Willover v. State

TAFT, Justice,

dissenting from the denial of en banc review.

This case is about the trial court’s decision to allow one, rather than another form, of extrinsic evidence to impeach T.W., the complainant, with prior inconsistent statements. The true issue is whether the trial court erred in excluding the entirety of two videotapes to impeach T.W. with two prior inconsistent statements. The trial court did allow extrinsic evidence of the same prior inconsistent statements through the testimony of the interviewer to whom they were made. Appellant insisted on introducing the tapes in their entirety in the absence of editing equipment that would have allowed introduction of only the prior inconsistent statements themselves.

Instead of illuminating the true nature of this case, the panel opinion: (1) claims that the State is changing positions on appeal; (2) injects a new and highly ques*680tionable theory of admissibility of the videotapes for the first time on appeal; and (3) barely mentions the other evidence of appellant’s guilt either in an introductory fact statement or when conducting a harmless error analysis. For the reasons set out below, I respectfully submit that extraordinary circumstances required en banc consideration of this case. See Tex. R.App. P. 41.2(c) (“En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decision or unless extraordinary circumstances require en banc consideration.”).

Facts

T.W. was a developmentally challenged eight-year-old girl. One day she pulled her pants down in the classroom and exposed herself. On another occasion, she told the principal that she slept up high and that her father would get on her back or on top of her. The principal referred T.W. to a professional counselor under contract with the school.

The counselor had about 5,000 hours of experience with Children’s Protective Services dealing with sexually abused children. Because T.W. was not very verbal, the counselor had the child draw pictures. He asked T.W. if she remembered telling the school principal about someone hurting her. T.W. nodded and showed how she was hurt by pointing to her lower body area. The counselor drew the outline of a human body and asked the complainant to point to the area where she was hurt, and she pointed in the drawing to the area of her vagina. "When asked who had hurt her, T.W. said “Daddy” (appellant). T.W. said her daddy put his “saw” or “salt” in me and that it hurt and was itchy. When asked to draw a picture of what “saw” or “salt” looks like, T.W. drew an object about 10 inches long by two inches, and said that “white, sticky stuff’ comes out of it. Using two dolls, T.W. demonstrated by placing one doll on top of the other and using a thrusting motion by the doll representing her daddy. The counselor formed the opinion that T.W. had been sexually abused.

Andrea Hardeman was employed as an investigative caseworker with the Texas Department of Protective and Regulatory Services. She received a referral regarding T.W., and went to the family home on February 14, 1997. Mrs. Willover answered the door, but informed Hardeman that she could not come inside because they had dogs which would bite. Harde-man testified that she was unable to obtain enough information at that point, but left her card with instructions that Mr. Will-over was to call her. Appellant called on February 19th, but failed to show up for the scheduled appointment after calling back to cancel it.

Kimberly White was employed as lead investigator with the Waller County Chil-drens’ Protective Services. White related that T.W. was removed from her home due to an outcry of sexual abuse allegedly committed by the father. White testified that the complainant and her brother have been placed in a therapeutic foster home, where their behavior and demeanor have improved in comparison to the way they were prior to the placement.

Lisa Holcombe is a counselor who interviewed T.W. at the Children’s Assessment Center on April 3, 1997, and June 6, 1997. During the first interview, T.W. said that only her brother, and no one else, had touched her private parts. During the second interview, T.W. told Holcombe that appellant touched her private part with a stick. Holcombe was unable to conclude from the two interviews that appellant had sexually abused T.W.

Dr. Mariam Chacko was employed as an attending physician at the Child Protective Health Clinic at Texas Childrens’ Hospital. She examined T.W. on April 17, 1997 when she was eight years old. Examination of the external portion of the vulva and the vaginal opening showed no abnormalities. Examination of the anal area revealed a *681scar. Dr. Chacko asked T.W. if her father had touched her anal area with his privates, and she nodded yes and said it occurred in the bathroom. Dr. Chacko’s opinion is that the condition of T.W.’s anal area was consistent with trauma from sexual abuse. Dr. Chacko testified that there was no way to tell the age of the scarring, but that it would be consistent with sexual abuse occurring around February of 1997.

Vickie Smith was employed as a therapist for a therapeutic foster care agency called the Arrow Project. She had been T.W’s therapist for the past year. Smith was familiar with the characteristics exhibited by children who have been sexually abused, and she has observed T.W. exhibit the same characteristics.

Appellant called T.W. to testify. T.W. testified on direct that appellant did not touch her private parts. On cross-examination, she testified that appellant put his “P” in her “P” and in her “butt.” On redirect, appellant’s counsel brought Lisa Holcombe in the courtroom, and asked T.W. to remember talking to Holcombe the year before. T.W. agreed with appellant’s counsel that she had told Holcombe that appellant had put his “P” in her “P” and behind four times.

Admissibility of Videotapes

In his first point of error, appellant contends the trial court erred in excluding the two videotapes of Lisa Holcombe’s interview with T.W. Appellant argues that he should have been allowed to impeach T.W.’s courtroom testimony with these tapes.1 The panel opinion treats appellant’s point of error as if the State urged the trial court to exclude the tapes, and as if the tapes constituted the only extrinsic evidence available to impeach T.W. with her prior inconsistent statements. This is not an accurate rendition of what happened in this trial.

First of all, the State never opposed admission of the tapes because they contained prior inconsistent statements. This explains what the panel opinion observes as the State’s failure to take issue with Patmore v. State, 831 S.W.2d 97 (Tex.App.-Eastland 1992, no pet.) and Hall v. State, 764 S.W.2d 19 (Tex.App.-Amarillo 1988, no pet.).2 The trial court, like the State, did not oppose appellant’s introducing the complainant’s prior inconsistent statements in the videotapes. What the trial court would not allow, at no urging from the State, was the admission of the tapes in their entirety. In the absence of editing equipment, by which only the prior inconsistent statements could be shown to the jury, the trial court required appellant to use Lisa Holcombe’s testimony. A closer look at the record shows other variances between the panel opinion and the actual sequence of events.

A. Initial Objections

After the State rested, appellant sought to introduce the two videotapes containing both interviews of T.W. by Lisa Holcombe. The State objected on the grounds: (1) the tapes’ introduction would violate the requirement of article 38.071 of the Code of Criminal Procedure that the tapes have been made before charges were filed or an indictment handed down; and (2) the State was not provided with 14 days’ notice, as required by article 38.072 of the Code of Criminal Procedure. The trial court rejected the State’s second argument, but sustained the State’s objection that the videotapes were made after the complaint *682was filed or the indictment handed down. See Tex.Code CRIM. P. Ann. art. 38.071, §§ 2(a), 5(a) (Vernon Supp.2000). At this point, appellant’s counsel asked if the tapes might be used for impeaching T.W., if T.W. were to testify inconsistently; the trial court responded that “impeachment is a whole different ball game.” The trial court, however, declined to rule prospectively on other uses of the tapes.

B. No Objection Based on T.W.’s Unavailability

For the first time on appeal, the panel opinion raises the concept that article 38.071 applies only if the court finds the complainant is unavailable to testify at trial. See Tex.Code Crim. P. Ann. art. 38.071, § 1 (Vernon Supp.2000). The panel opinion assumes the State has abandoned its article 38.071 theory because T.W. testified, and thus asserts that the State is raising a new theory on appeal, namely that appellant did not meet the predicate for introducing a prior inconsistent statement. The change from article 38.071 to impeachment as a basis for admissibility, however, was made by appellant at trial, as explained above. Article 38.071 had become moot, not because T.W. became available but, because the videotapes were made after charges were filed.

C. Preservation of Appellant’s Impeachment Offer

The State argues on appeal that appellant’s counsel neither requested nor obtained a ruling on the videotape’s admission as a prior inconsistent statement, so that he has not preserved error. See Tex. R.App. P. 33.1(a). As noted above, when appellant’s counsel first mentioned the impeachment basis, the trial court declined to rule prospectively. Appellant’s counsel sought to introduce the tapes into evidence again after T.W. testified, during the testimony of Lisa Holcombe. The trial court reiterated that the tapes were inadmissible because the first tape was made after the complaint had been filed, and the second tape had been made after indictment.

Appellant’s counsel argued the tapes had impeachment value, to which the court responded that there was no editing equipment, and that appellant’s counsel could not show the tape in its entirety. Most significantly, the court stated it had allowed appellant to use Lisa Holcombe’s testimony as extrinsic evidence of T.W.’s prior inconsistent statements. Appellant’s counsel continued to press for admissibility of the entire tape because it impeached T.W.’s testimony. The trial court did not make any additional ruling, and appellant’s counsel made no further attempts to introduce the tapes before resting.3

Under these circumstances, the record seems clear enough that appellant adequately pressed his offer of the entirety of the tapes until the trial court made it clear that it would not allow the entirety to be shown to the jury. Also, the panel opinion is correct that the State’s raising, for the first time on appeal, appellant’s failure to meet the predicate for a prior inconsistent statement is not timely. The issue is, thus, whether the trial court erred by continuing to refuse appellant’s request to play the entire tape, after appellant had apparently accepted the court’s offer to substitute playing the tapes with Lisa Hol-combe’s testimony of the same events. Unfortunately, the terms of the trial court’s accommodation do not appear on the record, so we do not even know if appellant agreed to the substitution.

Nevertheless, the trial court’s accommodation was not an abuse of discretion under the peculiar circumstances of this case. Indeed, it was appellant’s responsibility, as the proponent of the evidence, to provide the proper editing equipment in order to *683show the admissible portions of the tape. If the proper equipment was unavailable, it was appellant’s responsibility to seek a continuance to obtain the proper equipment. Appellant did neither. Accordingly, I find it extraordinary that the panel opinion holds that the trial court committed error. If the trial court did err, however, it was only by requiring appellant to use Lisa Holcombe’s testimony of the same statements by T.W. as a substitute for the videotapes.

D. Admission by Party Opponent

The most extraordinary aspect of the panel opinion, however, is that, having accused the State of taking a new and different position on appeal, the panel opinion raises a theory of admissibility unmentioned by either party at trial or on appeal! The panel opinion holds T.W. is a party opponent to the defendant, thereby rendering rule 613(a) (impeachment with a prior inconsistent statement) inapplicable because statements made by a party opponent are not hearsay. See Tex.R. Evid. 613(a); see Tex.R.Evid. 801(e)(2). A statement qualifies as an admission by party opponent, however, if it is offered against a party and it is the party’s own statement. Hughes v. State, 4 S.W.3d 1, 6 (Tex.Crim.App.1999) (citing Tex.R. Evid. 801(e)(2)). It is the State, and not the complainant, that is a party in a criminal proceeding. Halstead v. State, 891 S.W.2d 11, 12 & n. 1 (Tex.App.—Austin 1994, no pet.). This Court has never held that the complainant in a criminal case is a party opponent, but we have recognized that agents of the State are subject to the rule. See Rodela v. State, 829 S.W.2d 845, 849 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd).4

In support of its position, the panel opinion relies on an opinion by the Austin court of appeals that was overruled two years after it was published. See Cuyler v. State, 841 S.W.2d 933, 935 (Tex.App.— Austin 1992, no pet.), overruled by Hal-stead, 891 S.W.2d at 12 & n. 1. The Cuyler position has also been expressly rejected by the Waco court of appeals in Owens v. State, 916 S.W.2d 713, 717 (Tex.App.— Waco 1996, no pet.).5

Research of other jurisdictions indicates that they follow the rule of Halstead, limiting party opponents to agents of the State. See, e.g., Goodson v. State, 566 So.2d 1142, 1148 & n. 11 (Miss.1990); State v. Antillon, 229 Neb. 348, 426 N.W.2d 533, 538 (1988), superseded by statute on other grounds as stated in State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989); Ex parte Dunaway, 746 So.2d 1042, 1049 (Ala.1999) (Lyons, J., concurring); People v. Deskin, 60 Ill.App.3d 476, 17 Ill.Dec. 757, 376 N.E.2d 1086, 1090 (1978); In re Davis, 166 Mich.App. 735, 420 N.W.2d 872, 873 (1988); State v. Dinwiddie, Summit Appeal 12876 at *3 (Ohio Ct.App. Sept. 16, 1987) (unpublished opinion); State v. Browning, Clermont Appeal 04-022 at *2 (Ohio Ct.App. Dec. 19, 1994) (unpublished opinion).6 Maine, on the other hand, considers there to be no party opponent on the State’s side. See State v. Therriault, 485 A.2d 986, 992 (Me.1984).

*684No reported cases from other jurisdictions that seem to agree with Cuyler have been found. All decisions from other jurisdictions discovered so far, disagree with the panel opinion’s holding that T.W.’s statement is non-hearsay because it is the statement made by a party opponent. Thus, even if this issue had been brought before us, it should be decided in accordance with the prevailing authority from Texas, as well as other jurisdictions.

Moreover, the prevailing rule is to uphold a trial court’s decision regarding admissibility, if the decision is correct for any reason, including a reason not developed at trial. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The "panel opinion’s holding effectively turns the prevailing rule, 180 degrees around, to overturning a trial court’s ruling on appeal if such ruling is incorrect for a reason not previously mentioned either at tnal or on appeal. I find this beyond extraordinary.

E. Harm Analysis

A final extraordinary aspect is the panel opinion’s conclusion that appellant was harmed by the exclusion of the videotapes. The excluded evidence is cumulative of other evidence allowed by the trial court. Indeed, the trial court deliberately made an accommodation to allow appellant to present T.W.’s prior inconsistent statements through cumulative evidence. The panel opinion holds that Holcombe’s testimony was not an adequate substitute for the videotapes because the tapes are firsthand, verbatim, pictured statements of T.W. made long before trial at a time much closer to the events described so that they would have helped appellant show the jury a picture of T.W. as a malleable witness. The jury saw T.W.’s malleability in court, however, by her conduct as a witness agreeing with whatever the questioning attorney led her to say.

Holcombe’s testimony accurately described the parts of the interviews relating to complainant’s rendition of the events. Most importantly, it presented T.W.’s pri- or inconsistent statements thereby fulfilling the intended purpose of impeaching T.W.’s testimony. Consequently, the exclusion of the tapes did not deprive appellant of presenting valuable evidence to the jury. The excluded evidence was cumulative, and its exclusion was, therefore, harmless error. See Quinonez-Saa v. State, 860 S.W.2d 704, 707 (Tex.App.— Houston [1st Dist.] 1993, pet. ref'[d).

The panel opinion does not find the State’s evidence of T.W.’s drawings and outcries to trained sexual abuse counselors, doctors, and educators to be particularly persuasive. The panel opinion postulates that a jury would have found T.W.’s videotaped statements more real and persuasive than the witness accounts of T.W.’s outcries. One reason given by the panel opinion is that T.W.’s videotaped statements were closer to the actual events. This reason does not withstand scrutiny, however, because T.W.’s outcries to the school principal and the school sexual abuse counselor were much nearer to the time of the offense, while T.W. was still coping with having to live in the same household with a father who had sexually abused her. T.W.’s videotaped statements were taken several months later (two months and four months, respectively), after T.W. had been removed from her home.

Contrary to the panel opinion, the record shows that the jury was made fully cognizant of T.W.’s malleability as a witness; the jury witnessed it firsthand. No substantial difference in impact resulted from the trial court substituting Holcom-be’s candid testimony of her interview with T.W. for the videotapes. Moreover, the most powerful evidence in this case came from the school’s sexual abuse expert, who overcame T.W.’s verbal deficiencies by getting her to demonstrate and draw on paper what had been done to her.

T.W.’s drawings constituted real evidence at the time nearest to the offense, while T.W. was still under the same pres*685sure, as at the time of the offense, of living in the same household with appellant. One drawing portrayed T.W.’s body showing that her daddy put his “salt” in her “pee” and it hurt. A separate drawing attached to the same State’s exhibit portrayed a 10-inch long by two-inch thick phallus with notes indicating T.W. said: “stuff comes out of it”; the stuff is “white”; “daddy puts this in me — itchy”; “daddy climbs ladder and on top of me” (T.W. slept on the top bunk); and “get in trouble if tell.”

There was other evidence of outcry by T.W., to her school principal, and to the examining doctor who found physical evidence to corroborate T.W.’s outcry of anal penetration. There is simply no reason to believe that the State’s evidence would have been weakened at all by T.W. having been impeached with her videotaped prior inconsistent statements rather than by Holcombe’s testimony of the same prior inconsistent statements by T.W.

Conclusion

Where the panel opinion’s approaches to the error asserted in this case were not raised by the parties, introduce novel legal theories, and largely mask the central issues in this case, it is extraordinary, if not unprecedented. Accordingly, with a heavy heart, I most strenuously dissent to the denial of en banc review.

Chief Justice SCHNEIDER and Justice NUCHIA join Justice TAFT’s opinion dissenting from denial of en banc review.

Chief Justice SCHNEIDER’S separate opinion dissenting from the denial of en banc review to follow.

. Appellant did not contend the tapes were admissible in their own right as admissions by party-opponent, either at trial or on appeal.

. Of course, Patmore and Hall are distinguishable because in both cases the trial court excluded the tapes, which contained the complainants’ prior inconsistent statements, without allowing any other extnnsic evidence of the prior inconsistent statements. See Patmore, 831 S.W.2d at 98; Hall, 764 S.W.2d at 21. Here, the trial court allowed the same prior inconsistent statements to be presented via the testimony of the person to whom the statements were made.

. Contrary to the panel opinion, it was not the State which objected to introducing the tapes, when they were offered for impeachment; rather, the trial court refused to play the tapes in their entirety, where only a small portion of the tapes contained the inconsistent statements.

. The panel opinion dwells on the fact that the State, as an impersonal entity, cannot make admissions. No one disputes, however, that there are persons who are subject to the rule allowing admissions by a party opponent where the party is the State. The dispute is whether complainants are included along with agents of the State.

. The Fort Worth court of appeals seems to have espoused Cuyler where it treated a witness in a criminal case as party opponent under rule 801(e)(2). See L.M.W. v. State, 891 S.W.2d 754, 765 (Tex.App.—Fort Worth 1994, no pet.). This case is an aberration, though, because the defendant had sought to introduce evidence that the witness (her then husband) had offered to influence the criminal proceedings in defendant’s favor if she agreed to certain concessions in their divorce proceedings (in which they were party opponents).

.Unpublished cases have no controlling authority. See Ohio Ct. R.R.O. 2(G).