OPINION
Aрpellant, Richard John Fetterolf, appeals his judgment of conviction for the offense of Indecency with a Child. TEXAS PENAL CODE ANN. § 21.11 (Vernon 1989). The jury found appellant guilty. Upon further finding the two enhancement paragraphs of the indictment to be true, the jury assessed punishment at 30 years confinement in the Texas Department of Corrections. We affirm.
Appellant brings six points of error. In his first point of error appellant asserts *929 that the trial court erred in admitting hearsay evidence under Article 38.072 of the TEX.CRIM.PROC.CODE ANN. (Vernon 1989) when the procedural requirements for admissibility under the statute were clearly ignored by the State. In his second point of error appellant asserts that appellant’s conviction is void having been obtained through evidence introduced under an uncоnstitutional statute, to-wit, Article 38.072 of the TEX.CRIM.PROC.CODE ANN., in that it is violative of the confrontation clauses of the sixth amendment to the United States Constitution and Article 1, Sec. 10 of the Texas Constitution, and the Due Process Clause of the Fourteenth Amendment and the Due Course of Law provisions in Article I, Sec. 19 of the Texas Constitution. In his third point of error, appellant asserts the trial court erred in refusing аppellant’s request to instruct the jury as to the limited purpose for which the outcry witness’ testimony was admitted. In his fourth point of error, appellant asserts the trial court erred in refusing appellant's request to instruct the jury on the lesser included offense raised by the evidence, to-wit, assault by contact, under Section 22.01(a)(3) of the TEX.PENAL CODE ANN. In his fifth point of error appellant asserts the evidence is insufficient to sustain his conviction. In his sixth point of error, appellant asserts his conviction is void in that it is based upon Sections 21.11 and 21.01 of the TEX.PENAL CODE ANN. which are inoperative in that they are vague, so indefinitely framed or of such doubtful construction that they cannot be understood.
The complainant, W.B., was a female child, ten years of age, on October 23, 1988 when the offense occurred. The complainant had spent the previous night, October 22, 1988, at the home of her ten-year old classmate, Dawn Rundle. Also present at the house were Dawn Rundle’s mother and step-father, the appellant.
On direct examination, complainant testified as follows: complainant and her classmate, Dawn, had fallen asleep on the living rоom couch while watching T.V.; early the next morning the girls were awakened by a cat scratching on the window screen; appellant was then in the kitchen cooking bacon; the girls read books before dropping off to sleep again. Complainant testified she was re-awakened at about 6:30 a.m. when she felt appellant’s hand underneath her T-shirt, rubbing her breast in a circular motion. Appellant was lying down on the floor in front of the couch. Complainant testified when she got up from the couch she saw that appellant’s hand was situated on the seat of the couch upon which complainant had been sleeping; complainant stated that appellant’s hand then fell down beside him on the floor. Complainant testified she confided in her ten-year old classmate, Dawn, about the occurrence but that Dawn responded that appellant would not do what complainant had described. Complainant then accompanied Dawn, Dawn’s mother and appellant to a park. After the outing in the park, Dawn’s mother and appellant drove complainant back to her own home аnd complainant made her outcry statement to her mother immediately upon arriving. The authorities were contacted.
In his first point of error, appellant asserts the trial court erred in permitting the outcry witness to testify as to what complainant related to her because the procedural requirements of Article 38.072 were not satisfied by the State. TEX.CODE CRIM.PROC.ANN. art. 38.072. (Vernon 1989). Aрpellant, therefore, complains that the outcry testimony of the complainant’s mother violated the child outcry hearsay exception. Article 38.072 reads in relevant part as follows:
Sec. 1. This article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code, if committed against а child 12 years of age or younger.
(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);
* ⅜! ¾! * * *
Sec. 2. (a) This article applies only to statements that describe the alleged offense that:
*930 (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 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 thе 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.
Prior to the testimony of the outсry witness (the complainant’s mother), defense counsel objected on the record that he had been provided with written notice of the outcry statement on February 6, 1988, which was only one day before the jury was selected as opposed to fourteen days before trial as prescribed by the statute recited above. The record further reveals that a disсussion then ensued between defense counsel and the prosecutor before the Court. The prosecutor informed the Court that this case had previously been set for trial on January 3, 1988; that the prosecutor had opened his file to the defense counsel; that defense counsel had accessed the file and was aware both of the statement and the сontent of the outcry witness and also of the State’s subpoena list. Defense counsel not only conceded the validity of this information but he, himself, notified the Court that by reading the State’s file a reasonable person could deduce or anticipate who the outcry witness was. Defense counsel then explained that his objection was that notice of the outcry testimony was never stated officially to him. Further, the record reflects that defense counsel had actual notice of the outcry testimony of complainant’s mother through way of the written statement of complainant.
The procedural requirements of article 38.072 which the State failed to satisfy were the notice and hearing requirements, the purpose of which are to prevent surprise to appellant’s counsel. Since the complainant did provide live testimony at trial and since there is no evidence in the record that appellant’s attorney was surprised by the outcry testimony of the complainant’s mother, there was no prejudice to appellant’s case by admission of the outcry testimony.
Brown v. State,
In his second point of error, appellant asserts that TEX.CODE.CRIM. PROC.ANN. art. 38.072 (Vernon 1989) is unconstitutional as violative of his right to be confronted with the witnesses against him and his rights to due process and due course of law. Specifically, appellant contends that article 38.072 is unconstitutional for the same reason that the court of criminal appeals declared article 38.071 TEX. CODE CRIM.PROC.ANN. (Vernon 1979) unconstitutional in
Long v. State,
In his third point of error, appellant submits the trial judge erred in refusing to include in the court’s charge to the jury his requested instruction that the mother’s testimony of complainant’s outcry was admitted for a limited purpose, that being, as per the statute and not for the truth of the matter asserted.”
We refer appellant to Article 38.072 which provides in Section 2(b) as follows:
A statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if [certain criteria arе met, those being notice to the defense, reliability of the statement, and availability of the child to testify].
It is our view the statute created an exception to the hearsay rule for the outcry statements of abused children. As to the intent of the Legislature in creating such a statutory exception to the hearsay rule, the Texarkana Court of Appeals in
Buckley,
The Bill Analysis оf House Bill 579 (69th Legislature), which became Article 38.-072 of the Code of Criminal Procedure, sets forth the following under the heading “Background Information”:
Under current rules of evidence, out-of-court statements offered at trial as proof of the matter are inadmissible as hearsay. Various exceptions to the hearsay rule exist when the circumstances make the out-of-сourt statements reliable. Currently, there are few exceptions for the statements of a child who is the victim of a crime, other than the general “excited utterance” exception developed in Texas case law. Buckley,758 S.W.2d at 342-343 .
We conclude that the drafters of Article 38.072 intended to make it possible for the outcry statements of children to be admissible into evidenсe as an exception to the hearsay rule. Accordingly, appellant’s request for a limiting instruction as to the outcry testimony of complainant’s mother was inapplicable and we find that the trial court properly denied appellant's request. Appellant’s point of error three is overruled.
In his fourth point of error, appellant contends the trial сourt should have
*932
submitted to the jury the charge of the lesser included offense of assault by contact with another. TEXAS PENAL CODE ANN. § 22.01(a)(3) (Vernon 1989). A principle fundamental to Texas criminal jurisprudence is that when evidence from any source raises an issue that a lesser included offense may have been committed and a jury charge is properly requested, the issue must be submitted to a jury.
Ormsby v. State,
In the case before us, we find that appellant failed to satisfy the second prong of the test recited above. Appellant did not even remotely show that he was guilty of the lesser offense of assault by contact. Thеre was no evidence from any source to show that appellant was guilty of intentionally or knowingly causing physical contact with the complainant when appellant knew or should have reasonably believed that the complainant would regard the contact as offensive or provocative. See TEXAS PENAL CODE ANN. § 22.01(a)(3) (Vernon 1989). Quite the reverse. The complainant’s testimony that appellant touched her breast in a circular motion is not at all controverted in the record before us. We conclude there was no evidence from any source to support appellant’s defensive theory that his physical contact with complainant was not sexually motivated so as to warrant the inclusion in the charge to the jury of the lesser offense of assault by contact. Appellant’s point of error four is overruled.
In his argument in his brief, appellant consolidates his fifth and sixth points of error. Point of error five challenges the sufficiency of the evidence to sustain appellant’s conviction. Point of error six asserts the applicable statutes of the TEXAS PENAL CODE, § 21.11 and § 21.01 (Vernon 1989) to be indefinite and void for vagueness under the 14th Amendment to the U.S. Constitution and under article 1, § 19 of the Texas Constitution.
As to appellant’s challenge to the sufficiency of the evidence, he argues that complainant’s testimony that she felt appellant’s hand circling on her breast is insufficient to show that appellant actually touched her breast. When confronted with a challenge to the sufficiency of the evidence, an appellate court must determine whether, viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia,
*933 A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same оr opposite sex, he
(1) engages in sexual contact with the child ...
“Sexual contact” is defined in TEX.PENAL CODE ANN. § 21.01(2) as:
... any touching of the anus, breast or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.
The requisite intent to arouse one’s sexual desire can be inferred from conduct, remarks and an examination of the surrounding circumstances.
McKenzie v. State,
Appellant’s constitutional challenges to sections 21.11 and 21.01 rest upon his contention that the inclusion of the term “breast” within the definition of sexual contact is capable of multiple meanings so as to render the term inoperable. We do not agree. We find there is no question as to the meaning of the term “breast” in the record before us. Complainant prоvided testimony that was clear and unequivocal as to that part of her anatomy contacted by appellant’s hand. There was evidence that complainant wore a so-called “training bra” during the day. Complainant used the term “breast” to refer to same. Complainant testified that appellant’s hand “circled on her breast.” As to this appellant, the statutes are not vague because the complainant’s testimony was most definite on the term “breast.”
In
Parker v. Levy,
Accordingly, we affirm the judgment of the trial court.