                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                                No. 07-17-00141-CR
                            ________________________


                       BRYAN SCOTT CAVETT, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE



                         On Appeal from the 452nd District Court
                                McCulloch County, Texas
              Trial Court No. 6132; Honorable Robert R. Hofmann, Presiding


                                   October 17, 2018

                           MEMORANDUM OPINION
                   Before QUINN, C.J., and PIRTLE and PARKER, JJ.


      Following a plea of not guilty, Appellant, Bryan Scott Cavett, was convicted by a

jury of indecency with a child by sexual contact and sentenced to twenty years
confinement.1      The jury also assessed a $10,000 fine.                 By a sole issue, Appellant

complains that his trial counsel was ineffective for failing to object during the

guilt/innocence phase of trial to bolstering testimony of several witnesses. We affirm.2


        BACKGROUND

        Appellant and the complainant’s mother were in a dating relationship that ended in

May 2015. The complainant, who was around eight years old at the time, and her mother

would sometimes spend the night at Appellant’s house. Several months after the mother

ended the relationship with Appellant, her daughter made an outcry to her that Appellant

had placed his genitals in her hand. The mother reported the incident to the police. The

responding officer conducted a cursory interview to determine whether to schedule a

forensic interview for the complainant.


        Based on information from the complainant and her mother, the complainant was

interviewed by a forensic interviewer. Captain Lupe Carrizales then conducted a non-

custodial interview with Appellant, who denied any improper conduct. The case became

a matter of she-said, he-said—a swearing match between the complainant and the

accused.




        1 TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2018). The offense is a second degree felony
punishable by imprisonment for any term of not more than twenty years or less than two years and a fine
not to exceed $10,000. § 12.33(a), (b) (West 2011).

        2 Originally appealed to the Third Court of Appeals, this appeal was transferred to this court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Third Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3


                                                     2
       By the time of the report, several months had passed between the alleged conduct

and the delayed outcry, so no medical examination was performed on the complainant

and no forensic or physical evidence was gathered or presented at trial. The State’s case

rested solely on the complainant’s testimony. She testified that her mother was dating

Appellant and they would occasionally spend nights at his house. Her mother and

Appellant would sleep on a bed and she would sleep on a pallet on the floor. She

described her mother as a heavy sleeper. On one occasion, Appellant lay down beside

her and placed his “private” in her hand.3           Another time, he lifted her legs “like a

cheerleader split.” Appellant told her not to tell her mother about his conduct.


       During cross-examination, the complainant again recounted the incidents with

Appellant. She added that she told him to stop and let her sleep when she was awakened

by his conduct.


       Carrizales testified to the procedures for interviewing a child complainant. He

answered affirmatively when asked if officers “make opinions about the credibility of the

witnesses.” When asked if it was his “opinion that the allegations were consistent from

[the complainant],” he answered, “[y]es.” Trial counsel did not object to the testimony.


       During the complainant’s mother’s direct testimony, she testified that in July 2015,

her daughter made an outcry to her. She testified her daughter told her she was glad

Appellant and her mother were no longer in a relationship because he had made her

touch his private parts. Also, on direct examination, the complainant’s mother was asked



       3 During her testimony, the complainant was shown State’s Exhibit Number 5 which was a drawing
of a man. She identified the penis as the man’s “front private.”

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whether she had any reason to create testimony or coach her daughter, to which she

responded, “No.” She added, “I would not falsely accuse somebody of something so

drastic, life-changing.” Again, no objection was made to the testimony.


       The counselor who interviewed the complainant testified that he has “great

confidence in [his] ability to discern between the truth and a lie when talking to a

child . . . .” When asked if he is “always on the look-out in determining credibility of the

children,” he answered, “only the truth can help a child.” In explaining that his role is to

provide support for the child, he testified, “it’s about one word and [the complainant] said

it up here on the stand, and I’ll say it again, it’s about the truth.” When asked to describe

the complainant based on their sessions and her consistency in the allegations, he

testified, “I have great confidence in her credibility.”


       No objection was made during the counselor’s testimony. However, during cross-

examination, trial counsel asked about situations where children make false outcries and

the counselor admitted they are “[r]are, but they do happen.” He added that in his

experience, children of the complainant’s age do not recant while older children do.


       During the State’s closing argument, the prosecutor summed up the complainant’s

testimony and described it as “credible.” He argued that the counselor’s testimony

regarding the consistency of the complainant’s allegations made her testimony “credible.”

He asked the jury “to believe that what [the complainant] testified about is not a fantasy.”


       Following his conviction and imposition of his sentence, Appellant filed this appeal

alleging a sole issue. He contends his trial counsel was ineffective for failing to object to



                                               4
testimony from three witnesses regarding the complainant’s credibility about the

allegations. We disagree.


       STANDARD OF REVIEW—INEFFECTIVE ASSISTANCE OF COUNSEL

       The right to reasonably effective assistance of counsel is guaranteed by the Sixth

Amendment to the United States Constitution. To establish a claim based on ineffective

assistance, an appellant must show that (1) his counsel’s representation fell below the

objective standard of reasonableness and (2) there is a reasonable probability that but

for counsel’s deficiency the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In

other words, an appellant must show his trial counsel’s performance was deficient and

that he was prejudiced by the deficiency. State v. Gutierrez, 541 S.W.3d 91, 98 (Tex.

Crim. App. 2017).


       A claim of ineffective assistance of counsel must be firmly demonstrated in the

record. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Thompson

v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). In most cases, a direct appeal is an

inadequate vehicle for raising a claim of ineffective assistance because the record is

generally undeveloped and cannot adequately reflect counsel’s trial strategy. Rylander

v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). When the record is silent on

trial counsel’s trial strategy, we will not find deficient performance unless counsel’s errors

of commission or omission were “so outrageous that no competent attorney would have

engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Some

ineffective assistance claims may be disposed of on direct appeal where “trial counsel’s

ineffectiveness is so apparent from the record.” See Massaro v. United States, 538 U.S.

                                              5
500, 508, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003). See also Andrews v. State, 159

S.W.3d 98, 103 (Tex. Crim. App. 2005) (finding the record on direct appeal contained all

the information needed to find there was no reasonable trial strategy in counsel’s failure

to object on the prosecutor’s misstatement of the law).


       A defendant is not entitled to error-free representation and a reviewing court must

look to the totality of the representation in determining the adequacy of counsel’s

performance. Frangias v. State, 450 S.W.3d 125, 136 (Tex. 2013). Even a single

instance of error by counsel can rise to the level of deficient performance if the error “was

egregious and had a seriously deleterious impact on the balance of the representation.”

Id.


       ANALYSIS

       Appellant’s sole complaint is directed at the testimony of two lay witnesses and

one expert witness:         (1) the police captain who questioned Appellant, (2) the

complainant’s mother, and (3) the licensed professional counselor who treated the

complainant.    He contends their testimonies improperly bolstered the complainant’s

credibility and that trial counsel’s failure to object during their testimonies constituted

ineffective assistance of counsel. We find that counsel’s failure to object to the officer’s

and the mother’s testimonies was not deficient, but for the reasons expressed herein, we

conclude his failure to object to the counselor’s inadmissible testimony fell below the

objective standard of reasonableness.


       Carrizales testified that police officers may generally form opinions about the

credibility of witnesses.     He also testified that the complainant’s allegations were


                                             6
consistent throughout the investigation; however, he never testified or gave an opinion on

the complainant’s credibility. Therefore, trial counsel was not deficient for failing to object

to Carrizales’s testimony.


       The complainant’s mother testified about the complainant’s outcry.               She also

denied coaching her daughter or having any reason to falsely accuse a person of such a

drastic allegation. Because she did not offer testimony on her daughter’s credibility or

truthfulness, trial counsel was not deficient for failing to object to her testimony.


       Regarding the counselor, who testified as an expert witness, he was asked about

how he determines the credibility of children he counsels. He answered that “only the

truth can help a child” and added that he has great confidence in his ability to discern

between the truth and a lie when counseling a child. His answers, without more, might

not have been objectionable.       However, he crossed a line when he testified, “[the

complainant] said it up here on the stand, and I’ll say it again, it’s about the truth.” He

further testified, “I have great confidence in [the complainant’s] credibility.” See Ex parte

Mayhugh, Nos. WR-84,700-01, WR-84,700-02, WR-84,701-01, WR-84,698-01, WR-

84,698-02, WR-84,697-01 & WR-84,697-02, 2016 Tex. Crim. App. Unpub. LEXIS 1057,

at *11 n.3 (Tex. Crim. App. Nov. 23, 2016) (finding an expert’s testimony that the

complainant’s allegations of sexual abuse were “guileless” and “uncontrived” would run

afoul of the general prohibition against admitting such testimony).


       The counselor was also asked about his experience with children who recant their

outcries. He opined that children in the age range of the complainant in the underlying

case are less likely to recant or lie than older children. In this regard, we note an expert


                                              7
is not permitted to give an opinion that a class of persons to which the complainant

belongs is truthful. Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993). To do

so would essentially be telling the jury that it can believe the complainant. Yount, 872

S.W.2d at 711; Hatter v. State, No. 03-04-00359-CR, 2006 Tex. App. LEXIS 4516, at *10

(Tex. App.—Austin May 26, 2006, no pet.) (mem. op., not designated for publication).

Experts on child sexual abuse are not “human lie detectors. Nor are they clairvoyant.”

Yount, 872 S.W.2d at 710. Thus, an expert witness may not give an opinion as to the

testifying child’s truthfulness. Id. at 711-12 (citations omitted).


       The testimony offered by the complainant’s counselor in the underlying case was

inadmissible under Rule 702 of the Texas Rules of Evidence which provides that an

expert may testify in the form of an opinion if the expert’s knowledge will help the trier of

fact to understand the evidence or to determine a fact issue. TEX. R. EVID. 702. But an

expert witness’s testimony concerning child sexual abuse does not aid the trier of fact

when it constitutes a direct opinion on the child complainant’s truthfulness and, in

essence, decides an ultimate fact issue. Yount, 872 S.W.2d at 708.


       Here, trial counsel’s failure to object to the counselor’s expert testimony

compounded the error when the prosecutor referred to the complainant’s credibility and

believability in his closing argument on at least three occasions. Undoubtedly, trial

counsel’s error fell below an objective standard of reasonableness. However, the ultimate

question is whether Appellant has shown that but for counsel’s error, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694.




                                               8
       Relying on Fuller v. State, 224 S.W.3d 823, 826 (Tex. App.—Texarkana 2007, no

pet.), Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref’d),

Miller v. State, 757 S.W.2d 880, 884 (Tex. App.—Dallas 1988, pet. ref’d), and Garcia v.

State, 712 S.W.2d 249, 253 (Tex. App.—El Paso 1986, pet. ref’d), Appellant maintains

the testimony regarding the complainant’s credibility was “obviously inadmissible and

harmful” and is cognizable on direct appeal. We distinguish the cited cases.


       The cases cited by Appellant all involve child complainants of sexual offenses in

which lay witnesses and expert witnesses testified without objection about the credibility

of each complainant’s allegations. Our sister courts found that counsel in each case

provided ineffective assistance of counsel. See Fuller, 224 S.W.3d at 837; Sessums, 129

S.W.3d at 248; Miller, 757 S.W.2d at 884; Garcia, 712 S.W.2d at 253.


       Those cases have unique characteristics setting them apart from the case before

us. Additionally, they are decisions of sister courts that do not include the Third Court of

Appeals, which is the transferor court of this particular case. Under Rule 41.3 of the

Texas Rules of Appellate Procedure, we are required to apply precedent from that court.

See Noland v. State, No. 03-11-00256-CR, 2012 Tex. App. LEXIS 5911, at *21-22 (Tex.

App.—Austin July 20, 2012, pet. ref’d) (mem. op., not designated for publication) (finding

that the appellant failed to prove his defense was prejudiced by counsel’s failure to object

to testimony on the complainant’s credibility and the record was silent as to counsel’s

strategy for not objecting).


       Here, the complainant did testify and, if we disregard the counselor’s inadmissible

testimony, the complainant’s testimony alone would have supported a finding of guilt. See


                                             9
TEX. CODE CRIM. PROC. ANN. art. 38.07(a)(1), (b)(1) (West Supp. 2018) (uncorroborated

testimony of the complainant of a sexual offense if the complainant made an outcry within

one year of the alleged offense supports a conviction under chapter 21 of the Penal

Code). Thus, we cannot conclude that but for counsel’s error, the outcome of the

proceedings would have been different.


      Appellant established the deficiency prong of Strickland by showing that trial

counsel’s failure to object to clearly inadmissible testimony constituted deficient

representation; however, he did not show a reasonable probability that but for counsel’s

error, he would not have been convicted. Appellant’s sole issue is overruled.


      CONCLUSION

      The trial court’s judgment is affirmed.




                                                 Patrick A. Pirtle
                                                    Justice


Do not publish.




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