Lead Opinion
EN BANC OPINION
Aрpellant, Martin Kenny Berotte, pleaded not guilty to two counts of indecency with a child.
Background
Appellant’s first marriage to Veronica H. ended in divorce. The couple had two daughters, T.B. and R.B. After the divorce, the girls lived with their mother and appellant had visitation rights. Appellant’s second marriage was to Lisa Marie G., who had a child by a previous marriage, N.F.
N.F.’s grandmother was bathing her one evening, when the child cried out in pain and told her grandmother that her daddy had hurt her “tutu.” The grandparents took the child to Gulf Coast Hospital in Baytown, then to Texas Children’s Hospital in Houston. Doctors suspected the child had been sexually abused because N.F. had injuries to her genital area; they informed the Baytown Police Department. Baytown police officer Marvin Currie arrested appellant, but eventually released him without charges in regard to N.F. Appellant voluntarily underwent polygraph testing.
While Currie was investigating the incident with N.F., he received a new report from Veronica H. alleging appellant had molested T.B. She told Currie that T.B. had made an outcry to her uncle, Felton
The Videotape
In point of error one, appellant argues the trial court erred by not allowing the jury to see a videotape admitted into evidence and requested by the jury during its deliberations as part of a general request for exhibits. We disagree.
The videotape, which was made by appellant, included footage of appellant, his wife, and his children interacting in various settings — flying a kite, relaxing by the pool, celebrating Christmas — over a period of threе years. While the trial court initially admitted the tape into evidence, after the jury had retired to deliberate, it reconsidered its earlier decision and announced that the jury would not be permitted to watch the tape. During deliberations, however, the jury asked to see “all” of the exhibits. Although all other exhibits were delivered to the jury room, the tape was not given to the jury. Approximately one hour later, the jury returned a guilty verdict.
The statement of facts does not include any other reference to the tape; however, the transсript contains a secondary charge to the jury advising them to view the tape only with the sound turned off. At the bottom of this supplemental charge is a handwritten entry, signed by the trial court:
This document was offered along with the videotape to the jury during its deliberation. Before accepting this document or the video, the bailiff was instructed by the jury that it did not want the video. Neither this instruction nor the video was seen by the jury.
It is uncontested that the jury never watched the videotape, even though it had been admitted as an exhibit and the jury had requested “all” exhibits, and even though defense counsel specifically objected to the trial court’s failure to give the videotape to the jury. The supplemental charge and handwritten entry indicate the trial court attempted to correct what it considered to be an erroneous ruling on the admissibility of the videotape, but the jury apparently concluded its deliberations before the trial court could present the supplemental instructions.
Appellant contends he was not informed of: (1) the proposed supplemental charge;
We presume regularity of the proceedings, absent any showing to the contrary. Appellant bears the burden of overcoming that presumption of regularity. Dusenberry v. State,
While a motion for new trial is not required to preserve a point of error in an appeal of a criminal matter, it is the vehicle for presenting facts not otherwise shown in the reсord. Tex.R.App.P. 30(a); Mata v. State,
The Code of Criminal Procedure requires the trial court to give the jury any exhibits admitted as evidence.
In Weatherred v. State,
Texas civil appellate courts have held that the trial court impermissibly comments on the weight of the evidence when it withdraws pertinent evidence from the jury’s consideration. See Redwine v. AAA. Life Ins. Co.,
The contents of the videotape were described in detail during direct and cross-examination of appellant and in counsel’s closing argument. The jury had repeated opportunities to hear how close the family was, how much the children loved and trusted their father, and what happy scenes the video depicted. They had this knowledge during deliberations when they evaluated thе testimony of the children, the testimony and records of the examining physicians, the testimony of the police officers involved in both cases, and the testimony of the adults to whom an outcry was made. We are satisfied beyond a reasonable doubt that the late offer of the tape, in light of the jury’s rejection of it, made no contribution to the conviction.
We overrule point of error one.
Polygraph Test
In point of error two, appellant argues the trial court erred by permitting the State to disclose he had failed a polygraph test. The State counters that appellant waived the error and, even if he had not, he opened the door to this testimony. Appellant complains only of the second instance of testimony by a State’s witness regarding polygraph results. Defendant did not object the first time the State asked its witness, a police officer, about the results of the polygraph taken by appellant. The officer responded, “He flunked it.” Appellant voiced his objection only after the State questioned another witness about the results.
To preserve error, a party must object each time inаdmissible evidence is offered. Ethington v. State,
We overrule point of error two.
Competency of Child Witness
In point of error three, appellant contends the trial court erred in admitting the testimony of N.F., his four-year-old stepdaughter, because she was not competent to testify. We disagree.
Children are competent to testify unless the trial court determines, after a hearing, the child does not possess sufficient intellect to relate the transactions about which she is being questioned. Tex.R.Crim.Evid. 601(a)(2); Coachman v. State,
N.F. was four years old at the time of this trial. There is no minimum
The role of the trial court is to make thе initial determination of competency, not to assess the credibility or weight to be given the testimony. Absent an abuse of discretion, we uphold the trial court’s determination. Garcia v. State,
We overrule point of error three.
Notice of Intent to Use Outcry Witness
In point of error four, appellant contends the trial court erred by admitting a hearsay statemеnt made by the child, T.B. The State argues the statement was admissible as an outcry. Appellant objected to its admission, arguing the State did not comply with the procedures mandated in Code of Criminal Procedure article 38.072. See Tex.Code CrimP. art. 38.072.
The record shows the child is under 12 years of age and made her outcry to her uncle, Felton H., an adult over the age of 18. Appellant was originally indicted in cause number 615384 for aggravated sexual assault of a child, alleged to have occurred on or about August 1, 1991. In September 1992, the State notified appellant in writing of its intentiоn to use the child’s outcry statement and provided appellant with H.’s name and a written summary of the statement; appellant filed a motion for a hearing pursuant to article 38.072. In mid-October, trial was postponed. Appellant was reindicted in cause number 646771 for indecency with a child, alleged to have occurred on or about May 1, 1991. On December 8, 1992, appellant was notified a second time of the State’s intent to use the child’s outcry statement to H. Trial commenced December 14, 1992. Based on the amount of time (six days) that elapsеd between the second notification and commencement of trial, appellant contends he did not receive the 14-days’ notice required.
The hearsay statement of a child abuse victim may be admissible if it was the first statement made about the abuse by the child to a person 18 years of age or older and, on or before the 14th day before the date the proceeding began, the party intending to use the statement: (1) notified the adverse party of its intent to do so; (2) provided the adverse party with the name of the witness through whom it intеnds to offer the statement; and (3) provided the adverse party with a written summary of the statement. Tex.Code CRImPAnn. art. 38.072. For the outcry statement to be
This Court has not defined what constitutes “strict compliance” with the provisions of the article 38.072. Appellant argues that because the reindictment specified a different charge and alleged a different date, we should interpret strict compliance to mean the State was required to send appellant, on or before December 1, 1992, another notice of its intent to use the statement. The State contends the purpose of the statute is to provide adequate notice to a defendant, and because neither the complainant, the witness, nor the substance of the outcry statement changed, the State strictly complied with article 38.072.
Various appellate courts have held outcry statements are admissible even when the provisions of article 38.072 are not strictly satisfied; so long as the defendant has received actual notice, any error is harmless. See Upton,
Here, the State complied with the requirements of article 38.072 when it notified appellant in September, three months before trial commenced, of its intent to use the outcry statement, the name of the person to whom it was made, and the substance of the statement. Even if this did not constitute strict compliance, we are persuaded by the reasoning of other appellate courts that any error was harmless because appellant had actual notice of the State’s intent to use the outcry testimony.
We overrule point of error four.
We affirm the judgment of the trial court.
Justices MIRABAL and O’CONNOR dissenting with separate opinions.
Justices WILSON, HEDGES, TAFT, and NUCHIA join Justice SCHNEIDER’s majority opinion.
Justices COHEN, O’CONNOR, and ANDELL join Justice MIRABAL’s dissenting opinion.
Justice O’CONNOR also dissenting separately.
Notes
. TexPenal Code Ann. § 21.11 (1995).
. In one of the dissents, the author contends the supplemental charge was an ex parte communication by the trial court to the jury. The only evidence in the record concerning this charge clearly shows that it was a supplemental charge. There is no evidence in the record suggesting that the charge was an ex parte communication. In fact, only appellant, through his brief, has alleged that the charge was an ex parte communication. If appellant wanted to challenge the propriety of the communication, he should have raised the challenge in a motion for new trial with the trial court.
. There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case. Tex.Code Crim.P.Ann. art. 36.25 (Vernon 1989).
Dissenting Opinion
dissenting..
I dissent. In my opinion, appellаnt’s point of error one should be sustained, but only for the reasons stated here.
In point of error one, appellant asserts the trial court erred by refusing to allow the jury to see defendant’s exhibit number two, a videotape admitted into evidence and requested by the jury during its deliberations as part of a general request for exhibits.
The Code of Criminal Procedure requires the trial judge to give the jury, upon its request, any exhibits admitted as evidence.
During their deliberations, at 2:35 p.m., the jury foreman sent a note to the judge asking to see “all” of the exhibits. The videotape was not given to the jury when the other exhibits were delivered to the jury room. One and one-half hours later, at 4:05 p.m., the jury returned its verdict of guilty. It is uncontested that the jury never saw the videotape, even though it had been admitted as an exhibit and the jury had requested “all” exhibits, and even though defense counsel specifically objected to the trial court’s failure to give the videotape to the jury. The record indicates thаt the trial court attempted to correct what it considered to be an erroneous ruling on the admissibility of the videotape, but the jury apparently concluded its deliberations before the judge could present supplemental instructions. The jury never saw the supplemental instructions or the videotape.
Under the circumstances here, I would hold the trial court committed reversible error
For these reasons, I conclude that point of error one should be sustained, the judgment should be reversed, and the case should be remanded for a new trial.
Justices COHEN, O’CONNOR, and ANDELL join this dissent.
Justice O’CONNOR dissenting separately.
. There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case. Tex.Code Crim.P.Ann. art. 36.25 (Vernon 1989).
. In light of the contents of the videotape and the closing argument of appellant’s counsel to the jury about the videotape, I cannot say beyond a reasonable doubt that the error made no contribution to the conviction. Tex. R.App.P. 81(b)(2).
. I note that the witness, who was four years old at the time of the original trial, will be at least nine years old at the time of the second trial. Therefore, I consider point of error three to be moot. Further, the alleged errors raised in points of error two and four are not likely to recur at the retrial.
Dissenting Opinion
dissenting.
I dissent from the en banc opinion resolution of point of error one, and join in the dissenting opinion by Justice Mirаbal.
The Videotape
The dissenting opinion fails to mention a critical reason the videotape should have been given to the jury, and the reason the case should be reversed.
Appellant’s lawyer offered the video tape into evidence as defendant’s exhibit number two; the State objected, claiming it was irrelevant. Over the State’s objectiоn, the trial court admitted the tape. The tape was not played for the judge or the jury at the time of its admission. During closing arguments, counsel for appellant referred several times to the tape, and asked the jury to look in particular at the kite-flying segment because “there are statements in there by T.B. when she’s not in a courtroom ... where she talks about her feelings about her father and her mother.”
The record shows that after the jury had retired to deliberate, the trial judge had second thoughts about the admissibility of the tape. At first, the trial judge tоld the lawyers he would permit the jury to see the tape but with the volume turned off. Defense counsel objected because he had argued to the jury that they should listen to T.B.’s statements on the tape. A short
Early in their deliberations, the jury foreman sent a note to the judge asking to see “all” of the exhibits. The videotape was not given to the jury when the other exhibits were delivered to the jury room. The statement of facts does not include any other reference to defendant’s exhibit number two.
The transcript contains what appears to be a proposed supplemental charge to the jury advising them to view the tape only with the sound turned off. However, because the proposed charge was not shown to the lawyers for the State or for the defense, it was, at best, an ex parte communication by the judge with the jury.
This document was offered along -with the videotape to the jury during its deliberation. Before accepting this document or the video, the bailiff was instructed by the jury that it did not want the video. Neither this instruction nor the video was seen by the jury.
Appellant contends he was not informed of the proposed charge, the jury’s decision not to view the tape, or the handwritten entry. He says he did not learn what had transpired between the trial judge and the jury until he filed his appeal and the ex parte communication was included in the transcript. Appellant contends he was deprived of an opportunity to question the bailiff or object on the record. The State does not rebut appellant’s contention.
I would vote with Justice Mirabal to reverse on this point of error.
Competency of Child Witness
In point of error three, appellant contends the trial court erred in admitting the testimony of N.F. because she was not competent to testify. N.F. was two-years old at the time of the alleged abuse; she was four-years old at trial.
We review the trial court’s decision on the competence of a child witness based on an abuse of discretion standard. Garcia v. State,
The en banc opinion weighs N.F.’s accurate statements against her inaccurate statements and concludes that the trial court did not abuse its discretion in permitting her to testify. I disagree that this is the correct way to determine the child’s competence as a witness. N.F. was bound to answer some questions correctly during the qualifying hearing, e.g., she knew her
On the critical issues, N.F. failed the test of competence. When she was asked what it meant to tell the truth, she could not respond, nor could she explain what it meant to tell a lie. She said it would be “right” to say it was raining even though it was not. She shook her head when asked if she had ever made up a story. She nodded her head yes when asked if it would be true if she claimed she could drive a car. When asked if she had ever made up a story or been spanked for making one up, she shook her head no to both questions. When she was asked if she knew what “good” was, she shook her head no; when asked if she knew what “bad” was, she again indicated she did not. N.F. held up one finger when asked her age (although she is four).
N.F. frequently nodded or shrugged in response to question and much of her testimony before the jury was contradictory and confusing. She was best able to respond verbally when asked leading questions. When she was asked what happened with Kenny, she was not able to relate the story without рrompting. Based on a review of her entire testimony, I believe the trial court abused its discretion when it determined that four-year old N.F. was competent to testify about an event that happened to her when she was two years old.
Based on my review of N.F.’s entire testimony, I would hold the trial court abused its discretion when it determined the child was competent to testify.
. I do not join in footnote three to her opinion, which relates to point of error three.
. It is not certain what the supplemental charge was. The charge may or may not hаve been given to the jury; the note may reflect the trial judge’s thinking, without more. If it was not shown to the jury and only reflects the trial judge’s thoughts, it should not have been included in the official transcript because it was not shown to either lawyer.
. The State argues we should not conclude from the handwritten entry on the supplemental charge that the judge refused to supply the tape, but that the jury rescinded their request to see the videotape. I disagree. Simply because the supplemental charge was in the transcript does not mean we may considеr it part of the record on appeal. See Jones v. State,
. In footnote three of Justice Mirabal’s dissenting opinion, she states that N.F. who was four at the time of the first trial, will be at least nine years old if the case is retried, and for that reason the point of error three is moot. I disagree. N.F. was two when the alleged sexual abuse occurred. Her ability to perceive and understand an event that happened when she was two-years old will not improve with age.