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In re P.M.

Court of Appeals of Texas, Eighth District, El Paso

January 12, 2018

IN THE MATTER OF P.M., a Juvenile.

         Appeal from the 65th District Court of El Paso County, Texas (TC# 1301271)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE.

         This case involves the adjudication and disposition of a juvenile delinquent. In its petition, the State alleged P.M., a juvenile, had committed the offenses of indecency with a child and aggravated sexual assault of a child. Tex. Penal Code Ann. § 21.11(a)(2)(A)(West Supp. 2017)(indecency with a child), § 22.021(a)(1)(B)(ii)(West Supp. 2017)(aggravated sexual assault of a child). Upon trial of the case, the jury found the juvenile had engaged in the delinquent conduct of aggravated sexual assault of a child and indecency with a child by exposure. The trial court entered an order of adjudication and a judgment of probation.

         In three issues, the juvenile challenges the sufficiency of the evidence to support the jury's finding of delinquency, asserts the trial court's evidentiary ruling regarding hearsay testimony was erroneous, and complains that his right of confrontation was abridged by the admission of improper hearsay testimony. Finding a violation of the juvenile's Sixth Amendment right to confrontation, we do not reach the juvenile's first two issues. We reverse and remand for a new trial.

         BACKGROUND

         P.M. (the juvenile) and F.H. (the child) are half-brothers through their biological mother, T.H. M.H. is the father of the child, who was six-years old at the time of the adjudication hearing in October 2014, and five-years old at the time the alleged offenses occurred in October 2013. The juvenile was fifteen at the time of the alleged offense, and sixteen at the time of trial. M.H. considered himself a father to the juvenile. In October 2013, T.H., M.H., the child, and the juvenile lived together in a two-bedroom apartment. The boys slept together in a single bed, and showered together on Sundays.

         During the adjudication hearing, M.H. testified that on October 29, 2013, while returning home from buying cupcakes for school, the child informed his father, M.H., that he liked grapes. M.H. informed the child that he should have told him that he liked grapes, and he could have bought some. M.H. then asked his son whether he liked oranges, and M.H., replied, "No, because they taste like sex." When M.H. asked the child who discusses sex with him, the child replied, "[P.M.]" The child informed his father that the discussions occurred in the shower, then mentioned "wee-wee, " and said that while in the shower "his wee-wees would go in [my] mouth[.]" The boys had last showered together on October 27, 2013.

         After arriving home, and in T.H.'s presence, M.H. picked up the child, and asked, "[W]ho does pee-pees in your face?" to which the child answered, "[P.M.]" When M.H. asked where and how often this had occurred, the child responded, "A lot, " and "In my hair, in my face and in my body." M.H. informed the juvenile that he should sleep with his mother that evening. After futile attempts to discuss the matter with T.H., M.H. called police out of concern for his son's safety.

         Under cross-examination, M.H. acknowledged that he had informed police that evening that he and his wife had not spoken in several days due to marital difficulties. He agreed that pee-pee and wee-wee were different terms, and when asked whether F.M. said that the juvenile had "put his wee-wee in the mouth or was it pee-pee[, ]" H.M. acknowledged that F.M. had stated that the juvenile had put his pee-pee in F.M.'s mouth, on his face, and all over his body while the boys showered together. M.H. did not discuss these matters with the child after October 29, 2013, nor did the child inform M.H. between that date and the adjudication hearing that these events did not happen. M.H. recalled informing a domestic relations social worker, Gwendolyn McClure, that he was concerned because of the time that had passed since the incident and noted that F.M. was changing his story, but M.H. testified that the child had not stated that the events did not occur. When asked on cross-examination whether the child had changed his story, H.M. replied, "No, I changed the story, he didn't." H.M. denied that he had ever told the child to make allegations of sexual abuse.

         Under re-direct examination, and in relation to his comments to Gwendolyn McClure, M.H. was asked whether the child was saying the alleged acts had not occurred or was just saying he did not remember. M.H. clarified that the child had stated that he did not want to remember. When asked what the child had said since the allegations had been reported to police, M.H., replied, "The similar story, sir, to myself and to our counselor, Mary Beaver[.]"

         Detective Patrick Barett of the El Paso County Sheriff's Office investigated the child's allegations and identified the juvenile as the suspect. He explained that although DNA or trace evidence is sometimes procured, when the exact date of incident is unknown, such evidence is not always obtained because the examinations for securing the evidence are very intrusive and traumatic for the victim, and because force may be used to conduct the exam, a parent's release of liability must be obtained. A forensic sexual assault examination for the purpose of attempting to recover biological evidence such as sperm and saliva may be conducted within four days of an occurrence. In this case, no photographs, DNA, or medical evidence was obtained because the date of the last incident was unclear. The juvenile informed Detective Barett that nothing had happened, and stated that he and his brother had not showered in a long time.

         As part of the investigation, Detective Barett observed and heard Joe Zimmerly conduct a forensic interview with the child at the advocacy center. Detective Barett's purpose in witnessing forensic interviews is to determine whether a child provides information sufficient to constitute probable cause or acts that meet the elements of an offense based on what the child says and describes. He noted that children sometimes use language that is not age-appropriate, which may indicate their comments have been directed or coached. M.H. and T.H. were present at the advocacy center during the interview, and as the interview was concluding, Detective Barett heard a commotion and a female voice screaming. As Detective Barett exited, T.H. approached and began yelling at him, and informed him that she knew her rights and could take her child out of the interview. He spoke with T.H. in another room. When he asked T.H. whether she would like to give a statement, T.H. declined. Upon conclusion of the child's forensic interview, Detective Barett determined that the child had knowledge of events and that sufficient probable cause existed to proceed with the case.

         Joe Max Zimmerly is a neutral fact finder at the advocacy center, and is unaffiliated with law enforcement or child protective services. As a forensic interviewer, Zimmerly's function is to attempt to have the child explain what has occurred through the use of non-leading and non-threatening questions, with no expected result. A few minutes prior to an interview, Zimmerly receives basic facts about the child and the case, such as how the outcry occurred, family relationships, and any special needs the child may have. A rainbow on a wall is used as a color reference.

         Over objection, Zimmerly testified that during his interview of the child, the child had stated that while in the shower, the juvenile would pee on his face a lot of times, that the pee would get in his mouth and tasted oily and that he would make the "pee" come out. Using an anatomical doll, the child demonstrated to Zimmerly how the juvenile would hit his penis in a spanking or slapping manner and in a thrusting motion, and described the "pee" that would come out on the wall as sticky. The child stated his own pee was like green water, but showed how the juvenile would breathe differently, and although initially describing the color of the sticky "pee" as dark green, the child later pointed to a beige-colored lamp shade in the interview room as reflective of the color of the juvenile's pee. The child also said that the juvenile put the juvenile's "wee-wee" or penis in the child's mouth "a lot of times, " and after Zimmerly clarified that "wee-wee" was the child's description of the penis, and the "pee" is what comes out of the "wee-wee, " the child stated that the juvenile would put his wee-wee on the child's forehead, his eye, on his nose, the belly button, and in his mouth. Zimmerly described how the child put the doll on his forehead and on his mouth. When Zimmerly asked, "Did it go on your mouth or in your mouth?" the child replied, "In my mouth." When asked on several occasions whether he had seen the juvenile's pee-pee or somebody's "wee-wee, " the child said, "No." The child described the juvenile's wee-wee as being "a little straight" when he peed on him. Zimmerly then asked the child whether each of the incidents had occurred "[o]ne time, two times, [or] a lot of times." Zimmerly believed the child had responded one or two times regarding his forehead and eyes, "but a lot of times in the mouth."

         Zimmerly agreed that during the interview, the child answered a qualifying question incorrectly, but noted that the child had not lied when he was asked a question about a "kitty cat" and a fish and pointed to the wrong animal, and answered the next qualification question correctly. He also agreed that the child originally stated that his brother had not touched him, and when the child used the anatomical dolls, Zimmerly did not recall whether the child actually articulated that his brother "put his wee-wee in my mouth." Zimmerly sought clarification from the child by following up on statements the child made by asking about the frequency of the events. While the child was drawing, Zimmerly left the room to speak with agency personnel situated behind a glass to determine whether anything needed to be clarified, and although uncertain, initially stated that he believed comments regarding oral penetration had occurred after this time, but then stated that he believed that the child had used the word "wee-wee" prior to being asked to draw and in advance of Zimmerly's break. Zimmerly asked the child to describe his drawing, and Zimmerly wrote his notes on the drawing. In addition to labeling the top and bottom of the drawing, Zimmerly also noted the child's comments, "Water comes out, " and "He always pees in my face."

         The child had initially demonstrated his brother flicking him, but also described or demonstrated the juvenile striking the juvenile's penis. When asked if someone had ever touched him, the child stated, "boys and girls are touching me." Zimmerly testified that he had no information regarding whether the child had recanted before trial.

         When the State sought to introduce the video recording of the child's interview, the trial court heard arguments in the jury's absence, and although defense counsel objected on the basis that the recording should not be admitted under Code of Criminal Procedure article 38.071 because the child was available to testify in the jury's presence, the State argued that during opening statements, the defense opened the door to permit the video recording to be admitted under the optional completeness exception to the hearsay rule. See Tex. R. Evid. 107; Tex. Code Crim. Proc. Ann. art. 38.071, § 1(5), (8), § 2(a)(West Supp. 2017). Noting that the child was available to testify, the trial court sustained the objection. After the State rested its case, the trial court denied the juvenile's motion for directed verdict.

         The child testified as a defense witness. During his testimony, the child verbally answered some questions posed to him, however many of his answers were non-verbal. During examination, defense counsel, and sometimes the State's attorney would often follow the child's non-verbal response by stating "Yes" or "No." Because of the nature of the questions and the form of answers presented in the record, we find it necessary to set out the relevant testimony in the context of the colloquy that occurred between the child and counsel:

[DEFENSE]: Okay. I'm going to ask you a couple of questions. Okay? It's real simple. Do you remember talking to Greg last week?[1]
[F.H.]: (No verbal response.)
[DEFENSE]: Okay. And what day was that? Do you remember what day it was?
[F.H.]: (No verbal response.)
[DEFENSE]: No. Okay. Do you remember telling Greg that you had taken showers before in the past with your brother?
[F.H.]: (No verbal response.)
[DEFENSE]: With [P.M.]?
[F.H.]: (No verbal response.)
[DEFENSE]: Yes. Okay. And that he never did pee on you. Right? That's what you told Greg last week. Right?
[F.H.]: (No verbal response.)
[DEFENSE]: Okay. But rather that your brother peed in between you. Right?
[F.H.]: (No verbal response.)
[DEFENSE]: Is that what you told Greg?
[F.H.]: (No verbal response.)
[DEFENSE]: Yes. And that was last Thursday. Right?
[F.H.]: (No verbal response.)
[DEFENSE]: Yes. Okay. You and your brother used to take showers together. Is that correct?
[F.H.]: (No verbal response.)
[DEFENSE]: Okay. And when you took showers together, he would clean you first and then you would get outof the shower, wouldn't you?
[F.H.]: (No verbal response.)
[DEFENSE]: Yes?
[F.H.]: (No verbal response.)
[DEFENSE]: And when you would get out of the shower, would you stay in the bathroom? [F.H.]: (No verbal response.)
[DEFENSE]: No. You would leave?
[F.H.]: (No verbal response.)
[DEFENSE]: Okay. And who would take you out of the bathroom usually, was it mommy, daddy or both?
[F.H.]: Mommy.
[DEFENSE]: Okay. Did your brother ever put his pee-pee in your mouth?
[F.H.]: (No verbal response.)
[DEFENSE]: No.

         Under cross-examination, the State was able to elicit more verbal responses from F.H:

[STATE]: All right. Now, [F.H.], whenever I see you do this --
[F.H.]: Uh-huh.
[STATE]: -- that means yes. Right?
[F.H.]: (No verbal response.)
[STATE]: And I think these people back here, I don't know if they can quite see you so could you just say yes or no on some of those?
[F.H.]: Uh-huh.
. . .
[STATE]: Let me ask you a question. You see all these people in the courtroom here?
[F.H.]: (No verbal response.)
[STATE]: Do you know them?
[F.H.]: (No verbal response.)
[STATE]: Do you know some of them?
[F.H.]: (No verbal response.)
[STATE]: Okay. Could I ask you. This gentleman right here at the very end of the table, who is this young man?
[F.H.]: [P.M.].
[STATE]: [P.M.]. Who is [P.M.]? Who is he? How -- how are you -- are you guys related? Is he your family?
[F.H.]: (No verbal response.)
[STATE]: Is that a yes or no?
[F.H.]: Yes.
[STATE]: He's your family. And what is he in your family? ...

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