Williams v. State, 07-19-00165-CR

ALLEN LYNN WILLIAMS, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-19-00165-CR

Court of Appeals Seventh District of Texas at Amarillo

February 19, 2020

On Appeal from the 100th District Court Donley County, Texas

Trial Court No. 4037; Honorable Stuart Messer, Presiding

MEMORANDUM OPINION

Before PIRTLE, PARKER, and DOSS, JJ.

Appellant, Allen Lynn Williams, appeals from his conviction by jury of the offense of indecency with a child by sexual contact,¹ enhanced by a prior felony conviction,² andthe resulting sentence of twelve years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. By two issues, Appellant contends (1) the trial court erred by allowing the State to admit and publish a video recording of the interview of the child-victim under the doctrine of optional completeness, and (2) the cumulative errors that occurred during the trial deprived Appellant of a fair trial and due process of law. We affirm the judgment of conviction.

BACKGROUND

Appellant was accused of touching the anus of S.D.S.,³ a ten-year-old child, with the intent to arouse or gratify his sexual desires. At the time of the incident, Appellant was watching S.D.S. while her mother and stepfather were working. Appellant was the stepfather's father. At trial, S.D.S. testified that, after she had originally gone to bed, she could not sleep, so she got up and joined Appellant as he sat on a couch watching television. While watching television, Appellant began to rub her back. Slowly, his hands moved down her back. At that point in her testimony, S.D.S. described how his fingers "went in the middle . . . under my clothes . . . of my butt." Seeking better clarity from a witness who was then only eleven years old, the following exchange took place:

Prosecutor: Okay. And did he just like touch on the outside, or what did he do?

S.D.S.: He kind of went on the inside, but not on the inside, because - if that makes sense.

Prosecutor: And now did - did he touch like where the poop comes out?

Following an objection as to leading, S.D.S. repeated the prosecutor's description. She then described how Appellant pulled his hand away, smelled his fingers, and said, "Oh, god."

Immediately following the incident, S.D.S. called her mother and made an outcry statement to her. S.D.S. was taken to the Bridge Child Advocacy Center for a forensic interview and she was then medically examined by a sexual assault nurse examiner. A video recording was made of the forensic interview. At trial, in addition to the testimony of S.D.S., the State offered the testimony of the sexual assault nurse examiner and the forensic interviewer. During cross-examination, the forensic interviewer offered testimony that it was she who first used the term, "where the poop comes out" to describe the anus. Following cross-examination, the State sought to offer the video recording of the entire forensic interview under "rule 107, optional completeness." The prosecutor argued that the State was entitled to the admission of the recording to prevent the "jury from receiving a false impression from hearing only a part of the conversation with statements taken out of context." The trial court overruled defense counsel's objection to the admission of the exhibit and the recording was played for the jury. At that point, the State rested without calling the outcry witness, S.D.S.'s mother.

ISSUE ONE—ADMISSION OF VIDEO RECORDING OF THE FORENSIC INTERVIEW

By his first issue, Appellant contends the trial court erred by admitting the video recording of the forensic interview. A trial judge has wide discretion in the admission of evidence at trial. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990) (op. on reh'g). An appellate court reviews a trial judge's decision to admit or exclude evidence under anabuse of discretion standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). Under that standard, a trial judge does not err if his ruling is within the "zone of reasonable disagreement." Id.

Here, the State sought admission of the recording under Rule 107 of the Texas Rules of Evidence, based upon an argument that defense counsel had "opened the door" by questioning the forensic interviewer about the origins of the phrase "where the poop comes out." The prosecutor argued that admission of the recording was necessary to prevent the "jury from receiving a false impression from hearing only a part of the conversation with statements taken out of context."

Rule 107, the rule of optional completeness, provides that, "[i]f a party introduces part of [a] . . . recorded statement, an adverse party may inquire into any other part on the same subject." TEX. R. EVID. 107. The rule further provides that the adverse party may also introduce any other part of the recorded statement that is "necessary to explain or allow the trier of fact to fully understand the part offered by the opponent." Id. The rule permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter "opened up" by the adverse party. Walters v. State, 247 S.W.3d 204, 218 (Tex. Crim. App. 2007). The rule is designed to reduce the possibility that a jury would receive a false impression from hearing only part of a recording. Id. Rule 107 does not permit the introduction of evidence unless it is necessary to explain properly admitted evidence and the rule is not invoked by the mere reference to the recorded statement. Id.

The problem with the State's argument in this case is the fact that defense counsel did not introduce any part of the recording. Defense counsel merely questioned the forensic interviewer about the origin of the phrase "where the poop comes out." The witness readily admitted that the phrase was one she had introduced into the interview and that was it. The recording was never mentioned or played, and a transcript of the interview was not used to impeach or cross-examine the witness. No false impressions were created, and the introduction of the entire interview was not necessary to fully and fairly explain anything. Defense counsel was fully entitled to question the forensic interviewer about the interview process, including the use and origin of names or phrases used to describe the incident that was being investigated and doing so does not, ipso facto, make the recording admissible. Because this hearsay recording was not admissible under the rule of optional completeness or any other proffered theory of admissibility, the trial court erred in admitting the recording of the forensic interview.

Having found that the trial court erred in admitting the video recording of the forensic interview, we next consider whether Appellant was harmed by the trial court's error. Harm for the erroneous admission of evidence is determined by the standard in Rule of Appellate Procedure 44.2(b). Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Under that standard, an appellate court should disregard an error unless a "substantial right" has been affected. See TEX. R. APP. P. 44.2(b) (providing that "any other [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded"). The Texas Court of Criminal Appeals has said that substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Coble, 330 S.W.3d at 280. But if the improperlyadmitted evidence did not influence the jury's verdict or had but a slight effect on its...