Garcia v. State

792 S.W.2d 88, 1990 Tex. Crim. App. LEXIS 124, 1990 WL 82811

Opinions

OPINION ON APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW

MILLER, Judge.

This Court granted appellant’s petitions for discretionary review in order to determine whether the court of appeals erred in holding hearsay testimony was properly admitted pursuant to the provisions of Article 38.072, V.A.C.C.P., which deals with evi-dentiary hearsay exceptions in child abuse cases. Tex.R.App.Pro., Rule 200(c)(2) & (4). Appellant was convicted by a jury of indecency with a child and aggravated sexual assault pursuant to V.T.C.A. Penal Code Sections 21.11 and 22.021(a)(1)(B). The jury assessed punishment at concurrent terms of ten and twenty years in the Texas Department of Corrections, respectively, plus a $1,000 fine. The court of appeals affirmed the convictions. Garcia v. State, 760 S.W.2d 817 (Tex.App.-Corpus Christi 1988). We affirm the judgment of the court of appeals.

In these petitions for discretionary review, appellant complains that witness Herman Muniz was improperly designated by the trial court as the outcry witness under Article 38.072 of the Texas Code of Criminal Procedure, and that testimony elicited from Muniz regarding statements made to him by complainant was therefore inad-missable hearsay. Appellant contends that Betty Ramirez, complainant’s first grade teacher, was the first person eighteen years old or older to whom the victim had given a statement describing the alleged offense.

The record reflects that on April 23, 1987, complainant was seven years old, attending first grade, and residing with her natural mother and her stepfather, appellant Mickey Dean Garcia. Complainant’s first grade teacher, Betty Ramirez, attended a child abuse seminar put on by the school nurse that day. Upon her return to the classroom, Ramirez explained to the children in her classroom that she had been in a session regarding sexual abuse. Her testimony in part is as follows:

RAMIREZ: So I went back into the classroom and I told my students, “Well, I was in a session about sexual abuse and I’d like to know if anybody in this classroom has ever been” — I had to go down to their level and ask them, “Has anyone ever touched your private parts of any kind? Has anyone ever treated you in a bad way that you felt was wrong but that you were afraid to tell someone?” Several hands raised and [complainant] was one of my students and her hand raised up.

******

When she raised her hand she came up to my desk and she told me she was having problems at home.

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... she voluntarily came up to my desk and she just wanted to tell me a lot of things, what was going on at home.

PROSECUTOR: Regarding the topic that you had just discussed?

RAMIREZ: Exactly.

* * * * * *

PROSECUTOR: ... the third time how long did you speak to her?

RAMIREZ: I spoke to her about — I asked her to come to a table where we could be alone. And she just talked to me for maybe 10 minutes or 15 minutes.

PROSECUTOR: Did she further relay information to you about the topic you discussed?

RAMIREZ: Yes, she just wanted to talk about it practically all day.

During the course of Ramirez’s testimony, defense counsel objected to hearsay evidence regarding statements the complainant made to Ramirez. The objection was sustained. Thus there was no further elaboration from Ramirez as to the content of the statements. No attempt was made by the State at any time during the trial to designate this witness as the outcry witness.

Later in the trial, Herman Muniz testified for the State. On April 23, 1987, Mun-iz was employed by the Texas Department of Human Services as a Child Protective Specialist Two. After a hearsay objection by the defense to Muniz’s testimony regarding statements made to him by complainant, the State requested an exception to the hearsay rule, pursuant to Article 38.072, Y.A.C.C.P. and in accordance with the State’s notification to the defense that the State would seek the exception with this witness. A hearing was held outside the presence of the jury, and Muniz testified in detail as to the complainant’s description to him of the alleged offense. The defense did not attempt to show during this outcry witness designation hearing that Ramirez, not Muniz, was the first person to whom a descriptive statement about the offense was made. The defense did not specify in any objection that it thought Ramirez or anyone other than Muniz should have been designated as the outcry witness. The trial court ruled that Muniz was the outcry witness.

During the complainant’s testimony, the following excerpts are pertinent to the outcry question.

PROSECUTOR: Okay. Before you told me who else did you tell?

COMPLAINANT: The other man, David Betancourt.

PROSECUTOR: David Betancourt. And what about the other man?

COMPLAINANT: Herman.

PROSECUTOR: Muniz? You told him, too?

COMPLAINANT: Yes.

PROSECUTOR: You told your teacher Betty Ramirez?

COMPLAINANT: Yes.

PROSECUTOR: Where did you tell her?

COMPLAINANT: One was in the principal’s office.

PROSECUTOR: Who took you in the principal’s office?

COMPLAINANT: My teacher.

PROSECUTOR: After you told her what happened she took you to the principal?

COMPLAINANT: Yes.

⅝ * ⅜ 3⅜ ⅜ ⅜

PROSECUTOR: What did you tell your teacher there in the classroom?

COMPLAINANT: Well, I told her what happened.

Appellant complains that Ramirez should have been designated as the outcry witness because she was the first person, 18 years old or older to whom the complainant made a “statement about the offense”. Article 38.072, V.A.C.C.P.

In resolving this issue we are called upon to interpret the meaning of the phrase “statement about the offense” in Article 38.072, supra, the pertinent part of which reads as follows:

Sec. 2(a) This article applies only to statements that describe the alleged offense that:

(1) were made by the child against whom the offense was allegedly committed; and

(2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.

(Emphasis supplied). This Court interprets ¹ the above highlighted portion of the statute to mean that the outcry witness must be the first person, 18 years old or older, to whom the child makes a statement that in some discernible manner describes the alleged offense. We believe that the statement must be more than words which give a general allusion that something in the area of child abuse was going on. In picking the particular wording of the “first person” requirement, the legislature was obviously striking a balance between the general prohibition against hearsay and the specific societal desire to curb the sexual abuse of children. See generally Ohio v. Osborne, — U.S. -, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). That balance is the focal point of our analysis. The portion of the statute catering to the hearsay prohibition demands that only the “first person” is allowed to testify. But the societal interest in curbing child abuse would hardly be served if all that “first person” had to testify to was a general allegation from the child that something in the area of child abuse was going on at home. Thus we decline to read the statute as meaning that any statement that arguably relates to what later evolves into an allegation of child abuse against a particular person will satisfy the requisites of Sec. 2(a)(2). The statute demands more than a general allusion of sexual abuse.

We recognize that in this area a great deal of the trial court’s attention will be warranted. The parlance of children is often not exact, and generalities can be misleading. The determination of who the “first person” who was given a “statement about the offense” is, may sometimes be a difficult one that demands close scrutiny by the trial judge.

In the case at bar the trial court ruled that Muniz, not Ramirez, was the outcry witness. In order to be designated as the outcry witness by the trial court, one element that must be clearly shown by the evidence is that the victim described the offense to that witness. From numerous examples in the record, we see that the complainant told her teacher that something had happened at home, and that it had to do with child abuse. However, the record is void as to any specific details of the statements made to Ramirez and as to any description of the alleged offenses made to Ramirez by the complainant. Thus we conclude that the general phrases in evidence used by Ramirez and complainant, (i.e. in response to the prosecutor’s question “Did she further relay information to you about the topic you discussed?”, Ramirez answered “Yes, she just wanted to talk about it practically all day”, and in response to prosecutor’s question “What did you tell your teacher there in the classroom?”, complainant answered “Well, I told her what happened”), apparently did not, in context, and in the trial court’s view, amount to more than the general allusion heretofore condemned.

We emphasize that from this record we cannot determine what it was the complainant told her teacher. Indeed, this is due in part to the defense objecting to the teacher narrating what was said. The State did lay a proper predicate that Muniz was the outcry witness, however. After which the defense had ample opportunity to recall Ramirez in an attempt to rebut this predicate, but failed to do so. Nor did the defense elicit testimony from the complainant regarding the specifies of the statements she made to Ramirez. In the absence of any such clarification, the trial court ruled, on the evidence before it, as to designation of the outcry witness.²

A trial court’s findings will be upheld when they are supported by the evidence, and a trial court has broad discretion in determining the admissibility of such evidence. The exercise of that discretion will not be disturbed unless a clear abuse of that discretion is established by the record. This Court finds no abuse of discretion by the trial court in its determination that Muniz was the outcry witness as contemplated by Article 38.072, V.A.C.C.P., and thus, the trial court ruled correctly concerning the admissibility of the hearsay exception evidence. Appellant’s ground for review in both cases is overruled. The judgment of the court of appeals is affirmed.

1 . In determining our interpretation of this statute, we turn to V.T.C.A., Government Code § 311.023 which deals with statute construction aids. It reads as follows:

In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction;

(6) administrative construction of the statute; and

(7) title (caption), preamble, and emergency provision.

2 . We note that the dissent raises an argument that the child also talked to the principal prior to her conversation with Muniz. Since this contention was not made in appellant’s brief, nor referenced in the record by any of the briefs, we do not have said contention before us to address.