Deason v. State

786 S.W.2d 711, 1990 Tex. Crim. App. LEXIS 28, 1990 WL 17458

• Court: Court of Criminal Appeals of Texas
• Decided: February 28, 1990
• Docket: 989-87
• Status: Published

Opinions

OPINION ON APPELLANT’S AND STATE’S PETITIONS FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

The appellant was found guilty of indecency with a child by the trial court and assessed a punishment of five years in the Texas Department of Corrections. V.T. C.A. Penal Code, § 21.11.¹

The First Court of Appeals reversed the appellant’s conviction and remanded the case to the trial court for a new trial in an unpublished opinion. Deason v. State, No. 01-86-00716-CR, 1987 WL 17278 (Tex.App.—Houston [1st] 1987), pet. granted. The court of appeals’ reversal was premised on the admittance of a videotaped interview of the complainant in violation of our holding in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988). We granted both the State’s and appellant’s petitions for discretionary review challenging the disposition of this case by the court of appeals.

The State now contends the Long error was not reversible in that the trial was to the judge, and the videotape was merely cumulative of other evidence presented. The appellant asserts, however, that the court of appeals erred by concluding that the evidence is sufficient to permit a rational trier of fact to find that the appellant touched the genitals of the complainant.

The indictment upon which the appellant was charged read as follows:

did then and there unlawfully with intent to arouse the sexual desire of the Defendant have sexual contact by touching the genitals of D_L_, ... a child under the age of seventeen and not his spouse, [emphasis added]

Initially, we note that the court of appeals’ determination that the videotape was admitted in violation of this Court’s decision in Long, supra, remains undisturbed. We will first address the State’s contention that the error in this instance was not reversible in that the improperly admitted videotape was merely cumulative of other evidence presented and was thus harmless.

I.

The appellant was tried before the court, a jury having been waived. In Tolbert v. State, 743 S.W.2d 631 (Tex.Cr.App.1988), a plurality of this Court held that in a trial before the court there is a presumption that the trial court as trier of fact disregarded any inadmissible evidence admitted at trial. Id., at 633. Accordingly, we note that in a cause tried before the court rather than a jury, the fact that inadmissible evidence was received does not automatically call for a reversal.

As we stated in Tolbert, supra'.

The effect of the aforesaid rule is that appellant carries the burden of proving that the trial court relied upon or even considered the inadmissible evidence in reaching his verdict or determining punishment. Tamminen v. State, supra [653 S.W.2d 799 (Tex.Cr.App.1983) ]; Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978). In Arnold v. State, supra [161 Tex.Cr.R. 344, 277 S.W.2d 106 (1955)], the Court approved the following test to be used to determine the question presented:

‘When a cause is tried before the court and there is nothing to show that the judgment was based upon the inadmissible evidence (such as by findings or conclusions of fact or law) it will be presumed that the trial judge disregarded incompetent evidence admitted at the trial and the judgment will not be reversed on appeal on the ground of the admission of incompetent evidence if sufficient proper evidence was admitted to sustain the judgment. Id. 277 S.W.2d at 107. [emphasis added]

Id.

In other words, even if improperly admitted evidence is considered by the trial court, a reversal of a conviction will not be necessary if other admissible sufficient evidence is admitted to sustain the judgment.

The appellant was the driver of a private school bus which delivered and picked up children at East Houston Elementary School. The mother of D_L_, testified that on May 1, 1985, D_L_was seven years old and attended the second grade at East Houston Elementary School. D_ L_rode a private bus to school which was driven by the appellant. On May 1, 1985, D_L_came directly to her mother after getting home from school and stated that the appellant “is not Christian.” When the mother asked D_L_why she said this, D_L_replied:

On our way to school this morning, he stopped the van. And he led the children off the van to pick berries. I was the only one who remained inside. And he tried ... to touch my peepee ...

The mother further testified that she then asked D_L_, “Did he do anything to you?” D_L_replied:

No, because Alberto didn’t want to pick berries up and got in. And when he noticed that Alberto was on his way to get in the van, he got away and sat down real fast.

The mother thereafter testified that D_ L_ refers to her vagina as her “peepee.” She further explained that Alberto is a cousin and neighbor who also rode the bus.

D_L_testified that she was eight years old at the time of her testimony. During the previous school year she was in the second grade at East Houston Elementary School and rode to school during May, 1985 in a private bus driven by the appellant. One day in May the appellant stopped the bus on the way to school and told the other children on the bus “to go out and pick some berries.” D_ L_ also testified that she suffered a small cut on her leg after she left home for school that morning and she told the appellant about it. He instructed her to go to the back of the bus and lie down.

During her trial testimony D_L_did not describe anything that happened to her after lying down in the back of the bus. She testified that once she laid down, it was only about two minutes until her cousin, Alberto, got back on the bus. Once he reentered the bus, the appellant sat in the driver’s seat and summoned the other children back onto the bus and delivered them to school. D_L_did testify that when she got home from school that day she told her mother that the appellant “had told me to go lie down on the back seat and he pulled down my dress and pushed my panties to the other side and tried to touch it.”

Yolanda Davis, a Houston Police Department Officer assigned to the Juvenile Division, testified that she took a videotaped statement from D_L_on May 3,1985. The videotape, State’s Exhibit 4, was admitted into evidence over the appellant’s objections and was viewed by the trial judge.

The record discloses that D_ L_ spoke in Spanish during the videotaped interview and an interpreter was used to interpret her statements when the trial judge and attorneys viewed the videotape during the trial. At the conclusion of the trial, the trial judge deferred any decision as to the issue of guilt or innocence. The court reporter and interpreter met together after the trial to view the videotape again and prepare a transcript in English. When the case reconvened, this transcript was introduced into evidence for the record by agreement of all parties and the court. This transcript appears in the appellate record.

The transcript of the videotaped interview indicates that D_ L_ gave the following answers on May 3, 1985, to questions by Officer Davis:

Q. Now, why are you here today?

A. Because Mr. Deason lifted my dress and he pulled my panty to one side and he was going to touch me.

Q. He was going to touch you? Where was he going to touch you?

A. On my peepee.

* * * * ⅜ *

Q. On Springdale? And what did he do?

A. He picked up my dress and then he pulled my panty to one side and he was going to touch my peepee.

The transcript further discloses the following questions:

Q. How come nobody saw? Who was on the bus?

A. No one. Only Mr. Deason. He told all the children to get off to pick up berries. And all the children got off and then he told me to go to the back. To the back of the bus, and then he told me to go to the rear of the bus. He told me to lie down and he picked up my dress and then he pulled my panty to one side. Then he was going to touch my peepee.

Q. Okay, nobody saw what he did? What Mr. Deason did? Nobody saw it?

A. No.

Q. And then what happened after that?

A. Nothing. Then Mr. Deason told the children to get back on the bus. Except that there was one little boy that came back on the bus. So then, Mr. Deason stopped doing that. And then he went back to driving.

The State argues that the record affirmatively indicates that the trial judge did not consider the videotape testimony. Prior to making a finding on guilt-innocence, the trial judge was urged to review the English translated transcript of the videotape interview which had been conducted in Spanish. Defense counsel continually maintained that any of the appellant’s efforts to pull the complainant’s panties aside did not involve “a touching.” The following then transpired:

THE COURT: But back to, there is not an Exhibit No. 1?

MR. COLLINS [Defense counsel]: Yes, sir. That’s Defendant’s Exhibit No. 1.

THE COURT: All right. This is the ranscript [sic] of the direct testimony during the trial itself.

MR. COLLINS: Yes, sir.

THE COURT: It’s admissible prior to a finding of guilt.

MR. COLLINS: Then I would conclude, Your Honor, and ask the Court to recall the testimony, previous motions for instructed verdict at this time on the purpose of guilt or innocence. We would at this time ask the Court to enter a finding of not guilty.

MR. COFFEE [Prosecutor]: I believe the State rested back on the 12th of June 1986, Judge, and we would reoffer all the evidence and the documents that were admitted into evidence before the. court on the 23rd of June, 1986 as well as arguments. They were made by Mr. Wisneer.

And I particularly call the Court’s attention to the case, Cissick [sic] vs. State, 874 [sic] SW2d 558, and urge the court to find the defendant guilty of the offenses because I think the evidence shows—

THE COURT: Let me see that again. I remember seeing it at that time but—

MR. COFFEE: The State would urge the Court to find the defendant guilty of the offense of indecency with a child because it shows beyond a reasonable doubt the defendant committed the offenses for which he has been charged with.

THE COURT: Okay.

MR. COLLINS: Judge, you might recall the argument I made in regard to that case [Resnick v. State, 574 S.W.2d 558 (Tex.Cr.App.1978) ].

THE COURT: I know; [sic] but in here if this is the only evidence that’s in this transcript of her testimony, she never says he touched her.

MR. COFFEE: But we—

THE COURT: He moved her panties to one side, the side. Is that what it’s based upon?

MR. COFFEE: I believe that’s a transcript of a taperecording [sic] that was done in Spanish. I don’t believe that this is testimony that was produced in Court at the time of trial.

MR. COLLINS: Your Honor, I would—

THE COURT: It was testimony that I heard, but I couldn’t understand the videotape because it was in Spanish. You know we went down, came down here before they demolished this floor or maybe it’s in the second down there: it was a county court video back here.

MR. COFFEE: Yes, sir.

THE COURT: But we observed in there and all of the testimony in here.

MR. COLLINS: Judge, the testimony that’s contained in the Defendant’s Exhibit No. 1 is the same testimony as interpreted by Linda Hernandez, the same interpreter in the video room.

THE COURT: Yes. I believe what we are at was in our evidence, in order for him to move her panties, that’s the touching.

MR. COFFEE: That’s the area and that’s where the touching comes in.

We disagree with the State’s assertion that this colloquy shows that the trial judge did not consider the videotape testimony. If anything it indicates that the trial judge did consider this evidence. However, absent findings of fact and conclusions of law, the appellant has failed to carry his burden of proving that the trial court relied upon or even considered the inadmissible evidence in reaching his verdict. Nonetheless, before employing the presumption that the trial judge disregards incompetent evidence, we must first determine whether other sufficient proper evidence was admitted to sustain the judgment.

After excluding the transcript of the video proceedings and reviewing the remaining evidence, there was clearly insufficient proper evidence to maintain the presumption that the trial court disregarded the inadmissible evidence.

The State asserts that evidence that D_L_told her mother that the appellant “pushed my panties to the other side” constitutes sufficient proper evidence that the appellant touched the genitals of the complainant as charged in the indictment. The State relies on an opinion by a divided panel of this Court in Resnick v. State, 574 S.W.2d 558 (Tex.Cr.App.1978).

In Resnick, supra, the defendant challenged his conviction for public lewdness, arguing that the evidence failed to show a touching within the meaning of that word as used in the statutory definition of sexual contact.² The evidence in that case showed that the defendant and an undercover officer entered a coin-operated movie booth at an arcade. As the officer and defendant watched the movie, the appellant placed his hand on that portion of the officer’s trousers which covered his genitals. The officer’s clothing remained on at all times. Consequently, the defendant’s hand did not make flesh-to-flesh contact with the officer’s genitals.

This Court rejected the defendant’s contention that the evidence failed to establish a touching. In so doing this Court wrote:

... Webster’s New Twentieth Century Dictionary of the English Language, Unabridged, Second Edition (1978) gives the following as its first definition of ‘touch’:

‘1. to put the hand, finger, or other part of the body on, so as to feel; to perceive by the sense of feeling.’

This definition makes it quite plain that the essence of the act of touching is to perceive by the sense of feeling. It is a matter of the commonest knowledge that the interposition of a layer of fabric between a person’s hand and an object upon which the hand is placed will not prevent that person from feeling the object thus concealed.

Id., at 559-560.

Resnick, supra, clearly dismisses the notion that “a touching” requires proof of flesh-to-flesh contact. The facts in that case, however, showed that the defendant “placed his hand on that portion of the officer’s trousers which covered his genitals.” Id., at 559. On the contrary, the properly admitted evidence in this case only indicates that the appellant pushed the complainant’s panties to the side. Without the videotape evidence there is absolutely nothing in the record to show that the appellant touched the complainant’s vagina.³

Thus, there is no evidence that the complainant felt the appellant touch her genitals. In fact, the evidence is replete with evidence to the contrary. Both the complainant and the mother’s recall of the complainant’s outcry indicate that before touching her genitals, the appellant was interrupted.

The record simply does not contain sufficient proper evidence, absent the videotape testimony, with which to maintain the presumption discussed in Tolbert, supra.

Having determined that the trial court erred in admitting the videotape testimony, we must now determine if the introduction of such evidence was harmful to the appellant under Rule 81(b)(2) Tex.R.App.Pro. Mallory v. State, 752 S.W.2d 566 (Tex.Cr.App.1988).

The appellant did not give any type of confession. Thus, as noted, the only evidence of actual touching is contained in the videotape. Obviously, under this state of the facts, we cannot conclude beyond a reasonable doubt that introduction of the child’s videotape testimony made no contribution to the conviction. Rule 81(b)(2), supra.

II.

Next, the appellant contends that the court of appeals erred by concluding that the evidence is sufficient to permit a rational trier of fact to find that the appellant touched the genitals of the complainant.

The sufficiency of the evidence must be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Moreno v. State, 755 S.W.2d 866 (Tex.Cr.App.1988). Moreover, in determining the sufficiency of the evidence, the reviewing court must consider all of the evidence, whether properly or improperly admitted. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); Beltran v. State, 728 S.W.2d 382, 289 (Tex.Cr.App.1987); Dunn v. State, 721 S.W.2d 325, 327 (Tex.Cr.App.1986). Thus, the improperly admitted videotape must be reviewed in determining the sufficiency of the evidence in this case.

The court of appeals found, after reviewing the videotape, that “in ... pulling the panty to the side, ... the back of the appellant’s fingers unavoidably touched the complainant’s exterior genitalia.” The court of appeals further found:

As finder of fact, the trial judge was entitled to consider the contrast between the child complainant’s manual demonstration and her verbal description of the appellant’s acts, and to conclude from the evidence before him that [the] appellant did touch the complainant’s genitals, as alleged in the indictment. Deason v. State, No. 01-86-00716-CR, p. 4 of slip opinion.

After our previous discussion of the State’s point of error, it is apparent that if the evidence is to be deemed sufficient such a determination will rest upon the contents of the videotaped interview. In this regard, the audio portion of the videotape only reiterates the complainant’s testimony on direct examination. That is, that the appellant “was going to touch my pee-pee,” but did not actually do so. The sufficiency of the evidence in this case then is solely dependent upon the complainant’s videotaped demonstration of what the appellant actually did.

The appellant disagrees with the court of appeals’ contention that in moving the panties to one side, the appellant “unavoidably touched the complainant’s exterior genitalia.” The appellant asserts that, at best, the child’s videotaped demonstration is ambiguous.

Although the question is close, after reviewing the videotape, we agree with the court of appeals. In other words, the demonstration by the complainant serves as a sufficient basis for the fact finder’s determination that the appellant had touched the complainant’s genitals when viewed in a light most favorable to the verdict. Consequently, the appellant’s point of error is overruled.

The judgment of the court of appeals is affirmed and the cause is therefore remanded to the trial court for a new trial.

WHITE, J., concurs in result.

1 . V.T.C.A. Penal Code, § 21.11 reads as follows:

(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:

(1) engages in sexual contact with the child; or

(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.

2 . V.T.C.A. Penal Code, § 21.01(2) reads:

(2) ‘Sexual contact’ means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

3 . In reviewing the appellant’s sufficiency point of error, the court of appeals noted:

While the complainant’s verbal testimony was that the appellant 'tried to touch’ or ‘was going to touch’ her genitals, the videotape discloses more. The complainant, as shown on the videotape, used both her fingers and the male and female dolls ... to demonstrate how the appellant lifted her dress, placed the fingers of his right hand under the elastic along the left leg of her panties, and pulled the panties from left to right across her crotch area.