D. L. N. v. State, 20106

• Decision Date: 21 November 1979
• Docket Number: No. 20106,20106
• Citation: 590 S.W.2d 820
• Parties: D. L. N., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 820

590 S.W.2d 820

D. L. N., Appellant, v. The STATE of Texas, Appellee.

No. 20106.

Court of Civil Appeals of Texas, Dallas.

Nov. 21, 1979.

Herbert Green, Jr., Dallas, for appellant.

Henry Wade, Dist. Atty., Maridell J. Templeton, Asst. Dist. Atty., Dallas, for appellee.

Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.

GUITTARD, Chief Justice.

Appellant, a fifteen-year-old boy, was found by a jury to have engaged in deviate sexual intercourse with a three-year-old girl and was placed on probation by the juvenile court. He complains on this appeal that he was denied a fair trial because of improper admission of evidence, that the evidence is insufficient to support the verdict, and that the only eye-witness, an eight-year-old child, was incompetent to testify. We hold that the witness was competent, but we conclude that appellant was prejudiced by improper evidence. Consequently, we reverse and remand for a new trial.

Appellant's first point of error is multifarious and too general since it complains merely that the court erred in failing to give appellant a fair trial. On looking at the discussion under this point, however, we find several instances in which clearly prejudicial evidence was presented to the jury and that the cumulative effect of this evidence was such as to deny appellant a fair trial.

The first of these instances was the testimony of the little girl's mother. She testified that she had heard the child sing a song indicating that she had participated in an oral sex act. Appellant's objection to this testimony as hearsay was overruled. Over further objection, the mother testified that she questioned the child about the matter and the child replied "that it was in his zipper. It was in his britches." Appellant's objection to this evidence was sustained, and the court instructed the jury to disregard the answer, but overruled appellant's motion for mistrial.

The mother further testified that after discussing the matter with the child's father, they decided to arrange a meeting with appellant's mother, and they asked that the minister of appellant's family be present. Appellant objected to evidence of the meeting as being hearsay and also as "irrelevant, immaterial, inconsequential, and after the fact." After these objections were overruled, the girl's mother testified that the meeting took place and named the persons present.

The girl's father also testified concerning the meeting. He said that the child was present and that he and others asked her questions. At this point appellant's hearsay objection was overruled. The father then testified that he asked the child to demonstrate what had happened, and she responded by pulling up her dress and saying "He kissed me right there." When asked what he made her do, she went over to appellant, put her head in his lap and tried to undo his pants. After this testimony was given, appellant's counsel objected that the scene "took place somewhere else," that the child was forced to do something by her father, that nobody was under oath, and took place outside the courtroom, and asked the court to instruct the jury to disregard the evidence. These objections were overruled.

The minister in question was also called to testify. Without any objection other than that there was "no proper predicate" and that the people at the meeting were not sworn, the minister testified concerning what happened at the meeting, including the demonstration by the child. On cross-examination, appellant's counsel brought out the same testimony again.

On redirect examination the minister was asked whether the responses of the little girl at the meeting were appropriate for a child of her age. Over appellant's objection that this question called for a conclusion of the witness and that the witness was not qualified as an expert, the minister was permitted to testify that he was "quite shocked" at her reactions and performance. The court overruled appellant's objection that the answer was not responsive.

Another witness called by the state was a police officer of the city of Dallas, who testified that he was an investigator in the child-abuse section. He testified that appellant was the suspect in the case, and that he had talked to the little girl, her mother and other relatives. When asked what investigative steps he took other than talking to witnesses, he replied that appellant was given a polygraph test. Appellant objected and moved for a mistrial on the ground that the witness had "said the magic word polygraph." The objection and motion were overruled. The officer was further permitted to testify, over appellant's hearsay objection, that as a result of his investigation he had filed a charge of "indecency with a child" against appellant.

None of the foregoing evidence, in our view, was competent to prove the delinquent conduct alleged, since all of it (except that concerning the polygraph test) depended on assertions by the child and conduct by her that was interpreted by her parents and others as indicating what had occurred between her and appellant. As such, it was clearly hearsay, and was not within any exception to the hearsay rule. Byrd v. State, 89 Tex.Cr.R. 371, 231 S.W.2d 399 (1921) (testimony that complainant had pointed out defendant). Although a hearsay statement by a small child may be admitted as res gestae, the usual requirements of res gestae declarations must be shown, such as a spontaneous utterance made under the immediate influence of an exciting event. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 262-63 (1944); Bennett v. State, 382 S.W.2d 930, 931 (Tex.Cr.App.1964); Oldham v. State, 167 Tex.Cr.R. 644, 322 S.W.2d 616, 619 (1959). Those requirements were not met in this case.

There can be no pretense here that the evidence was admissible for some purpose other than to prove the delinquent conduct alleged, such as to explain the actions of the child's parents after the event. Those actions are immaterial to the only material issue, namely, the alleged delinquent conduct itself. The obvious purpose of presenting this incompetent evidence was to convince the jury that the alleged delinquent conduct occurred by showing that the child's parents and the police investigator believed, and had good reason to believe, that it occurred. Because of the highly prejudicial nature of this incompetent evidence, it cannot be dismissed as harmless. We recognize the difficulty of obtaining competent evidence in a case involving abuse of a small child. Nevertheless, we know of no exception to the rule that an adjudication of delinquency, like a conviction of crime, must be based on competent evidence. The Family Code expressly provides that at an adjudication hearing, only material, relevant, and competent evidence may be considered. Tex.Fam. Code Ann. § 54.03(d) (Vernon 1975).

The state contends that even if the evidence above recited was incompetent, appellant cannot complain because he failed to make proper objections to some of it and he went into the same matters...