In re J.A.W.

976 S.W.2d 260, 1998 Tex. App. LEXIS 6037
CourtCourt of Appeals of Texas
DecidedJune 30, 1998
DocketNo. 04-97-00322-CV
StatusPublished
Cited by20 cases

This text of 976 S.W.2d 260 (In re J.A.W.) 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
In re J.A.W., 976 S.W.2d 260, 1998 Tex. App. LEXIS 6037 (Tex. Ct. App. 1998).

Opinion

OPINION

ANGELINI, Justice.

A jury found that J.A.W., a fourteen year-old juvenile, engaged in delinquent conduct by committing two counts of aggravated sexual assault. See Tex. Pen.Code ANN. § 22.021 (Vernon Supp.1998). Following a disposition hearing, the court entered a determinate sentence of thirty years. In his first issue presented, J.A.W. contends that the court erred in granting the State’s motion to use leading questions during direct examination of F.C., the sixteen year-old complainant. The second issue asserts that the court erred in denying a request for an instruction on the lesser included offense of sexual assault. J.A.W. argues in his third issue that the court erred in reviewing his juvenile detention file during ■ disposition. We affirm the judgment of the trial court

[262]*262Factual Background

J.A.W., F.C., and two other juveniles left school and began walking through some woods. J.A.W. punched F.C. in the face, knocking him to the ground. The blow made F.C. briefly lose consciousness. When he regained consciousness, J.A.W. was hovering over him and preparing to insert his penis in F.C.’s mouth. According to F.C., J.A.W. said “suck my penis” and threatened to blow up his house if he told anyone. J.A.W. proceeded to put his penis in F.C.’s mouth. F.C. was crying and saying no. Then, J.A.W. forced F.C. to stand up and remove his pants. He then penetrated F.C.’s anus. The two witnesses testified that they told J.A.W. to stop but he threatened to beat them up. Their testimony corroborated F.C.’s testimony.

Leading Questions

In his first issue presented, J.A.W. argues that the court erred in permitting leading questions during the examination of F.C. During the direct examination of F.C., defense counsel objected on the basis that the prosecutor was asking leading questions. Many of these objections were sustained. In the middle of F.C.’s testimony, the State called his mother as a witness to demonstrate the need for using leading questions ■with F.C. She testified that F.C. was enrolled in special education classes and had learning and emotional disabilities. She also states he suffered from attention deficit disorder and was apt to answer questions with short answers and without thinking. Further, according to F.C.’s mother, F.C. has a stuttering problem and becomes nervous and embarrassed when discussing the sexual assault. His mother also testified that he functioned at the fourth grade level. At this point, the court, upon the State’s motion, allowed the prosecutor to ask F.C. leading questions.

The Texas Rules of Criminal Evidence apply during a juvenile adjudication hearing. Tex. Fam.Code Ann. § 51.17(c) (Vernon 1996).1 Rule 610(e) states that “leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” Tex.R.CRIM. Evid. 610(c). The decision whether to allow a witness to answer leading questions is within the discretion of the trial court. Hernandez v. State, 643 S.W.2d 397, 400 (Tex.Crim.App.1982) (en banc), cert. denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983); Trevino v. State, 783 S.W.2d 731, 733 (Tex.App.—San Antonio 1989, no writ).

J.A.W. argues that F.C., who is sixteen years old, is not a child of tender years. However, a child of tender years is not the only type of witness that a court might permit to be asked leading questions. In Trevino, a fifteen year old boy, who attended special education classes and had learning difficulties was permitted to answer leading questions. Trevino, 783 S.W.2d at 733. This court found that the trial court did not abuse its discretion in allowing the use of leading questions for this witness. Further, this court found that because the same testimony elicited by leading questions was also obtained by cross-examination, the appellant was not prejudiced as a result of the leading questions. Id.

Because F.C. attends special education classes and has learning difficulties, the court had discretion to allow leading questions in order to develop his testimony. Further, the details of the sexual assault were not elicited by leading questions. Leading questions were used on re-direct to clear up issues brought up during cross-examination. The two witnesses also testified and corroborated much of F.C’s testimony. Thus, we also find that J.A.W. was not prejudiced as a result of the use of leading questions. We overrule the first issue presented.

Lesser Included Offense

In his second issue, J.A.W. argues that the court abused its discretion by denying J.A.W.’s request for the lesser included [263]*263instruction of sexual assault of a child. In order to be entitled to a charge on a lesser included offense, the defendant must show (1) that the lesser offense is included within the proof of the offense charged and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993).

In this case, the State alleged in its petition that J.A.W. intentionally and knowingly caused the penetration of the anus of a child and caused the penetration of the mouth of a child by a sexual organ. Tex. Pen.Code AnN. § 22.021(a)(l)(B)(i),(ii) (Vernon Supp.1998). Further, the State alleged that the sexual assault was aggravated “by acts or words which places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person.” Id. § 22.021(2)(A)(ii). Sexual assault of a child occurs when an actor intentionally and knowingly causes the penetration of the anus of a child or causes the penetration of the mouth of a child by the sexual organ of the actor. Id. § 22.011(a)(2)(A), (B). The State concedes that sexual assault is a lesser included offense of aggravated sexual assault. The difference between aggravated sexual assault and sexual assault relates to what caused the victim to submit to the assailant’s demands. See Love v. State, 730 S.W.2d 385, 399 (Tex.App. — Fort Worth 1987, no writ).

J.A.W. urges that the alleged aggravating factors were threats made of serious bodily injury. J.A.W. alleges that the evidence is disputed as to whether the threats were communicated at the time of the assault or at a later time to discourage F.C. from reporting the incident. F.C. testified that at the time of the assault J.A.W. threatened to blow up his house if he told anyone. One of the witnesses testified that J.A.W. told F.C. after the assault that he would kill him if he told anyone. While this evidence tends to show a dispute about whether threats were made at the time of the assault, no evidence disputes the testimony that J.A.W. punched F.C. in the face, knocking him down to the ground. F.C. testified that during the assault he was afraid that J.A.W. would kill him or hurt him. He cried and pleaded for him to stop the assault. Witnesses testified that J.A.W. was a member of a gang and had assaulted other juveniles.

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Bluebook (online)
976 S.W.2d 260, 1998 Tex. App. LEXIS 6037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jaw-texapp-1998.