Escamilla v. State

334 S.W.3d 263, 2010 WL 3993971
CourtCourt of Appeals of Texas
DecidedMarch 2, 2011
Docket04-09-00530-CR
StatusPublished
Cited by17 cases

This text of 334 S.W.3d 263 (Escamilla v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Escamilla v. State, 334 S.W.3d 263, 2010 WL 3993971 (Tex. Ct. App. 2011).

Opinions

OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

A jury found appellant, Pedro A. Escam-illa, guilty on one count of aggravated sexual assault of his two-year-old daughter (“D.A.E.”) and assessed punishment at life in prison. We affirm.

COMPETENCY OF CHILD WITNESS

In his second issue, appellant asserts . the trial court erred by admitting into evidence D.A.E.’s testimony because she was not competent to testify- due to her age and her insufficient intellect. In his first issue, appellant asserts the trial court erred by admitting into evidence the outcry testimony given by D.A.E.’s mother because D.A.E. was not competent to testify and, therefore, not “available” to testify.

At trial, D.A.E. testified her father, the appellant, touched her with his finger. D.A.E. indicated where he touched her by pointing to the vaginal and anal area of a doll. Appellant asserts D.A.E. was not competent to give this testimony for the following reasons: (1) D.A.E.’s mother admitted that on one occasion someone at the Children’s Advocacy Center was unable to interview D.A.E. because she was not verbal enough; (2) D.A.E.’s testimony was inconsistent; (3) D.A.E. did not understand the difference between the truth and a lie; and (4) D.A.E. lacked the ability to observe, recollect, and reliably narrate events. Appellant also contends that D.A.E.’s age, coupled with her mental illness, preponderates against a finding that she was competent to testify. We review a trial court’s determination that a child witness is competent to testify for an abuse of discretion. Kirchner v. State, 739 S.W.2d 85, 88 (Tex.App.-San Antonio 1987, no pet.). On appeal, we must review the entire testimony of the child witness to determine if the trial court abused its discretion. Id.

There is no age below which a child is automatically deemed incompetent to testify. De Los Santos v. State, 219 S.W.3d 71, 80 (Tex.App.-San Antonio 2006, no pet.) “Children -... -who, after being [266]*266examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated” “shall be incompetent to testify in any proceeding subject to these rules....” Tex.R. Evid. 601(a)(2). In making a determination of competency to testify a trial court considers (1) the competence of the child to observe intelligently the events in question at the time of the occurrence, (2) the child’s capacity to recollect the events, and (3) the child’s capacity to narrate the facts. Watson v. State, 596 S.W.2d 867, 870 (Tex.Crim.App.1980); Hollinger v. State, 911 S.W.2d 35, 38-39 (Tex.App.-Tyler 1995, pet. ref'd). The third element requires the witness to be able to understand the questions that are asked, to be able to frame intelligent answers to those questions, and to be able to understand the moral responsibility to tell the truth. Watson, 596 S.W.2d at 870; De Los Santos, 219 S.W.3d at 80. Confusing and inconsistent responses from a child are not reasons to determine she is incompetent to testify; rather, they speak to the credibility of her testimony. In re A.W., 147 S.W.3d 632, 635 (Tex.App.-San Antonio 2004, no pet.). The trial court’s role is to make the initial determination of competency, not to assess the credibility or weight to be given the testimony. Id.

At the time of trial, one year after her outcry, D.A.E. was three years and nine months old. At the competency hearing, she knew her age and the first and last names of her parents and she could identify colors. When the prosecutor pointed to a blue object and said “If I say this color is black....,” D.A.E. interrupted and said the object was blue. When the prosecutor asked if she [the prosecutor] was wrong about the color, D.A.E. responded “yes.” When asked what happens to her when she misbehaves, D.A.E. agreed that her mother “gets after” her. At trial, D.A.E. identified her dog as a Chihuahua. She also knew the first names of her two brothers. She identified the location of a vagina and the anal area by pointing to her doll. ■ She testified without hesitation that her father touched her with his hand while her mother was at the flea market. When shown a picture of a house, she identified the house as “where we used to live with my father.” D.A.E. answered “yes,” when asked if she was afraid of her father. She knew she was going to school in September and she would get a backpack. When asked on cross-examination if she remembered telling someone that her father “poked [her] vagina with a stick,” she answered “yes.” However, she explained “he actually poked me with his hand. With his finger.” ■

The sexual assault nurse examiner who conducted the physical examination of D.A.E. characterized D.A.E. as “shy” and as having “poor eye contact.” Dr. Gregorio Pina III, a licensed psychologist with the Child’s Advocacy Center in Laredo, Texas, testified he first saw D.A.E. when she was two years and ten months old. At the time, D.A.E. was beginning to take medication for attention deficit hyperactivity disorder and there is a history of mental illness in the family. Dr. Pina described D.A.E. as a “serious child,” “open,” “[a]ppears angry when stressed at different points of the interview,” “explored the room easily,” “expressive,” “talks a lot,” “can be demanding,” “appeared self-assured,” and had “good hygiene and made good eye contact.” He said he and D.A.E. communicated well and she corrected him if he did not get something right. According to Dr. Pina, D.A.E.’s words and moods were consistent with each other and she had a good range of emotions. D.A.E. has no delusions in that she did not see, hear, smell, or touch non-existent things, and he did not think she had any problems with her memory functions. Dr. Pina stated, [267]*267“In fact, for her age, she had a very, very good memory in all the areas that I took a look at.” As to his estimation of her intelligence, Dr. Pina determined D.A.E.’s was “appropriate for a child from her culture, and her intellectual levels would be average.” He considered her coherent and logical. Dr. Pina found D.A.E.’s symptoms consistent with other children who have been sexually abused, and that her story was consistent within the same interview and across different interviews with different interviewers.

We give great deference to the trial judge who was there to personally evaluate the child and her responses; accordingly, after reviewing the record, we are not persuaded the trial court abused its discretion in permitting D.A.E. to testify.

As to appellant’s complaint regarding allowing D.A.E.’s mother to testify about D.A.E.’s outcry, D.A.E.’s mother testified she called home from the flea market and D.A.E. said “her butt hurt.” The mother then spoke to appellant who said D.A.E. had soiled her diaper and he would bring D.A.E. to her for a diaper change. D.A.E.’s mother said this was the first timé appellant brought D.A.E. to her for a diaper change and appellant himself usually changed the diapers. As the mother was changing D.A.E.’s diaper, D.A.E. told her mother “not to rub her real hard, because it would hurt her.” Once at home, when the mother bathed D.A.E., D.A.E. again said her bottom hurt.

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334 S.W.3d 263, 2010 WL 3993971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/escamilla-v-state-texapp-2011.