Chambers v. State

DUNN, Justice,

dissenting.

I respectfully dissent. Initially, it is important to remember that we are dealing with a “recantation” of a videotape of a child faced with vulnerabilities attendant to children that would not be the same if it were an adult recantation. Also, this is a case of extenuating circumstances and facts that surround this child’s “recantation” that should be left to the jury. As pointed out by the Villalon court cited by the majority “each case must be decided and generally restricted to its own particular facts.” 739 S.W.2d at 454.

As to the sufficiency of the evidence, I disagree with the majority that the complainant “testified unequivocally” that the appellant had not done the acts alleged. Further, I disagree that the only eyewitnesses to the offense were appellant and the complainant.

The following testimony is pertinent in support of this dissent:

1) On cross-examination by the State, the complainant stated, “I don’t know” in answer to the State’s question of why she had said that it did not happen. When asked “didn’t you tell me you were afraid something was going to happen to your mother?” she answered “I don’t know.” The district attorney then asked, “You are not saying you didn’t tell me though, are you?” and the complainant answered “No.” She also stated that her mother had taken her to visit the appellant while he was in jail. She agreed with the district attorney that she and the appellant had talked about the case and that the appellant had asked her to say that “it did not happen.” She testified that she had written a letter to her aunt after the incident saying in effect that if he did anything more to her she would hit him.

2) She agreed, on cross-examination by the State, that she told the district attorney on Thursday before the trial that the appellant had done all the things to her that she said he had done in her original statement and that she was scared. Further, Officer Taylor, Rita Herbert, the complainant’s grandmother, and the doctor all testified that the child had told them that the appellant had been molesting her.

3) Additional testimony that supports the sufficiency of the evidence came from complainant’s mother while testifying for the defense when she stated that the child had described to her some of the “things” that the appellant had done to her, and that the things the child described to her were the same things that appellant had done to her in their sexual relationship. (Note: the appellant himself confirmed that the child could not have known about these things *912 because the child had never seen him and his wife when they engaged in sex.)

4) The appellant took the stand in his defense and at no time denied doing the act charged. He stated that: he had a good relationship with the complainant; he never disciplined her; and there was no reason for her not to like him. He agreed that: he talked with her twice while he was in jail; his wife worked at night; he was unemployed; and he was with the complainant during these times; and the child had never seen him and his wife when they engaged in sex.

5) The State’s witness, Derrick, age 10, Lisa Herbert’s son, testified that when he visited the appellant’s household on a Saturday, appellant sent him and Charles, complainant’s brother, to the store. When they came back, he went into the house, and Charles stayed in the street with some of his friends. He began looking for the appellant and opened a door and saw appellant getting up and the complainant lying on the bed naked. He said that as the appellant got up, he was trying to put on his underwear.

The majority urges that this event testified to by Derrick was never shown to have occurred on the date alleged in the indictment, or within the period of limitations for this offense. I disagree. The applicable period of limitations for this offense is five years. Tex.Code Crim.P. art. 12.01(3)(C). 1 The evidence shows that the complainant’s mother stated that on June 16, 1986, the date of trial, her brother, Chester Herbert, was living with her and the appellant until about “two and a half to three years ago.” Chester, was single at the time, and was “laying around the house and wouldn’t get up and find a job.” So they asked him to leave. Chester’s wife, Lisa Herbert (Derrick’s mother), testified that she first met Chester two years before the June 16,1986 trial and had married him about seven months before the trial. The indictment alleged that the incident of indecency with a child occurred on or about March 9,1986, approximately two years and 10 months after Chester moved out of appellant’s home, and one year and nine months before March 9, 1986, when Chester first met and later married Lisa, Derrick’s mother. Derrick’s mother also testified that after the March incident, neither she nor her son went over to appellant’s home.

Considering this time frame, any visit by Derrick in the appellant's home would have to have occurred between June 1984 and March 9, 1986, which would place the incident described by Derrick within the period of limitations. This would be consistent with Derrick’s testimony that only appellant, the complainant, and Charles were in the home at the time of the incident.

I agree that a witness’ recantation of testimony is viewed with utmost suspicion. However, all of the recantations in this case occurred prior to trial and during trial. Also, the court, on admitting all inconsistent statements of the complainant into evidence stated that “the videotape was offered as to the truth of the matter asserted.” The question raised here by the complainant’s recantation goes to her credibility. The credibility of a witness is to be determined by the jury. Minx v. State, 615 S.W.2d 748, 749 (Tex.Crim.App.1981).

This is not a case where the only evidence in support of a fact is the recanted testimony. The mother’s, as well as Derrick’s testimony, corroborates and supports the fact of indecency with the complainant. Further, the trial testimony of the complainant supports the fact that the recantation is tainted with equivocations, and the evidence in the record contains explanations of how the recantation may have come about, i.e., exposure of the child to the appellant, Ms request that she recant, isolation of the child by her mother from her normal relations with her aunts, cousins and grandmother, and the fact that the district attorney had to secure a court order to force the mother to bring the complainant in for an interview before trial. These reasons and explanations of the recantation gave the jury full opportunity to judge the credibility of the witness and ascertain the veracity or falsity of testimo *913 ny on the videotape as compared to the recantation.

I would hold that the evidence was sufficient beyond a reasonable doubt and overrule appellant’s second point of error.

In addition, I feel that the majority’s classification of the videotape as “un-sworn ” testimony is without merit.

The concern by the majority that the testimony is unsworn is without merit for the reason that the person interviewing the complainant properly established that the child knew the difference between right and wrong. Further, there was no objection to the admissibility of the tape because the complainant was incompetent and not sworn. Our courts have held that failure to administer an oath to a child does not take away the trustworthiness of that child’s testimony, and such testimony is just as acceptable as “sworn testimony.” See Provost v. State, 514 S.W.2d 269 (Tex.Crim.App.1974). Further, failure to object to unsworn testimony waives error, if any. Brown v. State, 171 Tex.Crim. 692 , 353 S.W.2d 425 (1961) (op. on reh’g); Spriggs v. State, 163 Tex.Crim. 167 , 289 S.W.2d 272 (1956) (op. on reh’g).

Finally, appellant’s contention in his first point of error that:

The trial court erred in ruling that the complaining witness was the appellant’s witness and refusing the appellant an opportunity to confront and cross-examine his accuser at the trial of the case.

Article 38.071, § 2(b) in effect at the time this case came to trial provided:

If the electronic recording of the oral statement of a child is admitted into evidence under this section, either party may call the child to testify, and the opposing party may cross-examine the child.

The videotape of the complainant was offered into evidence by the State. The appellant elected to call the complainant as his witness. He made no attempt to advise the court that the complainant was being called as an adverse witness or for any other purpose, such as impeachment.

This is not a case where cross-examination was denied; it was never requested. Appellant did not object, as in Long v. State, 742 S.W.2d 302, 304 (Tex.Crim.App.1987), to denial of confrontation. Nor did he object, as in Lawson v. State, 697 S.W.2d 803 (Tex.App.—Houston [1st Dist.] 1985), vacated, 752 S.W.2d 565 (Tex.Crim.App.1988), that he was being denied a contemporaneous cross-examination. Rather, appellant complains that the examination of the complainant was limited because leading questions were not permitted.

I would hold that this complaint is without merit for two reasons. First, appellant made no bill of exceptions to show what further beneficial evidence he would have elicited if the leading questions had been allowed. Thus, nothing is presented for review. Stewart v. State, 686 S.W.2d 118, 122 (Tex.Crim.App.1984), cert. denied, 474 U.S. 866 , 106 S.Ct. 190 , 88 L.Ed.2d 159 (1985). Second, assuming appellant is entitled to ask leading questions under art. 38.071, sec. 2(b) without advising the court what he planned to do, an erroneous limitation on cross-examination of a witness does not fall within the limited category of constitutional errors that are deemed prejudicial in every case. United States v. Owens, — U.S.-, 108 S.Ct. 838 , 98 L.Ed.2d 951 (1988); Delaware v. Van Arsdall, 475 U.S. 673 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986). In Van Arsdall , the court held that the trial judge retains wide latitude insofar as confrontation is concerned, and can impose reasonable limits. The appellant is not entitled to any examination “to whatever extent the defense may wish.” The court held that a reviewing court may determine that the alleged error is harmless beyond a reasonable doubt.

Reviewing the complainant’s testimony from the standpoint of harm, I note that the complainant responded to appellant’s questioning by testifying that appellant did not commit the offense alleged and that she did not equivocate in her answers until cross-examination by the State. The appellant could have asked that he be allowed to cross-examine under the adverse witness rule when the complainant began to equivocate after the State’s cross-examination, *914 but he did not choose to do so. During direct examination, she explained her false accusations on the videotape and to her grandmother as being made out of anger at appellant and her mother. An investigator hired by appellant also testified that he interviewed the complainant, and she stated that the offense did not occur and signed a statement to that effect. In addition, all of her statements recanting the videotape were admitted into evidence. The complainant confirmed these facts and denied having been tricked or forced into making the statements to the investigator.

In light of the failure to make a bill of exceptions and the extremely favorable evidence that was brought out during defense questioning of the complainant, I would hold that there was no reversible error and overrule the first point of error.

I would affirm the conviction.

. Ch. 330, § 1,1985 Tex.Gen.Laws 1393, amended by ch. 716, sec. 1, 1987 Tex.Gen.Laws 2591.