Robinson v. State

985 S.W.2d 584, 1998 Tex. App. LEXIS 8067, 1998 WL 933219
Court of Appeals of Texas·Decided December 31, 1998·No. 06-97-00182-CR·Published·Cited by 11 cases

Opinion

OPINION

ROSS, Justice.

Appellant, Tony Robinson, appeals from his conviction for aggravated sexual assault. He was found guilty by a jury that assessed the maximum punishment of imprisonment for life and a $10,000.00 fine. Robinson complains that (1) the trial court erred in admitting the victim’s outcry statements into evidence; (2) the outcry statements were unreliable' and are hearsay under Article 38.072 of the Code of Criminal Procedure; (3) the trial court erred in admitting testimony of other misconduct by Robinson; and (4) the trial court abused its discretion in excusing a member of the venire panel.

Robinson was implicated by his girlfriend, Diane Hays, in the sexual assault of a three-year-old boy. Hays first reported the incident to her treating psychiatrist and then to the Longview police. Based on this report, Officer Carl Watley interviewed the alleged victim and his mother. The child did not report any abuse to the officer. Nevertheless, Officer Watley reported the incident to Child Protective Services (CPS) and requested that CPS conduct an interview.

Katy Wady of CPS conducted an interview with the child. In the initial part of the interview, Wady became acquainted with the child. Wady brought anatomically correct dolls with her to the interview and interviewed the child in private at the home of his grandmother. Once Wady felt the child was comfortable, she asked if anyone had touched his “wacko,” the term the child used for penis. He said no. Wady and the child continued to play and talk, and she asked this same question several times during the interview. The child’s response was consistently “no,” that no one had touched him.

Wady then went to discuss her interview with the child’s mother and grandmother. The mother and grandmother then told Wady that Hays had said that Robinson had forced the child to place lotion on Robinson’s penis and had the child masturbate him. They also alleged that Hays reported that Robinson had forced the child to perform oral sex. Wady got a bottle of lotion and went back to the bedroom to further interview the child. They called the male doll “Tony,” the first name of the defendant, and the female doll “Diane,” the name of the defendant’s girlfriend. The child then demonstrated putting lotion in his hand and performing masturbation on the male doll. The child then put the penis of the male doll in his mouth and demonstrated oral sex. Wady repeatedly asked who the male doll was, and the child responded “Tony.” Based upon this interview, Wady believed that Robinson had sexually assaulted the child. Wady testified at trial to these facts.

*586 In the first point of error, Robinson asserts that Wady was not an outcry witness because she was not the first adult to talk with the child. Article 38.072 of the Texas Code of Criminal Procedure provides a hearsay exception for statements made by a child abuse victim and is commonly known as the “outcry exception.” The article provides:

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.

TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a) (Vernon Supp.1999). Robinson alleges that the outcry exception attaches at the child’s first opportunity to tell an adult about the abuse, in this case, Officer Watley. Robinson asserts that Officer Watley was the “outcry witness” since he was the first to question the child regarding the sexual abuse allegations.

The Texas Court of Criminal Appeals determined that the exception applies to “the first person, 18 years old or older, to whom the child makes a statement that in some discernible manner describes the alleged offense.” Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990). The court went on to say that “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).” Id.

The State admits that the child made no allegations of abuse during the interview with Officer Watley. The first particularized account of abuse was related by the child to Wady. Under the interpretation given to Article 38.072 in Garcia, we find that Wady was the proper “outcry witness” to whom the statutory exception regarding a hearsay statement of a child applies. The first point of error is overruled.

In his second point of error, Robinson asserts that, even if Wady was the proper outcry witness, the statement made by the child does not have the indicia of reliability required to be admissible. No objection as to reliability was made at either the required pretrial hearing which determined that Wady was the outcry witness or at trial when Wady testified to the statements the child made to her. Robinson argues that such an objection was made at the pretrial hearing and that this objection preserved error for review on appeal and thus made another objection at trial on the same subject matter unnecessary. Robinson’s argument would be correct if such an objection had been made at the pretrial hearing. See Fuller v. State, 827 S.W.2d 919, 930 (Tex.Crim.App.1992). Robinson’s motion requesting a pretrial hearing only asked the court to determine the correct outcry witness. Also, at the pretrial hearing, Robinson agreed with the prosecutor that the hearing was limited to determining the identity of the proper outcry witness. In order to preserve for review a complaint regarding the admission of evidence, there must be a timely, specific objection proffered at trial. Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App.1990). Failure to object at the time the evidence is offered waives the complaint. Soto v. State, 736 S.W.2d 823, 827-28 (Tex.App.-San Antonio 1987, pet. ref'd). Since no objection was made as to the reliability of the statement, this point of error is waived.

In the third point of error, Robinson alleges that the trial court erred in admitting testimony regarding the defendant’s misconduct while in jail at the guilt/innocenee phase of the trial. The misconduct complained of concerned two statements made to two different jailers. Before these statements were admitted, in a hearing outside the presence of the jury, Robinson had objected to the statements as showing bad acts and as being highly prejudicial. The court overruled these objections.

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Robinson v. State, 985 S.W.2d 584, 1998 Tex. App. LEXIS 8067, 1998 WL 933219 (Tex. Ct. App. 1998).

985 S.W.2d 584 (Robinson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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