Norman v. State

862 S.W.2d 621, 1993 WL 132301
CourtCourt of Appeals of Texas
DecidedSeptember 22, 1993
Docket12-90-00101-CR
StatusPublished
Cited by13 cases

This text of 862 S.W.2d 621 (Norman v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norman v. State, 862 S.W.2d 621, 1993 WL 132301 (Tex. Ct. App. 1993).

Opinion

OPINION ON REHEARING

RAMEY, Chief Judge.

In a published opinion dated November 30, 1992, this Court affirmed the trial court’s judgment against Appellant. Thereafter, on December 15, 1992, Appellant filed a motion for rehearing. We overrule the motion for rehearing, but withdraw our opinion of November 30, 1992, and substitute the following:

A jury convicted Appellant of the offense of aggravated sexual assault of a child and assessed him life imprisonment. Appellant raises five points of error on appeal. We will affirm the conviction.

On April 21,1989, Appellant leased a trailer in Nacogdoches, Texas for himself, his girlfriend Gwen Robinson, and her three daughters. Appellant and his family lived there until approximately July 3, 1989, when the trailer was damaged by fire. Robinson’s three daughters then went to live with their paternal grandmother, Truda LeBlanc.

Shortly after the Robinson girls moved in with Ms. LeBlanc, LeBlanc took the complainant, seven-year-old M_R_, and her sister S_R_, to be interviewed at the Department of Human Services, Child Protective Services Division in Cameron, Texas. Sally Melant, a supervisor with that division testified that Ms. LeBlanc, brought M_R_ to Melant’s office for an interview. Melant, without giving M_R_’s description of the sexual assault, testified that M_R_ told her that there had been a completed act of sexual intercourse.

At trial, M_R_ testified that on one occasion when her mother had gone to the store, Appellant undressed her and put his “thing” inside of her. She stated that it felt “horrible”. Afterwards, Appellant told her not to tell anyone what he had done.

Dr. James Horton, the physician who examined M_R_ following her interview with Melant, testified that M_R_ “stated that Mitch, her mother’s boyfriend, put his ‘ding dong’ into her, and she pointed at her vaginal area.” According to Dr. Horton, an examination of M_R_’s vaginal area revealed that on more than one occasion she had undergone sexual intercourse or chronic manipulation on more than one occasion.

After the State rested, Appellant testified and denied allegations of sexual activity with &LR_. In his defense, Appellant also called numerous witnesses who testified that they had observed nothing unusual about M_R_’s demeanor toward Appellant.

By his first point of error, Appellant avers that the trial court erred in allowing the outcry testimony of Sally Melant, a supervisor with the Department of Human Services, Child Protective Services Division. Melant testified that she interviewed M_R_ on July 13,1989. Over Appellant’s running objection that the testimony was hearsay, Tex.Code Crim.Proc.Ann. art. 38.072 (Vernon Supp.1992), and Tex.R.Crim.Evid. 801, Melant testified as follows concerning the interview:

Q. [By State’s attorney] And who was present when you interviewed M_R_?
A. I was present, her sister, S_R_, was present and her grandmother, her paternal grandmother, Truda LeBlanc was present.
Q. Can you tell the jury whether or not M_R_ made an outcry to you concerning having been raped?
A. Yes, she did.
Q. And can you tell this jury whether or not she described to you to having undergone a completed act of sexual intercourse?
A. Yes, she did.

(emphasis added)

Appellant argues that this testimony was inadmissible because the State failed to comply with the notice requirements for “outcry” statements set forth in Article 38-072. We agree. Article 38.072 applies to statements that describe the alleged offense:

*624 Art. 38.072 Hearsay Statement of Child Abuse Victim
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.
(b) A statement that meets the requirements of subsection (a) of this article is not inadmissible because of the hearsay rule ...

Tex.Code Crim.Proc.Ann. art. 38.072, § 2 (emphasis added).

We find the terms “raped” and “completed act of sexual intercourse” sufficiently descriptive to bring Melant’s testimony within the gamut of art. 38.072.

Having found that the trial court erred in failing to sustain Appellant’s objection under art. 38.072, an examination of such error under the standards prescribed by the Court of Criminal Appeals in Harris v. State, 790 S.W.2d 568, 587 (Tex.Cr.App.1989) and Higginbotham v. State, 807 S.W.2d 732 (Tex.Cr.App.1991) is necessary. Dorado v. State, 843 S.W.2d 37 (Tex.Cr.App., 1992); Lankston v. State, 841 S.W.2d 943 (Tex.App.—Waco 1992, pet. ref'd). In Higginbotham, the court reiterated that the following factors be considered: (1) the source of the error; (2) the nature of the error; (3) whether or to what extent it was emphasized by the State and its probable collateral implications; (4) the weight a juror would probably place on the error, and (5) whether declaring the error harmless would encourage the State to repeat it with impunity. Id., 807 S.W.2d at 735. After analyzing these factors, we must then determine whether a rational trier of fact might have reached a different result if the error and its effects had not resulted. Harris v. State, 790 S.W.2d 568, 587 (Tex.Cr.App.1989). In considering these factors, this Court should be concerned with the integrity of the process leading up to the conviction, not the propriety of the outcome of the case. Higginbotham, 807 S.W.2d at 806-07; Harris, 790 S.W.2d at 587-88.

The source of the alleged error in the instant suit arose from the State’s alleged noncompliance with the notice requirements for outcry testimony under art. 38.072. Pursuant to these notice requirements the testimony in question would have been admissible had the State, 14 days before the trial began: (1) notified Appellant of its intention to use Melant’s testimony regarding M_R_’s outcry, (2) provided Appellant with a written summary of the statement, and (3) obtained a ruling on the reliability of the statement outside the presence of the jury. 1 In analyzing the nature of the error, this Court must examine whether the State intended to taint the trial in offering inadmissible evidence. Higginbotham, 807 S.W.2d at p. 735.

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862 S.W.2d 621, 1993 WL 132301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norman-v-state-texapp-1993.