Pratt v. State

• Decision Date: 10 March 1988
• Docket Number: No. 01-87-00257-CR,01-87-00257-CR
• Citation: Pratt v. State, 748 S.W.2d 483 (Tex. App. 1988)
• Parties: Eugene PRATT, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 483

748 S.W.2d 483

Eugene PRATT, Appellant, v. The STATE of Texas, Appellee.

No. 01-87-00257-CR.

Court of Appeals of Texas Houston (1st Dist.).

March 10, 1988.

Rehearing Denied April 8, 1988.

Will Gray, Houston, for appellant.

John B. Holmes, Dist. Atty. Harris County, Cathy Herasimchuk, Asst. Dist. Atty., for appellee.

Before EVANS, C.J., and SAM BASS and DUNN, JJ.

DUNN, Justice.

A jury found appellant guilty of sexual assault. The court rejected his motion for probation and sentenced him to 16 years confinement.

The only issues at trial were whether complainant consented, and whether appellant used force, threats, or violence, the elements necessary under the statute for sexual assault, Tex.Penal Code Ann. sec. 21.02 (Vernon 1974). Both complainant and appellant testified at trial. Appellant knew complainant from seeing her at a service station where complainant's boyfriend worked. On the night of the offense, appellant went by the apartment project where he formerly lived. As he entered the grounds, he saw complainant going to the washateria in the complex. He joined her and waited with her while she finished her wash. Upon leaving, complainant slipped and fell, and appellant helped her up and helped carry her belongings to her apartment. After this point their testimony conflicts about whether complainant consented to their subsequent sexual intercourse.

In point of error one, appellant argues that the trial court improperly allowed the State to introduce the arrest warrant and supporting affidavit, over appellant's timely objection that the affidavit was hearsay. After a hearing outside the presence of the jury, the court overruled appellant's objection, finding that appellant had "opened the door as to the validity of the to-be warrants and the reason for the probable cause stated in those warrants."

Appellant contends that he did not open the door to the issue of probable cause. Appellant states that hearsay information concerning probable cause to arrest must be heard by the court but not by the jury. Ramos v. State, 395 S.W.2d 628 (Tex.Crim.App.1965). Furthermore, it is reversible error for the trial court to admit prejudicial evidence over an objection that it is hearsay. Vara v. State, 466 S.W.2d 315, 316 (Tex.Crim.App.1971).

It is well established that hearsay evidence relating to probable cause is not admissible before a jury if the issue of probable cause is not raised. Perez v. State, 678 S.W.2d 85 (Tex.Crim.App.1984); Gaston v. State, 574 S.W.2d 120 (Tex.Crim.App.1978). However, as the State argues, if appellant's counsel brings the issue of probable cause before the jury, the door is opened for the State to introduce evidence to show probable cause, including hearsay evidence. Gaston, 574 S.W.2d at 121; Roberts v. State, 545 S.W.2d 157 (Tex.Crim.App.1977).

The State argues that appellant "opened the door" to the issue of probable cause in the following cross-examination of Officer Wendell, the officer in charge of the follow-up investigation, who took complainant's statement and signed the affidavit for the arrest warrant:

Q. And one of the reasons--as a matter of fact, probably the primary reason you take a statement in these kind of cases, a sworn statement, is because of the constitutional guarantee that no warrant shall issue except on probable cause based on sworn oath or affidavit, correct?

A. I don't know. I'm sure there is some legal reason why we take statements but there are cases in which charges are filed that statements are not taken so I'm not....

Q. Sure. For instance, where a person is in the hospital and is unable to give a statement or unable or is dead, homicide?

A. Right.

Q. But even then someone is going to sign an oath or affidavit setting out the probable cause to go out and arrest that citizen accused of that crime, correct?

A. I believe it has something to do with the officer who files the charges, he is swearing to the affiant that he talked to. He is signing his name on the warrant or on the charge there.

Q. On the affidavit?

A. Based on the affidavit that he has talked to this person.

Q. So the real purpose, the primary purpose of taking that statement, is to establish probable cause for a warrant?

A. Yes, sir.

Q. And to reduce the facts, the known facts, that are being alleged to written form and sworn written form, correct?

A. Yes, sir.

Q. So in that endeavor you routinely take statements and you try to make them complete and thorough as possible, do you not?

A. Yes.

Q. And certainly in a rape case you have handled enough of these crimes to understand that there needs to be some force or violence or threats or much force or violence to cause the complainant to submit to whatever the sexual action is for it to be a sexual assault, correct?

A. That is part of the Penal Code, yes, sir.

Q. So certainly you would have paid attention to any allegations of violence of weapons or threats or force that this complainant told you about, correct?

A. Yes.

Q. You wouldn't have left out the fact that there was a weapon used, would you?

A. No, sir, would not.

Q. And you didn't in this case, did you?

A. I don't believe I did.

Q. And you didn't leave out any punch or allegations of life-threatening threats made or violence or force that she told you about, did you?

A. No, sir.

[Complainant's statement is identified.]

* * *

* * *

Q. And is that the complete statement?

A. Yes, sir, it is. It's the original.

Q. And is this the foundation upon which you were able to secure the warrant and the charges of this Defendant?

A. Yes, sir, I was.

Q. You showed that to the D.A.?

A. Yes.

[Complainant's statement is admitted].

* * *

* * *

Q. This statement didn't include any threats he had made to her, verbal threats, did it, that you recall?

A. I don't recall, sir.

Q. And it certainly didn't say anything about a weapon being displayed, did it?

A. I don't recall.

Q. And it didn't say anything about him punching her or twisting her or doing anything to inflict injury or any sort of force that would inflict injury, did it?

A. No, sir.

* * *

* * *

Q. Did you discuss this statement with the District Attorney's Office?

A. Yes, I did.

Q. Do you remember which district attorney you discussed it with?

A. No, I didn't.

Q. Do you recall them having any concern about whether this statement would justify a sexual assault charge being filed?

A. I don't remember.

Q. Do you remember having any fact [sic] about the fact there doesn't appear to be force, threats, or violence alleged in the statement?

A. I don't remember, sir.

* * *

* * *

Q. When you take a statement like this in this kind of a case, before they sign it, do you ask them if it is a complete statement, if there is anything else they want to add to it?

A. Yes, sir.

* * *

* * *

Q. You really don't have any independent recollection of what happened on October 9th but you can recognize your own signature and the fact that you took this statement; is that correct?

A. Yes, sir, that's correct.

[On redirect, the State offered the affidavit into evidence.]

At the hearing, the State argued that (1) appellant's questions regarding the probable cause required for the affidavit brought the existence of the affidavit before the jury; and (2) questions regarding possible concerns expressed by the district attorney, about whether force or threats were used, intimated concern over the strength of the case or whether an offense had occurred.

Appellant explained that his initial questions, establishing that one of the reasons for taking a complainant's statement was to establish probable cause, was in response to the following line of questioning by the State on direct examination of Officer Wendell:

Q. Is part of the reason a statement is taken so that if and when a case does come to trial they will be able to refresh their memory?

A. That's correct.

Q. Is there any other reason?

A. It is just operating procedure that we take written statements in sexual assault cases.

Appellant urged his objection that the affidavit was not only hearsay, but contained second-hand and third-hand hearsay. He pointed out that the affidavit was based on complainant's statement given to Officer Wendell, and on the offense report by the officers who conducted the on-scene investigation. Furthermore, the affidavit contained words of "force," "threat," and "violence" (words tracking the sexual assault statute), which Officer Wendell admitted were not part of complainant's statement, but had been added by the district attorney. Appellant agreed to the admission of some hearsay testimony, but not second-hand and third-hand hearsay about which he would be unable to cross-examine anyone. Officer Wendell had already testified that he had no independent recollection of October 9th, the day he took complainant's statement and signed the affidavit.

Although the court overruled appellant's objection and allowed the introduction of the affidavit, it expressed concern about the words that Officer Wendell admitted had been added by the district attorney. The court deleted the phrase "by force and threat" in one place; however, over appellant's objection, it refused to delete words of "force" in other places. Appellant's objection to "surplusage" contained in the affidavit was also overruled.

The State argues that the affidavit was clearly admissible under the rule of optional completeness, Tex.R.Crim.Evid. 107, which reads:

When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation, writing or recorded statement is given in evidence, any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. 'Writing or...