      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00079-CR




                                Mark David Barshaw, Appellant

                                                 v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 62761, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                                          OPINION


               A jury found appellant Mark David Barshaw guilty of sexual assault, and the trial

court assessed his punishment at twelve years’ imprisonment. We reverse the judgment of

conviction and remand for a new trial because the trial court permitted an expert witness to testify

that the class of persons to which the complainant belongs tends to be truthful.


                                        BACKGROUND

               On December 18, 2007, the complaining witness, K.B., was living with her mother,

Debra Berndt, in Belton. K.B. is mentally retarded and functions at approximately a ten-year-old

level, although she was twenty-one years old at the time. Berndt was employed as the manager of

a convenience store. She testified that it was her daily routine to leave home for work at about

5:00 a.m. She would return home at 7:30, pick up K.B., and return to the store. K.B. would then
take a bus from the store to the mental health-mental retardation center where she was employed.

K.B. would return to the store by bus after work, and the two would go home together.

               Appellant, who worked in the maintenance department of the convenience store

company, regularly stopped by Berndt’s store on his way to work. Berndt had employed appellant

on several occasions to work on her home air conditioner/heater. Berndt testified that she generally

kept the house unlocked, and that appellant was authorized to enter the house to do his repairs.

Appellant and K.B. had met, and K.B. was sometimes alone at the house when appellant was there.

Appellant had most recently been to Berndt’s house to repair her heater on December 15 or 16.

               Berndt testified that appellant came to the store on the morning of December 18 and

asked her how her heater was working. She told him that it was working fine. Berndt said that she

did not ask or authorize appellant to go to her house that morning. Later, Berndt drove home at the

usual time to get K.B. As they were driving back to the store, K.B. told Berndt that appellant had

surprised her that morning. Berndt testified that she asked K.B. what she meant, and K.B. replied,

“Well, he woke me up.” Berndt did not testify in further detail about this conversation, but she

stated that after hearing what K.B. told her, she called the police.

                K.B. testified that she knew appellant as the person who fixed the air conditioner.

She remembered an incident (but could not remember the date) when appellant came to her room

and woke her. She said that appellant took off her pajama tops and bottoms and her underpants.

Then, as she laid in bed, appellant touched her breasts and legs. He also spread her legs and

“touched [her] pelvis.” She indicated that appellant rubbed her breasts and her “pelvis.” She did

not know if appellant put his fingers in her “pelvis.” K.B. testified that appellant did not remove his



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clothes, and that he helped her put her pajamas back on after touching her. K.B. recalled telling her

mother what had happened and going to see a doctor.

               Deborah Kleypas was the sexual assault nurse examiner who examined K.B. on the

morning of December 18. Kleypas testified that as part of her exam, she had K.B. recount what had

happened to her. Reading from her written report, Kleypas described K.B.’s account:


       [K.B.] told me that “He,” Mark, “woke me up.” I asked her, “Where were you when
       he woke you up?” She told me that “I was in my bed in my bedroom. He did a
       massage, a body massage. He touched my—these,” then she pointed to her breasts
       on herself, “and he touched my pelvis.” She then pointed to her genital area on
       herself. “What did he touch your pelvis with?” I asked that question. “His hand.
       He touched my pelvis with his fingers. He was rubbing on it.” She demonstrated
       when she told me that he was rubbing on it, she demonstrated by putting her hands
       between [her] legs and making a back and forth motion. “And that he touched me
       on the inside of my clothes.”


               Kleypas testified that during her physical examination of K.B., she observed what she

described in her report as an abrasion to the posterior fourchette approximately 1.75 centimeters long

and 1 centimeter wide. She said that this injury was consistent with the events K.B. had described.

Kleypas also testified that it was not unusual for children or even adults to describe an assault as a

touching, when the evidence indicates that there was penetration. A labial swab collected by

Kleypas was found to have K.B.’s blood on it. K.B.’s blood was also found on her pajamas and on

a bed sheet, but not on her underpants, all of which were collected by the police after being

dispatched to Berndt’s residence. No one else’s DNA was found on any of these items.

               Pammy Porter was K.B.’s MHMR caseworker. She testified that K.B. had regularly

received “exploitation training,” which Porter described as “don’t answer the door for strangers;



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don’t talk to strangers; when you’re being touched inappropriately, you have the right to say no, just

things like that.” Porter testified that she had never discussed “dating relationships” or “romantic

relationships” with K.B., and she indicated that K.B.’s understanding of such matters would be that

of a nine or ten-year-old. Porter testified that MHMR does not engage in sex education because

“parents have a real issue with us training our consumers on sex.” As regards sexual activities or

contact, Porter said that K.B. “may not understand exactly what is going on.”

               Rebecca Barthlow is an MHMR psychologist. She testified that K.B. had a nonverbal

IQ of 67, which she estimated was ten points higher than K.B. would score using a standard IQ test.

K.B.’s adaptive behavior test score was 51, which Barthlow believed was “much more in line with

what we would think her true IQ is.” Barthlow testified that K.B. is “at great difficulty and a great

disadvantage compared to someone of average ability as far as understanding social concepts,

understanding very basic common sense kinds of things . . . .” She believed that K.B. was “closer

to the moderate range of mental retardation [as] opposed to the mild range.” Barthlow confirmed

Porter’s testimony regarding the lack of sex education at MHMR. Asked by the prosecutor if K.B.

was “capable of either appraising the nature of an act or being able to resist it,” Barthlow replied, “I

don’t believe so.”1

               Appellant acknowledged going to Berndt’s house on December 18. He testified that

he had to improvise the repair he made to Berndt’s heater due to the age of the unit, and that he went

to Berndt’s residence that morning to make sure that the repair had been effective and the heater was




   1
     The prosecutor did not specify the type of act she was referring to, but we infer that she was
inquiring into K.B.’s capacity for appraising or resisting a sexually assaultive act.

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working properly. He said that he spoke to Berndt at the store and told her what he was going to do,

but she was busy at the time and may not have heard him. Appellant testified that upon entering the

house, he went straight to the laundry room where the heating unit was located. Appellant said that

while working, he accidentally dropped a metal panel, which made a “pretty loud noise.” Appellant

testified that after checking the heater and determining that it was working properly, he was putting

away his tools and preparing to leave when K.B. walked into the laundry room. K.B. was wearing

a T-shirt and shorts. She told appellant that it was her birthday, and they had a brief conversation

about baseball.2 Appellant testified that as he left the house, he congratulated K.B. on her birthday

and gave her a kiss on the cheek. He denied touching K.B.’s breasts or genitals. He also denied

knowing that she was mentally retarded.

                 The evidence reflects that appellant returned to Berndt’s house the next morning,

December 19. Appellant testified that he did so to retrieve a tool that he left the previous day.

                 Appellant was indicted for entering Berndt’s habitation without her effective consent

and committing or attempting to commit sexual assault. See Tex. Penal Code Ann. § 30.02(a)(3)

(West 2003) (burglary of a habitation). The trial court’s jury charge also included an instruction on

the lesser included offense of sexual assault. See id. § 22.011(a)(1)(A), (b)(4) (West Supp. 2009).

The jury did not convict appellant for the alleged burglary, but it found him guilty of the lesser

included offense.




   2
       Berndt testified in rebuttal that K.B.’s birthday is December 30, and that she knows this.

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                                           DISCUSSION

               In Yount v. State, the court of criminal appeals held that evidence rule 702 does not

permit an expert to give an opinion that the complainant or a class of persons to which the

complainant belongs is truthful. 872 S.W.2d 706, 712 (Tex. Crim. App. 1993); Tex. R. Evid. 702.

In Yount, a pediatrician testified that she had interviewed and examined hundreds of children who

claimed to have been sexually abused and had seen very few cases where the child was not telling

the truth. 872 S.W.2d at 707-08. The court ruled that this testimony should not have been admitted

because “[a]n expert who testifies that a class of persons to which the victim belongs is truthful is

essentially telling the jury that they can believe the victim in the instant case as well. This is not

‘expert’ testimony of the kind which will assist the jury under Rule 702.” Id. at 711.

               Appellant contends that the trial court abused its discretion and violated Yount by

permitting Barthlow to testify that mentally retarded persons, as a class, tend to be truthful. This

contention is based on the following exchange between the prosecutor and Barthlow:


               Q. What about people that suffer from mental retardation in their ability to
       fabricate or make up elaborate stories; what do you see with that?

                A. Generally speaking if you’re—when we’re dealing with mental retardation
       and there’s not anything going on, there’s just a diagnosis of mental retardation,
       primarily, there’s not a personality disorder or something adding to that, it’s been my
       experience that folks with mental retardation can be painfully honest, really. I mean,
       it’s like a little kid who looks at somebody and says in the supermarket, “You’re
       really old,” or, you know, whatever little kids do.


At this point, defense counsel objected, “You can’t have somebody come in and testify to a class of

people are truthful.” The prosecutor responded that cross-examination had raised the issue of how



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mentally retarded persons “adapt.” She added, “We have specifically the element to prove that she’s

suffering from a mental disease or defect, and that as a result that she’s incapable of either appraising

the situation or the nature of the act [or] resisting it, and as such I think it’s admissible.” The court

overruled the defense objection and Barthlow continued:


                Q. (By [prosecutor]) Where were we?

                A. I was discussing individual’s mental retardation, and kind of their ability
        to make up things. I’m not going to say that it would never happen. I mean, anybody
        is capable of making up something, but it’s very simplistic in nature. It would
        be—like I said, it would be like a lie that a child would tell, a story a child would
        make up. It would be very easy as an adult or a parent to kind of see through that
        when you’re thinking of that. And, again, it’s been my experience in the hundreds
        and hundreds of people with mental retardation that I’ve seen, that it’s more going
        to be that they’re painfully honest. They haven’t learned the social skills and
        probably never will to know when you should lie or when it would be socially
        appropriate to not tell the truth because it might hurt someone’s feelings, or things
        of that nature, to hold things back.


                The State argues, as it did below, that expert testimony regarding the nature of mental

retardation and the ability of mentally retarded persons to function at an adult level was relevant to

the issue of K.B.’s ability to effectively consent to the sexually assaultive acts appellant was accused

of committing. See Tex. Penal Code Ann. § 22.011(b)(4) (consent is not effective if actor knows

that as result of mental disease or defect complainant is incapable either of appraising nature of

sexually assaultive act or of resisting it). Whatever validity there may be in this argument, it does

not speak to appellant’s contention. Barthlow’s challenged testimony—that mentally retarded

persons are “painfully honest” and that any story that a mentally retarded person might “make up”




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would be “simplistic” and easily seen through—had no relevance to K.B.’s capacity to effectively

consent within the meaning of section 22.011(b)(4).

               The court of criminal appeals has recognized that some witnesses—the court

specifically referred to children and mentally retarded persons—are viewed by society as “impaired.”

Schutz v. State, 957 S.W.2d 52, 70 (Tex. Crim. App. 1977). When such a witness is expected to

testify, expert testimony should be permitted in the offering party’s case in chief concerning the

ability of the class of persons suffering the “impairment” to distinguish reality from fantasy and to

perceive, remember, and relate the kinds of events at issue in the case. Id. The court emphasized

that such testimony should be limited to the “impaired” class’s ability to accurately relate events and

should not extend to the class’s tendency to do so; the latter would violate the holding in Yount. Id.

In her challenged testimony, Barthlow was not questioned about and did not discuss the ability of

mentally retarded persons to accurately perceive, recall, and relate events. Instead, she testified to

their tendency to be “painfully honest,” even to the point of being socially inappropriate.

               Barthlow’s testimony that mentally retarded persons are honest to a fault and cannot

fabricate elaborate stories was simply another way of testifying that mentally retarded persons are,

as a class, truthful. Accordingly, this violated the holdings in Yount and Schutz. The trial court

abused its discretion by overruling appellant’s objection and admitting the testimony.

               Having found error, we must decide if it affected appellant’s substantial rights. See

Tex. R. App. P. 44.2(b). In assessing harm, our focus is not on whether the outcome of the trial was

proper despite the error, but on the error’s impact on the jury. Wesbrook v. State, 29 S.W.3d 103,

119 (Tex. Crim. App. 2000). We will not reverse a conviction for non-constitutional error if, after



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examining the record as a whole, we have fair assurance that the error did not influence the jury or

had only a slight influence. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).

               This was a “she said, he said” case. Although there was physical evidence that K.B.

had been penetrated in some manner, there was no physical evidence linking appellant to that

penetration, and the outcome ultimately turned on the jury’s assessment of the relative credibility of

the two principal parties’ testimony.

               Appellant was, on the face of it, a credible witness. He was fifty years old at the time

of the trial, married, and the father of a daughter who was then seventeen years old. Appellant grew

up in a military family and himself spent twenty years in the Army, receiving a Bronze Star. He

earned his GED while in the Army, and he earned a college degree following his retirement.

Appellant had no criminal record before his arrest in this case, and several witnesses testified to his

good character. There was evidence, however, that appellant had been dismissed from his job at the

convenience store chain after he approached two female employees with mistletoe following the

company Christmas party. There were also some inconsistencies between appellant’s trial testimony

and the statements he made to the police following his arrest.

               K.B. was, to repeat the court of criminal appeals’ observation in Schutz, an

“impaired” witness. There were several inconsistencies and omissions in her testimony, and she did

not testify that she had been penetrated. It would be understandable for the jury to be concerned that

K.B.’s account was mistaken or perhaps even a fabrication. Although neither prosecutor mentioned

Barthlow’s testimony during final argument, we cannot avoid the conclusion that the jury, in




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assessing K.B.’s credibility, likely gave significant weight to the expert’s opinion that mentally

retarded persons are generally truthful.

                   A conviction must be reversed for nonconstitutional error if the reviewing court has

grave doubt that the result of the trial was free from the substantial effect of the error. Burnett

v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). “Grave doubt” means that the matter is so

evenly balanced as to be in virtual equipoise. Id. In cases of grave doubt as to harmlessness, the

appellant must win. Id. at 638. In this cause, we have grave doubt as to the error’s harmlessness,

which is another way of saying that we do not have a fair assurance that the error did not

substantially influence the jury.

                   Because of our disposition of this issue, we do not address appellant’s other issues

on appeal. The judgment of conviction is reversed and the cause is remanded to the district court

for a new trial.




                                                 ___________________________________________

                                                 J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Waldrop and Henson
  Dissenting Opinion by Justice Henson

Reversed and Remanded

Filed: August 31, 2010

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