No. 04-03-00606-CR
Delivered and Filed: June 8, 2005. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-0934, Honorable Phil Chavarria, Judge Presiding. Affirmed.
The Honorable Pat Priest presided over the pretrial hearing and entered the ruling appellant challenges on appeal. The Honorable Pat Priest also presided over the plea proceeding; however, the Honorable Phil Chavarria presided over the sentencing hearing and signed the judgment being appealed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Rebecca SIMMONS, Justice.
REBECCA SIMMONS, Justice.
Joseph Garza pled nolo contendere to the offense of indecency with a child by contact and was sentenced within the terms of his plea bargain. Garza appeals his conviction asserting that the trial court erred in overruling his objections to the admissibility of an outcry statement. Garza contends that the State failed to comply with the notice requirement for the admissibility of the statement and that the outcry statement was unreliable. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
Notice of Outcry Statement
In his first issue, Garza contends that the State failed to comply with the fourteen day notice requirement for admitting an outcry statement under article 38.072, section 2(b)(1) of the Texas Code of Criminal Procedure. The State asserts that Garza failed to preserve this issue for appellate review because no objection was raised with regard to the absence of notice at the pretrial hearing. Garza relies on Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App. 1990), to contend that his general hearsay objection was sufficient to preserve error with regard to any failure to comply with the mandatory requirements of article 38.072. Our sister courts disagree as to whether a general hearsay objection is sufficient to preserve error with regard to the absence of the required notice. Compare Garcia v. State, 907 S.W.2d 635, 637 (Tex.App.-Corpus Christi 1995) (finding waiver), aff'd, 981 S.W.2d 683 (Tex.Crim.App. 1998) and Skidmore v. State, 838 S.W.2d 748, 753 (Tex.App.-Texarkana 1992, pet. ref'd) (finding waiver) with Gabriel v. State, 973 S.W.2d 715, 719 (Tex.App.-Waco 1998, no pet.) (finding error preserved by general hearsay objection). Given the unique posture of the case before us, we need not resolve whether a specific objection to the absence of notice is required in every case. In this case, the trial court stated on the record: THE COURT: I find, for the record, that the notice of intent, to present an outcry statement of [R.G.], was filed in this case February 19, 2003. So it has been on file well beyond the 14 days required by law. It does provide the name of the party, who is sought to be used as an outcry witness, namely: [R.G.]. And it contains a copy of her two-page statement to Detective Ramos, which was dated June 14, 2002.
When the trial court makes an express finding that the notice requirement has been met, a specific objection to the absence of notice is necessary to preserve error. Even if error was preserved, the purpose of article 38.072's notice requirement is to prevent a defendant from being surprised at trial by testimony about the victim's outcry statements. Gabriel, 973 S.W.2d at 719-20. In determining whether a failure to comply with the notice requirement is harmless error, appellate courts consider whether the defendant was actually surprised by the State and whether the defendant was prejudiced by a lack of notice. Id. at 720. In this case, Garza's counsel did not complain about a lack of notice or express any surprise at the State's plan to offer the outcry statement during the pretrial hearing. At the hearing, Garza's attorney thoroughly cross-examined the outcry witness regarding the circumstances surrounding the outcry and argued to the judge that the outcry was not reliable. Consequently, any error, if preserved, was harmless because the record does not reflect that Garza was surprised or prejudiced by any lack of notice. Garza's first issue is overruled. Reliability of Outcry Statement
A court's decision that an outcry statement is reliable is reviewed under an abuse of discretion standard. Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App. 1990); Broderick v. State, 89 S.W.3d 696, 698 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). A trial court must conduct an inquiry into the reliability of the outcry statement, examining the "time, content, and circumstances of the statement." Broderick, 89 S.W.3d at 699. Although courts have enumerated factors that may assist in ascertaining the reliability of an outcry statement, the focus of the inquiry must remain upon the outcry statement, not the abuse itself. Id. The indicia of reliability that a 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. Davidson v. State, 80 S.W.3d 132, 139 (Tex.App.-Texarkana 2002, pet. ref'd). K.G. outcried to her mother, R.G., that Garza, R.G.'s boyfriend, had carried her from her bed to R.G's bed while R.G. was at work and that Garza made R.G. touch his penis. K.G. was seven years old at the time of the incident. K.G. also told R.G. that Garza had touched K.G.'s private part with his hand a few weeks or a month earlier. Applying the factors the trial court is to consider, K.G. testified at the pretrial hearing and admitted making the statement to R.G.K.G. demonstrated that she knew the difference between the truth and a lie. Although K.G. appeared to have a limited ability to observe, recollect and narrate given the numerous times she responded that she did not remember, K.G. was able to recall the incident in question and narrate the details of what occurred. Although no other evidence corroborated K.G.'s statement, the statement was made the morning after the incident allegedly occurred. K.G.'s statement was made after some questioning by R.G., but K.G.'s statement regarding the details of the incident was clear. Garza had the opportunity to commit the offense because he was alone with K.G. while R.G. worked the night shift at a hospital. During cross-examination, Garza's attorney developed evidence of a stormy relationship between R.G. and Garza that involved constant fights and the physical throwing of objects. R.G. admitted that she and Garza had fought the morning before the incident allegedly occurred and that Garza had walked out and stated he intended to live with his mother. R.G. admitted she followed Garza in her car and asked him to return. R.G. further admitted that after Garza was released from jail, R.G. allowed Garza to live in her home until he was arrested again five months later; however, R.G. stated that she never allowed Garza the opportunity to be alone with K.G. At the end of the pretrial hearing, the trial court found that R.G. was the first person K.G. told about the incident within a matter of hours after the incident allegedly occurred. The trial court further stated, "And whether the jury chooses to believe that mother has invented this story and forced it on the child is, I think, for the jury to decide. . . . I find the statement to be reliable based on the time, content, and circumstances of the statement." Having reviewed the record as a whole and having applied the factors, we do not find an abuse of discretion by the trial court. The statement was made to R.G. at the earliest possible opportunity after the incident. R.G. stated that K.G. appeared to be afraid and Garza had told K.G. not to tell R.G. after the first alleged incident. Finally, the content of the statement was sufficiently clear in detail. Although the evidence may cast some doubt on whether R.G. would attempt to fabricate the event, there was sufficient evidence to reasonably support the trial court's conclusion that the outcry statement was reliable. Garza's second issue is overruled. Conclusion
The judgment of the trial court is affirmed.