Opinion
No. 06-08-00002-CR
Date Submitted: September 8, 2008.
Date Decided: November 19, 2008. DO NOT PUBLISH.
On Appeal from the 336th Judicial District Court Fannin County, Texas, Trial Court No. 21883.
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Justice MOSELEY. Concurring Opinion by Justice CARTER.
OPINION
In a nonjury trial, Michael Tyne Werner was convicted of aggravated sexual assault of a child and sentenced to twenty years' imprisonment. He now appeals that conviction, raising a sole point of error: Werner complains the trial court erred by allowing the State to introduce a digital video disc (DVD) recording of the child victim's forensic interview at the Fannin County Children's Advocacy Center (CAC). We affirm the trial court's judgment. Following the presentation of Werner's defense case-in-chief, the State offered in rebuttal a video recording of the forensic interview of the child victim at the CAC. In responding to Werner's objection to the introduction of the video, the State claimed that Werner had articulated a defensive theory that the child's story was a recent fabrication; as a result of this defensive theory, the statements made by the child in the video were admissible as prior consistent statements. See Tex. R. Evid. 801(e)(1)(B). Werner's point of error is based on the admission of this evidence. Although Werner does not attack the sufficiency of the evidence, this opinion includes a brief recitation of the evidence in order to place the point of error in context so it can be better understood. Werner resided with Mildred Antoinette Curtis (Toni). The couple had one child together; also in the home were two of Toni's children from a prior relationship, including Janie. Werner had a habit of allowing Janie to stay up late with him, but sending the two boys to bed. Eventually, Janie told her mother that when she and Werner stayed up late together, in addition to playing games and baking, Janie would sometimes put Werner's "pee-pee" in her mouth. Werner took the stand in his defense and denied Janie's allegations. He opined that Janie had manufactured the story because she had become angry when he told her one night she could not stay up late with him. In addition to this defense, he also called into question Toni's motives, saying that within a week of Werner's arrest, Toni had allowed another man to move into the house with her, suggesting that Toni had something to hide. Following the presentation of Werner's defense, the State offered the video of the interview of Janie at the CAC. Werner objected to the introduction of the video on the basis that it was hearsay, pointing out that the child was available and had already testified. In response, the prosecutor said, The defense has sought to establish through cross-examination and through some direct testimony that there may have been an improper motive on the part of the child to testify the way she has. Or there may have been an improper influence on the part of the mother, and that there may be some fabrication to the story based on the child's interaction with other people, subsequent to the outcry. This is offered, to rebut that defensive theory. The trial court overruled Werner's objection, ruled the video admissible, and viewed it. The video interview, it bears pointing out, contains statements by Janie which conformed with her in-court testimony, alleging (as in her live testimony) that Werner put his "pee pee" or "private" in her mouth. The Texas Court of Criminal Appeals has adopted the following criteria in evaluating whether a particular statement is excluded from the realm of hearsay pursuant to Rule 801(e)(1)(B) of the Texas Rules of Evidence:
(1) the declarant must testify at trial and be subject to cross-examination;
(2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant's testimony by the opponent;
(3) the proponent must offer a prior statement that is consistent with the declarant's challenged in-court testimony; and,
(4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.Hammons v. State, 239 S.W.3d 798, 804 (Tex.Crim.App. 2007). The Texas Court of Criminal Appeals' analysis points out the test above sets out a "minimal foundation requirement of an implied or express charge of fabrication" and that "`there need be only a suggestion . . . of conscious alteration or fabrication" to give the "trial court substantial discretion to admit prior consistent statements." Id. at 804-05. While pointing out that "the rule cannot be construed to permit the admission of what would otherwise be hearsay any time a witness's credibility or memory is challenged" lest all prior consistent statements be adjudged outside the hearsay rule, it admits that there is no "bright line between a general challenge to memory or credibility and a suggestion of conscious fabrication" and leaves such determination of that distinction largely to the trial court, which has the ability to observe the nuances between the two. Id. at 805. At the time of her testimony, Janie was seven years old; her outcry alleging Werner's abuse and interview with the CAC which followed both occurred about a year and a half before trial. From the record, it is clear that she was not comfortable while testifying; there are several references that she was sleepy, tired, and "bored" during her testimony. During the course of the CAC interview, although she continued to tell the interviewer about the relationship and contacts between her and Werner, she also continued to draw and to ask the interviewer questions which were unrelated to the investigation. In Werner's questioning of the child, she stated that another person, Richard, had also gotten her to perform similar acts of fellatio as those which Janie alleged against Werner, charges she recanted. Then, Janie said she did not know why she had told her mother this and confirmed the assaults had occurred. Toni testified, however, that she did not believe Janie's allegation against Richard, saying that she believed those allegations to only have been an effort to gain attention; and there was some indication that Richard had been tried and acquitted of the charges. Toni admitted during cross-examination that Janie had been removed from her home by the Child Protective Services (CPS) and placed in foster care for almost a year, from September 2006 to August 2007. The trial court limited the extent to which Werner could question the mother on this topic; in his offer of proof, counsel for Werner said, [T]he questions would go to the relevancy as her motives to support her daughter in the outcry and to testify in regards to whether or not her daughter has recanted, whether or not her daughter has made the statements that she made to her, all dealing with her motive for not wanting to get in any further trouble with CPS or with CASA. Going to her mental state and motive to testify one way or the other concerning what threats had been made to her about taking her child away from her if she did not support her daughter or testify in a certain fashion. Toni did concede that the CPS was concerned "about [her] having exposed the children to men that abuse her." When asked if the CPS had told her anything specific she could do to keep her children, Toni said she had been told "stay off of drugs." Exactly how Toni's purported motive to lie would affect her relationship with the CPS agency is not clear from the record. It seems to be the State's position that in May 2006, after Janie's initial outcry and allegation, the CPS began an investigation of Toni's home situation, an investigation which resulted in her children being temporarily removed. The video statement about which Werner complains was recorded on May 8, 2006, before any action of the CPS regarding Toni's children. Deferring to the trial court's discretion and its ability to observe the witnesses' demeanor and credibility, we cannot say the trial court abused the discretion in allowing the State's rebuttal evidence. Even if we found an abuse of discretion on the trial court's part, Werner has not shown resulting harm. Any nonconstitutional error which does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission or exclusion of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). In determining harm, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. As mentioned, this trial was to the trial court, and we will substitute the court, as finder of fact, for the part of the jury in this analysis. In addition to the testimony of Janie, the State introduced several letters written by Werner to Toni during his incarceration awaiting trial. Those letters included pleas for Toni to "go down and drop those charges on me," and "See if you can talk to [Janie] and see if you can change her words on what she said about me . . . she saw us making love. That's where she picked that up." Werner's letters also said, "I'm sorry of what I did," and "all I can say is I'm sorry. Please forgive me. . . . I will get help and whatever it takes to keep you in my family . . . I really don't want this on my record for the rest of my life." In other evidence, Toni also testified that on one occasion, she had discovered Werner hiding in Janie's bedroom; his explanation to her was that he wanted to wake the child. On another occasion, Toni's suspicions were aroused when, late at night, she happened upon Werner and Janie alone together on the couch; at that time, Werner was only wearing shorts and the child's head was resting on his stomach. Werner told Bonham police officer Terry Bee that Janie was in the habit of coming up to him and grabbing his penis, over his clothes; he admitted that his penis had gone in the child's mouth, but he asserted the child initiated contact. Based on the record as a whole, we are confident that even if it had been error to have admitted the State's rebuttal evidence, that evidence had no determinative effect upon the finder of fact. We overrule Werner's point of error and affirm the trial court `s judgment and sentence.
Rule 801(e)(1)(B) states as follows:
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
. . . .
(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive;. . . .
Tex. R. Evid. 801(e)(1)(B).
The child victim's name is an alias.
To the extent Werner asserted as a defense that Jamie fabricated her allegation, the CAC interview would not be admissible under 801(e)(1)(B), as her purported motive to fabricate, that she was angry because she was not allowed to stay up late, occurred before the CAC interview. However, the interview became admissible under 801(e)(1)(B) to answer the theory that Toni had a motive to fabricate, which did arise after the interview.
"Rule 801(e)(1)(B) gives substantive, non-hearsay status to prior consistent statements of a witness `offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.' We have previously stated that our rule mirrors that of Federal Rule 801(d)(1)(B) and thus federal decisions provide helpful analysis." Hammons, 239 S.W.3d at 804 (footnotes omitted).