*1 comments, I concur in the With these majority.
result reached J.,
MILLER, joins this CHAMBERS, Appellant, Earl Gilleland, Houston, for G. John and Lin- STATE Hill, A. and Belinda da West Attys., Austin, State. Court Criminal convicted Appellant was indecency a child. V.T.C.A. Penal Code, punish- 21.11. The assessed § by proof of one con- enhanced viction, at sixteen and one half con- Appeals reversed finement. The Court of and ordered an ac- appellant’s conviction quittal. Chambers 1988). (Tex.App. This [1st] —Houston petition for dis- granted the State’s cretionary to determine whether it held the evidence court below erred when repu- insufficient because prior videotaped diated 200(c)(3) Tex.R.App.Pro. sexually mo-
Appellant was accused of year stepdaughter. lesting his twelve presented a video- At the the State Taylor of Officer tape during the child claimed that which the “messing with” her since videotape had been made seven. This to trial and before Article 38.071 charged with an offense. (See 38.071 now Art. § was made No other than lack of time it was admitted *2 460 addition,
predicate.1 After the State had rested In there was medical case-in-chief, appellant complainant’s called the child vagina to which indicated the stand, and she penetrated. recanted earlier The grand- had been child’s of Ap- statement. The Court the complainant mother testified that told in-court, peals complainant’s held that the her and her daughter appellant that out-of-court, repudiation sworn of her un- “messing” her. The with dissent videotape wholly destroyed sworn the vid- Appeals’ also notes the eotape’s probative value without complain- that mother testified support there was insufficient evidence to appellant ant had had done described what the conviction. her, appellant and the mother stated that “things” had done the same to her in their evidence, as summarized relationship. sexual contends State is as follows: it was error for the Court of eyewitnesses The only to the crime videotape to have excluded from alleged appellant complain- were and the also, and that even complainant consistently ant. The testi- tape, the evidence was suffi- Appel- fied that the crime did not occur. agree. support cient to the conviction. We testified, lant but asked was never conducting deny
admit
When
a
re
or
crime.
half brother testified as a defense wit-
ness that
lant and the
outside the
seven. The
he
on
at the time of
conducting
...
The complainant,
once saw
a
[*]
testified
complainant’s 10-year-old-cousin,
bed,
appellant
molesting
[*]
while
family
in the
complainant’s 14-year-old
complainant lying
[*]
appellant
would often send him
who was 12
told the
home,
State’s rebuttal that
her since the
[*]
leaving
alone inside.
police
[*]
appellant
nearby
officer
naked
[*]
of
Appeals must consider all evidence
ted,
dence
most
trier of fact
U.S.
deciding
tial elements of the offense
whether,
view,
sonable
This Court
whether
favorable to
786
doubt. Jackson
support
whether
viewing the evidence in the
99 S.Ct.
a
could
has
reviewing
proper
the conviction. Deason
recently
there was sufficient evi
have found all the essen
711
court must determine
2781,
verdict, any
court,
improper,
v.
addressed
61 L.Ed.2d
beyond a rea
Virginia,
the Court
rational
admit
a con-
443
560
of
instant
tention similar to that raised in the
putting
on
underwear.
State
In
case.
791 S.W.2d
Villalon
during jury argument,
conceded
how-
(Tex.Cr.App.1990),which concerned
ever, that that was not the incident al-
Y.A.C.C.P.,
pursuant
evidence admitted
leged in
one
the indictment or the
testi-
38.072,
Article
we held the
videotape by
complainant.
fied to on
peals erred when it failed to review
It was rebuttal
and the event
entirety.
evidence in its
Villal-
never
described was
shown to have oc-
on,
approval
State
we
the United
alleged
curred
the date
indict-
reasoning:
Supreme Court’s
any particular
year,
within
with-
the evi-
period
insufficiency
for this of-
reversal for
limitations
[A]
differently
treated no
fense. The
other evidence
State
dence should be
support
granting
judgment
a
a
points
judgment
to in
of the
than
trial court’s
evi-
acquittal
close
statements to her aunt
at the
passing
A
on such
grandmother
and
dence.
trial court
against him
motion considers all
the evidence
testify
asked her not to
admitted,
analogy
he
has
and to make the
that she loved
because was
complete
quantum
good stepfather to her.
it must be
same
note,
down
Appeals,
which was struck
1. We
as did the Court of
version Art.
lack
facially
Long
proper
would
been the
as
unconstitutional.
confrontation
objection. Appellant was
S.W.2d 302
tried under
only to recon-
entitled not
by the meanor
of evidence which is considered
conflicts,
any such
but even to disbe-
cile
reviewing court.
We hold the com-
lieve her recantation.3
Nelson,
quoting
Lockhart v.
plainant’s recantation of
285, 291, 102
U.S.
109 S.Ct.
L.Ed.2d
*3
probative
destroy
not
val-
did
case,
In that
the
court
State,
For the reasons stated Fernandez v. (Tex.Cr.App. day- 805 S.W.2d462 this
decided), I concur in the result reached majority this cause.
MILLER, J., joins *4 FORREST, Appellant,
Douglas Richard
The STATE of Appeals of
Court of Criminal Jefferson, Dale Troy McKinney, W. V. Houston, 27, 1991. and Win- Cochran, Jr., Atty., E.
ston Austin, for the State. aggravated
Appellant was convicted five-year probated term given assault and felony proba- Appellant’s fine. and a $500 by the finding tion was revoked terms appellant violated the trial court that felony probation. and conditions Spe- Art. §§ found cifically, the trial court law of an offense committed March this State on about aggra- offense of “committed the when he Mary Forrest Grace vated assault ashtray.” striking her in head with further found that The trial court excess, beverages to consumed alcoholic appellant’s probation thereby revoked