Davis v. State

• Decision Date: 28 February 1995
• Docket Number: No. 2-93-539-CR,2-93-539-CR
• Citation: 894 S.W.2d 471
• Parties: Alvin Wade DAVIS, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 471

894 S.W.2d 471

Alvin Wade DAVIS, Appellant, v. The STATE of Texas, State.

No. 2-93-539-CR.

Court of Appeals of Texas Fort Worth.

Feb. 28, 1995.

Hill, Beatty, Butcher & Gallagher and Allan K. Butcher, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Betty Marshall and Charles M. Mallin, Asst. Chiefs of the Appellate Section, and Tanya S. Dohoney, Lisa Amos and Anne Box, Asst. Dist. Attys., Fort Worth, for the State.

Before CAYCE, C.J., LIVINGSTON, J., and PATRICE M. BARRON, J. (Assigned).

OPINION

LIVINGSTON, Justice.

Appellant Alvin Wade Davis was found guilty of aggravated sexual assault of a child under fourteen years of age and was sentenced to forty-five years' imprisonment by a jury. In three points of error, appellant complains the trial court erred by: 1) restricting the direct examination of a defense witness to show bias of a prosecution witness; 2) allowing the State to contract with a venireperson to accept evidence from a child; and 3) denying appellant's request for a mistrial following improper punishment phase argument by the prosecutor. We affirm the trial court's judgment because extraneous evidence of an alleged bias was inadmissible, the challenged voir dire question was proper, and the instruction to disregard cured any error in the prosecutor's argument.

R.D., the complainant, was thirteen years old at the time of trial and testified to the events surrounding the assault. On July 30, 1990, the day of the assault, R.D. was nine years old and resided with her mother, Brigette Robinson ("Robinson"), her stepfather, and her three younger siblings. R.D. testified that on the morning of the assault, she was in her mother's bedroom along with her siblings. R.D.'s uncle, the appellant, was in the den, having spent the night on their sofa. After Robinson left to take the youngest child to register for school, appellant called R.D. into the den to turn on the air conditioner. As R.D. approached the air conditioner, appellant told her to lie down on the couch. R.D. refused. Appellant pulled R.D. by the arm and forced her onto the couch. R.D. was wearing a nightgown and panties. R.D. testified appellant "stuck his finger up under [her] underwear and stuck it in [her] private." Later that day, R.D. discovered blood on her underwear. She told her stepfather about the blood, but not about what had happened. When Robinson returned home, R.D.'s stepfather told her about the blood. Following questioning from Robinson, R.D. told her mother what appellant had done to her.

Dr. Audrey Jones testified at trial regarding the sexual assault exam she performed on R.D. on July 30, 1990. Her examination revealed the hymen was perforated, there were abrasions around the hymen, and the area was very red. Dr. Jones testified these findings were consistent with digital penetration.

In point of error number one, appellant complains the trial court erred by not allowing appellant to develop testimony during direct examination of his father regarding an alleged bias Robinson, appellant's stepsister, had against appellant. Specifically, appellant wanted to introduce testimony that Robinson told appellant's father appellant had previously been accused of molesting a child. Appellant's reason for attempting to develop this testimony was purportedly to demonstrate Robinson's "bias and prejudice" against him through this prior false accusation. Essentially, appellant was asking to use extrinsic evidence, offered through his father, a defense witness, to prove up an alleged bias to impeach Robinson's testimony.

Rule 612 governs the use of prior statements by a witness for impeachment purposes. TEX.R.CRIM.EVID. 612. The rule provides in part:

In impeaching a witness by proof of circumstances or statements showing bias or interest, on the part of such witness, and before ... extrinsic evidence of ... such bias or interest may be allowed, the circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or to deny such circumstances or statement.

Id. 612(b) (emphasis added). In order to admit extrinsic evidence of an alleged statement showing bias, appellant should have confronted Robinson about the circumstances of the statement during appellant's cross-examination of Robinson. See id. Further, if Robinson unequivocally admitted to making the statement, extrinsic evidence of the statement would not have been admissible. See id.

Appellant, however, failed to raise this issue of a prior false accusation of child molestation while cross-examining Robinson. Therefore, the trial court correctly prevented appellant from introducing extrinsic evidence to prove-up the alleged statement showing bias. Appellant's first point of error is overruled.

In his second point of error, appellant argues the trial court erred by allowing the State to contract with a venireperson regarding the weight to be given evidence from a child. The exchange at issue went as follows:

[VENIREMAN:] If the child is, I'd say, under 10 or 12 years old, it's a known fact that a child of early age is impressionable, and adults' thoughts can be impressed on the child, and they may not tell the truth in every case.

[PROSECUTOR:] Okay. So you have some question in your mind?

[VENIREMAN:] I would have to know the circumstances and the age of the child to make a decision on whether or not I would believe them.

[PROSECUTOR:] Okay. Well, of course, we can't ask you to make a decision in a case because we can't go into the facts of the case, but generally speaking, do you feel like you might have a problem convicting a defendant if the only eyewitness is a child?

[DEFENSE:] Your Honor, I'm going to object now. I think this has gone to the point of trying to bind this juror as to what type of evidence it would take for him to cast a vote.

THE COURT: Overruled, Mr. Lewis.

[VENIREMAN:] Depending on the age of the child, I would have a problem.

[PROSECUTOR:] But a child under 12, you feel like you would?

[VENIREMAN:] Yes. The smaller--I definitely would have a problem if they were a young child. Of course, I would take all the other circumstances into consideration.

[PROSECUTOR:] Okay. But if there was, hypothetically speaking--I'm not going to bind you in any way--no other evidence in the case, but that child was able to--

[DEFENSE:] Again, Your Honor, I'm--I'm going to object--excuse me.

I'm going to object, Your Honor. Trying to bind the witness.

THE COURT: I'm going to sustain this objection.

[DEFENSE:] Ask that the jury be instructed to disregard that.

THE COURT: Jury is so instructed.

Looking at the first objection on which appellant was overruled, appellant argues the trial court erred in allowing the question "generally speaking, do you feel like you might have a problem convicting a defendant if the only eyewitness is a child?" Appellant asserts the asking of this question enabled the State to "get this erroneous view of the law before the panel and to have them think that that was the law."

During voir dire examination, the trial court should allow great latitude to give counsel for both sides "a good opportunity to assess the relative desirability of the venire members." Orosco v. State, 827 S.W.2d 575, 577 (Tex.App.--Fort Worth, pet. ref'd), cert. denied, 506 U.S. 960, 113 S.Ct. 425, 121 L.Ed.2d 347 (1992) (citing Battie v. State, 551 S.W.2d 401, 404 (Tex.Crim.App.1977), cert. denied, 434 U.S. 1041, 98 S.Ct. 782, 54 L.Ed.2d 790 (1978)). When reviewing a trial court's ruling on the propriety of a question asked, an appellate court will not disturb the ruling absent an abuse of discretion. Orosco, 827 S.W.2d at 577.

In Orosco, this court upheld a trial judge's decision to allow the prosecution to ask a hypothetical question about whether the venireperson could convict on the testimony of one eyewitness. Id. at 578; see also Williams v. State, 629 S.W.2d 791, 794 (Tex.App.--Dallas 1981, pet. ref'd) (upholding decision to allow questions asking if the juror could convict on the testimony of one eyewitness and without the body or scientific evidence). This court held it was not an abuse of discretion to permit questioning on this issue because it was a proper subject of inquiry. Orosco, 827 S.W.2d at 578.

Questioning of venirepersons to ascertain whether they could believe a child witness was addressed briefly in Long v. State, 770 S.W.2d 27, 30 (Tex.App.--Houston [14th Dist.] 1989), rev'd on other grounds per curiam, 800 S.W.2d 545 (1990). In Long, the court was reviewing a claim of ineffective assistance of counsel during a trial for aggravated sexual assault of a child. Id. at 28-29. The claim was based in part on trial counsel's...