Richard B. Reed v. State
497 S.W.3d 633
Tex. App.2016Background
- Richard B. Reed was convicted by a jury of two counts of aggravated sexual assault of a child under 14 and one count of indecency by exposure; sentenced to 35 years as a habitual offender.
- Victim R.P., age nine at the time, testified about multiple instances of digital and other sexual contact and that Reed showed her his genitals.
- Three witnesses (CPS investigator Veronica Swink, forensic interviewer Ashley Johnson, and medical examiner Brenda Crawford) testified about R.P.’s out-of-court statements; defense objected to each as inadmissible hearsay/outcry.
- A police interview video of Reed was played to the jury; by inadvertence the jury heard an officer ask Reed if he would take a polygraph. Defense moved for mistrial; trial court instructed the jury to disregard and denied mistrial.
- On appeal Reed raised four points: the admissibility of the three outcry witnesses’ testimony and the denial of mistrial over the polygraph question. The court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Reed) | Held |
|---|---|---|---|
| Admissibility of Swink’s testimony (CPS investigator) | Testimony corroborates R.P. and rebuts defense theory of coaching; may be admitted as prior consistent statement | Swink’s account is cumulative and not proper outcry; hearsay | Admitted — trial court did not abuse discretion; admissible as prior consistent statement under Rule 801(e)(1)(B) given impeachment and coaching allegations |
| Admissibility of Johnson’s testimony (forensic interviewer) | Forensic interview disclosed substantive allegations and explained child’s disclosures; properly admissible | Contended hearsay/outcry rules preclude repeated outcry testimony | Admitted — properly received; could be admitted as prior consistent statement and as forensic interview evidence |
| Admissibility of Crawford’s testimony (medical examiner/sexual assault examiner) | Provided new details (ejaculation, use of baby oil) and statements were made for medical diagnosis/treatment | Claimed sham to introduce hearsay not allowed as outcry | Admitted — trial court could admit under medical-diagnosis exception (Rule 803(4)) and/or as non-hearsay prior consistent statement |
| Denial of mistrial after jury heard officer ask about polygraph | The question was inadvertent; instruction to disregard would cure any prejudice | The question implied Reed refused or failed a polygraph and was incurable prejudice requiring mistrial | Denied — no abuse of discretion: court found inadvertence, gave curative instruction, no evidence of bad faith or that mention bolstered State’s case; instruction cured harm |
Key Cases Cited
- De la Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) (appellate review of evidentiary rulings is for abuse of discretion)
- Klein v. State, 273 S.W.3d 297 (Tex. Crim. App. 2008) (prior consistent statements admissible when recent fabrication or improper influence alleged)
- Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) (standards for mistrial and curative instructions)
- Nethery v. State, 692 S.W.2d 686 (Tex. Crim. App. 1985) (polygraph results are inadmissible due to unreliability)
- Martines v. State, 371 S.W.3d 232 (Tex. App.—Houston [1st Dist.] 2011) (instruction to disregard normally cures mere mention of polygraph when no results disclosed)