Cook, Kennie Lewis Jr.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0850-21, 0853-21 & 0854-21

KENNIE LEWIS COOK, JR., Appellant

v.

THE STATE OF TEXAS

ON STATE=S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
CASS COUNTY

WALKER, J., filed a dissenting opinion.

DISSENTING OPINION

Today, the Court concludes that Appellant Kennie Lewis Cook, Jr. was not reversibly

harmed, because even if Sergeant Hicks’s testimony on the child complainant’s truthfulness was

improperly admitted, the testimony was a concise statement that was later followed by similar

testimony. I disagree. I would hold that the testimony was inadmissible and that the error affected

Appellant’s substantial rights. Because I would affirm the judgment of the court of appeals, I

respectfully dissent.
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I. The Admission of the Officer’s Testimony was Erroneous

Expert testimony as to the truthfulness of a complainant is inadmissible under Rule 702.

Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993); TEX. R. EVID. 702. A direct opinion

on the truthfulness of a witness is impermissible because it “decides an issue for the jury.” Id. at

709 (emphasis in original) (citing Duckett v. State, 797 S.W.2d 906, 914–15 (Tex. Crim. App.

1990), disapproved on other grounds by Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App.

1993)). Expert witness testimony must aid, not supplant, the jury’s fact-finding role. Schutz v.

State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Yount, 872 S.W.2d at 710. As for non-expert,

lay witnesses, while they may testify to rebut an attack on a complainant’s general character for

truthfulness, such rebuttal is limited to reputation or opinion evidence about that character for

truthfulness, and lay witnesses may not testify about the complainant’s truthfulness in the

particular allegations. TEX. R. EVID. 608; Sandoval v. State, 409 S.W.3d 259, 292 (Tex. App.—

Austin 2013, no pet.) (citing TEX. R. EVID. 608; Fuller v. State, 224 S.W.3d 823, 833 (Tex. App.—

Texarkana 2007, no pet.)).

Under the assumption that Sergeant Hicks testified as an expert witness, his testimony is

inadmissible under Rule 702. 1 If Sergeant Hicks is considered a lay witness, he could only testify

to the child’s credibility in the form of opinion or reputation testimony once the child’s general

character for truthfulness had been challenged. At trial, Appellant first challenged the child’s

character for truthfulness by questioning the child about his prior inconsistent statements on cross-

examination. Appellant challenged the child’s character a second time during cross-examination

1
Although the parties agree that the State never sought to have Sergeant Hicks qualified as an
expert, I add this point because Sergeant Hicks testified as to facts consistent with expert
qualifications.
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of the child’s mother by suggesting that she had coached the child to make allegations against

Appellant. Thus, Appellant opened the door to rebuttal testimony on the child’s general character

for truthfulness. However, the prosecutor’s question to Sergeant Hicks did not seek to support the

child’s credibility through general “opinion” or “reputation” testimony. Rather, the prosecutor’s

question asked Sergeant Hicks to testify about the child’s truthfulness in the particular allegations

against Appellant. Moreover, lay opinion testimony under Rule 701 must be based on personal

knowledge. TEX. R. EVID. 701. While Sergeant Hicks observed the child provide a statement, he

had no personal knowledge on which to base his determination of the child’s credibility; he did

not have any personal knowledge of the family dynamic and the reputations of the parties involved,

and he lacked a personal relationship with the parties. Therefore, whether Sergeant Hicks is

considered an expert or lay witness, his opinion that the child’s statements were truthful was

inadmissible, and the trial court abused its discretion by allowing the testimony.

II. The Admission of the Officer’s Testimony Affected Appellant’s Substantial Rights

A violation of an evidentiary rule is a non-constitutional error subject to review under

Texas Rule of Appellate Procedure 44.2(b). Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim.

App. 2005). Rule 44.2(b) states that non-constitutional error must be disregarded unless it affects

the defendant’s substantial rights. “A criminal conviction should not be overturned for non-

constitutional error if the appellate court, after examining the record as 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).

The central issue of this case at trial hinged on the credibility of the child and whether the

jury believed the child’s allegations. The State was unable to present any corroborating physical
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evidence. Family members testified both in support of the child’s credibility and against the child’s

credibility; it was a classic “he said, she said.” The sole unaligned witness to testify to the

truthfulness of the child was the lead investigative officer on the case, Sergeant Hicks. In the

absence of concrete evidence, combined with the multitude of testimony from disagreeing family

members, the jury was likely to give Sergeant Hicks’s testimony exceptional weight and be unduly

inclined to rely on his clear and concise opinion as to the child’s credibility. After all, Sergeant

Hicks was the only witness testifying to this central issue that did not have a dog in the hunt.

(A) The Officer’s Testimony Trumped All Other Credibility Testimony

I disagree with the majority’s analysis of the harm because it does not consider an officer’s

inherent impression of reliability. Generally, jurors place significant import on law enforcement

testimony. 2 A neutral and respected officer’s testimony about a victim’s credibility will many

times trump all other credibility testimony in the minds of the jury. This is especially true when

there are no other authoritative witnesses presented to rebut the credibility testimony. This Court

cautioned against this very scenario in Schutz where we noted:

A jury would expect a mother to testify that her son was truthful, and would likely
view such testimony with natural skepticism. On the other hand, the testimony of a
police officer qualified as an expert on the investigation of sexual assault cases
would likely carry exceptional weight and an aura of reliability which could lead
the jury to abdicate its role in determining [the complainant’s] credibility.

Schutz, 957 S.W.2d at 72 (quoting Matter of G.M.P., 909 S.W.2d 198, 206 (Tex. App.—Houston

[14th Dist.] 1995, no writ).

As noted by the Sixth Court of Appeals, Sergeant Hicks’s testimony “carrie[d] an aura of

2
Stephen Garvey, et al., Juror First Votes in Criminal Trials, 1 J. EMPIRICAL LEGAL STUD. 371,
396 (2004) (Analysis of juror-decision making in criminal trials found that most jurors believed
police testimony).
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reliability” not shared by the testimony of the child’s family members. Cook v. State, 636 S.W.3d

35, 45 (Tex. App.—Texarkana 2021). Sergeant Hicks had been an officer with the Atlanta Police

Department for over nineteen years and he had investigated numerous child sexual assault cases,

giving him an expert-like quality on matters of child sexual assault. In comparison to the natural

skepticism that came with the testimony of the child’s family members, Sergeant Hicks’s status as

a respected, experienced investigator gave him a heightened impression of reliability that the other

witnesses did not possess. As a result, Sergeant Hicks’s testimony carried a greater risk of harm.

Accordingly, the trial court’s error allowed Sergeant Hicks to usurp the jury’s role as a factfinder.

(B) Unequivocal “No” Speaks Volumes

Sergeant Hicks’s testimony more than slightly affected the jury not only because of his

status as an officer, but also because of the unequivocal character of the question asked and the

answer given. The relevant testimony is below:

Sergeant Hicks: That victim, I felt like that victim, of his age, gave a credible
statement that–

Counsel: Objection, Your Honor. He’s not qualified to say that the victim’s
statement is credible. Additionally, he’s not qualified to go into the details of
victim’s statement.

Court: Any response?

State: This is the basis for his following actions. It’s just what formed his basis for
continuing the case, Your Honor.

Counsel: Judge, he can’t pass on the credibility of a witness.

Court: The jury will be able to decide the credibility of the witness. That’ll be
sustained as to credibility. You may continue.

State: Did you think the child was lying?

Sergeant Hicks: No.
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Counsel: Objection, Your Honor.

Counsel: That’s a comment on the credibility of the witness.

Court: Overruled.

The majority reasons that the testimony was harmless because it was a “one-word response

contained in a multi-day, multiple-witness trial which amounted to a passing comment that was

not repeated.” Majority Opinion at 10. Although concise, a one-word response is also

unambiguous. Sergeant Hicks’s “No” left no doubt in the minds of the jurors of his opinion on the

child’s truthfulness. In contrast, the other two unaligned witnesses, the CAC interviewer and the

counselor, gave testimony that did not directly relate to the child’s credibility. Indeed, the CAC

interviewer agreed that she could not be sure whether the child was telling the truth or not. Under

the majority’s reasoning, an otherwise inadmissible statement will be ignored so long as it is

concise and buried among other evidence in a multi-day trial.

Additionally, the majority finds that there was no harm to Appellant because “[t]he jury

was aware that credibility was their determination to make.” Majority Opinion at 10. However,

simply making the jury aware of its duty prior to Sergeant Hicks’s opinion does not relieve the

subsequent error. The jury was still permitted to consider Sergeant Hicks’s testimony in its ultimate

credibility determination of the child. Moreover, I am not assured that the jury did not unduly rely

or gather any other meaning from the prosecutor’s question and subsequent answer other than

Sergeant Hicks’s unequivocal, expert-like opinion that the child was not lying. Nor do I think it is

likely that Sergeant Hicks’s opinion was not intended to reflect on the credibility of the child as

the State argues. I cannot say that the effect of Sergeant Hicks’s testimony on the jury was only

slight.
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III. Conclusion

I would affirm the judgment of the court of appeals because I believe that Appellant’s

substantial rights were affected by the trial court’s error. I am not fairly assured that the jury was

only slightly influenced by the trial court’s egregious error. I see no reason to second-guess the

court of appeals’ finding. The prosecutor and Sergeant Hicks each had years of experience and

knew better. Our law should not permit prosecutors and officers to make such deliberate and

improper victim-credibility statements as this one to a jury. I respectfully dissent.

Delivered: January 11, 2023
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