Opinion
No. 05-10-01057-CR & 05-10-01058-CR
04-23-2012
DAVID BRYAN BAHLE, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRMED as Modified; Opinion Filed April 23, 2012.
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 219-81873-09 & 219-81874-09
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Morris
At trial, a jury convicted David Bryan Bahle of unlawful possession of a firearm by a felon, continuous sexual abuse of a young child, and three counts of indecency with a child by contact. He now complains on appeal that the trial court abused its discretion in not allowing impeachment evidence against the complainant and permitting the State to elicit hearsay testimony. He further complains that the evidence in his cases is insufficient to support the trial court's assessment of appellant's court-appointed attorney's fees as court costs to be paid by appellant. We sustain appellant's point of error complaining of the attorney's fees and modify the judgments to remove such assessment. As modified, we affirm the trial court's judgments. Factual Background
The twelve-year-old child complainant in the case testified that appellant, her father, sexually abused her for years. She stated that appellant had sexual intercourse with her, contacted her vagina with his mouth, instructed her to put her mouth on his penis and suck it like a popsicle, contacted her anus with his penis, contacted her vagina with a vibrator, touched her breasts with his hands and mouth, and penetrated her vagina with his finger. The complainant described specific details of the abuse, including the way that she would stand or sit during the sexual acts, the time appellant used a watermelon-flavored lubricant, and the use of a towel or toilet to dispose of any semen. The complainant told her grandparents what appellant had done to her, then she told a nurse during a sexual assault examination. Afterward, she gave the details in a forensic interview. Some time later, she briefly recanted her testimony, then withdrew the recantation and reaffirmed her claims several days later. She explained that she recanted because she wanted her family to be happy.
The complainant testified that one time when she had a friend spend the night, appellant had her and the friend "model" for him in their bra and underpants. Then he told the girls to lie on the floor and move their underwear so he could see their "privates," and they complied. Afterward, the friend hid in the complainant's closet and started crying.
At trial, the complainant's friend also testified for the State. She stated that on one occasion appellant had the girls take off their shirts and bras. She asked the complainant why appellant was behaving that way, and the complainant told her that he was "just like that at night." While the girls were topless he invited friends over and had the girls "dance" for them. He told the girls he would pay them forty dollars "to show us our part down there" but they did not do it. She said he had them "bend over and . . . show our butt to his friends." The friend stated she got scared and she and the complainant went into a closet. After she started crying, appellant told the girls he would take them to the water park and give them money.
In a written statement to police, appellant confessed to the sexual abuse. He admitted he had sex with the complainant two to three times a week for years. He further admitted to touching the complainant's vagina, giving and receiving oral sex, and ruining the complainant's life. He corroborated the child's claim that the last sexual assault had happened the Sunday before appellant was questioned. He claimed that he had been molested as a child by his older brother.
At trial, appellant claimed he confessed only because he wanted to see his wife. Appellant's father-in-law, who had not seen appellant's confession, testified that he initially believed the complainant when she told him about the sexual abuse but now believes appellant instead. Appellant's wife, the complainant's mother, exercised her Fifth Amendment right not to testify at trial.
Discussion
In his first point of error, appellant contends the trial court erred in refusing to permit him to impeach the child complainant with evidence that she made allegations about the foster father she had after appellant was arrested and then later admitted that she had lied about the allegations. Out of the presence of the jury, the child testified that she had told Child Protective Services her foster father had rubbed her tummy, massaged her feet, and looked at her breasts during a doctor's appointment and it made her uncomfortable. She was later placed in a different foster home but asked if she could return to the other foster family. When asked if she admitted to her counselor that she had lied about the previous allegations against the foster father, the complainant testified that she did not remember saying she had lied. She testified at trial that the allegations were actually true. Also out of the presence of the jury, the complainant's counselor testified that when the complainant told her that she desired to live with her previous foster family, the counselor asked her why she would want to do that, given that the complainant had claimed the father rubbed her stomach, massaged her feet, and had sex with her. The complainant had not reported these acts to the counselor; rather, the counselor had received reports alleging the acts and the complainant's mother had told the counselor that the foster father had sex with the complainant. According to the counselor's notes, the complainant said she had lied about the previous allegations against the foster father. The counselor asked which part the complainant had lied about, and she replied "all of it." The trial court ruled that the evidence was not admissible because it was not relevant to the case.
Appellant argues the evidence showing the complainant lied about inappropriate behavior by a foster father was admissible to impeach her testimony against appellant. He contends that by excluding the evidence, the trial court denied his right to confront the witnesses against him. We review a trial court's decision to exclude cross-examination evidence under an abuse of discretion standard. See Walker v. State, 300 S.W.3d 836, 843 (Tex. App.-Fort Worth 2009, pet. ref'd). In determining whether evidence must be admitted under the Confrontation Clause, the trial court must also balance the probative value of the evidence against the risk its admission may entail. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). In the context of a previous false accusation of a sexual offense, such balancing entails evaluating whether the previous accusation was in fact false and whether the extraneous accusation was similar to the accusation alleged at trial. See id. at 226.
Here, the evidence offered showed that the complainant admitted to reporting only that the foster father had made her feel uncomfortable by massaging her feet, rubbing her stomach, and watching when her breasts were exposed at the doctor's office. When asked whether she told her counselor she lied about these accusations, the complainant said that she did not recall saying that they were lies and that the allegations were actually true. The allegations admitted to by the complainant bear little resemblance to the ones made against appellant. The probative value of a false accusation for these charges could not outweigh the danger the jury would label the child a "liar" in the context of the bigger issues of appellant's trial. We conclude the trial court did not abuse its discretion in excluding the evidence. We overrule appellant's first point of error.
In his second point of error, appellant complains the State was permitted to elicit testimony from the sexual assault nurse examiner about the complainant's report of sexual abuse for the purpose of her rape examination. The SANE nurse testified out of the presence of the jury that taking a verbal history from the patient is important so she can know what types of possible injuries or trauma to look for, in addition to giving her possible locations for DNA evidence. She stated that the primary purpose of the examination is to check for injuries or trauma to the patient that can be assessed and treated medically. The trial court overruled appellant's objection that the complainant's statements to the sexual assault nurse were inadmissible hearsay and permitted the nurse to testify about the statements under the medical exception to the hearsay rule.
In the presence of the jury, the SANE nurse testified that before beginning the examination, she spoke to the complainant's mother, who said that "she was concerned that her daughter was making allegations that she had been sexually abused or assaulted by her father and that she wanted to know if it had really happened." On the topic of the complainant's specific verbal history, the nurse testified that the child said her dad had put his "weiner" in her "private or hole." She said that appellant had a towel and that white goo came out on a towel. She also told the nurse that one time appellant made her suck on his "thing" and that white goo got into her mouth and she had to go and spit it in the toilet. She said that sometimes at night appellant came into her bed and put his fingers in her "hole" while she pretended to be sleeping. She told the nurse that one time she was bent over "and that's when he did the penile-to-vaginal penetration from behind." She said that on another occasion it hurt "real bad" and there was a lot of blood on her pants afterward. The complainant told the SANE nurse that appellant had threatened her to continue the sexual abuse. The nurse did not have any concerns that the complainant was hallucinating or fantasizing as she was giving this verbal history. She stated that she had no reason to believe the child was not telling her the truth. The complainant testified that when she first told her mother over the phone about the sexual abuse, her mother was angry and shocked and said she was going to take her to the hospital. The next day, after spending the night with appellant, she drove the complainant to the hospital for the sexual assault examination while receiving text messages from appellant. As she got the messages, she commented to the complainant that "now he's going to hurt himself because of you." At the hospital, the complainant's mother told her that appellant planned to shoot himself with a gun he had at work.
Appellant contends that the complainant's statements to the SANE nurse should not have been admitted into evidence because they were not reasonably pertinent to her diagnosis or treatment. He argues that there is no underlying indicia to demonstrate that the complainant was aware of the importance of telling the truth in her receiving any treatment plan and the examination showed no objective evidence of trauma. Under the medical diagnosis exception to the hearsay rule, a statement may be admissible if it was "made for purposes of medical diagnosis or treatment." Tex. R. Evid. 803(4). There is no requirement that a witness expressly state that the hearsay declarant recognized the need to be truthful in her statements for the medical treatment exception to apply. Instead, the reviewing court must look to see if the record supports a conclusion that the child understood why she needed to be honest when speaking to the caregiver. Beheler v. State, 3 S.W.3d 182, 188-89 (Tex. App.-Fort Worth 1999, pet. ref'd). The court of criminal appeals has noted that it seems "only natural" to presume that children of a sufficient age or apparent maturity will have an implicit awareness that a doctor's questions are designed to elicit accurate information and that veracity will serve their best interest; accordingly, most courts assess the record not for evidence of such an awareness but for any evidence that would negate such an awareness. See Taylor v. State, 268 S.W.3d 571, 589 (Tex. Crim. App. 2008).
The record in appellant's cases shows that the complainant knew she was being seen by the nurse not only so she could be treated but also so her family could determine if she was lying about her allegations of sexual abuse. She knew it was important for her to tell the truth. Based on the record before us, we cannot conclude the trial court abused its discretion in admitting the evidence. We overrule appellant's second point of error.
In his third point of error, appellant complains the evidence in his cases is insufficient to support the trial court's assessment of appellant's court-appointed attorney's fees as part of court costs to be paid by him. He specifically contends the record fails to show sufficient evidence to justify the assessment because he claimed indigency at trial and on appeal and was appointed an attorney on both occasions before the trial judge signed the judgment in the case. Under Texas Code of Criminal Procedure section 26.05, a trial court may order a convicted defendant to pay the attorney's fees of his appointed attorney as court costs "[i]f the court determines that [the] defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided." See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). If the trial court has previously determined that the defendant is indigent, however, he is "presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Id. at art. 26.04(p). If there is a material change, one of the parties may move for reconsideration of the determination. Id. The State does not dispute appellant's indigency but instead argues that because no attorney's fees have actually been assessed against appellant at this time, his complaint is moot. Appellant's complaint arises out of the enforcement of statutes governed by the code of criminal procedure. Accordingly, the pertinent legal issue is a criminal law matter that must be addressed in an appeal of the erroneous judgments. See Armstrong v. State, 340 S.W. 3d 759, 766 (Tex. Crim. App. 2011).
This is the sole point of error in the possession of a firearm by a felon case, cause number 05-10-01057-CR.
The records in appellant's cases indicate that the trial judge previously determined appellant was indigent before he signed the judgments, and no other evidence shows a material change in appellant's financial circumstances. Accordingly, the evidence is insufficient to support the trial court's assessment of attorney's fees as part of appellant's court costs. We therefore sustain appellant's third point of error and modify the judgments to strike the following language: "It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as a court cost. The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order." See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).
We affirm the trial court's judgments as modified.
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101057F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID BRYAN BAHLE, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01057-CR
Appeal from the 219th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 219- 81873-09).
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to STRIKE the following language: It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as a court cost. The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order.
As modified, the judgment is AFFIRMED.
Judgment entered April 23, 2012.
JOSEPH B. MORRIS
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID BRYAN BAHLE, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01058-CR
Appeal from the 219th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 219- 81874-09).
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to STRIKE the following language. It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as a court cost. The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order.
As modified, the judgment is AFFIRMED.
Judgment entered April 23, 2012.
JOSEPH B. MORRIS
JUSTICE