Reed v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before HARDBERGER; ANGELINI
• Citation: Reed v. State, 974 S.W.2d 838 (Tex. App. 1998)
• Decision Date: 24 June 1998
• Docket Number: No. 04-97-00316-CR,04-97-00316-CR
• Parties: Dennis Owen REED, Appellant, v. The STATE of Texas, Appellee.

Page 838

974 S.W.2d 838

Dennis Owen REED, Appellant, v. The STATE of Texas, Appellee.

No. 04-97-00316-CR.

Court of Appeals of Texas San Antonio.

June 24, 1998.

Roger Bridgwater, Law Offices of Roger Bridgwater, P.C., Houston, for appellant.

Ronald L. Sutton, Dist. Atty., Donnie J. Coleman, Asst. Dist. Atty., Junction, for appellee.

Before HARDBERGER, C.J., and RICKHOFF and ANGELINI, JJ.

OPINION

ANGELINI, Justice.

Dennis Owen Reed appeals his conviction for two counts of indecency with a child. Reed raises three issues on appeal: (1) he contends that he is entitled to a new trial because a State's witness acted as part-time bailiff during the trial; (2) he contends that the trial court erred in designating the outcry witness; and (3) he contends that the prosecutor engaged in improper jury argument. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In June, 1996, cousins, Jennifer, Jimmy, Dustin, Eric, and Kayla Schoppe, went with their grandmother, Sharon Tomlinson, to Dennis Reed's house. Tomlinson was Reed's housekeeper. As Tomlinson worked in Reed's house, the children played outside. Reed gave the children rides on his riding lawn mower throughout the afternoon.

That evening, Jennifer approached her father, Wayne Schoppe, and told him that Reed had told Kayla that it was okay to touch her between her legs. Schoppe called Kayla into the room and questioned both of the girls. He discovered that, while giving the girls rides on the lawn mower, Reed had put his hand inside their bathing suits and touched their "private parts." The girls also reported an incident in a bathroom where Reed watched them changing clothes.

The following morning, Schoppe contacted Deputy Steve Brown who came to Schoppe's residence and discussed the incident with Schoppe and Tomlinson. The next day, Judy Brown with Child Protective Services conducted a video taped interview of the girls. An investigation ensued, and Reed was eventually indicted on two counts of indecency with a child by contact.

Reed pled not guilty, and proceeded to trial before a jury. The jury returned a verdict of guilty, and assessed punishment at twenty years confinement on each count.

ARGUMENT AND AUTHORITY

A. Disqualification of a Prosecution Witness

In his first issue on appeal, Reed contends that he is entitled to a new trial because a State's witness acted as "part-time bailiff" during trial. Reed preserved this argument in a motion for new trial. At the hearing on Reed's motion, Deputy Steve Brown, a State's witness during the guilt/innocence phase of Reed's trial, acknowledged that during the punishment phase, he adjusted the microphone for at least two witnesses, he stepped into the jury box to adjust curtains and windows, and he sat in a chair next to the jury box for a short time. There was also testimony that Brown helped at least two witnesses to the witness stand, but Brown denied doing so. Brown testified that he was at no time functioning as a bailiff during this trial and that he did not have any direct contact with either witnesses or jurors when he adjusted the microphone or the curtains. Following argument by counsel, the trial court denied Reed's motion for new trial.

The Texas Code of Criminal Procedure clearly provides that "if a person is to be called as a witness in [a] case, he may not serve as bailiff." TEX.CODE CRIM. P. art. 36.24 (Vernon 1981); see Ex parte Halford, 536 S.W.2d 230, 233 (Tex.Crim.App.1976) (reversing a conviction because the bailiff testified against the defendant and also had close contact with the jury for five days as their bailiff).

In Turner v. Louisiana, the United Sates Supreme Court held that a conviction could not stand where two crucial witnesses acted as bailiff during the course of a three day trial. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). The jury was sequestered and the witness/bailiffs were in "close and continual association with the jurors." Id. Similarly, in Gonzales v. Beto, the sheriff performed the dual role of key witness for the prosecution and bailiff for the jury. Gonzales v. Beto, 405 U.S. 1052, 92 S.Ct. 1503, 31 L.Ed.2d 787 (1972). The court held that the conviction could not stand where the sheriff had escorted the jurors into and out of the courtroom, ate with the jurors, and brought the jurors refreshments while they deliberated. Id.

However, the Gonzales court noted that its decision in Turner did not establish a rigid per se rule requiring the automatic reversal of any case in which a State's witness comes in contact with the jury. Id. at 1054, 92 S.Ct. 1503. Instead, to determine whether a defendant's due process rights were violated, we must assess both the extent of the bailiff's association with the jury and the importance of his testimony. Onofre v. State, 836 S.W.2d 807, 811 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd); Long v. State, 820 S.W.2d 888, 891 (Tex.App.--Houston [1st Dist.] 1991, pet. ref'd) (citing Gonzales, 405 U.S. at 1054, 92 S.Ct. 1503). In doing so, the facts of each case must be examined to determine what, if any, impact the bailiff's testimony had on the jury. Criado v. State, 438 S.W.2d 557, 559 (Tex.Crim.App.1968). Under this analysis, the fact that a bailiff testifies as a witness is not ordinarily grounds for reversal unless harm or prejudice is shown. Id. at 560; Strickland v. State, 784 S.W.2d 549, 554 (Tex.App.--Texarkana 1990, pet. ref'd).

In the present case, Deputy Brown was a key State's witness, and he did act, in a limited capacity, as bailiff. However, in performing these "bailiff-like" duties, his contact with the jury was minimal. At most, the jury saw Deputy Brown escort witnesses to the stand, adjust the microphone, adjust the curtains, adjust the windows, and sit in a chair next to the jury box for between five and twenty minutes. There is no evidence that he had any personal contact with any juror or that he ever exerted control over the jury. The type of juror contact in this case is analogous to that in Silva v. State, 499 S.W.2d 147 (Tex.Crim.App.1973), where a sheriff, who was a key State's witness, brought the jurors coffee while they deliberated. In Silva, the court found that such insignificant contact did not demonstrate harm. Id. at 151.

More importantly, by the time Brown performed the actions at issue, the jury was not in a position of ascribing extra credibility to his testimony because of his assistance to them. See Onofre, 836 S.W.2d at 811. Brown's testified only during the guilt/innocence phase of trial, and the actions at issue occurred during the punishment phase of trial. At the punishment phase, Brown's testimony regarding guilt/innocence had already been considered by the jury. Therefore, during the time Brown made adjustments in the courtroom, his testimony was no longer crucial to the issues before the jury. Accordingly, Reed has failed to show he was harmed by Brown's dual role. ¹ Reed's first issue on appeal is overruled. ²

B. Outcry Witness Testimony

In his second issue on appeal, Reed contends that the trial court erred in allowing Wayne Schoppe to testify as the State's outcry witness. According to Reed, Judy Brown, the CPS worker who interviewed the children, was the proper outcry witness. Reed argues that the girls' statements to Schoppe regarding the incident in question were not detailed enough to qualify him as an outcry witness.

Article 38.072 of the Texas Code of Criminal Procedure allows the admission of certain hearsay testimony in the prosecution of offenses committed against children twelve years old and younger. TEX.CODE CRIM. P. art. 38.072 § 1 (Vernon Pamph.1998). However, article 38.072 applies only to statements made (1) by the child against whom the offense was committed, and (2) to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Id. at § 2(a). According to the court of criminal appeals, the outcry witness under this statute is the first adult to whom the child makes a statement that "in some discernible manner describes the alleged offense." Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990). The statement must be more than a general allegation of sexual abuse. Id.; Schuster v. State, 852 S.W.2d 766, 767 (Tex.App.--Fort Worth 1993, pet. ref'd).

Pursuant to article 38.072, the trial court must hold an in camera hearing in order to determine whether a witness qualifies as an outcry witness. TEX.CODE CRIM. P. art. 38.072 § 2(b)(2) (Vernon Pamph.1998); Dorado v. State, 824 S.W.2d 794, 795 (Tex.App.--El Paso 1992), vacated on other grounds, 843 S.W.2d 37 (Tex.Crim.App.1992). The trial court has broad discretion in this regard, and the trial court's exercise of discretion will not be disturbed on appeal unless a clear abuse of that discretion is established by the record. Garcia, 792 S.W.2d at 92; Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.--Houston [14th Dist.] 1996, pet. ref'd).

In the present case, the record reflects that the trial court conducted the appropriate in camera hearing in order to determine the admissibility of Wayne Schoppe's outcry testimony. Schoppe testified that Jennifer came into his room the evening after she had been at Reed's house. Jennifer told him that Reed had told Kayla it was okay for him to touch Kayla between the legs. Schoppe asked Jennifer if Reed had touched her between the legs, as well. Jennifer said that he had. Schoppe then called Kayla into the room, and Kayla confirmed what Jennifer had said. The girls told Schoppe that the touching had occurred while Reed was giving them rides on his lawnmower. Schoppe asked them if Reed was not just trying to keep them from falling off of the lawnmower. The girls said that he was not because he was touching them underneath their bathing suits. Jennifer told her father that it felt like Reed was pinching her. Jennifer also testified at the hearing, and said that her father...