Garza v. State

828 S.W.2d 432, 1992 WL 4899
Court of Appeals of Texas·Decided April 22, 1992·No. 3-90-281-CR·Published·Cited by 8 cases

Opinions

BEA ANN SMITH, Justice.

Ruben Garza appeals his conviction on two counts of aggravated sexual assault of a child, Tex.Penal Code Ann. § 22.021 (1989), charges to which he pled not guilty. He brings forward two points of error: (1) that the admission into evidence of the child’s “outcry” statement violated appellant’s constitutional rights of confrontation and due process of law; and (2) that the child’s “outcry” statement pertained to an inadmissible extraneous offense and was thus improperly admitted into evidence. We will affirm the judgment of the trial court.

BACKGROUND

Appellant was convicted of the aggravated sexual assault of the victim, a child of two to three years. Appellant resided with Martha Guzman and her three children, of whom the victim was the youngest. The evidence adduced at trial was that, on two separate occasions, appellant sexually assaulted the child. On the first occasion, the appellant was seen lying naked on a bed with the child, also naked, straddling his midsection. Testimony was that appellant was in a sexually aroused state and that he was using the genital area of the child to masturbate himself. The second sexual assault occurred at a swimming pool where appellant was observed seated in a baby pool with his finger inserted into the child’s vagina.

[434]*434John Sanchez, the victim’s eighteen-year-old cousin, provided eyewitness testimony as to both assaults. Ociel Carrillo, the victim’s uncle, also testified at trial. In addition, Kimberly Harmon, an employee of the Department of Human Services (“DHS”), recounted her interview with the victim, during which the child made the outcry statement. Before Harmon testified, appellant’s counsel requested that the jury be excused while he took the witness on voir dire. At the conclusion of this examination, the trial court found Harmon’s account of the victim’s outcry statement admissible. Appellant’s counsel then objected to the introduction of the outcry statement on the basis that it was hearsay and that it lacked the traditional indicia of reliability. Further, his objection alleged that the appellant’s constitutional rights of confrontation and due process would be abridged by admission of the statement. Finally, defense counsel’s objection asserted that the outcry statement referred to extraneous offenses. The trial court overruled appellant’s objection in its entirety. When the jury returned, Harmon’s testimony resumed and the victim’s outcry statement was introduced into evidence. The jury eventually found the appellant guilty of aggravated sexual assault of a child and the trial court sentenced him to twenty-five years in prison for each count.

ADMISSION OF THE VICTIM’S OUTCRY STATEMENT

In his first point of error, appellant takes issue with the trial court’s decision to admit into evidence the victim’s outcry statement. He argues that by admitting the hearsay statement, the court denied him his constitutional1 right to confront the witness. The appellant argues that because the State chose not to call the child as a witness, he faced a “Hobson’s choice” of invoking the jury’s wrath for putting the extremely young child through the rigors of examination, or foregoing any confrontation. He asserts that this “choice” violates the due process of law.

The trial court’s decision to admit the outcry statement was not arbitrary. The court specifically referred to article 38.072 of the Code of Criminal Procedure in which the legislature has outlined the requirements for the introduction of outcry statements made by child victims of sexual abuse, statements that might otherwise be inadmissible hearsay. See Tex.Code Crim. Proc.Ann. § 38.072 (Supp.1992). Our determination of whether the trial court properly admitted the statement begins with an examination of the statute, which provides in part that

(b) A statement ... is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.

[435]*435Id. This statute has been found to be constitutional on its face. See Buckley v. State, 786 S.W.2d 357, 359-60 (Tex.Crim. App.1990). In light of this decision, any successful constitutional challenge to the statute must focus upon its application to the time, circumstances, and contents of this particular statement. Thus our immediate task is to determine whether the child’s outcry statement was admitted at the expense of the appellant’s constitutional rights.

In making this determination, we are aided by the court of criminal appeals’ specific guidance in evaluating the constitutionality of outcry statements admitted pursuant to article 38.072. In Holland v. State, 802 S.W.2d 696 (Tex.Crim.App.1991), the defendant contended that article 38.072 was unconstitutional because it allowed the admission of a child’s out-of-court declaration without requiring the State to call the child to the stand, denying him his Sixth Amendment right to confront the witness, the “Hobson’s choice” argument that Ruben Garza is now advancing.

The court of criminal appeals acknowledged that

in some instances such a statute can in fact 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. In this event the statute would be unconstitutional in application.

Holland, 802 S.W.2d at 699 (citations omitted). Nevertheless, the court affirmed Holland’s conviction because the defendant had not objected to the outcry statement on either confrontation or due process grounds. Thus no error was preserved for the appellate court’s review.

In Holland, the court of criminal appeals carefully set forth the proper procedure for admitting a child’s out-of-court statement without offending the constitutional rights of the accused:

When the State proffers an out-of-court statement of a child witness pursuant to Article 38.072, supra, it is incumbent upon the accused to object on the basis of confrontation and/or due process and due course of law. At that point the State can respond by following either one of two courses. First the State can announce its intention to call the child de-clarant to the stand to allow confrontation without the accused having to call the child to the stand himself.

Free access — add to your briefcase to read the full text and ask questions with AI

Garza v. State, 828 S.W.2d 432, 1992 WL 4899 (Tex. Ct. App. 1992).

828 S.W.2d 432 (Garza v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Wright v. Quarterman
470 F.3d 581 (Fifth Circuit, 2006)
People v. Donoho
Illinois Supreme Court, 2003
Beckham v. State
29 S.W.3d 148 (Court of Appeals of Texas, 2000)
Ford v. State
908 S.W.2d 32 (Court of Appeals of Texas, 1995)
Timothy Scott Parlin v. State
Court of Appeals of Texas, 1995
State v. Shelton
869 S.W.2d 513 (Court of Appeals of Texas, 1993)
Garza v. State
828 S.W.2d 432 (Court of Appeals of Texas, 1992)