Detlef Blauen v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-132-CR





DETLEF BLAUEN,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT

NO. 92-330-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

After his not guilty plea, a jury found appellant guilty of indecency with a child. Tex. Penal Code Ann. § 21.11(a)(1) (West 1989). The punishment assessed by the jury is confinement for thirteen years and one day. We will affirm the judgment.

The sufficiency of the evidence is not challenged. Appellant asserts in four points of error that the trial court erred in failing to grant him a mistrial when the State elicited a child's outcry statement without complying with Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 1994). Appellant also argues that the admission of this evidence, which was later withdrawn and which the jury was admonished not to consider, constitutes a violation of his federal and state constitutional rights to confrontation, due process, and due course of law. However, appellant's federal and state constitutional claims were not preserved for review by trial court objections. It is necessary for the accused to object on the basis of confrontation and due process to preserve the alleged error for review. Holland v. State, 802 S.W.2d 696 (Tex. Crim. App. 1991); see Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986). We therefore address only the complaint that the State failed to give the notice required by article 38.072 before eliciting testimony of the victim's grandmother.

The grandmother testified that the victim said, "Daddy hurt me. No let Daddy hurt my potty." This testimony was admitted over an objection of noncompliance with article 38.072. The trial court promptly acknowledged the erroneous admission of the statement and instructed the jury to disregard the statement, but denied appellant's motion for a mistrial. Unless we determine beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment assessed, we must reverse the judgment. Tex. R. App. P. 81(b)(2). To determine whether the erroneous admission of the statement was reversible error, we must review the facts of the case and the evidence adduced at trial because it is impossible to gauge the significance of the error apart from the remaining evidence properly admitted. Harris v. State, 790 S.W.2d 568, 585 (Tex. Crim. App. 1989).

The victim is the two-and-one-half year old daughter of the appellant. The victim's mother and appellant were divorced, but the appellant had regular visitation rights. The appellant made an oral and a written statement to investigating officers that out of curiosity he had touched the victim three times around her vagina. One of the officers testified that in his oral statement appellant admitted he had fondled the vagina of the victim on three occasions in three different locations. On cross-examination, the officer admitted that appellant did not use the word "fondle" in the written statement.

After April 15, 1992, the alleged day of appellant's misconduct, witnesses noticed that the victim's behavior changed. Three employees of the day-care facility testified that during this time the victim cried a lot, resisted having her clothes changed, did not want to take her naps, awoke from her naps in discomfort and pulled on her training pants. One of the employees testified that once when the victim awoke from her nap she said, "Daddy don't." The victim's mother testified concerning the victim's changed behavior. The victim did not want to take her nap, did not want to go to sleep, requested inappropriate touching, and began placing objects in her vagina. The victim developed a urinary infection in April. The victim's maternal grandmother's testimony corroborated other State witnesses' testimony; she also reported the victim's statement, "Daddy hurt me. No let Daddy hurt my potty."

At the suggestion of their doctor, the victim's mother and maternal grandparents took her to Dr. Birch Kimbrough, a physician at the Brackenridge Hospital emergency room. After examining the victim, and Dr. Kimbrough was unable to determine whether she had been sexually abused. Kimbrough testified that he had never been able to diagnose child molestation as the direct cause of a urinary infection.

In June 1992, the victim's mother and her parents took her to Dr. Robert Prall, a psychiatrist, who treated the victim from that time until the time of trial. He concluded that the victim's reported behavior and his observations of her during treatment were compatible with the victim having been sexually abused.

In his defense, appellant denied committing the offense. He attempted to explain the statements attributed to him by the officers. Appellant admitted that after giving his written statement he asked the officers: "What do you think I'll get for this, probation or go to the penitentiary?" The appellant's testimony was lengthy. He explained that he had touched his daughter around her vagina: "Basically just for a medical reason if I was to look for something or for cleanliness." He also explained that although he had said he was sexually aroused while his daughter was near him or on his lap, that on these occasions, the cause of his sexual arousal was his wife, the child's mother, who was "coming on to him."

He offered the testimony of his mother, stepmother, friends, and a co-worker in his defense. These witnesses testified that during the time in question they had not observed any of the inappropriate behavior of the victim noticed by the State's witnesses. The defense witnesses had observed the appellant and the victim together and had not seen any improper conduct by the appellant.

The State argues that the erroneous admission of the grandmother's single sentence of testimony, which the court instructed the jury to disregard, was cured by the admission of similar evidence from other sources in the several volumes of lay and expert testimony. During cross-examination of Dr. Kimbrough, the defense offered and the court admitted as defense exhibit three the entire record of Dr. Kimbrough's examination. That exhibit includes this report from the victim's mother's:

The child also each night at about 2:30 to 3:30 a.m. awakens screaming, quoting "don't daddy." The patient's mother also states that the child has told her that "daddy hurt," and grabs her perineum. The patient's mother states the day care where the child stays has reported similar behavior with the child waking herself from her afternoon nap screaming the same thing and reaching for her perineum.

Additionally, appellant did not object to state's exhibit four, six pages of "Identifying Data" prepared for Dr. Prall the psychiatrist who was treating the victim. This document includes a reference that the victim, "verbalized about 'daddy hurt,' etc." One of the day-care facility employees testified that the victim on one occasion awoke and said, "'Daddy don't,' and then she -- It was more of a whimper, and then she would just say 'daddy.'"

Generally, an error in admitting improper testimony may be cured or rendered harmless by its withdrawal and an instruction to disregard. Carter v. State, 614 S.W.2d 821, 824 (Tex. Crim. App. 1981); Cavender v. State, 547 S.W.2d 601, 603 (Tex. Crim. App. 1977). However, in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds, the admission is not cured by the instruction. Carter, 614 S.W.2d at 824-25; Crawford v. State, 603 S.W.2d 874, 876 (Tex. Crim. App. 1980).

In this case, the trial court withdrew the evidence and instructed the jury not to consider it. If this did not cure and render the error harmless, there are additional reasons that reversible error is not presented. Error in the admission of evidence may be cured when the same evidence comes in elsewhere without objection. Stoker v. State, 788 S.W.2d 1 (Tex. Crim. App. 1989); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Paloma v. State, 656 S.W.2d 229, 232 (Tex. App.--Austin 1983, no pet.). When the defendant offers the same kind of testimony or evidence about which he has objected, the error is deemed waived or cured by the defendant. Sweeten v. State, 693 S.W.2d 454 (Tex. Crim. App. 1985); Porter v. State, 623 S.W.2d 374 (Tex. Crim. App. 1981). Similar evidence to that of which appellant complains came before the jury in defendant's exhibit three, state's exhibit four, and the testimony of the day-care employee.

The complained-of hearsay statement was made by an interested witness, the victim's grandmother, and it was not essential to the State's case. See Addkison v. State, 697 S.W.2d 812, 814-15 (Tex. App.--Corpus Christi 1985, pet. ref'd). Furthermore, the trial court made a finding that the prosecutor was surprised by the testimony and did not act in bad faith.

We will apply the harmless error analysis of Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989), as this Court did in Fleming v. State, 819 S.W.2d 237, 248 (Tex. App.--Austin 1991, pet. ref'd). Since the trial court found the State was surprised by the grandmother's testimony and that the State did not act in bad faith, the State was not the deliberate source of the error. The appellant admits that, "the prosecutor did not repeatedly emphasize the error." Furthermore, the erroneously admitted testimony of the grandmother was essentially the same as properly admitted evidence. We believe the State's case would have been just as persuasive without the erroneously admitted testimony of an obviously interested witness. In view of the trial court's finding that the State did not act in bad faith and was surprised by the witness's testimony, our holding that the error is harmless is not likely to encourage the State to act improperly in the future. We find beyond a reasonable doubt that the erroneous admission of the hearsay testimony of the victim's grandmother, which the trial court withdrew and admonished the jury not to consider, did not contribute to the conviction or punishment.

The trial court did not err in denying the motion for mistrial. Appellant's points of error are overruled and the judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Aboussie, Jones and Dally^*

Affirmed

Filed: March 30, 1994

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).