Kevin Fahrni v. State
473 S.W.3d 486
| Tex. App. | 2015Background
- Kevin Fahrni was convicted by a Bowie County jury of aggravated sexual assault of a child and sentenced to 50 years’ imprisonment.
- Victim ("Sarah") alleged multiple incidents; two other child witnesses (her brother Sam and another girl, "Kathy") testified about similar conduct by Fahrni while they lived with him years earlier.
- The State introduced Sam’s and Kathy’s testimony as extraneous-offense evidence and a SANE nurse’s report containing Sarah’s out-of-court statements; a forensic interviewer testified about her interviews.
- Fahrni objected to (1) admission of extraneous-offense testimony under Article 38.37 as inapplicable to offenses committed in 2008, (2) admission of the SANE report under the medical-diagnosis hearsay exception, (3) limits on cross-examining the State’s expert about facts underlying her opinion, (4) allegedly improper jury argument, and (5) the trial court’s use of an amended offense date in the jury charge.
- The trial court admitted the challenged evidence and allowed the amended indictment date (interlineated and initialed); the Court of Appeals affirmed, rejecting Fahrni’s five appellate points.
Issues
| Issue | Fahrni’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admission of Sam/Kathy testimony under Art. 38.37 (extraneous offenses) | 2013 amendment permitting non-complaining-child extraneous offenses should not apply because offense occurred in 2008; 2011 enactment paragraph governs | 2011 changes addressed only complaining-victim evidence; 2013 amendment (effective Sep 1, 2013) governs admissibility at trial and applies because the trial commenced after that date | Evidence admissible under Art. 38.37 §2; trial commenced after the 2013 amendment so extraneous-offense testimony properly admitted |
| Admission of SANE report (out-of-court statements) under medical-diagnosis exception (Tex. R. Evid. 803(4)) | Sarah’s statements were not shown to be made for medical diagnosis/treatment and SANE took the history for law-enforcement use | SANE’s testimony about purpose and the child’s interest in medical care supports inference child knew truthfulness mattered for diagnosis/treatment | Trial court did not abuse discretion; SANE statements admissible under Rule 803(4) |
| Limitation on cross-examining State’s expert (forensic interviewer) about statements relied on (Tex. R. Evid. 705) | Exclusion prevented Fahrni from probing facts/data underlying expert’s opinion and infringed confrontation rights | Court permitted cross-examination of the victim herself; Fahrni failed to make an offer of proof about what the expert would have said; error not preserved | No reversible error—Fahrni failed to preserve complaint via offer of proof; point overruled |
| Prosecutor’s closing argument (alleged burden-shifting) | Argument about victims and motive improperly lessened State’s burden of proof | Argument was a permissible summation, reasonable deduction, and response to defense theory; State reminded jury of burden | No abuse of discretion in overruling objection; argument was within permissible bounds |
| Amendment of indictment date / jury charge | Trial court used "on or about July 1, 2008" though original indictment alleged November 1, 2008; no effective amendment filed—thus defective indictment/evidence insufficiency | State obtained pretrial court-approved amendment; amended interlineated indictment with judge’s initials and clerk filed it; Fahrni raised no contemporaneous objection | Interlineated, judge-initialed copy filed in clerk’s record constituted an effective amendment; point overruled |
Key Cases Cited
- De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) (standards on admissibility of extraneous-offense evidence and Rule 404(b) principles)
- Howland v. State, 990 S.W.2d 274 (Tex. Crim. App. 1999) (construction of enactment provisions and meaning of "proceeding" for Article 38.37 applicability)
- Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) (requirements for admitting statements under Rule 803(4) and child’s awareness of need for truthfulness)
- Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) (interlineated indictment approved by the court is an effective amendment)
- Marsh v. State, 343 S.W.3d 475 (Tex. App.—Texarkana 2011) (deference standard—admissibility reviewed for abuse of discretion)
- Love v. State, 861 S.W.2d 899 (Tex. Crim. App. 1993) (preservation of error; necessity of offer of proof to complain about excluded evidence)
- Hernandez v. State, 351 S.W.3d 156 (Tex. App.—Texarkana 2011) (abuse-of-discretion review for extraneous-offense rulings)
- Beheler v. State, 3 S.W.3d 182 (Tex. App.—Fort Worth 1999) (examining record to determine child’s understanding of truthfulness to medical personnel)