John Tschoepe v. The State of Texas--Appeal from 81st Judicial District Court of Atascosa County

MEMORANDUM OPINION
Nos. 04-06-00743-CR, 04-06-00744-CR, & 04-06-00745-CR
John TSCHOEPE,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court Nos. 02-11-00293-CRA, 02-11-00295-CRA, & 02-11-00296-CRA
Honorable Olin B. Strauss, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: February 27, 2008

 

AFFIRMED

A jury convicted John Tschoepe of aggravated sexual assault of, and indecency with, his eleven-year-old daughter. Tschoepe appeals his convictions contending: (1) the trial court abused its discretion by admitting inadmissible hearsay and extraneous offense evidence; and (2) the court reporter erred by failing to transcribe the reading of the charge, resulting in harm to Tschoepe. We affirm the judgments of the trial court.

Background

The complainant, V.T., lived with her biological parents, John and Laura Tschoepe. After V.T.'s school counselor reported evidence of physical abuse, Child Protective Services ("CPS") investigated the Tschoepes and removed V.T., who was thirteen years old, and her younger brother from the home. V.T. was placed in foster care and referred to therapy. Several months after beginning her weekly therapy sessions, V.T. told Christie Dean, her therapist, that Tschoepe had sexually assaulted her when she was approximately eleven years old. Over the next several months, V.T. revealed more about the sexual abuse alleging Tschoepe had penetrated V.T.'s vagina with his penis while she was staying home from school with bronchitis. V.T. further claimed that, over the course of several months, Tschoepe also touched V.T.'s breasts, vagina, and anus with his hands under her clothes. On one occasion, Tschoepe propositioned V.T.'s teenage babysitter to have sex with V.T. while he watched. CPS was informed of the sexual abuse allegations and conducted an investigation. Tschoepe was charged with and convicted of one count of aggravated sexual assault and two counts of indecency with a child. Tschoepe timely appealed.

Admission of Evidence

In his first two issues, Tschoepe complains about the trial court's erroneous admission of evidence. We review a trial court's decision to admit evidence for an abuse of discretion. Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003). If the trial court's ruling is within the zone of reasonable disagreement, we affirm. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

 

I. Dean's Testimony

Tschoepe contends the trial court committed several errors related to the trial testimony of V.T.'s therapist, Christie Dean.

A. Insufficient Notice of Outcry Testimony

Tschoepe first argues the trial court abused its discretion when it allowed Dean to testify about statements V.T. made to her during therapy because the State failed to give an appropriate notice and summary of Dean's testimony as required by article 38.072, section 2(b)(1) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.072, 2(b)(1) (Vernon 2005). Specifically, Tschoepe maintains "the letter sent to the defense did not include a sufficient summary of the circumstances of the event, nor the circumstances of the events leading up to the outcry. No details were provided [a]nd . . . no actual outcry notice was provided to the defense 14 days prior to trial." (1)

Hearsay evidence is generally inadmissible under the Texas Rules of Evidence unless there is an applicable statutory or rule-based exception for the evidence. Tex. R. Evid. 802; see Marquez v. State, 165 S.W.3d 741, 745 (Tex. App.--San Antonio 2005, pet. ref'd). Article 38.072 provides a statutory exception that permits the State to introduce statements made by a child victim about the offense under certain circumstances. Tex. Code Crim. Proc. Ann. art. 38.072, 2 (Vernon 2005). At least fourteen days before trial, article 38.072 requires the State to give the defendant written notice of: (1) the hearsay statements it intends to offer; (2) the name of the outcry witness who will offer the statements; and (3) a written summary of the hearsay statements. Id. at 2(b)(1). The purpose of the outcry notice requirement is to prevent the defendant from being surprised. See Alvarado v. State, 817 S.W.2d 738, 740 (Tex. App.--San Antonio 1991, no pet.). The written summary should, therefore, give the defendant notice of the content and scope of the expected outcry testimony. Gay v. State, 981 S.W.2d 864, 866 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd). Furthermore, the trial court must hold a hearing outside the presence of the jury to determine if the hearsay statements are "reliable based on the time, content, and circumstances of the statement[s]." Tex. Code Crim. Proc. Ann. art. 38.072, 2(b)(2) (Vernon 2005). Finally, the child must testify or be available to testify at trial. Id. at 2(b)(3). "A trial court has broad discretion in determining the admissibility of outcry statements pursuant to this statute, and the trial court's exercise of that discretion will not be disturbed on appeal unless a clear abuse of discretion is established by the record." Marquez, 165 S.W.3d at 746.

In a pre-trial hearing, Tschoepe's defense counsel admitted receiving, from the State, a letter from Christie Dean, "who I'm assuming is going to be the outcry witness. She's the therapist for the child." Tschoepe's counsel complained, however, that: (1) the State had not listed Dean as a witness; and (2) the letter provided little more than a general allegation of sexual abuse and gave no details regarding the outcry statement. The State maintained, both at pre-trial and now on appeal, that the letter provided to Tschoepe's counsel meets the requirements of article 38.072. The letter in question, however, was not included in the record and is not before us on appeal. Consequently, because there is no evidence in the record demonstrating that the State met the requirements of article 38.072, we conclude the State failed to comply with the notice provisions of the statute. See Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.--Waco 1998, no pet.).

Even if admission of Dean's testimony about the outcry was error, however, we conclude it did not affect Tschoepe's substantial rights and was thus harmless. See Tex. R. App. P. 44.2(b); see also Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992) (noncompliance with article 38.072 notice requirement is reviewed for harm); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (reviewing error under article 38.072 as non-constitutional error). When a non-constitutional error is made during trial, we must disregard it unless it affected the substantial rights of the defendant. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). A substantial right is affected "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

Because the purpose of article 38.072's notice requirement is to prevent surprise, in determining harm we look at whether Tschoepe was actually surprised by the outcry evidence and whether Tschoepe was prejudiced by a lack of notice. Gabriel, 973 S.W.2d at 720; Fetterolf v. State, 782 S.W.2d 927, 930 (Tex. App.--Houston [14th Dist.] 1989, pet. ref'd). First, as to the identity of the outcry witness, Tschoepe's counsel admitted receiving a letter written by Dean, knew that Dean was V.T.'s therapist, and "assumed" Dean would be the outcry witness. See Fetterolf, 782 S.W.2d at 930 (indicating that "a reasonable person could deduce or anticipate who the outcry witness was" from the State's file and subpoena list). Second, as to the content of the outcry statement, Tschoepe's counsel told the trial judge that the letter "says the child made an outcry statement. It doesn't go into a lot of detail other than saying that a rape occurred but it doesn't go into exactly what the hearsay testimony is going to be." Tschoepe's counsel also stated "in the notice that I have received in the letter it says [V.T.] has not described the rape in detail." Through these statements, Tschoepe indicated to the trial court that he was aware that Dean's testimony was going to encompass what V.T. told Dean about the rape. We note that at least one court of appeals has held that an outcry summary of one sentence is sufficient notice if the outcry witness's testimony is included "within that brief summary." Green v. State, No. 11-03-00159-CR, 2004 WL 2126750, at *5 (Tex. App.--Eastland Sept. 23, 2004, no pet.) (not designated for publication). Further, there is no evidence in the record that Tschoepe's counsel was surprised by the content of Dean's outcry testimony; the record provides no basis to conclude that Tschoepe's case was prejudiced by the lack of notice. Finally, V.T. testified at trial, without objection, to the details of the rape and the outcry. Examining the record, V.T.'s testimony about the sexual assault was more detailed than Dean's outcry testimony. Because Dean and V.T. testified about the same matter, with V.T. testifying in more detail without objection, any error in admitting the outcry evidence was cured. See Duncan, 95 S.W.3d at 672.

B. Incorrect Witness

Tschoepe next contends Dean was not the first person over the age of eighteen that V.T. told about the sexual abuse; therefore, Dean is not the correct person to testify as the outcry witness. See Tex. Code Crim. Proc. Ann. art. 38.072, 2(a)(2) (Vernon 2005). The record indicates V.T. told several people about the sexual abuse subsequent to, and prompted by, the conversation with Dean. However, there is no indication that V.T. made "a statement that in some discernible manner describe[d] the alleged offense" to anyone else before telling Dean. See Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). In fact, Dean testified that V.T. told Dean "she had never told anyone before . . . and she was concerned about her father finding out that she told me and concerned that he would hurt her or punish her somehow." We overrule this issue.

 

C. Improper Comment on Credibility

Finally, Tschoepe contends that the trial judge abused his discretion by allowing Dean to improperly "opine that [V.T.'s] allegations were truthful." (2) A review of the record, however, shows that Tschoepe did not object to Dean's testimony that he now challenges on appeal; therefore, he failed to preserve any error on that basis. See Tex. R. App. P. 33.1(a); see also Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000).

II. Extraneous Offenses

Tschoepe contends the trial court abused its discretion when it admitted inadmissible extraneous offense evidence in violation of his motion in limine. Tschoepe specifically complains about testimony regarding poor living conditions at the trailer, physical abuse, drug and alcohol abuse, and the termination of Tschoepe's parental rights. A motion in limine does not alone preserve error. Manns. v. State, 122 S.W.3d 171, 190 (Tex. Crim. App. 2003). "For error to be preserved with regard to the subject matter of the motion in limine it is absolutely necessary that an objection be made at the time when the subject is raised during the trial." Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985). Violation of a motion in limine may entitle a party to relief, but any remedy lies with the trial court. Id.; Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972). Tschoepe did not object at the time the evidence in question was introduced that it was inadmissible evidence of "bad acts." Because Tschoepe did not make a timely, specific object to admission of the "bad acts" evidence during trial, he failed to preserve this issue. See Martinez, 22 S.W.3d at 507.

 

Reading of the Jury Charge

Finally, Tschoepe argues the court reporter erred when he failed to record the reading of the jury charge, obscuring the possibility that the trial court erroneously read the charge or impermissibly commented on the weight of the evidence. Based on the following comment by the trial judge before reading the charge, Tschoepe contends the reading of the charge could have resulted in a comment on the weight of the evidence:

THE COURT: [S]o the way I'm going to do this in the interest of time is to read the charge in the sexual assault case and then I'm going to read one of the charges in the indecency case and some of it is kind of repeatable, we call boiler plate language. Those two will be read from the Court, and then the last two I'll basically tell you how they're different without reading the entire matter.

(Whereupon the Court read the charge to the jury)

 

At trial, Tschoepe made no objection to the reporter's failure to record the reading of the charge, but now asserts on appeal,

 

With respect to what the judge actually said, we do not know. However, it can be surmised from his introductory statements, that he was going to provide an interpretation of the differences between the indecency counts. Unnecessary instructions that single out or highlight issues run the risk of being comments on the weight of the evidence.

 

"[T]he purpose of requiring a timely, specific objection is to allow the trial court to have the opportunity to make a determination and ruling on the complained-of point" and make corrections, if necessary. Brossette v. State, 99 S.W.3d 277, 285 (Tex. App.--Texarkana 2003, pet. ref'd, untimely filed) (concluding that although it is error when a court reporter does not record the jury charge, this error is waived if not objected to). Because Tschoepe failed to object to the court reporter's failure to record the reading of the charge, Tschoepe deprived the trial court of an opportunity to correct any error, and failed to preserve the issue for appeal. Martinez, 22 S.W.3d at 507; Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996).

Conclusion

Based on the foregoing reasons, we affirm the judgments of the trial court.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. Tschoepe makes a vague complaint about V.T. being too old (fourteen years of age) at the time she outcried; therefore, her statements to Dean would not be admissible. We disagree. The statute limits the age of the victim at the time of the offense, not at the time of the outcry. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005) (applying the article to a proceeding in the prosecution of an offense . . . if committed against a child 12 years of age or younger); see Marquez v. State, 165 S.W.3d 741, 746 (Tex. App.--San Antonio 2005, pet. ref'd). The record evidences V.T. was eleven years old when the abuse began; therefore, Dean's testimony was admissible under article 38.072. See id.

2. Tschoepe also makes a vague complaint about similar testimony from V.T.'s case worker, Amy Ventura. Because Tschoepe did not object to Ventura's comments at trial, any objection on that basis has been waived. Tex. R. App. P. 33.1(a); Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000).