Derek Thomas Baldit v. State ( 2017 )

Opinion issued May 2, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00119-CR
———————————
DEREK THOMAS BALDIT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Case No. 2006621
OPINION
A jury convicted appellant, Derek Thomas Baldit, of the Class A
misdemeanor offense of assault on a family member. 1 Pursuant to an agreement
1
See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2016).
between appellant and the State, the trial court assessed appellant’s punishment at
180 days’ confinement in the Harris County Jail. In two issues, appellant contends
that (1) the State failed to present sufficient evidence that he intentionally or
knowingly caused bodily injury to the complainant and (2) the trial court erred in
failing to make a competency finding concerning a child witness.
We affirm.
Background
In January 2015, Laurita Elvir, the complainant, and appellant had been dating
for approximately two years, and they were engaged. Elvir and her daughter, D.G.,
who was five years old at the time, lived with appellant in a house in Katy, Texas.
On January 27, 2015, Elvir and appellant began arguing while he was getting
dressed in an upstairs bedroom. Appellant walked downstairs and into the kitchen,
where he opened the refrigerator, and Elvir followed him, “still expressing how [she]
felt.” Elvir testified that she “said something that set [appellant] off,” and he
slammed the refrigerator door shut and gave her an angry look. Appellant rushed
towards her and pushed her “really hard” against the door to a coat closet and held
her there with his hand on her neck. Elvir’s back hit the door, and she stated that
she was scared because appellant had been violent with her before and she did not
know what he was going to do next.
2
Elvir told appellant that she was going to call the police, and she went into the
living room, where D.G. was sitting on the couch watching television, to retrieve her
cell phone. Elvir started to unlock her phone, but appellant followed her and tried
to grab the phone from her. Both appellant and Elvir were holding onto her phone,
and Elvir stated that she held on tightly because appellant was trying to take the
phone away from her. She testified, “I got pushed off to the ground on the floor and
I’m being dragged from the living room, you know, hitting different things
throughout the little hallway we have there into the kitchen and still holding onto
[the phone].” She continued to hold onto her phone because she was scared, she
wanted to call the police, and she did not have a landline.
Elvir testified that appellant tried to take her phone away while she was
holding onto it, and she was “being dragged on the floor just hitting different things,”
including closet doors, the island in the kitchen, the couch, the television stand, a
table in the living room, and the walls. Elvir had carpet burns on her face, elbow,
and back as a result of being dragged around the house. Elvir was yelling and
screaming while this was happening, and she repeatedly yelled at appellant to stop
and give her the phone. D.G. was also screaming and crying during this time.
Eventually, appellant took Elvir’s phone away from her. He started to leave
the house with her phone, so Elvir grabbed onto his leg. Appellant did not kick her
or throw her off, but he was able to get free, and he left the house. Appellant walked
3
outside to the garage, locked the door to the garage so Elvir could not follow him in
there, placed her phone in the garage, and then drove away. A neighbor overheard
Elvir crying in her driveway, asked if she was alright, and called 911. Elvir later
recovered her phone from the garage.
In addition to the carpet burns that she received, Elvir’s injuries also included
a broken toenail, which broke and bled when she bumped into various objects in the
house. Elvir had bruising around her eye and on her back, her elbow, her hands, and
her forearm. She stated that she had intense pain in her right forearm because she
was gripping her phone very tightly with her right hand. She was not sure if her arm
was broken, and she had difficulty writing immediately after this incident. Elvir
testified that she bumped into several different objects in the house, and she was not
sure which one caused each specific injury.
D.G., who was six years old and in kindergarten at the time of trial, also
testified. D.G. testified that she knows the difference between the truth and a lie,
and she was able to demonstrate this when the prosecutor asked her if he had a funny
shoe on his head. She stated that would be a lie “[b]ecause there is no shoe on [his]
head.” When asked what was on the prosecutor’s head, she replied, “your hair,” and
she agreed that that would be the truth. She also agreed that it is important to tell
the truth, and she promised “just to tell the truth while [she is] in the courtroom
today.”
4
D.G. testified that one year before, she lived “in Katy at the apartment” with
her mother “and somebody else.” She remembered a time when her mother “and
the other person” got into a fight. She testified that while she was on the couch
watching cartoons, Elvir and appellant started loudly “fighting and saying stuff”
upstairs. When they came downstairs, appellant pushed Elvir hard into the closet
door. Elvir said that she was going to call the police and ran for her phone, but
appellant also got to the phone and they started struggling. D.G. stated that Elvir
held tightly onto the phone and that Elvir also held onto appellant’s leg while he
“dragged her around the whole carpet on the floor.” She testified that appellant went
outside once he got ahold of Elvir’s phone and that he put the phone in the garage.
She stated that Elvir screamed and cried a lot, and she thought that appellant hurt
Elvir. She also stated that Elvir “had bruising all over her and her toe was kind of
cracked open.”
On cross-examination, D.G. agreed that Elvir talked to her about testifying
the week of trial and the week prior to trial. She also agreed with defense counsel’s
statement that Elvir “talked to [her] about what [she] was going to say.”
On redirect examination, the prosecutor asked D.G. if Elvir told her to tell the
truth, and D.G. responded “yes.” She also agreed that Elvir told her that it was okay
if she did not remember something, and she once again agreed that it is always
important to tell the truth.
5
Deputy P. Gonzales, with the Harris County Constable’s Office, responded to
the 911 call. Deputy Gonzales testified that when he arrived at the house, Elvir was
crying, her voice was trembling, “and she had signs of being recently in an abusive
situation.” Elvir had blood on the side of her face, she had difficulty moving her
arm, and one of her toenails had flipped backwards into an upright position. Deputy
Gonzales contacted appellant and asked him to return to the scene, which he did.
Appellant agreed that he got into an argument with Elvir, but he told Deputy
Gonzales that Elvir hit him, and when he tried to walk out of the house, Elvir grabbed
onto his leg, which was probably how she hurt herself. Deputy Gonzales did not see
any injuries on appellant. He considered Elvir’s account of events to be credible and
not appellant’s account.2
Appellant’s father, Roy Baldit, testified on his behalf. Roy testified that he
saw appellant after he was released from jail the day after the incident with Elvir.
He stated that appellant had what looked like scratch marks or fingernail marks on
his neck, his back, and his arms. Roy took pictures of these scratches, and the trial
court admitted them into evidence. Roy stated that appellant’s booking photograph,
which had also been admitted into evidence, showed marks on appellant’s neck
2
Deputy Gonzales testified that he did not recall Elvir telling him anything about her
phone, but he clarified that she mentioned the struggle over her phone in her written
statement taken later. He testified that another deputy had to write the statement for
Elvir because her arm was injured and she could not write.
6
consistent with the ones that he saw, and the marks in that photograph looked
“fresher” than the marks when he saw appellant.
The jury found appellant guilty of assault of a family member. Pursuant to an
agreement between appellant and the State, the trial court assessed appellant’s
punishment at 180 days’ confinement in the Harris County Jail. This appeal
followed.
Sufficiency of Evidence
In his first issue, appellant contends that the State failed to present sufficient
evidence that he intentionally or knowingly caused bodily injury to Elvir. He argues
that, at best, the evidence supports a finding that he recklessly caused bodily injury
to Elvir, but this finding was not authorized by the information or the jury charge.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v.
State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). The jurors are the exclusive
judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and
credibility of the evidence or substitute our judgment for that of the fact finder.
7
Will. v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost
complete deference to the jury’s credibility determinations. See Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(“When the record supports conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the prosecution and therefore defer to that
determination.”).
Circumstantial evidence is as probative as direct evidence in establishing
guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells
v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d
at 778). “Each fact need not point directly and independently to the guilt of the
appellant, as long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).
B. Assault of a Family Member
To establish that appellant committed the offense of assault on a family
member, as charged in the information, the State was required to prove that appellant
intentionally or knowingly caused bodily injury to Elvir, a person with whom he had
a dating relationship, by pushing her with his hand, grabbing her with his hand, or
8
dragging her with his hand. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp.
2016). Assault by causing bodily injury is a “result-oriented” offense. Darkins v.
State, 430 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
Thus, the State must prove that the defendant caused the result—i.e., causing bodily
injury to the complainant—with the requisite culpable mental state. Id. A person
acts intentionally, or with intent, with respect to a result of his conduct when it is his
conscious objective or desire to cause the result. TEX. PENAL CODE ANN. § 6.03(a)
(West 2011). A person acts knowingly, or with knowledge, with respect to a result
of his conduct when he is aware that his conduct is reasonably certain to cause the
result. Id. § 6.03(b). The Penal Code defines “bodily injury” as “physical pain,
illness, or any impairment of physical condition.” Id. § 1.07(8) (West Supp. 2016).
Direct evidence of the requisite culpable mental state is not required. See Hart
v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Tottenham v. State, 285 S.W.3d
19, 28 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“[P]roof of a culpable
mental state almost invariably depends on circumstantial evidence.”). A defendant’s
culpable mental state can be inferred from his acts, words, and conduct. Patrick v.
State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); see Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Intent may also be inferred from
circumstantial evidence such as acts, words, and the conduct of the appellant.”). The
requisite culpable mental state may also be inferred from the extent of injuries to the
9
complainant, the method used to produce the injuries, and the relative size and
strength of the parties. Herrera v. State, 367 S.W.3d 762, 771 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing Patrick, 906 S.W.2d at 487); see also Hart, 89
S.W.3d at 64 (stating that intent and knowledge may be inferred from “any facts
which tend to prove its existence, including the acts, words, and conduct of the
accused, and the method of committing the crime and from the nature of the wounds
inflicted on the victims”) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex.
Crim. App. 1999)); Montgomery v. State, 198 S.W.3d 67, 87–88 (Tex. App.—Fort
Worth 2006, pet. ref’d) (taking into account nature and extent of injuries in
determining that sufficient evidence existed that defendant knowingly caused
complainant’s injuries).
Elvir testified that she and appellant got into an argument upstairs that
continued downstairs in the kitchen. Appellant slammed the refrigerator door shut
and then pushed her “really hard” into the coat closet door and held her there with
his hand on her neck. Elvir announced that she intended to call the police, and she
went into the living room to pick up her cell phone. Appellant followed her, and as
she was unlocking her phone, he grabbed the phone and would not let go. Appellant
and Elvir struggled to obtain control over the phone, and during the course of this
struggle Elvir was pushed to the ground. Both appellant and Elvir continued to hold
onto the phone, and appellant started to leave the house, “yanking and pulling” the
10
phone, and dragging Elvir through the living room and into the kitchen.3 Elvir
bumped into numerous objects while appellant was dragging her, including walls,
cabinets, the couch, the television stand, the kitchen island, doors, and a table.
Elvir’s injuries included carpet burns and bruising in several areas on her body,
including near her eye, her back, her elbow, her hands, and her forearm, and she also
broke her toenail, which bled.
Elvir testified that both she and D.G., who was in the living room watching
television, were screaming and crying throughout this incident. Elvir stated that she
repeatedly told appellant to stop and give her the phone while she was crying and
screaming. She further testified that appellant was approximately four inches taller
than her, he was heavier than her, and she would not be able to physically restrain
him if he were trying to leave.
Even if, as appellant contends, his focus was not to injure Elvir but to take the
phone away from her and then leave the house, the record reflects that after Elvir
fell to the floor during the struggle over her phone, appellant dragged her through
multiple rooms of the house, while her body hit numerous objects in the house,
before he was able to take the phone away from her. See Guevara, 152 S.W.3d at
50 (stating that mental state can be inferred from defendant’s acts, words, and
3
D.G. testified that Elvir held onto appellant’s leg during the struggle, but she also
stated that appellant dragged Elvir “around the whole carpet on the floor.”
11
conduct); Patrick, 906 S.W.2d at 487 (same). Elvir screamed and cried and
repeatedly asked appellant to stop and give her the phone, and she had injuries on
multiple parts of her body. See Hart, 89 S.W.3d at 64 (stating that mental state can
be inferred from method of committing crime and nature of wounds inflicted on
complainant); Herrera, 367 S.W.3d at 771 (considering extent of injuries and
method used to produce injuries).
Viewing the evidence in the light most favorable to the verdict, as we must,
we conclude that a reasonable jury could have inferred from the evidence that
appellant was aware that his conduct was reasonably certain to result in bodily injury
to Elvir and, thus, that he acted with knowledge. See TEX. PENAL CODE ANN.
§ 6.03(b) (defining when actor acts “knowingly” or “with knowledge”). We hold
that the State presented sufficient evidence that appellant acted with the requisite
culpable mental state for the offense of assault on a family member by bodily injury.
We overrule appellant’s first issue.
Competency of Child Witness
In his second issue, appellant contends that the trial court erred by failing to
make a competency finding concerning D.G. He also argues that D.G.’s testimony,
on its face, demonstrated her lack of competency as a witness.
Generally, every person is presumed competent to testify. TEX. R. EVID.
601(a); Hogan v. State, 440 S.W.3d 211, 213 (Tex. App.—Houston [14th Dist.]
12
2013, pet. ref’d). However, a person, such as a child, is not competent to testify if,
upon examination by the trial court, the court finds that the person “lacks sufficient
intellect to testify concerning the matters in issue.” TEX. R. EVID. 601(a)(2); Torres
v. State, 424 S.W.3d 245, 254 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d);
Hogan, 440 S.W.3d at 213.
The trial court does not have a duty to conduct a sua sponte preliminary
competency examination of a child witness. Davis v. State, 268 S.W.3d 683, 699
(Tex. App.—Fort Worth 2008, pet. ref’d); see McGinn v. State, 961 S.W.2d 161,
165 (Tex. Crim. App. 1998) (“[U]nlike the incompetency to stand trial statute, Rule
601 does not expressly impose upon the trial court the duty to conduct an inquiry on
its own motion.”). Instead, the party seeking to exclude the witness from testifying
must raise the issue of competency and “shoulders the burden of establishing
incompetency.” Gilley v. State, 418 S.W.3d 114, 120 (Tex. Crim. App. 2014). The
competency of a child witness is a preliminary question for the trial court to
determine under Rule of Evidence 104(a), and the court is not bound by the rules of
evidence in making this determination. Id. at 121; see TEX. R. EVID. 104(a) (“The
court must decide any preliminary question about whether a witness is
qualified . . . .”).
When a party challenges the competency of a child witness, the trial court
must consider whether the child witness possesses (1) the ability to intelligently
13
observe 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, 424 S.W.3d
at 254; Hogan, 440 S.W.3d at 213–14. “The third element involves the ability to
understand the moral responsibility to tell the truth, to understand the questions
posed, and to frame intelligent answers.” Torres, 424 S.W.3d at 254. The child
witness need not understand the “obligation of the oath,” but the trial court “must
impress the child with the duty to be truthful.” Id.; see also Gilley, 418 S.W.3d at
121 (“[A] trial court may also inquire whether the child-witness possesses the
capacity to appreciate the obligations of the oath—or can at least distinguish the
truth from a lie.”). There is no precise age under which a child is deemed
incompetent to testify. Torres, 424 S.W.3d at 255; Escamilla v. State, 334 S.W.3d
263, 265–67 (Tex. App.—San Antonio 2010, pet. ref’d) (upholding trial court’s
determination that child who was three years, nine months at time of trial was
competent to testify).
Once the issue of competency is raised, the trial court must make “an
independent ruling on competency.” Gilley, 418 S.W.3d at 121. We review a trial
court’s determination of whether a child witness is competent to testify for an abuse
of discretion. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995);
Torres, 424 S.W.3d at 254. We consider the child witness’s responses to
14
qualification questions as well as the child’s entire testimony in reviewing the trial
court’s ruling. Davis, 268 S.W.3d at 699.
Appellant contends that the trial court erred by failing to make a competency
finding concerning D.G. Both appellant and the State represent in their respective
appellate briefs that appellant’s trial counsel did not object to D.G.’s competency
and that the trial court did not hold a competency hearing and make competency
finding on the record.
The trial court does not have a sua sponte duty to conduct a preliminary
competency examination on its own motion. McGinn, 961 S.W.2d at 165; Davis,
268 S.W.3d at 699; Fox v. State, 175 S.W.3d 475, 480 (Tex. App.—Texarkana 2005,
pet. ref’d). Moreover, failure to object to a child witness’s competency in the trial
court, as well as failure to object to the lack of a competency hearing by the trial
court, waives the issue for appellate review. See De Los Santos v. State, 219 S.W.3d
71, 80 (Tex. App.—San Antonio 2006, no pet.) (holding that defendant’s failure to
object to child witness’s competency at trial precluded him from raising issue for
first time on appeal); Fox, 175 S.W.3d at 481 (holding that defendant failed to
preserve error relating to trial court’s failure to hold sua sponte hearing to determine
child witness’s competency); see also Matson v. State, 819 S.W.2d 839, 852 (Tex.
Crim. App. 1991) (“It is a familiar rule of law that the failure to object to a witness’s
15
competency to testify operates as a waiver of the witness’s qualifications and may
not be raised for the first time on appeal.”).
However, in a letter subsequently filed with this Court, the appellate
prosecutor stated that, after she filed the State’s brief, appellant’s trial counsel
contacted her and informed her that counsel had objected to D.G.’s competency, the
trial court had held a hearing, and counsel believed that the hearing had been
recorded. The trial prosecutor informed the appellate prosecutor that that was his
understanding as well. The appellate prosecutor then stated that she had viewed all
available portions of the appellate record, but had not discovered a record of a
competency hearing. This Court has also reviewed the appellate record and has not
found a record of a competency hearing. Given the uncertainty over whether
appellant objected to D.G.’s competency and whether the trial court held a
competency hearing, in the interests of justice, we will review the available record
of D.G.’s testimony to determine whether the record indicates that she was
competent to testify. See also Griffin v. State, 514 S.W.2d 278, 281 (Tex. Crim.
App. 1974) (“Usually, the competence of a witness is waived when she is permitted
to testify without objection. Unless a child’s testimony shows on its face that he or
she was incompetent to testify[,] complaint as to her testimony raised for the first
time on motion for new trial or on appeal comes too late.”) (emphasis added)
(quoting Carr v. State, 475 S.W.2d 755, 757 (Tex. Crim. App. 1972)).
16
After being sworn, D.G. stated her name, her age, her grade, and her
elementary school. She also testified that her school was not located “here in town,”
that a year before the trial she lived “[i]n Katy at the apartment” with her mother
“and somebody else,” and that she remembered a time when her mother and this
other person got into a fight. The prosecutor and D.G. then had the following
exchange:
[The State]: Remember we talked about the difference between
the truth and a lie?
[D.G.]: Yes.
[The State]: You told me—is it important to tell the truth?
[D.G.]: Yes.
[The State]: Do you know the difference between the truth and a
lie?
[D.G.]: Yes.
[The State]: Okay. So if I said that I had a funny shoe on my
head right now would that be the truth?
[D.G.]: No.
[The State]: That would be a lie, right?
[D.G.]: Yes.
[The State]: And why is it a lie?
[D.G.]: Because there is no shoe on your head.
[The State]: Right. What is on my head?
[D.G.]: Your hair.
[The State]: That would be the truth, right?
[D.G.]: I understand.
17
[The State]: Do you promise to just tell the truth while you’re in
the courtroom today?
[D.G.]: Yes.
The prosecutor then asked questions about the incident between appellant and
Elvir, and D.G. was able to respond. She recalled that she was sitting on the living
room couch watching cartoons, that the argument between appellant and Elvir was
loud, that the argument started upstairs and moved downstairs, that appellant first
pushed Elvir into a closet door, that Elvir responded by telling appellant that she was
going to call the police, that Elvir reached her phone and started to dial but appellant
grabbed the phone and they started struggling, that appellant dragged Elvir “around
the whole carpet on the floor,” and that appellant went outside “because he got the
phone.” D.G. testified that Elvir was screaming and crying.
On cross-examination, D.G. agreed with defense counsel that she spoke with
her mother the week before trial and the week of trial and that her mother “talked to
[her] about what [she] was going to say.” D.G. also gave details about Elvir’s
injuries, stating, “They checked her arm because Mommy thought it was broken, but
then they took her to the hospital. And then she had bruising all over her and her toe
was kind of cracked open.”
On redirect examination, the prosecutor asked D.G. if Elvir told her to tell the
truth, if Elvir said “it’s okay if you don’t remember,” and if she remembered “it’s
18
always important to tell the truth.” D.G. responded in the affirmative to all three
questions.
D.G. was able to clearly articulate what occurred between appellant and Elvir.
She was able to answer the questions asked of her by both the State and defense
counsel, and she was able to give a coherent narrative about the incident. The record
reflects few inconsistencies in her testimony and little hesitation in answering
questions. The record thus indicates that D.G. had the ability to intelligently observe
the events in question at the time of the occurrence, the capacity to recollect the
events, and the capacity to narrate the events. See Torres, 424 S.W.3d at 254.
Furthermore, D.G. was sworn, and the prosecutor questioned her about the
difference between the truth and a lie. She demonstrated that she understood the
difference between the truth and a lie, and she twice agreed with the prosecutor that
it was important to tell the truth. The record therefore reflects that D.G. understood
the need to be truthful in her testimony. See id.
On appeal, appellant argues that D.G. was not competent to testify in part
because she revealed that she had spoken with Elvir about her testimony before trial,
which reflected “potential improper influence.” Whether Elvir improperly
influenced the substance of D.G.’s testimony is a matter relating to D.G.’s credibility
as a witness, not her competency. Appellant elicited the possibility of Elvir’s
influence on cross-examination of D.G. and had the opportunity to probe further
19
concerning this influence. Moreover, D.G. later testified that Elvir had told her to
tell the truth and that she knew that it was important to tell the truth.
Appellant also argues that D.G.’s “extremely young age” demonstrates a
facial lack of competency. Courts have held, however, that there is no precise age
under which children are deemed incompetent to testify. Torres, 424 S.W.3d at 255;
Escamilla, 334 S.W.3d at 265. D.G. was five years old at the time of the incident
and six years old at the time of trial. It is not uncommon for appellate courts to
uphold trial courts’ findings that children around this age are competent to testify.
See Torres, 424 S.W.3d at 255 (holding that trial court did not abuse its discretion
in allowing seven-year-old to testify); Davis, 268 S.W.3d at 698–700 (allowing five-
year-old to testify); Berotte v. State, 992 S.W.2d 13, 17–18 (Tex. App.—Houston
[1st Dist.] 1997, pet. ref’d) (allowing four-year-old to testify); see also Escamilla,
334 S.W.3d at 265–67 (allowing child who was two years old at time of sexual abuse
and three years and nine months at time of trial to testify).
Finally, appellant argues that the “complete lack of questioning by the parties
or the court regarding D.G.’s understanding of the significance of the oath” rendered
her facially incompetent to testify. The record reflects that D.G. was sworn, and
appellant is correct that no one questioned her specifically about the oath that she
had taken and why it was important. She testified twice, however, that it was
“important” to tell the truth, and she promised to only tell the truth while she was in
20
the courtroom. “Although the child need not understand the ‘obligation of the oath,’
the trial court must impress the child with the duty to be truthful.” Torres, 424
S.W.3d at 254; Berotte, 992 S.W.2d at 18 (“A child does not need to understand the
obligation of the oath, but the child must understand the obligation to be truthful.”).
Although D.G. did not testify that she understood the important of the oath that she
had taken, she testified that she understood the difference between the truth and a
lie, that she understood the importance of telling the truth, and that she promised to
tell the truth while in the courtroom. See Gilley, 418 S.W.3d at 121 (“[A] trial court
may also inquire whether the child-witness possesses the capacity to appreciate the
obligations of the oath—or can at least distinguish the truth from a lie.”).
We conclude that D.G.’s testimony does not demonstrate on its face that she
was not competent to testify. See Griffin, 514 S.W.2d at 281. We therefore hold
that D.G. properly testified at appellant’s trial.
We overrule appellant’s second issue.
21
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
22