OPINION
Appellant was found guilty by a jury of aggravated sexual assault of his own child. Punishment was assessed at confinement for life in the Texas Department of Criminal Justice — Institutional Division, and a ten thousand dollar fine. We affirm.
On February 1st, 1991, Dr. Vavich examined the complainant, a four-year old child, and concluded that she was “the victim of chronic and acute sexual abuse with multiple, chronic sexual penetrations, and thereby rape.” Her vaginal area was “strikingly abnormal.” She had a “very red entrance” and no hymen. Her opening was four times larger than normal, and her pelvic exam resembled that of an “adult, sexually active woman who’d had intercourse many times.” Dr. Vavich noted that the bruising on her upper left thigh was consistent with someone holding a child down for the purpose of intercourse,
Appellant contends in his second point of error that the child was not competent to testify. The standard for reviewing competency issues is abuse of discretion.
Reyna v. State,
The Texas Rules of Criminal Evidence create the presumption that a witness is competent to testify. Tex.R.Crim. Evid. 601;
Long v. State,
This child testified to her age, where she lived and where she went to school. She knew the difference between girls and boys, and that she was a little girl and the Appellant was a “boy.” She knew that she once lived with Rick and Paula Dufrene, and that she now lived with Carol and Bob, her foster parents. The child knew that Rick Dufrene was her “dad” and that Paula Dufrene was her “mommy.” Although she did not know what it was to tell the “truth,” she did know what it meant to tell a “story.” She demonstrated that she knew the difference between the truth and a “story” through the following colloquy:
Prosecutor: C — , okay, what color are your shoes?
The child: Black.
Prosecutor: If I told you your shoes were white, is that the truth or a story?
The child: A story.
Prosecutor: Okay ... Let the record reflect that the witness’ shoes are black.
The Court: All right. It does.
Prosecutor: What color is this on your socks, then?
The child: White.
Prosecutor: Okay. Let the record reflect I pointed to the white portion of the witness’ socks. If I told you ... that this sock right here, right here (indicating) was black, would that be the truth or a story?
The child: A story.
Prosecutor: Okay. What color is this right here (indicating) on your dress?
The child: Red.
Prosecutor: Let the record reflect I pointed to the red portion of her dress....
The Court: It does.
Prosecutor: If I told you that this red, here, (indicating), was black, is that the truth or a story?
The child: A story.
Prosecutor: Okay. What happens if you tell a story?
The child: You get a spanking.
Prosecutor: Is telling a story bad?
The child: Nodded head “yes.”
The Court reminded the child that if she told a story in court, she would get a spanking. The judge then asked her if she was going to get a spanking today, and the child responded, “No.”
In reviewing the child’s direct testimony, three elements must be considered:
(1) the competency of the child to observe intelligently the events in question at the time of their occurrence;
(2) the capacity of the child to recollect the events; and
(3) the capacity of the child to narrate the events.
Reyna at 191-192.
During her closed circuit testimony, the child correctly identified all parts of the anatomically correct dolls which she was asked to identify. She used the dolls to show that the Appellant’s penis went all the way in her vaginal area. She testified that it “hurt” when it went in, and that there was blood on her “patty-cake.” She told the jury that she asked the Appellant to stop because it hurt, but that he did not stop, and that he told her she would “get in trouble” if she ever told. She testified that the Appellant did this to her “bunches of times.” She stated both on direct and cross examination that no one else ever put “their dick in her patty-cake.” She told the jury that the rape occurred on “Momma Paula’s” bed while her mother was “cleaning up.” Most importantly, she told the jury that it was definitely Rick Dufrene who raped her. During her direct examination, the child was asked that if she saw Rick Dufrene on the TV screen to get up and point to him. The child took the prosecutor’s finger and pointed to the Appellant on the screen. The prosecutor then asked that “the Record reflect she’s pointing to the Defendant, Rick Dufrene, on the screen.” The Court noted, “It does.” Appellant did not object.
In reviewing all of the testimony, we find that the child was competent to recollect and narrate the events in question. Although her testimony does contain conflicting and sometimes confusing answers, that does not, in itself, make her an incompetent witness.
Macias v. State,
In his first point of error, Appellant contends that the evidence is insufficient to sustain his conviction. Appellant concedes that the evidence is sufficient to show that at some point or points in time during the child’s life, Appellant committed the offense of aggravated assault against this child.” 1 He maintains, however, that Ms. Simmons’ testimony established the date of the incident as January 20, 1991, and that the State was bound to prove that the child was raped on the day Ms. Simmons was in Appellant’s home.
Various acts of sexual misconduct committed over a period of time do not comprise a
single
offense under Texas law. Persons who commit multiple assaults against the same victim are liable for separate prosecution and punishment for each instance of abuse.
Vernon v. State,
In order for evidence to be sufficient for a conviction, a rational trier of fact must be able to find all of the essential elements of the crime beyond a reasonable doubt.
Moreno v. State,
In his third point of error, Appellant contends that his Sixth Amendment right to confrontation was violated because the evidence does not support the findings necessary for the child to testify via a closed circuit television system. Appellant specifically objects to Findings numbers 5 and 8, and Conclusion number 2, as set out in the Court’s Findings of Fact & Conclusions of Law.
Findings 5 and 8 state:
(5) The child C— D— would very likely be traumatized in the physical presence of the defendant Rickie Dufrene. The child C— D— would be traumatized by a face-to-face confrontation with the defendant and not by the courtroom or the courtroom procedures generally.
(8) The child C— D— is more likely than not to be unavailable to testify since the child would suffer undue psychological harm in a face-to-face confrontation with the defendant Rickie Dufrene.
Conclusion of Law number 2 states:
The child victim-witness C— D— is unavailable to testify at the trial of this cause.
In
Maryland v. Craig,
... before a trial court is allowed to utilize a closed-circuit system of transmitting a child’s testimony into the courtroom, the court must hear evidence and make a case-specific determination that:
First, [the] use of the ... procedure is necessary to protect the welfare of the ... child;
Second ... the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and
Third ... the emotional distress suffered by the child ... in the presence of the defendant is ... more than mere nervousness or excitement or some reluctance to testify.
Hightower v. State,
The trial court made specific findings in this case that the closed-circuit procedure was necessary to protect the welfare of the
These findings are supported by the testimony of Dr. Paul Malone. He testified that the source of the child’s trauma in testifying would be the presence of the Appellant.
Prosecutor: Dr. Malone, assume with me that the child C— was brought in a courtroom as we are, today, and the defendant Rick Dufrene was physically present in that courtroom. Do you have an opinion as to what the physical presence of the defendant Rick Dufrene, in C— D — ‘s presence would do or not do to C — ?
Doctor: It very likely would traumatize her further.
Prosecutor: Have you been able, from your conversations with C — , to identify the source of her trauma?
Doctor: The treatment of her by her parent figures, Rick and Paula Dufrene. Prosecutor: What effect, if any, do you think it would have on the child ... for her to testify in the physical presence of Rick Dufrene?
Doctor: I think she’s at greater risk for further traumatization ... If she’s now exposed, with work having been done to get distance between her and her parent figures ... it will likely traumatize her_ There’s going to be the traumatic experience from being exposed to Rick Dufrene.
Dr. Malone continually noted that this child had been severely sexually and emotionally abused. He believed that she would be further traumatized if forced to testify in the presence of the Appellant, and that she could suffer long-term psychological harm from a face-to-face confrontation with the Appellant. He noted that the closed-circuit system would help psychologically distance the child from the Appellant. We hold that the trial court’s findings are supported by the evidence. We overrule Appellant’s third point of error.
In his final point, Appellant claims that trial court’s finding of “unavailability,” as required by Tex.Code Crim.PROC. article 38.071, is unsupported by the record.
Article 38.071 is the Texas statute allowing for child-victims to testify by closed circuit television. It provides that in making a determination of unavailability, the Court may consider the relationship of the defendant to the child, and the duration of the abuse. Further, the Court may consider the age, maturity and emotional stability of the child, the time elapsed since the offense, and whether the child is more likely than not to be unavailable to testify because of emotional or physical causes, including confrontation with the defendant, or psychological or physical harm by being involved in such an emotional and traumatic trial.
Dr. Malone found that the child would be traumatized by a face-to-face confrontation with the Appellant. The entirety of his testimony supports a finding of unavailability. We hold that this finding does not violate Article 38.071. Appellant’s fourth point of error is overruled.
The judgment is affirmed.