Sessums v. State, 129 S.W.3d 242 (Tex. App. 2004). · Go Syfert
Sessums v. State, 129 S.W.3d 242 (Tex. App. 2004). Cases Citing This Book View Copy Cite
171 citation events (171 in the last 25 years) across 4 distinct courts.
Strongest positive: Fuller v. State (texapp, 2007-05-15)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Fuller v. State (5×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2007 · quote attribution · 1 verbatim quote · confidence high
tjhere is a reasonable probability that, but for counsel's error in failing to object to extensive, inadmissible, and critical testimony, the result of the proceeding would have been different.
examined Cited as authority (verbatim quote) Michael Charles Fuller v. State (5×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2007 · quote attribution · 1 verbatim quote · confidence high
there is a reasonable probability that, but for counsel's error in failing to object to extensive, inadmissible, and critical testimony, the result of the proceeding would have been different.
examined Cited as authority (verbatim quote) in the Matter of the Marriage of Marc Mathison and Alice Mathison (5×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2002 · quote attribution · 1 verbatim quote · confidence high
there is a reasonable probability that, but for counsel's error in failing to object to extensive, inadmissible, and critical testimony, the result of the proceeding would have been different.
discussed Cited as authority (rule) Joseph James Craver v. State
Tex. App. · 2020 · confidence medium
See also Barshaw v. State, 320 S.W.3d 625, 629 (Tex. App.—Austin 2010), reversed on other grounds, 342 S.W.3d 91 (psychologist’s testimony that “folks with mental retardation can be painfully honest” was inadmissible); Lopez v. State, 288 S.W.3d 148 , 158–59 (Tex. App.—Corpus Christi 2009, pet. ref’d) (where doctor was asked whether teenage boys are truthful when they make a sexual abuse outcry, doctor’s response that “[g]enerally, they tell the truth” was inadmissible); Lane v. State, 257 S.W.3d 22, 27 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (“Dr. Thompson�…
discussed Cited as authority (rule) Bryan Scott Cavett v. State
Tex. App. · 2018 · confidence medium
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.
cited Cited as authority (rule) Johnny Melchor MacIas v. State
Tex. App. · 2017 · confidence medium
See Fuller, 224 S.W.3d at 837 ; Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d); Miller v. State, 757 S.W.2d 880 , 884–85 (Tex. App.—Dallas 1988, pet. ref’d).
discussed Cited as authority (rule) Robert D. Maxwell v. State
Tex. App. · 2016 · confidence medium
In Sessums v. State, four expert witnesses were asked “to explain and then comment directly on the factors they used in determining if this [child- complainant] was telling the truth.” 129 S.W.3d 242, 248 (Tex.App.--Texarkana 2004, pet. ref’d).
discussed Cited as authority (rule) Robert D. Maxwell v. State
Tex. App. · 2016 · confidence medium
In Sessums v. State, four expert witnesses were asked “to explain and then comment directly on the factors they used in determining if this [child-complainant] was telling the truth.” 129 S.W.3d 242, 248 (Tex.App.-- Texarkana 2004, pet. ref’d).
discussed Cited as authority (rule) Kevin Wimes v. State
Tex. App. · 2015 · confidence medium
App. 1993) (“We hold that Rule 702 does not permit an expert to give an opinion that the complainant or class of persons to which the complainant belongs is truthful.”); Lane v. State, 257 S.W.3d 22, 27 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (finding counsel’s representation deficient because he failed to preserve complaint for review about one doctor’s testimony that “false accusations of childhood sexual assault are very rare” and a counselor’s testimony that she had determined that the complainant was telling the truth); Miller v. State, 757 S.W.2d 880 , 884–8…
discussed Cited as authority (rule) People v. Cernazanu
Colo. Ct. App. · 2015 · signal: cf. · confidence medium
Cf. Sessums v. State , 129 S.W.3d 242, 247-48 (Tex. App. 2004) (several experts testified as to the factors that they use to determine if a child was telling the truth and then further testified either that they believed the child was truthful or that the child had exhibited identified characteristics of truthfulness; such testimony was inadmissible as a direct opinion on the truthfulness of the child). ¶23        In so concluding, we necessarily reject the People’s assertion hat the evidence constituted evidence of truthful character that was admissible to rebut de…
discussed Cited as authority (rule) People v. Cernazanu
Colo. Ct. App. · 2015 · signal: cf. · confidence medium
Cf. Sessums v. State , 129 S.W.3d 242, 247-48 (Tex. App. 2004) (several experts testified as to the factors that they use to determine if a child was telling the truth and then further testified either that they believed the child was truthful or that the child had exhibited identified characteristics of truthfulness; such testimony was inadmissible as a direct opinion on the truthfulness of the child). ¶23        In so concluding, we necessarily reject the People’s assertion hat the evidence constituted evidence of truthful character that was admissible to rebut de…
discussed Cited as authority (rule) Rodolfo Aguirre-Moreno v. State
Tex. App. · 2015 · confidence medium
While an expert may testify to behaviors and traits that might be indicia of manipulation, a direct comment on a complainant’s “truthfulness” is “absolutely inadmissible.” Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.–Texarkana 2004, pet. ref’d).
discussed Cited as authority (rule) Charles Arrington v. State
Tex. App. · 2015 · confidence medium
See Fuller v. State, 224 S.W.3d 823, 835 (Tex. App.—Texarkana 2007, no pet.) (“defense counsel’s tactic seems to have been to allow, without objection, the State’s witnesses to testify to the credibility and truthfulness of J.W.’s allegations and then, on cross-examination, to explore the foundation for that witness’ belief in the credibility, believability, or truthfulness of J.W.’s allegations”); Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d) (“[W]e find ourselves reviewing the activities of trial counsel in failing to object to clearly and…
discussed Cited as authority (rule) Bryant, Billy Ray (2×)
Tex. Crim. App. · 2014 · confidence medium
App. 2006) (the appellant’s trial lawyer was deficient when he allowed the jury to hear prejudicial and clearly inadmissible evidence of prior convictions); Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d) (finding “no conceivable strategy or tactic that would justify” allowing “clearly and unquestionably objectionable testimony of the most outrageous and destructive type” regarding inadmissible evidence that a child witness was being untruthful when he made allegations of sexual molestation ).
discussed Cited as authority (rule) Jerry Johnson v. State
Tex. App. · 2014 · confidence medium
Johnson relies on Fuller, 224 S.W.3d at 826 , and Sessums v. State, 129 S.W.3d 242, 248 (Tex.App.-Texarkana 2004, pet. ref'd), in support of his contention that the failure to object to Shumake’s answer as quoted above is ineffective assistance of counsel.
cited Cited as authority (rule) Russell Olin Beard v. State
Tex. App. · 2012 · confidence medium
App. Beard v. State Page 7 1993); Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref'd).
cited Cited as authority (rule) Ray Edward Brookins v. State
Tex. App. · 2011 · confidence medium
Burzynski's testimony is similar to testimony introduced in Sessums v. State , 129 S.W.3d 242, 247-48 (Tex.App.--Texarkana 2004, pet. ref'd).
cited Cited as authority (rule) Ray Edward Brookins v. State
Tex. App. · 2011 · confidence medium
Burzynski’s testimony is similar to testimony introduced in Sessums v. State, 129 S.W.3d 242, 247-48 (Tex.App.--Texarkana 2004, pet. ref’d).
cited Cited as authority (rule) Ray Edward Brookins v. State
Tex. App. · 2011 · confidence medium
Burzynski's testimony is similar to testimony introduced in Sessums v. State , 129 S.W.3d 242, 247-48 (Tex.App.--Texarkana 2004, pet. ref'd).
cited Cited as authority (rule) Ray Edward Brookins v. State
Tex. App. · 2011 · confidence medium
Burzynski’s testimony is similar to testimony introduced in Sessums v. State, 129 S.W.3d 242, 247-48 (Tex.App.--Texarkana 2004, pet. ref’d).
cited Cited as authority (rule) Dennis Wayne Rogers v. State
Tex. App. · 2011 · confidence medium
App. 1993); Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref’d).
discussed Cited as authority (rule) Charles Anthony Cueva Ii v. State
Tex. App. · 2011 · confidence medium
App. 1993) (en banc); Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, 10 In his motion for new trial, Cueva also complained that his trial counsel failed "to object to the prosecutor's argument that [Cueva] and his mother were lying" during the guilt-innocence stage of the trial.
discussed Cited as authority (rule) Cueva v. State
Tex. App. · 2011 · confidence medium
Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App.1993) (en banc); Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.-Texarkana 2004, pet. ref'd); Fisher v. State, 121 S.W.3d 38, 41-42 (Tex.App.-San Antonio 2003, pet. refd).
discussed Cited as authority (rule) Genovevo Salinas v. State
Tex. App. · 2011 · confidence medium
See Fuller v. State, 224 S.W.3d 823, 836-37 (Tex.App.-Texarkana 2007, no pet.); Sessions v. State, 129 S.W.3d 242, 248 (Tex.App.-Texarkana 2004, pet. ref'd); Miller v. State, 757 S.W.2d 880, 884 (Tex.App.-Dallas 1988, pet. ref'd); Garcia v. State, 712 S.W.2d 249, 253 (Tex.App.-El Paso 1986, pet. ref'd).
discussed Cited as authority (rule) Campos v. State
Tex. App. · 2010 · confidence medium
Sessums v. State, 129 S.W.3d 242, 249 (Tex.App.-Texarkana 2004, pet. ref'd); see Palmer v. Hoffman, 318 U.S. 109, 110-15 , 63 S.Ct. 477, 479-81 , 87 L.Ed. 645 (1943) (holding that statements obtained in anticipation of litigation are not business records).
discussed Cited as authority (rule) Edwin Arnoldo Campos v. State
Tex. App. · 2010 · confidence medium
Sessums v. State , 129 S.W.3d 242, 249 (Tex. App.—Texarkana 2004, pet. ref’d); see Palmer v. Hoffman , 318 U.S. 109 , 110–15, 63 S. Ct. 477 , 479–81 (1943) (holding that statements obtained in anticipation of litigation are not business records) .
cited Cited as authority (rule) Lopez v. State
Tex. App. · 2010 · confidence medium
Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App.1993); Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.-Tex-arkana 2004, pet. refd).
cited Cited as authority (rule) Pablo Lopez v. State
Tex. App. · 2010 · confidence medium
App. 1993); Sessums v. State , 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref’d).
cited Cited as authority (rule) Estate of Ronnie Wren v. Al Bastinelli and Sue Bastinelli
Tex. App. · 2010 · confidence medium
Sessums v. State, 129 S.W.3d 242, 249 (Tex. App.—Texarkana 2004, pet. ref’d) (citing Freeman v. Am.
cited Cited as authority (rule) Estate of Ronnie Wren v. Al Bastinelli and Sue Bastinelli
Tex. App. · 2010 · confidence medium
Sessums v. State , 129 S.W.3d 242, 249 (Tex. App.--Texarkana 2004, pet. ref'd) (citing Freeman v. Am.
discussed Cited as authority (rule) Robert Herrera Sr. v. State (2×)
Tex. App. · 2009 · confidence medium
EVID. 401; Sessums v. State, 129 S.W.3d 242, 250 (Tex. App.—Texarkana 2004, pet. ref’d).
discussed Cited as authority (rule) My Thi Tieu v. State (2×)
Tex. App. · 2009 · confidence medium
See Wood v. State, 260 S.W.3d 146, 149 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (new trial warranted based on ineffective assistance under circumstances in which "the evidence of guilt at trial is not overwhelming"); Hall v. State, 161 S.W.3d 142, 156 (Tex. App.-Texarkana 2005, pet. ref'd) ("Failing to object to the omission of an accomplice witness instruction allowed the jury to convict without any corroborating evidence."); see also Fuller v. State, 224 S.W.3d 823, 837 (Tex.App.-Texarkana 2007, no pet.) ("The State's case-in-chief consisted of the testimony of J.W. and four witnesses, e…
discussed Cited as authority (rule) My Thi Tieu v. State
Tex. App. · 2009 · confidence medium
See Wood v. State , 260 S.W.3d 146, 149 (Tex. App. B Houston [1st Dist.] 2008, no pet.) (new trial warranted based on ineffective assistance under circumstances in which A the evidence of guilt at trial is not overwhelming @ ); Hall v. State , 161 S.W.3d 142, 156 (Tex. App. B Texarkana 2005, pet. ref = d) ( A Failing to object to the omission of an accomplice witness instruction allowed the jury to convict without any corroborating evidence. @ ); see also Fuller v. State, 224 S.W.3d 823, 837 (Tex. App. B Texarkana 2007, no pet.) ( A The State = s case-in-chief consisted of the testimony of J.W…
cited Cited as authority (rule) Keith Arcement v. State
Tex. App. · 2009 · confidence medium
App. 1993); Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref'd); see TEX .
cited Cited as authority (rule) Keith Arcement v. State
Tex. App. · 2009 · confidence medium
App. 1993); Sessums v. State , 129 S.W.3d 242, 247 (Tex. App.--Texarkana 2004, pet. ref'd); see Tex. R.
discussed Cited as authority (rule) in the Interest of A. N., a Child (2×) also: Cited "see"
Tex. App. · 2009 · confidence medium
App. 1993); Sessums v. State , 129 S.W.3d 242, 247 (Tex. App.--Texarkana 2004, pet. ref'd).
discussed Cited as authority (rule) Emmitt Wayne Upton v. State (2×) also: Cited "see"
Tex. App. · 2009 · confidence medium
App. 1993); Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref'd).
discussed Cited as authority (rule) Emmitt Wayne Upton v. State (2×) also: Cited "see"
Tex. App. · 2009 · confidence medium
App. 1993); Sessums v. State , 129 S.W.3d 242, 247 (Tex. App.--Texarkana 2004, pet. ref'd).
cited Cited as authority (rule) John Raymond Sheffield v. State
Tex. App. · 2008 · confidence medium
App. 1993); Sessums v. State , 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref’d ).
discussed Cited as authority (rule) Lane v. State (2×)
Tex. App. · 2008 · confidence medium
Fuller v. State, 224 S.W.3d 823, 836 (Tex.App.-Texarkana 2007, no pet.); Sessums v. State, 129 S.W.3d 242, 248 (Tex.App.-Texarkana 2004, pet. ref'd); *28 Miller v. State, 757 S.W.2d 880, 884 (Tex. App.-Dallas 1988, pet. ref'd).
discussed Cited as authority (rule) Frederick Lane v. State (2×)
Tex. App. · 2008 · confidence medium
Fuller v. State , 224 S.W.3d 823, 836 (Tex. App. C Texarkana 2007, no pet.); Sessums v. State , 129 S.W.3d 242, 248 (Tex. App. C Texarkana 2004, pet. ref = d); Miller v. State , 757 S.W.2d 880, 884 (Tex. App. C Dallas 1988, pet. ref = d).
cited Cited as authority (rule) Texas Department of Public Safety v. Robert Aaron Sanchez
Tex. App. · 2007 · confidence medium
Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.-Texarkana 2004, no pet. h.).
discussed Cited as authority (rule) Ex Parte David R. Thompson
Tex. App. · 2007 · confidence medium
App. 1993); Sessums v. State , 129 S.W.3d 242, 249 (Tex. App.-Texarkana 2004, pet. ref'd); Brown v. State , 974 S.W.2d 289, 294 (Tex. App.-San Antonio 1998, pet. ref'd); Raney v. State , 958 S.W.2d 867, 879 (Tex. App.-Waco, 1997 pet. dism'd); Thomas v. State , 812 S.W.2d 346, 349-50 (Tex. App.-Dallas 1991, no pet.).
cited Cited as authority (rule) Check 21554 Issued by Robert Callaway v. State
Tex. App. · 2006 · confidence medium
Sessums v. State , 129 S.W.3d 242, 249 (Tex. App.--Texarkana 2004, pet. ref'd) (citing Freeman v. Am.
cited Cited as authority (rule) David Lee Foster v. State
Tex. App. · 2004 · confidence medium
Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.–Texarkana 2004, no pet. h.).
cited Cited as authority (rule) David Lee Foster v. State
Tex. App. · 2004 · confidence medium
Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.-Texarkana 2004, no pet. h.).
cited Cited as authority (rule) David Lee Foster v. State
Tex. App. · 2004 · confidence medium
Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.–Texarkana 2004, no pet. h.).
cited Cited as authority (rule) Kenneth Wayne Roberts v. State
Tex. App. · 2004 · confidence medium
App. 2003); Sessums v. State , 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. filed).
cited Cited as authority (rule) Angel Alberto v. State
Tex. App. · 2003 · confidence medium
App. 2003); Sessums v. State , 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. filed).
cited Cited as authority (rule) Gary Moorhead v. State of Texas
Tex. App. · 2002 · confidence medium
App. 1993); Sessums v. State , 129 S.W.3d 242, 247 (Tex. App.--Texarkana 2004, pet. ref'd); see Tex. R.
Retrieving the full opinion text from the archive…
Larry Don SESSUMS, Sr., Appellant,
v.
the STATE of Texas, Appellee
06-02-00149-CR.
Court of Appeals of Texas.
Feb 26, 2004.
129 S.W.3d 242
2004 Tex. App. LEXIS 1806
2004 WL 351837
Judy Hodgkiss, Moore Law Firm, LLP, James R. Rodgers, Paris, for appellant., Michael Skotnik, Asst. Dist. Atty., Bon-ham, for appellee.
Morriss, Ross, Carter.
Cited by 100 opinions  |  Published

OPINION

Opinion by

Justice ROSS.

A jury convicted Larry Don Sessums, Sr., of one count of aggravated sexual assault of a child and one count of indecency with a child. The convictions originated from a single indictment containing multiple counts. The jury assessed punishment at forty years’ imprisonment for aggravated sexual assault and twenty years’ imprisonment for indecency with a child. In an unpublished opinion released June 20, 2003, we found there was no evidence to support the conviction for aggravated sexual assault and reversed and ordered an acquittal on that charge. Based on the fact the brief did not argue or discuss the conviction for indecency with a child, but referred only to the aggravated sexual assault, we concluded the brief presented nothing for our review on that conviction. See Tex.R.App. P. 38.1(h) (requiring brief to contain clear and concise argument for contentions made, with appropriate citation to authority and record); Ladd v. State, 3 S.W.3d 547, 575 (Tex.Crim.App.1999) (holding that requiring appellants to abide by briefing rules and make reasonable arguments does not offend due process).

The Texas Court of Criminal Appeals granted Sessums’ petition for review, denied the State’s petition for review, and in an unpublished opinion reversed our opinion as to the indecency conviction. The court agreed the brief did not mention the indecency conviction, but (relying on counsel’s statement at oral argument he intended to also appeal that portion of the conviction) nonetheless directed this Court to construe Sessums’ brief liberally and address the unmentioned issue. Accordingly, we now turn to a review of Sessums’ conviction for indecency with a child.

Factual and Procedural Background

As we detailed in our first opinion, the evidence shows that, around July 1, 1999, Jennifer Wallace, J.D.S.’s mother, walked into a bedroom and discovered her five-year-old son, J.D.S., performing oral sex on Charles Ray Woods, the stepfather of her husband, Aaron Wallace. [1] This incident provoked an investigation by Child[*245] Protective Services (CPS). As part of the investigation, Ron Hamilton, a CPS investigator, interviewed J.D.S. During the interviews, J.D.S. revealed that, in addition to the sexual abuse by Woods, his “pawpaw” had also sexually abused him. J.D.S.’s “pawpaw” was identified as Ses-sums, his paternal grandfather.

Sue Jennings, a licensed professional counselor and certified sex offender treatment provider, also interviewed J.D.S. According to Jennings, J.D.S. told her his “pawpaw had done some very bad things” like messing with his “private parts” by using his “hands and fingers” and touching his “pee pee” and “bobo” with his “pee pee.” Jennings testified that, when J.D.S. said “bobo,” she understood this to mean his “bottom.”

Based on these interviews, the State charged Sessums with one count of aggravated sexual assault of a child and one count of indecency with a child.

At trial, no medical evidence or eyewitness testimony was adduced. The State’s evidence consisted of testimony of four expert witnesses and the testimony of J.D.S.’s step-grandfather, Jim Hale.

Sessums raises five points of error. He stated in his petition to the Texas Court of Criminal Appeals he was not attacking the sufficiency of the evidence as to the indecency conviction, but was relying on his remaining contentions of error. We will thus now address those remaining contentions of error.

Discussion

Although sufficiency of the evidence is not at issue, we summarize the State’s evidence to provide a context for analysis.

The indictment against Sessums for indecency with a child alleged Sessums intentionally or knowingly, with intent to arouse or gratify his sexual desire, engaged in sexual contact by touching part of the genitals or by touching the anus of J.D.S., a child younger than the age of fourteen and not the spouse of the defendant.

Jennings testified J.D.S. told her his “pawpaw” had done “some very bad things” including touching his “pee pee” and “bobo” with his “pawpaw’s” “pee pee,” and touching his “private parts” with his “pawpaw’s” hand and finger. Hamilton and Laura McAndrews, a psychological therapist, also testified that, during their interviews with J.D.S., he revealed that his “pawpaw” had touched his “private parts.” In addition to this testimony, Hale, J.D.S.’s step-grandfather, testified that:

[Hale]: ... I was hooking up to do my dialysis and I asked [J.D.S.] to sit down in peepaw’s recliner and he hung his head like this and he said, “I can’t, peepaw,” and I said why, and he said, “my bobo is sore.” I said what, “do you mean your bobo is sore.” And he hung his head again and he said, “pawpaw’s been playing with it.”
[Prosecutor]: Who did you understand him to me [sic] by pawpaw?
[Hale]: Larry Don Sessums, Sr.
[Prosecutor]: When he told you that, what was your reaction?
[Hale]: Very upset and beet red.
[Prosecutor]: What do you understand him to mean when he told you that?
[Hale]: In my own mind, I drew a conclusion that he had been messing with his bobo.
[Prosecutor]: As in spanking him or what?
[Hale]: No.
[Prosecutor]: Was it clearly something other than spanking?
[Hale]: Yes.
[*246] [Prosecutor]: What was it clear to you that it was?
[Hale]: In my own words? In my own words, I think he was molesting the child.

In the prior appeal, the State argued that Hale’s testimony about a “sore bobo” and a belief that J.D.S. was molested, combined with the testimony of Jennings, Hamilton, and McAndrews that Sessums touched J.D.S.’s “private parts” was legally sufficient evidence on the issue of penetration. We concluded this constituted no evidence of penetration. The Texas Court of Criminal Appeals denied petition on the State’s request to address that ruling; thus, in that respect, our opinion is now final.

There is evidence Sessums touched J.D.S.’s “private parts” and “bobo,” but the State offered no evidence specifically defining these nontechnical terms. Although Jennings testified that, when J.D.S. said “bobo,” she understood him to be referring to his “bottom,” no evidence was adduced indicating he was specifically referring to his anus. Without conjecture and speculation, we cannot know to what J.D.S. was referring when he used the terms “bobo,” “pee pee,” and “private parts.”

Moreover, Hale’s testimony that J.D.S. had a “sore bobo” does not necessarily equate to a reference to a sore anus.

Ineffective Assistance of Counsel

In his first and fifth points of error, Sessums contends he received ineffective assistance of counsel. He specifically argues counsel was ineffective because he did not object to (1) expert testimony about J.D.S.’s credibility, (2) improper bolstering, and (3) hearsay. Sessums argues that these failures to object prejudiced him because he received a twenty-year sentence in a case with no physical evidence, no eyewitnesses, and no testimony from the victim.

The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). To meet this burden, an appellant must prove that his or her attorney’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney’s deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000).

Our review of counsel’s representation is highly deferential; we indulge a strong presumption counsel’s conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App.1979). That another attorney, including appellant’s counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex.App.-Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

We further recognize that the Texas Court of Criminal Appeals has held that, under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was[*247] so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001). In addressing this reality, the court has explained that appellate courts can rarely decide the issue of ineffective assistance of counsel because the record almost never speaks to the strategic reasons trial counsel may have considered. The proper procedure for raising this claim is therefore almost always habeas corpus. Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App.2003); Freeman v. State, 125 S.W.3d 505 (Tex.Crim.App.2003). Nevertheless, some claims may be disposed of on direct appeal where “trial counsel’s ineffectiveness is so apparent from the record.” Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Freeman, at 506-07.

In each instance of the complained-of testimony, Eddie Waggoner, expert psychologist or psychiatrist, Hamilton, CPS investigator, Jennings, psychological therapist, McAndrews, psychological therapist, trial counsel had to choose whether to object to expert testimony concerning the truthfulness of the victim. Counsel did not object to any of the testimony. Counsel on appeal argues this is blatantly ineffective and is so utterly unsupportable and harmful that these errors require reversal.

Sessums correctly states that expert testimony that a particular witness is truthful is absolutely inadmissible under Rule 702. See Tex.R. Evid. 702; Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App.1993); see also Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997). Behind this bald statement, however, courts have held that an expert’s testimony that a child did not exhibit the traits of manipulation is not a direct comment on the truth of the child’s allegations and thus is admissible. See Schütz, 957 S.W.2d at 73. Therefore, while an expert is not allowed to directly comment on a complainant’s “truthfulness,” an expert may testify to behaviors and traits that might be indicia of manipulation. Id.

It has also been held that a court may admit expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused as substantive evidence under Rule 702. Perez v. State, 113 S.W.3d 819, 832 (TexApp.-Austin 2003, pet. ref'd); Hitt v. State, 53 S.W.3d 697, 707 (Tex.App.-Austin 2001, pet. ref'd).

Application to these facts

The expert testimony in this case does substantially more than show that the child shows no indicia of untruthfulness or describe characteristics common among sexually abused children.

The experts

Waggoner was asked what factors he used to determine if a child was “telling the truth.” After describing the factors for truthfulness, the witness was asked, “How does [the victim] fit in those factors?” Waggoner then testified the victim exhibited such factors.

Hamilton was asked what factors he looked at to tell if a child was telling the truth. He then set out those factors. He was then, as above, asked how this particular child fit those factors, and thus whether he believed this child was being truthful in his actions. Hamilton finally testified this child was one of the two percent in which he found a reason to believe the child and therefore referred the case for prosecution.

Jennings testified she looked at specific factors to determine whether the child was credible, and then was asked how this child fit those factors. She did not testify[*248] this child was truthful, but did specify how this child fit into certain behaviors typical for children who had experienced sexual abuse (such as blaming himself or herself, or feeling guilty).

McAndrews was asked whether she used methods to determine whether a child was telling the truth, and focused her testimony on the consistency of the child’s testimony. She then testified that his behavior had been consistent all the way through and that this was a “pretty good indication that he’s telling the truth.”

The witnesses here were asked to explain and then to comment directly on the factors they used in determining if this child was telling the truth. We have previously held that testimony regarding the factors for truthfulness observed by the experts directly comment as to the truthfulness of the child. As such, it does not assist the jury and is inadmissible. Tex.R. Eved. 702; Edwards v. State, 107 S.W.3d 107, 116 (Tex.App.-Texarkana 2003, pet. ref'd); Wilson v. State, 90 S.W.3d 391, 393 (Tex.App.-Dallas 2002, no pet.) (also finding court erred by allowing testimony about percentage of children who lie about being sexually assaulted).

The observations made by the experts in their testimony in this case are all of the type that can and should be judged and determined by a jury without the help of an expert. In addition, their final conclusions — that the child was being truthful— are clearly inadmissible.

Further, as pointed out by Sessums, in closing arguments the State specifically discussed (without objection) that the child must not be a liar, because he was able to convince all four of these experts he was telling the truth.

He didn’t fool all those people. I brought you a bunch of people with years of experience. Every one of them said the kid’s telling the truth, he done it. You have got to find that kid is a liar and all those people are fools and don’t know what they are doing in order to find him not guilty.

In this case, we find ourselves reviewing the activities of trial counsel in failing to object to clearly and unquestionably objectionable testimony of the most outrageous and destructive type. There is no conceivable strategy or tactic that would justify allowing this testimony in front of a jury.

The Dallas Court of Appeals addressed this same problem over ten years ago in Miller v. State, 757 S.W.2d 880, 884 (Tex.App.-Dallas 1988, pet. ref'd). In that opinion, the court concluded that failing to object to the “extensive, inadmissible testimony concerning the only real issue at trial — complainant’s credibility” was deficient and resulted in denying the appellant effective assistance of counsel. We find ourselves in agreement with that reasoning.

Thus, we find counsel’s performance to be constitutionally inadequate. The remaining question is that of harm. The entire issue before this jury was whether this defendant had sexually abused the victim. In reference to this defendant, the only testimony was about statements made by the victim. Thus, the question of whether the victim was truthful was the ultimate question before the jury. The jury found the defendant guilty and then assessed the maximum punishment. In light of these factors, as in Miller, we must likewise agree there is a reasonable probability that, but for counsel’s error in failing to object to extensive, inadmissible, and critical testimony, the result of the proceeding would have been different.

Bolstering

Sessums also contends the experts’ testimony constituted improper bol[*249] stering of the testimony and statements made by the child victim. Bolstering occurs when the sole purpose of testimony is to enhance the credibility of another witness without adding anything to the proof of a relevant fact. Morales v. State, 2 S.W.3d 487, 488 (Tex.App.-Texarkana 1999, pet. ref'd). Counsel did object at several points, as set out by the appellant’s brief, that the experts’ testimony was speculation. That did not preserve the present contention for our review. For a contention to be raised on appeal, it must have been raised at trial by objection. Error is not preserved for review if it varies from the objection. Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999). Accordingly, this argument is not before the Court for review.

Under this same point of error, counsel also argues the trial court erred by admitting, over his hearsay objection, a letter written by Jennings to the County Attorney’s office. We use an abuse of discretion standard when reviewing the trial court’s decision to admit evidence. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001). An appellate court will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; Burden, 55 S.W.3d at 615.

The letter was written to the prosecutor and was a summary of the treatment given to J.D.S. The State first argues the letter was admissible as a business record under Tex.R. Evid. 803(6). The record indicates it was written in preparation for trial rather than in the regular course of Jennings’ business. A letter written in preparation for litigation is not qualified as a business record under Rule 803(6). See Freeman v. Am. Motorists Ins. Co., 53 S.W.3d 710, 714-15 (Tex.App.-Houston [1st Dist.] 2001, no pet.).

The State also argues the letter qualified as a record of medical diagnosis and was thus admissible under Tex.R. Evid. 803(4). Jennings has a master’s degree in counseling psychology, is licensed by the Texas State Board of Examiners of Psychology, and was treating J.D.S. Under the meaning of the rule, she was the type of medical professional to which a statement for the purpose of medical treatment or diagnosis may be made. Thus, we conclude the admission of the letter was, at the least, within the zone of reasonable disagreement and not an abuse of discretion. The contention of error is overruled.

Testimony about Victim’s Prognosis

Sessums further contends that the testimony by Jennings about the child’s long-term prognosis was not relevant and that the court erred in admitting it. See Tex.R. Evid. 401. Sessums argues that, because it was undisputed J.D.S. had been sexually abused by at least one person other than he, testimony about his prognosis and future treatment was not probative on the matter of Sessums’ guilt.

In support of this position, Sessums directs the Court to Brown v. State, 757 S.W.2d 739 (Tex.Crim.App.1988). Brown involved a prosecution for rape. In Brown, the rape itself was not disputed and the only issue was the validity of the defendant’s alibi. Id. at 740. The trial court admitted evidence of the victim’s two suicide attempts, weight gain, job loss, fear of being outside, and loss of confidence, all of which occurred in the eight months between the rape and the trial. The court of appeals affirmed the admission, and the Texas Court of Criminal Appeals reversed, concluding that the evidence of the victim’s emotional difficulty was irrelevant as to[*250] the defendant’s alibi — the only issue in the case. See id. at 741.

In reviewing relevance, the Texas Court of Criminal Appeals concluded, in line with the language of the rule, that for an item to be relevant, it must logically increase one’s knowledge and enhance the likelihood of ascertaining the truth about a fact at issue. Id. at 740.

In this case, the fact at issue was whether Sessums — in addition to other abusers — also abused J.D.S. The evidence in dispute was testimony about J.D.S.’s prognosis, treatment, and injuries. Our task is to determine if, under the abuse of discretion guidelines set out above, the trial court could conclude that this evidence either logically enhances or increases the likelihood of ascertaining the truth about whether Sessums abused J.D.S.

We conclude that the evidence about the extent of J.D.S.’s trauma, injuries, and his prognosis is probative circumstantial evidence that tends to show J.D.S. was abused by more than one person. Therefore, it logically increases the possibility that Sessums abused J.D.S., and the court’s ruling admitting the evidence was not outside the zone of reasonable disagreement. The contention of error is overruled.

Conclusion

Because we sustain Sessums’ contention he received ineffective assistance of counsel at trial, we reverse the judgment of the trial court and remand the case for a new trial on the indecency with a child charge.

1

. Woods was convicted of sexual assault of a child.