Mark Leslie Gordy v. The State of Texas--Appeal from 85th District Court of Brazos County

REVERSED AND REMANDED

FEBRUARY 15, 1990

NO. 10-88-215-CR

Trial Court

# 18,114-85

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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MARK LESLIE GORDY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 85th Judicial District Court

Brazos County, Texas

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O P I N I O N

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A jury found Appellant guilty of the aggravated sexual assault of his two and one-half year old daughter, and the court assessed his punishment at seventy-five years in prison. See TEX. PENAL CODE ANN. 22.021(a)(1)(B)(iv) (Vernon 1989). Appellant complains that the court erred when it: (1) held a hearing in chambers to determine the child's competency to testify without him being present; (2) allowed two physicians to testify about out-of-court statements made by the child; (3) permitted a physician to testify about the child's use of anatomically correct dolls; and (4) admitted statements made by him while he was allegedly under custodial interrogation. He also claims that the evidence was insufficient to support his conviction. The judgment will be reversed and the cause remanded for a new trial.

Throughout the trial Appellant requested that the child be brought into court for the purpose of determining whether she was competent to testify. Each request was denied. However, the court, without notice to Appellant or the State, conducted an in camera hearing during a noon recess to determine whether the child was competent as a witness. Only the judge, the court reporter, the child, and her foster parents were present during the hearing. At the conclusion of the hearing, the court determined that the child was competent and could be called as a witness.

When Appellant was informed about the hearing, he requested that the child be questioned again in the presence of the attorneys. After the judge refused his request, he then asked that the transcript of the hearing be read to him so he could determine whether he should call the child as a witness. This request was also denied. Appellant's first point is that the court erred when it conducted the competency hearing without him being present.

In a felony case, the defendant has the right to be present at his trial unless he waives that right by voluntarily absenting himself from the proceedings. TEX. CODE CRIM. PROC. ANN. art. 33.03 (Vernon 1989). His right to be present extends to matters of law and fact. Parks v. State, 102 Tex. Crim. 24, 276 S.W. 1106, 1107 (1925). However, a conviction will not be reversed because the defendant was absent from part of the trial, unless steps vital to his rights were taken in his absence and there is either an actual showing of injury or facts from which injury may be reasonably inferred. Tischmacher v. State, 153 Tex. Crim. 481, 221 S.W.2d 258, 260 (1949).

Appellant's fundamental rights to be present at trial and to confront the witnesses against him were violated when he was excluded from the hearing to determine his daughter's competency to testify. See Sanchez v. State, 702 S.W.2d 258, 259 (Tex. App.--Dallas 1985, pet. ref'd). Although the child did not testify, Appellant was harmed by the ex parte proceeding because he was forced to blindly decide whether to call his daughter as a witness. Point one is sustained.

The court permitted Dr. Ortega and Dr. Rollins to testify to out-of-court statements made by the child during medical examinations. Dr. Ortega testified that, after being asked approximately six times who had hurt her, the child replied, "Daddy." Dr. Rollins testified that when she was asked who had hurt her the child, who was playing with anatomically correct dolls, grabbed the adult, male doll by the penis and said, "It did it. It did it. It did it." The State claims that these statements were admissible under an exception to the hearsay rule because they were made for the purpose of treatment during a medical examination. See TEX. R. CRIM. EVID. 803(4). Appellant contends in points two and three that these hearsay statements should not have been admitted.

A statement "made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" is admissible as an exception to the hearsay rule. Id. However, the exception does not apply to statements related to the cause of the injuries. Hassell v. State, 607 S.W.2d 529, 531 (Tex. Crim. App. [Panel Op.] 1980). The child's statements to Dr. Ortega and Dr. Rollins were in response to repeated questioning about the cause of the injury. Therefore, they did not fall under this exception to the hearsay rule, and should have been excluded.

Appellant's argument under points two and three, that the statements were also inadmissible because his daughter was incompetent to testify, is not reached. Whether a witness is competent to testify is within the discretion of the court. Garcia v. State, 573 S.W.2d 12, 14 (Tex. Crim. App. [Panel Op.] 1978). Competent means capable of observing and remembering events and relating them through questions and answers. Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App. [Panel Op.] 1980). The issue of the child's competency may or may not be determined during a retrial and, if determined upon a retrial, will necessarily depend upon the facts developed at that time. Points two and three are sustained.

Dr. Rollins "introduced" anatomically correct dolls to the child, and asked her to demonstrate with the dolls what had happened. The court allowed Dr. Rollins to describe the child's use of the dolls over Appellant's objection that the testimony related to a "scientific test" which was not generally accepted as reliable. Appellant's fourth point relates to the overruling of his objection.

Dr. Rollins' testimony described the child's non-verbal conduct which was offered to prove that Appellant sexually assaulted his daughter. This evidence could have been excluded as hearsay. See TEX. R. CRIM. EVID. 801(a), 802. However, Appellant waived any error when he failed to object to the evidence on that ground. Id. at 103(a)(1).

Appellant's argument that the evidence should have been excluded because it was based on an unreliable scientific test lacks merit. Had she testified, the child could have used the dolls to illustrate her testimony. Use of demonstrative aids is well known and widely accepted. Point four is overruled.

On April 9, 1988, Appellant and his wife took their daughter to the hospital emergency room. Dr. Ortega examined the child, determined that her anal injury was the result of "direct trauma" by a "firm, blunt object," and suspected sexual abuse. Dr. Ortega also concluded that the wound, which was still "oozing," was approximately twelve hours old.

Officer Van Nest, who was called to investigate the possible sexual abuse of the child, questioned Appellant at the hospital without giving him the complete Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). During the interview, Appellant offered numerous explanations for his daughter's injury, including hemorrhoids or that she had hurt her anus on a shopping cart at KMart. He also admitted that he was the only one who had access to her within the preceding twenty-four hours. However, during the course of Van Nest's interview, Officer Massey learned that Appellant had outstanding arrest warrants for traffic violations. Massey decided to arrest him on the warrants, but waited approximately fifteen minutes outside of the room where Van Nest was conducting the interview. Massey then entered and arrested Appellant on the warrants.

Appellant filed a motion to suppress the statements he made to Van Nest at the hospital, claiming that he should have received full Miranda warnings because he was under "custodial interrogation" at the time the statements were made. In his fifth point, he asserts that the court erred when it denied his motion.

Miranda warnings are required only when a person's freedom has been restricted to the extent that he is "in custody." Wicker v. State, 740 S.W.2d 779, 786 (Tex. Crim. App. 1987). However, a person can be "in custody" even though he is not under formal arrest. Id. Factors which should be used to determine whether a person is "in custody" include: (1) probable cause to arrest; (2) the defendant being the focus of the investigation; (3) the subjective intent of the police; and (4) the subjective belief of the defendant. Id.

The interview with Officer Van Nest was the beginning of an investigation about a possible sexual assault. Although Appellant was the focus of the investigation, the officers did not have probable cause to arrest him at that time for the sexual assault. Furthermore, a logical place to start an investigation about a potential assault on a minor is with the parents. Officer Van Nest considered Appellant free to leave at any time until he was informed about the traffic warrants. Furthermore, nothing in the record indicates that Appellant believed he was not free to leave. Point five is overruled because the statements were not made while Appellant was under custodial interrogation.

Finally, Appellant complains in point six that the evidence was insufficient to support his conviction. The standard on appeal is whether, viewing the evidence in the light most favorable to the conviction, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987).

Even excluding the hearsay testimony, the evidence was sufficient to support Appellant's conviction when it is viewed in the light most favorable to the verdict. Dr. Ortega and Dr. Rollins determined that the injury was from "something the size of an adult, male, erect penis . . . being forced into the rectum." Dr. Ortega stated that the injury was approximately twelve hours old, and that Appellant told her that no one, except himself, had access to the child during the previous twenty-four hours. Furthermore, the explanations which Appellant offered about the child's injury were inconsistent with the doctors' conclusions. The jury could have reasonably deduced that these explanations were concocted and wholly unbelievable.

Evidence that Appellant had sole access to the child during the time the injury occurred, expert medical testimony about the probable cause of the injury, and Appellant's patently unreasonable explanations of how the injury could have occurred were sufficient for the jury to find beyond a reasonable doubt that he sexually assaulted his daughter. Likewise, the evidence was sufficient to exclude every other reasonable hypothesis except that of his guilt. See id. Point six is overruled.

The first three points of error have been sustained. The judgment is reversed and the cause is remanded for a new trial.

BOB L. THOMAS

DO NOT PUBLISHChief Justice