Mosby v. State, 13-84-189-CR

• Citation: 703 S.W.2d 714
• Decision Date: 31 October 1985
• Docket Number: No. 13-84-189-CR,13-84-189-CR
• Parties: Robert MOSBY, Appellant, v. STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 714

703 S.W.2d 714

Robert MOSBY, Appellant, v. STATE of Texas, Appellee.

No. 13-84-189-CR.

Court of Appeals of Texas Corpus Christi.

Oct. 31, 1985.

On Rehearing Dec. 12, 1985.

Carl Lewis, Corpus Christi, for appellant.

Grant Jones, Corpus Christi, for appellee.

Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.

OPINION

SEERDEN, Justice.

This is an appeal from a conviction for the felony offense of sexual abuse of a child. A jury assessed punishment of five years' imprisonment. Appellant does not challenge the sufficiency of the evidence to support the conviction. We reverse the conviction and remand.

In his first ground of error, appellant complains of the admission into evidence of conversations between himself and Dr. Kay Nelson, a psychologist. Dr. Nelson is a family counselor. She is a certified sex therapist and is licensed by the State of Texas as a professional counselor. She talked to appellant and his wife, beginning in late March, 1983, and ending in May, 1983. The conversations between Dr. Nelson and appellant were in regard to charges of sexual abuse of his stepdaughter and were characterized as in the nature of counseling and therapy sessions. During these sessions, Dr. Nelson testified that appellant admitted to her that he committed the offense with which he is charged in this case.

The prosecutrix testified that the offense occurred. Her ten year old brother testified. With the use of dolls he demonstrated that on an unspecified occasion he had seen the appellant and the prosecutrix in his mother's room sitting together naked on the bed. He testified that no one else was in the room. After a conference with the State's attorney during a recess he again recounted this occasion and demonstrated with the dolls again. The second demonstration showed the prosecutrix sitting on appellant's face. In addition, he testified his mother was also present and demonstrated that she was laying naked on the bed with appellant and the prosecutrix.

The appellant denied the commission of the offense. The nineteen year old sister of prosecutrix testified she had lived with appellant and the family during the time of the alleged offense and was unaware of any improper sexual conduct on appellant's part. Dr. Nelson's testimony was obviously harmful to appellant and if not admissible because of the claim of privilege, its admission caused reversible error.

Appellant objected to Dr. Nelson testifying, asserting that the conversations were privileged as communications between a patient/client and a professional as defined in TEX.REV.CIV.STAT.ANN. art. 5561h (Vernon 1964) and that no exception to the privilege of confidentiality exists. The State concedes that the relationship in this case is covered by the language of the statute but points out that no such privilege is mentioned in TEX.CODE CRIM.PROC.ANN. art. 38.10 which defines who are competent witnesses in criminal cases. The State's only contention before this Court is that there is a conflict between the two statutes, and therefore the code of criminal procedure governs and the privilege created by the civil statute is inapplicable. We find no such conflict.

Article 5561h provides the confidentiality of mental health records and also provides a number of exceptions to such privilege. See Section 4 of the act. We see no conflict between such civil statute and the provisions of 38.10. This matter was considered in Tumlinson v. State, 663 S.W.2d 539, 543-544 (Tex.App.--Dallas 1983, pet. ref'd) when it stated:

"Rules of evidence prescribed in our civil statutes, where applicable, govern in criminal actions when not in conflict with provisions of the Texas Penal Code, or Texas Code of Criminal Procedure. (TEX.CODE CRIM.PROC.ANN. art. 38.02 (Vernon 1979). Further, no evidence obtained in violation of the laws of the State of Texas shall be admitted in evidence against the accused in the trial of a criminal case where proper objection is timely raised. TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon 1979)."

The Dallas Court then applied art. 5561h to the facts of that case, thus requiring a reversal of that trial court's judgment. See also, Fuentes v. State, 673 S.W.2d 207 (Tex.App.--Beaumont 1984, pet. ref'd); Smith v. State, 667 S.W.2d 836 (Tex.App.--Dallas 1984, pet. ref'd). Appellant's objection to the testimony of Dr. Nelson should have been sustained. Appellant's first ground of error is sustained.

In his second ground of error, appellant contends that "[t]he trial court erred in permitting the exclusion of the public during the testimony of the State's witness Michael Palmer and in allowing the Guardian Ad Litem representing Michael Palmer to remain in the courtroom and in such a position as to affect the jury's consideration of his testimony."

The record shows that the State called Michael Palmer, a child approximately eleven years old, to testify about specific sexual acts involving himself, appellant and several other members of his family. Prior to his testimony, the State moved to exclude from the courtroom members of the general public during the examination of Michael in order to protect the witness from harassment or undue embarrassment. The trial court granted the State's motion over appellant's objection that he was entitled to a "public trial."

Appellant contends, without authority, that, by excluding the general public from the courtroom, he was denied his right to an open and public trial as guaranteed by article 1.24 of the Texas Code of Criminal Procedure. We disagree.

The right to a public trial afforded an accused is not absolute: limitations on public attendance may be imposed so long as they are no more exclusive than necessary to protect a state interest that outweighs the appellant's interest in public scrutiny of the proceedings. Rovinsky v. McKaskle, 722 F.2d 197 (5th Cir.1984) (Jolly, J., dissenting) (Reh'g denied). The protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify is a state interest sufficiently weighty to justify partial or complete exclusion of the public. Id. at 200.

We hold that the action of the court was not in violation of the appellant's right to a public trial. It was proper, under the circumstances, to exclude from the courtroom those individuals who were not participants in the proceeding because of the extremely sensitive nature of the evidence being developed and the youthful age of the witness. See TEX.R.EVID. 610(a)(3).

Next, appellant's counsel objected at trial to the position of the guardian ad litem, Ms. Jack, in the courtroom during the child's testimony. He claimed that her position in the courtroom would lend credibility to the testimony of the witness to the prejudice of appellant. We disagree. The record shows that Ms. Jack was seated slightly behind the witness chair (approximately 15-20 feet). The jury was told by the trial court, prior to Michael's testimony, that Ms. Jack "is an attorney and officer of the court; that she will not be participating in the actual trial, but she will be present as she is legally designated as Guardian Ad Litem of the child for the purposes of litigation." Appellant has failed to show that the guardian's physical location in the courtroom affected the jury's assessment of the witness' credibility.

Appellant's final complaint under his second ground of error, that the trial court abused its discretion by allowing the jury to observe the "cuddling and handling" of the witness by the prosecutor and Ms. Jack, is also without merit. The record shows that, during direct examination of Michael, the State requested that the attorneys approach the bench for a brief hearing. Thereafter, the jury was excused for a recess. Appellant then complained that, at some point during the bench conference, Michael left the witness stand and sat in Ms. Jack's lap, which the jury was allowed to observe. However, it was after the jury was removed from the courtroom that appellant contended that the prosecutor and Ms. Jack "hugged him" and "kissed him." Appellant has failed to show that he was in any way harmed. Appellant's second ground of error is overruled.

In his third ground of error, appellant contends the trial court erred in overruling his objection to the prosecutor's final argument where the prosecutor asked for "a finding of guilty because if you find this appellant not guilty, he'll go down and walk out this door and he may meet other little children. You may have grandchildren...." Objection was made before the statement "other little children" and at the end of the statement that the argument was not material and argued matters not in evidence. In view of our disposition of the first ground of error and the fact that the jury argument must always be judged in connection with the surrounding circumstances, it is unnecessary to consider appellant's complaint in this area. Nevertheless, we caution counsel for the State to keep its remarks in summation within the framework announced in Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973) or risk the often unnecessary and always unpopular and costly necessity of reversal and retrial.

The judgment of the trial court is REVERSED and the cause is REMANDED.

NYE, Chief Justice, dissenting.

I respectfully dissent from the majority's decision to reverse the conviction of the sexual abuse of a child. Their interpretation and application of the mental health privilege provided by Rule 510(b)(1) of our Texas Rules of Evidence ¹ is incorrect. In addition, the admission of the same evidence without objection throughout the trial cured the error, if any there was.

Article 5561h and Rule 510(b)(1) are the operative statutory provisions relevant to this case. However, I fail to see how a determination of this issue disposes of appellant's claim that the admission of his communications to Dr. Nelson violated this patient/psychologist...