Willover v. State

• Decision Date: 13 March 2002
• Docket Number: No. 746-01.,746-01.
• Citation: 70 S.W.3d 841
• Parties: Craig Jonathan WILLOVER, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

70 S.W.3d 841

Craig Jonathan WILLOVER, Appellant, v. The STATE of Texas.

No. 746-01.

Court of Criminal Appeals of Texas.

March 13, 2002.

Toni Aninao, Houston, for Appellant.

Matthew Paul, State's Attorney, Betty Marshall, Assistant State's Attorney, Austin, for the State.

OPINION

HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, JOHNSON, HERVEY, and COCHRAN, JJ., joined.

The issue presented is whether the First Court of Appeals erred in holding that the trial court erred in excluding from evidence two videotaped interviews of the victim. We hold that the Court of Appeals did err.

I

In April 1998, appellant, Craig Jonathan Willover, was tried for aggravated sexual assault. See Tex. Pen.Code § 22.021. At that trial, the State presented evidence that appellant sexually molested his eight-year-old daughter, T.W. The State's evidence included testimony from a school counselor, a therapist, a physician, and two investigative caseworkers. After the State rested, appellant offered in evidence two videotapes of T.W.'s two separate interviews with Lisa Holcombe, a child abuse specialist. During the first interview, conducted on April 4, 1997, T.W. stated that no one had touched her in an inappropriate place but later stated that her brother had touched her in an inappropriate place. During the second interview, conducted on June 6, 1997, T.W. stated that appellant had touched her "private parts" and also had touched her with his "private parts."

The State objected to the admission of the videotapes, arguing they were inadmissible hearsay. Appellant then attempted to offer the videotapes under Article 38.071 of the Texas Code of Criminal Procedure. Section 2(a) of that article provides that "[t]he recording of an oral statement of the child made before the indictment is returned or the complaint has been filed is admissible into evidence if the court makes a determination that the factual issues of identity or actual occurrence were fully and fairly inquired into in a detached manner by a neutral individual experienced in child abuse cases that seeks to find the truth of the matter." Id. The section, in effect, creates an exception to the otherwise applicable hearsay rule. See discussion infra. Section 1 of the article, however, provides that "[t]his article applies only to a hearing or proceeding in which the court determines that [the] child ... would be unavailable to testify in the presence of the defendant...." Id.

The trial court viewed the first videotape in its entirety, considered the arguments of the defense and the State, and, in a hearing outside the presence of the jury, questioned T.W. The trial court then concluded that Article 38.071 was inapplicable and the videotapes were inadmissible because (1) the interviews were conducted after the complaint was filed and (2) T.W. was competent to testify.

Appellant then called T.W. to testify. On direct examination, T.W. answered "no" when asked "Has anybody ever done anything that bothered you?" and "Have you been touched anywhere that's bothered you?" On cross-examination, however, T.W. testified as follows:

Q. Okay. Did your daddy, Craig, ever get into bed with you?

A. (Witness nods head.)

Q. You have to answer out loud. You have to say the word, sweetie.

A. Yes.

Q. And when he got into bed with you, how did he get up there to your bed?

A. Climbed on ladder.

Q. Climbed on ladder. Okay. And when he got in bed with you, did he ever put his "P" in your "P"?

A. Yes.

Q. Okay. And, sweetie, can you show me what part you call your "P"? Can you point to it? Can you show me—I'm sorry. Honey, can you just point real quick to where you call your "P"? Would it be better if I showed you a picture that you can show me on or can you show me on Ashley [toy doll]? Can you show me on your bear? Which part is her "P"? Can I see her? Can you just point real quick which part would be her "P"?

A. It's in front.

Q. Well, which part? Show me real quick. Can you touch it for me just real quick?

A. (Witness indicates.)

Q. Okay. That's fine. And remember what we said? What do we call this part of us back here? Our behind? Is this my behind?

A. Yes.

Q. It's kind of a big wide behind, but we talked about that. Okay. And did your daddy, Craig, ever put his "P" in your behind?

A. Yes.

Q. And are you telling me the truth, sweetie?

A. Yes.

Appellant next called Holcombe, the child abuse specialist who conducted the videotaped interviews with T.W. Holcombe testified that she interviewed T.W. on two occasions and that the interviews were recorded. She further testified that, during the first interview, T.W. denied that anyone had touched her but later stated that her brother had touched her.¹ At this point, appellant again sought to have the videotapes admitted in evidence, and the following exchange took place:

DEFENSE COUNSEL: And we're alleging that the tape has impeachment value and we should be able to use it before the jury for impeachment purposes.

COURT: I have no editing equipment. How are we going to show ... you can't show the tape in its entirety.

DEFENSE COUNSEL: I am willing to show the tape in its entirety because I believe it's pertinent to the child's testimony. It's impeachment of the child's testimony and I think that is why it is admissible for that basis. There's direct contradiction of the child's testimony before the jury and the witness has interviewed the child as referred to her by CPS and the tape directly contradicts the child's testimony and is valued impeachment evidence.

Thus, it is clear that, although appellant did not actually recite the specific rule of evidence he was relying upon, appellant sought to admit the videotapes for impeachment purposes. Appellant did not argue, nor was there any discussion at trial, that the tapes were not hearsay or that the videotapes were admissible under any exception to the hearsay rule other than Article 38.071 or for impeachment purposes.

The parties then resumed the questioning of Holcombe. On cross-examination, Holcombe testified that she could not come to a conclusion as to whether a sexual assault occurred. After Holcombe finished testifying, the defense rested, and no further offer of the videotapes was made.

The jury subsequently found appellant guilty of sexual assault and assessed punishment at imprisonment for life and a $5,000 fine.

On appeal, appellant argued, among other things, that the trial court erred in refusing to admit the two videotaped interviews of T.W. The First Court of Appeals agreed with appellant and held that, pursuant to Texas Rule of Evidence 801(e)(2),² the videotapes were not hearsay and thus were improperly excluded. Willover v. State, 38 S.W.3d 672 (Tex.App.-Houston[1st Dist.] 2000). The First Court reasoned that had appellant established the proper predicate, as required by Texas Rule of Evidence 613(a),³ the videotaped statements would have been admissible as prior inconsistent statements, but, since T.W., as the complaining witness, was a party opponent, the predicate requirements of Rule 613(a) need not be met as Rule 613(a) does not apply to the admissions of a party opponent, and therefore, the trial court erred in excluding the videotapes. We granted the State's petition for discretionary review to determine whether the Court of Appeals erred. See Tex.R.App. Proc. 66.3.

In its brief to this Court, the State argues, among other things, that the Court of Appeals erred in failing to uphold the trial court's ruling on any theory of law applicable to the case. In support of its argument, the State cites State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000), and Romero v. State, 800 S.W.2d 539 (Tex. Crim.App.1990).

II

In considering a trial court's ruling on the admissibility of evidence, an appellate court must determine whether the trial court abused its discretion. Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1990) (opinion on motion for rehearing). In other words, the appellate court must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Ross, 32 S.W.3d at 856; Romero, 800 S.W.2d at 543-544. Finally, an appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000).

Here, the Court of Appeals held that even though the parties treated the evidence in question as hearsay, it was actually not hearsay and, therefore, admissible. Willover, 38 S.W.3d at 679. In doing so, the Court of Appeals failed to properly apply the abuse of discretion standard of review.

Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). As a general rule, hearsay evidence is inadmissible unless it falls within one of the many exceptions. See Tex.R. Evid. 802. In order to have evidence admitted under a hearsay exception, the proponent of the evidence must specify which exception he is relying upon.⁴ Here, the State, appellant, and the trial court all assumed the videotapes were hearsay and treated them as such. No one at trial disputed that the videotapes were hearsay. Thus, it was up to appellant, not the trial court,⁵ to specify which exception to the hearsay rule he was relying upon or to specify how the evidence was not hearsay.⁶ Accordingly, appellant sought to admit the videotapes⁷ for impeachment purposes, specifically as prior inconsistent statements.⁸ The trial court subsequently refused to admit the videotapes into evidence.

The only reason given by the trial court for excluding the videotapes was "I have no editing equipment" and "you can't show the tape in its entirety." Considering the facts before, and the arguments presented to, the trial court (i.e., the parties were in agreement...