Veteto v. State
| Decision Date | 12 January 2000 |
| Docket Number | No. 10-98-018-CR,10-98-018-CR |
| Citation | 8 S.W.3d 805 |
| Parties | (Tex.App.-Waco 2000) MICHAEL GLENN VETETO, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
From the 220th District Court Hamilton County, Texas Trial Court # 96-06-06854-HCCR [Copyrighted Material Omitted]
[Copyrighted Material Omitted] Before Chief Justice Davis, Justice Vance, and Justice Gray
"It were better for him that a millstone were hanged about his neck, and he cast into the sea, than that he should offend one of these little ones." Luke 17:2 (King James). This 2,000 year old reference is the earliest found to society's continuing effort to purge our society of those who prey on our children. See Katie Isaac, Note, Kansas v. Hendricks: A Perilous Step Forward in the Fight Against Child Molestation, 35 HOUS. L. REV. 1295 (1998).
What makes us a civilized society rather than a pack of animals is that our society operates under a system of well defined rules. These rules severely punish adults who molest children. Our society also has procedures and rules, established and based upon past abuses, which carefully govern the way that we as a society decide if an adult is guilty of molesting a child. Usually, this procedure is a jury trial, and the rules are our constitutions, statutes, rules of evidence and procedure, and the numerous cases interpreting each of these.
If during the course of a trial, either party fails to follow the rules, the trial court has various ways to correct the violations when called upon to do so by the other side. If it is alleged that the trial court failed to make the needed correction, it then becomes incumbent upon this Court to determine if a rule was violated by the parties and not corrected by the trial court.
Because the prosecutor in this case violated well-established rules, and because the trial court failed to correct the results of the prosecutor's violation, we are required to reverse the judgment of the trial court and send this case back for a fourth trial. For the fourth time, a jury must consider, in the manner established by the rules of our society, if the adult charged is guilty of aggravated sexual assault of a child. We must do this because we are bound by the rules applicable to this Court, and it is these same rules which protect all members in our society. If we fail to perform our proper role, our entire society suffers.
Michael Glenn Veteto was charged with three counts of aggravated sexual assault of A.L., a child. These charges were alleged to have occurred on or about September 25, 1994, October 15, 1994, and December 10, 1994. There had been two trials which ended in hung juries. In a third trial in 1997, this time with the assistance of a special prosecutor, Veteto was convicted of all three counts. He was sentenced to 15 years in the penitentiary and assessed a $5,000 fine on each count.
On appeal, Veteto primarily complains about the conduct of the special prosecutor. Veteto also contends the trial court commented on the weight of the evidence in its charge to the jury, Veteto's trial counsel was ineffective for not objecting to the charge, and the trial court improperly increased his punishment by cumulating the fines assessed in its judgment. Because the trial court overruled Veteto's motion for mistrial due to the State's improper comment on Veteto's post-arrest silence and required Veteto to answer an improper question, we will reverse the judgment and remand this cause for a new trial.
A.L., an eleven year old female at the time of trial, testified that she was eight years old when Veteto sexually assaulted her on at least three occasions: in his mother's vehicle, in A.L.'s home, and in Veteto's automotive shop. There were no witnesses to these incidents. A.L. knew Veteto because her parents, prior to their divorce, had been friends with him. After the divorce, Veteto and A.L.'s mother saw each other almost daily and dated occasionally on weekends. A.L. readily blamed Veteto for her parents' divorce. In February of 1995, prior to trial, A.L.'s mother died in a vehicle accident. In July of the same year, A.L. informed her sister of the sexual abuse incidents. She was taken to a doctor who performed an external exam only. The doctor found no signs of sexual abuse.
Veteto testified that he had owned an automotive garage since 1983 and became acquainted with A.L.'s parents in about 1989. The three were friends and occasionally had dinner together. Veteto denied causing the divorce of A.L.'s parents and denied dating A.L.'s mother. After the divorce, Veteto helped repair the farmhouse in which A.L. and her family lived. Veteto recalled that A.L. would beg to be with him. They would joke and "cut up" together. Veteto was unaware of any complaint regarding his relationship with A.L. or of any improper actions by him.
Veteto denied sexually assaulting A.L. at any time. He introduced evidence in the form of receipts, a calendar, and a newspaper to demonstrate to the jury that if the assaults had occurred, they did not occur on the dates alleged in the indictment. Veteto also produced witnesses who testified about A.L.'s active imagination.
Because his fourth issue is complex and dispositive of this case, we will address it first. In that issue, Veteto contends that the trial court erred in denying his motions for mistrial when the State, represented by a special prosecutor, attempted to elicit testimony, three different times, concerning his post-arrest silence. Prior to taking the stand himself, Veteto called Rex Childress, the chief of police of Clifton, to testify. During cross examination by the State, Veteto claims the following line of questions improperly referred to his post-arrest silence:
Special Prosecutor:When you went out there to pick this man up did you say to him, Mr. Veteto, you're accused [of] three different charges of aggravated sexual assault? Did you make him aware of what he was being arrested for?
Childress:I made him aware [of] what he was being arrested for.
Special Prosecutor:Did he deny any of these three aggravated sexual assault charges - -
Veteto's Counsel:Your Honor, I am going to object to that, because the failure to deny the offense is absolutely inadmissible, Your Honor, and it is - - I object to it.
Court:Sustained.
Special Prosecutor:I'll rephrase.
Veteto's Counsel:Your Honor, I ask that - - the Judge to instruct the jury to disregard.
Court:You'll disregard.
Veteto's Counsel:Your Honor, I move for a mistrial.
Court:That will be denied.
The State immediately continued its questioning of the chief with the following:
Special Prosecutor:Now, you made him aware of the charges, did you not?
Childress:Yes, I did.
Special Prosecutor:Did you offer him the opportunity to make a statement?
Childress:Yes, he was offered the opportunity.
Veteto's Counsel:Your Honor, ask you to instruct the jury to disregard that.
Court:You'll disregard.
Veteto's Counsel:Your Honor, I move for a mistrial.
Court:Post arrest - - post arrest silence is - - is not any evidence. You can't consider it.
Veteto's Counsel:Move for a mistrial, Your Honor.
Court:Deny.
After re-direct examination, the State, on re-cross, again entered into this same prohibited area by asking Childress:
Special Prosecutor:Did you - - you did give him an opportunity to talk to you and the Chief?
Childress:Yes - -
Veteto's Counsel:Your Honor, I am going to object to that. He was arrested - -
Special Prosecutor:He asked that. He very well - - he just asked that himself.
Court:I'll allow that question.
Special Prosecutor:Thank you.
Veteto's Counsel:Your Honor, I am going to object.
Court:Sustain that objection.
Veteto's Counsel:And I want the jury instructed, Your Honor.
Court:You'll disregard.
Veteto's Counsel:Move for a mistrial.
Court:Overruled.
The United States Supreme Court set the standard in this area. Under the U. S. Constitution, the State cannot use the post-arrest silence of an accused, after assurances such as Miranda warnings, to impeach an explanation subsequently offered at trial. Doyle v. State, 476 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976); see also Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102, 3107, 97 L.Ed.2d 618 (1987). After attempts by lower courts to broaden the language of Doyle, the Supreme Court reiterated its prohibition of the use of post-arrest, post-Miranda silence against the accused for impeachment purposes. Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982). The decision was then left to the states to determine under their rules what was proper impeachment. Id; Sanchez v. State, 707 S.W.2d 575, 578 (Tex. Crim. App. 1986). Based on two rationales, the Texas Court of Criminal Appeals determined that in addition to the Doyle/Fletcher prohibition, post-arrest, pre- Miranda silence also may not be used against an accused at trial. Id. First, the Court reasoned, the use would violate the accused's right to be free from self incrimination under Article I, Section 10 of the Texas Constitution. Id. Second, the use would be improper impeachment under the evidentiary rules since, absent actual inconsistency, post-arrest silence is not probative as prior inconsistent conduct. Id. at 578, 582.
It is important to note that the State argues Veteto did not preserve his complaint because his objections were too general. Also, in making a general objection, the State suggests that he did not invoke the...
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