in the Interest of E.A.K., a Child ( 2006 )

Reversed and Remanded and Majority and Dissenting Opinions filed February 28, 2006

Reversed and Remanded and Majority and Dissenting Opinions filed February 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00397-CV

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IN THE INTEREST OF E.A.K.

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On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 02-58414

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D I S S E N T I N G   O P I N I O N

The trial court did not err in admitting into evidence a report by a caseworker at Child Protective Services (hereinafter ACPS@).^[1]  Presuming, for the sake of argument, that the trial court abused its discretion in admitting the other four items as to which the majority finds error, consideration of the remaining evidence, including this CPS report, renders any such error harmless.  Because there is legally and factually sufficient evidence to support the jury=s verdict, this court should affirm the trial court=s judgment.  Because it does not, I respectfully dissent.

Error Analysis

Two days before the jury trial in this case began, the trial court heard various motions. During this hearing, appellant Mustofa K. Khandokar=s counsel referred to written objections that Khandokar had filed to the business records that CPS planned to introduce into evidence at trial.  In these objections, Khandokar asserted, among other things, the following objections regarding the case report prepared by CPS caseworker Jennifer Deible (hereinafter the ADeible Report@):

[Khandokar] objects to the introduction of [the Deible Report] to the extent the document contains hearsay which is not admissible under the Texas Rules of Evidence.  [Khandokar] requests that said document be introduced only if properly redacted to exclude any hearsay statements.^[2]

Khandokar=s counsel told the trial court that Khandokar believed the business records in question could be admitted into evidence as long as the alleged hearsay was redacted.  In response, the trial court deferred ruling on the admissibility of the documents, stating:

I=m going to deny your objections at this time, but will consider each objection individually during the presentation of the alleged evidence that may be presented.  So I will consider each objection that you have as evidence [sic] as it=s permitted. I=m not going to admit the documents now as you have not proved anything up.^[3]

During the remainder of this pretrial hearing, Khandokar made no further objection or reference to the Deible Report.  Despite this fact, the majority strains to conclude that Khandokar voiced an objection to the Deible Report when the trial court heard CPS=s motion under section 104.006 of the Texas Family Code during the remainder of this hearing.  The record does not support this conclusion.

In a suit affecting the parent‑child relationship, a statement made by a child twelve years of age or younger that describes alleged abuse against the child is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement=s reliability and the court determines that the use of the statement in lieu of the child=s testimony is necessary to protect the welfare of the child.  See Tex. Fam. Code ' 104.006 (Vernon 2002).  CPS filed a motion pursuant to section 104.006 seeking court findings under this statute that would allow the admission into evidence of the following:

(1)       statements made by nine-year old J.J. to her mother, Stacey Khandokar, regarding sexual abuse by Mustofa Khandokar,

(2)       Stacey Khandokar=s sworn statement to the Arlington Police Department,

(3)       Karri LaChance=s sworn statement to the Arlington Police Department regarding J.J.=s statements to LaChance about sexual abuse,

(4)       statements made by J.J. during a videotaped interview with caseworker Amanda Dollar,

(5)       an Incident Report created by Detective Rogers of the Arlington Police Department,

(6)       any disclosures of sexual abuse made by J.J. to the medical staff at the ABC Center.

This section 104.006 motion does not seek the admission into evidence of the Deible Report, and it makes no mention of that report, directly or indirectly. Khandokar filed a written response in opposition to CPS=s motion that also makes no mention of the Deible Report.

At the hearing two days before trial, the trial court heard CPS=s section 104.006 motion.  During this hearing, Khandokar asserted the following arguments in opposition to CPS=s motion:

(1)       section 104.006 of the Texas Family Code is unconstitutional;

(2)       section 104.006 applies only to statements of alleged abuse made by a child who is the subject of the suit affecting the parent-child relationship; and

(3)       J.J.=s statements that Khandokar sexually abused her are not sufficiently reliable.

The trial court stated that it was not persuaded by Khandokar=s arguments opposing the motion but that CPS still had to put on evidence in support of its motion under section 104.006 of the Texas Family Code.  The trial court stated that it had not yet ruled on the motion because it had heard no evidence.  The trial court then heard testimony from Stacey Khandokar. Following this testimony, the trial court stated that it was Agoing to admit any outcry statement made by the child to the caseworker.@ The only caseworker mentioned at that hearing was Amanda Dollar, who took a videotaped statement from J.J.; therefore, the trial court=s statement shows that it intended to admit into evidence J.J.=s outcry statements to Dollar.^[4]  The trial court stated that if Karri LaChance (a neighbor) was present at trial, it would consider and probably allow her to testify about J.J.=s outcry statements to LaChance.  The trial court also indicated that anything J.J. said to her mother, Stacey Khandokar, regarding the alleged abuse would be admissible.  Although the trial court gave these indications as to what evidence it intended to admit and under what conditions it believed it would admit certain evidence, the trial court did not find that the time, content, and circumstances of any statement made by J.J. provided sufficient indicia of the statement=s reliability, and the trial court did not grant CPS=s motion under section 104.006.^[5] 

During this hearing, Khandokar voiced no objection to the admission of the Deible Report, nor did he assert that the statements in the Deible Report were not sufficiently reliable. If the trial court had made the required findings under section 104.006 as to certain statements, then the trial court would have admitted those statements, regardless of whether they otherwise would have been inadmissible hearsay.  See Tex. Fam. Code ' 104.006. Khandokar=s opposition to CPS=s motion does not indicate that the statements referenced in that motion were inadmissible hearsay; rather, this issue is not relevant to the inquiry under that statute.  See id. Therefore, Khandokar=s actions in opposition to the relief CPS sought under section 104.006 of the Texas Family Code did not preserve error as to Khandokar=s argument on appeal that the trial court abused its discretion in admitting the Deible Report on the ground that it contained inadmissible hearsay.

In its motion under section 104.006, CPS did not refer to the Deible Report or to the description by Deible of J.J.=s statements to Dollar contained therein.  Khandokar made no such references either in his written response or at the hearing on this motion.  The majority indicates that the failure of CPS and Khandokar to specifically refer to the Deible Report or to Deible=s description of J.J.=s statements to Dollar is of no consequence.  However, J.J.=s statements to Dollar could be contained in the videotape of the interview or in Dollar=s testimony as to these statements or in a transcript of this interview.  By referring to J.J.=s statements to Dollar in its motion, CPS did not specify that it was seeking section 104.006 findings as to Deible=s description of this interview on one-half of a page in the Deible Report. If CPS had sought section 104.006 findings as to this description, the trial court would have had a duty to examine the time, content, and circumstances of this description by Deible.  However, this type of examination does not entail the same inquiry as an examination of J.J.=s videotaped statements or a transcript thereof or Dollar=s testimony regarding the same. There is no reason to believe that the trial court meant to address the admissibility of a portion of one page of the Deible Report when it mentioned J.J.=s statements to Dollar.

On the first day of trial, a record custodian from CPS gave business-records testimony as to the documents in Petitioner=s Exhibit 1, which includes the Deible Report.  CPS offered this exhibit into evidence. The trial court heard Khandokar=s objections to this exhibit, and the trial court admitted Petitioner=s Exhibit 1 into evidence, except for certain psychological evaluations that are not relevant to this appeal.^[6]  The trial court admitted Petitioner=s Exhibit 1 into evidence over the following objections asserted by Khandokar at trial: (1) some of the business records kept by CPS are incomplete; (2) some of the documents lack a required signature; (3) the exhibit contains multiple copies of some documents; (4) some of the documentsCa home study, written statements of Karri LaChance and Khandokar=s ex-wife, and a child-abuse protocolCwere not prepared by CPS.  CPS prepared the Deible Report.^[7]  On its face, this report is complete and does not have any space where a person would sign. No party asserts that the Deible Report is incomplete, lacks a required signature, or was not prepared by CPS.^[8]  Khandokar voiced no objection at trial to the admission of the Deible Report. 

To the extent the trial court ruled on Khandokar=s many written objections at the pretrial conference, that ruling did not preserve error because it was too preliminary and conditional to constitute a final ruling on the admissibility of evidence. See Norfolk S. Ry. Co. v. Bailey, 92 S.W.3d 577, 583 (Tex. App.CAustin 2002, no pet.).  In any event, even if Khandokar had obtained a final adverse ruling on his written objections to the Deible Report, those objections were not sufficient to preserve error.  Khandokar objected to the Deible Report Ato the extent@ it contains inadmissible hearsay.  Khandokar has never asserted that the entire Deible Report is inadmissible; rather, in his written objection, he requested that any inadmissible hearsay be redacted prior to the admission of the report. Given that CPS prepared this report and proved it up as a business record, portions of the report are admissible. For example, Deible=s conclusion that there is reason to believe that Khandokar sexually abused J.J. is admissible evidence.  When a document contains both admissible and inadmissible evidence, the objecting party should point out and specifically object to the parts of the document that allegedly contain inadmissible evidence.  See Brown & Root, Inc. v. Haddad, 180 S.W.2d 339, 628B29 (Tex. 1944).  A trial court properly overrules a general objection to a document as a whole when the objecting party does not specifically point out the portions alleged to be inadmissible hearsay if any part of that document is admissible.  See id.  Because part of the Deible Report was admissible and because Khandokar did not point out which parts he alleged were inadmissible, the trial court did not abuse its discretion in admitting the Deible Report as part of Petitioner=s Exhibit 1.  See Speier v. Webster Coll., 616 S.W.2d 617, 619 (Tex. 1981); Brown & Root, Inc., 180 S.W.2d at 628B29; City of Houston v. Wisnoski, 460 S.W.2d 488, 490B91 (Tex. App.CHouston [14th Dist.] 1970, writ ref=d n.r.e.); Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 126 (Tex. App.CEastland 2001, pet. denied); see also Roberts v. Petco Animal Supplies, Inc., No. 14-00-01498-CV, 2002 WL 287742, at *4 n.3 (Tex. App.CHouston [14th Dist.] Feb. 28, 2002, no pet.) (not designated for publication).  Therefore, this court errs in sustaining Khandokar=s first and second issues, reversing the trial court=s judgment, and remanding for a new trial.^[9]

Harm Analysis

The majority correctly states that error in the admission of evidence is harmless if the same or similar evidence was properly admitted elsewhere. However, because the majority concludes that the trial court abused its discretion in admitting the Deible Report, it includes this report in the Aerroneously admitted evidence@ category in its harm analysis.  The Deible Report contains the following information:

!         On June 12, 2002 [the day E.A.K. was born], J.J., then nine years old, moved in with her mother and Khandokar.

!         According to J.J., three weeks later, Khandokar put his hand on her vagina and moved it while they were in the living room watching television. 

!         J.J. stated that she had seen Khandokar watching pornographic movies on a computer. 

!         J.J. also stated that Khandokar had put J.J.=s hand on his penis.

!         J.J. reported that Khandokar put his hand inside her underpants in the back and that he tried to put his private in her bottom.

!         J.J.=s mother reported that J.J. told her that Khandokar tried to get J.J. to put her hand on his penis and that Khandokar had touched J.J.=s vagina. 

!         J.J.=s mother stated that J.J. first complained of sexual abuse from Khandokar three weeks after J.J. moved in with them on June 12, 2002.

!         In a face-to-face interview, Khandokar denied J.J.=s allegations.  He stated that J.J. Afollowed him around the house trying to look at him@ and that J.J.=s mother had asked him to wear something over his boxer shorts around the house but that he refused.  Khandokar stated that J.J. walked around the house naked but that he did not care because she was a little girl.  Khandokar stated that J.J. could have touched his penis accidentally when he was taking E.A.K. from her. 

!         During his interview with the caseworker, Khandokar admitted he had masturbated while watching pornography but denied that J.J. had ever seen him watching pornography.  He said he had watched child pornography, although he denied being aroused by it.  He also said that he had seen pornography involving animals. 

!         There is reason to believe that Khandokar sexually abused J.J.

The Deible Report is the main piece of purportedly Aerroneously admitted evidence@ upon which the majority relies to conclude that the alleged error is harmful.  See Majority Op. at pp. 18B21.  However, because the trial court properly admitted this report, it is actually part of the evidence weighing against harm.  Unlike the evidence at issue in Richardson v. Greene, the evidence in the Deible Report is of at least similar, if not better, quality as the evidence contained in the written statements from Stacey Khandokar and Karri LaChance, the child-abuse protocol, and the arrest-warrant affidavit.  See 677 S.W.2d 497, 501 (Tex. 1984).  The evidence contained in the Deible Report is sufficiently similar to the evidence that the majority concludes was erroneously admitted and so would render any such error harmless.  See Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 403 (Tex. App.CHouston [14th Dist.] 2001, pet. granted, judgmt. vacated w.r.m.) (stating that error is harmless if the same evidence appears elsewhere in the record).  Even if the majority were correct that Khandokar preserved error as to the trial court=s admission of Deible=s description of J.J.=s statements to Dollar on one-half of a page of the Deible Report and even if the trial court abused its discretion in admitting this description, consideration of the other nine and a half pages of the Deible Report, as to which error was not preserved, would render any such error harmless.  Therefore, the court errs in sustaining the second issue as to the Deible Report.

                                                                Conclusion

The majority erroneously finds error under the second issue as to the trial court=s admission of the Deible Report. Presuming, for the sake of argument, that the trial court abused its discretion in admitting the written statements from the child=s mother (Stacey Khandokar) and the neighbor (Karri LaChance), the child-abuse protocol, and the arrest-warrant affidavit, this error would be rendered harmless by the trial court=s admission of other portions of Petitioner=s Exhibit 1, including the Deible Report.  Therefore, the majority also errs in sustaining the first issue. Khandokar=s remaining issues challenge the legal and factual sufficiency of the evidence.  The majority correctly concludes that legally sufficient evidence supports the jury=s verdict.  Factually sufficient evidence also supports the jury=s verdict.  Therefore, this court should overrule all of the remaining issues and affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Majority and Dissenting Opinions filed February 28, 2006.

Panel consists of Chief Justice Hedges and Justices Anderson and Frost. (Hedges, C.J., majority.)

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^[1]  Child Protective Services is a division of the Texas Department of Family and Protective Services, formerly known as the Texas Department of Protective and Regulatory Services.  Although the documents in this record refer to CPS, Texas Department of Protective and Regulatory Services, and the Texas Department of Family and Protective Services, for the sake of clarity, this opinion uses only the term ACPS.@

^[2]  In his written objections, Khandokar also objected to the Deible Report to the extent that it contains Aextraneous handwritten notations.@  Under the same analysis applied in this section, Khandokar did not preserve error as to this objection.  Khandokar also objected to the introduction of the Deible Report unless Deible was present to testify as to the authenticity of the documents.  On appeal, Khandokar has not asserted that the trial court abused its discretion in overruling these objections. Furthermore, the majority opinion does not address these objections.

^[3]  The majority asserts that, by these words, the trial court indicated it would consider Khandokar=s objection when the evidence was presented for admission.  See ante at pp. 15B16 n.21.  The majority states that CPS presented Deible=s description of J.J.=s statements to Dollar for admission immediately after this statement by the trial court when it presented its motion under section 104.006.  This assertion is not supported by the record.  The trial court indicated here that it would not admit any documents until after CPS put on business-records testimony, and no such testimony was presented during the hearing on the section 104.006 motion. As discussed below, in this motion CPS did not seek the admission of this description, and in any event, the trial court did not grant the motion.

^[4]  On appeal, Khandokar asserts that the trial court=s reference to a Acaseworker@ is a reference to Jennifer Deible.  This is not a reasonable interpretation.  No reference was made to Deible in CPS=s motion or in Khandokar=s response.  The motion and testimony at the hearing indicated that CPS caseworker Dollar took a videotaped statement from J.J. regarding her sexual-abuse allegations against Khandokar.  There is no indication in the record that J.J. ever made any outcry statements to Deible.

^[5]  The majority concludes that the trial court abused its discretion in finding reliability and in admitting the Deible Report under section 104.006 of the Texas Family Code.  Although this statute might provide one possible basis for admitting the Deible Report, CPS is not required to satisfy section 104.006 to have the Deible Report admitted into evidence.  A review of the trial court record shows that the trial court did not admit the Deible Report into evidence under section 104.006 of the Texas Family Code. Therefore, the trial court could not have erred in so ruling.

^[6]  The majority asserts that the trial court admitted part of Petitioner=s Exhibit 1 (the part of the Deible Report in which Deible describes J.J.=s statements to Dollar) into evidence two days before the trial began.  However, on the first day of trial, CPS offered into evidence this entire exhibit, including the part the majority claims the trial court already had admitted.  The trial court ruled on this offer and admitted almost all of this exhibit, including the part that describes J.J.=s statements to Dollar.  Neither the parties nor the trial court mentioned or implied in any way that any part of Petitioner=s Exhibit 1 already had been admitted into evidence.  At the hearing two days before trial, the trial court did not say that it was admitting this part of Petitioner=s Exhibit 1. The actions of the parties and the court confirm that the trial court did not do so.

^[7]  Khandokar indicates in his appellate brief that the trial court refused to allow him to cross-examine the records-custodian witness as to all the parts of Petitioner=s Exhibit 1. The record shows otherwise.  The trial court did not prevent Khandokar from cross-examining this witness or from voicing whatever objections he might have had to any part of Petitioner=s Exhibit 1. Although this exhibit is voluminous, it should be noted that at no time did Khandokar object that this exhibit was too lengthy, unmanageable, or cumbersome or that he did not have sufficient time to prepare or present any objections he had to the many parts of this exhibit.

^[8]  Furthermore, no party asserts that the trial court reversibly erred by admitting multiple copies of the Deible Report, and this contention would lack merit.

^[9]  The majority also errs in addressing an argument that is not presented in Khandokar=s appellate brief. The majority concludes that Khandokar attacks the admission of the Deible Report in an argument under his second issue.  In presenting this issue, Khandokar asserts the trial court abused its discretion in admitting hearsay statements by J.J. without requiring testimony of the individuals to whom the statements were made.  Although the majority does not address this argument, the record shows that Khandokar did not voice this complaint in the trial court before the trial court admitted Petitioner=s Exhibit 1 into evidence.  Therefore, Khandokar did not preserve error as to this argument.  See Tex. R. App. P. 33.1(a); Bosch v. Dallas Gen. Life Ins. Co., No. 14-04-00661-CV, 2005 WL 757254, at *6 (Tex. App.CHouston [14th Dist.] Apr. 5, 2005, no pet.) (mem op.).  Under his second issue, Khandokar also argues that the testimony at trial showed that J.J.=s statements were unreliable and should not have been admitted under section 104.006.  However, this argument fails because, in reviewing the trial court=s admission of Petitioner=s Exhibit 1, we cannot consider testimony given after the trial court admitted this exhibit.  See Methodist Hops. of Dallas v. Tall, 972 S.W.2d 894, 898 (Tex. App.CCorpus Christi 1998, no pet.) (stating that A[i]t is axiomatic that an appellate court reviews actions of a trial court based on the materials before the trial court at the time it acted@); Keck v. First City Nat=l Bank of Houston, 731 S.W.2d 699, 700 (Tex. App.CHouston [14th Dist.] 1987, no writ) (stating that appellate court=s determination of whether trial court erred in making a ruling is determined based on the trial court record that existed at the time of the trial court=s ruling). Although we must apply the briefing requirements reasonably and liberally, Khandokar still must put forth some specific argument, along with analysis showing that the record and the law support that argument.  See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  Even under a liberal interpretation, Khandokar=s brief does not contain specific argument and analysis in support of the proposition that the trial court reversibly erred in admitting into evidence inadmissible hearsay contained in the Deible Report.  See id.