NOS. 12-03-00183-CR
12-03-00184-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LEROY PATRICK COOKE, § APPEAL FROM THE 145TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Appellant was charged in two indictments with the aggravated sexual assault of A.R. and J.H., both children under the age of fourteen. On August 29, 2002, pursuant to the State’s motion to compel the taking of testimony of the child witnesses outside the presence of the defendant, and without objection from the defendant, the testimony of the victims was taken and videotaped. On May 20, 2003, a jury found Appellant guilty as charged in both indictments, and assessed Appellant’s punishment at imprisonment for fifty years and a $5,000 fine in each case. Appellant, in two issues, contends that the trial court failed to comply with Texas Code of Criminal Procedure, article 38.072 and improperly allowed the mother of A.H. to testify to A.H.’s outcry. Appellant contends the trial court’s error resulted in the erroneous admission of hearsay evidence depriving him of his Sixth Amendment right to confront the witnesses against him. We affirm.
Background
A.R., eight years of age, and her nine-year-old friend, J.H., spent the weekend of July 21, 2001, with Appellant and his wife, A.R.’s grandmother. While the grandmother was not present, Appellant forced A.R. and J.H. to perform oral sex on each other, to touch his sexual organ, and to use a vibrator to touch each other’s sexual organs, anuses, and breasts. Appellant videotaped the assaults. When J.H. returned home, she told her mother what Appellant had forced her and A.R. to do. J.H.’s mother called A.R.’s mother and told her what J.H. said Appellant had done. A.H.’s mother then went to Appellant’s house where A.H. remained anticipating a week long trip to Galveston. She got A.H. in the car with her and asked her daughter “if anybody had ever touched her privates.” A.H. initially responded “no”, but on being told by her mother that it was a serious matter but that she would not get in trouble, she told her mother what “Paw-Paw,” Appellant, had done with the vibrator, and that he had made them “lick each other’s tee-tee and boobs” while he made movies of what they were doing.
A.H.’s mother took A.H. to a local hospital where a doctor performed a sexual assault examination. Deputies obtained a search warrant for Appellant’s house. Appellant’s wife admitted the officers and led them to where the vibrator and pornographic films were usually kept. She was surprised to find them missing. The deputies arrested Appellant for the aggravated sexual assault of a child.
The testimony of A.R. and J.H. to these events and a long previous history of sexual assaults was presented to the jury by videotape, made nine months before trial. The videotaped cross-examination of the two girls by Appellant’s counsel was also shown to the jury. The videotaped examination and cross-examination of the two victims were conducted without objection before the district judge nine months prior to trial pursuant to the State’s motion to compel the taking of testimony of child witnesses outside the presence of the defendant. See Tex. Code Crim. Proc. Ann. § 38.071 (Vernon Supp. 2003). At the time A.R. and J.H. gave their testimony, Appellant was in an adjoining room so that he could remain in contact with his lawyer and assist in their cross-examination.
Appellant, in his first issue, maintains “that the procedure employed in the admissibility hearing under Texas Code of Criminal Procedure Article 38.072 [hearsay outcry statement of child abuse victim] failed to comply with the statute resulting in structural error and in violation of Appellant’s constitutionally protected rights of confrontation, due process and due course of law.”
In his second issue, he also complains that the introduction into evidence of A.R.’s outcry statement through the testimony of A.R.’s mother resulted in the erroneous admission of hearsay evidence “which renders Article 38.072 unconstitutional as applied to Appellant.” Both Appellant and the State addressed the issues together.
Standard of Review
The standard of review in the admission of evidence is abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). If the trial court’s ruling on the admission of evidence is correct under any theory of law, the trial court’s decision should not be disturbed even if the trial court gives the wrong reason for its ruling. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Under Rule 44.2(a) of the Texas Rules of Appellate Procedure, constitutional error must be reversed unless the error can be shown to be harmless beyond a reasonable doubt. Failure to substantially comply with a statute regarding constitutionally protected rights results in constitutional error requiring reversal. Carranza v. State, 980 S.W.2d 653, 658 (Tex. Crim. App. 1998).
Section 2 of Article 38.072 allows the admission into evidence of hearsay “outcry” statements of a child in a prosecution for certain sexual offenses, if committed against a child twelve years of age or younger. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2004).
The Constitutional Issue
In Holland v. State, 802 S.W.2d 696, 699 (Tex. Crim. App. 1991), the court of criminal appeals recognized that in some instances such a statute can operate “either to deprive an accused of his constitutional right to confront the out-of-court child declarant, or to compel him to call the child to the stand himself in order to attain that right, in violation of due process and due course of law.” Id. But in order to preserve the issue for appeal, the defendant must raise a timely objection on the basis of confrontation or due process and due course of law. Id. In Holland, the accused objected to the outcry statement on the ground that it was “unreliable based upon the time and content and the circumstances.” Id. at 698. The Holland court characterized the defendant’s objection as a hearsay objection, insufficient to preserve error on confrontation or due process grounds. Id. at 700.
In the instant case, Appellant objected to A.R.’s outcry statement on the basis that it was not reliable because it was not spontaneous but prompted by her mother’s question and subsequent assurance that A.R. would not get in trouble if she told what had happened. Appellant’s objection in this case, as that in Holland, is, in essence, a hearsay objection, and did not preserve error on constitutional or due process grounds.
Did the Trial Court Comply with article 38.072?
Appellant contends the trial court did not comply with Article 38.072. Article 38.072 specifically requires the trial court to determine “in a hearing conducted outside the presence of the jury, that the [child’s] statement is reliable based on the time, content, and circumstances of the statement.” The article further mandates that the child testify or be available to testify “at the proceeding in court or in any other manner provided by law.” Tex. Code Crim. Proc. Ann. art. 38.072 § 2(b)(2), (3) (Vernon Supp. 2004).
At trial, Appellant objected that the statement was inadmissible hearsay because the mother’s testimony during the Article 38.072 hearing on admissibility disclosed that the statement was not voluntary and spontaneous but suggested by the mother’s questions. On appeal, Appellant raises the additional contentions that the trial court did not consider the relevant indicia of reliability in finding that the statement was reliable, and that the admissibility hearing was further flawed because A.H. did not testify at the hearing nor was she available to testify.
Indicia of reliability that the trial court may consider include (1) whether the child victim testifies at trial and admits making the out-of-court statement, (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate, (3) whether other evidence corroborates the statement, (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults, (5) whether the child’s statement is clear and unambiguous and rises to the needed level of certainty, (6) whether the statement is consistent with other evidence, (7) whether the statement describes an event that a child of the victim’s age could not be expected to fabricate, (8) whether the child behaves abnormally after the contact, (9) whether the child has a motive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whether the accused had the opportunity to commit the offense. Norris v. State, 788 S.W.2d 65, 71 (Tex. App.–Dallas 1990, pet. ref’d).
The trial court held an admissibility hearing to determine the reliability of the outcry statement. A.H. testified at trial by videotape as provided by Article 38.071 of the Code of Criminal Procedure. She admitted making the statement to her mother. She was cross-examined extensively by Appellant’s counsel. The trial court examined A.H. prior to her testimony to determine if she knew the difference between the truth and a lie and appreciated the importance of telling the truth. When the child is available to testify at trial and is tendered without restriction to the appellant for cross-examination, the requirements of Section 2(b)(3) of Article 38.072 are satisfied. Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim. App. 1990). The State moved to take A.H.’s testimony outside the presence of Appellant alleging that the child would be “unavailable” to testify in the presence of the defendant (1) because of emotional or physical causes, including the confrontation with the defendant, or (2) the child would suffer undue psychological or physical harm through her involvement at the hearing or proceeding. See Tex. Code Crim. Proc. Ann. art. 38.071 § 8(a)(1), (2). Appellant did not object to this method of taking A.H.’s testimony.
The statements A.H. made to her mother were clear and unambiguous and described the offense with details that an ordinary eight-year-old could hardly have imagined. Her statements were corroborated not only by her own testimony, but by that of J.H. and J.H.’s mother. Appellant spent time alone with A.R. and J.H. and had ample opportunity to commit the offense A.H. described. The trial judge had heard evidence of all these facts and circumstances when he made his finding that A.H.’s statement was reliable based on the time, content, and circumstances of the statement. Although A.H.’s statement was made in response to her mother’s inquiry and assurance, given the attendant circumstances, the trial judge was justified in concluding that A.H.’s statement was not the product of her mother’s manipulative conduct. The trial judge substantially complied with Article 38.072 and did not abuse his discretion in admitting A.H.’s outcry statement. Appellant’s first and second issues are overruled.
Conclusion
Having determined that Appellant’s issues are without merit, we affirm the judgment of the trial court.
BILL BASS
Justice
Opinion delivered June 9, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
(DO NOT PUBLISH)