Turner v. State

• Citation: 754 S.W.2d 668
• Decision Date: 18 May 1988
• Docket Number: No. 1000-86,1000-86
• Parties: James Stacey TURNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 668

754 S.W.2d 668

James Stacey TURNER, Appellant, v. The STATE of Texas, Appellee.

No. 1000-86.

Court of Criminal Appeals of Texas En Banc.

May 18, 1988.

William E. Hall, Jr., court appointed on appeal, Conroe, for appellant.

Peter C. Speers, III, Dist. Atty. and J. Lynn Martin and Mary Ann Turner, Asst. Dist. Attys., Conroe, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted by a jury of the offense of aggravated sexual assault of a child. See V.T.C.A., Penal Code, § 22.021. At the penalty stage of the trial the appellant pled "true" to each of the paragraphs of the indictment alleging four prior felony convictions for the purpose of enhancement of punishment. After evidence as to these convictions and others were offered as part of appellant's "prior criminal record" the court assessed punishment at 99 years' imprisonment. See V.T.C.A., Penal Code, § 12.42(c).

On appeal appellant complained the trial court erred, over objection, in permitting the testimony of the 7-year-old complaining witness to be presented pursuant to the procedure set forth in Article 38.071, §§ 4 and 5, V.A.C.C.P., rather than in open court in the presence of the jury, and in his presence. He contended the said sections of the statute are unconstitutional. Appellant further complained the court erred in permitting D____ H____ and her mother to both testify to statements made by P____ J____, the complaining witness, when the same was hearsay. Appellant still further complained of the admission of an extraneous offense committed upon D____ H____ through the testimony of D____ H____ and her mother. The Beaumont Court of Appeals found that Article 38.071, §§ 4 and 5, supra, were constitutional and that the procedures mandated were carefully followed. The court likewise rejected appellant's other contentions and affirmed the conviction. Turner v. State, 716 S.W.2d 569 (Tex.App.-Beaumont 1986--No. 09-85-049-CR).

We granted appellant's petition to determine the correctness of the Court of Appeals' holding as to the constitutionality of the said statute, and to determine if that court's ruling as to the propriety of the admission of the extraneous offense, were in conflict with this Court's recent decisions. See Texas Rules of Appellate Procedure, Rule 200(c)(3).

We reverse because of the admission of the extraneous offense and do not reach the constitutionality of the statute question.

We shall briefly review the record and the evidence to place the grounds for review in proper perspective.

The indictment, in its first paragraph, alleged that in Montgomery County, Texas on or about January 1, 1984, appellant "did then and there knowingly and intentionally cause penetration of the vagina of P____ J____, a child younger than 14 years of age, by an object, to wit: the sexual organ of the defendant."

The State first presented the testimony of 10-year-old D____ H____, who was 9 years old on February 4, 1984, when her mother took her and a younger sister for the first time to the home of appellant, where appellant's wife was to be the babysitter while D____ H____'s mother was at work. D____ H____ related that on that occasion she met P____ J____, appellant's stepdaughter, who was then 6 years old. During the day D____ H____, by using her fingers to form a circle and pushing another finger through it, got P____ J____ to tell her that the appellant did that to her, and sometimes would have sexual intercourse with her and her mother all night.

When D____ H____'s mother arrived to take her children home, D____ H____ requested P____ J____ be allowed to spend the night with them. Appellant and his wife agreed. Cynthia Howell testified her daughter, D____ H____, related to her what P____ J____ had said, and she began to question P____ J____ herself. P____ J____ said that appellant had sexual intercourse with her, that her mother knew and got "mad" at appellant. Mrs. Howell related that P____ J____ seemed unhappy and did not appear to want to discuss the matter. After talking to a social worker and the Child Welfare Department in Conroe, Mrs. Howell filed a complaint with the Department of Human Resources.

Dr. Hillary Lavender examined P____ J____ on February 10, 1984, at the request of the Department of Human Resources. Dr. Lavender found her hymen still was intact, although he expressed the opinion that it was possible that penetration of the vagina could take place without a tearing of the hymen. There was no evidence of trauma to P____ J____'s genital area.

P____ J____'s testimony was presented to the jury via the videotape as earlier noted. With the use of two anatomically correct dolls she indicated that appellant would lay on top of her and that his "ding-a-ling" would go into her "pee hole" or "pussy hole" causing pain, and later she found white stuff on her leg; that her mother cleaned the "stuff" off her; that her mother would be "mad" at appellant, telling him to get off whenever she came into the bedroom. P____ J____ stated that "this" happened before "Christmas time" (no year given) and that it occurred more than 10 times.

On cross-examination P____ J____ related that she had seen the dolls several times before, that her real or natural daddy (whose name she didn't know) had hurt her once, in the way she had described, that she didn't know where she had learned several of the terms she had used.

Several witnesses testified about their actions in talking with P____ J____ and their investigation. School personnel testified that P____ J____ was in special education classes because she was a "language delayed" child and not because she was mentally retarded. Other evidence showed that on February 10, 1984, when P____ J____ was taken into protective custody by Child Protective Services the appellant and his wife left Conroe. Appellant was arrested in Joplin, Missouri in November, 1984, and returned to Montgomery County.

Appellant's wife and P____ J____'s mother, Violet Lorraine Turner, was the only defense witness. She testified that she had previously been married to Curtis James for 13 years and had four children, one of them being P____ J____, who had been born in Joplin, Missouri; that she had divorced James in the summer of 1981 in New Mexico. She related that in May, 1981, she had discovered James in bed on top of three-year-old P____ J____ with "his deal out," and that she left him at that time. She testified she didn't know appellant then, but had married him a year later in 1982 at Woodlands, Texas. Mrs. Turner testified that P____ J____ had never complained to her about the appellant touching her in any manner that was unusual or unnatural, that she had never seen him doing anything "out of the ordinary" with P____ J____.

On cross-examination she testified that P____ J____ did not dislike the appellant and she (P.J.) had no problem with him that the witness could see. She denied that on several occasions she saw appellant abuse P____ J____ and had told him to stop. She admitted she left Conroe the day P____ J____ was taken into custody by the welfare authorities but contended the move to Joplin, Missouri had been planned. She conceded no notice had been given to the landlord or to appellant's employer. She went on to relate that appellant did not go with her to Missouri, but only appeared in Joplin the day of his arrest.

When asked by the prosecutor to describe P____ J____'s intelligence level, Mrs. Turner replied that P____ J____ could lie, "badly." She guessed P____ J____'s grades were average.

The appellant did not testify.

The State then announced in rebuttal that while appellant had not testified, it intended to offer evidence of an extraneous offense or transaction with another child, that the evidence would be probative "of this person's unnatural attitude that he had toward the complaining witness, being P____." Appellant objected, and the court first heard the additional testimony of D____ H____ and her mother about the extraneous offense or transaction out of the jury's presence. Thereafter appellant objected that there was no exception to the general rule prohibiting the admission of extraneous offenses that would apply under the facts of the case. The objection was overruled.

D____ H____ then testified before the jury that on the occasion on which she had been at appellant's house on February 4, 1980, that Mrs. Turner went to the grocery store, and that she and P____ J____ were on the bed in the bedroom watching television. Appellant came into the room and began tickling P____ J____, and then began tickling D____ H____, who told him to stop. She related that appellant held her legs, kissed her on the cheek, and put his hand down the back of her panties onto her "behind." She finally wiggled and squirmed and appellant released her. It was after this she asked P____ J____ what appellant had been doing to her. D____ H____ then related that she told her mother what happened when her mother picked her up.

Mrs. Howell then testified before the jury and confirmed that D____ H____ had told her what happened and related in detail her conversation with D____ H____.

The court's charge as originally prepared contained a limiting charge on the extraneous offense instructing the jury to consider the same only, if they found appellant committed the extraneous offense, in determining the unnatural attitude to the victim of the alleged offense, and in determining the probability of the act charged. Upon appellant's objection that there was no such "exception" and the charge was improper, the court responded by striking the word "unnatural." The instruction was then included in the jury charge and later argued to the jury by the State.

"As a general rule, the accused can be convicted, if at all, only by evidence that shows that he is guilty of the offense charged. ...