Caldwell v. State, 09-84-075-CR
| Decision Date | 26 June 1985 |
| Docket Number | No. 09-84-075-CR,09-84-075-CR |
| Parties | Jay CALDWELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Jay Caldwell was convicted of Aggravated Sexual Assault and the jury assessed punishment at 35 years in the Texas Department of Corrections. He appeals bringing forth eleven grounds of error.
Ground of error number one complains the introduction of a video taped interview of the victim was erroneous in that the State had not complied with article 38.071 sec. 2(a)5, Tex.Code Crim.Proc.Ann. (Vernon Supp.1985), which requires that every voice on the recording be identified. The video taped interview shows a female deputy sheriff interviewing the 10 old year old victim. The interviewer testified she was the only person in the room with the victim. The video camera operator testified he set up the taping equipment and left the room. The "voices" complained of are mostly unintelligible and have no relevance to the interview. These "voices" are explained as being voices in a nearby hallway which were "picked up" by the highly sensitive microphone. We believe it was the intent of the legislature, in requiring this predicate, to insure that the voices, all persons participating in the interviewing and/or taping process were identified. This is not the case here. After reviewing the tape, it is obvious the "voices" complained of are nothing but background "clutter" with no relevance to the interview. See also Jolly v. State, 681 S.W.2d 689, 696 (Tex.App.--Houston [14th Dist.] 1984, no pet.). Ground of error number one is overruled.
Ground of error number two complains of the admission, through the video taped interview, of several extraneous offenses. These extraneous offenses were prior sexual acts between the appellant and the victim. Appellant's complaint is the extraneous offenses were admitted prior to any contested issue, were prejudicial and too remote. Such evidence may be admitted to enable the jury to properly evaluate the inherently questionable testimony of a minor against an adult. Veloz v. State, 666 S.W.2d 581 (Tex.App.--Houston [1st Dist.] 1984, no pet.). Williams v. State, 490 S.W.2d 604 (Tex.Crim.App.1973), expressly held that prior acts committed against minors by their parents or persons standing in the position of a parent were admissible. Ground of error number two is overruled.
Ground of error number three states: "The Court erred in allowing hearsay on numerous occasions during the trial." Appellant goes on to allege ten separate violations of the hearsay rule. Most of the violations complained of concern testimony from individuals about what the victim told of the incident. The state urges the testimony was admissible as "outcry". "Outcry", however, was not required to be proven in this case. Moreover, when the hearsay objection was lodged, a limited offer was not made, thus the overruling of the objection made the testimony admitted for all purposes. Some of the testimony was hearsay and should have been excluded or limited. In view of the entire record, we are unable to say the introduction of the hearsay testimony is reversible error. See Huff v. State, 560 S.W.2d 652, 654 (Tex.Crim.App.1978). Ground of error number three is overruled.
Appellant's next ground of error alleges the trial court committed reversible error in allowing the state to bolster its witness. At the conclusion of the video taped interview, the deputy sheriff asked the victim "whether or not she is telling the truth now." Black v. State, 634 S.W.2d 356 (Tex.App.--Dallas [5th Dist.] 1982, no pet.), is relied upon by appellant but is not controlling. The appellant made a proper objection to that portion of the video tape and it could have been deleted prior to being shown to the jury. After a witness is given the oath, it is the province of the jury to determine who is a truth teller. To allow a witness to answer self serving questions such as "have you told this jury the truth?", "do you know you are still under oath?", "would you come in here and lie?", etc., prior to being impeached in some manner is not proper. In this instance, however, it does not amount to reversible error. Ground of error number four is overruled.
Ground of error number five seeks to have the conviction reversed because the trial court failed to appoint a disinterested expert under TEX.CODE CRIM.PROC.ANN. art. 46.03 (Vernon 1979). Here the appellant filed his notice of intent to use the insanity defense. Thereafter, he filed a motion for the court to appoint a disinterested expert. The trial court inquired if the appellant had any evidence to present in support of the motion. The appellant...
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