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Hernandez v. State

Court of Appeals of Texas, Fourteenth District

August 1, 2017

SAMUEL HERNANDEZ, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause Nos. 1413862 & 1413863

          Panel consists of Chief Justice Frost and Justices Donovan and Wise.

          OPINION

          Kem Thompson Frost Chief Justice.

         In this 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.

         Factual and Procedural Background

         An anonymous caller contacted the Child Protective Services (CPS) sexual-abuse hotline and provided a tip that the complainant, five-year-old Jane, [1] 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.

         Appellant 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.

         At 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.

         The 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.

         Issue and Analysis

         In a 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 appellant.

         On 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[2] 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 ...

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