Willover v. State
| Decision Date | 07 December 2000 |
| Docket Number | 019801066CR,1 |
| Parties | CRAIG JONATHAN WILLOVER, Appellant v. THE STATE OF TEXAS, Appellee NO. 01-98-01066-CR In The Court of Appeals For The First District of Texas Dissenting opinion issued |
| Court | Texas Court of Appeals |
On Appeal from the 9th District Court Waller County, Texas Trial Court Cause No. 97-5-8880
Panel consists of Justices Cohen, Wilson, and Price.1
This case is about the trial court's decision to allow one, rather than another form, of extrinsic evidence to impeach T.W., the complainant, with prior inconsistent statements. The true issue is whether the trial court erred in excluding the entirety of two videotapes to impeach T.W. with two prior inconsistent statements. The trial court did allow extrinsic evidence of the same prior inconsistent statements through the testimony of the interviewer to whom they were made. Appellant insisted on introducing the tapes in their entirety in the absence of editing equipment that would have allowed introduction of only the prior inconsistent statements themselves.
Instead of illuminating the true nature of this case, the panel opinion: (1) claims that the State is changing positions on appeal; (2) injects a new and highly questionable theory of admissibility of the videotapes for the first time on appeal; and (3) barely mentions the other evidence of appellant's guilt either in an introductory fact statement or when conducting a harmless error analysis. For the reasons set out below, I respectfully submit that extraordinary circumstances required en banc consideration of this case. See Tex. R. App. P. 41.2(c) ().
T.W. was a developmentally challenged eight-year-old girl. One day she pulled her pants down in the classroom and exposed herself. On another occasion, she told the principal that she slept up high and that her father would get on her back or on top of her. The principal referred T.W. to a professional counselor under contract with the school.
The counselor had about 5,000 hours of experience with Children's Protective Services dealing with sexually abused children. Because T.W. was not very verbal, the counselor had the child draw pictures. He asked T.W. if she remembered telling the school principal about someone hurting her. T.W. nodded and showed how she was hurt by pointing to her lower body area. The counselor drew the outline of a human body and asked the complainant to point to the area where she was hurt, and she pointed in the drawing to the area of her vagina. When asked who had hurt her, T.W. said "Daddy" (appellant). T.W. said her daddy put his "saw" or "salt" in me and that it hurt and was itchy. When asked to draw a picture of what "saw" or "salt" looks like, T.W. drew an object about 10 inches long by two inches, and said that "white, sticky stuff" comes out of it. Using two dolls, T.W. demonstrated by placing one doll on top of the other and using a thrusting motion by the doll representing her daddy. The counselor formed the opinion that T.W. had been sexually abused.
Andrea Hardeman was employed as an investigative caseworker with the Texas Department of Protective and Regulatory Services. She received a referral regarding T.W., and went to the family home on February 14, 1997. Mrs. Willover answered the door, but informed Hardeman that she could not come inside because they had dogs which would bite. Hardeman testified that she was unable to obtain enough information at that point, but left her card with instructions that Mr. Willover was to call her. Appellant called on February 19th, but failed to show up for the scheduled appointment after calling back to cancel it.
Kimberly White was employed as lead investigator with the Waller County Childrens' Protective Services. White related that T.W. was removed from her home due to an outcry of sexual abuse allegedly committed by the father. White testified that the complainant and her brother have been placed in a therapeutic foster home, where their behavior and demeanor have improved in comparison to the way they were prior to the placement.
Lisa Holcombe is a counselor who interviewed T.W. at the Children's Assessment Center on April 3, 1997, and June 6, 1997. During the first interview, T.W. said that only her brother, and no one else, had touched her private parts. During the second interview, T.W. told Holcombe that appellant touched her private part with a stick. Holcombe was unable to conclude from the two interviews that appellant had sexually abused T.W.
Dr. Mariam Chacko was employed as an attending physician at the Child Protective Health Clinic at Texas Childrens' Hospital. She examined T.W. on April 17, 1997 when she was eight years old. Examination of the external portion of the vulva and the vaginal opening showed no abnormalities. Examination of the anal area revealed a scar. Dr. Chacko asked T.W. if her father had touched her anal area with his privates, and she nodded yes and said it occurred in the bathroom. Dr. Chacko's opinion is that the condition of T.W.'s anal area was consistent with trauma from sexual abuse. Dr. Chacko testified that there was no way to tell the age of the scarring, but that it would be consistent with sexual abuse occurring around February of 1997.
Vickie Smith was employed as a therapist for a therapeutic foster care agency called the Arrow Project. She had been T.W's therapist for the past year. Smith was familiar with the characteristics exhibited by children who have been sexually abused, and she has observed T.W. exhibit the same characteristics.
Appellant called T.W. to testify. T.W. testified on direct that appellant did not touch her private parts. On cross-examination, she testified that appellant put his "P" in her "P" and in her "butt." On re-direct, appellant's counsel brought Lisa Holcombe in the courtroom, and asked T.W. to remember talking to Holcombe the year before. T.W. agreed with appellant's counsel that she had told Holcombe that appellant had put his "P" in her "P" and behind four times.
In his first point of error, appellant contends the trial court erred in excluding the two videotapes of Lisa Holcombe's interview with T.W. Appellant argues that he should have been allowed to impeach T.W.'s courtroom testimony with these tapes.2 The panel opinion treats appellant's point of error as if the State urged the trial court to exclude the tapes, and as if the tapes constituted the only extrinsic evidence available to impeach T.W. with her prior inconsistent statements. This is not an accurate rendition of what happened in this trial.
First of all, the State never opposed admission of the tapes because they contained prior inconsistent statements. This explains what the panel opinion observes as the State's failure to take issue with Patmore v. State, 831 S.W.2d 97 (Tex. App.--Eastland 1992, no pet.) and Hall v. State, 764 S.W.2d 19 (Tex. App.--Amarillo 1988, no pet.).3 The trial court, like the State, did not oppose appellant's introducing the complainant's prior inconsistent statements in the videotapes. What the trial court would not allow, at no urging from the State, was the admission of the tapes in their entirety. In the absence of editing equipment, by which only the prior inconsistent statements could be shown to the jury, the trial court required appellant to use Lisa Holcombe's testimony. A closer look at the record shows other variances between the panel opinion and the actual sequence of events.
After the State rested, appellant sought to introduce the two videotapes containing both interviews of T.W. by Lisa Holcombe. The State objected on the grounds: (1) the tapes' introduction would violate the requirement of article 38.071 of the Code of Criminal Procedure that the tapes have been made before charges were filed or an indictment handed down; and (2) the State was not provided with 14 days' notice, as required by article 38.072 of the Code of Criminal Procedure. The trial court rejected the State's second argument, but sustained the State's objection that the videotapes were made after the complaint was filed or the indictment handed down. See Tex. Code Crim. P. Ann. art. 38.071, §§ 2(a), 5(a) (Vernon Supp. 2000). At this point, appellant's counsel asked if the tapes might be used for impeaching T.W., if T.W. were to testify inconsistently; the trial court responded that "impeachment is a whole different ball game." The trial court, however, declined to rule prospectively on other uses of the tapes.
For the first time on appeal, the panel opinion raises the concept that article 38.071 applies only if the court finds the complainant is unavailable to testify at trial. See Tex. Code Crim. P. Ann. art. 38.071, § 1 (Vernon Supp. 2000). The panel opinion assumes the State has abandoned its article 38.071 theory because T.W. testified, and thus asserts that the State is raising a new theory on appeal, namely that appellant did not meet the predicate for introducing a prior inconsistent statement. The change from article 38.071 to impeachment as a basis for admissibility, however, was made by appellant at trial, as explained above. Article 38.071 had become moot, not because T.W. became available but, because the videotapes were made after charges were filed.
The State argues on appeal that appellant's counsel neither requested nor obtained a ruling on the videotape's admission as a prior inconsistent statement, so that he has not preserved error. See Tex. R. App. P. 33.1(a). As noted above, when appellant's counsel first mentioned the impeachment basis, the trial court declined to...
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