*1 оne of the defects discussed above. judgment be- Accordingly, we reverse court
low the cause to that and remand that it be remanded
with instructions proceedings not incon-
Board for further opinion.
sistent with our KIRCHNER, Appellant, Lee
Gilbert Texas, Appellee. STATE
No. 4-86-00305-CR. Texas, Appeals
Court
San Antonio.
Sept. 1987.
Rehearing Denied Oct. *2 bias,
dence defense showing mo- tive and part ill-will on the of the State’s witness, Bertha Kirchner. Bertha Kir- chner was the defendant’s ex-wife and was complainant. the mother of the child In his brief the defendant states that he wanted to show that Mrs. Kirchner had developed a keen bitterness towards the upon previous defendant based their do- relationship. mestic He said he was not though explainеd allowed to do this even purpose inquiry. of such unquestioned It that a witness may impeached by showing be a of inter est, bias, prejudice or other motive which tends to effect his credibility. Steve (Tex.Crim.App. S.W.2d 1980), 1 RAY TEXAS EVIDENCE 3d ed. preserve 670. But in order to a com plaint appellate for review a defendant presented must have to the trial court a timely request objection or with sufficient specificity apprise the court of the grounds. ruling He must then obtain request objection. оr TEX.R.APP.P. 52(a). Nowhere did the trial rule bitterness, that Bertha Kirchner’s keen ill- will, prejudice against bias or the defend properly proved by appro ant could not be priate testimony. place questions
To that the court did context, actually proper rule it is necessary to understand that the defendant Campion, Antonio, appel- Charles San for and the witness Bertha Kirchner were mar- lant. separated ried in in 1982 and Jr., Milsap, Sam Crim. Dist. Former were divorced March 1983. offense Atty., Rodriguez, Fred G. Criminal Dist. August was to have occurred Farias, Chavira, Atty., Mary Juan Illse D. in March 1986. and the trial was Antonio, Bailey-Graham, appellee. San for only The defendant refers us three CADENA, Before C.J., DIAL places questioned rul- the record where CHAPA, JJ. ings by court. The were made the trial one occurred cross-examination first by OPINION of Bertha Kirchner the defense counsel. petition She was asked “who filed the for DIAL, Justice. objection as to the divorce?” appeal by This is аn from a conviction by the court. The relevance was sustained jury indecency with a child. Punish- question inquiring as to second whether by years ment was set the court at five previ- not the defendant had children probated. marriage irrele- ous was also ruled point coun- The first of error is that the trial vant the trial court. develop refusing court erred in wished to to admit into evi- sel then stated that he prior to show a relationship and the is that was offer that the witness years. by the Ber- But thаt inconsistent statement defendant over certainly question asked and Kirchner. On cross-examination Ber- not the tha told ruled on the court at that time. denied that she had the de- tha had going “get” him. she was fendant that testified, he defendant When the anyone having told further denied She the deterio- permitted to describe detail “destroy” She the defendant. she would relationship him and Bertha rating between *3 that she told the defendant she did admit permit- The also Kirchner. defendant was something do it. going to about was personality the traits of ted to describe response objection Bertha. to another exception part As defendant’s bill of gave ruling explanation the court an Kir- Shirley Parker asked if Bertha was as follows: destroy her she would the chner had told taken, objection testified
I think the is well coun- defendant. Parker that sometime see, 19, 1984, try- August I think we are Bertha said she prior sel. don’t to that — ing case, a child molestation we are not like to make the de- hurt she would was trying hurt; The is that problem say their divorce. fendant feel the she did not parties relationship say the between these “destroy.” get did she would even She relationship to this that have some him. with of- Anything isn’t. are relevant. else fense ruling judge the of the Since trial know, really just it is sort of not You complained to or of had do with whether jt. connected with not the evidence came under one judge attempting per- obviously The to was rule, exceptions hearsay it is incum to necessary to mit the defendant latitude argument give to bent on the defendant fully relationship his to Bertha as described allega authority supporting the same it related to the offense. The defendant Otherwise, it is not reviewa tion of error. permitted fully his relation- describe appeal. Milligan v. 554 S.W. ble ship contemporaneous with the witness 192, (Tex.Crim.App.1977). 2d 195 with the offense. however, conten If the defendant’s only to in question The other referred testimony aрpeal is of Parker tion on that the defendant’s brief on which there was prior admitted should have been to show ruling an the di- adverse occurred statements of Bertha Kir inconsistent by Shirley rect examination defense chner, is reversible error there no Parker, of the sister defendant. She was Any inconsistencies on additional reason. asked, you “What did Bertha tell Kirchner gleaned part of Bertha Kirchner to be regard Gilbert time Kirchner that testimony on the bill of ex from Parkеr’s objected The frame?” State on the beyond ception are so minute that we find statement, hearsay it grounds that was a any error doubt that a reasonable being inquired and the court if it was of- no contri of the made exclusion theory under some that made fered punish conviction or to the bution exception hearsay to the rule. The 81(b)(2). may Error ment. TEX.R.APP.P. “motive, scheme, plan, responded counsel upon ruling ex predicated not be allegations design, as far that are as unless a substantial cludes evidence objection jury.” then this before is TEX.R.CRIM. party of a effected. sustained. 103(a). EVID. 803(3) a TEX.R.CRIM.EVID. Under inquiring existing questions as to who of the declarant’s then statement sensation, mind, emotion, petition in the divorce case and physi- filed the state of motive, by had (such intent, many the defendant plan, how children cal condition tendency no marriage absolutely hearsay prior rule. design) is not excluded conse However, urge fact of the existence of defendant does not reliance to make of the action quence can to the determination on this rule his brief. As best probable. evi- determined, present probable more or less defendant's contention dence quires was not relevant and was thereof that we look at the evidence light inadmissible. prosecution TEX.R.CRIM.EVID. 401 and most favorable argument 402. The the answers determine whether a rational trier of fact might have led to evidencе is could admissible have found the essential elements of rebutted beyond the fact the trial court the crime a reasonable doubt. permitted Virginia, Jackson v. testify 307, the defendant to 319, concern- ing prior relationship parties (1979); of the and S.Ct. 61 L.Ed.2d its Dickey deterioration. The defendant (Tex was also 693 S.W.2d permitted testify concerning person- (en banc). as.Crim.App.1984) In a trial ality traits of jury, Bertha Kirchner that had a reconciliation of conflicts in contradic bearing cоntroversy. on the tions in the province evidence within the jury, and such conflicts will not call Nowhere is it demonstrated that the trial enough for reversal if there is credible ruling. Therefore, made an incorrect the conviction. Bow- support point the first is overruled. den v. (Tex. 628 S.W.2d *4 point The second of error is that that the (en banc). Crim.App.1982) Looking at the finding year trial court erred in the four light evidence in the most favorable to the complainant competent old testify. tо prosecution the record contains some testi (which replaced TEX.R.CRIM.EVID. 601 mony complainant from the child that the art. 38.06 TEX.CODE effec- CRIM.PROC. place. offense took Bertha Kir 1, 1986) September tive provides now complained chner testified that the child every person competent except is a night about the incident to her the same person an insane or children who “after vaginal when she discovered the area red being court, appear еxamined the not to The swollen. child’s teacher Frances possess sufficient intellect to relate trans- Bollier, complained testified that the child respect they actions to with which are in- Randall, about the incident to her. Debra terrogated.” County a Bexar Child Welfare social work hearing er, A held on the defend testified that the child had indicated ant’s motion competency. to determine point videotape in one the that the accused Though sоme of the child’s answers were vagina. had touched her Dr. William conflicting confusion, Gross, showed her com pediatrician, the child’s testified that petency question was a for the trial court. although he had examined her three weeks The court’s decision will not be disturbed after the incident and found no definite appeal in attack, the absence of an abuse of evidence a sexual the attack discretion. Garcia v. 573 S.W.2d possibly place. could taken The evi 14 (Tex.Crim.App.1978). determining contradictions, In dence reflects conflicts and discretion, whether there was an abuse properly jury. which were resolved Thus, review of all the child’s rather jury if the believed the evidence most just preliminary qualification than prosecution, they favorable to the had a be made. Fields v. should do, has reason to this Court no (Tex.Crim.App.1973). S.W.2d We require their decision. The intent disturb Fields the Court of note that charged Criminal in ment of the offense cаn be Appeals found no abuse of discretion in the jury ferred from the conduct the believed permitting year trial court a four committing. old wit guilty the accused was testify. ness to find (Tex. We no abuse of dis Beltran S.W.2d point cretion here and overrule the of er Crim.App.1980).
ror. overruled, point The last of error is point error, appellant his last con- judgment is affirmed. of conviction tends the evidence is insufficient to sustain disagree.
his conviction. We CHAPA, Justice, concurring. opinion agree majority standard of review in both I with the that the appellant’s circumstantial and direct evidence cases re fails to direct this Court to brief vagina. The record reflects the child preserved in the record properly sitting lap while on the of her sufficiently the trial court committed testified show However, I take issue Her contained the reversible error. older sister. suggestion expected that evidence a child such a with deviations ill-feelings past complainant age. of Mrs. Kirshner’s The child failed to Bertha tender questions, as too appellant was inadmissible other answers towards answer some probative value reporter, remote to have sufficient could not be understood outweigh potential prejudice, risk of merely “indicat- answers resulted other her. clearly embarrassment harassment ing,” of her some answers trial, during error, point one and at very spe- molesting present Child cases following spontaneous state- child made the judges problems appellate cial trial and according ment to the record: scrutiny. require very careful that one with the mus- /EURBGS typical molesting [sic] child case child involves tache, thing Maybe did a bad to me. age. recognizes Because the law tender my daddy. is the one. He looks like natural inclination of such children imposes irresponsible, no severe The record further reflects them. The that such a duties fact interview, accusing appel- video after easily by custodi- child can be influenced its touching improperly lant of her with her recognized. an must also be Thus seri- on, complainant ended the inter- clothes complain- question really ous of who stating appellant had done view not what always present ant is such cases. mother, alleged. Complainant’s Ber- Kirchner, custody of the child from tha feel inclination to extraordi- natural *5 appel- March she divorced thе when sympathy perceived nary for child sexual- lant, the natural father of the child. She ly great is as inclina- abused as the natural complained her testified that the child of repulsion, disgust vengeful- tion to feel and August, 19th of the incident on the ness towards an adult accused of the sexu- exercising appellant left from his after The potential, al abuse. under these emo- rights. of Dr. Wil- visitation circumstances, charged tionally insuffi- no liam disclosed that found P. Gross ciently concentrаte on the constitutional child was molested when he evidence the rights of an accused is enhanced. These the her about one week after examined in depriv- circumstances should not result Thus, alleged the of incident. ing an accused of a fair trial under the law. Kirchner, as her influence Bertha as well suggest Nor is it meant to of children extremely complainant child became the age ignored tender are to be when their suggested too evidence critical. ill-will rights infringed upon. It are is with all up by the led to and sur- remote State rights children in mind that constitutional parties of in March rounded the divorce protected. be For the children of must tomorrow, today will be the adults of who
will be the to suffer should the consti- ones application is of the The issue then parchment tution an old dead of no become the Constitution of sixth amendment of significant no occur value which will doubt provides: which United States upheld today. if it not tomorrow prosecutions, the ac- In all criminal speedy to a enjoy shall
This is such a case which involves
cused
trial, by
jury of the State
years
impartial
and one
complainant who was three
crime shall have
alleged of-
district wherein the
old at the time of the
and
month
committed;
district
shall
fense,
eight
which
years
and four
months old
been
law,
previously ascertained
of the trial. The
inci-
have been
at the time
of the nature
subject
allegedly
of this
and to be informed
dent made the
trial
accusation;
day August,
cause of the
place on the 19th
took
confront-
him;
against
ed with the witnesses
allegation
appel-
that the
and involved the
obtaining
process
finger
compulsory
for
his
child’s
lant
inserted
to have the
“tutu,”
in his favor and
term
was used in the home
witnesses
assistance
counsel for his
(1974)];
defense.
court held it was reversible error to ex-
ing against the mother
complaining
clude evidence that the state’s witness was
child at
charge
time the
was made
under an
sodomy
indictment for
at the time
against
holding
аccused.
so
of trial. The Court reasoned
that would Court stated:
tend
part
to establish bias
on the
motive
The trial court sustained the state’s ob
witness,
a state’s
and should have been
jection that this evidence was irrelevant.
holding,
admitted.
In so
the court stated:
operate
The motives which
on the mind
frequently
The Court has
stated that
a witness while he
should
testifies
great latitude should be allowed the ac
regarded
never be
as immaterial or ir
any
showing
cused
which would
fact
State,
relevant. McDonald v.
77 Tex.
bias,
feeling,
tend to establish ill
motive
Cr.Rep. 612,
(1915).
The
State
and truthfulness
of
holdings
Appeal’s
Texas Court of Criminal
testimony
key
Knock’s
a
in
element
Supreme
against appellants.
the State’s case
is the decision of the
Court of the
The
Alaska,
United States Davis v.
bias,
in
claim of
415 U.S.
interest and motive which
308,
1105,
(1974).
sought
develop
defense
94 S.Ct.
91
yeаr
Supreme
had
committed
a
Court of the United States
offense
been
over
trial,
proba
before the
but he was still on
emphasizing
held it
reversible
granted
protective
tion. The trial court
signifi-
guarantees
the Sixth Amendment
order, relying on Alaska Rule of Children’s
rights
cant cross-examination
which include
23,1
Procedure
Alaska
Stat.
exposure of a
motivation in
witness’
testi-
Davis,
(1971).2
47.10.080(g)
at
415 U.S.
fying.3
311, 94
at 1107.
S.Ct.
2. Section
1.
juvenile
part:
Davis v.
S.Ct.
front the witness
guarantees
prosecution ‘to be confronted with the witnеsses
S.Ct.
ate.” Davis v.
protected right of cross-examination. Green v.
Wigmore
cross-examination.’
nation directed
es, prejudices, or ulterior motives of the witness
credibility
struing the
and evidence
ble as evidence
quent
ings
primary
against
ants in state as well
ities in
U.S.
tion means more
and
L.Ed.2d 1377
court_”
criminal
discretion,
a
acting
McElroy,
3 initial identification
affecting
show
‘always relevant as
dice of
except
tion of
1108
1970).
could
In Davis
Rule 23
The Sixth Amendment
'The commitment and
"No
In the instant
witnеss’ motivation
...
they may
(1965).
important
415, 418,
under
at 1108 n. 1
n.
the existence of
have effected his later in-court
A more
in the exercise of
for use
adjudication,
[******]
We
case or
him.’ This
petitioner.5
is
the case at hand. The
2.
Alaska,
Green,
case shall be admissible
interest secured
case where the
Evidence
subject
provides:
is effected means of cross-exami-
47.10.080(g) provides
determines that such
have
Pointer v.
relate
[confrontation]
Alaska,
given in the court are not admissi-
weight
in a
right of an accused
L.Ed.2d
85 S.Ct.
Alaska,
particular
function
causing
toward
(1959).4
case,
recognized
against the
proceedings
474, 496,
directly
presentencing procedure
physically.
than
discrediting
right is
of
exploration
order,
Douglas v.
940,
of his
federal criminal
in
Texas,
petitioner,
possible
415 U.S.
revealing possible
1074, 1076,
being
him make a
Supreme
attack
superior
p
testifying
placement
to issues or
to the Constitution
juvenile jurisdiction
secured for defend-
that
775
311 n.
79
(1965).
clause
minor in
testimony.’
counsel
S.Ct.
allowed to con-
disposition
'Our cases con-
the witness and
(Chadbourn
use
bias
constitutionally
on the witness'
at 311
is the
partiality
at
Alabama,
in
which in turn
in criminal
U.S.
Court stated:
court,
trial,
hold
is
exposure
a
13 L.Ed.2d
1400, 1413,
Confronta-
of a child
94 S.Ct.
identifica-
appropri-
court
sought
personal-
pertinent
a
proceed-
a subse-
n.
proper
that a
and
faulty
preju-
3A J.
other
bias-
of a
of a
in a
rev
not
94
85
its
of
at
is
jures
jealousy.
petitioner to
whose
free from embarrаssment and
record—if the
immutable in
in the
ever
to make its case—is
tion unblemished must fall
Green or his
be disclosed to the
to the
dence used
the action
opportunity
is that
evidence consists
defending himself.
ness.
policy
right
this is
examination_’
ice, vindictiveness,
desire that Green fulfill his
in the
petitioner.
been
of confrontation is
of
evidence,
accuracy
the benefit of
might
atU.S.
may
same state
conclude that the
ultimate
sole
time of
1413,
4-In Greene we stated:
‘Certain
As in
We сannot
5.-
...
petitioner’s
'[A]
they
be used
temporary
accepted
permitted
key
In reversing,
Supreme
Court
Mrs.
stated:
appellant
Kirschner towards the
admissible to
form basis for
protect-
State’s
interest
an inference
policy
that such an
ing
attitude could have
confidentiality
juvenile
aof
influenced
of-
both
Mrs. Kirchner’s
require yielding
as well as
record cannot
fender’s
child,
the testimony of the
so
who
her
right
vital a constitutional
was in
as the
of
custody
recognized
and control. As
by the
cross-examination
bias
effective
an adverse
of
Supreme Court,
way
knowing
there is no
of
witness.
The State
could
effect,
any,
what
if
this
protected
would have
from
on
exposure
Green
of
jury,
jury
right
but the
has the
juvenile
his
to make
adjudication in these circum-
Davis,
determination.
by refraining
stances
U.S.
using
from
him to
tioner’s of burglary convictions
grand larceny is reversed and the case is proceedings
remanded for further not in- opinion. (Emphasis
consistent with this
added).
Davis,
415 U.S. at
at
S.Ct.
1112.
Raymond
SMITH, Appellant,
Jack
us,
In the case
it is
before
reasonable to
assume that
if
Supreme
Court of the
Texas, Appellee.
STATE
right
United States considered that “the
paramount
confrontation
to the
[was]
No. 4-87-00271-CR.
policy
protecting
juvenile
of-
Appeals
Texas,
Court of
fender” would
consider
likewise
San Antonio.
appellant
of confrontation of the
herein
paramount
protecting
Mrs. Kirchner.
Sept.
Davis,
The State’s toas remoteness suf- considerably
fers recognition in face of the partiali- Supreme that: Court “[A] ty mind at time may some former argument used as a basis of to the same testifying.” Davis,
state the time of
U.S. at 317 n. S.Ct. at 1111 n. 5
(emphasis original). argument en- opposition
counters further from the Texas Appeal they pro-
Court of Criminal when operate
claim motives which “[t]he mind of a witness while he testifies regarded
should never be as immaterial or Steve v.
irrelevant.” S.W.2d at *8 of Mrs. truthfulness Kirchner as potential as the
well influence she had complainant key child elements of against appellant. case Evi- motive, will, bias,
dence of ill and animus of 308, 315-321, (Chadbourn 1970). Alaska, p (Emphasis rev Davis v. omitted). 1105, 1109-12, original; (1974). L.Ed.2d footnotes S.Ct.