Tolbert v. State

• Decision Date: 27 January 1988
• Docket Number: No. 1161-85,1161-85
• Citation: 743 S.W.2d 631
• Parties: Oscar TOLBERT, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 631

743 S.W.2d 631

Oscar TOLBERT, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 1161-85.

Court of Criminal Appeals of Texas En Banc.

Jan. 27, 1988.

Gerald M. Brown, Temple, for appellant.

Charles J. Sebesta, Jr., Dist. Atty., Caldwell, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

Appellant was convicted before the trial court for aggravated sexual assault of a child and assessed a term of 40 years confinement in the Texas Department of Corrections. See V.T.C.A., Penal Code, §§ 22.011(a)(2)(B), 22.021(a)(5) (Vernon 1985). We will affirm the conviction.

On appeal to the First Court of Appeals, appellant argued the trial court erred in admitting over objection a pre-trial videotaped interview of the 11-year-old complainant made pursuant to Art. 38.071, § 2, V.A.C.C.P. Specifically, appellant contended that the statutory provision in question is an unconstitutional deprivation of his right of confrontation under the Sixth Amendment to the United States Constitution and under Art. I, § 10 of the Texas Constitution. The Court of Appeals disagreed, holding that Art. 38.071, § 2, V.A.C.C.P. was not "... prima facie invalid under the United States or Texas Constitution,...." Tolbert v. State, 697 S.W.2d 795 (Tex.App.--Houston [1st Dist.] 1985).

In his petition for discretionary review, appellant now presents three grounds for review, all dealing with the propriety of admitting the videotaped interview into evidence. He argues, in turn, that his right of confrontation was violated during the videotaping procedure, that he was denied effective assistance of counsel during the making of the videotape and finally, that he was denied effective assistance of counsel during the showing of the taped interview.

Recently, in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), a plurality ¹ of this Court held the following Based on our previous observations and authorities for reasons stated, we find that Art. 38.071, § 2, supra, is both facially and as it was applied to the appellant an unconstitutional deprivation of his right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution. In addition, and independent of the above finding, we further find that Art. 38.071, § 2, supra, is both facially and as it was applied to this appellant an unconstitutional deprivation of his state guaranteed right of confrontation under Art. I, § 10 of the Texas Constitution. ²

Following the opinions in Long v. State, supra, we are constrained to find that the trial court erroneously admitted the Art. 38.071, § 2, supra, videotape into evidence at appellant's trial. Unlike the case in Long v. State, supra, however, the instant cause was tried before the court and not before a jury, so the fact that inadmissible evidence was received does not automatically call for reversal. It is a well-settled rule of general acceptance that in a trial before the court, the presumption is entertained that the court as trier of fact disregarded any inadmissible evidence admitted at trial. See Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985); Keen v. State, 626 S.W.2d 309 (Tex.Cr.App.1981); Komurke v. State, 562 S.W.2d 230 (Tex.Cr.App.1978); Hernandez v. State, 556 S.W.2d 337 (Tex.Cr.App.1977); Larocca v. State, 479 S.W.2d 669 (Tex.Cr.App.1972) and cases cited therein; Milligan v. State, 170 Tex.Cr.R. 584, 343 S.W.2d 455 (1961); Arnold v. State, 161 Tex.Cr.R. 344, 277 S.W.2d 106 (1955), and cases cited therein. See also Flowers v. State, 482 S.W.2d 268 (Tex.Cr.App.1972). Said rule is also in effect at the punishment phase of a criminal trial. Tamminen v. State, 653 S.W.2d 799 (Tex.Cr.App.1983); Kimithi v. State, 546 S.W.2d 323 (Tex.Cr.App.1977); Maden v. State, 542 S.W.2d 189 (Tex.Cr.App.1976).

The effect of the aforesaid rule is that appellant carries the burden of proving that the trial court relied upon or even considered the inadmissible evidence in reaching his verdict or determining punishment. Tamminen v. State, supra; Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978). In Arnold v. State, supra, the Court approved the following test to be used to determine the question presented:

When a cause is tried before the court and there is nothing to show that the judgment was based upon the inadmissible evidence (such as by findings or conclusions of fact or law) it will be presumed that the trial judge disregarded incompetent evidence admitted at the trial and the judgment will not be reversed on appeal on the ground of the admission of incompetent evidence if sufficient proper evidence was admitted to sustain the judgment. Id 277 S.W.2d at 107.

See also Montes v. State, 473 S.W.2d 34 (Tex.Cr.App.1971); Milligan v. State, supra.

In Milligan v. State, supra, the appellant argued that the evidence was insufficient to support his DWI conviction because the State failed to prove up the chain of custody of the blood sample introduced into evidence over objection. Overruling that appellant's contention, we observed:

"He overlooks the fact that this was a trial before the court, a jury being waived, and that there was other evidence besides the blood sample to support the court's finding of intoxication. In such cases, this Court presumes that the trial court ignored any inadmissible evidence." (citation omitted).

Milligan, 343 S.W.2d at 457. See also Hattersley v. State, 487 S.W.2d 354 (Tex.Cr.App.1972) [appellate court may assume trial court did not consider inadmissible testimony as to reliability of prosecution witnesses]; Pereida v. State, 491 S.W.2d 668 (Tex.Cr.App.1973) [no reversible error in trial court's failure to grant appellant's motion to suppress pistol discovered during search of appellant where presumption entertained that court ignored inadmissible evidence, if any]; Angelle v. State, supra, [conviction affirmed where no showing that trial judge relied on or even considered charges pending against appellant]; Ex Parte LeBlanc, 615 S.W.2d 724 (Tex.Cr.App.1981) [presumption that wife's testimony improperly admitted was disregarded].

In the case at bar, there is no question that the videotaped interview with the complaining witness was played in the judge's presence at the beginning of trial. Appellant's motion to suppress was carried along until a later point in the trial, when the tape was admitted into evidence. However, appellant has failed to show that the judgment was based upon the evidence erroneously admitted, and our own examination of the record does not disclose overt reliance upon that evidence by the trial judge. Thus, after analysis through the first prong of the Arnold test, the judicial presumption may be further entertained. See Arnold v. State, supra.

Even with the appellant's failure to sustain his burden of proving reliance or consideration of the inadmissible evidence by the trial court, however, the judicial presumption should not be followed unless "sufficient proper evidence was admitted to sustain the judgment." Id 277 S.W.2d at 107. See also Ex Parte LeBlanc, supra. Here, three witnesses testified for the prosecution. The child-complainant testified that appellant had put his "ding-a-ling" or penis into her mouth on one occasion in Caldwell, ³ after which she became physically ill. According to the child, she was afraid to tell her mother of her father's actions because he threatened to "whip" her. She first informed her grandmother of the conduct after she and her mother moved to her grandmother's country residence.

Doris May Tolbert, wife of appellant and mother of the complainant, testified that the Tolbert family moved to Caldwell in 1982 and lived in a "white house" and later a "red house" across the street. It appears that Mrs. Tolbert was unaware of her husband's activities until March of 1984, when she and the complainant moved in with the grandmother. After being informed, Mrs. Tolbert took the child to a doctor and then to police authorities.

The first witness to testify for the State was the videotape interviewer. Examination of her testimony shows nothing of probative value as to the offense itself, her testimony largely relating to the predicate for admission of the videotape.

We are then left with the testimony of the complainant and her mother. The child's testimony established that appellant placed his "ding-a-ling" or penis into her mouth while the family was living in the "red house" in Caldwell, on or near the date specified in the indictment. Mrs. Tolbert testified as to background for the incident, placing the family at certain locations within the particular time frame involved. She also testified as to the complainant's outcry to grandmother and mother, respectively. Finally, she related to the court her actions in taking the complainant to the doctor and to law enforcement authorities.

The indictment charges that appellant did "intentionally and knowingly cause the penetration of the mouth of (Complainant), a child who was then and there younger than 14 years of age and not the spouse of Oscar Tolbert, Jr., by the penis of the said Oscar Tolbert, Jr.,...."

As applied to the instant case, the State was charged with proving the following elements under §§ 22.011(a)(2)(B) and 22.021, supra:

(1) Appellant;

(2) intentionally or knowingly;

(3) caused the penetration of the mouth of complainant, a child younger than 14 years of age;

(4) with appellant's sexual organ.

From the testimony of the child complainant and her mother, we find sufficient proper evidence was admitted to prove the elements of the crime charged and to sustain the judgment. In terms of the test enunciated in Arnold, supra, therefore, (1) in light of the absence of any proof by appellant that the trial court relied upon or considered the videotaped interview with the complainant, and (2) given the evidence properly received as to appellant's culpable conduct in this matter, we will follow the...