Fleming v. State

• Decision Date: 06 November 1991
• Docket Number: No. 3-87-060-CR,3-87-060-CR
• Citation: Fleming v. State, 819 S.W.2d 237 (Tex. App. 1991)
• Parties: Robert FLEMING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 237

819 S.W.2d 237

Robert FLEMING, Appellant, v. The STATE of Texas, Appellee.

No. 3-87-060-CR.

Court of Appeals of Texas Austin.

Nov. 6, 1991.

Rehearing Overruled Dec. 10, 1991.

Discretionary Review Refused March 4, 1992.

Art Keinarth, Smithville, for appellant.

Forrest L. Sanderson, Asst. Crim. Dist. Atty., Bastrop, for appellee.

Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.

PER CURIAM.

This is an appeal from a judgment of conviction for aggravated sexual assault. 1983 Tex.Gen.Laws, ch. 977, § 3, at 5312 (Tex.Penal Code Ann. § 22.021, since amended). The punishment is imprisonment for fifty years.

Appellant's first seven points of error complain of the admission in evidence of two videotaped interviews with the complaining witness and of the overruling of appellant's objections to hearsay testimony. In an unpublished opinion filed September 21, 1988, this Court found that these points of error either were not preserved for review or presented harmless error. We sustained appellant's points of error eight, nine, and ten, finding that the district court erred by instructing the jury on the law of parole pursuant to 1985 Tex.Gen.Laws, ch. 576, § 1, at 4446 (Tex.Code Crim.Proc.Ann. art. 37.07, § 4, since amended). Rose v. State, 752 S.W.2d 529, 552 (Tex.Crim.App.1988) (opinion on rehearing). Accordingly, we reversed the judgment of conviction and remanded for a new trial as to punishment. On appellant's petition for discretionary review, the Court of Criminal Appeals reversed this Court's judgment and remanded the cause for reconsideration of points of error one through seven. Fleming v. State, No. 1245-88 (Tex.Crim.App., June 5, 1991) (not published).

Evidence

The victim was four years old and a member of appellant's household at the time of the offense. On May 20 and June 27, 1986, she was interviewed on videotape by Georgia Compton, an investigator employed by the Bastrop County district attorney's office. Neither appellant nor his attorney were present at the videotaping. At trial, the State introduced both videotaped interviews in evidence over appellant's objection. 1983 Tex.Gen.Laws, ch. 599, § 1 at 3828 (Tex.Code Crim.Proc.Ann. art. 38.071, since amended).

During the May 20 interview, the child related that appellant once placed his finger in her vagina while her mother was away at work; that appellant's action was painful and frightening, and caused her vagina to bleed; that appellant was unclothed at the time; and that he asked her not to tell anyone about the occurrence. In the June 27 interview, the child related that appellant undressed in front of her "a lot of times"; that on one occasion, while her mother was at work, appellant put his finger in her vagina and anus; that this was painful; that she asked him to stop but he did not; that he was unclothed at the time; that both of them touched his penis; and that he threatened to spank her if she told anyone "what he did."

In addition to the videotape, the State called eight "live" witnesses during its case-in-chief. The child herself testified, in relevant part, that appellant "touched" her and that she no longer wanted to talk to him because he "hurt" her. Georgia Compton testified that she had spoken with the child on several occasions after the videotaping and that the child had never wavered in her description of the assault or the perpetrator. Compton testified further that she had seen the child exhibit "a tremendous amount of fear" when in appellant's presence.

The child's mother testified that she and the child lived with appellant in Elgin from March 1985 to May 16, 1986. At first, the child was very fond of appellant and referred to him as "daddy." In August or September 1985, however, there was a marked change in the child's behavior:

Q. [W]hat types of behavioral change did you observe in the little girl?

A. Okay. She got to where she didn't want to talk in front of [appellant], and she would cry. When he would be in the room she would shut up. She begged me that she didn't want to live there anymore, and that she wanted to live with her [grandmother].

Q. What else did you observe?

A. Constant complaining of her pee-pee hurting, or her butt hurting. She didn't have no appetite. I could not get her to eat.

....

She was obsessed with [appellant] not seeing her naked, which she hadn't been, it didn't matter to her because she was just little. And when she was in the bathroom she wanted to lock the door. She didn't want it open.

She didn't have a kid attitude anymore; she didn't play with other kids. She was their boss. She would tell them if they didn't do what she said that she wasn't going to play with them.

....

She masturbated in front of people. It was like she didn't realize people were there. You could look at her but you could tell that she didn't even know you were looking at her. And when I would ask her what she was doing she would say "Oh, I was scratching my leg," or "I wasn't doing nothing."

....

And she got to where she was wetting the bed, which she had not done since she was potty trained when she was about two and a half years old. She would have a bad nightmare and I would wake her up and ask her what it was, what was she saying, why was she screaming, and she would say "[N]othing," and she just wanted to go back to sleep.

....

Q. [D]id she do anything or change in her behavior toward Robert Fleming, in particular, besides these things you've talked about?

A. Just that she doesn't want to be alone with him. We have the third or fourth apartment down from the end of the street, and she would chase me. She would start chasing me and begging me to take her to work, or don't go to work, or take me to [her grandmother's house].

And he would walk out the door and she would stop and she would walk back up there.

Q. Give the jury some idea of how long this behavior pattern persisted. You've already said that it started in August--late August or early September of 1985. About how long did this continue?

A. Well, even after I quit working she didn't go back to the way she was. She calmed down a lot, but she didn't want to be left alone with him, and she was still complaining about her pee-pee and her butt.

Q. Did you ever ask her "[W]hat in the world was wrong with you?" Did you ever try to find out?

A. Yeah. And she would just say, "[N]othing." I would say "[H]as anyone ever done anything to you that you didn't like?" And she said "[N]o."

Q. Now I want you to kind of flip the coin, if you will, and tell the jury what changes, if any, you observed in the way Robert Fleming behaved toward the little girl?

....

A. Before, he was real persistent that I not give in to her. She was a spoiled kid. She was a very spoiled kid and would throw fits. And he was persistent that I not give in to her when she would throw those fits, and then I noticed that he started to give in. And he would say, "[W]ell, she's going to end up getting her way anyway, so why fight about it."

And he would go buy stuff that when she didn't even need it. He would go out and buy her clothes; and she had a closet full of 'em. And toys, for no reason, it wasn't her birthday and she didn't do anything spectacular. I don't know, it was different.

....

Q. Over this period of time was Robert Fleming ever left alone with the little girl?

A. On several occasions.

Q. Was there anybody else, any other male figures, that were left alone with the little girl over an extended period of time?

A. Not to my knowledge.

Q. Okay. You have already testified that you tried to get some answers by talking to the little girl and that she wouldn't open up to you. What action did you finally take, later on, to find out what was wrong with her?

....

A. I asked [my sister, Carla] if she would talk to [the child] and find out if anyone had ever done anything to her, and Carla said, "[Y]eah, I will."

Q. Before you go any further, just very, very briefly, give the jury a background of where Carla Moses fits into the picture, and where she lives at this time and what type of relationship she has with [the child].

A. Okay, she lived right next door. And her and [the child] have been real close....

Q. Okay, now, tell us exactly what date, if you can recall the date, that Carla actually talked to [the child].

A. On May the 16th, [1986].

....

Q. Okay. And Carla had a conversation with her--and how did you learn of this conversation?

A. Ray Grady came up to my job and said you need to come home.

Q. And who was Ray Grady?

A. That was her boyfriend at the time and now it's her husband.

Q. Okay. And Ray Grady came and told you the conversation?

A. He didn't tell me the conversation, he just said that [the child] was telling some pretty horrible things, and that I needed to get home.

Q. Okay, and what did you do?

A. I rode back to Elgin with him.

Q. Okay. And after you got back there did you have conversation, also, with [the child]?

A. Yeah.

Q. Who all was in the room?

A. Carla was in there. She wasn't in there the whole time, I would say maybe twenty minutes.

....

Q. Tell us exactly what the little girl told you.

A. Okay. I went in there where Carla and [the child] were and I said "[D]o you have something you need to tell me?" She was acting very strange. She would look at me and then look away and hold her head down and look up at me; she tried to stay away from me.

I said, "[W]hy don't you come sit over here with me?" And I said, you know, "[W]hatever you've got to tell me I'm not going to be mad at you, I promise, but if something happened you really need to tell me like you did Carla."

And Carla said "[Child], it's important that you tell your mom what you told us." And so she started slowly saying what happened. She said Bob had hurt her, and I said, "[H]ow did he hurt you?"

....

Q. Okay, be as specific as you can possibly be when you tell the jury what happened. Go ahead and continue.

A. And I said, "[H]ow did he hurt you?" And sh...