Young, Carroll Dwayne ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 904-02

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CARROLL DWAYNE YOUNG, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

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   Johnson, J., filed a dissenting opinion in which Meyers and Price, JJ. joined.

D I S S E N T I N G O P I N I O N

During voir dire, the trial court engaged Mrs. Valdez, a potential juror, in an exchange about her experiences working with children who had been sexually assaulted. Young v. State, No. 1410-01 (Tex. Crim. App., delivered _____, slip op. At 2-4). The essence of the exchange, which occurred in the presence of the entire venire, was that in her 25 to 30 years of working with children who had been assaulted, she had encountered no child who had been found to be lying about the assault. Anyone who has ever had a child, or been one, knows that children lie, but it was not Ms. Valdez' testimony that children never lie. Her testimony was that children never lie about being sexually assaulted, an entirely different proposition. Such an opinion from a person with her stated experience carries significant weight because dealing with children who have been sexually assaulted is not within the experience of most people. She, in effect, testified to the jury as no expert would be permitted to do.

I would find that her remarks poisoned the panel and were harmful and that the harm was exacerbated by the continued exchange between the trial court and Ms. Valdez after appellant's counsel moved for mistrial. Because of that continued exchange after the request for mistrial, I would find that the harm could not be cured by an instruction to disregard.

I respectfully dissent.

Johnson, J.

En banc

Filed: June 9, 2004

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