Opinion
No. 05-14-01359-CR
05-25-2016
TOM ILES WHITE, III, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court Collin County, Texas
Trial Court Cause No. 219-81783-2013
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
Tom Iles White, III appeals his convictions for continuous sexual assault, indecency with a child by contact, and indecency with a child by exposure. In four issues, appellant challenges three evidentiary rulings by the trial court. After reviewing the record and the arguments on appeal, we affirm the trial court's judgment.
BACKGROUND
The complainant in this case, A.L., was appellant's stepdaughter. She was thirteen years old at the time of trial. A.L. testified that appellant began showing her pornography when she was four years old. As she got older, appellant progressed to touching her, kissing her and, eventually, to sexual contact. On occasions, appellant would show A.L. pornography and then force her to perform sexual acts. A.L. stated she was afraid that if she told anyone about what appellant was doing, he would hurt her. According to A.L., appellant told her that if she ever told anyone what they were doing, she would be forced to live in a trailer home with her grandparents and her family would die without his money.
In January 2013, when A.L. was twelve years old, her mother became concerned about her angry behavior and the way she was treating her younger brother. Her mother told her she was being "abusive." Her mother also became upset when appellant dismissed her concerns about A.L. and told her he thought A.L.'s behavior was normal. A.L.'s mother eventually confronted A.L. in the car after a youth group meeting and asked if anyone had been bullying or hurting her. A.L. responded "no." A.L.'s mother then asked if appellant was touching her. At first A.L. said he was not. But when A.L.'s mother began to drive home, A.L. stopped her and told her appellant was touching her, that he made her swallow "white stuff," and that she did not want to do it anymore. A.L.'s mother called 911 from the car. The police helped A.L.'s mother remove her other two children from her and appellant's home and take all three children to a motel.
Appellant was charged by indictment with one count of continuous sexual assault, three counts of indecency with a child by contact, and one count of indecency with a child by exposure. Appellant pleaded not guilty and was tried by a jury. The jury convicted appellant on all counts and assessed punishment at thirty years' confinement in prison for continuous sexual assault, ten years' confinement and a $5,000 fine for the first count of indecency with a child by contact, ten years' confinement and a $5,000 fine for the second and third counts of indecency with a child by contact combined, and five years' confinement and a $5,000 fine for indecency with a child by exposure. Confinement was ordered to run concurrently for all counts except the first count of indecency with a child by contact for which confinement was ordered to run consecutively. Appellant brought this appeal from the trial court's judgment.
ANALYSIS
A. Rule of Optional Completeness
In his first issue, appellant contends the trial court erred when it refused to admit the entirety of a videotaped conversation between appellant and a police detective after the State inquired about statements made during the interview. We review a trial court's decision regarding the admissibility of evidence for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). Because the trial court is in the best position to decide questions of admissibility, we uphold its decision when that decision is within the zone of reasonable disagreement. Id.
At the trial, the State called detective Chris Jones as a witness. Jones testified on direct examination that he conducted an interview with appellant at the Collin County Jail. During cross-examination, the defense attempted to admit a video recording of the interview. The State objected on the ground that the video constituted inadmissible hearsay and the trial court sustained the objection.
Later, on redirect examination, the State asked Jones questions about statements appellant made during the interview. Specifically, the State asked whether appellant told the detective that his DNA could be found on a blanket he allegedly used when having sexual contact with A.L. and whether he admitted that the police would find pornography on his phone. When Jones indicated appellant had said both these things, the State then asked whether it was concerning that the police did not find either DNA on the blanket or pornography on his phone. Jones answered that it was concerning and indicated the possibility that the evidence had been destroyed.
On re-cross-examination, the defense again attempted to admit the entire video recording of the interview, this time citing the rule of optional completeness. The trial court allowed the defense to admit anything having to do with the blanket or the alleged pornography on the phone, but not the entire video. The defense played a portion of the video for the jury in which appellant discussed the blanket A.L. said they used when they engaged in sexual activity. Appellant stated on the recording that there was a possibility of finding his DNA on the blanket if he and his wife had used it and not washed it. The defense did not play any of the video pertaining to appellant's statements about pornography on his phone.
Appellant contends the trial court abused its discretion in refusing to admit the entire videotape under Texas Rule of Evidence 107. Rule 107 states,
If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party mat inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponentTEX. R. EVID. 107. Appellant argues the admission of the entire videotape was necessary to show the context in which his statements were made. Appellant asserts his statements about the blanket and pornography were made as a result of professional interrogation techniques designed to elicit incriminating responses and taking the statements out of this context misled the jury and left them with a false impression that he had destroyed evidence.
Under rule 107, the portions of the videotape sought to be admitted must be "on the same subject" as the material already introduced, and must be "necessary to make it fully understood." See Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004). The purpose of the rule is to reduce the possibility of the jury receiving a false impression from hearing only part of some act, conversation, or writing. See Credille v. State, 925 S.W.2d 112, 116 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd). The trial court in this case granted appellant permission to introduce all portions of the videotape that related to the blanket and the alleged pornography on his phone. Such portions would necessarily include the "interrogation techniques" used by the detective to elicit the statements given by appellant on those topics. Appellant does not explain why the contents of the video pertaining to other subjects would provide additional "context" to his statements necessary to make the conversation fully understood.
Appellant relies on the case of Credille v. State, for the proposition that once the State "opened the door" to the contents of the videotaped conversation, the entire recording was admissible. See Credille, 925 S.W.2d at 117. In Credille, the defendant in an aggravated sexual assault case vigorously attacked the credibility of the complainant based on statements she made during a videotaped conversation with an investigator. Id 116. The defense noted that the investigator did not pursue all the accusations made by the complainant in the conversation, including a statement she made that her brother had touched her. Id. The defense used this as evidence to show that the investigator did not believe the complainant. Id. On redirect examination, the investigator stated that, based on the entire conversation she had with the complainant, she believed the statement the complainant made about her brother was a slip of the tongue rather than an accusation. Id. The State then requested that the videotape of the conversation be admitted under Rule 107. Id. Because the entire conversation was necessary to show the basis upon which the investigator formed her understanding of the complainant's statement and her credibility, the court concluded the videotape of the entire conversation was admissible. Id. at 117.
Credille does not stand for the proposition that once the contents of a videotaped conversation have been inquired into, the entire videotape is admissible. See Sauceda, 129 S.W.3d at 123. The entire tape is admissible only if necessary to prevent a false impression or explain or make testimony understood. Id. As stated above, appellant gives no indication why the entirety of the videotape is necessary to demonstrate the interrogation techniques used to elicit the statements at issue. Appellant was granted permission to play the portions of the videotape that related to the blanket and pornography on his phone and he chose to play only the portion related to the blanket. In addition, appellant was able to question Jones thoroughly at trial about his interrogation techniques. After reviewing the record, we do not see that admission of the remainder of the videotape was necessary to correct a false impression or make appellant's testimony understood. Accordingly, the trial court's decision was within the zone of reasonable disagreement and not an abuse of discretion. We overrule appellant's first issue.
B. Ability to Present a Defense
Appellant next contends that the trial court's refusal to admit the entire videotape based on the hearsay rule violated his constitutional right to present a complete defense. Appellant argues that application of the rule prevented him from showing the jury that, "in the face of skilled interrogation, he denied the charges levied against him." Generally, a defendant's self-serving declarations made out of court are inadmissible unless they meet certain limited exceptions. See Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974). These exceptions include (1) when part of the statement was previously offered by the State; (2) when the statement is necessary to explain or contradict acts or declarations first offered by the State; or (3) when the accused's self-serving declaration was part of the res gestae of the offense or arrest. Id. The only exception argued by appellant is that part of the statement was previously offered by the State. As discussed above, the fact that the State discussed statements made in the interview did not permit the admission of the entire videotape, but only those portions relating to the statements introduced by the State.
Appellant argues the hearsay rule itself infringes upon his constitutional right to present a defense in this case. It is well recognized that there is no constitutional right to present favorable evidence. See Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim. App. 2002). A defendant's right to present relevant evidence is subject to reasonable restrictions so long as the rules are not arbitrary or disproportionate to the purposes they are designed to serve. United States v. Scheffer, 523 U.S. 303, 316 (1998). The exclusion of evidence can be unconstitutionally arbitrary or disproportionate only where it infringes on a weighty interest of the accused. Id. The exclusion must significantly undermine fundamental elements of the accused's defense. Potier, 68 S.W.3d at 666. The fact that a defendant was unable to present his case to the extent and in the form desired does not rise to the level of constitutional error if he was not prevented from presenting the substance of his defense to the jury. Id.
Appellant argues that the prohibition on admitting the police interview under the hearsay rule infringes his weighty interest in showing the jury that he denied the charges against him during interrogation. Appellant further argues this infringement is disproportionate to the purpose the rule is designed to serve. Appellant did not testify at the trial of this case. The State contends that admission of his self-serving out-of-court statements would be the equivalent of allowing him to testify before the jury concerning his innocence without making him subject to cross-examination.
The hearsay rules are designed to promote the reliability of evidence and are a valid limitation on a defendant's evidence when correctly applied. Id. The ability to confront and cross-examine witnesses, and thereby ensure the reliability of evidence, is essential to achieving a fair trial. See Chambers v. Mississippi, 410 U.S. 284, 295 (1973); Pointer v. Texas, 380 U.S. 400, 405 (1965). This purpose is not outweighed by appellant's interest in this case because, among other things, appellant was not prevented from presenting the substance of his defense. Appellant elicited testimony from Jones about the interrogation techniques he used during the interview and the fact that appellant repeatedly denied the allegations made by A.L. Accordingly, to the extent appellant believed his denials in the face of interrogation were a fundamental element of his defense, this information was before the jury. That he was not able to present the evidence in the form he desired does not amount to constitutional error. See Potier, 68 S.W.3d at 666; See also Smith v. State, No. AP-75793, 2010 WL 3787576, at *23 (Tex. Crim. App. Sept. 29, 2010) (exclusion of videotape not constitutional error where same evidence admitted in different form). We resolve appellant's second issue against him.
C. Admission of Expert Testimony
In his third issue, appellant contends the trial court erred in allowing the State's expert, Dr. Matthew Cox, to testify that he did not believe A.L. was being coached in her statements. Appellant argues the testimony was not relevant and not within the witness's area of expertise.
Dr. Cox was the medical director of the program for the referral and evaluation of at-risk children (REACH) at Children's Medical Center. REACH does evaluations of possible physical and sexual abuse as well as neglect of children. During the course of his work with REACH, Dr. Cox performed an acute sexual assault examination of A.L. The examination included a complete physical exam as well as a discussion with A.L. and her mother about her history and background. During Dr. Cox's testimony, the following exchange occurred:
Q: Was there anything about the interaction between [A.L.] and her mother that led you to believe that maybe [A.L.] was being coached?Appellant contends this testimony was an improper comment on the victim's truthfulness and Dr. Cox was not qualified to offer his opinion on this matter.
DEFENSE COUNSEL: Objection. This is outside the scope of his medical examination?
THE COURT: I'll allow the last question.
A: I didn't have any concerns based on my interaction with [A.L.] and her mother. No.
To preserve error on the improper admission of evidence, the opponent must make a timely specific objection. TEX. R. APP. P. 33.1. The complaint on appeal must also comport with the objection made at trial or nothing is preserved for review. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Appellant's sole objection at trial was that the testimony was "outside the scope of [Dr. Cox's] medical examination." Nothing in that objection raises the issue of relevance. Accordingly that issue has not been preserved for review. Id. To the extent the objection arguably raises the issue of improper commentary, it is well established that expert testimony indicating a child did not exhibit signs of coaching or manipulation is admissible. See Schutz v. State, 957 S.W.2d 52, 73 (Tex. Crim. App. 1997); Cantu v. State, 366 S.W.3d 771, 777-78 (Tex. App.—Amarillo 2012, no pet.).
With respect to the testimony being outside the scope of the medical examination, the record shows that Dr. Cox's evaluation of A.L. necessarily included a discussion of her history. Dr. Cox stated that his training included a pediatric residency and a fellowship in child abuse evaluations including sexual abuse examinations. Part of his work with REACH involved talking with parents and care providers, as well as the children, when there was a concern that sexual abuse had occurred. In this way, Dr. Cox endeavored to establish a rapport with the patients to learn their background and evaluate their symptoms to determine if the child had been abused. In his examination of A.L., Dr. Cox spoke with both her and her mother. His notes indicated A.L.'s demeanor when she spoke to him about what had happened including that she was anxious, nervous, and tearful at times. This evidence indicates that Dr. Cox's medical assessment of A.L. included an evaluation of her demeanor to determine if abuse had occurred and that this evaluation was within the scope of his expertise. We conclude, therefore, the trial court did not abuse its discretion in overruling appellant's objection and allowing the testimony. We resolve appellant's third issue against him.
D. Admission of Pornography
In his fourth and final issue, appellant contends the trial court abused its discretion in admitting evidence during the punishment phase that the police found pornography in his bedroom closet. Appellant argues that admission of a "constitutionally protected activity," not otherwise relevant, is improper. Appellant's objection at trial was that the pornography was not relevant and, even if relevant, "the prejudice would substantially outweigh the relevance in the absence of his knowledge that it existed." Appellant made no reference in the objection to owning pornography as a "constitutionally protected activity." Accordingly, appellant did not preserve for review any argument about a constitutional right to possess pornography. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (failure to clearly articulate objection on constitutional grounds results in waiver).
Under rule 401 of the Texas Rules of Evidence, evidence is relevant if it has any tendency to make a fact more or less probable and the fact is of consequence in determining the action. TEX. R. EVID. 401. Relevant evidence is presumed to be to be more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The burden is on the appellant to demonstrate the damaging nature of the evidence outweighs its probative value. See Boone v. State, 60 S.W.3d 231, 239 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). Furthermore, the damaging nature must amount to unfair prejudice which suggests a decision by the trier of fact was made on an improper basis, commonly an emotional one. See Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007).
The State established appellant's knowledge of the pornography and its relevance to the case through several witnesses. A.L. testified that appellant began showing her pornography when she was four years old and that they would sometimes watch pornography together before he made her perform sexual acts. A.L. specifically stated that appellant had her watch videos involving older men with younger women. A.L.'s mother testified that her husband kept pornography and various sex toys in an orange bag in their closet. A.L.'s mother further testified that A.L. told her to tell the police officers creating the search warrant to "get the blue and white blanket, her fuzzy pillows, and the orange bag." The officer that executed the warrant testified that they found an orange bag in appellant's closet containing, among other things, multiple pornographic videos involving young women. The videos had titles such as "Naughty School Girls Teenage Fantasies." "Me and Daddy's Work Buddy," and "Virgin Stories." The videos found in the bag identified by A.L. were relevant to prove both A.L.'s allegation that appellant's sexual abuse included showing her pornography and that appellant had a sexual interest in young women.
Appellant concedes that evidence of the fact that he owned pornography is generally not damaging in nature. But he argues that admission of the actual videos was extremely prejudicial because the titles were offensive and inflammatory. Other than speculating that some of the jurors might have been offended, however, appellant makes no showing that any prejudice was sufficient to cause a decision on an improper basis. A.L. identified the orange bag containing the videos as being involved in appellant's abusive conduct. The trial court does not abuse its discretion in admitting prejudicial evidence that merely reflects what appellant has done. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). Based on the forgoing we conclude the trial court did not abuse its discretion in admitting the videos. We resolve this issue against appellant
CONCLUSION
We affirm the trial court's judgment. Do Not Publish
TEX. R. APP. P. 47.2(b)
141359F.U05
/David Evans/
DAVID EVANS
JUSTICE
JUDGMENT
On Appeal from the 219th Judicial District Court, Collin County, Texas
Trial Court Cause No. 219-81783-2013.
Opinion delivered by Justice Evans. Justices Francis and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 25th day of May, 2016.