in the Matter of M. A. M., a Juvenile

• Court: Court of Appeals of Texas
• Decided: May 5, 2006
• Docket: 06-05-00103-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00103-CV

IN THE MATTER OF M. A. M., A JUVENILE

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On Appeal from the County Court at Law

Hunt County, Texas

Trial Court No. J-01031

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            In May 2004, nine-year-old D.I. came into her mother's bedroom in the middle of the night and reported that her stepbrother, fourteen-year-old M.A.M., had just done something "nasty" to her. Earlier that evening, D.I. and M.A.M., along with a couple of other siblings, had been lying on the floor of the living room in their pajamas, watching television. According to testimony, D.I. had drifted off to sleep, but awoke to find M.A.M.'s hand inside her pajama bottoms and his finger inside her.

            Based on evidence that M.A.M. sexually assaulted D.I., M.A.M. was adjudged delinquent. In a single point of error, M.A.M. argues that the trial court, in violation of Section 54.031 of the Texas Family Code, harmfully erred in admitting D.I.'s mother's testimony recounting D.I.'s outcry to her about the assault. We affirm the trial court's judgment because the mother's testimony was independently admissible as an excited utterance.

            At trial, when D.I.'s mother began to recount what D.I. told her M.A.M. had done, M.A.M. lodged a general hearsay objection. The State argued for, and the trial court decided in favor of, admitting the testimony based on the excited-utterance exception to the hearsay rule. See Tex. R. Evid. 803(2). No argument was made to the trial court explicitly referencing Section 54.031 of the Texas Family Code, which by its terms is directly applicable to this situation:

This section applies to a hearing under this title in which a child is alleged to be a delinquent child on the basis of a violation of any of the following provisions of the Penal Code, if a child 12 years of age or younger is the alleged victim of the violation: . . . Chapter 22 (Assaultive Offenses).

Tex. Fam. Code Ann. § 54.031(a) (Vernon 2002) (footnotes added). Outcry testimony, which is otherwise inadmissible hearsay, becomes admissible under Section 54.031(c), if (1) the opposing party is given at least fourteen days' notice which contains the statutorily required elements, (2) the trial court, as the result of a hearing held outside the presence of the jury, finds the outcry statement reliable based on its time, content, and circumstances, and (3) the victim is available to testify. Tex. Fam. Code Ann. § 54.031(c) (Vernon 2002). There is no claim that all elements of Section 54.031(c) were met by the State as to D.I.'s mother's testimony.

            The State asserts M.A.M. failed to preserve error with his general hearsay objection. But we need not address whether M.A.M.'s objection, lodged at the time D.I.'s mother was about to recount D.I.'s outcry to her about the sexual assault, properly preserved Section 54.031 noncompliance as an issue on appeal. Section 54.031 was not the sole vehicle for admission of the testimony.

            The trial court properly overruled the hearsay objection after it had heard evidence sufficient to establish that D.I. told her mother about the assault shortly after it had happened, while D.I. was dominated by the emotions of the startling event. See Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003); McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). The trial court admitted the testimony under the excited-utterance exception to the hearsay rule. See Tex. R. Evid. 803(2). On appeal, M.A.M. does not attack the excited-utterance ruling on its merits, but simply argues that the State must have complied with Section 54.031. We disagree.

            Section 54.031, and its adult-defendant counterpart, Article 38.072 of the Texas Code of Criminal Procedure, state that an outcry statement "is not inadmissible because of the hearsay rule" if the provisions of the respective statute are met. Tex. Fam. Code Ann. § 54.031(c); Tex. Code Crim. Proc. Ann. art. 38.072(b) (Vernon 2005). In other words, an outcry statement, which is otherwise inadmissible as hearsay, becomes admissible if the statutory terms are met. But an excited utterance is an independent exception to the hearsay rule, so the outcry statute—whether the juvenile version or the adult version—is not needed for its admission. See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (Article 38.072 allows admission of "statements otherwise excludable" as hearsay); Skidmore v. State, 838 S.W.2d 748, 753 (Tex. App.—Texarkana 1992, pet. ref'd). The testimony was, therefore, admissible as an excited utterance notwithstanding noncompliance with Section 54.031.

            Because the mother's testimony recounted an excited utterance, it was admissible as such. There was no error.

            We affirm the judgment of the trial court.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          March 9, 2006

Date Decided:             May 5, 2006