Jolly v. State, C14-83-693CR

• Decision Date: 19 July 1984
• Docket Number: No. C14-83-693CR,C14-83-693CR
• Parties: Willie John JOLLY, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 689

681 S.W.2d 689

Willie John JOLLY, Appellant, v. The STATE of Texas, Appellee.

No. C14-83-693CR.

Court of Appeals of Texas,

Houston (14th Dist.).

July 19, 1984.

William Vance, Bryan, for appellant.

Terrence Keel, Asst. Dist. Atty., Bryan, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

JUNELL, Justice.

This is an appeal from a conviction for the offense of aggravated sexual abuse of a child pursuant to TEX.PENAL CODE ANN. § 21.05 (Vernon 1974). A jury found appellant guilty as charged and assessed punishment at seventy-six (76) years in the Texas Department of Corrections and a $10,000 fine. We affirm.

Appellant was convicted of having engaged in deviate sexual intercourse with his seven-year-old stepdaughter, R______ W______. On November 2, 1982, James Easley, brother of the child's mother, received a phone call from his sister, Anita Webb Jolly. Easley described his sister as being hysterical, crying hard, and asking him to come over to get her and her children, as she had just found out her daughter had been sexually abused by her husband, appellant in the instant case.

That same evening appellant voluntarily went to the Bryan Police Department and asked to speak with someone, stating he had done something of which he was ashamed and wanted to talk to about it. Sergeant Pete Willis listened to the appellant's tale of engaging in deviate sexual acts with his stepdaughter, including placing his penis in her mouth. During the course of the conversation, Sergeant Willis gave appellant his Miranda warnings. When Sergeant Willis asked appellant to give a written statement, appellant refused and left on his own volition.

A patrolman was later dispatched to the child's home. The officer made reports of his conversations with the child and her mother. These reports were followed by Detective Ernest Montoya's obtaining an arrest warrant for appellant.

During one of the pre-trial conferences conducted by the court, Sue Ann Jackson, a child-placement specialist for the Texas Department of Human Resources, testified she first met with the child in this cause on November 9, 1982, regarding a report Jackson's department had received on November 4, 1982 about the child. Jackson met with the child on several occasions prior to videotaping their September 29, 1983, interview. In that interview R______ W______ told of various sexual acts appellant had been performing on her since he had married her mother and begun living with Mrs. Jolly, R______ W______, and her brother, J.J. During that interview R______ W______ revealed the acts began when she was three or four years old. Her stepfather always "tucked" her in at night. He began putting "his personal place" [his penis] in her mouth. He would lick all over her body, including her breasts. He made her engage in the acts described almost every night (when her mother was not at home or was taking a bath or was outside mowing the grass). The videotape was previewed by the trial court and later admitted as State's Exhibit One. Although the record reflects that R______ W______ had been subpoenaed and was present and available to testify at trial, she was not called.

Prior to trial a civil suit for exemplary damages had been brought against the appellant by R______ W______ and her mother for the same underlying cause of action.

Appellant urges thirteen grounds of error: one regarding the admission of appellant's confession, two on exclusion of impeachment evidence related to the pending civil suit, one on admission of a statement made by the mother, and nine complaining of the admission of the videotape into evidence.

In his first ground appellant alleges the trial court reversibly erred in overruling his objection to the admission of his oral confession. Appellant contends TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1982-1983) prevents Officer Willis' testimony of appellant's oral statements to him from being introduced into evidence. We hold Article 38.22 is not applicable here. Appellant argues he was under custodial arrest at the time he made those statements and that they are therefore inadmissible. However, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) defines custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (emphasis added).

Appellant's situation is similar to those in Stone v. State, 583 S.W.2d 410 (Tex.Crim.App.1979) and Brooks v. State, 580 S.W.2d 825 (Tex.Crim.App.1979). In Stone the defendant voluntarily went to the police station in his own car after police officers interviewed him twice the day before; after both prior occasions he had been at liberty to leave. He was given his warnings pursuant to TEX.CODE CRIM.PROC.ANN. art. 15.17 and was then administered a polygraph test. Later he was informed he had failed the test and "probably" would be charged. At no time prior to the confession was Stone arrested or told he could not leave as he had been allowed to do previously. He made an oral confession. After more questioning by the police, he was arrested and charged. The court held he was not in custody at the time he made that confession. Stone, supra at 413.

In Brooks v. State, supra, the defendant had also voluntarily gone to the police and was not under arrest when he gave his statement to a Detective Tucker. Tucker testified defendant was free to go after finishing his statement. The court of criminal appeals held (1) appellant had gone to the police voluntarily, (2) his oral statement was not the result of custodial interrogation and (3) the oral statement was elicited prior to arrest.

In the instant case appellant also voluntarily appeared at the police station; he asked to speak with an officer and orally volunteered information in narrative form about what had occurred. As with the above two defendants, appellant was never placed under arrest and was free to leave at all times. After confessing, he called an attorney, who warned him not to sign any statements. Appellant then left. We conclude that the appellant was not undergoing custodial interrogation at the time he made his oral confession and that said confession was properly admitted. We therefore overrule appellant's first ground of error.

Appellant's second and third grounds contend error in excluding impeachment evidence showing that the victim of the offense and her mother had also filed a civil suit against appellant. Almost ten months before appellant's case went to trial, Mrs. Jolly, individually and as next friend of R______ W______, filed a Petition for Divorce alleging the acts of sexual abuse had transpired over a three and one-half year period. The petition included a request for exemplary damages of not less than $100,000. Appellant wanted to introduce this impeachment evidence through the testimony of Mrs. Jolly's attorney, John Delaney, and by having admitted into evidence a copy of the First Amended Original Petition for Divorce. Appellant's cited cases and his objective in the case at bar are distinguishable. Appellant's cases state that when a witness brings a civil suit growing out of the same incident against a defendant, this fact can be brought to the jury's attention in order to show motive and bias. However, appellant's cases indicate such must be done by cross-examination of the witness who initiated the suit, not by the introduction of the pleading itself or by the testimony of a third party. Cox v. State, 523 S.W.2d 695 (Tex.Crim.App.1975); Hoffman v. State, 85 Tex.Cr.R. 11, 209 S.W. 747 (1919).

If a witness testifies on behalf of the state against an accused, then the fact the witness has brought a civil suit, too, is admissible. Branford v. State, 165 Tex.Cr.R. 314, 306 S.W.2d 725 (1957). R______ W______'s testimony on the videotape is her direct testimony. Had appellant called her to the stand, he could have cross-examined her as to any possible knowledge of the pending civil suit. Appellant would have been allowed wide latitude in establishing facts tending to demonstrate ill-feeling, bias, motive, or animus. The jury would have been given the opportunity to judge the witness's credibility in light of that witness's feelings toward appellant. Appellant, however, chose not to call R______ W______ and therefore waived his opportunity of cross-examination and any possibility of impeaching her credibility. Attorney Delaney testified he had never even met R______ W______ so any testimony he might have proferred about her knowledge of the pending civil suit would have been hearsay and inadmissible for impeachment purposes. Green v. State, 566 S.W.2d 578 (Tex.Crim.App.1978). We overrule appellant's second ground of error.

It is axiomatic that the person to be impeached must be a witness. Here, the mother never testified; therefore, the trial court did not err in excluding Delaney's testimony regarding Mrs. Jolly's possible motives. We overrule appellant's third ground of error.

Under Appellant's fourth ground of error he contends the trial court erred in overruling his objection to the admission of hearsay evidence. Appellant claims Easley's testimony of his conversation with his sister, R______ W______'s mother, was hearsay, and that there was no res gestae exception proven at trial. The predicate for the admission of res gestae statements is:

(1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement;

(2) absence of time to contrive, misrepresent or fabricate; and (3) the statement must be related to the circumstances of the occurrence.

Martinez v. State, 533 S.W.2d 20, 23 (Tex.Crim.App.1976). We find appellant's argument that the state failed to establish this predicate by not proving when the child's mother first learned about the acts in question unconvincing. Although time is to be taken into consideration, the paramount...