In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00090-CR ______________________________
MATT SHANNON WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court Hopkins County, Texas Trial Court No. 0116355
Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
Matt Shannon Williams appeals from his conviction for aggravated sexual assault on a child. He argues the court erred by admitting a videotaped interview with the child in accordance with the State's suggestion it was an "outcry statement" admissible under the statutory outcry exception to the hearsay rule.
The State offered the videotape as a sort of adjunct to the outcry testimony of a police officer who was present when the videotape was made. Williams agreed the officer was a proper outcry witness, but objected on numerous grounds to the proffer of the videotape of the interview in addition to the officer's description of the interview.
We first observe that Article 38.071, (1) which provides a method for admitting such an oral statement in a recording when the child is unavailable to testify, does not apply to this case. The child was called by the State and testified at length at trial.
Accordingly, we confine our review to determining whether the videotape, in addition to the testimony of the live "outcry" witness, Detective Charles Veilleux, was admissible under the auspices of Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003). Article 38.072 permits the state to introduce the substance of "outcry" statements by child victims of certain enumerated offenses, notwithstanding the hearsay rule, if certain conditions are met.
The statute provides that a statement meeting its requirements is not inadmissible because of the hearsay rule if a party gives fourteen days' notice of its intention to offer the statement, "provides the adverse party with the name of the witness through whom it intends to offer the statement," and provides a written summary of the statement. The court must find the statement reliable, and the child must either testify or be available to testify.
There are two problems with the admission of the videotape in this case. 1) The written notice given by the State does not refer to a videotape, but only gives notice the State would offer the testimony of Veilleux about the first statement made by the child. 2) The statute contemplates the admission of a witness who will testify about a statement by a child that would otherwise be hearsay-not the admission of a videotape of that statement. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2) (restricting exception to allow admission of statements describing alleged offense made to only "the first person" to whom child made statement about offense). (2)
Although this matter was raised at trial, Williams has not addressed the adequacy of the notice in his brief to this Court.
The question before this Court is whether a trial court may choose to admit both the statements of the outcry witness and a videotape of the outcry itself into evidence. We conclude it may not.
The statute contemplates the testimony of a live individual at trial who would be subject to cross-examination, rather than some form of written or recorded statement. (3) An "outcry" witness is by definition not the victim, but a witness who repeats what the victim said. A videotaped interview does not provide such a third-party repetition. It is, instead, the statement itself. Veilleux could properly testify about the statements made by the child in her outcry; but to allow him to testify about them, and then also admit the videotape of the interview in which the outcry was made, is outside the scope of the statute.
The Legislature has recognized the types of safeguards required to ensure such statements are properly and fairly taken and presented, as shown by the extensive and specific requirements of Article 38.071. See Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon Supp. 2003). This is also reflected by the express inclusion in Tex. R. Evid. 801(e)(1)(D) of language stating that a prior statement is not hearsay if taken and offered in a criminal case in accordance with Article 38.071. No such safeguards appear in Article 38.072. That is understandable, because the statute is designed to apply to the testimony of a third party-not to a videotaped interview.
In this case, there was only one outcry witness: Veilleux. The videotape was not an outcry witness; it was a statement made by the victim. It was obviously offered for the truth of the matters asserted, and thus the question is whether the videotape was otherwise admissible as an exception to the hearsay rule. In making our determination, we review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). We will not reverse a trial court whose ruling was within the "zone of reasonable disagreement." Id. at 102.
There is no hearsay exception that appears to apply to this situation. Accordingly, we must conclude the trial court abused its discretion by admitting the videotape into evidence and by allowing the detective to review the interview in detail for the jury.
The remaining question is whether this error requires reversal. In order to properly conduct a harm analysis under Tex. R. App. P. 44.2(b), we need only determine whether the error affected a substantial right of the defendant. To make this determination, appellate courts must decide whether the error had a substantial or injurious effect on the jury verdict. The very process of reaching this decision is the performance of a Rule 44.2(b) harm analysis. Llamas v. State, 12 S.W.3d 469, 471 n.2 (Tex. Crim. App. 2000).
We recognize that, in a case recently decided by this Court, we concluded a videotape of a victim's testimony in similar circumstances that was considered by a jury provided a basis for finding the improper admission of other evidence harmless. In that case, however, there was no objection to the admission of the videotape. Josey v. State, 97 S.W.3d 687, 698 (Tex. App.-Texarkana 2003, no pet.).
The improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding any error in admission of hearsay testimony harmless in light of other properly admitted evidence proving same fact); Matz v. State, 21 S.W.3d 911, 912 (Tex. App.-Fort Worth 2000, pet. ref'd); Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.-Fort Worth 1999, pet. ref'd).
In this case, even though erroneously admitted by the trial court, the videotape essentially repeated the previous trial testimony of the victim. Because the videotape is cumulative of properly admitted testimony on the same issue, even though the trial court erred in admitting the videotape, we must disregard the error because it could not have affected Williams' substantial rights. See Tex. R. App. P. 44.2(b); Jensen v. State, 66 S.W.3d 528, 536-37 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd).
Williams next contends the trial court erred by considering his "conviction" in California in the sentencing phase when that conviction was not final under California law. However, the record reflects that, when asked to plead to the enhancement, Williams pled "true." This is typically sufficient in itself to support a finding of a final conviction. Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981); Harrison v. State, 950 S.W.2d 419 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (discussing application of this concept). Further, there was no argument made at the time that the conviction was not final. Thus, the issue was not preserved for appellate review. See Tex. R. App. P. 33.1.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: September 10, 2003
Date Decided: September 11, 2003
Do Not Publish
1. Article 38.071 of the Texas Code of Criminal Procedure provides that the recording of an oral statement by a child who is younger than thirteen and a victim of certain offenses, is admissible in evidence so long as certain prerequisites are met, one of which is that the court finds the child is unavailable to testify at trial. Tex. Code Crim. Proc. Ann. art. 38.071, § 1 (Vernon Supp. 2003); Carlock v. State, 99 S.W.3d 288, 292 (Tex. App.-Texarkana 2003, no pet.) (reviewing different aspect of article).
2. At trial, Veilleux testified and the videotape was introduced by the State after the victim had testified.
3. The rule provides for only one outcry witness. Before more than one outcry witness may testify, the outcry must be about different events, not simply the repetition of the same event as related by the victim to different individuals. Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.-Texarkana 2000, pet. ref'd).