Tolbert v. State

743 S.W.2d 631, 1988 Tex. Crim. App. LEXIS 11, 1988 WL 4305

• Court: Court of Criminal Appeals of Texas
• Decided: January 27, 1988
• Docket: 1161-85
• Status: Published

Opinions

OPINION

W.C. DAVIS, Judge.

Appellant was convicted before the trial court for aggravated sexual assault of a child and assessed a term of 40 years confinement in the Texas Department of Corrections. See V.T.C.A., Penal Code, §§ 22.-011(a)(2)(B), 22.021(a)(5) (Vernon 1985). We will affirm the conviction.

On appeal to the First Court of Appeals, appellant argued the trial court erred in admitting over objection a pre-trial videotaped interview of the 11-year-old complainant made pursuant to Art. 38.071, § 2, V.A.C.C.P. Specifically, appellant contended that the statutory provision in question is an unconstitutional deprivation of his right of confrontation under the Sixth Amendment to the United States Constitution and under Art. I, § 10 of the Texas Constitution. The Court of Appeals disagreed, holding that Art. 38.071, § 2, V.A.C. C.P. was not “... prima facie invalid under the United States or Texas Constitution,_” Tolbert v. State, 697 S.W.2d 795 (Tex.App.—Houston [1st Dist.] 1985).

In his petition for discretionary review, appellant now presents three grounds for review, all dealing with the propriety of admitting the videotaped interview into evidence. He argues, in turn, that his right of confrontation was violated during the videotaping procedure, that he was denied effective assistance of counsel during the making of the videotape and finally, that he was denied effective assistance of counsel during the showing of the taped interview.

Recently, in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), a plurality¹ of this Court held the following:

Based on our previous observations and authorities for reasons stated, we find that Art. 38.071, § 2, supra, is both facially and as it was applied to the appellant an unconstitutional deprivation of his right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution. In addition, and independent of the above finding, we further find that Art. 38.071, § 2, supra, is both facially and as it was applied to this appellant an unconstitutional deprivation of his state guaranteed right of confrontation under Art. I, § 10 of the Texas Constitution.²

Following the opinions in Long v. State, supra, we are constrained to find that the trial court erroneously admitted the Art. 38.071, § 2, supra, videotape into evidence at appellant’s trial. Unlike the case in Long v. State, supra, however, the instant cause was tried before the court and not before a jury, so the fact that inadmissible evidence was received does not automatically call for reversal. It is a well-settled rule of general acceptance that in a trial before the court, the presumption is entertained that the court as trier of fact disregarded any inadmissible evidence admitted at trial. See Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985); Keen v. State, 626 S.W.2d 309 (Tex.Cr.App.1981); Komurke v. State, 562 S.W.2d 230 (Tex.Cr.App.1978); Hernandez v. State, 556 S.W.2d 337 (Tex.Cr.App.1977); Larocca v. State, 479 S.W.2d 669 (Tex.Cr.App.1972) and cases cited therein; Milligan v. State, 170 Tex.Cr.R. 584, 343 S.W.2d 455 (1961); Arnold v. State, 161 Tex.Cr.R. 344, 277 S.W.2d 106 (1955), and cases cited therein. See also Flowers v. State, 482 S.W.2d 268 (Tex.Cr.App.1972). Said rule is also in effect at the punishment phase of a criminal trial. Tamminen v. State, 653 S.W.2d 799 (Tex.Cr.App.1983); Kimithi v. State, 546 S.W.2d 323 (Tex.Cr.App.1977); Maden v. State, 542 S.W.2d 189 (Tex.Cr.App.1976).

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; Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978). In Arnold v. State, supra, 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.

See also Montes v. State, 473 S.W.2d 34 (Tex.Cr.App.1971); Milligan v. State, supra.

In Milligan v. State, supra, the appellant argued that the evidence was insufficient to support his DWI conviction because the State failed to prove up the chain of custody of the blood sample introduced into evidence over objection. Overruling that appellant’s contention, we observed:

“He overlooks the fact that this was a trial before the court, a jury being waived, and that there was other evidence besides the blood sample to support the court’s finding of intoxication. In such cases, this Court presumes that the trial court ignored any inadmissible evidence.” (citation omitted).

Milligan, 343 S.W.2d at 457. See also Hattersley v. State, 487 S.W.2d 354 (Tex.Cr.App.1972) [appellate court may assume trial court did not consider inadmissible testimony as to reliability of prosecution witnesses]; Pereida v. State, 491 S.W.2d 668 (Tex.Cr.App.1973) [no reversible error in trial court’s failure to grant appellant’s motion to suppress pistol discovered during search of appellant where presumption entertained that court ignored inadmissible evidence, if any]; Angelle v. State, supra, [conviction affirmed where no showing that trial judge relied on or even considered charges pending against appellant]; Ex Parte LeBlanc, 615 S.W.2d 724 (Tex.Cr.App.1981) [presumption that wife’s testimony improperly admitted was disregarded].

In the case at bar, there is no question that the videotaped interview with the complaining witness was played in the judge’s presence at the beginning of trial. Appellant’s motion to suppress was carried along until a later point in the trial, when the tape was admitted into evidence. However, appellant has failed to show that the judgment was based upon the evidence erroneously admitted, and our own examination of the record does not disclose overt reliance upon that evidence by the trial judge. Thus, after analysis through the first prong of the Arnold, test, the judicial presumption may be further entertained. See Arnold v. State, supra.

Even with the appellant’s failure to sustain his burden of proving reliance or consideration of the inadmissible evidence by the trial court, however, the judicial presumption should not be followed unless “sufficient proper evidence was admitted to sustain the judgment.” Id 277 S.W.2d at 107. See also Ex Parte LeBlanc, supra. Here, three witnesses testified for the prosecution. The child-complainant testified that appellant had put his “ding-a-ling” or penis into her mouth on one occasion in Caldwell,³ after which she became physically ill. According to the child, she was afraid to tell her mother of her father’s actions because he threatened to “whip” her. She first informed her grandmother of the conduct after she and her mother moved to her grandmother’s country residence.

Doris May Tolbert, wife of appellant and mother of the complainant, testified that the Tolbert family moved to Caldwell in 1982 and lived in a “white house” and later a “red house” across the street. It appears that Mrs. Tolbert was unaware of her husband’s activities until March of 1984, when she and the complainant moved in with the grandmother. After being informed, Mrs. Tolbert took the child to a doctor and then to police authorities.

The first witness to testify for the State was the videotape interviewer. Examination of her testimony shows nothing of probative value as to the offense itself, her testimony largely relating to the predicate for admission of the videotape.

We are then left with the testimony of the complainant and her mother. The child’s testimony established that appellant placed his “ding-a-ling” or penis into her mouth while the family was living in the “red house” in Caldwell, on or near the date specified in the indictment. Mrs. Tol-bert testified as to background for the incident, placing the family at certain locations within the particular time frame involved. She also testified as to the complainant’s outcry to grandmother and mother, respectively. Finally, she related to the court her actions in taking the complainant to the doctor and to law enforcement authorities.

The indictment charges that appellant did “intentionally and knowingly cause the penetration of the mouth of (Complainant), a child who was then and there younger than 14 years of age and not the spouse of Oscar Tolbert, Jr., by the penis of the said Oscar Tolbert, Jr.,_”

As applied to the instant case, the State was charged with proving the following elements under §§ 22.011(a)(2)(B) and 22.-021, supra:

(1) Appellant;

(2) intentionally or knowingly;

(3) caused the penetration of the mouth of complainant, a child younger than 14 years of age;

(4) with appellant’s sexual organ.

From the testimony of the child complainant and her mother, we find sufficient proper evidence was admitted to prove the elements of the crime charged and to sustain the judgment. In terms of the test enunciated in Arnold, supra, therefore, (1) in light of the absence of any proof by appellant that the trial court relied upon or considered the videotaped interview with the complainant, and (2) given the evidence properly received as to appellant’s culpable conduct in this matter, we will follow the presumption that the trial judge disregarded any incompetent evidence admitted in the case. See Tamminen v. State, supra; Keen v. State, supra; Komurke v. State, supra; Milligan v. State, supra; Arnold v. State, supra.

Finding no reversible error, the judgments of the Court of Appeals and the trial court are affirmed.

CAMPBELL, J., concurs in the result, but would order that this cause be remanded to the Court of Appeals for a harmless error analysis under Tex.App.Pro. Rule 81(b)(2). CLINTON and DUNCAN, JJ., dissent.

MILLER, Judge,

concurring.

I agree with the majority that there is no reversible error in this cause and that appellant’s conviction should be affirmed. I do not agree, however, with the majority opinion’s interpretation and application of the judicial presumption which is entertained when inadmissible evidence has been improperly admitted in a trial before the court.

The majority opinion correctly states that under certain circumstances we may presume that, in a trial before the court, the trial judge disregards inadmissible evidence. See Tolbert, at 633. This presumption is a part of the rule concerning the harm to the defendant by the admission of improper evidence in a trial before the court.

The majority also correctly states the applicable requirements for review of inadmissible evidence admitted in a trial before the court. This test, enunciated in Arnold v. State, 161 Tex.Cr.R. 344, 277 S.W.2d 106 (1955), has two steps. First, if there is nothing in the record to show that the trial court’s judgment was based upon the inadmissible evidence at trial then it is then presumed that the trial judge disregarded the improperly admitted evidence. Second, assuming the first step is met, the case will be reversed on appeal only if insufficient proper evidence was admitted to sustain the verdict.

I disagree with the majority’s application of this test. The majority opinion states:

“Even with the appellant’s failure to sustain his burden of proving reliance or consideration of the inadmissible evidence by the trial court, however the judicial presumption should not be followed unless ‘sufficient proper evidence was admitted to sustain the judgment.’ ”

At 634. The majority opinion would have us apply this judicial presumption only if sufficient proper evidence was admitted at trial to sustain the verdict. The majority opinion cites Arnold, supra, and Ex parte LeBlanc, 615 S.W.2d 724 (Tex.Cr.App.1981), for support of this statement, but I do not interpret either case to support the majority’s interpretation.

I believe the majority opinion confuses the second prong of the Arnold test. The presumption that the trial court disregards inadmissible evidence is not dependent upon whether there is sufficient proper evidence at trial to sustain the verdict. Rather, the presumption is applied when the defendant fails to show the trial judge relied upon or considered the inadmissible evidence at trial. See Bryan v. State, 406 S.W.2d 210 (Tex.Cr.App.1966), cert. denied 386 U.S. 1023, 87 S.Ct. 1378, 18 L.Ed.2d 461 (1966); LeBlanc, supra; and Arnold, supra.

I also disagree with the majority opinion’s application of the two-prong test to this case. The majority opinion states:

“From the testimony of the child complainant and her mother, we find sufficient proper evidence was admitted to prove the elements of the crime charged and to sustain the judgment. In terms of the test enunciated in Arnold, supra, therefore, (1) in light of the absence of any proof by appellant that the trial court relied upon or considered the videotaped interview with the complainant, and (2) given the evidence properly received as to appellant’s culpable conduct in this matter, we will follow the presumption that the trial judge disregarded any incompetent evidence admitted in the case.”

See at 634-35. I believe the majority opinion has applied the prongs of the Arnold test in the wrong order.

I would apply the Arnold test in the following manner to decide whether there was reversible error in the trial court’s admission of improper evidence at trial. First, there is nothing in the record to indicate the trial judge relied upon the inadmissible videotape at trial. Thus, we presumed the trial judge disregarded the inadmissible evidence at trial. See and cf. Ex parte Stacey, 709 S.W.2d 185 (Tex.Cr.App.1986); Thompson v. State, 641 S.W.2d 920 (Tex.Cr.App.1982); and Schneider v. State, 594 S.W.2d 415 (Tex.Cr.App.1980). Since there was sufficient proper evidence admitted at trial to sustain the trial court’s judgment, the admission of the improper evidence, the videotape, was not reversible error.

I join the majority opinion with these comments.

1 . This writer continues his dissent as to the analysis and ultimate disposition of the issues raised in Long v. State, supra.

2 . Section 2 of the statute was also held to violate the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution and the Due Course of Law provision of Art. I, § 19 of the Texas Constitution.

3 . Both the videotape and an audio tape recorded earlier contained other acts of sexual abuse over a period of years. The earlier recording was admitted for a limited purpose unrelated to the issue at bar, and there is no indication in the record that this "evidence” was considered by the trial court.