Opinion
No. 05-18-00247-CR
06-19-2019
CARSTEN HEDEMANN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1434917-R
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Pedersen, III
The State charged appellant with aggravated sexual assault of a child. He waived a jury and pleaded no contest. The trial court found him guilty and assessed his punishment at thirty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises eight issues in this Court, challenging the voluntary nature of his plea, the State's failure to produce certain discovery in a timely way, the trial court's rulings concerning his motion for new trial, and the competence of the complaining witness to testify at trial. In a single cross-point, the State asks us to modify the trial court's judgment to reflect appellant's plea correctly. We modify the judgment to show that appellant pleaded "no contest," and, as modified, we affirm the trial court's judgment.
Background
Facts and Allegations
When she was four years old, A.H. told her mother (Mother) that she and her father (appellant) had been playing a game called the "yummies," in which appellant licked her "cola," and then she licked his "cola." After speaking to her priest and her daughter's teacher, Mother took A.H. to the Irving Child Advocacy Center (ICAC). At the ICAC, A.H.'s forensic interview with Bibiana Dominguez confirmed that she had been sexually abused.
The record establishes that A.H. used the word "cola" to describe both her own sexual organ and her father's sexual organ.
Mother and appellant separated, and A.H. began weekly counseling sessions with Barbara Banda. After approximately eight months of counseling, A.H. told Banda that appellant had shown her a movie; Banda related A.H.'s description of the movie as "girls" giving oral sex to their "daddies."
A.H. testified at trial, by which time she was seven years old. She described the game she had played with her father and the video he had shown her on his computer.
Appellant testified that days before A.H.'s outcry, A.H. had walked in on him watching adult pornography. When she asked him about what she had seen, he attempted to talk to her about what she had seen in the context of sex between parents. He did not tell Mother about the incident because their relationship was already strained. He described playful conduct he had with A.H. but denied any sexual contact with her. He contended that A.H. had confused the movie she saw with reality.
The "Missing Evidence"
Most of appellant's issues address in some fashion what we will call the "missing evidence." Appellant contends that the State failed to turn over—or to turn over in a timely manner—two emails between Mother and Banda and a portion of the video of A.H.'s recorded forensic interview at ICAC.
The emails were forwarded to appellant's counsel from the prosecutor on the morning of appellant's trial. In one email, Mother told Banda that A.H. had informed her that an incident of the conduct had occurred when she (Mother) was in the house; she called appellant a "monster" for this brazen abuse of their daughter. Mother also relayed A.H.'s confusion regarding good and bad touches when Mother bathed her. In addition, one email related in some detail Mother's appreciation for training concerning handling child abuse, which she had received through a video by Governor Greg Abbot.
As to the missing video, A.H.'s forensic interview took place over two days. Dominguez testified that these interviews are videoed as a matter of course. However, during her testimony, it became apparent that either the video of part of one day's interview was missing or that a portion of the interview had mistakenly not been recorded. Dominguez testified that A.H. responded during the interview that she had not been exposed to pornography; that exchange did not take place during either of the two videos produced to appellant by the State.
Appellant argues that the missing evidence would have undermined the credibility of both A.H. and Mother at trial.
Procedural Background
Appellant was initially charged with sexual abuse of a child under six years of age. During the State's investigation, Father's computer was seized. State experts discovered pornography involving adults and children on the computer. Appellant agreed to plead no contest to the charge of sexual abuse of a child under fourteen, which allowed for the possibility of a shorter sentence and parole. In return, the State did not offer evidence of the child pornography found on appellant's computer. As part of the plea process, the trial court orally admonished appellant, and he signed the State's written admonition to sex offenders.
The trial court found appellant guilty and sentenced him to thirty years' confinement. Appellant timely filed his Motion for New Trial and Request for Hearing. The motion was overruled by operation of law without a hearing.
This appeal followed.
The Motion for New Trial
Appellant first identified his concerns involving what we have called the missing evidence in his motion for new trial. Accordingly, we first address his issues that are directly related to that motion. In his fifth issue, appellant argues that the trial court erroneously allowed his motion for new trial to be overruled by operation of law. We review the denial of a hearing on a motion for new trial for an abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009).
Appellant's motion for new trial attached the two emails discussed above and an excerpt of A.H.'s trial testimony. The motion also contained a Fiat, but the record does not include a signed copy of this Fiat setting a hearing on the Motion. Nor does it contain a docket notation or any other indication that the trial court was made aware of the motion and appellant's desire for a hearing. The record does contain a series of emails between appellant's counsel's assistant and one of the trial court's reporters, which appellant contends was his presentment of the motion for new trial to the trial court.
A motion for new trial must be "presented" to the trial court within ten days of its filing. TEX. R. APP. P. 21.6. This means the defendant must give the trial court actual notice that he timely filed a motion for new trial and requests a hearing. Obella v. State, 532 S.W.3d 405, 407 (Tex. Crim. App. 2017) (per curiam). Presentment must be shown on the record. Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). It can be proved by the judge's signature on the motion itself or on a proposed order; it can also be proved by an entry on the docket sheet showing presentment or setting a hearing date. Id. A defendant can present his motion by scheduling a hearing through the trial judge's court coordinator. Bearnth v. State, 361 S.W.3d 135, 146 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). Merely filing the motion, however, does not accomplish presentment. Stokes v. State, 277 S.W.3d 20, 24 (Tex. Crim. App. 2009).
Appellant contends that his counsel's assistant's email to a court reporter accomplished presentment. The assistant's messages stated:
Dear Debbie,The court reporter responded:
Attached is a file-marked copy of our motion for new trial, along with a copy of the proposed Fiat. Please accept the e-mail as our request for submission of the attached documents to the Judge and a request for a setting for a hearing. We look forward to hearing back from you. Thank you.
Sincerely,
Julie Gold
Assistant to Jeff L. Pierce
Dear Julie,Ms. Gold then responded that they did not need transcripts and that appellant was still in the Dallas jail.
The hearing for the Motion for New Trial needs to be heard by January 2, 2018. I will ask [the State's trial counsel] what works for her and then have her contact Mr. Pierce. Is Mr. Pierce requesting the transcripts be provided before the Motion for New Trial and if so is Mr. Pierce paying for the record?
Also, I don't know if [appellant] is still in the Dallas County Jail. If he has been sent to TDC then Mr. Pierce will need to contact the coordinator in the 265th JDC and have her bench warrant [appellant] back to Dallas. Would you please let me know when he will be in Dallas County (if he is not here already)?
Thank you,
Debi Harris
The Texas Court of Criminal Appeals has stated that presentment "must be directed to the trial court or another authorized to act on behalf of the trial court." Stokes, 277 S.W.3d at 22 (quoting Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998)). We know that a defendant may present his motion to the trial judge through a court coordinator, who is tasked with setting hearings for the trial judge. See Bearnth, 361 S.W.3d at 146. But appellant provides us with no legal authority—and we have found none—allowing contact with a court reporter to serve as presentment to the trial court. Nor does any language in the above emails persuade us that this court reporter was empowered to set hearings for the trial judge. We conclude that appellant did not present his motion for new trial to the trial court.
Because the record does not show the motion was actually presented to the trial court, the issue of whether the court erred in denying appellant a new trial is not preserved for our review. See Smith v. State, No. 05-16-00466-CR, 2017 WL 4247964, at *1-2 (Tex. App.—Dallas Sept. 25, 2017, no pet.). We overrule appellant's fifth issue.
In his sixth issue, appellant contends that the trial court erred by overruling his request for a hearing on the motion. A defendant has a right to a hearing on a motion for new trial when the motion raises matters that cannot be determined from the record. Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993). But a defendant must put the trial judge on actual notice that he desires the judge to hold a hearing on his motion for new trial. Gardner, 306 S.W.3d at 305. "[A] reviewing court does not reach the question of whether a trial court abused its discretion in failing to hold a hearing if no request for a hearing was presented to it." Obella, 532 S.W.3d at 407.
We overrule appellant's sixth issue.
Compliance with the State's Discovery Obligations
In his second, third, and fourth issues, appellant argues that the State failed to provide exculpatory and impeachment evidence in violation of article 39.14 of the Texas Code of Criminal Procedure, the Fourteenth Amendment of the United States Constitution, and article 1 section 19 of the Texas Constitution. The evidence at issue is what we have called the missing evidence, i.e., the two emails between Mother and A.H.'s counselor and the video in which A.H. was questioned about her having been shown pornography. The State responds that appellant has not preserved these complaints for our review. We agree.
As to the video, when the possible existence of either an additional, or further, recording came to light during appellant's questioning of Dominguez, appellant did not respond with any kind of motion or objection. He did not ask the trial court for a continuance in order to investigate the reasons for the video's absence. Thus, at trial he did not preserve his complaint concerning the State's failure to produce the video. Appellant did complain about the State's failure to produce the video in his motion for new trial, but that motion was not brought to the trial court's attention. He has preserved nothing for our review concerning the missing video.
Likewise, appellants' complaints about the State's failure to produce the emails timely are not before us. The record establishes that the emails were delivered to counsel for appellant the morning of the first day of trial, but "[c]ounsel did not see the emails until after sentencing." For this reason, no objection was made at trial concerning the purportedly untimely delivery of the materials. Again, appellant raised his complaints in his motion for new trial and attached the emails to that motion. But motions for new trial are not self-proving, and allegations made in support of them—by way of affidavit or otherwise—must be offered into evidence at a hearing. Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009). This rule is based, in part, on permitting the nonmoving party an opportunity to respond to the evidentiary allegations before a conviction could be reversed on their basis. Id. And the rule applies even to motions that implicate federal constitutional issues. Id. In the absence of a hearing on appellant's motion for new trial, the emails were not admitted into evidence, and his complaints concerning the emails were not preserved for our review.
We overrule appellant's second, third, and fourth issues.
Voluntariness of Plea
In his first issue, appellant contends that his plea of no contest was not freely, knowingly, and voluntarily entered because the State failed to disclose favorable evidence. He argues that the missing evidence was crucial to his case because it provided "much needed ammunition against the child's credibility and [against] looming testimony about child pornography images found on a household computer." He contends that the missing video questioning about pornography went "to the very heart of the question of guilt" and that the missing emails undermined the credibility of both A.H. and Mother. These allegations were made only in his motion for new trial, and his supporting evidence was attached to the motion. Neither are before us. See id. We could not reach appellant's complaint that the State failed to disclose the missing evidence to him in a timely way. Likewise, on this record, we cannot reach the issue of whether appellant would not have waived his jury trial and pleaded no contest had the evidence been produced earlier. That issue was not preserved for our review.
We overrule appellant's first issue.
In his seventh issue, appellant argues that the trial court erred by failing to withdraw appellant's plea of no contest sua sponte because it was not given voluntarily. We have concluded that the voluntariness of appellant's plea was not before the trial court and is not before us.
Contrary to appellant's remaining arguments concerning his plea, the record establishes that appellant was admonished both orally and in writing concerning the effects of his plea. The record establishes further that appellant pleaded no contest in open court and in person. And as to the fact that appellant took the stand and denied his guilt, he could have withdrawn his own plea as a matter of right without assigning a reason until judgment was pronounced or the case had been taken under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Young v. State, No. 05-12-01453-CR, 2013 WL 2152001, at *1 (Tex. App.—Dallas May 17, 2013, no pet.) (not designated for publication) (applying Jackson to no contest plea). "The appellant not having done so, he may not complain for the first time on appeal that the trial court did not do it for him." Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004).
We overrule appellant's seventh issue.
Competence of Child Witness
In his eighth issue, appellant argues the trial court erred by determining A.H. was competent to testify at trial. Witnesses are generally presumed to be competent. TEX. R. EVID. 601(a). A child is incompetent to testify only if the court examines her and finds that she lacks sufficient intellect to testify concerning the matters in issue. TEX. R. EVID. 601(a)(2). In such an examination, the trial court considers whether the child witness possesses (1) the ability to observe intelligently the events in question at the time of the occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events. Torres v. State, 424 S.W.3d 245, 254 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). We review the trial court's determination of a witness's competency for an abuse of discretion. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995).
At the competency hearing, the State first questioned A.H. concerning her understanding of truth and falsehood. She was able to identify concrete examples of statements that were true or false, and she promised to tell the truth. She then was able to answer factual questions concerning her age, school, teachers, and best friend. When asked, she was able to recall where her father played the game with her and the sequence in which he undressed her, put his mouth on her "private part," and then had her put her mouth on his. She recalled him showing her a video of a "really big" girl—who she estimated to be twelve years old—doing the "yummies" to her father. She remembered seeing the video on a laptop computer and remembered appellant telling her not to tell anyone about it. She testified that she told Mother because she knew her mother would protect her and could keep the secret. Finally, she testified that she knew the game had happened more than one time.
Appellant offered the testimony of his expert, Dr. Alexandria Doyle, a licensed psychologist, who had reviewed the child's forensic interviews and counseling notes and Mother's medical records. Doyle did not examine A.H., but she questioned A.H.'s sensory descriptions of the alleged abuse in the forensic interview and opined that what the child described could have been what she saw in a movie. She concluded that A.H. was not competent to testify at trial. Banda also testified at the competency hearing; she stated that she had never had concerns about the child being able to tell the truth or to remember and describe what had happened to her based on her own experience and memory.
The trial court concluded A.H. was competent to testify. We give great deference to the trial judge who was there to evaluate the child and her responses personally. Escamilla v. State, 334 S.W.3d 263, 267 (Tex. App.—San Antonio 2010, pet. ref'd). The record supports the trial court's conclusions that A.H. possessed sufficient intellect to have observed the acts she identified as a game, to recollect them, and to relate them at trial. Appellant points out inconsistencies between A.H.'s descriptions in the forensic interviews and her trial testimony, but any inconsistencies in her testimony about specific incidents go to her credibility, not to her competency to testify. De Los Santos v. State, 219 S.W.3d 71, 81 (Tex. App.—San Antonio 2006, no pet.). The trial court did not abuse its discretion in concluding A.H. was competent to testify.
We overrule appellant's eighth issue.
Modification of Judgment
Finally, the State asks us to modify the trial court's judgment to show that appellant pleaded "no contest" rather than "guilty" to the charged offense. This Court may modify the trial court's judgment to make the record speak the truth when it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W. 2d 26, 31 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W. 2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). We modify the judgment to reflect appellant's plea as "no contest."
Conclusion
As modified, we affirm the trial court's judgment.
/Bill Pedersen, III/
BILL PEDERSEN, III
JUSTICE Do Not Publish
TEX. R. APP. P. 47 180247F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1434917-R.
Opinion delivered by Justice Pedersen, III. Justices Whitehill and Partida-Kipness participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
Appellant entered a plea of "no contest" not "guilty." As MODIFIED, the judgment is AFFIRMED. Judgment entered this 19th day of June, 2019.