Carsten Hedemann v. State

Court of Appeals of Texas·Decided September 13, 2019·No. 05-18-00247-CR·Published

Opinion

GRANT Rehearing, ABATE and REMAND; Opinion Filed September 13, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00247-CR

CARSTEN HEDEMANN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1434917-R

PRELIMINARY OPINION ON REHEARING Before Justices Whitehill, Partida-Kipness, and Pedersen, III Opinion by Justice Pedersen, III We grant appellant’s motion for rehearing. We withdraw our opinion of June 19, 2019.

This is now the opinion of the Court.

The State charged appellant with aggravated sexual assault of a child. He waived a jury

and pleaded no contest. The trial court found him guilty and assessed his punishment at thirty

years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

Appellant raises eight issues in this Court, challenging the voluntary nature of his plea, the State’s

failure to produce certain discovery in a timely way, the trial court’s rulings concerning his motion

for new trial, and the competence of the complaining witness to testify at trial. In a single cross-

point, the State asks us to modify the trial court’s judgment to reflect appellant’s plea correctly.

We abate this appeal and remand to the trial court for a hearing on appellant’s motion for new trial. Background

Facts and Allegations

When she was four years old, A.H. told her mother (Mother) that she and her father

(appellant) had been playing a game called the “yummies,” in which appellant licked her “cola,”

and then she licked his “cola.”1 After speaking to her daughter’s teacher and her priest, Mother

took A.H. to the Irving Child Advocacy Center (ICAC). At the ICAC, A.H. underwent a forensic

interview with Bibiana Dominguez, which confirmed that A.H. had been sexually abused.

Mother and appellant separated, and A.H. began weekly counseling sessions with Barbara

Banda. After approximately eight months of counseling, A.H. told Banda that appellant had shown

her a movie; Banda related A.H.’s description of the movie as “girls” giving oral sex to their

“daddies.”

A.H. testified at trial, by which time she was seven years old. She described the game she

had played with her father and the video he had shown her on his computer.

Appellant testified that days before A.H.’s outcry, A.H. had walked in on him watching

adult pornography. When she asked him about what she had seen, he attempted to talk to her about

what she had seen in the context of sex between parents. He did not tell Mother about the incident

because their relationship was already strained. He described playful conduct he had with A.H. but

denied any sexual contact with her. He contended that A.H. had confused the movie she saw with

reality.

The “Missing Evidence”

Most of appellant’s issues address in some fashion what we will call the “missing

evidence.” Appellant contends that the State failed to turn over—or to turn over in a timely

1 The record establishes that A.H. used the word “cola” to describe both her own sexual organ and her father’s sexual organ. –2– manner—two emails between Mother and Banda and a portion of the video of A.H.’s recorded

forensic interview at ICAC.

The emails were forwarded to appellant’s counsel from the prosecutor on the morning of

appellant’s trial. In one email, Mother told Banda that A.H. had informed her that an incident of

the conduct had occurred when she (Mother) was in the house; she called appellant a “monster”

for this brazen abuse of their daughter. Mother also relayed A.H.’s confusion regarding good and

bad touches when Mother bathed her. In addition, one email related in some detail Mother’s

appreciation for training concerning handling child abuse, which she had received through a video

by Governor Greg Abbot.

As to the missing video, A.H.’s forensic interview took place over two days. Dominguez

testified that these interviews are videoed as a matter of course. However, during her testimony, it

became apparent that either the video of part of one day’s interview was missing or that a portion

of the interview had mistakenly not been recorded. Dominguez testified that A.H. responded

during the interview that she had not been exposed to pornography; that exchange did not take

place during either of the two videos produced to appellant by the State.

Appellant argues that the missing evidence would have undermined the credibility of both

A.H. and Mother at trial.

Procedural Background

Appellant was initially charged with sexual abuse of a child under six years of age. During

the State’s investigation, Father’s computer was seized. State experts discovered pornography

involving adults and children on the computer. Appellant agreed to plead no contest to the charge

of sexual abuse of a child under fourteen, which allowed for the possibility of a shorter sentence

and parole. In return, the State did not offer evidence of the child pornography found on appellant’s

–3– computer. As part of the plea process, the trial court orally admonished appellant, and he signed

the State’s written admonition to sex offenders.

The trial court found appellant guilty and sentenced him to thirty years’ confinement.

Appellant timely filed his Motion for New Trial and Request for Hearing. The motion was

overruled by operation of law without a hearing.

This appeal followed.

The Motion for New Trial

Appellant first identified his concerns involving what we have called the missing evidence

in his motion for new trial. We initially address appellant’s sixth issue, in which he contends that

the trial court erred by overruling his request for a hearing on the motion. A defendant has a right

to a hearing on a motion for new trial when the motion raises matters that cannot be determined

from the record. Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993). We review the denial

of a hearing on a motion for new trial for an abuse of discretion. Smith v. State, 286 S.W.3d 333,

339 (Tex. Crim. App. 2009).

Presentment

The State argues that appellant did not properly present his motion for new trial.

Appellant’s motion for new trial attached the two emails discussed above and an excerpt of A.H.’s

trial testimony. The motion also contained a Fiat, but the record does not include a signed copy of

this Fiat setting a hearing on the Motion. Nor does it contain a docket notation or any other

indication that the trial court was made aware of the motion and appellant’s desire for a hearing.

The record does contain a series of emails between appellant’s counsel’s assistant and one of the

trial court’s reporters, which appellant contends was his presentment of the motion for new trial to

the trial court.

–4– A motion for new trial must be “presented” to the trial court within ten days of its filing.

TEX. R. APP. P. 21.6. This means the defendant must give the trial court actual notice that he timely

filed a motion for new trial and requests a hearing. Obella v. State, 532 S.W.3d 405, 407 (Tex.

Crim. App. 2017) (per curiam). Presentment must be shown on the record. Gardner v. State, 306

S.W.3d 274, 305 (Tex. Crim. App. 2009).

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