Clark v. State

781 S.W.2d 954, 1989 Tex. App. LEXIS 3186, 1989 WL 161448
Court of Appeals of Texas·Decided December 29, 1989·No. No. 2-85-239-CR·Published·Cited by 4 cases

Opinion

OPINION ON REMAND

KELTNER, Justice.

The primary issue in this case is whether the trial court’s erroneous admission of a videotape of the complaining witness, prepared out of the presence of the defendant, [955]*955was harmless beyond a reasonable doubt. We also must consider whether the court’s erroneous charge on good time and parole was harmless beyond a reasonable doubt.

We hold both errors are harmless beyond a reasonable doubt and affirm the trial court’s conviction.

This case reaches us on remand from the Texas Court of Criminal Appeals. Previously, Freddie Lee Clark appealed his conviction by a jury of the offense of aggravated sexual assault. See TEX. PENAL CODE ANN. sec. 22.021 (Vernon 1989). The jury assessed his punishment, enhanced by two prior felony convictions, at life imprisonment in the Texas Department of Corrections. In his original appeal to this court, we affirmed Clark’s conviction and rejected his arguments that a videotape of the complainant prepared pursuant to article 38.072 of the Texas Code of Criminal Procedure was unconstitutional. Clark v. State, 728 S.W.2d 484 (Tex.App.-Fort Worth 1987) (en banc).

Clark sought a petition for discretionary review from the Court of Criminal Appeals. Subsequent to our opinion, the Court of Criminal Appeals, in another case, held that section 2 of article 38.072 of the Texas Code of Criminal Procedure was unconstitutional. Long v. State, 742 S.W.2d 302 (Tex.Crim.App.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988). As a result of the decision in Long, the Court of Criminal Appeals vacated our judgment and remanded the cause to us for a harm analysis pursuant to TEX.R.APP.P. 81(b)(2). Clark v. State, 753 S.W.2d 371 (Tex.Crim.App.1988) (opinion on reh’g).

Although not mentioned by the Court of Criminal Appeals or raised by appellant on remand, we note that no appellate court has reviewed Clark’s contention that the trial court erred in instructing the jury on good time and parole law pursuant to article 37.07, sec. 4 of the Texas Code of Criminal Procedure. Since Clark’s brief was filed, the Texas Court of Criminal Appeals has held that article 37.07 violates the Texas Constitution. Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988) (opinion on reh’g) (en banc). However, the Court of Criminal Appeals held that any error in instructing pursuant to article 37.07 must be subjected to the harmless error analysis to determine whether the case should be reversed. Rose, 752 S.W.2d at 553-55.

As a result, we must review the facts of this case to determine if the court’s errors in admitting the videotape and instructing on parole and good time law were harmless beyond a reasonable doubt. Stated another way, once error is established, we must reverse unless we determine beyond a reasonable doubt that the error made no contribution to the conviction or the punishment. TEX.R.APP.P. 81(b)(2). In this light, we review the indictment, the evidence, the court’s charge, and the arguments of counsel.

Clark was charged in a three-count indictment with the offenses of aggravated sexual assault of a child and indecency with a child, with two prior felony convictions alleged for enhancement. After the evidence was presented, the State elected to proceed to the jury on only one count, which alleged aggravated sexual assault by means of anal intercourse.

A videotape of the victim, a young boy of seven years of age, was introduced through Jacky Paul Smith, an investigator in the Crimes Against Children Unit of the Tarrant County District Attorney’s office. On the videotape the victim stated he was seven years of age, and had spent the night at his cousin’s house in April, 1985. The victim testified he was in bed asleep when Clark awakened him, removed his underwear, and forced him to submit to anal intercourse. The victim also testified he was forced to suck Clark’s penis. The victim demonstrated his testimony with the use of anatomically correct dolls.

After the videotape had been shown to the jury, the victim took the witness stand outside the presence of the jury. In accordance with former article 38.06(2) of the Code of Criminal Procedure, the court examined the victim and determined he was competent to testify.

[956]*956The State then called the victim to the witness stand in the presence of the jury. He testified in general terms that all of his videotape statements were true. He was then asked specific questions about the offense. Specifically, the victim testified he went to his cousin Jo Ann’s house to spend the night and play with her two children. He slept in Clark’s bed, because it was the only bed available. The victim testified he was awakened by appellant, who took off his underwear, and got on top of the victim. He testified that Clark moved up and down on him and as he did, he put his “weiner” in the victim’s bottom. The victim testified that Clark hurt him; he could not call out, however, because Clark held his hand over the victim’s mouth.

The victim identified Clark as the person who assaulted him. He further testified Clark was his cousin, and stated he was certain it was Clark who attacked him.

At the conclusion of the victim’s direct testimony, the prosecutor asked if Clark did “anything else with his weiner to you that night.” The victim replied, “No,” despite his previous testimony on the videotape that he had been forced to suck Clark’s penis.

On cross-examination, the victim testified that a number of other adults other than Clark were at the house that evening. Moreover, the victim also testified that after the attack, he “wash[ed] off” and went to the house next door to spend the rest of the night.

Clark’s lawyer was also allowed to elicit testimony with regard to making the videotape. When the victim was asked what people do when they make movies, he replied, “They practice.” The victim stated he talked with Jacky Smith, the investigator, approximately two minutes before making the movie. He said that Smith “kind of” helped him along with some of the answers he gave on the videotape.

The State also called the victim’s aunt, D.B., who testified she awoke to find the victim at her house on Saturday morning, April 27. She testified this was not uncommon, because the victim and her daughter were the same age and often played together.

However, on this Saturday, the victim was not playful and appeared to be in pain. In a conversation with her daughter, D.B. inquired whether anything was wrong with the victim. This exchange led her to subsequently ask the victim if anyone had messed with him. He replied that “Freddie” had “messed with him,” and had “screwed him in his behind.” D.B. then examined the victim’s “rear end” and observed that it was red, puffed, and swollen. She put ointment on the swollen area and called the victim’s mother to tell her that he needed assistance.

E.C., the victim’s mother, testified that D.B. was her sister and Clark was the victim’s second cousin. She testified that D.B.

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Clark v. State, 781 S.W.2d 954, 1989 Tex. App. LEXIS 3186, 1989 WL 161448 (Tex. Ct. App. 1989).

781 S.W.2d 954 (Clark v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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