In the Matter of E.P.C.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00086-CV
IN THE MATTER OF E.P.C., a Juvenile
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-JUV-00681
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 31, 2003

AFFIRMED

E.P.C. appeals his adjudication of having committed the delinquent conduct of indecency with a child and his commitment to the Texas Youth Commission. We affirm the judgment.

Factual and Procedural Background

On May 6, 2000 three year old J.S. informed his mother Carol that thirteen year old E.P.C. had touched J.S.'s penis and made J.S. touch E.P.C.'s penis. E.P.C. frequently visited the victim's house as a friend of his older brother Jacob and was well liked by young J.S. That night, while Jacob was taking a shower and Carol left to go to a party, J.S.'s father Carl stepped outside to smoke. J.S. was sitting on E.P.C.'s lap watching television and the two were left alone. Later that night J.S. told Carl that E.P.C. had touched J.S.'s penis; but Carl assumed E.P.C. had just brushed against it because J.S. was on his lap. When Carol returned home, J.S. told her in more detail what happened, that what E.P.C. did was "wrong" and that E.P.C.'s penis was "big." Carol took this to mean E.P.C. had an erection and the next day she called the police.

Officer Keith Whitehead responded to the call and took down a report. Because he needed E.P.C.'s date of birth, Whitehead went to E.P.C.'s house where he informed E.P.C.'s mother and her boyfriend of the allegations. E.P.C. was not home and his mother asked Whitehead to bring him home if he saw him. With the help of J.S.'s mother, Whitehead found E.P.C. riding his bike in the neighborhood. Whitehead told E.P.C. of the allegations and that he was taking him home. While E.P.C. was in the patrol car he was crying and mumbling and Whitehead heard him say, "J.S. pulled his pants down and I touched it, what's the big deal."

At the pre-trial hearing E.P.C. disputed having made the statement, and claimed Whitehead had grabbed him by the arm, pushed him in the car and called him a "sick fuck." E.P.C. claimed that in the car he told Whitehead that J.S. "pulled his pants down and started playing with himself," and when Whitehead asked why he did it E.P.C responded, "I just didn't." E.P.C. said Whitehead did not tell him he was taking him home and E.P.C. thought they might be going to jail.

By the time of trial J.S. was five years old. He testified using anatomically correct dolls to describe the incident. J.S. put the J.S. doll's hand in the E.P.C. doll's pants touching the penis. On cross-examination he gave conflicting answers as to who touched who and couldn't use the dolls the same way. J.S. was not able to identify E.P.C. in the courtroom and his mother testified that J.S. had called other boys by E.P.C.'s name in the past. However, she also said that E.P.C. had different hair and build than when the incident occurred.

E.P.C.'s mother, her boyfriend and his sister all testified that during the time period in which the incident was alleged to have occurred E.P.C. was with them at church and a family dinner. After dinner the kids were dropped off at a sleep over. This alibi directly contradicted the testimony of Carol, Carl, Jacob and J.S. who all testified E.P.C. was at their house that night. There were also several allegations of past marijuana and prescription drug use among the parents and children of the two families, who were acquaintances, with the witnesses frequently contradicting each other.

Custodial Interrogation

In his first point of error, E.P.C. alleges the trial court erred in denying his motion to suppress his statement that, "J.S. pulled his pants down and I touched it, what's the big deal," because it was the product of custodial interrogation. The State maintains that Whitehead was giving E.P.C. a courtesy ride home and E.P.C. was not interrogated or in custody.

Standard of Review

We review a trial court's suppression ruling under the abuse of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Under this standard, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. However, the trial court's resolution of mixed questions of law and fact, which does not turn on an evaluation of credibility and demeanor, is reviewed de novo. Id.

Discussion

A voluntary oral statement that does not stem from custodial interrogation is admissible evidence. See Tex. Fam. Code Ann. 51.095(b), (d) (Vernon 2002); Melendez v. State, 873 S.W.2d 723, 725 (Tex. App.-San Antonio1994, no pet.). Custodial interrogation is questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom in any significant way. Miranda v. Arizona, 384 U.S. 436, 444 (1966). A child is in custody if, under the objective circumstances, a reasonable child of the same age would believe his freedom of movement was restrained to the degree associated with a formal arrest. See Stansbury v. California, 511 U.S. 318, 322 (1994); Jeffley v. State, 38 S.W.3d 847, 855 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd.). Even when a suspect is in custody, the statement will be admissible if it is not elicited by questioning. See Melendez, 873 S.W.2d. at 725.

E.P.C. made the statement while riding home in the patrol car with Whitehead. E.P.C. was told of the allegations against him but was not told he was under arrest and he was not in handcuffs. Whitehead testified he did not question E.P.C. but merely informed him of the allegations and told E.P.C. he was taking him home where his mother was waiting. Under these objective circumstances, a reasonable thirteen year old child would not believe his freedom of movement was restricted to the degree associated with a formal arrest. Because E.P.C. was not in custody and there was no interrogation, the trial court did not err in denying the motion to suppress the statement. Sufficiency of the Evidence

In his second point of error, E.P.C. alleges that the evidence is factually insufficient to support the adjudication. E.P.C. argues that J.S.'s testimony as the sole eyewitness was "inconsistent and not credible." We disagree.

Standard of Review

In reviewing the factual sufficiency of the evidence supporting adjudication, due deference must be given to the jury's evaluation of the credibility of the witnesses, the weight to be given their testimony, and their resolutions of conflicts in the testimony. In re G.A.T., 16 S.W.3d 818, 829 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). The evidence will be insufficient when a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to render the adjudication clearly wrong and manifestly unjust. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Discussion

E.P.C. was charged with indecency with a child by contact, which requires proof a person engaged in sexual contact with a child or caused the child to engage in sexual contact. Tex. Pen. Code Ann. 21.11(a)(1) (Vernon 2003). Sexual contact means touching by a person of the anus, breast, or any part of the genitals of a child; or any touching of any part of the body of a child with the anus, breast, or any part of the genitals of a person with the intent to arouse or gratify the sexual desire of any person. Id. An adjudication under section 21.11 is supportable on the uncorroborated testimony of the victim. See Tex. Code Crim. Proc. Ann. art 38.07 (a), (b) (Vernon Supp. 2002); Tex. Fam.Code Ann. 51.17 (c) (Vernon 2002) ("Chapter 38, Code of Criminal Procedure, appl[ies] to proceedings under this title.").

J.S. demonstrated for the trial court that he knew his colors, was able to distinguish between the truth and a lie and was found competent to testify. J.S.'s account of the incident at trial using the anatomically correct dolls was consistent with his previous reports to his mother, a sexual assault registered nurse that interviewed him after the incident, and a Child Protective Services case worker that interviewed him on video. On cross-examination he was confused as to the time of day when the incident occurred and whether or not he went on a bike ride that night; but as to the genital contact he was consistent. Moreover, his confusion during cross-examination could be due to the fatigue that a five year old would feel after giving two hours of testimony.

J.S.'s mother, father, and brother all testified that E.P.C. was at their house on the night in question and was last seen before the incident with J.S. on his lap watching television. E.P.C.'s family all testified to a contradictory alibi. Because we must give deference to the jury's determinations of credibility and implicit resolution of the conflicting testimony, the proof of guilt is not so obviously weak as to be clearly wrong and manifestly unjust. Therefore E.P.C.'s second point of error is overruled.

Ineffective Assistance of Counsel

In his fourth point of error E.P.C. alleges that he received ineffective assistance of counsel when his trial counsel failed to object to Carol's testimony as hearsay. The State responds that J.S.'s statement to Carol was admissible as an "outcry" exception to hearsay, and the failure to object to the statement was not ineffective assistance of counsel.

Right to Effective Counsel

A juvenile is entitled to assistance of counsel at every stage of the proceeding. Tex. Fam. Code Ann. 51.10 (Vernon 2002); In re M.R.R., 903 S.W.2d 49, 51 (Tex. App.-San Antonio 1995, no writ). The right to counsel is the right to effective counsel, and when the effectiveness is challenged, we use a two part test to determine whether (1) the representation was deficient, and (2) whether there is a reasonable probability that the result would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. Moreover, an isolated failure to object to procedural mistakes or improper evidence or argument does not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

Discussion

E.P.C. claims that the "outcry" testimony relayed by Carol would have been inadmissible if objected to at trial, because Carl was the first person J.S. told about the incident. Outcry testimony is admissible as an exception to the hearsay rule where a statement is (1) made by the child who is the alleged victim, and (2) made to the first person, 18 years of age or older, to whom the child made the statement about the violation. Tex. Fam. Code Ann. 54.031 (b)(1)(2) (Vernon 2002). The statement must be one that in "a discernible manner describes the alleged offense," more than just "words which give a general allusion that something in the area of child abuse was going on." In re Z.L.B., No. 01-1209, 2003 W.L. 1088216 at *2 (Tex., Mar. 13, 2003)(quoting Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)). The trial court's decision regarding which of several witnesses is the outcry witness should not be disturbed absent an abuse of discretion. Garcia, 792 S.W.2d at 92.

J.S. told Carl that Evan touched his "weenie." Carl thought E.P.C. might have brushed J.S. with his arm because J.S. was sitting on his lap. Carl did not attribute any significance to the statement. Later that night J.S. seemed kind of frantic and told Carol, "[E.P.C.] put his hand on my weenie and he made me put his weenie in my hand. Mommy, that is not right." If Carol's testimony had been objected to, the trial court could have reasonably determined that J.S.'s statement to Carl was a general allusion rather than a clear description of the offense and Carol was the proper outcry witness. Therefore the failure to object was not deficient representation. See Strickland, 466 U.S. at 486. Even if Carol's testimony was not admissible, the same evidence was presented through J.S. himself and in his taped interview. Because E.P.C. has not demonstrated that his counsel's representation was deficient or that but for counsel's deficient performance the outcome would have been different, his fourth point of error is overruled.

Disposition

In his third point of error E.P.C. alleges the trial court abused its discretion in ordering him committed to TYC. The State argues that commitment is appropriate because of the age of the victim, the nature of the offense, and the lack of support and control in E.P.C.'s home.

Standard of Review

E.P.C. and the State both assert that the appropriate standard of review is abuse of discretion, with the factual sufficiency of the evidence supporting the trial court's affirmative findings being a relevant factor. However, we have recently held that the appropriate standard of review for juvenile commitment orders is an abuse of discretion divorced from legal and factual sufficiency standards. See In re K.T., No. 04-02-00043-CV, 2003 WL 1090593 at *8 (Tex. App.-San Antonio, March 12, 2003, no pet. h.). As explained in In re K.T., we apply the criminal abuse of discretion standard and view the evidence in the light most favorable to the trial court's ruling, affording almost total deference to findings of historical fact that are supported by the record. Id. When the resolution of the factual issue does not turn upon an evaluation of credibility and demeanor, we review the trial court's determination of the applicable law, as well as its application of the appropriate law to the facts it has found, de novo. Id. This de novo review involves determining whether the facts supported by the record justify the trial court's disposition order in light of the purposes of the Texas Juvenile Justice Code. Id. at *7.

Discussion

If a child is adjudicated to have engaged in delinquent conduct that violates a penal law of the grade of felony, the court may commit the child to TYC without a determinate sentence. Tex. Fam. Code Ann. 54.04 (d)(2) (Vernon 2002). The commitment order must include findings that:

(A) it is in the child's best interests to be placed outside the child's home; (B) reasonable efforts were made to prevent or eliminate the need for the child's removal from the home and to make it possible for the child to return to the child's home; and (C) the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.

Id. 54.04(i). The court must also state its reasons for the disposition. Id. 54.04(f).

At the disposition hearing the trial court heard testimony on E.P.C.'s behalf from his mother and father, a counselor, the assistant principal from his school, and a family friend. These witnesses all testified that E.P.C. had improved his behavior at school and at home. His mother and the principal testified that E.P.C. was not hanging out with his old friends, who were involved with drugs, and had joined the wrestling team at school. However, according to Jacob, E.P.C.'s new friend was also involved in drugs. There was testimony that E.P.C. and his sister used drugs and alcohol in their home. E.P.C. was not forthcoming with his probation officer or counselor about his drug use. When the probation officer learned that E.P.C. was involved with drugs, that information did not change his recommendation for probation but he stated drug counseling and urinalysis testing would have to be added to the probation requirements. The probation officer was also made aware of evidence of inappropriate sexual behavior among teens spending the night at E.P.C.'s house unsupervised. And a classmate testified to an incident of inappropriate sexual contact with E.P.C. at school. At the conclusion of the hearing, the trial court made the findings required by section 54.04(i) and, in its disposition order stated the reasons for its disposition were E.P.C.'s drug and alcohol use, "inappropriate parental supervision," and E.P.C.'s lack of remorse.

E.P.C. attacks the testimony of Jacob as not credible and therefore not supporting the trial court's findings. However, we give deference to the trial court's findings that are based on an evaluation of credibility and demeanor. In re K.T., 2003 WL 1090593 at *8. Given the evidence as to E.P.C.'s home life, his conduct at school including the inappropriate sexual contact, the nature of his delinquent conduct in the incident at hand and his dishonesty with the probation officer, we hold the trial court did not abuse its discretion in ordering E.P.C. committed to TYC. Therefore E.P.C.'s third point of error is overruled and the judgment is affirmed.

Sarah B. Duncan, Justice

Publish