Gottlich v. State

• Decision Date: 08 January 1992
• Docket Number: No. 2-91-003-CR,2-91-003-CR
• Citation: Gottlich v. State, 822 S.W.2d 734 (Tex. App. 1992)
• Parties: James Herbert GOTTLICH, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 734

822 S.W.2d 734

James Herbert GOTTLICH, Appellant, v. The STATE of Texas, State.

No. 2-91-003-CR.

Court of Appeals of Texas Fort Worth.

Jan. 8, 1992.

Rehearing Overruled Feb. 11, 1992.

Discretionary Review Refused

April 22, 1992.

Earl R. Waddell III, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Edward L. Wilkinson, Charles Brandenberg, Malena Calderon, Asst. Dist. Attys., Fort Worth, for appellee.

Before JOE SPURLOCK, II, HILL and FARRIS, JJ.

OPINION

FARRIS, Justice.

James Herbert Gottlich appeals his conviction of indecency with a child complaining in four points of error that: (1) the trial court erred in admitting hearsay testimony in violation of article 38.072 of the Texas Code of Criminal Procedure; (2) a conflict of interest known to the State before trial denied Gottlich his right to effective assistance of counsel under the sixth amendment to the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure; (3) the trial court erred in submitting a charge to the jury which allowed a conviction of a lesser included offense upon proof not necessary to establish the greater offense, and because the lesser offense charged was identical to Count Two of the indictment which had been abandoned by the State in an election; and (4) the evidence is insufficient to support the conviction because the evidence failed to show beyond a reasonable doubt that Gottlich committed the offense of indecency with a child. We overrule all points and affirm.

In his first point, Gottlich contends that the court erred in admitting statements from the outcry witness that were not in the State's summary of the testimony, and that the statements were not covered by the exception in article 38.072, section 2(a) providing that the admissible statements describe only the alleged offense. See Tex.Code Crim.Proc.Ann. art. 38.072 § 2(a) (Vernon Supp.1991).

The State provided Gottlich a Notice of Outcry that it filed with the court on May 4, 1989. The summary provided in the notice stated: "the victim told Peggy Swallow Stockton, an individual over eighteen years of age, that the Defendant, James Herbert Gottlich, 'had been playing with her down there with his hand.' " During the article 38.072 hearing outside the jury, the State presented the following testimony: (1) that the complainant had told Peggy that she did not wish to go swimming at Gottlich's house on the day that the complainant told of the sexual abuse; and (2) that the complainant started crying and told Peggy that Gottlich "played with her and that he would wake her up in the middle of the night and she would tell him no and to leave her alone." Counsel for Gottlich objected to this testimony at the hearing as being hearsay not contained in the summary provided by the State and was overruled. Counsel then asked the court for a running objection to that testimony so as to prevent objection before the jury, and the court granted the request.

On direct examination before the jury, Peggy testified that: (1) the complainant did not wish to go swimming at Gottlich's house; (2) the complainant was crying and scared; (3) Gottlich had requested the complainant go swimming at his house to which she replied, "no, I don't want to go. I want to stay with my sister."; and (4) the complainant had told her that the events had taken place for two months.

No Texas cases speak to the sufficiency of the summary of the testimony of an outcry witness with regard to hearsay statements not contained in the summary. The hearsay statements admitted in this case, which were not specifically in the summary, spoke to the circumstances leading up to the outcry statement of the complainant, that is, that the complainant stated that she did not want to go swimming at Gottlich's house. In addition, a hearsay statement was admitted describing the length of time that Gottlich had been abusing the complainant. We hold that there was no error in the admission of these statements due to their nature in describing the circumstances leading up to the outcry statement and its details.

Furthermore, all that is required is that the defendant receive adequate notice of the content and scope of the outcry testimony. See Norris v. State, 788 S.W.2d 65, 68 (Tex.App.--Dallas 1990, pet. ref'd); Fetterolf v. State, 782 S.W.2d 927, 930 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd). The purpose of article 38.072 is to prevent any surprise from the introduction of the outcry testimony. Brown v. State, 756 S.W.2d 793, 797 (Tex.App.--Houston [14th Dist.] 1988, pet. ref'd). Gottlich received the summary of the testimony as well as an opportunity to access the prosecutor's file, which in fact, he exercised months before trial. The trial court conducted a hearing on the outcry testimony during which Gottlich would have been able to cross-examine Peggy, but did not do so. Moreover, Gottlich obtained a copy of the complainant's videotaped statement, a copy of the State's witness list, and an audio recording of Gottlich's parole revocation hearing at which the complainant testified regarding her abuse by Gottlich. In fact, Gottlich had an opportunity to cross-examine both the complainant and Peggy prior to their testimony at trial, and did cross-examine the complainant about her outcry statement at Gottlich's probation revocation hearing some three years before trial. Furthermore, the complainant testified at trial. Therefore, we hold that Gottlich had adequate notice of the actual content of the outcry statement and could not have suffered any surprise or harm from the outcry testimony. We overrule the first point.

In his second point, Gottlich contends that because Gottlich wrote a letter to the district attorney that implicated his trial attorney in an insurance fraud, a conflict of interest arose which denied him effective assistance of counsel. Over a year before trial, Gottlich wrote and mailed a letter to the Tarrant County District Attorney's office in which he stated that his trial attorney was an accomplice to a felony insurance fraud, and that he would testify against his attorney in exchange for leniency in the current charges against him. A motion for new trial was heard based upon this alleged newly discovered evidence and was denied.

This point raises for the first time in Texas whether a conflict exists under these circumstances. However, any motion made after trial has ended, complaining of a conflict of interest between a client and his attorney, is untimely. Lerma v. State, 679 S.W.2d 488, 497 (Tex.Crim.App. [Panel Op.] 1982); Deloro v. State, 712 S.W.2d 805, 809 (Tex.App.--Houston [14th Dist.] 1986, no pet.). We find that because Gottlich did not raise the issue of a conflict of interest until his motion for new trial, he waived this point. We note, however, that even if Gottlich had timely objected, there was no conflict.

Mere assertion of a conflict is not enough; a defendant "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Ex Parte Acosta, 672 S.W.2d 470, 474 (Tex.Crim.App.1984), quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); Dillon v. State, 747 S.W.2d 387, 389 (Tex.App.--Dallas 1987, pet. ref'd). Gottlich never demonstrated any actual conflict that adversely affected his lawyer's performance.

At the hearing on the motion for new trial, Gottlich testified that he did write the letter to the district attorney's office, along with other letters implicating other people. Gottlich admitted that he wrote all of the letters in order to get probation for the offense with which he was currently charged because he knew that he had a prior conviction for aggravated sexual assault of a child.

Gottlich also attempted to show that his attorney was not aware of the letter implicating him in a felony until the day of trial; however, his trial attorney testified that he had looked at the file at the district attorney's office numerous times before trial, and had been aware of the letter probably a couple of months before trial. In addition, Gottlich's trial attorney testified that he had questioned Gottlich about the letter and Gottlich apologized saying that he had been "mad at everybody when [he] wrote [the letter]." Gottlich's trial attorney stated that he was not surprised by the letter and he had not thought much about it "because people in jail say anything about anybody." Gottlich's trial attorney also testified that Gottlich had not complained and had in fact told him that he wished him to remain on the case. Thus, we would overrule point two because Gottlich acquiesced in his representation by his trial attorney.

In his third point of error, Gottlich complains that the trial court erred in submitting a charge on the lesser included offense of indecency with a child because: (1) the jury was able to convict him of the lesser included offense upon proof not necessary for the greater offense, aggravated sexual assault of a child; (2) the State abandoned the lesser included offense, which was originally count two of the indictment; (3) and as a consequence, he was deprived of notice of the charges against him.

First, Gottlich argues under point three that the proof necessary to convict of the greater offense required evidence that Gottlich "cause[d] the penetration of the female sexual organ" of the complainant "by placing his finger in the vagina" of the complainant, implying that Gottlich had touched the complainant's vagina with his finger. However, Gottlich maintains the charge defined sexual contact for purposes of indecency with a child as "any touching of any part of the genitals of another person" and case law defines genitals as including "the vulva which immediately surrounds the vagina." See Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977). Thus, the jury could convict on proof that Gottlich merely touched ...