Romines v. State

• Decision Date: 24 September 1986
• Docket Number: No. 2-84-341-CR,2-84-341-CR
• Citation: Romines v. State, 717 S.W.2d 745 (Tex. App. 1986)
• Parties: Boyce Gene ROMINES, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 745

717 S.W.2d 745

Boyce Gene ROMINES, Appellant, v. The STATE of Texas, State.

No. 2-84-341-CR.

Court of Appeals of Texas Fort Worth.

Sept. 24, 1986.

Kenney Yarbrough, Denton, for appellant.

Jerry Cobb, Crim. Dist. Atty., and Jim E. Crouch, Asst. Crim. Dist. Atty., Denton, for state.

Before the court en banc.

OPINION

HOPKINS, Justice.

Boyce Gene Romines has appealed the judgment rendered against him in which he was assessed seven years in the Texas Department of Corrections by a jury for the offense of aggravated sexual assault. TEX.PENAL CODE ANN. sec. 22.021 (Vernon Supp.1986).

We reverse and remand.

In this case, Romines was charged with aggravated sexual assault of a three-year-old girl whom his wife was babysitting at the time of the incident. The State in its case relied primarily on two pieces of evidence. One was a statement made by Romines in which he denied committing the offense on the date alleged in the indictment, but admitted committing the offense during the week preceding the alleged date. Also, the State relied upon a videotape made of the victim in which she testified that Romines committed the offense by putting his finger in her vagina.

Romines objected to the admission of the videotape on the grounds that he was denied the right to confront the witness against him. Additionally, he objected that the victim was not competent to testify and that the interview which had taken place was made in a leading manner. The trial court overruled his objections and the videotape was played at the trial.

Appellant presents four points ¹ of error. In his first point of error he raises the issue of the constitutionality of the State's use of the videotape. It is well settled that we may not reach the question of the constitutionality of a statute unless a decision on its constitutionality is absolutely necessary for a decision of the case. Smith v. State, 658 S.W.2d 172, 174 (Tex.Crim.App.1983). Thus, we must first address the points of error which do not raise constitutional issues.

Point of error four asserts error in the admission of an extraneous offense. Appellant gave a written statement to the police, denying that he had committed any offense on the date alleged in the indictment, but admitting that he had committed the charged offense during the week previous to that date. In this statement, appellant described the circumstances of the offense somewhat differently than did the child in her videotape. We view the immaterial differences between the statements of appellant and the child as going to the credibility of the two statements, and hold that these differences do not lead to the conclusion that two separate offenses are shown. Therefore, appellant's statement was admissible to prove the allegations contained in the indictment. Furthermore, the variance in the dates is of no consequence since the date alleged in a complaint, information or indictment need not be the exact date the offense occurred. The State is not bound by the alleged date so long as the date proved is anterior to the filing of the State's pleadings and not so remote as to show that the offense is barred by the statute of limitations. See McManners v. State, 592 S.W.2d 622, 623 (Tex.Crim.App.1980); Williams v. State, 565 S.W.2d 63, 64 (Tex.Crim.App.1978); Neal v. State, 374 S.W.2d 668, 669 (Tex.Crim.App.1964); White v. State, 86 Tex.Crim. 420, 217 S.W. 389, 389 (1919) (opinion on reh'g); Sanders v. State, 70 Tex.Cr.R., 209, 156 S.W. 927, 928 (1913); TEX.CODE CRIM.PROC.ANN. art. 21.02(6) (Vernon 1966). We overrule point of error four.

Because all of these remaining points of error concern the admissibility of the child's videotaped statements, we will first set out the applicable law and facts of this case.

The relevant portion of the child videotape statute reads as follows:

Art. 38.071. Testimony of child who is victim of offense

....

Sec. 2. (a) The recording of an oral statement of the child made before the proceeding begins is admissible into evidence if:

(1) no attorney for either party was present when the statement was made;

(2) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;

(3) the recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and has not been altered;

(4) the statement was not made in response to questioning calculated to lead the child to make a particular statement;

(5) every voice on the recording is identified;

(6) the person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party;

(7) the defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and

(8) the child is available to testify.

(b) If the electronic recording of the oral statement of a child is admitted into evidence under this section, either party may call the child to testify, and the opposing party may cross-examine the child.

TEX.CODE CRIM.PROC.ANN. art. 38.071, sec. 2 (Vernon Supp.1986).

The record before us contains the videotape which was admitted into evidence and pursuant to appellant's request we have reviewed same in its entirety. Thus, since the record does not reveal that the trial court examined the witness in person, we have the same information the trial court had in determining the competency of the witness.

In the second point of error, appellant contends that the trial court abused its discretion in admitting the videotape testimony of the child because the child was incompetent to testify since: (1) she did not appear to possess sufficient intellect to relate the transaction in question, and (2) the videotape contained unsworn testimony and there had been no finding that the child had sufficient knowledge of the importance of telling the truth. See TEX.CODE CRIM.PROC.ANN. art. 38.06 (Vernon 1979). Prior to the introduction of the videotape, appellant objected on the ground that the child was not shown to be a competent witness. In the third point of error, appellant complains that the leading questions of the videotape interviewer were calculated to elicit suggested answers from the child. We will discuss both points jointly.

First, we note that TEX.CODE CRIM.PROC.ANN. art. 38.071 does not require that a child be placed under oath. See Jolly v. State, 681 S.W.2d 689 (Tex App.--Houston [14th Dist.] 1984, pet. granted). Second, TEX.CODE CRIM.PROC.ANN. art. 38.06 does not set a minimum age at which a child may testify.

In Clark v. State, 659 S.W.2d 53 (Tex.App.--Houston [14th Dist.] 1983, no pet.), the court held that a three-year-old child was a competent witness although there were conflicts in the testimony. The burden of showing incompetency is upon the party challenging the competency of the witness. See Hennington v. State, 101 Tex.Crim.R. 12, 274 S.W. 599, 600 (1924) and Beavers v. State, 634 S.W.2d 893, 895 (Tex.App.--Houston [1st Dist.] 1982, pet. ref'd). A determination of the witness's competency is primarily the function of the trial court and the decision will not be disturbed unless there is a showing of an abuse of discretion. See Williams v. State, 439 S.W.2d 846, 848 (Tex.Crim.App.1969) and Clark, 659 S.W.2d at 55.

There is little dispute that many of the questions asked by the interviewer were "leading," however, in our view, there was no suggestion of answers to the crucial testimony concerning the offense. The witness used an anatomically correct doll to show what she called the placement of a "tu-tu" on the doll as the term applied to herself and the area where appellant had placed his finger. She thus demonstrated her knowledge of what appellant had done to her. Unaided by leading questions, the child testified that appellant pulled her pants down and touched her "tu-tu."

Although the better practice would suggest that the interviewer or the trial judge conduct preliminary questioning testing the witness's competency, such determination may be made from a review of the child's entire testimony rather than the preliminary qualification. See Fields v. State, 500 S.W.2d 500, 503 (Tex.Crim.App.1973). The record reflects that the trial judge viewed the videotape testimony in its entirety, as this court has done, and determined that the child was competent and that the questions were not impermissibly suggestive. We find no abuse of discretion by the trial court and appellant's second and third points of error are overruled.

In his first point of error, appellant contends that the trial court erred in admitting the videotape into evidence because it deprived him of his right to confront and cross-examine the witness against him. Compare Long v. State, 694 S.W.2d 185 (Tex.App.--Dallas 1985, pet. granted) with Newman v. State, 700 S.W.2d 307 (Tex.App.--Houston [1st Dist.] 1985, pet. pending); Mallory v. State, 699 S.W.2d 946 (Tex.App.--Texarkana 1985, pet. pending); Tolbert v. State, 697 S.W.2d 795 (Tex.App.--Houston [1st Dist.] 1985, pet. pending); Alexander v. State, 692 S.W.2d 563 (Tex.App.--Eastland 1985, pet. granted); and Jolly, 681 S.W.2d at 689. While we note that it is the minority view among our sister courts, we accept as correct the decision in Long, holding the above quoted portion of the statute to be unconstitutional for the reasons and analysis stated in Long and for the further reasons herein given.

In Newman and Alexander, the First and Eleventh Courts of Appeals, respectively, found that the statute was constitutional based on the reasoning in Jolly, a decision of the Fourteenth Court of Appeals. In Jolly, the reasoning of the court in upholding the statute was as follows:

The admission of such testimony is specifically allowed by the above article so long as the victim is available to testify. It is undisputed that the child was available at...