Hallman v. State

• Decision Date: 07 May 2020
• Docket Number: No. 02-18-00434-CR,02-18-00434-CR
• Citation: 603 S.W.3d 178
• Parties: Robert F. HALLMAN, Appellant v. The STATE of Texas
• Court: Texas Court of Appeals

603 S.W.3d 178

Robert F. HALLMAN, Appellant

v.The STATE of Texas

No. 02-18-00434-CR

Court of Appeals of Texas, Fort Worth.

Delivered: May 7, 2020

Discretionary Review Granted September 30, 2020

ATTORNEY FOR APPELLANT: LISA MULLEN, FORT WORTH, TX.

ATTORNEY FOR STATE: JOSEPH W. SPENCE, CHIEF, POST CONVICTION, SHELBY J. WHITE, ASHLEA DEENER, SAMANTHA FANT, ASST. CRIM. DIST. ATTYS., FORT WORTH, TX.

Before Sudderth, C.J.; Gabriel and Wallach, JJ.

Opinion by Chief Justice Sudderth

I. Introduction

Appellant Robert F. Hallman was indicted on one count of continuous sexual abuse of children (Amy and Rita).¹ He was also indicted on two counts of aggravated sexual assault of a child under the age of 14, three counts of indecency with a child by contact, and one count of sexual assault of a child under the age of 17, but these charges involved only Amy.

Before trial, the State provided Hallman's defense counsel with a two-page notice of disclosure pursuant to Texas Code of Criminal Procedure Article 39.14 that did not include 13 pages of discovery regarding a separate August 10, 2014 incident between Hallman and Kim, who is Amy and Rita's mother and was a key witness for the State.² Several witnesses testified about the August 10 incident during the guilt-innocence phase of trial, but the 13 pages were not disclosed to Hallman's defense counsel until the second day of the punishment phase of the trial, after the jury had acquitted him of the continuous-sexual-abuse count but convicted him of all of the remaining counts.

Hallman moved for a mistrial on the untimely disclosure. After the trial court denied Hallman's mistrial request, the jury assessed his punishment for each of the six counts at life imprisonment, and the trial court set those sentences to run concurrently.

In a single point, Hallman argues that the trial court abused its discretion by denying his request for a mistrial, complaining that the State violated Article 39.14's discovery requirements. We agree and therefore sustain Hallman's sole point, reverse the trial court's judgment, and remand the case for a new trial.

II. Background

A. Timeline

Hallman lived off-and-on with his wife Kim and the children—Rita, Amy, their younger brother Ron, and their younger sister Kelly—until August 2014. During Hallman and Kim's tumultuous 20-year relationship, they took turns calling the police on each other.

In 2016, Amy moved out and lived with Hallman in his vehicle. Not long thereafter, Rita made a delayed outcry of sexual abuse by Hallman, resulting in Hallman's arrest and Amy's return to Kim. Kim then filed for a divorce from Hallman, which was finalized on September 9, 2016. Prior to Hallman's original trial date on Rita's allegations, Amy made a delayed outcry of sexual abuse by Hallman, resulting in the trial's delay.

B. Testimony about the August 10, 2014 Incident during Guilt-Innocence

During the guilt-innocence phase of Hallman's trial, five witnesses were called to testify about the August 10 incident—Rita, Amy, Kim, the detective assigned to investigate the sexual abuse case, and one of the two officers who responded to the August 10 call. Depending upon which witness testimony is believed, the incident began either when Amy tried to leave with Hallman and Kim tried to stop her, or when Hallman hit Ron, Amy and Rita's younger brother. While the facts surrounding the incident provided the jury with insight into Hallman's relationship with Kim, Amy, and Rita, on appeal we will focus primarily on Kim's statement to the police and specifically whether she had mentioned her concerns that Hallman was sexually abusing Amy.

Fort Worth Police Sergeant Jonathan McKee, who investigated the sexual abuse allegations two years later, testified that on August 10, Rita had called the police to report the domestic disturbance and that Hallman was arrested as a result of that call.

Rita said that she had called the police that day because Hallman and Kim had gotten into an argument and had started fighting after Hallman hit Ron. Amy said that the altercation between Hallman and Kim began because Amy had wanted to leave with Hallman, and when Kim had grabbed her in a way that cut off her air supply, Hallman had tried to defend her.

Kim stated that Rita and Ron had each called the police to report that Hallman was assaulting her, that she had "told the police on August the 10th, 2014, that [she] had suspicions that [Hallman] may have been sexually molesting [Amy]," and that an officer had pulled Amy aside separately and spoke with her.

But Amy said that while she "[p]ossibly" or "probably" told the police that Kim had grabbed her in a way that kept her from being able to breathe, when she spoke with a CPS worker that day, she told the CPS worker "no" when asked if anyone had ever sexually abused her. Amy acknowledged that while Kim had been furious when Amy called Hallman to come get her, Kim had said nothing about being afraid that he was going to sexually abuse her. Rita also recalled speaking with the CPS worker and acknowledged that when the CPS worker asked her if anyone had ever touched her inappropriately, she had said, "No."

Crowley Police Detective Cesar Robles, who had worked for the Fort Worth Police Department on August 10, 2014, was called by the defense and testified that he was one of the two patrol officers who responded to the domestic disturbance call that day. He stated that Kim never told him or the other responding officer, Officer Oakley, that she was concerned that one of her children was being sexually abused and that if she had, they would have investigated further.

During cross-examination by the prosecutor, Detective Robles testified that he had no independent recollection about the incident except for his report. He did not remember what Amy, Kim, or Hallman looked like, and he did not recall whether they had been emotional. When asked whether in responding to the domestic disturbance, he would have gone over to any of the children involved and asked whether Hallman had touched them, Detective Robles replied, "No, ma'am," and agreed that such questioning would not have been appropriate. On redirect examination by the defense, Detective Robles agreed that Kim never mentioned concerns about sexual abuse. Officer Oakley was not called as a witness.

C. Disclosure during Punishment Phase

During the second day of the punishment phase of trial, Hallman's defense counsel notified the trial judge, who had not presided over the guilt-innocence phase of the trial, that the State had just disclosed new information to the defense, stating,

[F]or the record, we filed a 39.14 motion for discovery of all offense reports. And just this morning, about five minutes ago, all it took was the State to electronically make this discovery available. And I received 13 pages of discovery we've never seen before dealing with the August 10th, 2014, incident, which the Court doesn't know, but it's been litigated throughout this trial.

Among these records include a family violence packet we've never seen before. Among these records include an affidavit by C. Robles who has testified in this case, who we called and had no idea he provided an affidavit in connection with this case. Among these records include a statement by [Kim], one of the primary witnesses of the State, that we've never seen before in connection for this.

.... And our client gave a statement in connection with the 2014 offense that we've never seen before and have never been provided. That is a violation of 39.14, Judge.

....

... We have made strategic decisions based upon the state of discovery that we received, and we have done so to our detriment because this information has not been provided to us, Judge.

We don't have to specifically name which items we are entitled to because we don't know what the State has, and that's why we asked for everything. This isn't even gray. This is our client's statement. This is [Kim's] statement. This is a primary witness by the State that we've never been given this information of.

....

And not only that, Your Honor, just now in looking at [Kim's] statement, there are inconsistencies with her testimony. So we were not allowed to question her. And her credibility -- our whole Defense was that it was the mother who put these children up to making these statements. And anything we could do to impeach her credibility was crucial to this case. And I'm looking at the statement and seeing that there are inconsistencies with her testimony.

So it is crucially relevant to this, despite the fact that it involved a separate offense. The -- 38.37 allows them to go into the entire relationship between the defendant and the alleged victims, and that was a crucial part.

The prosecutor agreed that the August 10 offense had been litigated during the guilt-innocence phase of trial even though it was a separate offense. The prosecutor also stated,

[W]e have had so many different hearings on discovery in this case. I am trying to comply and give them everything that I possibly can. I ... when we have access to it, yes, it exists on TSP [the electronic discovery system]. They asked for the offense report. I made sure that they had the offense report. We -- they have asked for numerous things.^{[3 ]} It was my understanding that they have already subpoenaed all this stuff from Fort Worth Police Department because we had a discovery hearing months ago where they had issued two, three, five different subpoenas for all these records. So I actually thought Defense had more than we actually had in this case.^[4]

But we're not trying to hide anything. This is dealing with a 2014 report. They specifically asked for the offense report. We've given that report over to them. This is an – they've asked for the family violence packet now. This is an eight-page family violence packet. I think if the remedy is for 39.14, if they feel that this is something they need to go into, then how much time do they need to go through for an eight-page

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