*1 settlement part paid of the sums expenses and as against
suit the insured Hicks, suit.”);
defending the S.W.2d at (“When insurer] refused fur- [one suit, ...
ther assist in the defense of the other shouldered the en-
[the co-insurer] burden, appeals....
tire including than doing paid
so out more two-thirds incurred”). expenses
of the costs and Re-
lying precedents on these unless and until otherwise,
the supreme court us tells
agree majority Truck’s con-
tribution claim for defense costs is barred
as a matter of law. and,
Accordingly, join judgment qualifications, majority’s
with these
opinion. BARSHAW, Appellant,
Mark David Texas, Appellee.
The STATE of
No. 03-09-00079-CR. Texas, Appeals
Court of
Austin. 31, 2010.
Aug.
OPINION JONES, Justice. J. WOODFIN Chief A found Mark David appellant Bar- assault, and the guilty shaw sexual trial assessed at twelve punishment his imprisonment. reverse years’ We judgment of conviction and remand for a permitted new trial because the trial court expert an witness to class complainant persons which the be- longs tends to be truthful.
BACKGROUND 18, 2007, December the complaining On witness, K.B., mother, living with her Berndt, in K.B. is mentally Debra Belton. approximately functions at level, ten-year-old although she was twen- ty-one years old at the time. Berndt was employed as the of a manager convenience her daily store. She testified that was to leave for work at routine home about 7:30, 5:00 a.m. She return home would K.B., pick up and return store. K.B. would then a bus from the take store to the mental health-mental retardation employed. center where she was return to bus would the store after work, go togeth- and the home two er.
Appellant, who in the worked mainte- department nance of the convenience store company, regularly stopped by Berndt’s way store on his to work. Berndt had employed appellant on several occasions to work on home air conditioner/heater. Stevens, Stevens, & Scott K. Stevens generally Berndt testified kept that she Law, Gatesville, TX, P.C., Attorneys at unlocked, appellant the house and that Appellant. to do authorized enter the house his met, repairs. Appellant and K.B. had Odom, Bob D. Attor- Assistant District K.B. was sometimes alone house Belton, TX, ney, for Appellee. appellant when was there. JONES, recently
Before Chief Justice Justices most been to Berndt’s house to WALDROP and her heater December 15 repair HENSON. on 16. came to my these,” testified that touched then pointed Berndt — herself, morning on the of December the store breasts “and he touched work- my pelvis.” her how her heater was She then pointed and asked *3 him fine. working genital told that it was on ing. She area herself. “What he that author- your pelvis she did not ask or touch Berndt said with?” I asked that go to her that morn- appellant question. ize house “His hand. my He touched Later, Berndt ing. pelvis drove home with his fingers. rubbing He was they were get usual time K.B. As on it.” She demonstrated when she told store, to the driving it, back K.B. told Berndt me that was rubbing she dem- that appellant surprised by putting that had her her onstrated hands between Berndt that asked morning. legs testified she making a back [her] and forth meant, replied, K.B. what she and KB. motion. “And that he touched onme “Well, woke me up.” my Berndt did not the inside of clothes.” further conver- testify in detail about this Kleypas during testified that physi- her sation, hearing she but stated that after K.B., cal examination she observed what her, police. told what K.B. she called the she her report described as an abrasion KB. testified that she knew appellant posterior fourchette approximately who person fixed the air conditioner. long 1.75 centimeters centimeter (but She remembered an incident could wide. She injury said this was consis- date) appellant not remember when tent with the events K.B. had described. came her room and woke She said her. Kleypas also testified that it un- was not pajama tops took off her appellant usual for children or even adults to de- Then, underpants. and her and bottoms scribe an as a touching, assault when the bed, her appellant as she laid touched evidence pen- indicates there was legs. legs He her spread breasts and also Key- etration. A labial swab by collected pelvis.” [her] and “touched She indicated pas was found to have it. KB.’s blood on rubbed her and her appellant breasts K.B.’s blood was also found on her paja- “pelvis.” appellant She did not know if sheet, mas and on a bed but her not on fingers in put “pelvis.” his K.B. testi- of which underpants, all were collected appellant did not his fied remove the police being dispatched after clothes, put and that he helped her Berndt’s residence. No one DNA else’s back on pajamas touching after her. K.B. was found on of these items. telling her hap- recalled mother what had Pammy Porter was K.B.’s MHMR case-
pened going to see a doctor. regu- worker. She testified that K.B. had Kleypas Deborah was the assault sexual larly “exploitation training,” received nurse examiner who examined K.B. on the which Porter described as “don’t answer morning December 18. testi- Kleypas the door strangers; don’t talk part exam, fied that as of her had K.B. she strangers; you’re in- being when touched happened recount what had to her. Read- you say appropriately, right have the her written report, Kleypas from de- no, just like that.” things Porter testified scribed KB.’s account: that she never “dating discussed rela- Mark, “He,” told me that “woke tionships” or “romantic relationships”
[K.B.] her, K.B., you me asked up.” “Where were indicated that KB.’s under- you up?” when he woke told me standing She of such matters would be that of was in my my ten-year-old. that “I bed in a nine bedroom. Porter testified a massage, body massage. engage He did a He that MHMR edu- does sex metal which dentally dropped panel, real “parents have a issue cation because on sex.” loud noise.” training “pretty our consumers made with us contact, heater and checking activities or that after sexual testified regards As “may working properly, not understand determining that K.B. that was Porter said away prepar- on.” tools and exactly putting what is he was his leave when K.B. walked into the ing to psychol- an MHMR Barthlow is Rebecca wearing a T-shirt laundry room. that K.B. had a non- She testified ogist. that it was and shorts. She told IQ of which she estimated verbal they had a brief conver- birthday, than K.B. would score points higher ten *4 Appellant testified sation about baseball.2 IQ adaptive test. K.B.’s using a standard house, congratulated the he that as he left 51, which Barthlow score was behavior test birthday gave and her a kiss K.B. on her “much more line with what was believed touching He on the cheek. denied IQ Barthlow think her true is.” we would He also denied know- genitals. breasts or difficulty great K.B. is “at testified that ing that she was retarded. disadvantage compared to great and a average ability as far as under- someone appellant that re- The evidence reflects understanding concepts, standing social house the next morn- turned to Berndt’s common sense kinds of very basic ing, Appellant December 19. testified She believed that K.B. was things....” retrieve a tool that he left the he did so to range the moderate of mental “closer to previous day. opposed to the mild [as] retardation entering for Appellant indicted Porter’s tes- range.” Barthlow confirmed her effective Berndt’s habitation without the lack of sex education timony regarding or to committing attempting consent and if prosecutor Asked the at MHMR. Tex. Penal commit sexual assault. See appraising of either the “capable K.B. was 30.02(a)(3) (West 2003) (bur- §Ann. Code it,” to being nature of an act or able resist habitation). The trial glary of a court’s “I don’t believe so.”1 replied, Barthlow jury charge also included an instruction on acknowledged going to Appellant as- the lesser included offense of sexual on December 18. He testi- Berndt’s house (b)(4) 22.011(a)(1)(A), § id. sault. See improvise repair to fied that he had (West 2009). jury not con- Supp. age made Berndt’s heater due to the alleged burglary, for the but vict unit, he went Berndt’s guilty it him of the lesser included found to make sure that morning residence that offense. repair had been effective and the heat- working He that he properly. er was said DISCUSSION and told her spoke to Berndt store do, In court of criminal going busy what he was but she was Yount may appeals have him. held that evidence rule 702 does at the time and not heard expert give opinion an an Appellant upon entering permit testified that house, a straight laundry complainant persons went that the or class truth heating complainant belongs room unit was located. to which the is where (Tex.Crim.App. ful. working, said that while he acci- 872 S.W.2d prosecutor specify type 2. Berndt in rebuttal that K.B.’s birth- 1. The did not testified to, referring act she was but we infer that she day knows this. is December inquiring capacity apprais- into K.B.'s resisting sexually or assaultive act. Yount, defect, 1993); pedi Tex.R. Evid. 702. disease that as a result that that she had interviewed incapable atrician testified she’s appraising either who examined hundreds of children situation or the nature of the act [or] abused and sexually it, to have been resisting claimed as such I think it’s admis- seen few cases where child very sible.” The court overruled the defense telling was not truth. 872 S.W.2d objection and Barthlow continued: testimo 707-08. The court ruled that this Q. (By [prosecutor]) were Where ny should not have been admitted because we? a class of expert who testifies that “[a]n A. discussing individual’s men- belongs persons to which victim is retardation, tal ability and kind of their essentially telling jury truthful is up things. make I’m not say they can the victim in the instant believe mean, never happen. This is not ‘expert’ case well. anybody capable making up some- of the kind which will assist the under thing, but simplistic it’s nature. Rule 702.” Id. at 711. said, It would be—like I it would be like *5 tell, a the trial lie that a a Appellant story contends that child would a up. discretion and violated child make court abused its would It would be Yount to by permitting testify easy Barthlow as an or a to parent adult kind of class, as a mentally persons, that retarded see when through you’re thinking that And, to be is again, my tend truthful. This contention that. experi- it’s been exchange following based on the between ence in the hundreds and hundreds of prosecutor Barthlow: people mental retardation that I’ve seen, that it’s more to be that Q. that people What about suffer they’re painfully They honest. haven’t ability from mental retardation in their learned probably the social skills and up to fabricate make elaborate sto- or you never will to know when should lie ries; you what do see with that? or socially appropriate when it would be Generally you’re— A. speaking if to not tell the truth it might because dealing when we’re with mental retarda- feelings, things hurt someone’s that on, tion anything going and there’s not nature, things to hold back. just diagnosis there’s a of mental retar- dation, a primarily, personali- there’s not below, argues, The State as it did that that, ty adding something disorder or to expert testimony regarding the nature of my experience it’s been that folks with ability mental and the of men- retardation painfully mental can be hon- retardation tally to at an persons retarded function est, mean, a really. it’s like little kid level relevant issue of adult somebody says who in looks at ability effectively K.B.’s consent to the old,” or, supermarket, you really “You’re sexually ac- assaultive acts know, little whatever kids do. See Tex. Penal Code committing. cused of (consent 22.011(b)(4) § point, objected, At this defense Ann. not effec- counsel is “You in if that of mental somebody can’t have come tive actor knows as result complainant incapable truthful.” people to a class are disease or defect prosecutor responded appraising sexually cross-ex- nature of as- that either it). Whatever resisting amination had raised the issue of how saultive act or of mentally persons “adapt.” may argument, She validity retarded there be this added, specifically speak appellant’s have the element does not contention. “We prove challenged that a mental Barthlow’s suffering she’s from —that
630 despite proper the outcome of the trial was “painfully are persons mentally retarded error, on the story mentally impact that a but on the error’s honest” 103, State, up” “make might jury. v. 29 S.W.3d person Wesbrook retarded through- easily seen not re (Tex.Crim.App.2000). We will “simplistic” 119 capacity to ef- had no relevance a conviction for non-constitutional verse meaning fectively if, consent within examining the record as error after 22.011(b)(4). whole, section we have fair assurance or had error did not influence the recog has appeals The court of criminal only slight influence. Schutz spe some nized that witnesses —the (Tex.Crim.App.2001). S.W.3d to children and cifically referred society viewed persons —are said, a “she he said” case. This was State, 957 “impaired.” Schutz v. Although physical there evidence (Tex.Crim.App.1997). When S.W.2d manner, penetrated K.B. had been some testify, ex expected a witness is such linking physical ap- there was no evidence in the permitted should be pert penetration, and the out- pellant to concerning in chief offering party’s case jury’s on the as- ultimately come turned persons suffering ability of the class credibility of the sessment of the relative distinguish reality “impairment” principal parties’ testimony. two remember, fantasy perceive, and to from was, it, a on the face of credi- of events at issue and relate kinds fifty years witness. He was old ble emphasized The court the case. Id. *6 married, trial, of and the father time limited to the testimony such should be years daughter who was then seventeen accurately re “impaired” ability class’s military in a fami- Appellant grew up old. not extend to the late events and should so; in the spent twenty years himself tendency ly the latter would class’s to do In her a Bronze Star. He holding Army, receiving the in Yount. Id. violate Army, in testimony, Barthlow was not earned his GED while challenged following did not discuss the his re- questioned college degree about and earned a persons to ac ability mentally of retarded had no criminal rec- tirement. recall, case, curately and relate events. in perceive, before his arrest this ord Instead, tendency to their good she testified his several witnesses testified to honest,” point however, to the of “painfully evidence, even character. There being socially inappropriate. been dismissed from his appellant that had chain after he job at the convenience store testimony mentally Barthlow’s that re- employees two female approached are honest to a fault and persons tarded following company Christmas mistletoe sim- cannot fabricate elaborate stories was also some inconsisten- party. There were ply way testifying another that testimony appellant’s trial cies between are, class, persons as a truthful. retarded police to the and the statements made holdings in Accordingly, this violated following his arrest. The trial abused Yount and Schütz. court ob- by overruling appellant’s its discretion was, repeat the court of criminal jection admitting testimony. Schütz, an “im- appeals’ observation error, There several in- paired” de witness. were Having found we must and omissions in her testimo- appellant’s cide if it affected substantial consistencies 44.2(b). had ny, In and she did not that she rights. Tex.R.App. P. as See It understand- harm, penetrated. would be sessing our focus is not on whether been
631
able for
to be concerned that
A trial
evidentiary rulings,
court’s
in
perhaps
cluding
involving
or
those
error
K.B.’s account
mistaken
under Schütz
Yount,
subject
are
Although
to harmless
pros-
even a fabrication.
neither
er
State,
analysis.
ror
See Schutz v.
ecutor mentioned Barthlow’s
S.W.3d
during
argument,
(Tex.Crim.App.2001)
final
we cannot avoid the
(“Schutz II”)
(holding
admission
that
assessing
conclusion that
jury,
testimony that was “direct comment
credibility,
gave
likely
significant
the truthfulness
complainant’s allega
weight
expert’s
opinion
mental-
error).
tions” was harmless
The rules of
ly
generally
are
truthful.
persons
appellate procedure provide
er
A conviction must be reversed
ror other than constitutional error “that
reviewing
if the
nonconstitutional error
does
affect
rights
not
substantial
must be
doubt
grave
has
result
44.2(b).
disregarded.”
Tex.R.App. P.
the trial
free
from
substantial
rights
Substantial
not
are
affected
effect of
error.
Burnett
if,
erroneous admission of evidence
after
S.W.3d
637 (Tex.Crim.App.2002).
whole,
examining the
as a
record
the court
“Grave
means
the matter
so
doubt”
has a fair assurance that the
did
error
not
evenly
equi
balanced as to be
virtual
the jury,
influence
slight
but a
poise.
grave
Id.
In cases of
doubt as
II,
effect. Schutz
Because of this *7 evaluating jury’s whether the on decision we do not other appellant’s address issues the supplant of witnesses was appeal. judgment on conviction ed, the court must consider everything the reversed and cause is remanded to the record, including testimony physi the and district court for new trial. evidence, cal the nature of the evidence verdict, supporting the and the character Opinion by Dissenting Justice of the error and other relationship its to HENSON. Additionally, may evidence. Id. courts HENSON, Justice, DIANE M. factors, including also consider other the dissenting. jury, trial court’s instructions to the the theories the case that the and State agree the majority with that the trial defendant have and espoused, arguments in permitting abused its discretion to Id. jury. the at 444-45. Barthlow that mentally to Trial Evidence Admitted at class, persons, as a to be tend truthful. State, See Schutz v. 957 S.W.2d inquiry The initial concerns the evidence (“Schutz I”); trial, (Tex.Crim.App.1997) including Yount at admitted the evidence (Tex.Crim. supporting majority 872 S.W.2d the verdict. The However, App.1993). said, because would states that this was a “she he said” harmless, hold However, that the error is I respect great case. was a deal of there fully dissent. the testimony additional evidence and testimony Barshaw’s contradicted determin- While have considered when could K.B., there is other evidence the credibility of the witnesses that of the relative testimony that K.B.’s con- record besides its verdict. reaching
and testimony. Specifi- with Barshaw’s flicts supporting the evidence Regarding Berndt, cally, K.B.’s trial testimony, testified at K.B. K.B.’s mother, in several differs from Barshaw’s pajamas and had removed Barshaw to respects. According Bar- important touched her and then underwear shaw, alleged inci- morning Though K.B. her “pelvis.” and breasts dent, store he saw Berndt at the where of a roughly the level ten-to- functions her that he needed to she works told IQ of 67 and year old with a verbal twelve home; on the heater in Berndt’s check fifties, IQ in the actual an estimated her home and encoun- then to proceeded at trial consistent with both Berndt, however, K.B. there. testi- tered outcry to her mother initial she made heater, fied that Barshaw asked about gave statements that she told him that there were no but Kleypas, the investigating officer and to it, give not with that she did problems nurse.1 SANE permission go day. him to her home returned Further, also that he physical evidence at trial Barshaw testified home—where K.B. was—the next testimony. Berndt’s also consistent with “multimeter,” day piece look for day on the same as his Kleypas examined K.B. he had left equipment thought K.B. behind. alleged incident. While indicated Barshaw that he drove to whether Bar- While testified that she did remember the multimeter in touching her when the home then found penetrated shaw had truck, Berndt, him, his who had followed pelvis, Kleypas’s examination revealed attempted majora that Barshaw instead inside of K.B.’s labia testified an abrasion home, by pen- finding the door only been caused to enter that could have relayed She this information to Kleypas that the abra- locked. etration.2 testified recent, progress. in the 911 as incident was sion was the skin affected addition, Barshaw that he did not body quickly. testified area of the heals Ac- as of the date of the incident that Kleypas, know cording to abrasion would retarded, despite hav- time it K.B. was bleeding hap- have caused ing had several conversations pened, put up against clothing *8 Berndt, however, it testified that would have on it. Forensic area blood that K.B. was men- knowledge” Patricia found “common scientist Retzlaff blood challenged, testified that tally Kleypas and on pajama stains on K.B.’s shorts bedsheets, signs tell exhibited she could that K.B. which DNA tests showed was first met developmental delay when she K.B.’s blood.3 This evidence is consistent testimony provides a conflicting her. This testimony. with K.B.’s during years, that to caseworker for two stated 1. While defense counsel alluded clos- knowledge, to a statement K.B. made that she was K.B. had never had a romantic or outcry, "mad” prior at Barshaw to relationship. sexual no indication of a record contains other mo- story. tive for K.B. to lie to concoct her or however, blood, pant- was no on 3.There wearing after the ies K.B. indicated she was to 2. There is no evidence in the record indi- incident, per- other nor the DNA of sexually cate that K.B. was active time clothing or found on bedsheets. son Porter, alleged K.B.'s MHMR incident. jury Generally for the to discredit Barshaw’s if speaking you’re basis —when testimony. credibility dealing even without KB.’s we’re mental with retardation on, and there’s anything addition, portions In of Barshaw’s own just there’s a diagnosis of mental retar- him at the scene of the place dation, primarily, there’s not a personali- incident. Barshaw himself admitted that ty that, something disorder or adding he was in house with K.B. alone on the my experience it’s been that folks with date of in question, the incident and conse- mental can painfully retardation be hon- quently in opportunity engage had est, mean, really. I it’s like a little kid the charged acts. He further stated that somebody who looks at in says grasped given her shoulders and old,” or, supermarket, “You’re really you her a on the cheek kiss when told him know, what say. little kids addition, birthday.4 it was her Barshaw The objected, defense indicating that the admitted that returned the home the “testimony is not relevant you because day next having without asked Berndt’s cannot to a people being class of permission. truthful.” The trial overruled the objection, and Barthlow continued: Given physical evi I was discussing individual’s mental re- trial, disagree dence admitted at I with the tardation, and kind of ability their said, majority that this simply “she up things. say make I’m not going to it Further, he said” if case. even the out mean, would never happen. anybody solely come on jury’s credibility rested capable making up something, is but K.B., pros assessments of the fact that the simplistic it’s nature. It would ecution grounded credibility on the said, be—like I it would be like liea victim, significant, while is not conclu tell, a child a story would a child would II, sive in determining harm. Schutz up. make It very easy be as an would S.W.3d at 446. Even in cases which parent adult or through to kind of see credibility is paramount, Texas courts have you’re And, thinking when of that. found violations Schütz and Yount again, my it’s experience been where the harmless record as a whole hundreds and people hundreds of provides adequate assurance that the seen, mental retardation that I’ve was able to exercise its function deter they’re pain- it’s more be that going to mine the credibility of witnesses. id. See fully They honest. haven’t learned the (holding though error was harmless even probably social skills and never will to “the against case rested know when when you should lie or of the complainant”). be socially appropriate to not tell Character the Error truth it might because hurt some- inquiry nature, next concerns the feelings, things character one’s *9 relationship of the error and its things They just say to the to hold back. what minds, much, other evidence. When about asked the comes into their ability mentally of people retarded to “fa- a again, seven-year-old like six- or child stories,” up bricate or make They something they elaborate would. see observation, Barthlow they’re going stated: make an 4. The the date of incident was December December 30th. birthday 18th. Berndt testified that K.B.'s is
634 entirety, its mony in and to make own they haven’t learned its that because say appro- etiquette of when that’s their
the determinations based on observations social appropriate. that’s not and when witness priate during of her time on the jury presented was also stand. above, portions of this testi recognized As above, in physical the evidence described of mony propensity the involve pen had cluding that K.B. been evidence truthful, a be class to people with the etrated in a manner consistent under consequently inadmissible and are However, Finally, jury the was charged. offense it is note I and Yount. Schütz testimony of competing at able to hear the equivocated the that Barthlow worthy statement, “I’m saying, not in to character witnesses the Barshaw addition start of happen. making never in its determi say supporting Barshaw mean, making anybody capable up the majority nation. the relies on While State, 12- Long “was, v. No. something....” that Barshaw on the face assertion Cf. 387018, *3, 07-00256-CR, at 2009 2009 WL it, witness,” the that the credible fact 1090, (Tex.App. at *8 Tex.App. LEXIS jury conflicting able to evaluate his was (mem. 18, 2009, pet.) op., no not -TylerFeb. the notion that the testimony reinforces (holding designated publication) for error large jury had a amount evidence reputa expert harmful where “staked testimony beyond consider the of the ex was noth tion on her conclusion there in its pert making determina troubling complaining the wit about harm of (indicating See id. tions. case”). testimony and the State’s ness’s mitigated by error amount of other addition, quoted passages constitute heard, jury including testimony evidence entirety impermissible of Barthlow’s truthful, peaceful, defendant “was expand She not testimony. did revisit law-abiding person who exhibited no un any other time during at statements chil natural toward sexual tendencies trial, attempt to elicit nor did the State dren”). testimony on matter. See further Jury Instructions 05-04-01104-CR, State, No. 2006 Garza *4, 69, 22882, LEXIS Tex.App. WL given Turning to the instructions to the 5, 2006, pet. (Tex.App.-Dallas at *12 Jan. jury, jury record indicates that the 'd) (mem. op., designated publi ref not instructed, “You are the exclu explicitly cation) (noting that State not “[t]he judges proved, sive facts pursue the matter further” after erroneous credibility of the witnesses and of the testimony admission Schutz/Yount weight given testimony.” This harmless). holding error jury’s role in instruction reinforced Further, of the relation an examination making credibility See determinations. ship (Tex. error the other evidence in Wilson v. S.W.3d jury the record indicates App.-Dallas (noting no that “the pet.) than just much more Barthow’s jury] they trial court instructed [the credibility of gauge on which to judges were the exclusive of a witness’s II, See at 446 (holding Schutz 63 S.W.3d harmless). credibility” finding error error expert harmless where inadmissible Closing Argument portion large of a “a small majority, noted Finally, as presented that the amount of evidence the inadmissible State did reference assessing could the vic have considered *10 foremost, testimony during portion of Barthow’s credibility”). tim’s First Further, ar- closing. began the State its was able to listen to KB.’s own testi got “You You to see gument, [K.B.] saw FOSTER, Appellant, Kodell important, that’s for person. And her, her, to hear and to you all to see added.) credibility.” (Emphasis
judge her Texas, Appellee. The STATE of The State also made other references credibility determination at the heart No. 10-07-00358-CR. case, telling jury, ‘You’re believe, [K.B.], you to have to decide who Texas, Appeals Court of or Mark Barshaw.” These statements in- Waco. that the ultimate determination of dicated 1, Sept. 2010.
credibility jury. with the rested See id.
(noting “[djuring closing arguments, emphasized jurors
the State to the
they judges [complainantj’s were the
credibility and never referred to [inadmis- percentage about the
sible] who lie being sexually
children about harmless). finding
abused” in error
Based on this review of the record as a
whole, including the evidence admitted at
trial, the character of the error and its evidence,
relationship to the the instruc given jury,
tions and the State’s
closing argument, I conclude that there is
a fair assurance that the error did not jury, slight
influence the or had but a II,
effect. See Schutz
46; 394; Garza, 90 S.W.3d at *4, Tex.App.
2006 WL
LEXIS at *12 (holding Schutz/Yount jurors pre
error harmless because were large
sented with amount of evidence to making credibility
consider determina
tion, State not pursue inadmissible evi testimony,
dence after admission of initial
jury was that it was sole judge instructed witnesses, and State did reference dur SchntziYount
ing closing). As I would therefore over
rule proceed Barshaw’s first issue and remaining appeal,
address his issues on
respectfully dissent. McDonald, Law, Attorney at
Charles W. Waco, TX, Appellant.