Salinas v. State

In Salinas v. State, 166 S.W.3d 368 (Tex. App.--Fort Worth 2005, pet. ref'd), the complainant testified that the defendant had digitally penetrated her anus with his finger. Id. The State's expert testified that, generally, there will be no physical evidence of the insertion of a finger into the anus of a six-year-old child. Id. Nevertheless, the expert testified that she had diagnosed sexual abuse based solely upon the history provided by the complainant, noting that the complainant's medical exam results were "consistent with that history." Id. That is, the expert "diagnosed sexual abuse by digital penetration of the anus solely because the child told her that digital penetration had occurred." Id. The Court held that such testimony was "a direct comment on the credibility of the complaining witness." Id. at 371. Accordingly, we held that "because there was no physical indication of digital penetration, the expert's testimony could only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant's truthfulness." Id. The Court further stated that "Although the expert could have properly testified that the physical exam was normal, the trial court abused its discretion in admitting the expert's testimony that she had diagnosed sexual abuse based on the child's medical history." Id. In Salinas v. State, the nature of the alleged abuse left no physical evidence. Id. at 370. Nevertheless, the trial court allowed the examining physician to testify that the victim was sexually assaulted solely on the basis of the child's statements to the physician. Id. The court held that "because there was no physical evidence of sexual abuse, the physician's testimony can only be seen as an improper attempt to directly bolster the credibility of the complainant and a direct comment on the complainant's truthfulness." Id. at 371.