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~ cause No.`12~93-00042¢cn b . y " . _' IN THE TWELFTH COURT OF APPEALSl TYLER, TEXAS
JEFFRE¥ WARD, APPELLANT l ' \\\
“~~~.
vs g n d c:' '_ v »~~.
THE STATEFQF TEXAS, APPELLEE
l
APPEALED FROM THE 2ND JUDICIAL DISTRICT COURT OF CHEROKEE COUNTY TEXAS, CAUSE NUMBER 11965? THE HONORABLE BASCQM BENTLEY, III. JUDGE PRESIDING _ ~
':~"§.
sTATE's BRIEF
4..
* g - Tn§.sTATEfOE TExAs . 1 .f' JAMES H.'GROMWELL ’ "f£§¢* DISTRICT ATTORNEY ' anRoKEE'couNT , TExAs BY: ELMERSC._BECKWORTH, JR. STATE oF TEXAS BAR No.02020700
ATTORNEYS Fog,THq sTATE
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.* ‘ § b TABLE or ABREVIATIONS pace sF-sTATgMENT oF FAcT-GuILT¥/INNocENcE 2_15 sx-sTATB'zXHIoIT 10 st-sTATEMENT 0F FACTs-wRIT HEARING. 12
LIST OF AUTHORITIES
California v. Green, 399 U. W. 149 (1970)
§§£§3 v. §;§§g, 1 s.w.zd 543 (Tex.cr.App..1928) McMurreX v. §§§§g, 168 S.W.Zd 858 (Tex.Cr.App. 1943) §§X§£ v. §§3;§, 837 s.w.2d 637 (T@x.cr.App, 1992) Rule 804 (b)(l)
Rule 804 (a)(l) Coffin v. State, 850 S.W.Zd 608 (Tex.App.-El PaSO 1993)
Q§Xi§ v. §§§E§, 773 S.W.2d 592 (Tex.App.-Eastland 1989) Pucnam v. §§ggg, 582 s.w.2d (T@x.cr.App. 1979) l Rule 804 (a)(Z)
g£§! v. §§3§§, 743 s.w.zd 207 (Tex.App. 1987)
Q£§Z v. §§3§§; 825 s.w.zd 537 (T@x.App. El Paso 1992)
Voight v; State, 662 S.W.Zd 42 (Tex.App. 13 Dist. Corpus CHristi 1983) `
ll 12
pAGE 11 11 11
ll
1 TABLE oF coNTENTS
PAGE LIST oF ABREVIATIONS i LIST oF AuTHoRITIES ii STATEMENT oF THE cAsE 1 sTATEMENT 0F FACTS z ARGUMENTS AND AUTHQRITIES 6 sTATE'S RESPONSE To APPELLANT'$ POINT oF ERROR NUMBER oNE
PRAYER 15 AFFIDAVIT l16
CERTIFICATE oF SERVICE`
TO THE HONORABLE JUDGES OF,SAID COURT:
COMES NOW, the State of Texas, submitting its Brief in the above
entitled and numbered cause. STATEMENT OF THE CASE Jeffrey Lynn Ward was arrested for Aggravated Sexual Assault of a
child and possession of child pornography on or about July 15, 1992,-
\$`On or about July 22{ 1992 he was denied bond under Article 44.04 of the Q:) `=_-z _
0 123 /S
\
13 -, (D§YTexas Code of Criminal Procedure by the Honorable John Robert Adamson.
\S:l July, 19924 a three count indictment was returned by the Cherokee ¢\54> ~
§§Lo&dounty Grand Jury alleging two counts of Aggravated Sexual Assault of a
\@QW@
Child and one count of Promotion of Child Pornography. On November 16, 1992, a jury was selected and trial commenced. On November 19, 1992, Appellant was found guilty of two counts of Aggravated Sexual Assault of a Child and one count of the lesser included offense of Possession of Child Pornography. On November 20, 1992, Appellant was sentenced to 99 years confinement in the Texas 0epartment- of Criminal Justice, Institutional Division and a fine of $10,000.00 for Count I Aggravated Sexual Assault of a Child, 99 years confinement in the Texas Department of Crlmihal Justice, Institutional Division and a fine of $10,000.00 for Count II, Aggravated Sexual Assault of a Child and ten (10) years confinement in the Texas Department of Criminal Justice, Institutional Division and a fine of 310,000.00 for Count III Possession of Child
Pornography. Appellant filed his Notice of Appeal December 22, 1992
and his appeal was reinstated 01993. The State timely files
its Brief vherein. ' ' /QU§ 95 ,7
STATEMEN'I' OF FACTS
Dr Kurt Nielson testified on July 15, 1992 he examined Jennifer' Stevens; age eight, and Tabitha Brown, age seven, in the emergency room of Nan Travis Hospital in Jacksonville, Texas (SF 33#54) Dr. Nielson
testified that his examination consisted of a physical examination and
patient history. (SF 34~37, 37-43). He further testified that Jennifer Stevens had bruises in her vaginal and rectal area, her rectum was dialated and there were bruises between her rectum and vagina (SF 34-36). Dr. Nielson testified that Tabitha Brown had a dialated rectum
with, bruising around her rectum, redness in the lower part of her
vagina towards her rectum, and bruising with some swelling around her
lower vaginal area. (SF 37-38). Dr. Nielson also listed the possible
causes of each condition he found. (SF 40-43). Finally Dr. Nielson testified that:"In Tabitha Brown I would have to say that was extremely likely it was sex abuse or sexual assault. In Jennifer it was highly suspicious for sexual assault or possibly a very large bowel movement." Tabitha Brown testified that she and Jennifer were at Jeff Ward's house behind a church and they fell asleep and she remembered waking up (SF 61-62). When asked what happened she said "I don't remember that questixnv'. Then she was asked if "anyone did anything to her they
shouldn't," she said 'yes'. Then she was asked who, she pointed to the
defendant. Then she would not answer what he did (SF 66). Then she
was asked other questions. (SF 66-68). Again she was asked if she could tell these people what Jeff did to her, she refused to answer (SF 68). When the Court asked her if she would answer the question, she
did not want to, she shook her head no. (SF68). Then with the Court's
permission_the State asked the following leading question, " Tabitha did Jeff touch you," answer "yes",l "where did he touch you," and Tabitha said "I don't want to answer that question." The State passed
the witness subject to recall and the Defendant waived cross examination. (SF 71-73).
Jennifer Stevens testified Jeff had done something to both Tabitha and her. (SF 76-77). Jennifer further testified that Jeff had touched her with his finger on the inside of her "butt" and identified the Appellant. (SF 78-79). On cross-examination, Jennifer again testified that Appellant had put his finger inside her butt. (SF 86-87). She also testified that Appellant did the same thing to Tabitha. (SF 79).
Deputy Geneva Miller testified to her investigation, securing a search warrant and the execution of the search warrant and finding~ child pornography in the filing cabinet in Appellantis bedroom and the lpredicate for the physical evidence introduced concerning Count II, child pornography. (SF 94~218). d
Johnny Rodriquez testified concerning some admission made to him
while in the Cherokee County Jail by Jeff Ward. (SF 221-276).
Phillip Goodwin testified to Mr. Rodriquez coming forward as a *witness and the locations of the respective cells of Appellant and Johnny Rodrique2 and the damaged aspects of the jail relating lto possible communication between Ward and Rodriquez. (SF 277-282) (SF 528-533).
Tabitha Brown was recalled by the State. (SF 292). When asked what Jeff/did to her, she refused to answer. (SF 293-295). The Court_ asked Tabitha to answer and she made no response. The State requested the Court to instruct her to answer and she did not. (SF 295-296). The State moved to introduce her testimony from the bond hearing. (SF 290);;3;,hfter objection from Appellant and argument `of counsel, the §gg£§ granted the Stét§;s Motion_but recessed the jury to allow counsel* time to do moreVresearch. d n
The ,next day, November 18, 1992 the Court heard further arguments. (SF 323-334). Initially, counsel for Appellant objected l and presented arguments against introduction of said transcript. (SFf 323-330). Then counsel for Appellant stated that he had no objection to the entire document if certain parts were excised. (SF 333). After lthe document was redacted, the State offered the same into evidence. (SF 337). Appellant, when asked by the Court if he had objection stated that he had `no objection, to the entire transcript being admitted."(sF337). '
n The_ defendant called Linda Gail Bingham, mother of Jennifer
Stevens, who testified about the events prior to the molestation,
_the outcry by the victim, and the examination at the hospital_. (SF` 411-448). Ms. Bingham also testified that Jennifer Stevens was a truthful child.' (SF 447).
.Tammy Brown testified, after being called by the defense, that vshe was' Tabitha Brown's mother. (SF 451) She testified to her whereabouts on the night of the offenses against Jennifer and Tabitha. (SF 455~ 459), 461- 473). Mrs. Brown also testified that she had looked through a filing ,cabinet in Jeff's bedroom and had seen no child pornography in approximately June of 1992,
Curtis Durrett testified impeaching Linda Bingham concerning her asking appellant for money.
David Harper testified as to his memory of the night in question, including the fact that the door to the room in which the children was .16cated was closed. (sF 490-503, 495).
Appellant testified and denied the offense.
Jennifer Stevens was recalled by Appellant and impeached by her prior testimony. (SF 544-547). On cross-examination, she was asked what she meant when she said Appellant played with her butt. _She testified again "he stuck his finger in my butt."
Sandra Hamilton testified that Tammy Brown previously had said Jeff had'not molested her daughter. (SF 559-560).
Geneva Miller and Darlene Edwards testified that David Harper's reputation for truth and veracity was bad. (SF 550, 556).
Sheriff Jimmy Dickson testified that Jeff Ward's and Sandra
Hamilton's reputation for truth and veracity were bad.
ARGUMENT AND AUTHORITIES
STATE'S RESPONSE TO APFELLANT'S POINT OF ERROR NUMBER ONE:
Appellant contends that the admission of the edited transcript was alternatively a 'violation of the United States Constitution, the Texas Constitution} or Rule 804 of the Texas rules of Criminal Evidence.
Appellant's major contention seems to be that the bond hearing
\ . under Article 44.04 of the Texas Code of Criminal Procedure was for a
limited purpose and does not involve a similiar motive to develop the 'testimony as required by Rule 804(b1(l) of the Texas Rules of Criminal- Evidence. Appellant further arguesfthe limited cross examination at a bond hearing under `Article 44.04 of the Texas Code of Criminal Procedure should be custinguished from cases in a similiar situation that `involve‘_prior testimony from a° preliminary hearing such as an examining trial. _
Finally, Appellant subjectively suggests that4 Tabitha Brown's testimony was untrue at the bond hearing, but was true in a Writ of Habias Corpus hearing, and somehow the switch in her story is connected to the admission of the transcript from the Article 44.04 hearing.
The State contends,that the transcript of said bond hearing was properly admitted into evidence, or alternatively, that there was no ,objection to its admission, or any error was waived by Appellant by failing to object when the transcript was offered into evidence before
`\
the trier of fact.
United States Constitutional law' has held that if a witness becomes unavailable at trial because of death, absence and inability to locate after exercisingf diligence, lack of memory, exemption by
privilege, or refusal to "testify, his or her prior testimony is
n
admissible if the witness was subject to cross-examination, the motive to develop said testimony by direct “or `cross was similiar, and the party complaining had an opportunity to cross examine. The case cited by' Appellant, jcalifornia \r. §rg§g, 399 U.S. 149 (1970), establishes this criteria for admissibility. In §:ggnj the united'States Supreme vCourt gives a history of the case-law supporting the proposition that admitting the prior testimony of an unavailable witness does not
violate the Confrontation Clause. Green, supra. The Court held:
"As in the case where the witness is physically unproducible, the State here has made every effort»to introduce its evidence through the live testimonytof the witness; it produced Porter at trial, swore him as a witness, and tendered him for cross-examination.-Whether Porter then testified in a manner consistent or inconsistent with his preliminary hearing testimony, claimed a loss of memory, claimed his privilege against compulsory/self-incrimination or simply refused to answer, nothing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case against Green;"
Years ago, Texas Courts heldzthat use of prior testimony subject
? , to cross-examination was admissible and. not violative of the Texas
Constitution. Serna v. State;; l 'S;WlZd 543, (Tex. Cr. App. 1928)3 \~ ,2 .?. ' , _1 McMurre! va State, 168 S.W.2d 858:(F6x1Cr. App. 19?3)1 InsMcHurreY, a
/
doctor's testimony from a `prior rsanity trial' was admitted at trial after the doctor digd.¢-McMurrey”at 861. In\Serna, a deposition was read into evidence after showing that the \vitness was in av Federal
peniteniary in Kansas. Serna at 545. Therefore, there is no merit
`to Appellant's contention that the use of prior testimony subject to cross examination with a similar motive is contrary to provisions of the Texas Constitution.
Since, the adoption of ,the Texas Rules of -Criminal Evidenc§, Texas Courts havejinte;preted Rule 80}(bj(1) to mean what it says it means; Jn'§£yag v: §t§tg, 811 S.W.2d_63] (Tex¢Cr.App. 1932), the Texas Court of Criminal Appeals held.that a defendant who testified at his first trial that, and.invoked his privilege against self incrimination
(tz;sieȢ=v / , at` his second trial had become unavailable for purposes of Rule
v 804(a)(1) and the transcript was admissible under Rule 804 (b)(l) The prior testimony of a deceased doctpr in a certification hearing for a
../
Juvenile was admissible under 8941§)§§) and 804(b)(l) in the actual
trial' after certification. .'cofrin_\v. 359 850 s.w.zd 608 (Tex. App.~El Paso 1993). ‘Even the case cited»by Appellant, Q§!i§ v. §§§§g, 773 S.W.2d 592 (Testpp.-Eastland 1989) would allow admission under these factors. In ngi§, a co-defendant who had previouslyl testified in his own case and had been convicted, refused to testify against the defendant on trial. The Court of Appeals held that he was unavailable under 804(a)t2). Davis at 593 However, the Court ruled such evidence was inadmissible be:ause the party on trial did not have an opportunity to cross- examine the unavailable witness, Qg!i§ at 593. At the time that the instant offenses were committed, Appellant
was on bond pending an appeal for the offense of Unauthorized Use of a
Motor Vehicle (SF 333, SX-35). The State sought to revoke said bond
. under Article 44.04(c) to wit: "is likely to commit an offense while on bail" (SX-35). 4 Under the cases interpreting Article 44. C4(c), if a defendant is already on bail and commits another offense, the Court may revoke the bond if the State proves the offense or offenses by a preponderance of the evidence Putnam v. State, 582 S. W. 2d (Tex. Cr. App. 1979). Thus the purpose of the bond hearing was~ not, as Appellant contends, to show luz was a threat to the community. The State was required to prove these very offenses which were later tried lin November, by a preponderance of the evidence on July 22, 1992, in order for the Court to legally deny bond. (SF 35). There was clearly a similar motive to the testimony by direct cross-examination or redirect
examination. Texas Rule of Evidence 804(b)(1). n
At said bond hearing, Tabitha Brown was called and questioned about this very offense by the state. (sF 368- 375 sx- 35 p 43 47) The defendant was represented by the same attorney who represented him at trial. (SF-35). Counsel for Appellant waived cross-examination, but recalled Tabitha Brown during the defendant' s evidence. (SF 390-396). At that time Appellant' s counsel had the opportunity for cross examination and exercised it concerning the very details of the offense which was tried in November of 1992. (SF 390-396, SX-35 p. 67-74).
The State's position concerning the purpose of the bond hearing and the similar motive for direct and cross-examination ofp the
witnesses is further evidenced by the balance of the bond hearing.
. The examination and cross-examination of Deputy Geneva Miller. is similar to that of trial. _(SF 94-145, SF342-367 SX 35 p. 10-38). Then same is true for Jennifer Stevens, (SF 74-88, 37-38, 396-400 SX-35 pi 49-54, SX-35 p. 74-78, 543-547). In fact, Appellant's recalling Jennifer Stevens, and his questions to her on rebuttal were based on her prior statements at the bond hearing, thereby evidencing a similar motive. (SF 543-547). At said bond hearing in Appellant's Motion for Directed Verdict, appellant and the State's arguments were directed to the issue: i.e. whether the State had proved its charges, the same ones tried herein, by a preponderance of the evidence. Finally and by way oft illustration, in reviewing the Statement of Facts, it is 'often difficult to determine which were the live witnesses at trial and which was the transcription of the bond hearing transcript read to the jury.
y As to the unavailability issue, Tabitha Brown testified "that she did not remember that question" (SF 64). When asked what Appellant had "done tx) her that he shouldn't have," Tabitha gave no response. (SF 66). When asked to tell the people what Jeff did to her, she gave no response. (SF 68). When the Court asked her if she could answer the question she shook her head no. (SF 68). After testifying that Jeff did touch her, she was asked where did he touch you and she answered, "I don't want to answer that question." (SF 70). After being recalled, she did not respond when asked what Jeff did to her. (SF 293). 'The State then asked a series of questions to which she did not
respond. (SF 295). when instructed by the Court to answer out she did
_Then the Court asked her if she wanted to ,,__-
not respond. (SF 296). - n)c‘)'”u/ stop, and she nodded affirmativelyr (SF 296). Tabitha Brown clearly 6§;%4
meets the criteria for unavailability under Rule 804(a)(2) and (3) of‘
the Texas Rules of Criminal Evidence.
Thus the facts in the present case, clearly satisfy federal constitution requirements as enunuated by §£g§g, State Constitution statutes as set forth in §§£na v. §t§tg and McMurrey v. State, and §glg 804(a}(2) and Rule 804(b)(1). In fact, the legal criteria for prior testimony is stronger in this case than with gregg and Coffin v. §§§§g.
In Green, the prior testimony was at an examining trial in which the
prosecution merely had to show probable cause. In Coffin v. State, the prior hearing concerned -certification. Here, the prior hearing
_required a higher standard of proof and was directly on point as to the issue to be proved. Appellant's other cases are either clearly
distinguishable or cite general principles concerning confrontation not
applicable herein.
Appellant declares that Tabitha Brown did‘not tell the truth at the bond hearing and later did at a Writ of Habeas Corpus hearing. The State contends that this issue is not properly or legally before the Court. If this Honorable Court holds it to be an issue the State presents the following.
Dr. Kurt Nielson testified that in his opinion Tabitha Brown had been a victim of sexual assault. (SF 29-50). Jennifer Stevens
testified'that Appellant did the same thing to Tabitha Brown that he
ll.
Even if there were any merit to Appellant's Point of Error, any error was waived either because he did not object, or joined in the offer of said evidence or, alternatively, waived error by failing to object before the trial of fact. Rule 103(a)(1) of the Texas Rules of
Criminal Evidence holds that there must be an objection to evidence to
preserve error. g Appellant did object to said former testimony of Tabitha Brown when it was first offered by the State. (SF 299). Appellant requested
a recess until the following morning and the Court granted the same.
(SF 310-311). The next morning Appellant initially objected to the prior testimony of Tabitha Brown. (SF 323) Then the following occurred.
"MR. TANDY: Judge, I have no objection to allowing this entire document to be introduced the excising of Mr. Ward's
problem of the Sheriff being given a prior conviction that's now on appeal, and any reference in that, that Jeff Ward has had any prior conviction. 'I welcome this to
. be introduced if that is the situation. Now, if they want to take it piecemeal, I don't. THE COURT: I thought about that yesterday when I read it is that--Mr. Tandy, you're saying if we excise out the parts in there of his problem with the Sheriff, etcetera, and prior convictions or things on appeal, you'd have no
objection? MR. TANDY: I have no--I can live with it, then, because
there's lots of things in there that, in my limited knowledge-- THE COURT: Do you have any objection to that, Mr. Beckworth? MR. BECKWORTH: Your Honor, under the rule of optional completeness, I think he's entitled to it."
Counsel waived any objection provided the entire document. was admitted except certain portions as he requested, and the exhibit was
introduced as requested, (SF 333, 337).
13.
‘ In addition, Rule 103(a)(1) has been interpreted to hold that an objection must` be made in the presence of the finder of fact to preserve error. 'Q£t§ v. Statec 825 S.W.2d 537 jTex.App. El Paso 1992)_ at 541. In Q£t§, the Appellant filed a Motion in Limine and certain matters were presented outside the jury's presence. The Court ruledJ some matters admissible and others not admissible. Appellant failed to object before the jury. The Court held that there must be an objection before the jury to preserve error. Q£tg§ at 541. In the present case, the State offered the transcript `into evidence, stating it was the prior testimony of Tabitha Brown (SF 337). Counsel for Appellant stated "We have no objection, Judge, to the entire transcript being admitted," (SF 337)\and insisted that the entire transcript be read to
the jury. 45F 338». Therefore any possible error was waived.L
4 Next the State contends that if there was error, it is harmless beyond a reasonable doubt pursuant to Rule 81(b)(2) of the Texas Rules
Aéof Criminal Evidence. The testimony of Dr. Nielson, Jennifer Stevens, and the partial testimony of Tabitha Brown without the prior testimony
is sufficient to establish guilt. A similar situation has been held sufficient in Voight v. §§a§g, 662 S.W.2d 42 (Tex.App. 13 Dist. Corpus Christi 1983). In Voight the victim testified as to the defendant being present and choking her, not the elements of aggravated rape. A doctor testified that rape had occurred and another child testified as to what he heard the defendant say. Voight. In the present case, Dr. Neilson
testified that' in his opinion Tabitha Brown had been sexually
assaulted, (SF 43) and, Jennifer Stevens testified that the Appellant
14.
§
J»& did the same thing to Tabitha that he did to her (Jennifer Stevens).
'(SF 79). Tabitha Brown testified that Appellant touched her and did
something to her that "he shouldn' t_ have," (SF 66, 71-77). Any
possible error is harmless. Finally and in the alternative the ~State asks this Honorable Court, that if it should find error, no waiver, and any error to be
harmful, that the conviction in Count I, aggravated sexual assault of
Jennifer Stevens, a child and 'Count III, possession of child
pornography to be affirmed and only Count II be remanded for new
trial. The State makes this alternative request for relief pursuant to Rule 801(b) and (c) of the Texas Rules of Appellate Procedure. WHEREFORE, PREMISES CONSIDERED the vState prays that this Honorable Court affirm the Judgment of the Trial Court below for the reasons stated herein or alternatively affirm the judgment as to Counts
I and III if this Court finds error as contended by Appellant.
RESPECTFULLY SUBMITTED,
JAMES H. CROMWELL DISTRICT ATTORNEY CHEROKEE COUNTY, TEXAS
%/a f%§/
ELMER c. BECKWOR AssIsTANT DISTRICT ATTo P. 0. BOX 450 RusK, TExAs 75785 sTATE oF TExAs BAR No. 02020700 903/683-2573
Y
15.
ama sTATE or TExAs
COUNTY OF CHEROKEE
, AFFIDAVIT
BEFORE ME, the undersigned authority, appeared ELMER C. ¥W BECKWORTH, JR., on the :Z €ZQQK: day of December, 1993, and who being 4 by me duly sworn did depose and state on this oath the following: "My name is ELMER C. BECKWORTH, JR. f am the attorney for Appellee in the above entitled and numbered cause. I have read the above and foregoing State's Brief and swear that it is true and correct
§,ltand within my personal knowledge."
ELMER c. sEcKwoRTH, JR. //' `
SUBSCRIBED AND SWORN TO BEFOREME On this 23rd day Of DECEMBER,
1993.
NOTARY PUBLICWSTATE'OF TEUS
4`44
AA-A
emoch RocERs NOTARY PUBL|C State of Texas
C°"'m- Ew. 02-28-97
16.