AT AUSTIN
NO. 3-92-474-CR
WILLIE MICHAEL SWIFT a/k/a WILLIE PAUL SWIFT,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 41,195, HONORABLE RICK MORRIS, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of aggravated sexual assault. Tex. Penal Code Ann. § 22.021 (West 1989). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for life.
The complaining witness was living temporarily with appellant's family. On the afternoon in question, the complainant and appellant were alone in the apartment when appellant seized the complainant, began to beat her, and demanded that she submit to sexual intercourse with him. During this assault, appellant penetrated the complaining witness with his penis or his finger. Appellant ceased his attack when his sister, Tina Swift, and a neighbor, Angela Whiteside, arrived and began knocking on the apartment door. The complainant ran to the door and opened it. Whiteside took the complainant to her apartment and called the apartment security guard.
Appellant's two points of error complain of the admission of certain testimony by the security guard, Steven Richardson. After Richardson described the complaining witness's physical condition, he was questioned by the prosecutor as follows:
Q. What did [the complainant] tell you about the sexual assault?
[Defense counsel]: Objection to that. Calls for hearsay response, your Honor. It would be bolstering.
[Prosecutor]: We offer it on the exception, the outcry exception to the Rule, your Honor.
THE COURT: Okay. Overruled.
Q. (By Mr. Glass.) What did she say with regard to the sexual assault, what happened?
A. Well, she went on to tell me what he done, that he had -- First she told me that his sister left the apartment, you know. That left nobody in the apartment but her and Paul.
Q. All right.
A. And that he ripped her panties off. And I'm trying to -- Because this has been so long ago. Then he pulled her from out of the bathroom back into the bedroom, and that that's where he ripped the skirt and threw her to the bed, and that's when he had her around the neck she was telling me.
Q. Did she tell you about how he sexually assaulted her specifically?
A. Yes. She said he put his fingers into her vagina and then he took his penis and put it in her hand and told her to insert it.
Q. All right. Did she also speak about how, how violent he got with her?
A. Well, yes, I [sic] said the whole time he was doing it he had already hit her a couple of times and he was choking her during the whole thing.
Appellant contends that this testimony was inadmissible hearsay and improper bolstering of the complaining witness.
The Code of Criminal Procedure contains two statutes dealing with what is generally referred to as "outcry" by the victim of a sexual assault or similar offense. One of these statutes, article 38.072, creates an exception to the hearsay rule for statements describing the offense made by victims twelve years old or younger. Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 1993). Article 38.072 does not apply to this cause.
The other outcry statute is article 38.07, which provides that "[a] conviction under . . . Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred." Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 1993). Under article 38.07, a person to whom the victim of a sexual assault confides about the attack may testify to the victim's outcry if the outcry is made within six months of the assault and the testimony of the victim is not corroborated. Brown v. State, 649 S.W.2d 160 (Tex. App.--Austin 1983, no pet.). The outcry witness's testimony is admissible to show that the complaint was made and the basic nature of the complaint, but is not admissible to prove the actual details of the sexual assault or even that the assault actually occurred. Id. In other words, article 38.07, unlike article 38.072, does not create an exception to the hearsay rule for outcry testimony.
The prosecutor's question to Richardson, "What did [the complainant] tell you about the sexual assault?" did not necessarily call for a hearsay response. Under article 38.07, Richardson could properly testify to the fact of the complainant's outcry to him. Thus, the trial court did not err by overruling appellant's hearsay and bolstering objections when they were made. Appellant did not voice any further objection and thus failed to preserve his contentions concerning Richardson's subsequent testimony. Tex. R. Crim. Evid. 103(a); Tex. R. App. P. 52(a).
Even if appellant's hearsay objection was sufficient to preserve his contention for review, no error is presented. The district court could reasonably find that the complainant's statements to Richardson related to a startling event and were made while she was under the stress of excitement caused by the event, and were therefore admissible under the excited utterance exception to the hearsay rule. Tex. R. Crim. Evid. 803(2); see State v. Williams, 814 S.W.2d 256, 260 (Tex. App.--Austin 1991), aff'd, 832 S.W.2d 52 (Tex. Crim. App. 1992) (appellate court may affirm trial court's ruling on any theory supported by the record). The first point of error is overruled.
Similarly, if appellant's bolstering objection was sufficient to preserve his complaint concerning Richardson's testimony, no reversible error is presented. Appellant admitted striking the complainant during the course of an argument, but testified that he did not sexually assault her. Appellant's sister, Tina Swift, testified that the complainant told her at the hospital that appellant "didn't stick it in." The complainant's prior consistent statements to Richardson were thereby rendered admissible to rebut the implicit charge that the complainant had fabricated her testimony concerning the sexual assault and penetration. Tex. R. App. P. 801(e)(1)(B). The second point of error is overruled.
The judgment of conviction is affirmed.
[Before Justices Powers, Kidd and B. A. Smith]
Affirmed
Filed: February 17, 1993
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