By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair


If you were raped at age nine by your local YMCA counselor, do you think you would endure what is known in legal parlance as “future mental anguish?”


At least one Texas court of appeals did not think so: the Court of Appeals for the Fourth District of Texas.

The case originated in San Antonio. The local YMCA owns and operates a summer camp called Camp Flaming Arrow (CPA). The parents of a nine-year-old boy enrolled their son into CPA’s summer program. Beginning in 1998, CPA employed a counselor named Kenneth Trimble. In the Spring of 2000 YMCA learned that Trimble had been arrested for sexually molesting 20 children at CPA during his two-year employment. One of those was nine-year-old “Adam Adams” (a court-designated name). Trimble confessed that he had “sexually inappropriate contact” with young Adam. See: YMCA v. Adams, 220 S.W.3d 1, 2-3 (Tex.App.-San Antonio 2007). The court of appeals described that “sexually inappropriate contact” as follows:


“A. A. testified that one night he awoke screaming and Trimble went over to check on him but got into his bed and was bumping him. Both A. A. and Trimble were fully clothed. Apparently, this was the only incident occurring between A. A. and Trimble.” Id., at 3.


Adam’s parents sued the YMCA under the theory that its negligence in hiring, retaining, and supervising Trimble caused Adam’s injury. A civil jury returned a verdict with the following findings:

Trimble intentionally and knowingly caused serious mental impairment or injury to Adam;

YMCA’s negligence caused the injury;


Responsibility for the injury should be apportioned 95% to Trimble and 5% to YMCA; and

While Adam sustained no past mental anguish, he would probably sustain $500,000 in future mental anguish damages.


YMCA appealed the jury verdict on all four issues, asking the appeals court to proportionately modify the jury verdict so that it would be only 5% liable for the $500,000 damage award. The appeals court took YMCA’s request a step further. It held that since there was “no evidence” to support the jury finding of future mental anguish, Adams’ parents were entitled to nothing and the court entered a “take nothing” judgment. Id., at 3.


A finding of damages for mental anguish rests with the discretion of the jury but that discretion is not unlimited. See: Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). To recover damages for mental anguish, young Adams had to show with direct evidence “the nature, duration or severity of [his] anguish, thus establishing a substantial disruption in [his] daily routine,” or show by other evidence “a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.” Id.


Guided by these basic legal principles, the appeals court discussed the evidence young Adam presented to the jury on the issue of mental anguish:


”The jury heard the Adams’ expert testify that A. A. was coping with the incident by not talking about it. This expert testified that sexual abuse robs a child of his innocence and of a natural progressive establishment of some type of normal sexuality with his own peers. The expert referred to several instances where A. A. exhibited abnormal outbursts as a sign of the effects of the incident: his emotional state when his parents asked about his experience at camp; the letter A. A. addressed to Trimble filled with profanity; A. A.’s failure in math class that, according to the expert, was a result of a phobic anxiety because the math teacher’s conduct triggered memories of Trimble; and A. A.’s comments to his grandfather about his feelings towards Trimble. A. A.’s father testified that A. A. carries a deep shame. A. A. testified that he was angry at Trimble and that he would always remember the incident.


”Importantly, this expert never met with A. A. and testified that she did not conduct a diagnosis or evaluation of A. A. A clinical psychologist, who met A. A. once, stated that A. A. was coping through denial and that A. A.’s symptoms may not surface until some time in the future. This psychologist testified that he did not conduct a ‘full or typical evaluation’ or a diagnosis of A. A. In fact, on the one occasion the psychologist spent ‘about 10 to 15 minutes maximum with [A. A.], and about 45 minutes with the parents.’ Further, he understood that the Adams were not asking for an evaluation of A. A. but rather simply to “talk to him and let [them] know how he is, how [he] see[s] him.’ In his report, the psychologist stated:
“’ [A. A.] is an articulate, cooperative youngster who appears his stated age. He shows no overt signs of anxiety. He denies any history of depression and/or related symptoms. He had been diagnosed with ADHD when he was five to six years old and was on Adoral, five milligrams daily, up to the summer of 2000. Having recently talked to mother about the incident, [A. A.] says that he is more cautious about strangers when he is out and about. There is no appetite disturbance or sleep disturbance. Thoughts are clear, coherent, goal-directed. No signs of social withdrawal, irritability, et cetera.
He further stated, “at the moment that I saw him he was functioning well. [Although] [i]t doesn’t mean that six months down the road or a year, five years, ten years down the road” the situation will not change.’” Id., at 5-7.


The appeals court concluded that this evidence, at best, supported a claim for “past mental anguish” which the jury had rejected. The court said there was simply no evidence that Adam would suffer from “compensable mental anguish in the future.” Id., at 7. The court buttressed this finding by saying the expert testimony presented by Adam amounted to nothing more than a “possibility or speculation that at some time in the future [Adam’s] repressed hurt and feelings may surface.” Id., at 8. The court held that, as a result, jurors were left to speculate about the existence of “future compensable mental anguish.” Id.


Young Adam’s parents petitioned to the Texas Supreme Court for a review of the adverse ruling by the court of appeals, and on September 26, 2008, the state’s highest court reversed the court of appeals on the mental anguish issue and remanded the case back to the trial court. See: Adams v. YMCA, ___ S.W.3d ____, Slip Opinion No. 07-0221 (Tex. 2008). The state’s highest court gave the following reasons for its ruling that young Adam would indeed experience “future mental anguish”:


“The evidence in this case showed that, when A.A.’s parents learned of Trimble’s confession and asked A.A. about Trimble, A.A. became ‘hysterical almost,’ ‘went ballistic,’ and was ‘unconsolable.’ At his mother’s suggestion, A.A. wrote a letter to Trimble to express his feelings. That letter reflects A.A.’s intense anger and resentment, and graphically demonstrates the profound impact that the incident had on him. A.A.’s grandfather testified that he witnessed A.A.’s fury and rage over the event, and described A.A.’s yelling as so ‘visceral’ that it left a ‘lasting impression’ on him. The jury also heard A.A.’s own testimony that he had a ‘vivid memory’ of the night Trimble climbed into his bed, but that he had put it ‘in a vault.’


“According to the expert testimony presented at trial, A.A.’s reference to putting the incident ‘in a vault’ meant that he is using denial as a temporary coping mechanism, which is a common response to childhood sexual abuse. A.A.’s experts testified to other short-and long-term effects that sexual abuse had on child victims, some of which A.A. exhibited, and they described what A.A. is ‘more than likely to face in the future’ because of the incident. Short-term effects could be seen in the enormous emotional outpouring expressed in the letter A.A. wrote to Trimble. Another common effect that A.A. experienced was poor performance in school. A.A. math’s teacher reportedly engaged in inappropriate classroom behavior by snapping girls’ bras and slapping male students on their backsides, which reminded A.A. of Trimble and cause ‘phobic anxiety’ that led to his failing math. A.A.’s outbursts to his parents and grandfather further demonstrated the incident’s more immediate traumatic effects.


“There was also expert testimony that the trauma A.A. suffered will not simply disappear but will have to be processed in some manner when A.A. is ready, which may not happen for many years. In many cases where the victim ‘incapsulate[s]’ the incident in a vault, as A.A. has in this case, there is an ‘enormous reaction’ when that vault opens later in life. The evidence further showed that, while A.A. presently appeared to be functioning well, children who have been sexually abused are often not diagnosed with depression or anxiety until they are adults in their thirties, forties, and fifties.


“The court of appeals appeared to acknowledge that the evidence would support a claim for past mental anguish, but concluded that the jury’s denial of mental anguish in the past meant there was insufficient evidence of compensable injury in the future. Based on the evidence presented, we disagree. The jury’s failure to award damages for A.A.’s past mental anguish does not mean that they found no injury to A.A. in the past; to the contrary, the jury specifically found that Trimble’s conduct ‘cause[d] serious mental impairment or injury [to A.A.]’ The jury’s allocation of damages was entirely consistent with the testimony presented that A.A. was coping well by repressing his intense distress, which would inevitably surface in the future. We have recognized the consensus among experts that child victims of sexual abuse frequently repress and suppress memories and emotions associated with the event until their adult years. The evidence of A.A.’s emotional outbursts and phobic anxiety, coupled with the expert testimony, supports a reasonable inference that an ‘enormous’ reaction is likely when the ‘vault’ of A.A.’s memory opens. Texas law permits jurors to make such a determination, and the trial court did not err in rendering judgment on their verdict.” Id., Slip Opinion at 3-5.


The Adams case is significant for several reasons. First, it reaffirms the importance of the theory of recovery of damages for mental anguish. This is a particularly important rule of law in child sexual abuse cases. Second, and perhaps more importantly, it forces non-profit groups like the YMCA to vet and investigate the background of its “counselors” or “coaches” before hiring them. Parents who surrender their children to the care and supervision of these non-profits groups for “summer camp” adventure should be able to walk away with the confidence that their children will be properly supervised and protected.


Criminal defense attorneys understand all to well that child sexual abuse is a crime of opportunity. The greater care exercised by non-profits like YMCA, churches that sponsor child-related activities, and schools that offer after-hour athletic programs for children in the hiring of the adults who supervise these children, the less opportunity there will be for them to be sexually abused by adults.


As criminal defense attorneys we often see the world of child sex abuse up-close and personal. While we see truly horrendous crimes committed against children, we also see fabricated and false allegations made by children against innocent people. Our defense of the accused creates in some the false belief that criminal defense attorney condone the bad act and the bad actor. Nothing is further from the truth. We stand for the rule of law and demand the government prove their case. While it is terrible to be the victim of abuse, it is far worse to be falsely accused of such heinous acts.