Deason v. State

• Decision Date: 28 February 1990
• Docket Number: No. 989-87,989-87
• Parties: Carl Wesley DEASON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 711

786 S.W.2d 711

Carl Wesley DEASON, Appellant, v. The STATE of Texas, Appellee.

No. 989-87.

Court of Criminal Appeals of Texas En Banc.

Feb. 28, 1990.

Terry G. Collins, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Frances M. Northcutt, Kathlyn Giannaula and Vic Wisner, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for State.

Before the Court en banc.

OPINION ON APPELLANT'S AND STATE'S PETITIONS FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

The appellant was found guilty of indecency with a child by the trial court and assessed a punishment of five years in the Texas Department of Corrections. V.T.C.A. Penal Code, § 21.11. ¹

The First Court of Appeals reversed the appellant's conviction and remanded the case to the trial court for a new trial in an unpublished opinion. Deason v. State, No. 01-86-00716-CR, 1987 WL 17278 (Tex.App.--Houston [1st] 1987), pet. granted. The court of appeals' reversal was premised on the admittance of a videotaped interview of the complainant in violation of our holding in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988). We granted both the State's and appellant's petitions for discretionary review challenging the disposition of this case by the court of appeals.

The State now contends the Long error was not reversible in that the trial was to the judge, and the videotape was merely cumulative of other evidence presented. The appellant asserts, however, that the court of appeals erred by concluding that the evidence is sufficient to permit a rational trier of fact to find that the appellant touched the genitals of the complainant.

The indictment upon which the appellant was charged read as follows:

did then and there unlawfully with intent to arouse the sexual desire of the Defendant have sexual contact by touching the genitals of D___ L___, ... a child under the age of seventeen and not his spouse. [emphasis added]

Initially, we note that the court of appeals' determination that the videotape was admitted in violation of this Court's decision in Long, supra, remains undisturbed. We will first address the State's contention that the error in this instance was not reversible in that the improperly admitted videotape was merely cumulative of other evidence presented and was thus harmless.

I.

The appellant was tried before the court, a jury having been waived. In Tolbert v. State, 743 S.W.2d 631 (Tex.Cr.App.1988), a plurality of this Court held that in a trial before the court there is a presumption that the trial court as trier of fact disregarded any inadmissible evidence admitted at trial. Id., at 633. Accordingly, we note that in a cause tried before the court rather than a jury, the fact that inadmissible evidence was received does not automatically call for a reversal.

As we stated in Tolbert, supra:

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 [653 S.W.2d 799 (Tex.Cr.App.1983) ]; Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978). In Arnold v. State, supra [161 Tex.Cr.R. 344, 277 S.W.2d 106 (1955) ], 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. [emphasis added]

Id.

In other words, even if improperly admitted evidence is considered by the trial court, a reversal of a conviction will not be necessary if other admissible sufficient evidence is admitted to sustain the judgment.

The appellant was the driver of a private school bus which delivered and picked up children at East Houston Elementary School. The mother of D___ L___, testified that on May 1, 1985, D___ L___ was seven years old and attended the second grade at East Houston Elementary School. D___ L___ rode a private bus to school which was driven by the appellant. On May 1, 1985, D___ L___ came directly to her mother after getting home from school and stated that the appellant "is not Christian." When the mother asked D___ L___ why she said this, D___ L___ replied:

On our way to school this morning, he stopped the van. And he led the children off the van to pick berries. I was the only one who remained inside. And he tried ... to touch my peepee ...

The mother further testified that she then asked D___ L___, "Did he do anything to you?" D___ L___ replied:

No, because Alberto didn't want to pick berries up and got in. And when he noticed that Alberto was on his way to get in the van, he got away and sat down real fast.

The mother thereafter testified that D___ L___ refers to her vagina as her "peepee." She further explained that Alberto is a cousin and neighbor who also rode the bus.

D___ L___ testified that she was eight years old at the time of her testimony. During the previous school year she was in the second grade at East Houston Elementary School and rode to school during May, 1985 in a private bus driven by the appellant. One day in May the appellant stopped the bus on the way to school and told the other children on the bus "to go out and pick some berries." D___ L___ also testified that she suffered a small cut on her leg after she left home for school that morning and she told the appellant about it. He instructed her to go to the back of the bus and lie down.

During her trial testimony D___ L___ did not describe anything that happened to her after lying down in the back of the bus. She testified that once she laid down, it was only about two minutes until her cousin, Alberto, got back on the bus. Once he reentered the bus, the appellant sat in the driver's seat and summoned the other children back onto the bus and delivered them to school. D___ L___ did testify that when she got home from school that day she told her mother that the appellant "had told me to go lie down on the back seat and he pulled down my dress and pushed my panties to the other side and tried to touch it."

Yolanda Davis, a Houston Police Department Officer assigned to the Juvenile Division, testified that she took a videotaped statement from D___ L___ on May 3, 1985. The videotape, State's Exhibit 4, was admitted into evidence over the appellant's objections and was viewed by the trial judge.

The record discloses that D___ L___ spoke in Spanish during the videotaped interview and an interpreter was used to interpret her statements when the trial judge and attorneys viewed the videotape during the trial. At the conclusion of the trial, the trial judge deferred any decision as to the issue of guilt or innocence. The court reporter and interpreter met together after the trial to view the videotape again and prepare a transcript in English. When the case reconvened, this transcript was introduced into evidence for the record by agreement of all parties and the court. This transcript appears in the appellate record.

The transcript of the videotaped interview indicates that D___ L___ gave the following answers on May 3, 1985, to questions by Officer Davis:

Q. Now, why are you here today?

A. Because Mr. Deason lifted my dress and he pulled my panty to one side and he was going to touch me.

Q. He was going to touch you? Where was he going to touch you?

A. On my peepee.

* * * * * *

Q. On Springdale? And what did he do?

A. He picked up my dress and then he pulled my panty to one side and he was going to touch my peepee.

The transcript further discloses the following questions:

Q. How come nobody saw? Who was on the bus?

A. No one. Only Mr. Deason. He told all the children to get off to pick up berries. And all the children got off and then he told me to go to the back. To the back of the bus, and then he told me to go to the rear of the bus. He told me to lie down and he picked up my dress and then he pulled my panty to one side. Then he was going to touch my peepee.

Q. Okay, nobody saw what he did? What Mr. Deason did? Nobody saw it?

A. No.

Q. And then what happened after that?

A. Nothing. Then Mr. Deason told the children to get back on the bus. Except that there was one little boy that came back on the bus. So then, Mr. Deason stopped doing that. And then he went back to driving.

The State argues that the record affirmatively indicates that the trial judge did not consider the videotape testimony. Prior to making a finding on guilt-innocence, the trial judge was urged to review the English translated transcript of the videotape interview which had been conducted in Spanish. Defense counsel continually maintained that any of the appellant's efforts to pull the complainant's panties aside did not involve "a touching." The following then transpired:

THE COURT: But back to, there is not an Exhibit No. 1?

MR. COLLINS [Defense counsel]: Yes, sir. That's Defendant's Exhibit No. 1.

THE COURT: All right. This is the ranscript [sic] of the direct testimony during the trial itself.

MR. COLLINS: Yes, sir.

THE COURT: It's admissible prior to a finding of guilt.

MR. COLLINS: Then I would conclude, Your Honor, and ask the Court to recall the testimony, previous motions for instructed verdict at this time on the purpose of guilt or innocence. We would at this time ask the Court to enter a finding of not guilty.

MR. COFFEE [Prosecutor]: I believe the State rested back on the 12th of June 1986, Judge, and we would reoffer all the evidence and the documents that were admitted into evidence before ...