TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00520-CR
Roy Torres, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0975467, HONORABLE MICHAEL F. LYNCH, JUDGE PRESIDING
Appellant Roy Torres was convicted of the offenses of aggravated sexual assault of a child and of indecency with a child both by contact and by exposure. See Tex. Penal Code Ann. §§ 21.11, 22.021 (West 1994 & Supp. 1999). The court assessed appellant's punishment, enhanced by a prior felony conviction, for aggravated sexual assault of a child at imprisonment for life, for indecency with a child by contact at imprisonment for life, and for indecency with a child by exposure at imprisonment for twenty years.
On appeal, appellant asserts that his convictions for indecency with a child violate both the federal and state constitutional double-jeopardy provisions, that the evidence is insufficient to sustain his conviction for indecency with a child by exposure, and that inadmissible evidence was erroneously admitted. We will sustain appellant's points of error relating to his conviction for indecency with a child by exposure and reverse the judgment for that offense, but we will overrule his points of error relating to aggravated sexual assault of a child and indecency with a child by contact and affirm the trial court's judgments relating to those offenses.
In count one of the indictment, it was alleged that on February 1, 1997, appellant knowingly and intentionally penetrated the female sexual organ of a child younger than fourteen years of age with his sexual organ and that he caused the sexual organ of the child to contact his sexual organ. In count two of the indictment, it was alleged that on February 1, 1997, appellant knowingly and intentionally touched the genitals of a child younger than seventeen years of age not his spouse and caused the child to touch his genitals with the intent to arouse and gratify his sexual desire. In count three of the indictment, it was alleged that on February 1, 1997, appellant knowingly and intentionally exposed his genitals to the child knowing that a child younger than seventeen years of age, who was not his spouse, was present, with the intent to arouse and gratify his sexual desire.
Appellant was convicted of and punished for all three counts. Appellant contends that all counts were based on the same offense occurring on the same day. Therefore, he argues the convictions for counts two and three were for lesser included offenses to that charged in count one. Appellant further argues that his punishment for counts two and three would be punishment for the same offense as alleged in count one, and that the punishment for the indecency counts would violate the double-jeopardy provisions against multiple punishment of the federal and state constitutions. Appellant relies upon Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998), and In re C.P., 925 S.W.2d 151 (Tex. App.--Austin 1996, writ denied). In Ochoa, the Court of Criminal Appeals "conclude[d] the evidence indicates appellant only committed one offense against C.P. on June 16th." Ochoa, 982 S.W.2d at 907. In C.P., this Court stated: "The State concedes C.P.'s points of error contending the adjudication order was erroneous with respect to the two indecency-with-a-child offenses, which under the circumstances of the case, were lesser-included offenses of aggravated assault." C.P., 925 S.W.2d at 152.
The facts in this case are different from those in the cases relied upon by appellant. In those cases, there was but one offense; in this case, there were two separate offenses. The victim's video-taped interview admitted in evidence, the testimony of the victim's older sister, the victim's grandmother's outcry witness testimony, and the testimony of the physician who examined the victim all support appellant's conviction of count one. This evidence shows that appellant with his sexual organ penetrated the sexual organ of the victim while they were on a bed in the appellant's bedroom.
At another time, in another place, appellant placed his sexual organ in the mouth of the victim. Although the offense occurred on the same day as the offense alleged in count one, the victim testified that appellant put his private part in her mouth while they were "in the back" watching a movie on television. They were on a blanket on a couch. The victim immediately told her mother of this incident, and the appellant assaulted her mother. Appellant's mother was not a witness and did not testify about this offense. The victim made an outcry about this offense to her grandmother, and the grandmother testified the victim told her of this offense. This evidence supports appellant's conviction and punishment on count two. The record shows that count one and count two were based on separate offenses. Therefore, punishment for both offenses did not amount to double punishment for the same offense. See Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999); Hutchins v. State, 992 S.W.2d 629 (Tex. App.--Austin 1999, no pet.); David v. State, 828 S.W.2d 239 (Tex. App.--Dallas 1991, no pet). Appellant's first and second points of error are overruled.
The State on appeal concedes that the conviction and punishment for count three should be vacated. Therefore, we will order reversal of the judgment and vacate appellant's conviction and punishment under count three, even though we may have reservations concerning the State's concession. Appellant's third and fourth points of error are sustained.
In his fifth point of error, appellant insists that the evidence is insufficient to support his conviction for indecency with a child by exposure. The State has conceded and we have held that appellant's conviction is double jeopardy barred; he could not be again prosecuted for that offense. Therefore, it is unnecessary for us to determine whether the evidence is sufficient to support that conviction.
In his sixth point of error, appellant asserts that the trial court erred in admitting in evidence a video-taped interview of the victim because it was not shown that the requirements of section 5(a)(4), (6), (10), and (11) of article 38.071 of the Code of Criminal Procedure had been met. The Code of Criminal Procedure in pertinent part provides:
Sec. 5. (a) On the motion of the attorney representing the state or the attorney representing the defendant and on a finding by the trial court that the following requirements have been substantially satisfied, the recording of an oral statement of the child made before a complaint has been filed or an indictment returned charging any person with an offense to which this article applies is admissible into evidence if:
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( 4) the statement was not made in response to questioning calculated to lead the child to make a particular statement;
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( 6) the person conducting the interview of the child in the recording is expert in the handling, treatment, and investigation of child abuse cases, present at the proceeding, called by the state as part of the state's case in chief to testify at trial, and subject to cross-examination;
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(10) before giving his testimony, the child was placed under oath or was otherwise admonished in a manner appropriate to the child's age and maturity to testify truthfully;
(11) the court finds from the recording or through an in camera examination of the child that the child was competent to testify at the time that the recording was made;
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Tex. Code Crim. Proc. Ann. art. 38.071, § 5(a)(4), (6), (10), (11) (West Supp. 1999).
The trial court considered and ruled on appellant's trial objection as follows:
THE COURT: Excuse me, 4, 6, 10 and 11 on the grounds set out therein. And 10 and 11 sort of wrapped up that the child was not properly qualified and was in fact incompetent to testify on that tape. Does that summarize accurately your objections to the admissibility of this videotape?
[DEFENSE COUNSEL]: Yes, sir, Your Honor.
THE COURT: All right. The Court finds that the state has, based on the testimony today and yesterday, laid a proper predicate for the admissibility of the videotape, including the requirements of Article 38.07(1) Section 5(a), 1 through 12, and specifically Sections 4, 6, 10 and 11. The questions, the Court finds, are not unreasonable, leading or suggestive, given the circumstances involved and the age of the alleged victim, and did not lead the child to make any specific statements that would be in violation of that provision of the statute.
The person conducting the interview, the Court finds, was for purposes of this statute trained as an expert and called and available as a witness and is here to testify both on direct and cross-examination today.
While the alleged child victim was not placed under oath due to the very young age of the witness, the Court believes the procedure followed was substantially in compliance with requirements of A-10 of that statute. The order might have been a little different, but when it's all put together and viewed in its totality, the Court finds that the child was sufficiently admonished to meet the requirements of the statute.
After viewing the tape and hearing the child's live testimony yesterday and observing the demeanor of the child, both on the tape and in the courtroom, and the give and take of the questions and answers on the tape, the Court finds that the witness is competent to testify.
There was some question as to whether or not she -- well, it's not a question. She did answer some questions incorrectly on there concerning her shoes. Whether those questions were designed properly is an open question, but she preceded all that by saying that she understood that what she said had to be real.
When you put all that together, the way she expressed herself in the interview, the Court believes that under the totality of the circumstances, she's competent and was competent at that time to testify.
The Court has now made specific findings concerning all the objections made, and the court has at this time considered all the relevant factors covered by this statute in ruling that the video is admissible.
We have reviewed the record including the video-taped interview and find that the record supports the trial court's findings and the court's ruling admitting in evidence the video-taped interview. Appellant's sixth point of error is overruled.
In his seventh point of error, appellant argues that the trial court erroneously admitted evidence of an extraneous offense. In the part of the record to which appellant has directed our attention, we find no trial objection relating to this matter complained of on appeal. Therefore, this matter was not preserved for appellate review. See Tex. R. App. P. 33.1. Appellant's seventh point of error is overruled.
The judgment of conviction for indecency with a child by exposure is reversed, and that cause is dismissed. The judgments of conviction for the offense of aggravated sexual assault of a child and for indecency with a child by contact are affirmed.
Carl E. F. Dally, Justice
Before Justices B. A. Smith, Yeakel and Dally*
Affirmed in Part; Reversed and Dismissed in Part
Filed: November 30, 1999
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
proper predicate for the admissibility of the videotape, including the requirements of Article 38.07(1) Section 5(a), 1 through 12, and specifically Sections 4, 6, 10 and 11. The questions, the Court finds, are not unreasonable, leading or suggestive, given the circumstances involved and the age of the alleged victim, and did not lead the child to make any specific statements that would be in violation of that provision of the statute.
The person conducting the interview, the Court finds, was for purposes of this statute trained as an expert and called and available as a witness and is here to testify both on direct and cross-examination today.
While the alleged child victim was not placed under oath due to the very young age of the witness, the Court believes the procedure followed was substantially in compliance with requirements of A-10 of that statute. The order might have been a little different, but when it's all put together and viewed in its totality, the Court finds that the child was sufficiently admonished to meet the requirements of the statute.
After viewing the tape and hearing the child's live testimony yesterday and observing the demeanor of the child, both on the tape and in the courtroom, and the give and take of the questions and answers on the tape, the Court finds that the witness is competent to testify.
There was some question as to whether or not she -- well, it's not a question. She did answer some questions incorrectly on there concerning her shoes. Whether those questions were designed properly is an open question, but she preceded all that by saying that she understood that what she said had to be real.
When you put all that together, the way she expressed herself in the interview, the Court believes that under the totality of the circumstances, she's competent and was competent at that time to testify.
The Court has now made specific findings concerning all the objections made, and the court has at this time considered all the relevant factors covered by this statute in ruling that the video is admissible.
We have reviewed the record including the video-taped interview and find that the record supports the trial court's findings and the court's ruling admitting in evidence the video-taped interview. Appellant's sixth point of error is overruled.
In his seventh point of error, appellant argues that the trial court erroneously admitted evidence of an extraneous offense. In the part of the record to which appellant has directed our attention, we find no trial objection relating to this matter complained of on appeal. Therefore, this matter was not preserved for appellate review. See Tex. R. App. P. 33.1. Appellant's seventh point of error is overruled.
The judgment of conviction for indecency with a child by exposure is reversed, and that cause is dismissed.