Fox v. State
| Decision Date | 30 August 2005 |
| Docket Number | No. 06-04-00054-CR.,06-04-00054-CR. |
| Citation | 175 S.W.3d 475 |
| Parties | John Charles FOX, IV, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Supreme Court |
J. Stephen Cooper, Dallas, for appellant.
Michael L. Morrow, Asst. Dist. Atty., Bonham, for appellee.
Before MORRISS, C.J., ROSS and CARTER, JJ.
John Charles Fox, IV, was convicted by a jury for aggravated sexual assault of a child.1 The jury assessed punishment at forty years' imprisonment and a $10,000.00 fine. He was sentenced in accordance with the jury's verdict. Fox appeals, contending the trial court erred in (1) failing to make an "inquiry" into the mental status of the victim during her testimony at the penalty phase; (2) failing to grant a mistrial after the victim suffered a "psychotic episode" during her testimony at the penalty phase; (3) in overruling his objection to the opinion by the State's expert that the victim was telling the truth; (4) in limiting his cross-examination of the State's witnesses regarding the victim's post-traumatic stress disorder; and (5) in denying his motion for new trial. Fox also contends that he was denied effective assistance of counsel at trial and that he was denied due process of law by the State's suppression of exculpatory evidence. We affirm the judgment.
Although Fox does not challenge the sufficiency of the evidence, a brief recitation of the facts, as presented by the State's evidence, is appropriate. The victim, L.C., was eleven years old at the time of the offense and fourteen at the time of trial. She has one brother, and their mother is Jennifer Jo Cassidy. L.C. testified that Fox was her mother's former boyfriend and that he lived in the home with them for eight years. However, at the time of the offense in question, Fox had been out of the home for about a month. L.C. testified that, during the time Fox was living with them, he touched her inappropriately many times. She further testified that, on a rainy evening in November 2000, she and her brother were at home and their mother was at a friend's house when, around midnight, Fox tapped on her bedroom window. L.C. let him inside the house through the window and followed him to her mother's bedroom, where Fox sexually assaulted her on her mother's bed. L.C. was in her menstrual period, and as a result of the assault, blood was left on the bed and on a white T-shirt Fox was wearing. After the assault, Fox changed into a different shirt, leaving the white T-shirt at the house. L.C. testified that, after Fox left, her mother returned home around 1:00 a.m. L.C. told her what had happened. They contacted the police the next day.
Fox's first two points of error are related and will be considered together. He contends that, after L.C. suffered a "psychotic episode" during her testimony at the penalty phase of the trial, the court erred in failing to conduct an inquiry into her mental competency to testify and in failing to grant a mistrial.
During the punishment phase of the trial, but outside the jury's presence, the following exchange occurred between the trial court and L.C.:
Fox immediately moved for a mistrial, which the court denied. Fox now contends the trial court's failure to sua sponte conduct a hearing to determine L.C.'s mental competency was error.
Rule 601 of the Rules of Evidence creates a presumption that a person is competent to testify. Tex.R. Evid. 601. The trial court has no duty to conduct a preliminary competency examination on its own motion. McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App.1998). However, Rule 601(a)(2) places the power to determine a witness' competency in the hands of the trial court. Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App.1995). A ruling by the trial court will not be disturbed on review unless an abuse of discretion is shown. Id.; Clark v. State, 558 S.W.2d 887, 890 (Tex.Crim.App.1977). Rule 601 does not require, nor does it empower, a judge to force a witness to undergo psychiatric evaluation for the purpose of a competency determination. Broussard, 910 S.W.2d at 960.
At the time of the above exchange between the trial court and L.C., she had already testified fully and completely at the guilt/innocence phase without any indication of confusion or being out of touch with reality. Although Fox was aware before trial that L.C. had mental problems, at no time did he object to L.C.'s testimony on the ground she was not mentally competent to testify. After the exchange related above, Fox objected:
Judge, that sure seems exculpatory to me. I'm not sure what the appropriate objection is at this time, but I should have known about that.
....
About psychotic episodes, apparently, the inability to distinguish between reality and fiction, when all the testimony in this case came from her opinion of what happened to her, Judge, I would ask for a mistrial.
In order to preserve any error for appellate review, a party must present a timely, specific objection to the trial court and secure an adverse ruling. Tex.R.App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991). Fox did not preserve any error in the trial court's failure to sua sponte conduct a hearing to determine L.C.'s mental competency.
Even if the alleged error had been preserved, the matter of permitting a mentally incompetent person to testify rests largely in the court's discretion and its ruling will not be reversed unless an abuse of discretion is shown. Holland v. State, 481 S.W.2d 410, 412 (Tex.Crim.App.1972). In Holland, a witness testified that she had been an outpatient because of a mental problem and that she sometimes had trouble remembering things. Id. at 411. Holland argued the court should have interrogated the witness to determine whether she was a competent witness. Id. After reviewing the record, the Texas Court of Criminal Appeals held the trial court did not abuse its discretion because the witness testified she remembered the burglary and remembered Holland, and because the objection to the testimony was made after the witness had testified at length. Id. at 411-12.
Further, in reviewing a trial court's competency ruling, we consider the witness' entire testimony given both at trial before the jury and at the competency hearing. Hernandez v. State, 643 S.W.2d 397, 400 (Tex.Crim.App.1982); Castro v. State, No. 03-98-00570-CR, 1999 WL 1041512, at *5, 1999 Tex.App. LEXIS 8592, at *17 (Tex.App.-Austin Nov.18, 1999, pet. ref'd) (not designated for publication). In Castro, an eyewitness testified to a murder. Castro, 1999 WL 1041512, at *4, 1999 Tex.App. LEXIS 8592, at *3. The state admitted the eyewitness suffered from some type of mental illness or other problems. Id. 1999 WL 1041512, at *5, 1999 Tex.App. LEXIS 8592, at *17. Before being sworn in and in the presence of the jury, the eyewitness chattered nonsensically, claiming that the state did a brain scan on him and that he was Elvis Presley. Id. After he was sworn in, he claimed again to be Elvis and said he was "hotter than the FBI." Id. The Austin Court of Appeals held the eyewitness competent to testify. Id. 1999 WL 1041512, at *6, 1999 Tex.App. LEXIS 8592, at *20. The court reasoned the eyewitness possessed the "intellect to relate the transaction that he's going to be interrogated upon." Id. 1999 WL 1041512, at *6, 1999 Tex.App. LEXIS 8592, at *18. The eyewitness knew the difference between the truth and a lie, and answered the state's question coherently and with intelligence and understanding. Id.
Similarly, here, L.C. had already testified at the guilt/innocence stage without an objection to her competency. L.C. answered all the questions coherently, with intelligence and understanding. She also testified she knew the difference between telling the truth and a lie. Thus, reviewing the record as a whole, we hold the trial court did not abuse its discretion by failing to sua sponte conduct a hearing to determine L.C.'s mental competency or in overruling Fox's motion for a mistrial.
Fox asserts the trial court erred in admitting the expert testimony of Ed Wagoner because it constitutes an improper opinion. Wagoner, a licensed professional counselor called by the State, testified in relevant part as follows:
[State]:.... Are there factors you look at when you are interviewing a child to tell if a child is lying to you?
....
[Wagoner]: Right. Recording of a videotape we try to determine if the child understands the difference between the truth and lying, and, you know, use some examples of truth statements and lies that the child can identify. And from that point forward it's a matter of just getting the information from the child and looking at it from, I guess, a professional point of view to say does this appear to be realistic does this appear to be valid?
....
[Defense]:.... So, Mr. Wagoner, we went through a number of factors here that you consider....
[Wagoner]: Yes.
[Defense]: And we have been through pretty much every one of them on cross-examination, correct?
[Wagoner]: If you feel comfortable with that, I do.
[Defense]: Well, one of the things, I guess, just to be complete is, you said the story appears to be realistic?
[Wagoner]: The videotape I viewed, my feelings about it was that this young lady was telling the truth —
[Defense]: Objection, Your Honor, nonresponsive.
[The Court]: I think he was responding. Overrule.
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