Appeal from the 183rd District Court Harris County, Texas
Trial Court Cause Nos. 1413862 & 1413863
consists of Chief Justice Frost and Justices Donovan and
Thompson Frost Chief Justice.
one-issue appeal we consider whether the trial court abused
its discretion in denying the appellant's request under
the rule of optional completeness to admit a videotape of an
interview between a police officer and appellant. We conclude
the trial court did not abuse its discretion and affirm the
trial court's judgment.
and Procedural Background
anonymous caller contacted the Child Protective Services
(CPS) sexual-abuse hotline and provided a tip that the
complainant, five-year-old Jane,  was being sexually abused. A
CPS investigator spoke to Jane at her school. When Jane
mentioned abuse, the CPS investigator stopped investigating
and arranged for Jane to undergo a forensic interview at the
child-assessment center. During the forensic interview Jane
disclosed that her stepfather, appellant Samuel Hernandez,
penetrated her sexual organ with his hand, penetrated her
anus with his sexual organ, and penetrated her mouth with his
sexual organ. Appellant and Jane's mother were called to
the child-assessment center, and a police officer interviewed
appellant. Appellant denied all of Jane's allegations.
was indicted for super aggravated sexual assault of a child
under six years of age. In Cause No. 1413862, appellant was
indicted for super aggravated assault of a child under six
years of age for penetrating Jane's anus with his sexual
organ. In Cause No.1413863, appellant was indicted for super
aggravated sexual assault of a child under six years of age
for causing Jane's mouth to touch his sexual organ.
Appellant pleaded "not guilty" to both counts.
trial, Officer Lee Donovan testified about the background in
the case, including Jane's allegations at the
child-assessment center. On cross-examination, defense
counsel questioned Officer Donovan about appellant's
interview at the child-assessment center. Officer Donovan did
not conduct the interview, but he had watched a videotape of
the interview. Defense counsel characterized the interviewer
as aggressive and Officer Donovan testified in a way that
supported defense counsel's characterization. Officer
Donovan agreed that the police officer interviewing appellant
screamed at appellant and Officer Donovan acknowledged that
the tactics the interviewing officer used could intimidate
witnesses and cause witnesses to make involuntary statements.
On redirect examination, Officer Donovan, commenting on
appellant's video demeanor, testified that appellant
seemed unemotional. On re-cross examination, appellant sought
to offer the videotape of the interview into evidence. The
State objected that the evidence constituted hearsay and the
trial court sustained the objection.
forensic interviewer testified about Jane's detailed
account of the events. Appellant testified and denied that
any abuse occurred. The jury found appellant guilty as
charged in Cause No. 1413863 and the jury found appellant
guilty of indecency with a child in Cause No. 1413862. The
trial court assessed punishment at thirty years'
confinement in Cause No. 1413863 and eight years'
confinement in Cause No. 1413862. The trial court ordered the
sentences to run concurrently.
single appellate issue, appellant asserts that the trial
court erred in excluding the videotape of appellant's
interview with police officers because the video was
admissible under the rule of optional completeness.
See Tex. R. Evid. 107. At trial, Officer Donovan
testified about the investigation. On cross-examination,
Officer Donovan stated that he watched a videotape recording
of the police interrogation of appellant. Defense counsel
asked whether the manner in which an interrogation was
conducted could influence a witness. Officer Donovan agreed
with defense counsel that police officers could intimidate
witnesses and coerce statements from them and that tricking
and threatening suspects were bad police tactics. When
questioned specifically about the actions of the police
officers interviewing appellant on the video recording,
Officer Donovan agreed that the officer was screaming at
redirect examination, the prosecutor asked Officer Donovan
about appellant's demeanor during the interview and
Officer Donovan testified that appellant was "[l]acking
emotion, unresponsive. In a situation like this when an
accusation is thrown out, you expect more emotion instead of
just slouching and sitting and . . . causal responses."
On re-cross examination, defense counsel offered the video
recording into evidence. The State objected and the
following exchange occurred:
[Prosecutor 1]: How are you going to offer the
defendant's statement? I don't believe it comes in
through the complete document rule in this case. We
didn't discuss any of the specific things that he stated
besides denying the allegations.
[Prosecutor 2]: It is hearsay from the defendant's
perspective. It is only the State that can offer it because
it would be a statement against the defendant's interest
or against a party opponent, and the defendant cannot ...