Chambers v. State

755 S.W.2d 907, 1988 Tex. App. LEXIS 1807, 1988 WL 77928

Opinions

OPINION

COHEN, Justice.

This case presents the following question:

Can a defendant be found guilty of a crime beyond a reasonable doubt when the victim testifies that no crime occurred, and there is no sworn testimony to the contrary?

We answer in the negative.

A jury found appellant guilty of indecency with a child, and, after finding an enhancement paragraph to be true, assessed punishment at I6V2 years confinement. The indictment alleged that on March 9, 1986, appellant, with intent to arouse his sexual desire, exposed his genitals to the complainant, who was under seventeen years of age and was not his spouse.

A videotape of the complaining witness was admitted into evidence at trial under Tex.Code Crim.P.Ann. art. 38.071, § 2.¹ In the tape, the complainant, appellant’s stepdaughter, stated that appellant had engaged in sexual acts with her. After the State rested, appellant called the complainant to testify. The trial judge refused to allow appellant to lead the complainant, characterizing her as appellant’s witness. Nevertheless, the complainant totally repudiated her taped statement, and denied that appellant had done the acts alleged.

The second point of error contends that the evidence was insufficient.

It is undisputed that the evidence in this case would be insufficient, but for the complainant’s unsworn, repudiated, hearsay statements on videotape.² No trial objection was made to the videotape based on hearsay or denial of confrontation.³ The sole objection was that the proper predicate had not been laid.

We note that unobjected to hearsay evidence, such as the videotape in the present case, was considered incompetent, not merely inadmissible, in Texas until June 4, 1986, 12 days before appellant’s trial. On that day, Chambers v. State, 711 S.W.2d 240, 245-47 (Tex.Crim.App.1986), was decided and held that inadmissible hearsay evidence admitted without objection would no longer be treated as incompetent, but would be considered as having probative value and would be considered in determining the sufficiency of the evidence.

Appellant argues that the videotaped hearsay evidence was insufficient, as a matter of law, to support the judgment because 100% of the sworn testimony in court from the complainant was that appellant was not guilty. Appellant asks us to hold that the complainant’s in-court, sworn repudiation of her out-of-court, unsworn videotape wholly destroyed the videotape’s probative value.

The only eyewitnesses to the crime alleged were appellant and the complainant. The complainant consistently testified that the crime did not occur. Appellant testified, but was never asked to admit or deny the crime.

A physician examined the complainant the day after the alleged offense and found that her hymenal ring was open, consistent with penetration by a penis, and that her exterior genitalia were normal, as would be consistent with recurring sexual activity over a period of time. There was no medical evidence, however, that appellant had engaged in the sexual activities with the complainant.

The complainant, who was 12 years old at the time of trial, told the police officer conducting the videotape that appellant had been molesting her since the age of seven. The complainant’s 14-year-old half brother testified as a defense witness that appellant would often send him outside the family home, leaving appellant and the complainant alone inside. The complainant’s 10-year-old cousin, Derrick Herbert, testified in the State’s rebuttal that he once saw the complainant lying naked on a bed, while appellant was nearby putting on his underwear. The State conceded during jury argument, however, that that was not the incident alleged in the indictment or the one testified to on videotape by the complainant. It was rebuttal evidence, and the event described was never shown to have occurred on the date alleged in the indictment, within any particular year, or within the period of limitations for this offense. The only other evidence the State points to in support of the judgment is the complainant’s statements to her aunt and grandmother that appellant had been “messing” with her. Finally, the complainant testified that appellant had asked her not to testify against him and that she loved appellant because he was a good stepfather to her.

The State relies on Combs v. State, 648 S.W.2d 709, 716 (Tex.Crim.App.1982), as authority that this case presents no more than a conflict in the evidence that the jury resolved against appellant. Combs, however, was not a case where the State relied wholly on repudiated, unsworn, out-of-court hearsay as the sole evidence of guilt.

In State v. Moore, 485 So.2d 1279 (Fla.1986), the Supreme Court of Florida was asked this certified question:

Is a prior inconsistent statement sufficient evidence to sustain a conviction when a prior inconsistent statement is the only substantive evidence of guilt?

In Moore, the prosecution’s prior inconsistent statements consisted of the sworn grand jury testimony of two witnesses. These witnesses testified in person at two murder trials that the defendant, Moore, was not guilty and that they had lied under oath to the grand jury because of police coercion. The court held that, “[i]n a criminal prosecution, a prior inconsistent statement standing alone is insufficient to prove guilt beyond a reasonable doubt.” 485 So. 2d at 1281. The court quoted with approval from United States v. Orrico, 599 F.2d 113 (6th Cir.1979), as follows:

But the Government having offered such statements as the sole evidence of a central element of the crime charged, we hold that the Government has failed to sustain its burden of proof of guilt beyond a reasonable doubt.

599 F.2d at 119.

The Florida Supreme Court concluded: We agree that the risk of convicting an innocent accused is simply too great when a conviction is based entirely on prior inconsistent statements.

This case is a stronger one for reversal than Moore because: (1) the prior inconsistent statement here was unsworn, and was made outside of a judicial proceeding, whereas in Moore, it was sworn before a grand jury; (2) there is one witness’ prior inconsistent statement here, whereas two witnesses testified to guilt in Moore; (3) the prior inconsistent statement here was the sole evidence of all elements of the crime charged, not merely of “a central element,” as in Orrico. One justice specially concurred in Moore, and wrote that “a different issue” would be presented if the prior inconsistent statements had been made in a proceeding where the defendant had an opportunity to confront and cross-examine witnesses. 485 So.2d at 1282 (Overton, J., concurring). The complainant’s prior inconsistent statement here came from a proceeding where there was no opportunity for confrontation and cross-examination.

A Texas court has recently held that evidence like that here is insufficient to support a verdict of guilty. In Villalon v. State, 739 S.W.2d 450 (Tex.App.—Corpus Christi 1987, pet. pending), the evidence of sexual assault, similar to the instant case, came from a school nurse, the complainant, the complainant’s mother, and a medical doctor. No videotape was involved. The complainant testified at trial inconsistently with her earlier account to the school nurse. The nurse testified that the child complainant had stated that she had been “raped,” but at trial the complainant did not testify to penetration. The nurse’s testimony, recounting the complainant’s prior inconsistent hearsay statement, was the sole proof of penetration. Such hearsay was admissible under Tex.Code Crim.P. Ann. art. 38.072. Villalon claimed on appeal that the evidence was insufficient to prove penetration. The court wrote:

[I]t would be an over broad interpretation of the statute to hold that the hearsay statement given to another one year or more after the event in question is sufficient to convict, where the victim herself testified articulately and did not corroborate but, in fact, contradicted the crucial hearsay statement concerning penetration.

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In our case, the hearsay was contradicted by the victim and was not corroborated by any of the other evidence.

In the absence of extenuating facts, which are not present in this case, it would be irrational to hold that un-sworn hearsay evidence has the same, or more, probative value than the sworn testimony of the party who made the hearsay statement and had actual knowledge of the facts.

We recognize that cases involving abuse of small children often create special problems of proof and each case must be decided and generally restricted to its own particular facts. In this case, we hold that the nurse’s testimony of hearsay statements of the victim is not sufficient, as a matter of law, to establish penetration when the victim’s testimony about the same fact is insufficient to establish it.

739 S.W.2d at 454 (emphasis supplied).

The court in Villalon distinguished Chambers v. State, 711 S.W.2d at 240, because in Chambers, all the other facts were consistent with guilt and there was no contradiction, express or implied, in the truth or accuracy of the hearsay. Id. This distinction is even more pertinent in the present case, where we have not merely a contradiction, but a total repudiation of the hearsay.

This Court has twice recently held that out-of-court, unsworn hearsay, later repudiated in court, was insufficient to support a verdict of guilt when it was the only evidence linking the defendant to the crime. See Machado v. State, 753 S.W.2d 252 (Tex.App.—Houston [1st Dist.] 1988) (arson case); Fernandez v. State, 755 S.W.2d 220 (Tex.App.—Houston [1st Dist.] 1988) (theft case).

Even viewing this evidence in the light most favorable to the verdict, we conclude that no rational finder of fact could be convinced of appellant’s guilt beyond a reasonable doubt. Only by disregarding all sworn testimony from all eyewitnesses could the jury have found beyond a reasonable doubt that appellant exposed his genitals to the complainant on March 9, 1986, as alleged. Only by relying wholly on repudiated prior inconsistent statements could the allegations have been proved. To find this evidence sufficient would make the trial a mere formality, the only evidence of guilt having been produced before indictment, ex parte, out of court, without oath, without confrontation, without notice, and then repudiated. As the court held in State v. Frank, 298 N.W.2d 324 (Iowa 1980):

The rule that it is for the jury to reconcile the conflicting statements of a witness does not apply where the only evidence in support of the controlling fact is that of a witness who so contradicts himself as to render the finding of facts thereon a mere guess.

Id. at 329.

Point of error two is sustained.

The judgment of the trial court is reversed, and a judgment of acquittal is ordered.

DUNN, J., dissents.

Footnotes

1

. Ch. 599, sec. 1, 1983 Tex.Gen.Laws 3829, amended by ch. 998, sec. 1, 1987 Tex.Gen.Laws 3378, amended by ch. 55, sec. 1, 1987 Tex.Laws, 2nd Spec.Sess. 180.

2

. We note that Tex.R.Crim.Evid. 801(e)(1)(D) provides that a statement is not hearsay if taken and offered in accordance with Tex.Code Crim. P.Ann. art. 38.071; however, such provision became effective on September 1,1986, more than two months after appellant’s trial.

3

. Such objections would have been meritorious. See Long v. State, 694 S.W.2d 185 (Tex.App.—Dallas 1985), aff'd, 742 S.W.2d 302 (Tex.Crim.App.1987). The court of appeals decided Long a year before this trial, time enough to alert appellant's counsel to the statute’s unconstitutionality. Moreover, most attorneys, even before the court of appeals opinion in Long, would have raised these basic objections, notwithstanding that at least five court of appeals decisions had overruled such challenges to the statute before appellant's trial. Newman v. State, 700 S.W.2d 307 (Tex.App.—Houston [1st Dist.] 1985), rev’d, 743 S.W.2d 641 (Tex.Crim.App.1988); Mallory v. State, 699 S.W.2d 946 (Tex.App.—Texarkana 1985), vacated, 752 S.W.2d 566 (Tex.Crim.App.1988); Tolbert v. State, 697 S.W.2d 795 (Tex.App.—Houston [1st Dist.] 1985), aff’d on other grounds, 743 S.W.2d 631 (Tex.Crim.App.1988); Jolly v. State, 681 S.W.2d 689 (Tex.App.—Houston [14th Dist.] 1984), rev’d, 739 S.W.2d 345 (Tex.Crim.App.1987); Alexander v. State, 692 S.W.2d 563 (Tex.App.—Eastland 1985), vacated, 753 S.W.2d 401 (Tex.Crim.App.1988); see also Coy v. Iowa, — U.S.-, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

The record does not reflect why appellant’s court-appointed trial attorney failed to object to the videotape as hearsay or as a denied of confrontation. Nor does the record reflect why appellant’s new court-appointed appellate counsel has not raised a point of error alleging that the failure to object constituted ineffective assistance of trial counsel. Nevertheless, these considerations are moot, in view of our disposition of the second point of error.