Ronald Eugene Dibello v. State , 432 S.W.3d 913 ( 2014 )

Opinion issued March 13, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00235-CR
———————————
RONALD EUGENE DIBELLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1263067
OPINION
A jury convicted Ronald Dibello of indecency with a child and assessed
punishment at three years’ confinement. On appeal, Dibello contends that the trial
court abused its discretion in admitting a videotaped interview of B.C., the
complainant. Finding no error, we affirm.
Background
In 2008, B.C. and his mother, Christy Cushman, moved from Harris County,
Texas to Tennessee. In January 2010, B.C., an eleven–year–old child who lived in
Tennessee at the time, complained to his mother, Christy Cushman, that his penis
hurt. Christy was concerned because B.C. had complained to her of similar pain
several times. She explained to B.C. that it was inappropriate for anyone to touch
his penis and told him that she had been inappropriately touched when she was a
young girl. Ten minutes later, B.C. called for Christy. B.C. told her that Dibello,
his step–grandfather, had touched his penis during a visit to Dibello’s residence in
Harris County, Texas.
The following month, B.C. participated in a videotaped interview with a
children’s services agency in Tennessee. In the interview, B.C. stated that (1) B.C.
had seen Dibello ejaculate; (2) Dibello had touched B.C.’s penis; (3) Dibello had
placed B.C.’s hand on Dibello’s penis; (4) Dibello had tried to perform anal sex on
B.C.; and (5) Dibello had asked B.C. to perform anal sex on Dibello. In May
2010, B.C. filed a complaint in Harris County, Texas. In August 2010, a Harris
County grand jury indicted Dibello for indecency with a child.
Course of proceedings
At trial, B.C. testified that Dibello had committed the five acts that he had
described in his earlier interview. During cross–examination, Dibello’s counsel
2
stated, “So, we know what your counselors have told you and what the D.A.’s have
told you and the police have told you . . . I want to know what you know.” Over
Dibello’s hearsay objection, the State proffered B.C.’s videotaped interview as a
prior consistent statement under Texas Rule of Evidence 801(e)(1)(B). During
closing argument, Dibello’s counsel argued, “[O]bviously [B.C.] didn’t know what
happened to him except for what was put in his mind.” Dibello’s counsel also
argued that B.C. changed his story between the interview and the trial.
Discussion
Dibello contends that the trial court abused its discretion in admitting the
videotaped interview of B.C., asserting that the recorded interview does not fit
within the prior–consistent–statement hearsay exception. See TEX. R.
EVID. 801(e)(1)(B). Dibello complains that (1) B.C.’s earlier interview is
inconsistent with his testimony at trial; and (2) B.C.’s interview does not predate
improper influences on B.C., and thus the statement is unreliable as a prior
consistent statement.
Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A
trial court abuses its discretion only if its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Taylor v. State,
3
268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its
discretion if some evidence supports its decision. Osbourn v. State, 92 S.W.3d
531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s evidentiary ruling if it
was correct on any theory of law applicable to the case. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
Consistency
A prior statement may be admitted if it is “consistent with the declarant’s
testimony and is offered to rebut an express or implied charge against the declarant
of recent fabrication or improper influence or motive.” TEX. R.
EVID. 801(e)(1)(B). Both in the interview and at trial, B.C. testified consistently to
the elements of the offense. But Dibello contends that B.C. provided details in his
testimony that he did not mention in his earlier interview, and thus the trial court
erred in admitting it. Dibello’s argument is without merit. A prior consistent
statement need only be “generally consistent” with the declarant’s testimony.
Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007); see also
Williams v. State, No. 14-11-01068-CR, 2013 WL 84903, at *7 (Tex. App.—
Houston [14th Dist.] Jan. 8, 2013, pet. ref’d) (mem. op., not designated for
publication) (holding there was no inconsistency where victim’s testimony
described forcible sexual contact whereas victim’s prior journal entries merely
described defendant trying to get victim to perform sex act). Because B.C.’s
4
earlier statement did not differ in relevant substance with his in–court testimony,
we hold that the statement was generally consistent and thus could rebut a charge
of recent fabrication. See Hammons, 239 S.W.3d at 804.
Timing
In his cross–examination of B.C. at trial, Dibello’s counsel suggested that
prosecutors and police officers had improperly influenced or suggested B.C.’s
testimony. B.C.’s Tennessee interview occurred in February 2010 in Tennessee.
In May 2010, B.C. filed a complaint in Harris County, Texas, and in August 2010,
a Harris County grand jury indicted Dibello for indecency with a child. B.C.’s
interview thus predates the prosecution’s alleged improper influences.
Additionally, during closing argument, Dibello’s counsel claimed that, in the
interview, B.C. stated that Dibello ejaculated onto a mattress, whereas at trial, B.C.
testified that Dibello ejaculated onto his own leg. Dibello’s counsel argued that
“adults” told B.C. to change this detail because, otherwise, the State would be
forced to find and recover Dibello’s DNA from the mattress to prove its case. See
Hammons, 239 S.W.3d at 808 (holding that appellate court may consider closing
argument in determining whether there was implied charge of improper influence).
Dibello observes that B.C.’s interview does not predate each of the improper
influences that Dibello’s counsel suggested in cross–examination. For instance,
Dibello’s counsel suggested that, before the interview, Christy improperly
5
influenced B.C. by telling B.C. that she was inappropriately touched when she was
a young girl. A prior consistent statement, however, need not predate each alleged
improper influence; it need only predate one alleged improper influence. Dowthitt
v. State, 931 S.W.2d 244, 264 (Tex. Crim. App. 1996) (“The rule requires merely
that the witness’ prior consistent statement be offered “to rebut an express or
implied charge against him or recent fabrication or improper influence or
motive.”). We hold that B.C.’s Tennessee interview predated at least one of the
improper influences alleged by Dibello’s counsel.
Conclusion
Because B.C.’s interview was consistent with his trial testimony, and it
predated an alleged improper influence on B.C.’s testimony, the trial court did not
abuse its discretion in admitting the statement into evidence to rebut an allegation
of recent fabrication. Accordingly, we affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Brown.
Publish.
6