Richard B. Reed v. State , 2016 Tex. App. LEXIS 7539 ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00225-CR
RICHARD B. REED APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1413225R
----------
OPINION
----------
A jury convicted Appellant Richard B. Reed of two counts of aggravated
sexual assault of a child under fourteen and one count of indecency with a child
by exposure,1 all charged in a single indictment. Upon his plea of true to the
habitual allegation, the trial court sentenced him to thirty-five years’ confinement
1
See Tex. Penal Code Ann. § 22.021(a)(2)(B) (West Supp. 2015), §
21.11(a)(2) (West 2011).
as a habitual offender.
Appellant brings four points on appeal, challenging the admissibility of the
testimony of three witnesses identified as outcry witnesses and the trial court’s
denial of his motion for mistrial in response to the jury’s hearing and seeing a
video recording of a police officer asking Appellant if he would submit to a
polygraph exam. Because the trial court committed no reversible error, we affirm
the trial court’s judgment.
Brief Facts
R.P., Appellant’s sister’s granddaughter, was the complainant in all three
cases. R.P. lived with her grandparents and referred to her grandmother, who
was her guardian, as her mother or her mom. R.P. testified at trial that when she
was nine years old and living with her grandparents, Appellant spent the night at
their house one night. R.P. woke up in the middle of the night because she felt
“like [she was] being touched . . . [i]n [her] butt.” R.P. testified that this happened
two or three times, including at the apartment where Appellant lived with his
mother, R.P.’s great-grandmother, whom R.P. called “Big Granny.” R.P. further
testified that more than once at Big Granny’s apartment, Appellant touched her
with his fingers “in [her] bad spot where [she] go[es] pee.” Finally, R.P. testified
that Appellant showed her his “bad spot” once.
Ashley Johnson, formerly a forensic interviewer for the Alliance for
Children in Tarrant County, testified at trial. Johnson had performed a forensic
interview of R.P. on May 8, 2013. Johnson stated that not all children react the
2
same way to sexual abuse and that some children have a difficult time talking
about what happened to them. Johnson then testified that R.P. had told her that
Appellant “touched [R.P.] on the inside of her bad spot, which is what she
referred to as her vagina,” “that that happened more than one time,” “that he put
his finger inside of her butt,” and “that he had also showed her his bad spot.”
Saginaw Police Officer Brandon Badovinac testified as the investigating
officer. Badovinac interviewed Appellant twice, and videos of the interviews were
produced at trial as State’s Exhibits 3 and 4. When the videos were offered,
Appellant’s attorney approached the bench and objected to showing the jury the
part of State’s Exhibit 3 during which Appellant was asked if he would take a
polygraph exam. Outside the presence of the jury, the parties played the
interviews for the trial court and agreed on when to stop the videos. When
State’s Exhibit 3 was played for the jury, however, it was not stopped before the
jury heard Badovinac ask Appellant, “Would you be willing to take a polygraph
exam?”
At that point, the prosecutor asked to approach the bench. When the trial
court asked defense counsel if he wanted the jury to be instructed to disregard,
he objected, “I don’t think it can be cured by an instruction.” The trial court
excused the jury, and defense counsel moved for a mistrial. One of the
prosecutors argued that the harm could be cured by an instruction, that the other
prosecutor had stopped the video at the agreed-upon time, and “that’s not the
time on the video now. I have no explanation how that happened.” The trial
3
court stated that the playing of the challenged portion was inadvertent.
After a pause in the proceedings, the trial court informed the parties of his
intention to deny the motion for mistrial and to instruct the jury to disregard.
Defense counsel objected to the trial court’s planned instruction to the jury and
argued that it would be impossible for the jury to disregard and that “[t]he jury
[wa]s left to consider either he took it or passed, or he refused to take it,
therefore, he must have done it. And I don’t know that there is any way that we
can receive a fair trial after this has happened.” The trial court again denied the
motion for mistrial. The trial court instructed the jury, “[W]ith regard to State’s
Exhibit No. 3, you heard testimony that the detective asked [Appellant] if he
would take a polygraph. You are instructed to disregard that question and to not
consider it for any purpose whatsoever. It will be disregarded.”
In State’s Exhibit 4, Appellant’s second interview with the police, Appellant
admitted that he spanked R.P. over her clothes once in Fort Worth and once in
Saginaw. He told the police that he felt something “wet” when he swatted her,
and he concluded that his fingertip must have or might have accidentally gone
into her anus on both occasions, but he insisted that such actions were not
intentional or sexual.
The State next called Veronica Swink, who interviewed R.P. on April 19,
2013, before Johnson conducted the forensic interview. The trial court held a
hearing outside the presence of the jury to conduct a voir dire examination before
Swink testified in front of the jury. Swink stated that in 2013, she worked for
4
Child Protective Services investigating referrals. She received a referral from a
school regarding possible physical neglect of R.P.
Swink investigated R.P.’s home and found no reason to believe that she
was being neglected, but as part of the routine questioning of R.P., Swink asked
R.P. if anyone had ever touched her inappropriately. R.P. responded that
Appellant “had touched her bad spot.” Swink questioned R.P. more about what
she meant and spoke to R.P.’s grandparents.
At the conclusion of the voir dire questioning, defense counsel objected
that Swink’s testimony was inadmissible hearsay and not admissible as outcry
testimony because, although Swink was actually the first person to whom R.P.
had reported her allegations, Johnson had already testified as the outcry witness,
and Swink did not add anything new to Johnson’s testimony. The State argued
that the testimony was relevant because in Appellant’s opening statement,
defense counsel had argued that R.P. had been coached to make an outcry of
sexual abuse. Specifically, defense counsel had stated in his opening statement
that R.P. had spoken with Johnson and Brenda Crawford from Cook Children’s
Medical Center’s CARE team, “[a]nd on every single opportunity that a
professional had to speak with [R.P.], we received more details to this crafted
story.” The State pointed out that after R.P. made an outcry to Swink, Swink had
not questioned her further.
The trial court replied that Johnson had provided more detailed information
than Swink and also recognized that it had “hear[d defense counsel] question the
5
motive for the statements being made by the witness.” The trial court therefore
overruled the objection and found “the testimony . . . reliable based upon the time
and content and circumstances.” Swink then testified before the jury, and the
State elicited essentially the same information that she had given in voir dire.
The next day of trial, the State called Crawford to testify. The trial court
allowed a voir dire examination outside the presence of the jury. Crawford stated
that she had conducted a sexual assault examination of R.P. and that during the
examination, R.P. had told her that her grandmother’s brother had touched R.P.
“in a bad spot right here,” and then R.P. had “pointed to her genitalia and her
butt.” Crawford stated that they talked about identifying body parts and that R.P.
used the term “bad spot” to mean genitalia. Crawford stated that R.P. told her
that Appellant had forced her to look at his “bad spot” and had ejaculated.
Crawford further stated that she had asked R.P. if Appellant had used any
lubricant, and R.P. had said that he had used baby oil.
The State argued that Crawford’s testimony was admissible because new
information was obtained from Crawford that the prior outcry witnesses had not
testified to and because R.P.’s statements to Crawford had been made for
medical diagnosis or treatment. Defense counsel argued that “this [wa]s just a
sham” and “a trick to let the jury hear hearsay.” The trial court ruled that
Crawford could testify about R.P.’s statements about the baby oil and ejaculation.
Crawford testified before the jury that she took a history from R.P. as part
of her diagnosis and treatment of R.P. Crawford also testified that R.P. called
6
genitalia a “bad spot,” that R.P. told her that her uncle touched her “in the bad
spot right here,” that R.P. then “pointed to her [own] genitalia and her butt,” and
that R.P. told her that Appellant forced her to look at his penis. Crawford further
told the jury that R.P. had told her that “white stuff” had come out of Appellant’s
penis and that he had used baby oil as a lubricant.
Outcry Witnesses
Appellant’s first three points on appeal question the propriety of admitting
the testimony of the three outcry witnesses, Swink, Johnson, and Crawford.
Standard of Review
We review the trial court’s decisions on the admissibility of evidence for an
abuse of discretion.2 The trial court abuses its discretion when its decisions lie
outside the zone of reasonable disagreement.3 If the trial court’s ruling on
admissibility is correct under any applicable legal theory, we will hold that the trial
court did not abuse its discretion even if it gave a wrong or incomplete reason for
the ruling.4
Analysis
The State argues that multiple outcry witnesses may be appropriate when
there are multiple assaultive events over a period of time, and some case law
2
Johnson v. State, No. PD-1496-14, 2016 WL 3017842, at *10 (Tex. Crim.
App. May 25, 2016).
3
Id.4
De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
7
supports this position.5 The statute specifically authorizing the admission of a
hearsay outcry statement during the guilt phase of a trial involving allegations of
child sex abuse, however, provides that it pertains only to statements describing
the alleged offense made by the child complainant “to the first person, 18 years
of age or older, other than the defendant, to whom the child . . . made a
statement about the offense.”6 Although the three witnesses’ testimony may
include outcry evidence, other grounds justify the admission of the testimony.
R.P. testified before any of the three outcry witnesses. Appellant’s cross-
examination of R.P. challenged the truthfulness of her testimony and elicited
repeated responses that R.P. did not remember the events of the offenses. He
effectively impeached R.P. using many of her statements made to Johnson in the
forensic interview. His voir dire and opening statement also introduced a theme
to which he would return with witnesses throughout the trial: that R.P. had been
coached to make an outcry of sexual abuse. The Texas Court of Criminal
Appeals has held that the State may offer before the jury prior consistent
statements of a child sexual assault complainant under rule of evidence
801(e)(1)(B) when the child is accused of recent fabrication or improper
5
Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet.
refused).
6
Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A), (2)–(3) (West Supp.
2015) (emphasis added).
8
influence.7 Under this rule, such statements are not hearsay.8 Thus, R.P.’s
statements to both Swink and Johnson could have been properly admitted as
prior consistent statements under rule 801(e)(1)(B).9
Regarding R.P.’s statements made to Crawford, Crawford testified that she
interviewed R.P. for the purpose of providing medical treatment. Rule of
evidence 803(4) provides that statements made for medical diagnosis or
treatment are admissible hearsay.10 Given the record, we cannot say that
Crawford had no medical purpose in interviewing R.P.11 Thus, Crawford’s
testimony about R.P.’s statements could have been properly admitted under
evidentiary rule 803(4).
Because the trial court’s admission of the testimony of Swink, Johnson,
and Crawford regarding R.P.’s statements to them can be justified under the
rules of evidence without reaching the propriety of the admission of the evidence
as outcry evidence, we hold that the trial court did not abuse its discretion by
7
Tex. R. Evid. 801(e)(1)(B); Klein v. State, 273 S.W.3d 297, 312–13 (Tex.
Crim. App. 2008).
8
Tex. R. Evid. 801(e)(1)(B).
9
See id.; Klein, 273 S.W.3d at 312–13.
10
Tex. R. Evid. 803(4).
11
See id.; see also Berman v. State, No. 02-12-00119-CR, 2014 WL
2145592, at *5 (Tex. App.—Fort Worth Aug. 20, 2014, pet. ref’d).
9
admitting the evidence.12 We overrule Appellant’s first three points.
Polygraph
In his fourth point, Appellant argues that the trial court reversibly erred by
denying his motion for mistrial after the jury saw and heard State’s Exhibit 3, a
video recording, that included Badovinac asking Appellant whether he would be
willing to submit to a polygraph exam. Despite a prior agreement between the
State and Appellant that the jury would not see or hear that portion of the video,
for some reason the State failed to stop the replay of State’s Exhibit 3. Appellant
argues that the State acted in bad faith, but the trial court found that the
polygraph-request segment was inadvertently played. The trial court sustained
Appellant’s objection to the introduction of the polygraph issue and instructed the
jury to disregard but denied Appellant’s motion for mistrial.
Standard of Review
When the trial court sustains an objection and instructs the jury to
disregard but denies a defendant’s motion for a mistrial, the issue is whether the
trial court abused its discretion in denying the mistrial.13 Only in extreme
circumstances, when the harm caused by the improper remark is incurable, that
is, “so prejudicial that expenditure of further time and expense would be wasteful
12
See De la Paz, 279 S.W.3d at 344.
13
Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).
10
and futile,” will a mistrial be required.14 In determining whether the trial court
abused its discretion by denying the mistrial, we balance three factors: (1) the
severity of the misconduct or prejudicial effect, (2) curative measures, and (3) the
certainty of the conviction absent the misconduct.15 In polygraph cases, we may
also consider whether the party through whom the evidence was elicited showed
bad faith in putting the evidence before the jury and whether the polygraph
evidence strengthened the State’s case.16
Analysis
Appellant argues that the disclosure that the police had asked him to
submit to a polygraph examination revealed that he either refused the test or
failed the test. He contends that “results of a polygraph test may be disclosed
not only by an affirmative statement of a witness, but merely by a question
revealing that a polygraph examination has been administered.”17 Because of
their inherent unreliability and tendency to be unduly persuasive, the results of a
14
Id. (citation and internal quotation marks omitted); see also Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905(2004).
15
Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
16
See Martines v. State, 371 S.W.3d 232, 251 (Tex. App.—Houston [1st
Dist.] June 23, 2011, no pet.).
17
See Nichols v. State, 378 S.W.2d 335, 337 (Tex. Crim. App. 1964)
(holding that asking whether witness had taken lie detector test was error that
could not be cured by instruction).
11
polygraph examination are not admissible in Texas for any purpose.18 But
generally, an instruction to disregard is sufficient to cure any prejudice when
polygraph evidence is merely mentioned and the results are not disclosed.19
The trial court found that the display of Badovinac asking Appellant to take
a polygraph was inadvertent and that the parties had agreed that the polygraph
dialogue would not be shown. After the trial court instructed the jury to disregard,
no one raised the polygraph issue during the remainder of the trial. There is also
no evidence that the polygraph question improperly bolstered the State’s case.20
Nor do we see any indication that the polygraph question impacted the jury or its
verdict. R.P. testified that Appellant committed the actions and identified him in
court. The jury also viewed her forensic interview and Appellant’s interviews with
the police and heard the testimony of Swink, Johnson, and Crawford. The jury
had the opportunity to assess the credibility of each witness and each piece of
evidence. We therefore hold that the trial court did not abuse its discretion by
denying Appellant’s motion for mistrial because the instruction to disregard cured
any harm flowing from the mention of the potential polygraph exam. We overrule
Appellant’s fourth point.
18
Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985), cert.
denied, 474 U.S. 1110 (1986); Stewart v. State, 705 S.W.2d 232, 234 (Tex.
App.—Texarkana 1986, pet. ref’d).
19
Martines, 371 S.W.3d at 252.
20
See id. at 251.
12
Conclusion
Having overruled Appellant’s four points, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
PUBLISH
DELIVERED: July 14, 2016
13