Affirmed and Memorandum Opinion filed November 18, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-01096-CR
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CHRISTIAN JUDE GRANGER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 894,962
M E M O R A N D U M O P I N I O N
Christian Jude Granger appeals his felony conviction for aggravated sexual assault of a child younger than fourteen. Appellant was charged by indictment with aggravated sexual assault by penetrating the sexual organ of a child with his finger. See Tex. Pen. Code § 22.021. A jury found him guilty of the charged offense and assessed punishment at eight years’ confinement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm.
First, appellant argues the trial court abused its discretion in finding the complainant competent to testify at trial. We review the trial court’s determination of a witness’s competency for abuse of discretion. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995), cert. denied, 519 U.S. 826 (1996). Under Rule 601 of the Texas Rules of Evidence, a child is considered competent to testify unless the trial court determines the child does not possess sufficient intellect to relate the transaction about which she will testify. Id. We must examine not only the witness’s responses at the qualification hearing, but her entire testimony as well. Fields v. State, 500 S.W.2d 500, 503 (Tex. Crim. App. 1973).
In the present case, although many of complainant’s responses were conveyed through body language rather than verbal statements, she was able to accurately answer questions concerning (1) her name, (2) her age, (3) her mother’s name, (4) the color of her dress, (5) the color of the grass, (6) the present she received at a party, (7) where her mouth is, and (8) locations of various body parts of a doll. Further, she promised to tell the truth and appeared to be able to distinguish between a truth and a lie. Her videotaped responses to questions posed by Monique Gadson indicate she was able to convey the circumstances surrounding the incident. While appellant points to instances in which complainant appears to have given conflicting answers, confusing and inconsistent responses from a child are not reasons to determine she is incompetent to testify, but rather address the weight and credibility to be given to her testimony. See Berotte v. State, 992 S.W.2d 13, 17 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). We give due deference to the trial court’s evaluation of complainant and her responses, especially in light of the number of non-verbal responses given. See id. The trial court did not abuse its discretion in finding complainant competent to testify. Appellant’s first issue is overruled.
Second, appellant argues the trial court erred in admitting Monique Gadson’s videotaped interview of complainant because it was not the first time the child made a statement about the offense to an adult. See Tex. Code Crim. Proc. art. 38.072. Appellant points to an earlier statement to Essie Brown that appellant “touched her there [(her private part)]” as an outcry statement.[1]
A child’s statement constitutes an outcry only if it “describe[s] the alleged offense.” Id. at §2(a). Thus, an outcry must be more than a “general allusion of sexual abuse.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). As the alleged offense requires proof not just of touching but of penetration, the child’s statement to Brown did not describe the offense alleged with enough specificity to constitute an outcry. See Molina v. State, 971 S.W.2d 676, 683 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd) (holding previous statement that did not mention penetration was not an outcry). As the complainant’s statement to Gadson appears to be the first statement she made to an adult specifically concerning digital penetration, we hold the trial court did not abuse its discretion in admitting Gadson’s videotaped interview of complainant. Accordingly, appellant’s second issue is overruled.
Third, appellant argues the trial court violated his Confrontation Clause rights by admitting complainant’s videotaped testimony.[2] Because the complainant testified at trial, there was no confrontation violation. See Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim. App. 1990). Nevertheless, appellant claims there was a violation because Gadson (who did not testify at trial) did far more testifying than did complainant. While Gadson repeated some of complainant’s phrases to elicit further detail from an obviously reluctant young witness, that did not make the interviewer the “witness” instead of the interviewee. Appellant could have sought exclusion of the entire interview if he thought the testimony was the result of implantation by a biased interviewer. See Tex. Code Crim. Proc. art. 38.071 §2(a) (allowing admission of recorded statement only if court finds facts were “fully and fairly inquired into in a detached manner by a neutral individual”). Because he did not, his third issue is overruled.
The judgment is affirmed.
/s/ Scott Brister
Chief Justice
Judgment rendered and Memorandum Opinion filed November 18, 2003.
Panel consists of Chief Justice Brister and Justices Anderson and Seymore.
Do Not Publish –– Tex. R. App. P. 47.2(b).
[1] The record reflects appellant did not object to Brown’s testimony concerning what complainant told her about the incident, and he does not argue on appeal that Brown’s testimony was inadmissible. Therefore, appellant failed to preserve error regarding admission of this evidence and we need not consider the admissibility of Brown’s testimony here. See Tex. R. App. P. 33.1; Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999).
[2] The Confrontation Clause affords criminal defendants the right to confront the witnesses against them through cross-examination. See U.S. Const. amend. VI; Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 917 (1997).