Talkington, Kevin D. ( 2015 )

July 1, 2015
No. PD-0658-15
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
*******
KEVIN D. TALKINGTON
Appellant
vs.
THE STATE OF TEXAS,
Respondent
*******
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
On Petition For Discretionary Review from the
Second Court of Appeals in No. 02-14-00064-CR
Affirming Conviction in Cause No. 1269829
213 th District Court Number of Tarrant County, Texas
WESBALL
State Bar No. 01643100
4025 Woodland Park Blvd.,
Suite 100
Arlington, Texas 76013
Tel: 817-860-5000
Fax: 817-860-6645
ATTORNEY FOR APPELLANT
No. PD-0658-15
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
*******
KEVIN D. TALKINGTON
Appellant
vs.
THE STATE OF TEXAS,
Respondent
*******
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
On Petition For Discretionary Review from the
Second Court of Appeals in No. 02-14-00064-CR
Affirming Conviction in Cause No. 1269829
213th District Court Number of Tarrant County, Texas
COMES NOW KEVIN TALKINGTON, Appellant in the above-styled and
numbered cause, by and through his attorney, WES BALL, and files this his
Petition For Discretionary Review, pursuant to TEX. R. APP. 68. In support of his
prayer for review, Appellant would respectfully show the Court as follows:
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....... ......... .......... ................... .............................. ..... ... iii
STATEMENT REGARDING ORAL ARGUMENT .......................... ..................... 1
STATEMENT OF THE CASE ... ......... .......... .............................. .............................. l
REASONS FOR REVIEW ....... .......... .......... ........................................ ..................... 2
ARGUMENT ...... .. ..... ......................... .................... ......................... ...... .................... 3
PRAYER .............. ...... ............................. ................. .................... .... ...... .................... 5
CERTIFICATE OF SERVICE ............... ............................................... ...... ..... .........6
CERTIFICATE OF COMPLIANCE ................................................ .... ............ ........ .7
APPENDIX .............. .......... .......... ................ .................................... ......................... 8
II
TABLE OF AUTHORITIES
CASES
Broderick v. State, 35 S.W.3d 67 (Tex. App. - Texarkana 2000) .......................... ..4
Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) ...... ................ .... .............. .. .4
Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990) ...... .................................. .. .4
Reynolds v. State, 227 S.W.3d 355 (Tex. App.- Texarkana 2007, no pet.) ........ ....4
Talkington v. State, No. 02-14-00064-CR (Tex. App. - Fort Worth 2015) ............... 2
OTHER AUTHORITIES
Texas Rules of Appellate Procedure, Article 38.072 § 2 .................................. ........ 3
Texas Rules of Appellate Procedure, Rule 68 .................. ...................................... .... i
Texas Rules of Appellate Procedure, Rule 66.3 (a) ...................................................2
Texas Rules of Appellate Procedure, Rule 68.2 ( c) ................................................... 2
Texas Rules of Appellate Procedure, Rule 68 .2 (d) ........ .................................... ...... 2
Texas Rules of Appellate Procedure, Rule 9.4(i)(3) .......... ................................ ...... 7
iii
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument on his Petition.
STATEMENT OF THE CASE
Appellant entered a plea of not guilty (RR.III, 21) to an indictment (CR. I, 6,
7) alleging in counts one, two and three aggravated sexual assault of a child, and
counts four and five indecency with a child by contact. Following his plea of not
guilty, the case was tried before a jury (RR. II - IV). After hearing evidence, the
jury returned a verdict of guilty on all five counts of the indictment. (CR. I, 69-
73). Following its verdict on the issue of guilt, punishment was submitted to the
trial court. Appellant entered a plea of true to an enhancement allegation setting
forth a prior felony conviction. (RR. IV, 47). Evidence was presented on the issue
of punishment. After hearing evidence, the trial court assessed punishment at forty
(40) years confinement in the Institutional Division of the Texas Department of
Criminal Justice on counts one, two and three. The trial court assessed punishment
at fifteen (15) years confinement on counts four and five. The court ordered all
sentences to run concurrently. (RR. IV, 59-60).
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STATEMENT OF PROCEDURAL HISTORY
In an unpublished opinion delivered April 30, 2015, a panel of the Second
Court of Appeals affirmed the judgment and sentence Talkington v. State, No. 02-
14-00064-CR (Tex. App. -Fort Worth 2015) (Appendix A).
No motion for rehearing has been filed. Appellant's Petition For
Discretionary Review is filed pursuant to TEX. R. APP. PROC. 68.2 (c(
REASONS FOR REVIEW
The Court of Appeals has decided an important question of state law in a
way that conflicts with the applicable provisions of the applicable statutes, and the
decisions of other Courts of Appeals. Tex. R. App. Proc. 66.3 (a) & (d).
QUESTIONS FOR REVIEW
Is it error to permit hearsay outcry testimony from two outcry witnesses
concerning the same sexual offense event over objection?
Does the erroneous admission of multiple hearsay witnesses to an outcry
become harmless simply because the outcry declarant testified to the same facts
contained in the hearsay?
ARGUMENT
The victim testified concerning events of sexual abuse she says were
committed upon her by Petitioner. These events of sexual abuse included hand
touching breast, mouth touching breast, hand touching vagina, mouth touching
Petitioner's request for an extension of time to file his Petition was granted.
2
vagina, mouth touching penis and penis touching anus. The State sought to offer
hearsay "outcry" testimonl from two different adult witnesses pursuant to Article
38.072 § 2 Texas Code of Criminal Procedure. The first of these hearsay
witnesses, Ms. Abbott a CPS supervisor testified that the victim told her that
Petitioner put his mouth to her vagina and breast or touching her privacy spot with
his tongue and licked her chest. (RR. II, 121-122; RR. III, 153-154). The second
outcry witness Ms. Hallum a forensic interviewer for CPS testified that the victim
told her that Petitioner put his mouth to her vagina, his hand to her vagina, his
penis to her anus and mouth. (RR. III,38). Ms. Hallum had interviewed the victim
after she was interviewed by Ms. Abbott. Petitioner objected to the testimony of
Ms. Hallum, arguing that it should be limited to discussing the specific acts that
were not described to Ms. Abbott. Petitioner's objections were overruled. (RR. III,
15).
The statute provides that such statements can be admitted if they describe
the alleged offense, and were made to the first person, 18 years of age or older
other than the defendant. More than one outcry witness may testify where there
are multiple outcry witnesses to different events. The outcry statute contemplates
allowing the first person to whom the child described the offense in some
discernable manner to testify about the statements the child made. Garcia v. State,
2
Outcry evidence is considered substantive evidence, admissible for the truth of the matter
asserted. Rodriguez v. State, 819 S.W.2d 871,87 (Tex. Crim. App. 1991).
3
792 S.W.2d 88, 91 (Tex. Crim. App. 1990). The outcry statute is not person-
specific but event-specific. As stated in Broderick v. State, 35 S.W.3d 67, 73-74
(Tex. App.- Texarkana 2000). pdr. ref' d.:
Before more than one outcry witness may testify, however, the outcry
must be about different events, and not simply a repetition of the same
event as related by the victim to different individuals. From a careful
reading of the outcry witness statute, we conclude that there may be
two proper outcry witnesses if they each testify about different events,
but there may be only one outcry witness to the victim's statement
about a single event. The proper outcry witness to a single event is
the first adult person other than the defendant to whom the victim
made a statement describing the incident.
(See also Reynolds v. State, 227 S.W.3d 355, 369 (Tex. App.
Texarkana 2007, no pet.))
The Second Court of Appeals acknowledges that "hearsay is not admissible
except as provided by statute or by the rules of evidence. See Long v. State, 800
S.W.2d 545, 547 (Tex. Crim. App. 1990). (slip opinion at 3). The Court in its
opinion affirming the judgment of conviction decides that the inadmissible hearsay
admission was harmless. It so holds without really addressing whether the
admission was error, "Assuming without deciding that the trial court abused its
discretion by admitting Hallum's testimony" (slip opinion at 4). The Court decides
that the admission of the inadmissible hearsay "did not influence the jury verdict or
had but a slight effect." (slip opinion at 4). The Court also used as justification to
affirm the judgment of conviction that admission of evidence is harmless if other
evidence proves the same fact that the inadmissible evidence sought to prove is
4
admitted without objection at trial." (slip opinion at 5). Astonishingly, the Second
Court concludes that admission of hearsay in violation of the very statute that
permits admission is harmless error if the declarant to the hearsay also testified to
the asserted facts. This completely ignores the harm caused by the repeated
admission of hearsay statements by a declarant to support the State's case by
showing the consistency of the declarant. The fact that the victim's testimony
alone to the alleged facts is sufficient to support conviction is irrelevant to the issue
of admission of hearsay in violation of the statute.
The decision of the Second Court of Appeals is in conflict with the decisions
of another Court of Appeals and the statute that pertains to the issue. This Court
should grant review to resolve the conflict and to firmly establish that adherence
with the statute permitting admission of hearsay testimony must be observed.
PRAYER
For the reasons herein alleged, Appellant prays that this Court grant this
Petition, and upon review, reverse the Court of Appeals' decision and remand
Appellant's case for a new trial where only that hearsay permitted by statute will
be admitted, and for such other and further relief to which he may be entitled.
5
Respectfully submitted,
Is/ Wes Ball
WESBALL
State Bar No. 01643100
4025 Woodland Park Blvd., Suite 100
Arlington, Texas 76013
Email: WBnotices@ballhase.com
Tel: 817-860-5000
Fax: 817-860-6645
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
On this 301h day of June, 2015, I hereby certify that a true and correct copy
of the above and foregoing Appellant's Petition for Discretionary Review was
forwarded to the following:
Tarrant County District Attorney
Appellate Division
401 W. Belknap
Fort Worth, Texas 76196
State Prosecuting Attorney
PO Box 12405
Austin, Texas 78711
Kevin D. Talkington, Petitioner
/s/WESBALL
WESBALL
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CERTIFICATE OF COMPLIANCE
In compliance with Rule 9.4(i)(3) of the Texas Rules of Appellate
Procedure, I certify that the Appellant's Brief was prepared using Microsoft Word,
and according to that program's word count function, the document contains 811
words.
Is/ Wes Ball
WESBALL,
Attorney for Appellant
7
No. PD-0658-15
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
*******
KEVIN D. TALKINGTON
Appellant
vs.
THE STATE OF TEXAS,
Respondent
*******
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
APPENDIX
8
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00064-CR
KEVIN D. TALKINGTON APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1269829D
MEMORANDUM OPINION 1
I. Introduction
Appellant Kevin D. Talkington appeals his conviction for indecency with a
child and aggravated sexual assault of a child. In a single issue, Talkington
argues that the trial court abused its discretion by allowing two witnesses to
1
See Tex. R. App. P. 47.4.
testify as to what Jane,2 the complainant, told them about Talkington's alleged
inappropriate conduct toward her. We affirm.
II. Facts and Procedural Background
In January 2011 , Jane, Talkington's eleven-year-old stepdaughter, made
an outcry of sexual abuse to CPS investigator Jennifer Abbott. Jane told Abbott
that Talkington had "touched her privacy spot with his tongue, ... licked her
chest, ... put her on top of the washer and ... laid on top of her and kissed her
and that one time in the shower that he pulled the curtain back [and] told her to
bend over and shake her tushy." Following this interview, Abbott took Jane to
Alliance for Children, where Jane told forensic interviewer Joy Hallum that
Talkingtion had "put[] his mouth onto her vagina, touch[ed] her vagina with his
hands, put[] his penis to her anus, put[] his penis to her vagina, and then [had]
her put her mouth onto his penis."
At trial , Talkington objected to the "outcry" testimony of both Hallum and
Abbott. Specifically, Talkington argued that Abbott's testimony was unreliable
and Hallum 's testimony should be limited to discussing the specific acts that
Abbott did not describe. The trial court held an outcry hearing and , after listening
to the testimony, overruled the objection .
In addition to hearing Hallum's and Abbott's testimony, the jury also viewed
the video of Hallum 's forensic interview with Jane and heard testimony from Jane
2
To protect the privacy of the child , we refer to the child by a pseudonym .
2
herself. Jane testified at length, describing several instances in which Talkington
had touched her inappropriately. Jane told the jury that Talkington placed his
hands and mouth on her breast and then moved his hands to her vagina. She
testified that another time Talkington had put his mouth on her vagina. Jane also
described another instance in which Talkington placed his mouth and hands on
her vagina and then engaged in anal sex with her. Lastly, Jane told the jury that
Talkington made her put her mouth on his penis. She testified that while the anal
sex only happened once, the touching with his hands and mouth happened often .
The jury found Talkington guilty of two counts of indecency with a child by
contact and three counts of aggravated sexual assault. The court sentenced
Talkington to forty years' confinement for aggravated sexual assault and fifteen
years' confinement for indecency.
Ill. Applicable Law
Hearsay is not admissible except as provided by statute or by the rules of
evidence. See Long v. State, 800 S.W.2d 545 , 547 (Tex. Crim. App. 1990).
Article 38.072 establishes a hearsay exception for statements made by a child "to
the first person, 18 years of age or older, other than the defendant, to whom the
[victim] ... made a statement about the offense. " Tex. Code Crim . Proc. Ann.
art. 38.072 § 2(a)(3) (West 2005 & Supp. 2014); see also Lopez v. State, 343
S.W .3d 137, 140 (Tex. Crim. App. 2011) . Admissible outcry witness testimony is
not person-specific but event-specific. /d. ; West v. State, 121 S.W.3d 95, 104
(Tex. App.-Fort Worth 2003, pet. ref'd). In cases where a child has been victim
3
to more than one instance of sexual assault, it is possible to have more than one
proper outcry witness. Solis v. State, No. 02-12-00529-CR, 2014 WL 1663405 at
*4 (Tex. App.-Fort Worth Apr. 24 , 2014, no pet.) (mem. op., not designated for
publication); see also Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.-
Texarkana 2000, pet. ref'd) .
IV. Argument and Analysis
Talkington asserts on appeal that the trial court abused its discretion "in
permitting and not limiting the testimony of outcry witness Joy Hallum to the
matters not already disclosed to Jennifer Abbott. " Specifically, the trial court
allowed both outcry witnesses to testify to essentially the same act of aggravated
sexual assault. Abbott testified that Jane told her that Talkington had touched
her vagina with his tongue, and Hallum testified that Jane told her that Talkington
put his mouth on her vagina. Jane also testified, without objection , to the same
facts that were contained in her outcry statements to both Abbott and Hallum.
Jane described two specific and distinct instances in which Talkington had
placed his mouth on her vagina.
Assuming , without deciding , that the trial court abused its discretion by
admitting Hallum's testimony, we must determine whether the error was harmful.
"The admission of inadmissible hearsay constitutes nonconstitutional error, and it
will be considered harmless if the appellate court, after examining the record as a
whole, is reasonably assured that the error did not influence the jury verdict or
had but a slight effect. " Broderick, 35 S.W.3d at 74 (citing Johnson v. State, 967
4
S.W .2d 410, 417 (Tex. Crim. App. 1998)). Likewise, admission of inadmissible
evidence is harmless error if other evidence that proves the same fact that the
inadmissible evidence sought to prove is admitted without objection at trial. /d.
Here, Jane's testimony as to the facts mirrored the contents of the outcry
statement testified to by Hallum. As Jane's testimony alone was sufficient to
convict Talkington, we are reasonably certain that if the testimony given by
Hallum concerning the oral sex performed on Jane by Talkington influenced the
jury verdict at all, it had but a slight effect. Tex. Crim . Proc. Code Ann.
art. 38.07(b)(1 ) (West 2005 & Supp. 2014) ; Bargas v. State, 252 S.W.3d 876,
888 (Tex. App.-Houston [14th Dist.] 2008, no pet. ) (holding that a child victim 's
testimony was sufficient to support appellant's conviction for aggravated sexual
assault despite her unsophisticated terminology and rough time-frame of events).
Therefore, assuming, without deciding , that the trial court erred in admitting part
of Hallum's testimony, we hold that the error was harmless and overrule
Talkington's sole issue.
V. Conclusion
Having overruled Talkington 's sole issue, we affirm the trial court's
judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: LIVINGSTON , C.J .; GABRIEL and SUDDERTH , JJ .
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DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 30, 2015
6