Ochs v. Martinez
| Decision Date | 16 May 1990 |
| Docket Number | No. 04-89-00007-CV,04-89-00007-CV |
| Citation | 789 S.W.2d 949 |
| Parties | Donna OCHS, Lyle Myers and Beatrice Myers, Appellants, v. Reynaldo MARTINEZ, Appellee. |
| Court | Texas Court of Appeals |
Thomas Rocha, Jr., San Antonio, for appellants.
Dan Carabin, San Antonio, for appellee.
Before BUTTS, CHAPA and BIERY, JJ.
OPINION ON APPELLEE'S MOTION FOR REHEARING
The appellee's motion for rehearing is denied. The opinion of January 17, 1990 is withdrawn and this opinion is substituted.
This is an appeal from an order changing managing conservatorship of two young girls from their mother to their father. Appellants are the girls' mother, Donna Ochs, and their maternal grandparents, Lyle and Beatrice Myers. 1 Custody of the two girls had been awarded to the mother upon the couple's divorce in 1986. As the result of a 1988 jury trial, the father obtained the order changing managing conservatorship to himself. The jury's decision that custody should be transferred to the father was based upon testimony by the father's witnesses that the mother's new husband had sexually abused the younger of the two girls. We reverse and remand this cause to the trial court for a new trial.
Reynaldo and Donna Martinez were divorced, with custody of their daughters E____ and H____, ages five and three respectively at the time of the divorce, being awarded to Donna. Both Reynaldo and Donna were married to other persons shortly thereafter. The girls then made their home with their mother, Donna, and their new stepfather, Jack Ochs. At the trial on the change of custody, Reynaldo Martinez presented evidence that H____ had been sexually abused by her new stepfather, and appellants presented evidence to the contrary. In brief, the following evidence was presented:
In a videotaped interview with a social worker before the trial, H____ described alleged sexual abuse by her stepfather. The videotape was shown to the jury during trial. Later, during a pre-trial hearing before the trial judge in chambers, the child recanted, denying that any abuse had taken place. The child's recantation testimony was read to the jury during the trial.
The remainder of the testimony upon which the jury based its decision consisted of what the child is reputed to have related to her paternal grandmother, her father, her stepmother, a policeman, a psychologist, and a medical doctor. No physical evidence existed which indicated that sexual abuse had occurred, nor was there any other corroboration of the testimony about abuse.
Based on the evidence presented involving sexual abuse allegations, the jury found that the girls' circumstances were materially and substantially changed, that retention of the mother as managing conservator would be injurious to the girls' welfare, and that positive improvement would result from transfer of custody to the girls' father. See TEX.FAM.CODE § 14.08(c)(1) (Vernon 1986 & Supp.1990).
Donna Ochs and Mr. and Mrs. Myers assert nine points of error on appeal. In points of error two, three, four, seven, and eight, appellants allege that the trial court committed error by allowing testimony from Reynaldo Martinez' witnesses which was inadmissible under the Texas Rules of Civil Evidence and the Texas Family Code. We agree, and sustain these points of error.
* * * * * *
Appellants' first two points of error deal with the videotape introduced by Reynaldo Martinez which showed H____ being questioned about sexual abuse by a social worker from the Texas Department of Human Services.
Appellants' first point of error attacks the constitutionality, under the Sixth Amendment to the U.S. Constitution, of the Texas Family Code section providing for the admission into evidence of the videotape. Section 11.21 of the Texas Family Code provides for the admission of videotaped testimony of a child 12 years of age or younger who is alleged to have been abused. TEX.FAM.CODE ANN. § 11.21 (Vernon 1986). The Texas Family Code section is virtually identical to Art. 38.071 of the Texas Code of Criminal Procedure except that the criminal statute mandates that the child be available to testify. TEX.CODE CRIM.PROC.ANN. art. 38.071 (Vernon Supp.1989). Article 38.071 has been held unconstitutional by the Texas Court of Criminal Appeals. Long v. State, 742 S.W.2d 302, 318-19 (Tex.Crim.App.1987). The decision in Long was based upon denial of the right of an accused to confront witnesses against him as provided by the Sixth Amendment. The amendment applies by its own terms only to "all criminal prosecutions" and therefore is inapplicable in civil cases. U.S. CONST. AMEND. VI. The appellants' first point of error is overruled.
Appellants contend by their second point of error that H____ was subjected to leading questions during the videotaped interview which was shown to the jury. The Family Code provision for videotaping of a child's testimony prohibits questions calculated to lead the child to make a particular statement. TEX.FAM.CODE § 11.21(b)(4) (Vernon 1986). Appellants assert that the social worker, while interviewing H____ on videotape, used leading questions prohibited by the statute. Id.; see also Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984).
Upon our viewing of the videotape, we found certain questions posed by the interviewer to be leading. The conversation between the social worker and H____ follows:
Q. Here we go. My name is ____ and I am a child protective services specialist for the Department of Human Services located at 700 Steves in San Antonio, Texas. Today I am talking to H____ Martinez. Hi. H____, can you tell me how old you are?
A. Four and a half.
Q. Four and a half. Do you know when your birthday is?
A. I forgot.
Q. You forgot. Do you know what month you were born in?
A. No. This was a long long time ago.
Q. Okay. You're four and a half. And let's see. So, that means you don't go to school yet, right?
A. Right.
Q. All right.
A. I used to go to school, but not any more.
Q. Okay. Where do you live right now, H____, who do you live with?
A. My stepdad and my real mama--and my real mama.
Q. Your stepdad and your real mom. Do you know what their names are?
A. Donna Ochs and Jack Ochs.
Q. Okay. Do you know their addresses or your address where you live, the street that you live on?
A. [____.] (Child names street.)
Q. Okay. Do you know your telephone number by any chance?
A. [____.] (Child recites phone number.)
Q. That is very good. Okay. Okay. Let me ask you some questions. Let's see. Since you're not in school yet, let me ask you some other questions to see what you know. If I said that your--that your bear here is--
A. Blue.
Q. --is blue, would that be a truth or a lie?
Q. A lie.
A. A lie, because what color is your bear?
Q. Pink.
A. Okay. And if I said that your stockings here are green, is that a truth or a lie?
A. A lie.
Q. Okay. Because what color are they?
A. White.
Q. White. Okay. If I said I have on a gold watch, is that the truth or a lie?
A. A lie.
Q. What color is that? I think it's gold, isn't it? That would be a truth. Okay. So when we talk today, I want to talk about what it means to tell the truth and a lie. All right?
A. Okay.
Q. And you told me pretty much that you know the difference there. What happens when you tell a lie?
A. I think you got a hundred spankings.
Q. You got a hundred spankings? Okay. But when you tell the truth, that's right a good thing; right?
A. Right.
Q. Okay. So, will you promise to tell me today that everything that you tell me is the truth? It would be real important to tell me the truth?
A. Uh-huh.
Q. Okay. We're going to be talking about something that happened to you and we're going to use some of these dolls, okay? These are special dolls that we use when we talk to boys and girls. And they have all their body parts on them. And I would like for you to tell me what you call all of these body parts, okay?
A. Okay.
Q. Okay. Just a second here. We have four dolls and some of them are men dolls and some of them are lady dolls.
A. Okay.
Q. Okay. Do you think we could talk about, first of all, which one of these would look most like you. Okay. If we took all four of these dolls, if we took all of these dolls, which one of these dolls do you think would be most like you? Do you think you can tell? That one? Okay. That is a little girl doll. Okay. When I said we were going to talk about something, it's something that happened to you that got you upset, right?
A. Right.
Q. Which one of these dolls look most like the person that's upset you? Was it a man person or a lady?
A. A man.
Q. A man?
A. Uh-huh.
Q. Which one of these dolls would be the man?
A. That one. It was that one because he didn't have any moustache.
Q. This one?
A. Yeah. No, that one.
Q. Which is the man doll? There is a little boy and a man and a lady. This one? Okay. Okay. Let us start with the one that is the little girl like you?
A. Okay.
Q. Let's see. What do you call this up here?
A. Her hair.
Q. Her hair?
A. Uh-huh.
Q. Okay. What about this?
A. Mouth.
Q. Mouth. Do you have a name for these?
A. Titties.
Q. Titties? Okay. And how about this?
A. Bellybutton.
Q. Bellybutton. And this?
A. Her arms.
Q. Arms. Okay. And these?
A. Legs.
Q. Legs. Do you have a name for this?
A. Baby box.
Q. Baby box? Okay. How about back here?
A. Back.
Q. Back. Okay. How about this?
A. Butt.
Q. Okay. Okay. Now, let's look at the man doll. He's a little bit different, isn't he?
A. Yup.
Q. What are these called right here?
A. His eyes.
Q. Eyes. And you said this is what?
A. His moustache.
Q. Moustache. Okay. How about these?
A. Hand.
Q. Hand. Okay. And let's take these off. What are these?
A. His legs.
Q. Okay. Do you have a name for this? Do you have a name for this right here?
A. No.
Q. What do you call that?
A. Weiner.
Q. A weiner. Okay. Do you have a name for this? What is that called?
A. A butt.
Q. A butt? Oh, Okay. This here? That is the...
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