CourtListener 9368065•Cook, Kennie Lewis Jr.
Texte intégral
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, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
CASS COUNTY
MCCLURE, J., delivered the opinion of the court in which KELLER, P.J.,
HERVEY, RICHARDSON, YEARY, NEWELL, and SLAUGHTER, JJ., joined. KEEL, J.,
concurred. WALKER, J., filed a dissenting opinion.
OPINION
Kennie Lewis Cook, Jr., Appellant, was convicted of aggravated sexual
assault of a child. In this opinion, we review whether the trial court erred in admitting
an officer’s direct opinion on the complainant’s credibility which harmed
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Appellant. Because we disagree that Appellant was harmed by the admission, we
sustain the State’s third ground asserting that the court of appeals erred when it found
reversible error.
BACKGROUND
The complainant, seven-year-old C.S., often went to church with his great-
grandmother, Gladys. Appellant was a family friend and served as music director
and organist, in addition to serving in other capacities at the church. In the summer
of 2018, C.S.’s mother, Felicia, testified that she saw C.S. sucking his brother’s
penis. When questioned, C.S. told her that Appellant had done the same act to him.
Felicia had grown up with Appellant and had allowed C.S. to be around him
unsupervised. She also accepted gifts from him for C.S.
According to C.S., when Appellant and C.S. were in Gladys’s home after
church, Appellant inserted his finger in C.S.’s rectum, sucked on his penis, and made
him suck on Appellant’s penis. In response to his outcry, Felicia took C.S. to the
church to tell Gladys’s other grandson (C.S.’s cousin), DeShadrick, about the abuse,
but C.S. then denied Appellant had molested him.
The outcry and ensuing investigation prompted Gladys to record a video in
which she repeatedly told C.S. that Appellant loved and missed him. Asked leading
questions in the video, C.S. denied the allegations. In the video, C.S. instead reported
that Appellant only spanked him, and that his mother “started [the allegations against
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Appellant].” The recording also captures Gladys asking C.S. if anyone “messed”
with him, to which C.S. responded that his stepdad Tray had. The State’s case, and
Appellant’s opposing arguments centered on whether C.S. was telling the truth to
his mother and the police, or to his grandmother Gladys on the recording.
The issue of credibility was evident as early as voir dire. The State initially
asked venirepersons whether they agree that children lie to get out of trouble or lie
for no reason. Appellant followed the State’s voir dire inquiries with his own
rendition: “Do kids always tell the truth?” and “Do you believe that a child can be
coached or manipulated into saying certain things?”
At the start of trial, the State’s opening argument promptly addressed C.S.’s
truthfulness noting that C.S. has “no motive to lie,” and is “not a kid who’s going to
lie.” Previewing Felicia’s testimony, the State argued that she also “has no motive
to lie,” though “the defense will try to smear her and call her a liar in every which
way they can.” With respect to Gladys’s testimony, the State openly admitted it was
not sure what she would say, because she refused to meet with prosecutors prior to
trial.
The State called C.S. as its first witness and elicited testimony recounting the
abuse he suffered at Gladys’s home. Specifically, that Appellant “sucked [C.S.’s]
little thing,” that Appellant made C.S. “suck [Appellant’s] little thing,” and
Appellant “put his finger in [C.S.’s] butt.”
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The State’s next witness was Felicia, C.S.’s mother, who narrated her
discovery of the abuse and her response to it, including taking C.S. to talk to the
police and a counselor. On cross-examination, Appellant sought to impeach her with
reputation testimony from family members who claimed she is a “compulsive liar”
and “manipulator.” Appellant then asked Felicia whether she coached C.S. to make
allegations against Appellant, whether she is aware that family members do not
believe the allegations, and whether her husband Tray ever abused C.S.
The State then called Gladys Coleman, who almost immediately presented as
a hostile witness. Gladys testified she did not believe the allegations because she
found them inconsistent with Appellant’s character and because the incidents
allegedly occurred in her home when she did not believe Appellant would have had
such opportunity. On cross-examination, Appellant elicited testimony that Gladys
heard C.S. make inconsistent statements about the abuse.
The State then called Sergeant Jimma Hicks of the Atlanta Police Department.
Sergeant Hicks testified that he arrested Appellant after the Children’s Advocacy
Center interview, in which C.S. stated Appellant penetrated his rectum with his
finger. When Hicks was asked why he thought the interview was a sufficient basis
on which to proceed, the following exchange occurred:
Hicks: That victim, I felt like that victim, of his age, gave a credible
statement that—
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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?
Hicks: No.
Counsel: Objection, Your Honor.
Court: Overruled.
Counsel: That’s a comment on the credibility of the witness.
Court: Overruled.
Jessica Kelley of the Children’s Advocacy Center interviewed C.S. and was
called as the State’s next witness. She detailed the three allegations of abuse C.S.
made and testified she saw no signs of coaching, deception, or manipulation from or
directed to C.S. With respect to Gladys’s recorded statement, Kelley opined that the
questions Gladys asked likely influenced C.S.’s answers. She testified that not only
were the questions improper, but they could have tainted future recollections of the
abuse. On cross-examination, Appellant primarily focused on Kelley’s alignment
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with law enforcement, suggesting that Kelley’s interview was biased and that it
sought answers confirming law enforcement’s suspicions rather than taking a neutral
approach.
C.S.’s counselor, Kaleigh Dodson, was called next by the State and testified
similarly. She found C.S. showed signs of trauma. Dodson opined C.S. was
developmentally delayed and would not have been able to sustain deception over
time given his intellectual age. Cross-examination prompted Dodson to agree that
she does not have knowledge of what actually occurred and can only speak to the
events relayed to her by C.S.
Appellant testified in his defense, both to his innocence and good intentions
in spending time and money on C.S. He further testified he believed the allegations
against him were manufactured.
Appellant then called family members of Felicia, C.S., and Gladys who
testified that Appellant was upstanding, honest, and lacked the opportunity to abuse
C.S. Family members further testified that they suspected Felicia’s husband, Tray,
had abused C.S., although Tray was incarcerated at the time of the alleged incident.
Still, Gladys, DeShadrick, and two other family members opined that Felicia
coached C.S. to make up claims against Appellant because she was a liar, schemer,
and manipulator.
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In rebuttal, the State presented testimony from C.S.’s aunt and grandmother
who each testified, without objection, to their belief the child was telling the truth
and gave possible explanations for Gladys’s denial of the outcry. These rebuttal
witnesses signaled the close of evidence. Both renditions of closing argument
highlighted inconsistencies in the testimony and the respective parties’ credibility.
Appellant was convicted by a jury of three separate aggravated sexual assaults
and sentenced to forty (40) years on each count. TEX. PENAL CODE § 22.021(a)(1).
The trial court ordered two of the convictions to run concurrently, with the remaining
count to run consecutively.
APPEAL
On appeal, Appellant argued: (1) the evidence was legally insufficient to
support his convictions for aggravated sexual assault, (2) the State violated Equal
Protection by striking the only black venireperson within the strike zone, (3) the trial
court erred by permitting an officer to testify to his belief that C.S.’s outcry was
truthful, (4) the trial court erred by permitting testimony from a State’s rebuttal
witness in violation of the witness-sequestration rule, and, (5) the trial court erred by
assessing court costs in all three causes.
The Sixth Court of Appeals found the evidence legally sufficient to support
the jury’s guilty verdict, but found the trial court erred in admitting Hicks’s opinion
on whether C.S. was testifying truthfully. The court relied on Yount v. State, wherein
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this Court reasoned that “a direct opinion as to the truthfulness of a witness ‘crosses
the line’ under Rule 702 because it does more than ‘assist the trier of fact to
understand the evidence or to determine a fact in issue’; it decides an issue for the
jury.” 872 S.W.2d at 706, 709 (Tex. Crim. App. 1993) (emphasis in original). The
court then concluded that Appellant was harmed by such testimony. It reversed the
trial court’s judgments and remanded the case for a new trial.1
We granted the State Prosecuting Attorney’s petition for discretionary review
on three grounds:
(1) Does defense-elicited testimony that the victim’s allegations of sexual
abuse are lies and the result of manipulation and coaching justify the
admission of lay, rebuttal testimony from an officer that the victim's
allegations were credible?
(2) If the officer’s brief victim-credibility testimony was not proper rebuttal,
was it harmless error because other direct credibility testimony was later
admitted without objection as proper rebuttal evidence?
(3) If the officer’s brief victim-credibility testimony was not proper rebuttal,
was it harmless error under a traditional harm analysis?
This case can be resolved on harm. Finding our harm analysis dispositive, we
need not address whether the trial court erred in admitting the officer’s testimony.
ANALYSIS
Admission of Officer Hicks’s testimony did not harm Appellant’s substantial rights
1
Because the court of appeals sustained this point of error and reversed judgments, it did not
address the remaining points of error. See TEX. R. APP. P. 47.1.
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This case turned on the credibility of the complainant. Like many sexual
abuse cases, there is no physical evidence or eyewitness testimony aside from that
of the complainant. Due to the volume of witnesses testifying to the credibility of
the parties, we must ask whether the introduction of Officer Hicks’s testimony
affected Appellant’s substantial rights. See Schutz v. State, 63 S.W.3d 442, 444–46
(Tex. Crim. App. 2001). We will not overturn a conviction if, after examining the
record as a whole, we have fair assurance that the error did not influence the jury or
did so only slightly. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
While the court below properly cited the standard for non-constitutional harm
and the harm factors, it misapplied them. Specifically, the majority failed to consider
testimony that was admitted without objection regarding credibility and accurately
assess whether the State emphasized Hicks’s statement during closing arguments.
Harm analysis factors
Non-constitutional errors require reversal only if they affect an appellant’s
substantial rights—i.e., when they have a substantial and injurious effect or influence
in determining the jury’s verdict. TEX. R. APP. P. 44.2(b); Taylor v. State, 268
S.W.3d 571, 592 (Tex. Crim. App. 2008). In making this determination, the
following nonexclusive factors are considered: the character of the alleged error and
how it might be considered in connection with other evidence; the nature of the
evidence supporting the verdict; the existence and degree of additional evidence
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indicating guilt; whether the State emphasized the complained-of error; the trial
court’s instructions; the theory of the case; and, relevant voir dire. Motilla, 78
S.W.3d at 356–58; Schutz, 63 S.W.3d at 444-45.
Applying the harm factors
We find the error in the admission of Hicks’s direct opinion testimony on
C.S.’s credibility had slight—if any—influence on the jury’s verdict.
First, Officer Hicks responded to the question “Did you think the child is
lying?” with a concise “No” answer. This was a one-word response contained in a
multi-day, multiple-witness trial which amounted to a passing comment that was not
repeated. Further, a reasonable juror would assume that an investigating officer
believes the victim during the course of the investigation. Otherwise, the officer
would not have found probable cause to make an arrest.
Second, immediately before the question, the trial judge sustained an
objection and stated “The jury will be able to decide the credibility of the witness.
That’ll be sustained as to credibility.” The jury was aware that credibility was their
determination to make.
Third, the State did not emphasize or mention the objected-to portion of
Hicks’s testimony in its closing argument. See, e.g., Wilson v. State, 90 S.W.3d 391,
394 (Tex. App.—Dallas 2002, no pet.) (finding error was harmless in part because,
“[d]uring closing arguments, the State emphasized to the jurors that they were the
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judges of [the complainant’s] credibility and never referred to [the expert’s]
testimony about the percentage of children who lie about being sexually abused.”).
Fourth, the jury charge in this case instructed the jury that it was the exclusive
judge “of the credibility of the witnesses and the weight to be given their testimony.”
Fifth, considering the nature and strength of evidence supporting the verdict,
we note the weight of the evidence of Appellant’s guilt:
• The forensic examiner testified she did not see evidence of
coaching or manipulation.
• C.S.’s counselor testified that C.S. did not exhibit signs of being
coached or manipulated and that his young age would prevent him from
being deceptive for over seven months (signaling C.S.’s capacity for
truthfulness).
• C.S. testified in detail about the abuse.
• C.S.’s outcry statements supported his testimony.
• C.S.’s actions towards his brother and other children was
demonstrative of sexual abuse (testimony that C.S. “sucked [brother’s]
little thing” and had touched girls inappropriately at school).
• Appellant’s testimony that C.S. spent two nights at Appellant’s
apartment, unsupervised, where he slept with Appellant in his bed.
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• C.S.’s aunt and maternal grandmother testified that the victim
was credible.
The State’s case lacked any corroborating physical evidence and hinged on
the credibility of the parties. C.S.’s and his mother’s credibility were at the forefront
of the dispute. Considering the substantial amount of credibility evidence presented
at trial, Officer Hicks’s statement is minimal in comparison to the other evidence
regarding the credibility of the complainant.
Also to be considered is the substantially-similar testimony that was proffered
without objection. The erroneous admission of evidence “will not result in reversal
when other such evidence was received without objection, either before or after the
complained-of ruling. This rule applies whether the other evidence was introduced
by the defendant or the State.” Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.
App. 1998).
In rebuttal after Appellant rested, the State offered additional lay testimony
on the victim’s credibility.2 Latasha Dia Andrews, the victim’s aunt, testified that
C.S., based on her personal knowledge, would not lie about something as “serious
2
Unlike Officer Hicks, the victim’s aunt and materal grandmother were proper rebuttal witnesses
because they have personal knowledge of the child’s truthful character. Neither witness’s
testimony was objected to on the basis of credibility. Instead, Appellant objected to the rebuttal
testimony based on Rule 614 of the Texas Rules of Evidence, the witness sequestration rule, and
speculation. These objections did not preserve any complaint as to credibility. Further, the trial
court overruled both.
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as this.” She stated she believed the credibility of the accusations and did not think
he had been coached.
Prosecutor: Do you think [C.S.], based on your personal knowledge of
him, do you think he would lie about something as serious as this?
Andrews: (Tearful) No.
Prosecutor: Do you believe him?
Andrews: Yes.
Prosecutor: Do you think he was coached?
Andrews: No.
Next, Grashunda Wafer, C.S.’s maternal grandmother, was asked whether she
thought C.S. would lie about the allegations that are central to this case and she
responded in the negative.
Both Andrews’s and Wafer’s rebuttal testimony echoed Officer Hicks’s belief
in C.S.’s allegations. Therefore, any error in admitting Officer Hicks’s testimony
was harmless because other evidence of C.S.’s truthful character was admitted
without objection. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)
(stating there was no harm because “the jury had already heard all of the facts upon
which Davis’s conclusion was based. . .The opinion here added little, if any, weight
to Davis’s testimony.”).
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After examining the record as a whole, we are assured that either the error did
not influence the jury or did so only slightly. The testimony was not calculated to
inflame the jury’s emotions, substantially similar testimony was allowed without
objection, the jury charge instructed the jury that it was the sole judge of the
credibility of the witnesses and the weight to be given to their testimony, and the
jury heard C.S. provide a detailed account regarding Appellant’s sexual assault.
CONCLUSION
Considering the record as whole, we hold that the trial judge’s admission of
Officer Hicks’s testimony did not affect Appellant’s substantial rights and was
therefore harmless. Finding this ground dispositive, we dismiss the State’s first two
grounds for review as improvidently granted. The judgment is reversed and
remanded to the court of appeals to reach the merits of Appellant’s remaining
grounds.
Delivered: January 11, 2023
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