Timothy Hearne v. State
14-14-00501-CR
| Tex. App. | Aug 18, 2015Background
- Three child complainants (N.A., D.O., A.H.) reported that appellant Timothy Hearne touched their genital areas; medical exams and CPS interviews followed.
- Hearne was indicted for two counts of indecency with a child and one count of aggravated sexual assault of a child under 14; he pleaded not guilty.
- At guilt-innocence Hearne testified; at punishment he did not. A jury convicted him on three counts of indecency with a child and sentenced him to 12 years on each count.
- At trial the State admitted six still photographs taken from videotaped forensic interviews showing complainants making gestures while answering questions.
- During the punishment-phase closing, the prosecutor commented that Hearne did not show remorse; defense objected as a comment on Hearne’s failure to testify, moved for mistrial, and the court sustained the objection, instructed the jury to disregard, and denied mistrial.
Issues
| Issue | State's Argument | Hearne's Argument | Held |
|---|---|---|---|
| Admissibility of photographs showing complainants' gestures (hearsay) | Photographs are admissible — gestures accompanied verbal responses and are not nonverbal assertions offered for truth. | Photographs depict nonverbal conduct intended as substitute for verbal expression and are inadmissible hearsay. | Court: Affirmed admission — gestures occurred with verbal statements, thus not hearsay. |
| Denial of motion for mistrial after prosecutor's comment about lack of remorse at punishment | Any comment was harmless; court cured error by sustaining objection, instructing jury, and prosecutor clarified reference to guilt-phase testimony; evidence of guilt/punishment strong. | Comment improperly commented on failure to testify at punishment phase and warranted mistrial. | Court: Denial of mistrial not an abuse — curative instruction and strength of evidence made prejudice insubstantial. |
Key Cases Cited
- Weatherred v. State, 15 S.W.3d 540 (trial-court evidentiary rulings reviewed for abuse of discretion)
- Foster v. State, 779 S.W.2d 845 (gesture accompanying an answer is not a substitute for verbal expression)
- Graham v. State, 643 S.W.2d 920 (nonverbal conduct may be hearsay if intended as assertion by conduct)
- Randolph v. State, 353 S.W.3d 887 (privilege not to testify at punishment phase; comment on silence improper)
- Archie v. State, 340 S.W.3d 734 (standards on mistrial and comments on silence)
- Cruz v. State, 225 S.W.3d 546 (when prosecutor's language is manifestly intended as comment on failure to testify)
- Bustamante v. State, 48 S.W.3d 761 (context required to determine whether argument comments on silence)
- Ladd v. State, 3 S.W.3d 547 (mistrial is appropriate only when prejudice is incurable)
- Mosley v. State, 983 S.W.2d 249 (factors for evaluating harm from prosecutorial misconduct)
- Moore v. State, 999 S.W.2d 385 (curative instruction usually cures comment on failure to testify)
- Schultze v. State, 177 S.W.3d 26 (consideration of punishment range and evidence strength in assessing harm)