PD-0850-21, PD-0853-21, PD-0854-21 01/26/2022
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?”
At Cook’s trial for three aggravated sexual assault offenses, the child victim’s credibility was central to the case because the victim made conflicting out-of-court statements and his relatives disagreed about the truth of his claims. During the State’s case-in-chief, the police officer who obtained the arrest warrant for Cook explained that he did so because he did not think the victim was lying. Defense counsel’s objection that the officer improperly commented on the credibility of a witness was overruled. Cook was convicted.
A majority of the court of appeals reversed, holding that the admission of the officer’s opinion was harmful error. It reasoned that the evidence was far from overwhelming and that the credibility of the family members who testified favorably for the victim depended on the victim’s credibility. Likewise, the victim’s credibility was key and emphasized by the State in its closing. The majority also pointed out that testimony from two State experts who had interviewed the victim did not alleviate the harm because neither testified about the victim’s credibility. Thus, their testimony was not unobjected-to cumulative evidence. The majority then observed that the officer’s testimony was akin to an expert because he was a nineteen-year veteran. And his independence as an investigator―not being aligned with either party―was unique to him and thus carried a greater risk of harm by inviting the jury to defer to his credibility opinion. In sum, under Schutz v. State, the officer’s opinion carried exceptional weight and an aura of reliability that could have caused the jury to abdicate its role. 957 S.W.2d 52, 72 (Tex. Crim. App. 1997).
The dissent concluded there was no harm because the jury could assess the victim’s credibility, and the State’s experts touched on their evaluation of the victim’s veracity.
The State asserts that, contrary to Schutz, the lower-court majority failed to recognize that the officer’s opinion about the credibility of the victim’s allegations of sexual abuse was admissible rebuttal evidence. The State first asserts that the officer’s opinion was a lay-credibility statement; he was not qualified as an expert. Continuing, it argues that his lay opinion was proper rebuttal to the victim’s great-grandmother’s prior testimony that the victim was lying and that his allegations were the result of coaching and manipulation by his mother. Alternatively, the State asserts that there is no harm because the same type of evidence was later admitted from the victim’s grandmother and aunt without objection. Notably, the officer’s lay opinion was limited to explaining his determination that there was probable cause to get an arrest warrant. It did not extend to the victim’s veracity beyond a reasonable doubt. Lastly, the State contends that the majority erred in its traditional harm analysis. The officer’s statement is not the linchpin the majority made it out to be. In addition to the preceding factors, the victim’s testimony was detailed, the officer’s statement was brief, the State did not emphasize it, and the trial court sustained a prior objection to similar testimony and told the jury that they are responsible for deciding credibility.
