      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



                                DISSENTING OPINION


                I agree with the majority that the trial court abused its discretion in permitting

Barthlow to testify that mentally retarded persons, as a class, tend to be truthful. See Schutz v. State,

957 S.W.2d 52, 70 (Tex. Crim. App. 1997) (“Schutz I”); Yount v. State, 872 S.W.2d 706, 711

(Tex. Crim. App. 1993).         However, because I would hold that the error is harmless, I

respectfully dissent.

                A trial court’s evidentiary rulings, including those involving error under Schutz I and

Yount, are subject to harmless error analysis. See Schutz v. State, 63 S.W.3d 442, 443 (Tex. Crim.

App. 2001) (“Schutz II”) (holding that admission of testimony that was “direct comment on the

truthfulness of complainant’s allegations” was harmless error). The rules of appellate procedure

provide that any error other than constitutional error “that does not affect substantial rights must be

disregarded.” Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous
admission of evidence if, after examining the record as a whole, the court has a fair assurance that

the error did not influence the jury, or had but a slight effect. Schutz II, 63 S.W.3d at 444.

                With regard to violations of Schutz I and Yount, the “danger posed by the erroneous

admission of expert testimony that was a direct comment on the complainant’s credibility was that

the jury could have allowed that testimony to supplant its decision.” Schutz II, 63 S.W.3d at 445.

In evaluating whether the jury’s decision on the credibility of witnesses was supplanted, the court

must consider everything in the record, including testimony and physical evidence, the nature of the

evidence supporting the verdict, and the character of the error and its relationship to other evidence.

Id. Additionally, courts may also consider other factors, including the trial court’s instructions to

the jury, the theories of the case that the State and defendant have espoused, and arguments to the

jury. Id. at 444-45.


Evidence Admitted at Trial

                The initial inquiry concerns the evidence admitted at trial, including the evidence

supporting the verdict. The majority states that this was a “she said, he said” case. However, there

was a great deal of additional evidence and testimony that the jury could have considered when

determining the relative credibility of the witnesses and reaching its verdict.

                Regarding the evidence supporting K.B.’s testimony, K.B. testified at trial that

Barshaw had removed her pajamas and underwear and had then touched her breasts and her “pelvis.”

Though K.B. functions at roughly the level of a ten-to-twelve year old with a verbal IQ of 67 and an

estimated actual IQ in the fifties, her testimony at trial was consistent with both the initial outcry she




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made to her mother and to the statements she gave to the investigating officer and to Kleypas,

the SANE nurse.1

               Further, the physical evidence at trial was also consistent with K.B.’s testimony.

Kleypas examined K.B. on the same day as the alleged incident. While K.B. indicated that she did

not remember whether Barshaw had penetrated her when touching her pelvis, Kleypas’s examination

revealed an abrasion inside of K.B.’s labia majora that could only have been caused by penetration.2

Kleypas testified that the abrasion was recent, as the skin in the affected area of the body heals very

quickly. According to Kleypas, the abrasion would have caused bleeding at the time it happened,

and clothing put up against the area would have blood on it. Forensic scientist Patricia Retzlaff

found blood stains on K.B.’s pajama shorts and on her bedsheets, which DNA tests showed was

K.B.’s blood.3 This evidence is consistent with K.B.’s testimony.

               While Barshaw’s testimony contradicted that of K.B., there is other evidence in the

record besides K.B.’s testimony that conflicts with Barshaw’s testimony. Specifically, the testimony

of Berndt, K.B.’s mother, differs from Barshaw’s in several important respects. According to

Barshaw, on the morning of the alleged incident, he saw Berndt at the store where she works and told

her that he needed to check on the heater in Berndt’s home; he then proceeded to her home and


       1
         While defense counsel alluded during closing to a statement K.B. made that she was “mad”
at Barshaw prior to her outcry, the record contains no other indication of a motive for K.B. to lie or
to concoct her story.
       2
          There is no evidence in the record to indicate that K.B. was sexually active at the time of
the alleged incident. Porter, K.B.’s MHMR caseworker for two years, stated that to her knowledge,
K.B. had never had a romantic or sexual relationship.
       3
          There was no blood, however, on the panties K.B. indicated she was wearing after the
incident, nor was the DNA of any other person found on K.B.’s clothing or bedsheets.

                                                  3
encountered K.B. there. Berndt, however, testified that Barshaw asked about the heater, but that she

told him that there were no problems with it, and that she did not give him permission to go to her

home that day. Barshaw also testified that he returned to Berndt’s home—where K.B. was—the next

day to look for his “multimeter,” a piece of equipment he thought he had left behind. While Barshaw

testified that he drove to the home and then found the multimeter in his truck, Berndt, who had

followed him, testified that Barshaw instead attempted to enter the home, finding the door to be

locked. She relayed this information to 911 as the incident was in progress. In addition, Barshaw

testified that he did not know as of the date of the incident that K.B. was mentally retarded, despite

having had several conversations with K.B. Berndt, however, testified that it was “common

knowledge” that K.B. was mentally challenged, and Kleypas testified that she could tell that K.B.

exhibited signs of developmental delay when she first met her. This conflicting testimony provides

a basis for the jury to discredit Barshaw’s credibility even without K.B.’s testimony.

               In addition, portions of Barshaw’s own testimony place him at the scene of the

incident. Barshaw himself admitted that he was in the house alone with K.B. on the date of the

incident in question, and consequently had the opportunity to engage in the charged acts. He further

stated that he had grasped her shoulders and given her a kiss on the cheek when she told him it was

her birthday.4 In addition, Barshaw admitted that he returned to the home the next day without

having asked Berndt’s permission.




       4
        The date of the incident was December 18th. Berndt testified that K.B.’s birthday is
December 30th.

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               Given the testimony and physical evidence admitted at trial, I disagree with the

majority that this was simply a “she said, he said” case. Further, even if the outcome rested solely

on the jury’s credibility assessments of K.B., the fact that the prosecution is grounded on the

credibility of the victim, while significant, is not conclusive in determining harm. Schutz II,

63 S.W.3d at 446. Even in cases in which credibility is paramount, Texas courts have found

violations of Schutz I and Yount to be harmless where the record as a whole provides adequate

assurance that the jury was able to exercise its function to determine the credibility of witnesses. See

id. (holding error was harmless even though “the case against the appellant rested on the credibility

of the complainant”).


Character of the Error

               The next inquiry concerns the character of the error and its relationship to the other

evidence. When asked about the ability of mentally retarded people to “fabricate or make up

elaborate stories,” Barthlow stated:


       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, what little kids say.


The defense objected, indicating that the “testimony is not relevant because you cannot testify to a

class of people being truthful.” The trial court overruled the objection, and Barthlow continued:




                                                   5
       I was discussing individual’s mental retardation, and kind of their ability to make up
       things. I’m not going to say 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 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. They
       just say what comes into their minds, very much, again, like a six- or seven-year-old
       child would. They see something and they make an observation, and they’re going
       to say that because they haven’t learned the social etiquette of when that’s
       appropriate and when that’s not appropriate.


As recognized above, portions of this testimony involve the propensity of mentally retarded people

as a class to be truthful, and are consequently inadmissible under Schutz I and Yount. However, it

is noteworthy that Barthlow equivocated at the start of the statement, saying, “I’m not going to say

it would never happen. I mean, anybody is capable of making up something . . . .” Cf. Long v. State,

No. 12-07-00256-CR, 2009 Tex. App. LEXIS 1090, at *8 (Tex. App.—Tyler Feb. 18, 2009, no pet.)

(mem. op., not designated for publication) (holding error harmful where expert “staked her

reputation on her conclusion that there was nothing troubling about the complaining witness’s

testimony and the State’s case”). In addition, the quoted passages constitute the entirety of

Barthlow’s impermissible testimony. She did not revisit or expand her statements at any other time

during the trial, nor did the State attempt to elicit any further testimony on the matter. See Garza v.

State, No. 05-04-01104-CR, 2006 Tex. App. LEXIS 69, at *12 (Tex. App.—Dallas Jan. 5, 2006, pet.

ref’d) (mem. op., not designated for publication) (noting that “[t]he State did not pursue the matter

further” after erroneous admission of Schutz/Yount testimony in holding error harmless).



                                                  6
                Further, an examination of the relationship of the error to the other evidence in the

record indicates that the jury had much more than just Barthow’s testimony on which to gauge the

credibility of K.B. See Schutz II, 63 S.W.3d at 446 (holding error harmless where inadmissible

expert testimony was “a small portion of a large amount of evidence presented that the jury could

have considered in assessing the victim’s credibility”). First and foremost, the jury was able to listen

to K.B.’s own testimony in its entirety, and to make its own determinations based on their

observations of her during her time on the witness stand. The jury was also presented with the

physical evidence described above, including evidence that K.B. had been penetrated in a manner

consistent with the offense charged. Finally, the jury was able to hear the competing testimony of

Barshaw in addition to character witnesses supporting Barshaw in making its determination. While

the majority relies on the assertion that Barshaw “was, on the face of it, a credible witness,” the fact

that the jury was able to evaluate his conflicting testimony reinforces the notion that the jury had a

large amount of evidence to consider beyond the testimony of the expert in making its credibility

determinations. See id. (indicating that harm of error was mitigated by amount of other evidence jury

heard, including testimony that defendant “was a truthful, peaceful, law-abiding person who

exhibited no unnatural sexual tendencies toward children”).


Jury Instructions

                Turning to the instructions given to the jury, the record indicates that the jury was

explicitly instructed, “You are the exclusive judges of the facts proved, of the credibility of the

witnesses and of the weight to be given to the testimony.” This instruction reinforced the jury’s role

in making credibility determinations. See Wilson v. State, 90 S.W.3d 391, 394 (Tex. App.—Dallas

                                                   7
2002, no pet.) (noting that “the trial court instructed [the jury] that they were the exclusive judges

of a witness’s credibility” in finding error harmless).


Closing Argument

                Finally, as noted by the majority, the State did not reference the inadmissible portion

of Barthow’s testimony during closing. Further, the State began its argument, “You saw [K.B.] You

got to see her in person. And that’s important, for you all to see her, to hear her, and to judge her

credibility.”   (Emphasis added.)      The State also made other references to the credibility

determination at the heart of the case, telling the jury, “You’re going to have to decide who you

believe, [K.B.], or Mark Barshaw.” These statements indicated that the ultimate determination of

credibility rested with the jury. See id. (noting that “[d]uring closing arguments, the State

emphasized to the jurors that they were the judges of [complainant]’s credibility and never referred

to [inadmissible] testimony about the percentage of children who lie about being sexually abused”

in finding error harmless).

                Based on this review of the record as a whole, including the evidence admitted at trial,

the character of the error and its relationship to the evidence, the instructions given to the jury, and

the State’s closing argument, I conclude that there is a fair assurance that the error did not influence

the jury, or had but a slight effect. See Schutz II, 63 S.W.3d at 444-46; Wilson, 90 S.W.3d at 394;

Garza, 2006 Tex. App. LEXIS 69, at *12 (holding Schutz/Yount error harmless because jurors were

presented with large amount of evidence to consider in making credibility determination, State did

not pursue inadmissible evidence after admission of initial testimony, jury was instructed that it was

sole judge of credibility of witnesses, and State did not reference Schutz/Yount testimony during

                                                   8
closing). As I would therefore overrule Barshaw’s first issue and proceed to address his remaining

issues on appeal, I respectfully dissent.



                                             __________________________________________

                                             Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Filed: August 31, 2010

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