dissenting.
I respectfully dissent, because I cannot say the trial court’s errors as described by the majority were harmless beyond a reasonable doubt.
As noted by the majority, Jane Bingham was qualified as an expert in the field of sexual assault. I agree that if her testimony had properly been limited to hypotheti-cals that it would have been admissible. However, the majority also acknowledges the trial court erred in allowing Bingham to testify that this was a social acquaintance rape and Shaw was a power rapist.
We must reverse unless we determine, beyond a reasonable doubt, that the error made no contribution to Shaw’s conviction or to his punishment. See TEX.R.APP.P. 81(b)(2).
The issue of whether an assault occurred was a critical issue. After the assault was to have taken place, the complaining witness did not act as one might expect a victim to act. Instead of reporting the incident to anyone, she performed several routine errands and visited with friends and family, including Shaw’s wife, all without mentioning the attack. Bingham was called as a witness to explain to the jury why L.C., the complaining witness, might have acted as she did. As the majority admits, Bingham, over objection, repeatedly characterized this event as a rape and Shaw as a rapist.
I disagree with the majority’s conclusion that this error was harmless because of the fact that Bingham admitted on cross-examination she did not know whether a rape had occurred, and in view of the fact that the judge instructed the jury it was up to them to determine whether an assault occurred. The difficulty with the majority’s position is that it relies on a presumption that the witness’s message, that she did not know whether there was a rape, and the judge’s message, that it was up to the jury to decide whether there was a rape or not, got through to the jury. The problem with the majority’s presumption is that both the witness and the judge were sending mixed signals to the jury on this issue.
Although Bingham testified she did not actually know whether there had been a rape, more frequently she was in some way characterizing the events as a rape and Shaw as a rapist. Although the trial judge instructed the jury that it was up to them to decide whether a rape had occurred, he occasionally overruled objections to such testimony by Bingham and on more than one occasion declined to instruct the jury to disregard such testimony after sustaining objection to it. He also told the jury it could consider any part of the witness’s testimony in making its decision. I believe a juror could have concluded it was proper to consider Bingham’s testimony that a rape had occurred and that Shaw was a rapist in reaching a conclusion on the issue of Shaw’s guilt or innocence. For this reason, I am unable to determine, beyond a reasonable doubt that the error made no contribution to the conviction or to the pun*823ishment. Accordingly, I would reverse and remand for trial.