Lead Opinion
OPINION
This is аn appeal from a conviction by a jury for indecency with a child. Punishment was set by the court at five years probated.
The first point of error is that the trial court erred in refusing to admit into evidence defense testimony showing bias, motive and ill-will on the part of the State’s witness, Bertha Kirchner. Bertha Kirchner was the defendant’s ex-wife and was the mother of the child complainant.
In his brief the defendant states that he wanted to show that Mrs. Kirchner had developed a keen bitterness tоwards the defendant based upon their previous domestic relationship. He said he was not allowed to do this even though he explained the purpose of such inquiry.
It is unquestioned that a witness may be impeached by a showing of interest, bias, prejudice or other motive which tends to effect his credibility. Steve v. State,
To place the questions that the court did actually rule upon in proper context, it is necessary to understand that the defendant and the witness Bertha Kirchner were married in 1979, were separated in 1982 and were divorced in March 1983. The offense was alleged to have occurred August 19, 1984, and the trial was in March 1986.
The defendant only refers us to three places in the record where questioned rulings were made by the trial court. The first one occurred during cross-examination of Bertha Kirchner by the defense counsel. She was asked “who filed the petition for the divorce?” The State’s objection as to relevance was sustained by the court. The sеcond question inquiring as to whether or not the defendant had children by a previous marriage was also ruled to be irrelevant by the trial court. The defense counsel then stated that he wished to develop
When the defendant testified, he was permitted to describe in detail the deteriorating relationship between him and Bertha Kirchnеr. The defendant was also permitted to describe the personality traits of Bertha. In response to another objection the court gave a ruling and an explanation as follows:
I think the objection is well taken, counsel. I don’t think that — see, we are trying a child molestation case, we are not trying their divorce. The problem is that the relationship between these parties that have some relationship to this offense are relevant. Anything else isn’t. You know, it is just sort of not really connected with jt.
The judge was obviously attempting to permit the defendant the latitude necessary to described fully his relationship to Bertha as it related to the offense. The defendant was permitted to describe fully his relationship with the witness contemporaneous with the alleged offense.
The only other question referred to in the defendant’s brief on which there was an adverse ruling occurred during the direct examination by the defense of Shirley Parker, sister of the defendant. She was asked, “What did Bertha Kirchner tell you in regard to Gilbert Kirchner at that time frame?” The State objected on the grounds that it was a hearsay statement, and the court inquired if it was being offered under some theory that made it an exception to the hearsay rule. The defense counsel responded “motive, scheme, plan, design, as far as the allegations that are before this jury.” The objection was then sustained.
Under TEX.R.CRIM.EVID. 803(3) a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design) is not excluded by the hearsay rule. However, defendant does not urge reliance on this rule in his brief. As best can be determined, defendant's present contention is that it was an offer to show a prior inconsistent statement by the witness Bertha Kirchner. On cross-examination Bertha had denied that she had told the defendant that she was going to “get” him. She further denied having told anyone that she would “destroy” the dеfendant. She did admit that she told the defendant she was going to do something about it.
As part of defendant’s bill of exception Shirley Parker was asked if Bertha Kirchner had told her she would destroy the defendant. Parker testified that sometime prior to August 19, 1984, Bertha said she was hurt she would like to make the defendant feel the hurt; she did not say “destroy.” She did say she would get even with him.
Since the ruling of the trial judge complained of had to do with whether or not the evidence came under one of the exсeptions to the hearsay rule, it is incumbent on the defendant to give argument and authority supporting the same allegation of error. Otherwise, it is not reviewable on appeal. Milligan v. State,
If however, the defendant’s contention on appeal is that testimony of Parker should have been admitted to show prior inconsistent statements of Bertha Kirchner, there is no reversible error for an additional reason. Any inconsistencies on the part of Bertha Kirchner to be gleaned from Parker’s testimony on the bill of exception are so minute that we find beyond a reasonable doubt that any error in the exclusion of the testimony made no contribution to the conviction or to the punishment. TEX.R.APP.P. 81(b)(2). Error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is effected. TEX.R.CRIM. EVID. 103(a).
The questions inquiring as to who filed the petition in the divorce case and how many children the defendant had by prior marriage had absolutely no tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable. The evi
Nowhere is it demonstrated that the trial judge made an incorrect ruling. Therefore, the first point of error is overruled.
The second point of error is that that the trial court erred in finding the four year old complainant competent to testify. TEX.R.CRIM.EVID. 601 (which replaced art. 38.06 TEX.CODE CRIM.PROC. effective September 1, 1986) now provides that every person is a competent witness excеpt an insane person or children who “after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.”
A hearing was held on the defendant’s motion to determine competency. Though some of the child’s answers were conflicting and showed confusion, her competency was a question for the trial court. The court’s decision will not be disturbed on appeal in the аbsence of an abuse of discretion. Garcia v. State,
In his last point of error, appellant contends the evidence is insufficient to sustain his convictiоn. We disagree.
The standard of review in both circumstantial and direct evidence cases requires that we look at the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
The last point of error is overruled, and the judgment of conviction is affirmed.
Concurrence Opinion
concurring.
I agree with the majority opinion that the appellant’s brief fails to direct this Court to
Child molesting cases present very special problems to trial and appellate judges which require very careful scrutiny. The typical child molesting case involves a child of tender age. Because the law recognizes the natural inclination of such children to be irresponsible, it imposes no severe duties upon them. The fact that such a child can be influenced easily by its custodian must also be recognized. Thus a serious question of who really is the complainant is always present in such cases.
The natural inclination to feel extraordinary sympathy for a child perceived sexually abused is as great as the natural inclination to feel repulsion, disgust and vengefulness towards an adult accused of the sexual abuse. The potential, under these emotionally charged circumstances, to insufficiently concentrate on the constitutional rights of an accused is enhanced. These circumstances should not result in depriving an accused of a fair trial under the law. Nor is it meant to suggest that children of tender age are to be ignored when their rights are infringed upon. It is with all children in mind that constitutional rights must be protected. For the children of today will be the adults of tomorrow, who will be the ones to suffer should the constitution become an old dead parchment of no significant value which will no doubt occur tomorrow if it is not upheld today.
This is such a case which involves a complainant who was three years and onе month old at the time of the alleged offense, and four years and eight months old at the time of the trial. The alleged incident made the subject of this trial allegedly took place on the 19th day of August, 1984, and involved the allegation that the appellant inserted his finger in the child’s “tutu,” a term which was used in the home for vagina. The record reflects the child testified while sitting on the lap of her older sister. Her testimony contained the expected deviations of a child of such a tendеr age. The child complainant failed to answer some questions, other answers could not be understood by the reporter, other answers resulted in merely “indicating,” some of her answers were clearly in error, and at one point during the trial, the child made the following spontaneous statement according to the record:
/EURBGS [sic] that one with the mustache, did a bad thing to me. Maybe he is the one. He looks like my daddy.
The record further reflects that during the video interview, after accusing the appellant of improperly touching her with her clothes on, the complainant ended the interview stating appellant had not done what was alleged. Complainant’s mother, Bertha Kirchner, had custody of the child from March 1983, when she divorced the appellant, the natural father of the child. She testified that the child complained to her of the incident on the 19th of August, 1984, after appellant had left from exercising his visitation rights. The testimony of Dr. William P. Gross disclosed that he found no evidence the child was molested when he examined her about one week after the alleged incident. Thus, the testimony of Bertha Kirchner, as well as her influence on the child complainant became extremely critical. The ill-will evidence suggested too remote by the State led up to and surrounded the divorce of the parties in March 1983.
The issue then is the application of the sixth amendment of the Constitution of the United States which provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have theassistance of counsel for his defense. (Emphasis added).
U.S. Const.Amend. VI.
The Texas Court of Criminal Appeals has clearly indicated that the sixth amendment must be liberally construed in order that an accused receive all the protection intended by the Constitution. In Evans v. State,
The Court has frequently stated that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him. See Seal v. State,496 S.W.2d 621 [Tex.Cr.App.1973]; Hooper v. State,494 S.W.2d 846 [Tex.Cr.App.1973]; Burkhalter v. State,493 S.W.2d 214 [Tex.Cr.App.1973]; Wood v. State,486 S.W.2d 359 [Tex.Cr.App.1972]; Jackson v. State,482 S.W.2d 864 [Tex.Cr.App.1972]; Fletcher v. State,437 S.W.2d 849 [Tex.Cr.App.1968]; Blake v. State,365 S.W.2d 795 [Tex.Cr.App.1963]. See also, Mutscher v. State,514 S.W.2d 905 [Tex.Cr.App.1974]. (Emphasis added).
Id. at 871.
Thе accuracy and truthfulness of Knock’s testimony was a key element in the State’s case against appellants. The claim of bias, interest and motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Knock’s vulnerable status as an indictee, as well as of Knock’s possible concern that he might be a suspect in the offense. Cf. Mutscher v. State, supra.
We conclude that appellants were denied the right of effective cross-examination, which is ‘constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Davis v. Alaska, [415 U.S. 308 ,94 S.Ct. 1105 ,39 L.Ed.2d 347 (1974)]; Brookhart v. Janis,384 U.S. 1 ,86 S.Ct. 1245 ,16 L.Ed. 2d 314 [1966].
Id. at 873.
In Steve v. State,
The trial court sustained the state’s objection that this evidence was irrelevant. The motives which operate on the mind of a witness while he testifies should never be regarded as immaterial or irrelevant. McDonald v. State, 77 Tex.Cr.Rep. 612,179 S.W. 880 (1915). Great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive, or animus upon the part of any witness testifying against him. The jury should be given the opportunity to judge for themselves the witness’s credibility in light of the witness’s feelings toward the accused and his motive for testifying. Wood v. State,486 S.W.2d 359 (Tex.Cr.App.1972); Coleman v. State,545 S.W.2d 831 (Tex.Cr.App.1977). (Emphasis added).
Id. at 140.
The State concedes that the basis for the Texas Court of Criminal Appeal’s holdings is the decision of the Supreme Court of the United States in Davis v. Alaska,
The Supreme Court of the United States held it was reversible error emphasizing the Sixth Amendment guarantees significant cross-examination rights which include exрosure of a witness’ motivation in testifying.
The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontatiоn, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records. The judgment affirming petitioner’s convictions of burglary and grand larceny is reversed and the case is remanded for further proceedings not inconsistent with this opinion. (Emphasis added).
Davis,
In the case before us, it is reasonable to assume that if the Supreme Court of the United States considered that “the right of confrontation [was] paramount to the State’s pоlicy of protecting a juvenile offender” it would likewise consider the right of confrontation of the appellant herein paramount to protecting Mrs. Kirchner. Davis,
Notes
. Rule 23 provides:
"No adjudication, order, or disposition of a juvenile case shall be admissible in a court not acting in the exercise of a juvenile jurisdiction еxcept for use in a presentencing procedure in a criminal case where the superior court, in its discretion, determines that such use is appropriate.” Davis v. Alaska,415 U.S. at 311 n. 1,94 S.Ct. at 1108 n. 1
. Section 47.10.080(g) provides in pertinent part:
'The commitment and placement of a child and evidence given in the court are not admissible as evidence against the minor in a subsequent case or proceedings in any other court_”
Davis v. Alaska,415 U.S. at 311 n. 2,94 S.Ct. at 1108 n. 2.
. In Davis v. Alaska, the Supreme Court stated:
The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be cоnfronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas,380 U.S. 400 ,85 S.Ct. 1065 ,13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. 'Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.’ Douglas v. Alabama,380 U.S. 415 , 418,85 S.Ct. 1074 , 1076,13 L.Ed.2d 934 (1965).
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... A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore Evidence § 940, p 775 (Chadbourn rev 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Green v. McElroy,360 U.S. 474 , 496,79 S.Ct. 1400 , 1413,3 L.Ed.2d 1377 (1959).4
In the instant case, defense counsel sought to show the existence of possible bias and prejudice of Green, causing him to make a faulty initial identification of petitioner, which in turn could have effected his later in-court identification of petitioner.5
We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors werе entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony which provided ‘a crucial link in the proof ... of petitioner’s act.’ Douglas v. Alabama,380 U.S. at 419 ,85 S.Ct., 1077 ,13 L.Ed.2d 934 . The accuracy and truthfulness of Green’s testimony were key elements in the State’s case against petitioner.
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... In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.
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As in Alford, we conclude that the State's desire that Green fulfill his public duty to testify free from embarrassment and with his reputation unblemished must fall before the right of petitioner to seek out the truth in the process оf defending himself.
- In Greene we stated:
‘Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might he faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination_’360 U.S. at 496 ,79 S.Ct., at 1413 ,3 L.Ed.2d 1377 .
.- '[A] partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying.' 3A J. Wigmore, Evidence,
Davis v. Alaska,