Crim. App. 1993) (op. on reh’g); Arzaga v. State, 86 S.W.3d 767, 776 (Tex. App.—El Paso 2002, no pet.). A witness’s expert opinion on the truthfulness of a criminal defendant during an investigation is also inadmissible. See, e.g., Day v. State, Nos. 05-99-00368-CR, 05-99-00369-CR, & 05-99-00370-CR, 2001 WL 1674224, at *10 (Tex. App.—Dallas Jan. 4, 2002, pet. ref’d) (not designated for publication) (holding that police officer’s testimony in which he opined, based on his lengthy experience as a police officer, about the truthfulness of a criminal defendant during an investigation was improperly admitted); Wilks v. State, No. 07-99-0089-CR, 2000 WL 290281, at *2–3 (Tex. App.—Amarillo Mar. 16, 2000, pet. ref’d) (not designated for publication) (holding that detective’s testimony regarding the defendant’s truthfulness during his interview with police was improperly admitted). Here, the prosecutor asked Detective Shelly Bates Stanford, “And from your experience, how do you feel what -- that the Defendant was being truthful?” Defense counsel objected on the ground that the detective was not qualified to give such an opinion. The trial court overruled the objection and asked the prosecutor to repeat the question. The prosecutor then asked, “From your contact with all different kinds of suspects, is the behavior that he had during the interview, does that mean he was being truthful with you?” Detective Stanford responded, “During the course
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of my investigation and my interview with [Appellant], I felt like he was not being fully truthful about the incident that had occurred.” Over defense counsel’s continued objections, Detective Stanford explained that her reasoning was based on the fact that “his statements were not consistent throughout the investigation.” Detective Stanford then listed the inconsistencies. In response to the prosecutor’s questions, Detective Stanford directly commented on Appellant’s truthfulness during his interview with the detective. Detective Stanford’s opinion that Appellant was “not being fully truthful” was inadmissible testimony. Therefore, the trial court erred when it overruled Appellant’s objection. Having determined that the trial court erred, we must now determine whether the error is reversible under TEX. R. APP. P. 44.2(b), which applies to nonconstitutional errors. Pursuant to Rule 44.2(b), an error is not reversible error unless it affects a substantial right of the defendant. A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury’s verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An accused’s substantial rights are not affected by the erroneous admission of evidence if the court, after examining the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Appellant contends that the error was harmful for several reasons, including that the “entire case turned on the simple question of whether the jury believed M.H. or disbelieved Appellant’s version of events recounted in his pre-trial statement.” In its brief, the State claims that its “theme throughout the trial was credibility; whether the jury should believe [M.H.] or Appellant. The jury chose to convict Appellant and assess him the maximum sentence.” The State argues that the error was harmless
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“because it merely emphasized the obvious -- given that the detective forwarded this case to the district attorney’s office for prosecution after her investigation, the jury could logically assume that she did not believe Appellant’s purportedly exculpatory assertions to be truthful.” The State also asserts that the error was harmless because the members of the jury were reminded on multiple occasions that they were the judges of the credibility of the witnesses. The members of the jury were indeed reminded throughout voir dire and trial that they were the sole judges of the credibility of the witnesses and that they would have to determine whether they believed Appellant or M.H. in order to reach a verdict. During voir dire, the prosecutor told the jury that “[o]ne of the biggest responsibilities of a juror is to judge a witnesse’s [sic] credibility.” He emphasized that the jury was “the sole judge of the credibility,” and he informed them, “I can’t tell you who to believe and [defense counsel] can’t tell you who to believe, and the Judge can’t tell you. It is up to you. You can believe everything, nothing or parts of it.” However, the prosecutor also had the following exchange with a prospective juror: [PROSECUTOR]: [H]ow about police officers? Would you say they are credible?
JUROR: Yes.
[PROSECUTOR]: Would you believe a police officer over an ordinary witness?
JUROR: Yes.
[PROSECUTOR]: Why?
JUROR: Because they are the law and they know what is right.
[PROSECUTOR]: They are trained. Their training, maybe?
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JUROR: Uh-huh.
[PROSECUTOR]: They are kind of trained to look at things in a different way, would you agree?
JUROR: Yes.
[PROSECUTOR]: Now by that same token, they are human, right?
JUROR: Yes, sir.
[PROSECUTOR]: They are not perfect?
JUROR: No.
[PROSECUTOR]: They are going to make mistakes, possibly?
JUROR: I would agree.
In addition, the prosecutor stated, “And just like if I call the witness and they get up there wearing a raggedy old [T]-shirt and cutoff jeans or something, you may initially think, I don’t know if I want to believe this witness.” The prosecutor continued, “As opposed to an officer, who is dressed in his blues. Is that fair to say? So it is just like any witness, they are going to take all those things into account.” The prosecutor also explained that there would not be many witnesses in this case, that it could be a situation where one person says it happened and one person says it did not happen, and that the case would come down to whom the jury believed. During opening statements, the prosecutor asked the jury to “keep in mind what we talked about during Voir Dire, the credibility of witnesses.” He continued, “This case boils down to one thing, who do you believe? Do you believe [M.H.], or do you believe [Appellant]?” The prosecutor told the jury what he anticipated the evidence would show regarding Appellant’s explanation of what happened and again emphasized that “[i]t comes down to one thing, who do you believe, her or him?”
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He again reminded the jury to “keep in mind the credibility of the witnesses” and explained that the members of the jury could only find Appellant guilty of indecency with a child if they believed the child complainant. Defense counsel made the following remarks, during closing arguments, regarding the credibility of the witnesses: So as far as [Appellant] getting on this witness stand, he did not. But he testified through the statement that he gave to the officer at the police department. That still can be considered. Everything that he said can be considered in this case.
And then in this case, the -- it is as [the prosecutor] said yesterday and today, we are a balancing act. Who do you want to believe? We have got a young lady that testified this morning and didn’t remember having given almost an hour interview with CPS, and admitted it was a couple of years ago. But still that -- the fact that she gave one and didn’t remember it, that is, you know, I think enters into considering what all she said when she testified today and what she said in an interview that was done way -- right after this allegedly happened.
The State also discussed the credibility of the witnesses in its closing argument. Regarding credibility, in general, the prosecutor said: Who do we believe, [M.H.] or [Appellant’s] interview? Witness credibility. We talked about that a lot. You are probably tired of hearing me say that. But that is really what it comes down to. Who do we believe?
Remember, you are the sole judge of the credibility of the witness. Ask yourself, why would they lie? You can believe all, some or none of what they say. Does the testimony you heard match the evidence that you have before you? The other testimony, the video evidence, et cetera?
As to the credibility of M.H., the prosecutor made the following argument:
[Defense counsel] mentioned, well, [M.H.] didn’t remember about the statements with CPS. I asked her the question and she didn’t remember, and [defense counsel] asked her the question and she didn’t
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remember. But, really, is that any reason not to believe her? To me that says one thing. She didn’t watch that video before she testified today. She couldn’t remember giving it. So the information she gave you today was what she remembered happened, not what she saw in that video yesterday or the day before. She couldn’t remember that video even existing. So there is no way that she is just telling you what she saw in the video. She is telling you exactly what she remembered.
We do that on purpose. I don’t show them the video. I want to know, and I want them to tell you exactly what they remember today, not what they regurgitate from a video three years ago, and that is what she did. Consistency, consistency, consistency.
We all agreed during Voir Dire that that was something we were going to look at when determining if somebody was telling us the truth, and if we should believe them. And she passed that test with flying colors.
[Appellant’s] interview. We will talk about that in a bit more detail in just a second. Witness credibility. Was [M.H.] consistent? Yes, she was. There is no question about it. There is no doubt about it, she was consistent.
Was she believable? Yes, she was. It was very emotional for her to tell you what happened. She did a great job, but it was still very emotional. She was being as honest with you as she could be.
What bothers me about some of these cases when you have basically one person saying something and one person saying something else is, why would one person lie? What motive might they have? And I will be honest with you. I looked at [M.H.]. I looked through the evidence to try to find a motive. To try to figure out why would she make this up. There isn’t. There is no reason for her to make that up. She had no vendetta against [Appellant]. He hadn’t done anything to her that she is trying to get even with him. She is telling you that, because that is what happened. Not because [s]he is making this up. Not because she has some motive to do anything.
Toward the end of her testimony I had asked her about how this has [a]ffected her, and she told you she has been having nightmares
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about this, about how she is scared [Appellant] will come after her. To me, that says what she told you was the absolute truth. Because she is telling you what someone did to her and now she is scared that they are going to try to get even for telling. That goes to her credibility.
In addition, the State reminded the jury about the inconsistencies and untruthfulness of Appellant’s interview with police. Specifically, the prosecutor argued: [Appellant’s] interview. Look at what he had to say in his interview. Detective Stanford told you how he was very inconsistent during his statement. I tried to highlight a few of them.
. . . .
Detective Stanford told you that during her investigation, she could find no evidence to corroborate that story whatsoever. No witness, no text. Nothing whatsoever to corroborate what [Appellant] said about this incident was either [sic] remotely true. Not one. You heard no evidence during this trial that anything -- any explanation [Appellant] offered might be true. No other witnesses, no evidence, nothing.
The trial court properly instructed the jury as to its role in determining the case. The jury charge provided, “You are the exclusive judges of the facts proved, of the credibility of the witnesses, and the weight to be given their testimony.” The testimony of M.H., the child complainant, was consistent with her outcry statement and her interview with the CPS investigator. M.H. testified that she and her family lived with Appellant’s family for a brief period of time. During that time, M.H. was sometimes at home alone with Appellant. On one occasion, Appellant was tickling her and asked her to take off her shirt and shorts. He tickled her some more and then asked her to take off her underwear. She was on the couch, and Appellant was lying on top of her with his knees on each side of her. Appellant did not have pants on; she could see his penis. M.H.’s brother was asleep in the recliner.
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Appellant did not touch her “female area,” but he came close. After this incident, they all went to bed. M.H. told her mother about the incident a few days later. M.H.’s mother testified that M.H. made the following statement to her: “I just don’t understand why he has to take off my shirt to tickle me.” M.H. further told her mother that sometimes Appellant made her take off her underwear and that one time he took off his underwear. M.H. did not like that and wanted him to put his underwear back on. She told him that it was inappropriate, and he responded that “nothing should be inappropriate between us.” The CPS investigator did not testify to the details of her interview with M.H.; however, the video of the interview was played for the jury. M.H.’s statement to the CPS investigator was consistent with her statement to the jury. However, she did not tell the CPS investigator that Appellant was lying on top of her, just that they were lying on the couch. The CPS investigator bolstered the testimony of M.H. when she responded, “Yes,” to the following question by the prosecutor: “So your opinion interviewing children every day, was she being truthful?” Defense counsel did not object to this testimony. Appellant’s interview with Detective Stanford was also played for the jury. Appellant denied that the incident occurred, although he admitted that he did tickle M.H. He also admitted that he took M.H.’s clothes off on one occasion because she had an accident in bed, and he had to clean her up and wash her off in the shower. In addition, defense counsel asked Detective Stanford during cross-examination whether children “would lie.” Detective Stanford responded, “Children do lie. People lie.” We have examined the entire record, and while we cannot say that the error in this case did not influence the jury at all, we do have a fair assurance that the error had but a slight effect. See Johnson, 967 S.W.2d at 417. The members of the jury were reminded many times throughout trial that they were the sole judges of the credibility of the witnesses. Although it was suggested during voir dire that police
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officers are more credible than other witnesses, the possibility of police officers making mistakes was also discussed. In addition, Detective Stanford listed the inconsistencies in Appellant’s interview, which was admissible testimony, and the videos of both Appellant’s interview and M.H.’s interview were played for the jury. Detective Stanford’s testimony that Appellant was being untruthful may have had a slight effect on the jury’s deliberations. However, after watching the videos and hearing the other properly admitted testimony at trial, the jury could have reasonably decided on its own not to believe Appellant. Because the error had but a slight effect, this is not a case in which we are “left in grave doubt” as to whether the error had a “substantial influence” in determining the jury’s verdict. See Johnson, 43 S.W.3d at 4 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)); see also Taylor v. State, 268 S.W.3d 571, 573–74, 592–93 (Tex. Crim. App. 2008) (holding that hearsay testimony of counselor had but slight effect on jury’s verdict that defendant was guilty of aggravated sexual assault of a child and, thus, was harmless error).

Outcome: We hold that the error did not affect Appellant’s substantial rights and is, therefore, not reversible error. We affirm the judgment of the trial court.

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