Thomas Lee Bailey v. State of Texas ( 2011 )

Opinion filed June 30, 2011
In The
Eleventh Court of Appeals
__________
No. 11-09-00223-CR
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THOMAS LEE BAILEY, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 18th District Court
Johnson County, Texas
Trial Court Cause No. F41927
MEMORANDUM OPINION
The jury convicted Thomas Lee Bailey of two counts of aggravated sexual assault of a
child (Counts One and Five), four counts of indecency with a child by contact (Counts Two,
Three, Six, and Seven), and two counts of indecency with a child by exposure (Counts Four and
Eight). The jury assessed punishment at confinement for life and a $10,000 fine on Counts One
and Five, confinement for twenty years and a $10,000 fine on Counts Two, Three, Six, and
Seven, and confinement for ten years and a $10,000 fine on Counts Four and Eight. The trial
court sentenced appellant accordingly and ordered (1) that the sentence for Count Five run
consecutively to the sentence for Count One, (2) that the sentence for Count Two run
consecutively to the sentence for Count Five, (3) that the sentence for Count Three run
consecutively to the sentence for Count Two, and (4) that the sentences for Counts Four, Six,
Seven, and Eight run concurrently with the sentence for Count Three. We affirm.
Issue on Appeal
Appellant does not challenge the sufficiency of the evidence to support his convictions.
In his sole point of error, he contends that the trial court erred by admitting a previously
undisclosed version of a video recording of an interview by a forensic interviewer of the
complainant, C.S. Appellant asserts that the trial court should not have admitted the video
because it was hearsay.
Proceedings in the Trial Court
The record shows that C.S.1 was born in October 1990. B.A. is C.S.’s mother. B.A.,
C.S., and C.S.’s two brothers lived in a house in Joshua, Texas. B.A. began a relationship with
appellant. In January 2004, appellant moved in with B.A. and her children. B.A. was a
registered nurse, and she worked at night. C.S. testified that, soon after appellant moved into the
house, he began coming into her room at night after she had gone to bed. She said that, initially,
appellant watched her while she was in bed. She described appellant’s conduct as progressively
getting worse. C.S. said that, about two or three weeks after appellant started coming into her
room, he touched her breasts and her genitals on multiple occasions. She also said that, later, on
a number of occasions, appellant penetrated her sexual organ with his fingers and masturbated by
her bedside. In detailed testimony, C.S. said that appellant repeatedly abused her over the course
of about a year. C.S. said that, at one point, she told B.A. about ―parts of‖ the abuse. C.S.
thought that B.A. did not believe her. B.A. confronted appellant, and appellant denied that he
had abused C.S. C.S. testified that the abuse continued after B.A. confronted appellant.
Appellant moved out of B.A.’s house in 2005. C.S. made an outcry of sexual abuse
against him in 2007. Appellant denied C.S.’s allegations. After her outcry, C.S. was examined
by Araceli Desmarais, a sexual assault nurse examiner at Cook Children’s Medical Center. On
May 25, 2007, Karen Tutt, the lead forensic interviewer with the Children’s Advocacy Center,
conducted a forensic interview of C.S. The interview was videotaped.
1
To protect the identity of the complainant, we use initials to refer to her and her mother.
2
Appellant’s counsel viewed a DVD copy of the videotape of the forensic interview before
trial. During cross-examination of C.S., appellant’s counsel inquired about specific statements
that C.S. made during the forensic interview. Appellant’s counsel contrasted those statements
with statements that C.S. made at the hospital or during her direct examination trial testimony.
Thus, appellant’s counsel sought to establish that C.S.’s statements in the forensic interview were
inconsistent with her trial testimony and statements that she made at the hospital. Appellant
acknowledges in his appellate brief that his counsel ―referred to the CAC video in an effort to
show inconsistencies in [C.S.’s] testimony.‖
Appellant’s counsel emphasized statements in the forensic interview that, when viewed in
isolation, are favorable to appellant’s contention that C.S. gave inconsistent statements about the
abuse. For example, appellant’s counsel asked C.S., ―Now, you said in your video interview that
all this stuff started as soon as he moved in[?]‖ C.S. answered, ―Yeah.‖ Appellant’s counsel
then asked, ―So that would be according to what you’re telling us in January of 2004; is that
right?‖ C.S. responded, ―Yes.‖ In contrast, appellant’s counsel also elicited testimony from C.S.
that she told people at the hospital that appellant started abusing her on about February 28, 2004,
the date her first menstrual period began. Appellant’s counsel also asked C.S. about her
statement in the forensic interview that B.A. learned about the abuse before appellant moved out
of the house. In contrast, C.S. told Nurse Desmarais that she told B.A. about the abuse after
appellant moved out of the house. Appellant’s counsel also asked C.S. about her statement in the
forensic interview that she told her brother, Jason, about the abuse. At trial, C.S. testified that
she did not know whether Jason knew about the abuse. Appellant’s counsel also asked C.S.
about her statement in the forensic interview that appellant tried to ―rip‖ off her shirt. At trial,
C.S. testified that appellant ―pulled‖ off her shirt. Appellant’s counsel also used other statements
from the forensic interview in an effort to show that C.S. had given inconsistent statements about
the abuse.
At the conclusion of C.S.’s testimony, the State sought to introduce the videotaped
forensic interview of C.S. in its entirety. A hearing was held outside the presence of the jury.
The prosecutor argued that, because appellant’s counsel had ―specifically introduced certain
portions‖ of the forensic interview during cross-examination of C.S., appellant’s counsel had
―opened the door‖ to admission of the videotape under the rule of optional completeness. See
TEX. R. EVID. 107. The prosecutor informed the trial court that she had received the original
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videotape of the forensic interview from the police department the Thursday before trial.
Appellant’s attorney objected to the admission of the videotape on the grounds that it was
hearsay and that the original videotape had not been disclosed to her. She said that the DVD
copy of the videotape that she had viewed before trial had ―horrific sound‖ and that she could not
hear ―half of the interview.‖ The prosecutor stated that the original videotape had better sound
quality than the copy but disputed the statements by appellant’s counsel about the quality of the
sound on the copy. The prosecutor asserted that appellant’s counsel had ―heard enough‖ from
listening to the DVD copy of the video to know what was said in the interview and to cross-
examine C.S. as to specific statements that she had made during the interview.
The trial court determined that the entire videotape of the forensic interview was
admissible under the rule of optional completeness. However, the trial court was concerned with
the lack of notice of the original videotape to appellant’s counsel. Therefore, the trial court
adjourned the trial for the remainder of the day to allow appellant’s counsel to view the
videotape. The trial court indicated that it would consider a request by appellant’s counsel for
additional time if she needed more time to prepare after viewing the videotape. The trial court
then stated the following:
So I’m anticipating, if the State offers it, we’ll show it, unless there’s a
really good reason why we shouldn’t show it tomorrow because of a time
limitation. If you need time, that would be the point to ask me.
The trial resumed the following morning. Appellant’s counsel stated that she would renew her
objection to the admission of the videotape when the State sought to introduce it into evidence.
The State called Tutt as a witness. During her testimony, the State offered the videotape
as State’s Exhibit 1. Appellant’s counsel renewed the ―prior objections that were made by the
Defense outside the presence of the jury regarding hearsay and notice.‖ The trial court overruled
the objections and admitted the videotape. The videotape was played for the jury. The sound
was muted during two parts of the videotape because those parts contain references to extraneous
offenses.
Analysis
We review a trial court’s decision to admit evidence under an abuse of discretion
standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Apolinar v. State, 155
S.W.3d 184, 186 (Tex. Crim. App. 2005). A trial court abuses its discretion only when its
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admissibility decision lies outside the zone of reasonable disagreement. Apolinar, 155 S.W.3d at
186.
Appellant objected to the admissibility of the videotape on the ground of lack of notice.
The record shows that the State provided appellant’s counsel with a DVD copy of the videotape
before trial, that appellant’s counsel viewed the copy, and that – based on that review –
appellant’s counsel cross-examined C.S. about several specific statements that she had made
during the forensic interview. The prosecutor disputed appellant’s counsel’s claim as to the
quality of the sound on the copy. Appellant’s counsel did not include the DVD copy of the
videotape in the trial record; therefore, we cannot compare it with the original videotape. The
trial court adjourned the trial to allow appellant’s counsel the opportunity to review the original
videotape and indicated that it would consider granting a request for additional time if
appellant’s counsel needed it. When trial resumed the next morning, appellant did not request
additional time or make any statements comparing the DVD copy of the videotape with the
original of the videotape. Based on these facts, we cannot conclude that the trial court abused its
discretion in overruling appellant’s objection based on a lack of notice.
Appellant also objected to admissibility of the videotape on the ground that it was
hearsay. The trial court concluded that the videotape was admissible under the rule of optional
completeness. The rule of optional completeness, which is set forth in Rule 107 of the Rules of
Evidence, is a recognized exception to the hearsay rule. Walters v. State, 247 S.W.3d 204, 217
(Tex. Crim. App. 2007); Mick v. State, 256 S.W.3d 828, 831 (Tex. App.—Texarkana 2008, no
pet.). Rule 107 provides:
When part of an act, declaration, conversation, writing or recorded
statement is given in evidence by one party, the whole on the same subject may be
inquired into by the other, and any other act, declaration, writing or recorded
statement which is necessary to make it fully understood or to explain the same
may also be given in evidence, as when a letter is read, all letters on the same
subject between the same parties may be given.
The rule of optional completeness is one of admissibility and permits the introduction of
otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a
matter ―opened up‖ by the adverse party. Walters, 247 S.W.3d at 217-18; Credille v. State, 925
S.W.2d 112, 116 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). The purpose of the rule is
to reduce the possibility of the jury receiving a false impression from hearing only a part of some
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act, conversation, or writing. Walters, 247 S.W.3d at 218; Tovar v. State, 221 S.W.3d 185, 190
(Tex. App.—Houston [1st Dist.] 2006, no pet.).
Generally, when a portion of a videotaped interview is inquired into by the defense, the
State is entitled to introduce any other evidence that is necessary to make the conversation fully
understood. Mick, 256 S.W.3d at 831; Credille, 925 S.W.2d at 117. More precisely, Rule 107
allows the admission of a complainant’s videotaped statement when (1) the defense attorney asks
questions concerning some of the complainant’s statements on the videotape; (2) the defense
attorney’s questions leave the possibility of the jury receiving a false impression from hearing
only a part of the conversation, with statements taken out of context; and (3) the videotape is
necessary for the conversation to be fully understood. Mick, 256 S.W.3d at 831; Credille, 925
S.W.2d at 116-17.
During cross-examination of C.S., appellant’s counsel sought to establish that C.S. had
given numerous inconsistent and conflicting statements about the abuse and that, therefore, she
was not a credible witness. Appellant’s counsel asked C.S. questions about specific statements
that she made during the forensic interview. Viewed out of context, those statements appear to
be inconsistent with statements that C.S. made at the hospital or during her trial testimony.
We have reviewed the videotape of the forensic interview. Viewed in its entirety, the
videotape is consistent with C.S.’s trial testimony in material respects. However, the questions
by appellant’s counsel left open the possibility that, by hearing only part of the conversation, the
jury would receive the false impression that C.S. had given numerous inconsistent and
conflicting statements about the sexual abuse. For example, appellant’s counsel emphasized
that, while C.S. said in the forensic interview that ―all this stuff started‖ as soon as appellant
moved into the house in January 2004, C.S. told the people at the hospital that the abuse started
around February 28, 2004. In other parts of the forensic interview, C.S. explained that, during
the first weekend in January 2004, appellant started coming into her room and staring at her.
Similar to her trial testimony, C.S. then said in the forensic interview that appellant’s conduct
progressively became worse – from staring at her to touching her to penetrating her sexual organ
with his finger while masturbating at her bedside. Thus, when viewed in proper context, a
statement that ―all this stuff started‖ in January 2004 is not inconsistent with C.S.’s statement at
the hospital that the abuse started around February 28, 2004. As another example, appellant
emphasized C.S.’s statement in the forensic interview that appellant tried to ―rip‖ off her shirt.
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Soon after this statement, C.S. explained in the forensic interview that appellant would ―take‖ off
her shirt. When viewed in the proper context, C.S.’s statements in the forensic interview are not
inconsistent with C.S.’s trial testimony that appellant ―pulled‖ off her shirt. Because appellant’s
counsel’s cross-examination of C.S. about her specific statements in the forensic interview
created the possibility for confusion and false impressions had the jury not been permitted to see
and hear the conversation in context, the trial court did not abuse its discretion by admitting the
videotape. Appellant’s sole point of error is overruled.
This Court’s Ruling
The judgments of the trial court are affirmed.2
TERRY McCALL
JUSTICE
June 30, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel3 consists of: Wright, C.J.,
McCall, J., and Hill, J.4
2
The trial court entered a judgment that includes Counts One and Five; a judgment that includes Counts Two, Three,
Six, and Seven; and a judgment that includes Counts Four and Eight.
3
Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.
4
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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