In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-01-278 CR
____________________
DONALD C. DECLUITT, Appellant
V.
THE STATE OF TEXAS, Appellee
Hardin County, Texas
Trial Court Cause No. 15,094
A jury convicted appellant Donald C. Decluitt of aggravated sexual assault of an eleven year old child ("C.W.") and assessed a punishment of twenty-five years of confinement in the Texas Department of Criminal Justice--Institutional Division. See Tex. Pen. Code Ann. § 22.011(a)(2)(A), (c)(1) (Vernon Supp. 2002). On appeal Decluitt claims the trial court erred in failing to reopen the evidence to allow additional evidence from two witnesses who had testified at trial.
Background Facts
Both Decluitt and C.W. testified to the events on the date of the alleged offense. Both related that C.W.'s mother was out of town and that Decluitt took C.W. and her brother to a school dance that night and picked them up afterwards. Decluitt admitted he had been drinking earlier in the evening. C.W. thought he was drunk. They both indicated Decluitt came in C.W.'s bedroom that night. But the similarity of the stories ends there.
C.W. testified that Decluitt came in her room, told her she was screaming, and took her to his room. She said she returned to her room, but Decluitt came and brought her back to his bedroom. He took his clothes off, pushed her on the bed, locked the door, and removed her underwear. C.W. described the ensuing sexual assault in graphic detail.
Decluitt testified the children went to bed, while he spent time on the computer. He indicated that when C.W. began "whining" in her bedroom, he checked on her and then returned to his computer. He testified that when she later began "whining" again, Decluitt went to her room, picked her up, and put her in bed with him. He testified he was clothed. When he awoke, she was "laying right up under me." Decluitt pushed her over, and C.W. awoke; he told her to return to her own bed.
The jury heard how Decluitt was found naked in C.W.'s bed on another occasion, which he told the jury was a sleepwalking episode. And the jury heard that when he was drinking he had expressed a desire for his wife to have sex with his friends. The jury also heard how he offered alcohol to C.W.'s sister and heard the sister relate how Decluitt asked if he could perform oral sex on her.
The record of the case-in-chief also contains evidence from various witnesses who testified regarding the complainant's lack of veracity. A witness explained that the child's reputation for truth and veracity was bad. A friend of Decluitt indicated C.W. lied on occasions. The counselor and principal from a school the child had attended both related C.W. had a bad reputation for truth-telling. In addition to C.W.'s bad reputation for truth-telling, the record is replete with evidence of "bad acts" and problem behavior -- violent conduct, aggressive behavior, anger, cursing at parents and teachers, lying, disobedience, disruptiveness in class, hallucinating, and self-mutilation. C. W. had been admitted to the Beaumont State Center on three separate occasions, and at the time of trial she lived at the Waco Center for Youth.
Reopening The Evidence
Decluitt presented a defense that called into question the child's credibility. As noted herein, various witnesses, including some of those testifying for the State, attested to C.W.'s bad reputation for truth-telling. After both sides rested their cases, the next morning the attorneys for the State and the defense informed the trial judge that two prosecution witnesses had approached Decluitt's attorney and indicated their desire to testify further in the case. The trial court then held a hearing outside the presence of the jury to determine whether to reopen the evidence. S. G. ("Shirley"), the mother of the complainant, and L.G. ("Larry"), Shirley's husband and current stepfather of the child, testified by bill of exception.
Larry's Proffered Testimony
Larry expressed doubts about whether Decluitt committed the offense. Because Larry was concerned that C.W. might make false accusations against him, he expressed fear at the possibility of being alone with her. Larry also mentioned he had posted Decluitt's bond because of his (Larry's) uncertainty that Decluitt had committed the act. In addition to his doubts about C.W.'s veracity, Larry also indicated C.W.'s sister had a bad reputation for truth-telling. During the State's cross examination at the hearing, Larry acknowledged that neither C.W. nor her sister ever indicated to him that they were not telling the truth; the story they told to the Garth House interviewer in October 1999 was basically the same story they told at the trial in 2001. He acknowledged he had already testified during the case-in-chief that C.W. had a bad reputation for telling the truth and reiterated his opinion once again.
Shirley's Proffered Testimony
Shirley also expressed doubts about whether Decluitt, her ex-husband, had committed the offense. She confirmed Larry's testimony that he is never alone with C.W. because of a fear of false accusations. Shirley stated, "the jury needs to know that I'm not absolutely . . . convinced, you know. I know my daughters." As with Larry, however, Shirley's testimony at the hearing was not the first time she attested to C.W.'s propensity to lie and manipulate; during the case-in-chief, Shirley referenced such problems more than once.
Q. [Defense counsel]: Okay. She's manipulative, isn't she?
A. [Shirley]: Sometimes.
Q. She cons people, doesn't she?
A. Sometimes.
. . . .
Q. She lies, doesn't she?
A. Sometimes.
. . . .
Q. All right. All of her disruptive behavior, lying, aggressiveness was all going on way before any of this was alleged to have happened, wasn't it?
A. Yes, sir.
Q. Okay. And how long has she been at the Waco School for youth?
A. She's been there since December.
Like Larry, Shirley testified she believes it is possible C.W. and her sister concocted the story. Like Larry, Shirley also acknowledged that C.W. had never recanted her story and that C.W.'s description of the event remained basically the same since her initial recounting of it in October 1999. Shirley specifically stated she had no new evidence indicating that C.W. or C.W.'s sister had made up the events they described. But Shirley stated, "I have my doubts. I'm just . . . not absolutely convinced, and I just hate to see something happen if I'm not absolutely convinced." In explaining why she doubts C.W. is telling the truth, Shirley gave two examples: C.W. went to a friend's house after school one day rather than coming home as she was supposed to; C.W. told Shirley she would not "hang out" with someone Shirley thought was not a good influence, but did so anyway.
The Judge's Ruling
At the conclusion of the hearing, the trial judge explained his ruling:
I find no new substantive facts that I feel would help this jury in making a determination of guilt or innocence. In fact, I think it's just an expounding on the testimony that they have given throughout this trial of this case in chief. I find--in listening to the testimony, I find no exculpatory statements that I feel would have an effect, one way or the other, on the outcome of this case.
Based on the testimony presented at the hearing by Larry and Shirley, the trial judge denied the request to reopen the evidence.
Governing Statute and Standard of Review
Reopening of the evidence in a case is governed by Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981). "The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." Id. The trial court's decision to reopen a case is left to the sound discretion of the trial court. Cain v. State, 666 S.W.2d 109, 111 (Tex. Crim. App. 1984). The discretion is not unlimited, however. Id. In applying the abuse of discretion standard, the Court of Criminal Appeals has held that "irrespective of its weight, or of its probative value or cumulative character, or the issue upon which it is offered, . . . if the evidence was admissible and offered before the reading of the charge and prior to arguments, unless it appears its introduction would have impeded the trial or interfered with the due and orderly administration of justice, it will be reversible error to refuse the request to reopen for its receipt." Vital v. State, 523 S.W.2d 662, 664-65 (Tex. Crim. App. 1975) (footnote omitted). The Corpus Christi court of appeals has stated the requirements for reopening the evidence in a four prong test: (a) The witness was present and ready to testify; (b) the request to reopen was made before the charge was read to the jury and final arguments were made; (c) the court had some indication of what the testimony would have been, and was satisfied that the testimony was material and bore directly on the main issues in the case; and (d) there was no showing that introduction of the testimony would have impeded the trial or interfered with the orderly administration of justice. Doyle v. State, 24 S.W.3d 598, 601-02 (Tex. App.--Corpus Christi 2000, pet. ref'd); see also Sims v. State, 833 S.W.2d 281, 286 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd). We hold that, under the circumstances here, the trial court erred in refusing to reopen the evidence.
However, even when there is trial court error in refusing to reopen the evidence, the reviewing court must conduct a harm analysis. Kennerson v. State, 984 S.W.2d 705, 707 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd). As pointed out by the First Court of Appeals, no error, except for certain federal, constitutional errors labeled by the United States Supreme Court as "structural," is categorically immune to a harmless error analysis. Id. (Trial court erred in failing to reopen evidence, but under harmless error analysis, the conviction was affirmed.) (citing High v. State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998)).
The trial court's refusal to reopen the evidence to allow the jury to hear the testimony of Shirley and Larry did not affect appellant's substantial rights. See Tex. R. App. 44.2(b); see also Kennerson, 984 S.W.2d 707 (Violations of art. 36.02 are governed by Rule 44.2(b)). As noted herein, the theme of the proffered testimony was the doubt expressed by Shirley and Larry that Decluitt committed the offense. However, the record of the case-in-chief contains considerable evidence from various witnesses who testified regarding the complainant's lack of veracity, including testimony from Larry and the testimony quoted above from Shirley. Any error in excluding this additional testimony, on the same issue about which considerable evidence had already been presented, was harmless.
We overrule appellant's issue. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L.Ed.1946)). The judgment is affirmed.
AFFIRMED.
PER CURIAM
Submitted on August 22, 2002
Opinion Delivered August 28, 2002
Do Not Publish
Before Walker, C.J., Burgess, and Gaultney, JJ.