Kirchner v. State

• Decision Date: 23 September 1987
• Docket Number: No. 4-86-00305-CR,4-86-00305-CR
• Citation: 739 S.W.2d 85
• Parties: Gilbert Lee KIRCHNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 85

739 S.W.2d 85

Gilbert Lee KIRCHNER, Appellant, v. The STATE of Texas, Appellee.

No. 4-86-00305-CR.

Court of Appeals of Texas,

San Antonio.

Sept. 23, 1987.

Rehearing Denied Oct. 16, 1987.

Charles Campion, San Antonio, for appellant.

Sam Milsap, Jr., Former Crim. Dist. Atty., Fred G. Rodriguez, Criminal Dist. Atty., Mary Farias, Juan Chavira, Illse D. Bailey-Graham, San Antonio, for appellee.

Before CADENA, C.J., and DIAL and CHAPA, JJ.

OPINION

DIAL, Justice.

This is an appeal from a conviction by a jury for indecency with a child. Punishment was set by the court at five years probated.

The first point of error is that the trial court erred in refusing to admit into evidence defense testimony showing bias, motive and ill-will on the part of the State's witness, Bertha Kirchner. Bertha Kirchner was the defendant's ex-wife and was the mother of the child complainant.

In his brief the defendant states that he wanted to show that Mrs. Kirchner had developed a keen bitterness towards the defendant based upon their previous domestic relationship. He said he was not allowed to do this even though he explained the purpose of such inquiry.

It is unquestioned that a witness may be impeached by a showing of interest, bias, prejudice or other motive which tends to effect his credibility. Steve v. State, 614 S.W.2d 137, 140 (Tex.Crim.App.1980), 1 RAY TEXAS EVIDENCE 3d ed. § 670. But in order to preserve a complaint for appellate review a defendant must have presented to the trial court a timely request or objection with sufficient specificity to apprise the court of the grounds. He must then obtain a ruling on that request or objection. TEX.R.APP.P. 52(a). Nowhere did the trial judge rule that Bertha Kirchner's keen bitterness, ill-will, bias or prejudice against the defendant could not be properly proved by appropriate testimony.

To place the questions that the court did actually rule upon in proper context, it is necessary to understand that the defendant and the witness Bertha Kirchner were married in 1979, were separated in 1982 and were divorced in March 1983. The offense was alleged to have occurred August 19, 1984, and the trial was in March 1986.

The defendant only refers us to three places in the record where questioned rulings were made by the trial court. The first one occurred during cross-examination of Bertha Kirchner by the defense counsel. She was asked "who filed the petition for the divorce?" The State's objection as to relevance was sustained by the court. The second question inquiring as to whether or not the defendant had children by a previous marriage was also ruled to be irrelevant by the trial court. The defense counsel then stated that he wished to develop the relationship that the witness and the defendant had over the years. But that was certainly not the question asked and ruled on by the court at that time.

When the defendant testified, he was permitted to describe in detail the deteriorating relationship between him and Bertha Kirchner. The defendant was also permitted to describe the personality traits of Bertha. In response to another objection the court gave a ruling and an explanation as follows:

I think the objection is well taken, counsel. I don't think that--see, we are trying a child molestation case, we are not trying their divorce. The problem is that the relationship between these parties that have some relationship to this offense are relevant. Anything else isn't. You know, it is just sort of not really connected with it.

The judge was obviously attempting to permit the defendant the latitude necessary to described fully his relationship to Bertha as it related to the offense. The defendant was permitted to describe fully his relationship with the witness contemporaneous with the alleged offense.

The only other question referred to in the defendant's brief on which there was an adverse ruling occurred during the direct examination by the defense of Shirley Parker, sister of the defendant. She was asked, "What did Bertha Kirchner tell you in regard to Gilbert Kirchner at that time frame?" The State objected on the grounds that it was a hearsay statement, and the court inquired if it was being offered under some theory that made it an exception to the hearsay rule. The defense counsel responded "motive, scheme, plan, design, as far as the allegations that are before this jury." The objection was then sustained.

Under TEX.R.CRIM.EVID. 803(3) a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design) is not excluded by the hearsay rule. However, defendant does not urge reliance on this rule in his brief. As best can be determined, defendant's present contention is that it was an offer to show a prior inconsistent statement by the witness Bertha Kirchner. On cross-examination Bertha had denied that she had told the defendant that she was going to "get" him. She further denied having told anyone that she would "destroy" the defendant. She did admit that she told the defendant she was going to do something about it.

As part of defendant's bill of exception Shirley Parker was asked if Bertha Kirchner had told her she would destroy the defendant. Parker testified that sometime prior to August 19, 1984, Bertha said she was hurt she would like to make the defendant feel the hurt; she did not say "destroy." She did say she would get even with him.

Since the ruling of the trial judge complained of had to do with whether or not the evidence came under one of the exceptions to the hearsay rule, it is incumbent on the defendant to give argument and authority supporting the same allegation of error. Otherwise, it is not reviewable on appeal. Milligan v. State, 554 S.W.2d 192, 195 (Tex.Crim.App.1977).

If however, the defendant's contention on appeal is that testimony of Parker should have been admitted to show prior inconsistent statements of Bertha Kirchner, there is no reversible error for an additional reason. Any inconsistencies on the part of Bertha Kirchner to be gleaned from Parker's testimony on the bill of exception are so minute that we find beyond a reasonable doubt that any error in the exclusion of the testimony made no contribution to the conviction or to the punishment. TEX.R.APP.P. 81(b)(2). Error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is effected. TEX.R.CRIM.EVID. 103(a).

The questions inquiring as to who filed the petition in the divorce case and how many children the defendant had by prior marriage had absolutely no tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable. The evidence was not relevant and was thereof inadmissible. TEX.R.CRIM.EVID. 401 and 402. The argument that the answers might have led to admissible evidence is rebutted by the fact that the trial court permitted the defendant to testify concerning the prior relationship of the parties and its deterioration. The defendant was also permitted to testify concerning the personality traits of Bertha Kirchner that had a bearing on the controversy.

Nowhere is it demonstrated that the trial judge made an incorrect ruling. Therefore, the first point of error is overruled.

The second point of error is that that the trial court erred in finding the four year old complainant competent to testify. TEX.R.CRIM.EVID. 601 (which replaced art. 38.06 TEX.CODE CRIM.PROC. effective September 1, 1986) now provides that every person is a competent witness except an insane person or children who "after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated."

A hearing was held on the defendant's motion to determine competency. Though some of the child's answers were conflicting and showed confusion, her competency was a question for the trial court. The court's decision will not be disturbed on appeal in the absence of an abuse of discretion. Garcia v. State, 573 S.W.2d 12, 14 (Tex.Crim.App.1978). In determining whether there was an abuse of discretion, a review of all the child's testimony rather than just the preliminary qualification should be made. Fields v. State, 500 S.W.2d 500, 503 (Tex.Crim.App.1973). We note that in Fields the Court of Criminal Appeals found no abuse of discretion in the trial court permitting a four year old witness to testify. We find no abuse of discretion here and overrule the point of error.

In his last point of error, appellant contends the evidence is insufficient to sustain his conviction. We disagree.

The standard of review in both circumstantial and direct evidence cases requires that we look at the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 563 (1979); Dickey v. State, 693 S.W.2d 386, 387 (Texas.Crim.App.1984) (en banc). In a trial by jury, reconciliation of conflicts in contradictions in the evidence is within the province of the jury, and such conflicts will not call for reversal if there is enough credible testimony to support the conviction. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982) (en banc). Looking at the evidence in the light most favorable to the prosecution the record contains some testimony from the child complainant that the alleged offense took place. Bertha Kirchner testified that the child complained about the incident to her the same night when she discovered the vaginal area red and swollen. The child's teacher Frances Bollier, testified that the child complained about the incident to her. Debra Randall, a Bexar County Child Welfare social worker, testified that the child had indicated at one point in the videotape that the...