Chambers v. State

characterizing appellant’s her as witness. WARREN, Before DUNN and Nevertheless, totally repu- COHEN, JJ. taped statement, diated her and denied that alleged. had done the acts OPINION point The second of error contends that COHEN, Justice. the evidence was insufficient. presents This case following ques- tion: undisputed It is the evidence in

Can a defendant be guilty insufficient, found of a this case would be but for the crime a reasonable when complainant’s unsworn, doubt repudiated, hear the victim say testifies that no crime videotape.2 oc- trial No ob curred, and jection there made to the based on to the contrary? or hearsay denial of confrontation.3 599, 1, 3829, 1. Ch. sec. 1983 (Tex.App. Tex.Gen.Laws S.W.2d 307 [1st Dist.] — Houston 998, 1, rev’d, 1985), amended ch. sec. 1987 Tex.Gen.Laws (Tex.Crim.App. 743 S.W.2d 641 3378, 1, Tex.Laws, 1988); State, (Tex. amended ch. sec. Mallory 1987 v. 699 S.W.2d 946 Spec.Sess. 1985), vacated, 2nd App. 180. 752 S.W.2d 566 — Texarkana State, (Tex.Crim.App.1988); Tolbert v. 697 S.W. 1985), (Tex.App. 801(e)(1)(D) 2d 2. We 795 [1st Dist.] note Tex.R.Crim.Evid. — Houston (Tex. grounds, provides on other hearsay that a S.W.2d 631 statement is not if taken aff’d State, Crim.App.1988); Jolly v. and offered in accordance with Tex.Code Crim. rev’d, 1984), 38.071; however, (Tex.App. [14th provision Dist.] P.Ann. art. such be- — Houston (Tex.Crim.App.1987); 1,1986, 739 S.W.2d 345 September Alexander came effective on more than State, v. 692 S.W.2d 563 two months after trial. — Eastland 1985), vacated, (Tex.Crim.App. 753 S.W.2d 401 —Iowa, 1988); U.S.-, Coy see also v. objections 3. Such would have meritorious. (1988). S.Ct. 101 L.Ed.2d 857 Long (Tex.App.— See 1985), aff'd, (Tex.Crim. Dallas 742 S.W.2d 302 why appellant’s The record does reflect App.1987). appeals Long court-appointed The court of object decided trial failed to year enough ap before this hearsay time to alert asor a denied of con- pellant's counsel why to the statute’s unconstitution frontation. Nor does record reflect Moreover, ality. attorneys, court-appointed most even before appellate new coun- appeals opinion Long, the court of point alleging sel has raised a of error objections, object have raised these basic notwithstand the failure to constituted ineffective as- ing Nevertheless, appeals that at least five court of decisions sistance of trial counsel. these moot, challenges had overruled disposi- such the statute considerations are in view of our appellant's trial. Newman v. tion second of error. bed, objection proper predicate complainant lying sole was that the on a naked had not been laid. nearby putting on his while during underwear. State conceded unobjected hearsay note that argument, however, that that was not dence, present such as the videotape in the the incident in the indictment case, incompetent, was considered videotape by to on the com- one testified inadmissible, 4, in merely Texas until June evidence, plainant. It and was rebuttal days trial. On event described was never shown day, that Chambers v. in the occurred on date indict- 240, 245-47 de- (Tex.Crim.App.1986),was ment, any particular year, or within within that hearsay cided and held inadmissible period of limitations for this offense. objection admitted without only points The other evidence the State longer treated incompetent, be as but complain- judgment is the having probative would be considered as grand- ant’s statements to her aunt value and would be considered in determin- appellant “messing” that mother had been ing sufficiency of the evidence. Finally, her. testified with Appellant argues videotaped that appellant testify had that asked her not insufficient, hearsay evidence was as a against him and that she loved law, to support judgment matter of good stepfather because he was a to her. because sworn 100% The State relies on Combs v. appel- court from the that was (Tex.Crim.App.1982), as guilty. Appellant lant was not asks us to authority presents that case no more in-court, complainant’s hold that the conflict in the jury than a the evidence that out-of-court, repudiation of her unsworn Combs, against appellant. resolved how- wholly destroyed videotape’s ever, not a case probative where the State relied value. repudiated, unsworn, wholly on out-of- only eyewitnesses The crime al- to the hearsay guilt. of the sole evidence leged complainant. were (Fla. Moore, In complainant consistently that State v. 485 So.2d testified 1986), Supreme Florida Appellant the crime did not testi- Court of occur. fied, deny question: was never this certified but asked to admit asked the crime. prior Is a inconsistent statement suffi- to sustain a conviction cient evidence physician A examined the prior a inconsistent statement is when day after the offense and found guilt? substantive evidence ring hymenal open, that her consistent by a penetration penis, Moore, with and that her prosecution’s prior inconsist- In normal, genitalia were exterior as would be consisted of the sworn ent statements recurring activity consistent with sexual grand jury testimony of two witnesses. period of time. no medi- over a There was person witnesses testified in at two These evidence, however, had cal that defendant, Moore, that murder trials engaged in the sexual with the activities guilty they had lied was not under complainant. grand police oath to the that, a The court held crimi- coercion. “[i]n years old who was 12 prosecution, prior inconsistent nal state- police at the time of told the officer standing prove alone is ment insufficient conducting guilt beyond a reasonable doubt.” So. molesting age her since the of seven. approv- quoted 2d at 1281. The court 14-year-old complainant’s half brother Orrico, 599 al from United States v. F.2d a defense testified as (6th Cir.1979), as follows: often send him the fami- lant would outside having home, But the Government offered such ly leaving appellant the com- as the of a cen- plainant inside. sole evidence alone cousin, Herbert, charged, testi- tral element of the crime we 10-year-old Derrick saw has failed to fied in the State’s rebuttal that he once hold that Government its proof sustain burden guilt peal be- that the evidence was insufficient to yond a prove penetration. reasonable doubt. The court wrote: would be an over interpreta- broad [I]t 599 F.2d at 119. tion of the statute to hold that the hear- Supreme The Florida Court concluded: say given year statement to another one agree convicting the risk of an question or more after the event in is great innocent accused simply too convict, sufficient where the victim when a conviction entirely is based herself testified articulately and did not prior inconsistent statements. but, fact, corroborate contradicted the crucial hearsay concerning statement stronger case one for reversal penetration. than Moore because: (1) prior inconsist- ent unsworn, statement here was and was

made judicial outside of a proceeding, Moore, case,

whereas in it was sworn In our the hearsay before a was contra- grand (2) jury; one dicted prior there is the victim and witness’ was corrobo- here, by any rated inconsistent of the statement evidence. whereas two other Moore; guilt (3) witnesses testified to in facts, In the extenuating absence of prior the present inconsistent case, statement here was which are not it in this would be the sole evidence of all elements of the irrational to hold that un- same, hearsay sworn evidence the charged, merely has crime of “a central more, probative or element,” value than Orrico. the justice spe- as in One Moore, testimony sworn the party who made cially in concurred and wrote that of hearsay the statement and had actual “a presented different issue” be if would knowledge the prior the inconsistent statements had been of facts. recognize

made in proceeding a the involving where defendant cases of had an abuse small children opportunity spe- to often create confront and cross- problems proof cial of and each examine case witnesses. 485 So.2d at J., generally must be decided and (Overton, restricted concurring). complain- The particular case, its own facts. In this prior ant’s inconsistent here statement we hold testimony that the nurse’s came a proceeding from where there of hearsay statements the victim is not opportunity for confrontation and cross- of law, sufficient, as a matter to estab- examination. of penetration lish when the victim’s testi- A recently court Texas has held that mony same about the is fact insuffi- evidence like that here insufficient to cient to it. establish In Villalon v. guilty. a verdict of (emphasis supplied). 739 S.W.2d at 454 State, (Tex.App. Corpus 739 S.W.2d 450 — in Villalon distinguished 1987, pet. Christi pending), the evidence State, Chambers v. S.W.2d assault, case, sexual similar to instant Chambers, all other facts nurse, came from a school guilt were consistent with and there was no mother, and a medical contradiction, express implied, in the doctor. No was involved. or accuracy of the hearsay. Id. This truth complainant inconsistently testified at trial pertinent distinction is even more in the with her earlier account to the school case, present merely where we have not nurse. The nurse that the child testified contradiction, repudiation a total but complainant had that she been stated hearsay. “raped,” at trial did but testify penetration. tes recently The nurse’s has Court twice held timony, recounting complainant’s prior out-of-court, hearsay, unsworn later statement, court, hearsay repudiated sup inconsistent was insufficient to proof penetration. hearsay sole port guilt Such a verdict of when it only was the linking was admissible under Tex.Code Crim.P. evidence the defendant crime. State, See Machado v. ap Ann. art. 38.072. Villalon claimed on S.W.2d 1988)(arson particu- generally restricted to its own (Tex.App. Dist.] [1st — Houston at 454. case); lar facts.” 739 S.W.2d Fernandez 1988) (theft [1st Dist.] evidence, — Houston sufficiency As to I case). disagree majority com- plainant unequivocally” “testified that the viewing Even this in the alleged. appellant had not done the acts light verdict, most favorable to the con we Further, disagree only eye- I no rational finder of could clude that fact offense were witnesses to the guilt beyond be convinced and the complainant. Only by disregarding reasonable doubt. all following testimony pertinent eyewitnesses from all support of dissent: have found could a reason 1) On cross-examination appellant exposed able geni doubt that his stated, “I don’t know” in an- 9, 1986, tals on to the March question why to the swer State’s she had relying alleged. Only by wholly re happen. said that When it did not asked pudiated prior inconsistent you you “didn’t me were afraid some- tell allegations proved. could the have been To thing your going happen moth- find this evidence sufficient make er?” she “I don’t know.” answered formality, the trial a mere evi asked, district then “You are not guilt having produced dence of you though, you?” saying tell me are didn’t indictment, parte, court, out ex without “No.” and the answered She confrontation, oath, notice, without without stated also that her mother had taken her repudiated. and As the in then court held in appellant jail. to visit the while he was Frank, (Iowa State v. 298 N.W.2d 324 agreed attorney She the district that with 1980): she and talked appellant the had about the The rule that it is for the to recon- appellant case and the had asked her that conflicting cile the statements of a wit- say happen.” that “it did not She testi- apply only ness does not where the fied that a letter her she had written controlling dence in fact is saying aunt after in the incident effect that of a so him- that witness who contradicts anything if he did more to her she would finding self as to render the of facts hit him. guess. a mere thereon 2) agreed, by She on cross-examination Id. at 329. the that she told the district of error Point two sustained. the Thursday appel- on the trial that judgment of the trial is re- things lant had to her she done all the that versed, judgment original a is or- acquittal and said he had done in her statement Further, dered. and that she scared. Officer Herbert, complainant’s Taylor, Rita grandmother, doctor all testified and the DUNN, J., dissents. appel- that the that child had told them Justice, dissenting. DUNN, molesting had her. lant im- respectfully Initially, I dissent. it is 3) supports testimony that Additional portant dealing that we to remember are sufficiency came from com- of the evidence a with a “recantation” of testifying plainant’s for the mother while vulnerabilities attendant to child faced with defense stated that the child had when she if “things” would not be the same it children that that described to her some Also, her, is a appellant were an adult recantation. this and that the had done to extenuating and her things case of circumstances described to were the child done things appellant surround this “recanta- to her facts that child’s same that (Note: relationship. As jury. tion” should be left in their sexual by child pointed by court cited himself confirmed out Villalon things known about these case decided could majority “each must be child had home, never seen him and and year one and nine months before they engaged sex.) his when wife 9, 1986, March met and when Chester first Lisa, later married Derrick’s mother. Der- 4) took the stand in his rick’s mother also testified after defense and at time doing denied the act incident, March neither she her nor son charged. He stated he good that: had a went over to home. relationship the complainant; with he never her; disciplined and there was no reason frame, Considering any this time by visit agreed her not to him. like He that: he appellant's Derrick in the home would have talked with her twice he jail; while was in to have occurred between June 1984 and night; his wife worked at he was unem- 9, 1986, March which place the inci- ployed; and he with the by dent period described Derrick within the times; during these and the child had never of limitations. This would be consistent seen him and wife they engaged his when Derrick’s appel- in sex. lant, and Charles were in 5) witness, Derrick, age 10, The State’s the home at the time of the incident. son, Lisa Herbert’s testified that when he agree I that a witness’ recantation of visited the household aon Sat- testimony is suspicion. viewed with utmost urday, Charles, sent him and However, all of the recantations complainant’s brother, to the store. When prior case occurred to trial and during they back, came he house, went into the Also, court, admitting trial. on all in- stayed Charles the street with some consistent statements of the began his friends. looking He for the into evidence stated that “the opened door saw offered as the truth of the matter getting lant up complainant lying question asserted.” The raised here on the bed naked. He said that as the goes recantation to her credi- appellant got up, trying put he was bility. The credibility of a to be his underwear. Minx v. determined jury. majority urges The that this event testi- 748, S.W.2d 749 (Tex.Crim.App.1981). by fied to Derrick was never shown to have not a case is where the occurred on the date the indict- dence in is a fact the recanted ment, period or within the of limitations for mother’s, testimony. The as as well Der- disagree. offense. I The applicable testimony, rick’s supports corroborates and period of limitations for this offense is five indecency complainant. the fact of the with 12.01(3)(C).1 years. Tex.Code art. Crim.P. Further, testimony the trial of the com- evidence shows that the plainant supports the fact that the recanta- 1986, 16, mother stated that on June the equivocations, tion is tainted with and the brother, Herbert, date of her Chester explana- the record contains living was with her and the until tions of how the recantation may have years ago.” about “two and a half to three i.e., about, exposure come of the child to Chester, time, single was at the and was appellant, request recant, the Ms that she “laying get the around house and wouldn’t child her by isolation mother from up job.” they him and find a So asked aunts, her normal relations with her wife, (Der- cous- leave. Chester’s Lisa Herbert grandmother, ins and mother), fact rick’s first testified that she met 16,1986 district had to secure a court or- years Chester June two der bring to force the mother to trial com- and married him about seven plainant in for an interview months before trial. before the trial. indictment These indecency explanations that the reasons and of the re- incident of 9,1986, gave opportunity a child occurred on or about March cantation full approximately years judge credibility and 10 months two of appellant’s veracity falsity after Chester moved out ascertain the of testimo- 330, 1,1985 1, 1393, 716, amend- ed 1. Ch. ch. 1987 Tex.Gen.Laws § Tex.Gen.Laws sec. 2591. cross-examina This is not a case where compared as ny on the denied; requested. never tion it was recantation. v. object, Long did not Appellant suffi- I would hold that the evidence was 302, State, (Tex.Crim.App. 742 S.W.2d and over- cient a reasonable doubt 1987), of confrontation. Nor did to denial point second of error. rule State, 697 S.W. object, he as in Lawson v. addition, majority’s I feel In 2d 803 [1st Dist.] — Houston as “un- classification of (Tex.Crim. 1985), vacated, 752 ” testimony is without merit. being he denied a con App.1988),that Rather, temporaneous cross-examination. majority concern the examination of appellant complains that is merit for testimony is unsworn without lead complainant was limited because interviewing person that the the reason permitted. ing questions were properly that the established complaint is with I hold that this right knew the difference between child First, appellant for two reasons. out merit Further, objec wrong. there was no what exceptions to show made no bill tape admissibility tion to the evidence he would further beneficial incompetent leading questions if had been elicited failure sworn. Our courts have held that Thus, nothing presented allowed. to administer an oath to a child does 118, State, v. 686 S.W.2d review. Stewart away of that take the trustworthiness denied, 474 (Tex.Crim.App.1984), cert. testimony testimony, child’s and such 866, 190, L.Ed.2d 159 U.S. 106 S.Ct. acceptable testimony.” just as as “sworn Second, (1985). assuming appellant is enti (Tex. Provost v. 514 S.W.2d 269 See art. leading questions under tled to ask Further, object Crim.App.1974). failure to 38.071, 2(b) advising the court sec. without error, any. waives if unsworn do, limita planned he an erroneous what 692, State, 171 Tex.Crim. Brown v. cross-examination of a witness does tion on (1961)(op. reh’g); Spriggs S.W.2d 425 v. category con the limited not fall within 163 Tex.Crim. preju errors that are deemed stitutional (1956) reh’g). (op. on every dicial in case. United States Ow — Finally, appellant’s contention in his first ens, U.S.-, 108 S.Ct. 98 L.Ed. Arsdall, of error that: (1988); 2d 951 Delaware v. Van 673, 106 1431,89 L.Ed.2d 674 475 U.S. S.Ct. ruling court erred in that the trial (1986). Arsdall, held In the court Van complaining witness was the judge the trial retains wide latitude refusing an witness and concerned, and as confrontation is insofar confront and cross-exam- opportunity to appel limits. The impose reasonable can ine his accuser at the trial of the case. any examination “to is not entitled to lant 38.071, 2(b)in effect at the time Article § may defense wish.” extent whatever provided: this case came to trial reviewing may that a The court held recording electronic of the oral If error is harm determine that into evi- statement of a child admitted less a reasonable doubt. section, party dence under this either Reviewing testify, child and the may call the harm, I standpoint of note that from the opposing party may cross-examine complainant responded to child. testifying appellant did questioning by complainant and that the offense not commit by until equivocate into evidence the State. in her answers offered she did not complainant as the State. appellant elected to call the cross-examination allowed to attempt to advise asked that he be He made no lant could have his witness. being under adverse cross-examine the court that equivo- began to any or for rule when as an adverse witness called cross-examination, the State’s impeachment. cate after purpose, such as other he During but did not choose to do so. examination, explained

direct she her false

accusations the videotape and to her

grandmother being made of anger out

appellant and her investigator mother. An

hired appellant also testified that he complainant,

interviewed the and she stat-

ed that the offense did occur

signed a statement to that effect. In addi-

tion, all of her recanting

videotape were admitted into evidence. confirmed these facts and having

denied been tricked or forced into

making the investigator. statements to the light

In of the failure to a bill of make

exceptions extremely favorable evi-

dence that brought during out defense

questioning I would

hold that there was no reversible error and

overrule the first of error.

I would affirm the conviction. YANCEY, Yancey

John d/b/a

Agency, Appellant, COMPANY, &

FLOYD WEST Crum & Companies,

Forster Insurance Company,

United States Fire Insurance

Appellees.

No. 2-87-263-CV. Texas, of Appeals

Court

Fort Worth.

July 28, 1988.

Rehearing Sept. 8, Denied 1988.

Case Details

Case Name: Chambers v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 28, 1988

Citation: 755 S.W.2d 907

Docket Number: 01-86-00520-CR

Court Abbreviation: Tex. App.