Stone v. State
| Decision Date | 22 November 1978 |
| Docket Number | No. 55471,No. 3,55471,3 |
| Citation | 574 S.W.2d 85 |
| Parties | Cloice William STONE, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Robert T. Baskett, court appointed, Dallas, for appellant.
Henry M. Wade, Dist. Atty., Steve Wilensky and Davis C. Schick, Asst. Dist. Attys., Dallas, for the State.
Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
Appeal is taken from a conviction for the sexual abuse of a child. V.T.C.A. Penal Code, Sec. 21.10. Punishment was assessed by the jury at 18 years and a fine of $10,000.
The record reflects that the appellant and his wife had hired their next-door neighbor to baby-sit with their children while both were at work. The children would either be taken to the neighbor's home in the morning or the neighbor would go to the appellant's home and return to her residence with the children. The youngest child, an infant of six months, required diapers and other supplies for her care. These supplies were stored in the appellant's residence. The baby-sitter stated that she would sometimes go there during the day to get additional supplies, and that both the appellant and his wife knew of and approved of this arrangement.
Neither the appellant nor his wife testified at his trial. At a hearing on appellant's motion to suppress, the wife testified that these supplies were usually taken to the baby-sitter with the children, but did not deny that the arrangement set out above existed. Both agreed that permission had been given for the baby-sitter to enter the house to get the items necessary for the infant's care.
On the date of the appellant's arrest, the baby-sitter had returned to the appellant's residence to get soap for the infant's bath. While in a bedroom, the baby-sitter saw a stack of photographs on a dresser and looked through them. The top photograph was of the appellant's infant child. Four of the other photographs in the stack were of the appellant. Two pictures showed the victim performing oral sex on him, one depicted the same little girl sitting on his lap while both were naked from the waist down, and the last picture was of the appellant standing naked alone. Two more photographs showed the same child performing oral sex on the appellant's wife. The remaining photograph was of the child naked from the waist down. The record reflects that these photographs were taken approximately one month before the appellant's arrest.
The baby-sitter took these photographs to the manager of the housing unit in which the appellant lived. The manager summoned the police and ultimately turned the photographs over to them. The photographs were also shown to the seven-year-old girl's parents.
At trial, the baby-sitter and the manager identified the girl in the pictures as the child of a family that lived nearby. These photographs were entered into evidence.
The seven-year-old girl in these photographs was allowed to testify after the judge questioned her and determined that she was a competent witness. The girl testified that she had been given candy to enter the appellant's residence and while in his residence that acts like those depicted in the photographs occurred. She also testified that the appellant attempted to have sexual intercourse with her and did have intercourse with his wife in the girl's presence. The girl also acknowledged that photographs were taken.
The girl's mother testified that the child lived with her and her second husband near the appellant's residence, but that they had moved the day after she learned of the incident depicted in the photographs. The girl's parents had visited with appellant and his wife socially for some four or five months prior to the appellant's arrest. The mother stated that the girl was undergoing psychiatric care and had become nervous and wary of men. The judge did not allow the State to inquire any further as to the exact nature or the seriousness of the child's mental problems.
At this point the parties and this witness retired to the judge's chambers. Further testimony was elicited there, and was transcribed by the court reporter. The mother testified that the girl was once placed in the voluntary custody of a child welfare agency. Her testimony also revealed that her first husband and his brother had possibly sexually abused the child about one year before the incident in question. She related that her first husband had slept with the girl and "apparently . . . pounced on her in his sleep," and that his brother had masturbated in front of the child. She also testified as to action taken by a Dallas court and the Department of Human Resources regarding both incidents of abuse. The girl was no longer allowed to see her natural father except in public when accompanied by other persons. The mother knew of no other incidents of abuse of the child. This testimony was not permitted in front of the jury.
The court also refused to allow the appellant to introduce testimony from appellant's son which defense counsel maintained would show that the son and two other boys, all about twelve years of age, had engaged in various sexual acts with this seven-year-old girl. Although no bill of exception was made of the boys' testimony, the court sustained the State's objection to the offer of such testimony.
Various police officers testified concerning the appellant's arrest and the chain of custody of the pictures. The appellant's employer testified at the punishment stage as to the appellant's good work record.
Appellant does not challenge the sufficiency of the evidence.
Appellant initially challenges the admission of the photographs into evidence. He maintains that Art. 38.23, V.A.C.C.P., prohibits introduction of evidence obtained in violation of law by a private citizen. This challenge is not based on a constitutional violation, however, but on the contention that the baby-sitter's removal of the pictures was a theft under V.T.C.A. Penal Code, Sec. 31.03, and therefore obtained in violation of the law.
Article 38.23, V.A.C.C.P., supra, provides:
"No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."
If no violation of the law occurred, this statute can have no application in the present case. Therefore, we see no need to determine whether the baby-sitter was an "officer or other person" under this statute, as we find the threshold question to be whether a violation of state law occurred.
V.T.C.A. Penal Code, Sec. 31.03, as applicable here, provides:
V.T.C.A. Penal Code, Sec. 31.01(3)(A), provides that:
The evidence in the present case does not support a finding of an intent to deprive by the baby-sitter. The pictures were turned over to the police and the owners identified. This negates any inference that she sought to deprive the owner of his property. The effect of these actions would be to facilitate the return of the property if the police did not find them to be evidence of a crime. We hold that Art. 38.23, supra, does not require the exclusion of this evidence.
The appellant also challenges the use of the pictures as evidence in that no proper predicate had been established and no witness had identified the pictures as to "whom, when and where" they were taken.
We first note that that the testimony of the...
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