Hill v. State

• Decision Date: 13 October 1999
• Docket Number: No. 10-98-278-CR,10-98-278-CR
• Citation: 3 S.W.3d 249
• Parties: (Tex.App.-Waco 1999) ROCKY LEE HILL, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 249

3 S.W.3d 249 (Tex.App.-Waco 1999)

ROCKY LEE HILL, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-98-278-CR

IN THE TENTH COURT OF APPEALS

October 13, 1999

From the 13th District Court Navarro County, Texas Trial Court # 26,657

REX D. DAVIS, Chief Justice

Before Chief Justice Davis, Justice Vance and Justice Gray.

Affirmed

O P I N I O N

The trial court convicted Rocky Lee Hill in a bench trial of indecency with a child. See TEX. PEN. CODE ANN. 21.11(a) (Vernon 1994). The court sentenced him to sixteen years' imprisonment. Hill claims in four issues that: (1) the evidence is legally and factually insufficient to support his conviction (2 points); (2) the court reporter improperly included the child-victim's nonverbal responses to questioning in the reporter's record; and (3) the court erred by failing to examine the victim to ascertain her competence to testify. We will affirm.

BACKGROUND

The indictment alleges in pertinent part that Hill committed the offense "by touching the genitals of [A.A.], a child younger than 17 years of age and not the spouse of the defendant." A.A. was ten-years-old at the time of the offense and eleven at trial. The court permitted A.A.'s mother to stand with her during her testimony. The critical portion of A.A's testimony follows:

PROSECUTOR:Okay. After he kissed on you, would you tell the Court whether or not he did anything else with his hands?

A.A.:(No response.)

PROSECUTOR:[A.], you're going to have to answer one way or the other. Did Rocky Hill do anything with his hands?

A.A.:Yes.

PROSECUTOR:Okay. What-did he put his hands-would you state whether or not he put his hands on your body?

A.A.:Yes.

PROSECUTOR:Did he place his hands on your private parts?

A.A.:Yes.

PROSECUTOR:Now, when we talk about "private parts" we're using not the scientific name, you understand that?

A.A.:(The witness nods.)

PROSECUTOR:Now, when we talk about "private parts" and you say that he put his hands on them, are you talking about your chest area or your area down below where you go to the bathroom?

A.A.:(The witness nods.)

PROSECUTOR:Which one? Where your chest is?

A.A.:(The witness holds up two fingers.)

PROSECUTOR:Where you go to the bathroom? You're signaling number 2; is that right?

A.A.:(The witness nods.)

The State called its second and final witness Marcy McCarter to provide outcry testimony. McCarter testified that A.A. told her on the date in question "that someone had sexually molested her." The State later asked McCarter whether A.A. named the person who had molested her. Hill objected because the question sought a hearsay response and because the State had not given him the notice required by article 38.072, section 2(b)(1) of the Code of Criminal Procedure for outcry testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.072, 2(b)(1) (Vernon Supp. 1999). The State withdrew McCarter and rested before the court could rule on Hill's objection. Hill did not ask the court to strike McCarter's prior testimony.

In argument, Hill challenged the sufficiency of the evidence to prove venue in Navarro County or to prove the offense alleged because "a little child" "testified" only "that Rocky put his hand between her legs." He argued that A.A.'s testimony raised a question "that there was possibly some coaching going on."

The State responded that A.A. and McCarter "prior to her being excused" both testified that the offense occurred in Navarro County. The prosecutor concluded, "The only believable evidence that we have in this case is that little girl that sat up there crying and embarrassed because she was forced to come in here and have to testify to that. And she told you the truth."

Before finding Hill guilty, the court stated:

With respect to the child witness herself, I realize the child was somewhat nonverbal, but the Court was in a position to appreciate her responses, both her verbal responses and her body language and head nods with respect to some of the questions that were asked.

With regard to her mother, who remained in the courtroom, the Court is not convinced that there was any sort of coaching. I had an opportunity to see any possible interplay between the mother and the child . . . .

Based on the evidence, I find the Defendant guilty of the offense alleged in the indictment in this case.

THE REPORTER'S RECORD

Hill contends in his third issue that the court reporter's inclusion of A.A.'s nonverbal responses during her testimony exceeds the parameters of appellate rule 34.6(a) which governs the content of the reporter's record. See TEX. R. APP. P. 34.6(a). He requests this Court to submit the record to the trial court "for corrections to ensure that the reporter's record is made to conform to what occurred in the trial court as to actual testimony given with the deletion of the nonverbal nods and hand signals referenced above." Id. 34.6(e)(3).

Rule 34.6(a)(1) provides in pertinent part that a stenographically-recorded reporter's record "consists of the court reporter's transcription of so much of the proceedings, and any of the exhibits, that the parties to the appeal designate." TEX. R. APP. P. 34.6(a)(1) (emphasis added). Rule 13.1(a) requires a court reporter to "make a full record of the proceedings." Id. 13.1(a) (emphasis added). Rule 34.6(e)(3) permits this Court to submit a reporter's record to the trial court for correction when the parties dispute the accuracy of the record. Id. 34.6(e)(3).

The appellate rules do not define what is included within the term "proceedings." Hill believes that rule 34.6 is "designed to capture testimony," presumably to the exclusion of any other matters which might transpire during a trial. He contends that A.A.'s nonverbal responses constitute "inaccuracies which should be removed for purposes of this Appeal."

When construing a procedural rule adopted by the Court of Criminal Appeals, we employ the ordinary tools of statutory construction. See State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim. App. 1997). We apply the plain meaning of the words contained in the rule unless such would lead to absurd results. Id.

Webster's Collegiate Dictionary defines "proceedings" to mean "events, happenings." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 929 (10th ed. 1993). Thus, we construe the term "proceedings" to mean those "events" or "happenings" which occur during the course of a trial or other hearing. The term is not limited solely to the recording of verbalized "testimony" as suggested by Hill.

This definition is confirmed by experience. Court reporters frequently report nonverbal and nontestimonial events in the record. For example, court reporters routinely note when the jury is present in the courtroom and when proceedings are being conducted outside the presence of the jury or at the bench outside the jury's hearing. Similarly, reporters record the trial court's rulings, which are not evidence and do not constitute "testimony."

This definition finds further support in the Uniform Format Manual for Texas Court Reporters recently adopted by the Court of Criminal Appeals.¹ See Order Adopting the Uniform Format Manual for the [sic] Texas Court Reporters and Amending Court of Criminal Appeals Order Directing the Form of the Appellate Record in Criminal Cases, 62 Tex. B.J 583-84 (Tex. Crim. App. Apr. 12, 1999).² Section 1.1(p) of the Uniform Manual defines "proceedings" to be "events or happenings in the courts, legislature, state agencies, depositions, grand juries, referees and court commissions." Uniform Format Manual for Texas Court Reporters 1.1(p), 62 Tex. B.J. 584 (1999) (hereinafter, "Uniform Format Manual").

The Uniform Manual also contains provisions for reporting the nonverbal conduct of a witness. Section 16.11 provides in pertinent part:

It is the responsibility of the attorneys, as well as the judge in some instances, to note for the record any significant nonverbal behavior (e.g., physical gestures and lengthy pauses on the part of a witness). If counsel or the court fail to refer to the witness's affirmative or negative gesture or other things occurring during the proceedings that may assist the reader, parenthetical notations may be used.

Id. 16.11, 62 Tex. B.J. 591. Subsection (a) of section 16.11 provides several "recommended parenthetical notations" including: "(Moving head up and down)" and "(Moving head side to side)." Id. 16.11(a). Section 16.15 provides:

16.15Verbal and Nonverbal Expressions. Expressions such as "Uh-huh" and "Huh-uh" should be transcribed accordingly. "Uh-huh is used when the speaker is answering affirmatively. "Huh-uh" is used when the speaker is answering negatively. In the instance where there is no verbal response to a query (i.e., person nodding or shaking head) the reporter/transcriber may indicate in the transcription that the person is indicating either affirmatively or negatively.

Id. 16.15, 62 Tex. B.J. 592.

Our research has disclosed at least four cases in which the appellate court relied on a child-witness's "nods" when deciding the case. See Rodriguez v. State, 802 S.W.2d 716 (Tex. App.-San Antonio 1990), reformed in part, 819 S.W.2d 871 (Tex. Crim. App. 1991); Macias v. State, 776 S.W.2d 255 (Tex. App.-San Antonio 1989, pet. ref'd); Gonzales v. State, 748 S.W.2d 510 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd); Rhea v. State, 705 S.W.2d 165 (Tex. App.-Texarkana 1985, pet. ref'd).

In Rodriguez, the court characterized the six-year-old's testimony thus:

The "testimony" of the complainant . . . shows she nodded her head affirmatively when asked, "Has anyone ever touched you in a bad way?" But when asked, "Who has touched you in a bad way?", she answered, "I don't know." Next was the inquiry, "When that someone touched you in a bad way, where did they touch you?" But the child refused to answer. When asked, "Can you tell me that person's name?", the child shook her head negatively.

Rodriguez, 802 S.W.2d at 724. The court found the evidence...