No. 13-04-323-CR
Memorandum Opinion Delivered and Filed August 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 24th District Court of Victoria County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
Opinion by Chief Justice VALDEZ.
This is an appeal from a conviction for aggravated sexual assault under section 22.021 of the Texas Penal Code. Appellant raises two issues on appeal. We affirm.
COMPETENCY
In appellant's first issue, he contends that the trial court erred because it let the seven-year-old victim testify at trial. Specifically, appellant claims the trial court erred in permitting a child witness to testify without an adequate determination of his competency under Texas Rule of Evidence 601(a)(2). See TEX. R. EVID. 601. Rule 601 provides as follows: Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules: . . . (2) Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.
Id. Thus, rule 601 creates a presumption that every person is competent to testify regardless of age. See Reyna v. State, 797 S.W.2d 189, 191-92 (Tex.App.-Corpus Christi 1990, no pet.) (affirming four-year-old competent to testify about sexual crimes). The trial court has no affirmative duty to conduct a preliminary competency examination sua sponte. See McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App. 1998). Nonetheless, rule 601(a)(2) empowers the trial court to resort to an examination that would tend to disclose a witness's capacity and intelligence in order to ascertain whether that witness is competent to testify. See Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App. 1995); see also Clark v. State, 659 S.W.2d 53, 55 (Tex.App.-Houston [14th Dist.] 1983, no pet.) (affirming three-year-old's competency to testify). Generally, the competency of a witness is an issue for the trial court; therefore, the court's ruling on whether a child is competent to testify will not be disturbed on appeal absent an abuse of discretion. See Broussard, 910 S.W.2d at 960; Clark v. State, 558 S.W.2d 887, 890 (Tex.Crim.App. 1977); see also Reyna, 797 S.W.2d at 191-92. However, in order to preserve error for review on appeal, a party must timely and specifically object to the trial court and secure an adverse ruling. See TEX. R. APP. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991). We have not been directed to, nor have we found any objection in the record to the competency of the victim's testimony or the lack of an adequate determination at trial. As such, we conclude that appellant has not preserved for review the contention presented in his first issue. See TEX. R. APP. P. 33.1. Nevertheless, even if error had been preserved as to the victim's competency to testify, we find no error. Throughout E.M.'s testimony, he demonstrated a knowledgeable, respectful, courteous, and straightforward demeanor in answering all questions. E.M.'s answers to the questions propounded upon him were intelligibly articulated, especially when considering he was only seven years old. Occasionally E.M. did not understand a question posed to him, and when this occurred he would calmly ask for the question to be repeated or clarified. Furthermore, on several occasions when E.M. did not know the answer to a question, he would reply that he did not know the answer. After reviewing E.M.'s testimony at trial, there is no doubt that he demonstrated his competency to intelligently observe the events in question at the time they happened, recollect them, and clearly articulate and narrate them to the court and the jury. Therefore, there was no error, and appellant's first issue is overruled. "OUTCRY" STATEMENT
In appellant's second issue, he asserts the trial court erred in introducing E.M.'s "outcry" statement. Appellant objected to the testimony of E.M.'s mother, in which she described what E.M. told her about the sexual assault. More specifically, appellant asserts that E.M.'s statement to his mother was not a "proper `outcry' statement," and therefore, it should have been inadmissible hearsay. The standard of review when challenging the admission of evidence is abuse of discretion. See, e.g., Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App. 1990). The court of criminal appeals has stated that the trial court abuses its discretion when it acts "without reference to any guiding rules and principles." Id. at 380 (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). In other words, the court abuses its discretion when it acts arbitrarily or unreasonably. Id. Moreover, the fact that a trial judge may decide a matter, within its discretionary authority, in a different manner than an appellate court does not mean there is an abuse of discretion. Downer, 701 S.W.2d at 241-42. Finally, if the trial court's ruling on the admission of evidence can be correct under any theory of law, then the decision cannot be overruled, even if the trial court gave an erroneous reason for its ruling. TEX. R. APP. P. 44.2(a); see Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Ordinarily, the statements that E.M. made to his mother would be inadmissible hearsay at trial. TEX. R. EVID. 802. However, our statutes make an "outcry" statement an exception to the hearsay rule for the first report of sexual abuse that the victimized child makes to an adult. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a) (Vernon 2003) (applicable in the trial of an adult); see TEX. FAM. CODE ANN. § 54.031(b) (Vernon 2003) (applicable in the trial of a juvenile). In allowing the testimony from the first person told about the assault, the Texas Legislature attempted to strike a balance "between the necessity of introducing the child's statement through an adult witness and the necessity of avoiding the dangers implicit in hearsay itself." Garcia v. State, 792 S.W.2d 88, 93 (Tex.Crim.App. 1990) (Clinton, J., dissenting). Here, the trial court held that E.M.'s statement to his mother was admissible because the requirements of article 38.072 had been satisfied. Section 2 of article 38.072 allows for the admission of hearsay "outcry" statements of a child in a prosecution of certain sexual offenses, if committed against a child twelve years of age or younger. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2 (Vernon 2005). Immediately before trial commenced, the trial court held a hearing, outside the presence of the jury, at which E.M.'s mother was questioned regarding the circumstances of E.M.'s "outcry" statement. Without expressly finding E.M.'s statement reliable, the trial court ruled that the provisions of article 38.072 had been satisfied. Specifically, the trial court noted that (1) E.M.'s statement was "more than a vague and general statement about what happened," (2) E.M.'s mother was "the first person over eighteen that E.M. talked to," (3) the State gave the required notice to appellant of its intent to use the outcry witness, and (4) E.M. is available and "will be able to testify." Accordingly, E.M.'s mother was allowed to testify regarding E.M's "outcry" statement. She testified that E.M. had told her that appellant "put his private inside his butt" and that appellant "would pee in his contact and then he'd throw it away." E.M.'s mother further testified that she believed that when E.M. referred to "contact," he was referring to a condom. She further stated that when E.M. said he "peed in the contact [condom]," he meant that to be "sperm." E.M.'s mother added that she believed E.M. was telling the truth and not making up the allegations of sexual assault. Finally, she stated that she and E.M. had nothing to gain from this accusation because appellant and his immediate family were "the only family they had." Appellant objected that the statement was inadmissible hearsay because the mother's testimony during the article 38.072 hearing disclosed that the statement was not voluntary and spontaneous but suggested by the mother's prodding questions. Additionally, appellant raises the contentions that the trial court failed to find that E.M.'s statement was "reliable based on the time, content, and circumstances of the statement" as required by article 38.072. See id. Therefore, appellant essentially argues that the trial court did not consider the relevant indicia of reliability in finding that the statement was reliable. The Texas Supreme Court and many of our sister courts have held that the trial court may consider the following indicia of reliability in the admission of a child's outcry statement: whether (1) the victim testifies at trial and admits making the out-of-court statement; (2) the child understands the need to tell the truth and has the ability to observe, recollect, and narrate; (3) other evidence corroborates the statement; (4) the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults; (5) the child's statement is clear and unambiguous and rises to the needed level of certainty; (6) the statement is consistent with other evidence; (7) the statement describes an event that a child of that age could not be expected to fabricate; (8) the child behaves abnormally after the contact; (9) the child has a motive to fabricate the statement; (10) the child expects punishment because of reporting the conduct; and (11) the accused had the opportunity to commit the offense. See In re Z.L.B., 102 S.W.3d 120, 121 (Tex. 2003) (quoting Buckley v. State, 758 S.W.2d 339, 343-44 (Tex.App.-Texarkana 1988), aff'd, 786 S.W.2d 357 (Tex.Crim.App. 1990)); Villareal v. State, 811 S.W.2d 212, 216 (Tex.App.-Houston [14th Dist.] 1991, no pet.); Norris v. State, 788 S.W.2d 65, 70-71 (Tex.App.-Dallas 1990, pet. ref'd). Applying these factors here, we see that the victim, E.M., testified at trial to making the statement to his mother. In fact, E.M. vividly recited the circumstances and details of where he was and where he was going when he first told his mother that appellant had sexually assaulted him. E.M. recalled that he and his mother were in the car driving to a computer store "to fix [his mom's] computer" when he first posed the question, "Mom why does [appellant] do those things to me?" With respect to the fourth prong, we note that E.M.'s "outcry" to his mother could not have been more spontaneous. Both E.M. and his mother testified that E.M. brought the subject up when they were driving in the car while running errands. There is no indication that they were discussing anything sexual, nor is there any indication that they were even discussing appellant. Therefore, E.M.'s outcry unquestionably arose from a "momentary impulse" and was "self-acting." Moreover, in E.M.'s "outcry" statement, and subsequent testimony, he undoubtedly used his own terminology. For example, E.M. referred to the condom(s) that appellant used as a "contact." E.M., in his testimony, described what he meant by "contact." There is no doubt that he was describing a condom even though he obviously did not know exactly what a "condom" was. Furthermore, E.M. stated that appellant "would pee inside the [condom]." It is patently obvious from the context that E.M. described appellant ejaculating. A seven-year-old boy would not know the word "ejaculation" nor know what it is. Thus, the record is clear that E.M. used his own terminology to describe the sexual assault. As such, the record is unmistakable that E.M.'s statement was spontaneous. Furthermore, the statements were corroborated not only by his own testimony, but by that of E.M.'s mother and by Nurse Sonja Eddleman from the Child Abuse Resource and Evaluation Team at Driscoll Children's Hospital in Corpus Christi. Therefore, his "outcry" statement satisfies the requirements of being reliable and admissible. Although E.M.'s statement was made in response to some inquiry from his mother, given the attendant circumstances, the trial judge was justified in concluding that E.M.'s statement was not the product of his mother's manipulative conduct, nor could the statement be categorized as "answers to an interview or interrogation," as appellant contends. There is no doubt that the "outcry" statement was "reliable based on the time, content, and circumstances of the statement." As such, the trial judge substantially complied with article 38.072, and therefore, did not abuse his discretion in admitting E.M.'s outcry statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072. Accordingly, appellant's second issue is overruled. CONCLUSION
Having overruled appellant's issues, we affirm the judgment of the trial court.