Fultz v. State
940 S.W.2d 758
Tex. App.
1997
Check Treatment

*2 CORNELIUS, C.J., and Before GRANT ROSS, JJ.

OPINION ROSS, Justice. appeals from his convictions

Bennie Fultz aggravated sexual assault for the offenses indecency a child. Trial of a child and with jury. court sentenced the was to a twenty-five years’ confinement aggravated sexual assault for the offense of years’ confine- and assessed ten of a child indecency ment, probated, for the offense against primary evidence a child. The with videotaped state- appellant consisted of a victim, grand- four-year-old by the pur- videotape admitted daughter. The to Tex.Code Crim. suant Proo. Ann. (Vernon appel- Supp.1997). Secondly, very point complains clear lant’s one of error video, itself, girl that the little videotaped of this statement vio- admission to, length confrontation, apparently had been talked guaran- lated his this, began. And I about before the video teed the United States and Texas Consti- Const, VI; think that this real action of the it’s tutions. U.S. amend. Tex. *3 this, certainly a video like Const, without the de- I, § there, being being or fendant counsel presents nothing This case us with there, necessarily spontaneous must be appellant pre has not to review because the ability any to of truthfulness for her have any In order for an issue to served error. be ability credibility and to the of appeal, timely preserved on there must be a being blaming said. I’m not the what’s objection legal specifically that states a basis lady just who did the video. I think it was State, objection. for the Rezac v. 782 S.W.2d way done in a that couldn’t— 869, objection (Tex.Crim.App.1990). An 870 may stating legal one basis not be used to just saying happened I’m what was legal theory appeal. support a different on wrong, inadvertently, and not be- done Instead, objection Id. an must draw the part on of cause of a malicious intent the particular complaint to court’s attention the video, to make a bad or to a situation CPS State, appeal. raised on Little v. 768 S.W.2d in that could not be allowed a court of 551, denied, (Tex.Crim.App.), cert. 488 564 allega- because of the seriousness of the 934, 328, 102 109 S.Ct. L.Ed.2d 346 saying, say tions. I’m don’t she intended loosely imprecise A formulated and anything wrong, a video to do but is not objection preserve will not error. United should, could, or be allowed. 769, Lopez, v. 873 F.2d 773 States Jimenez Any allusion to the Confrontation (5th Cir.1989). objections his trial do When objections extremely is atten Clause these comport arguments appeal, his on not with implication to or of uated. The mere allusion appellant preserve an has failed to error. objection preserve appeal. not it for does (Tex.Crim. State, 537, 551 931 S.W.2d Goff v. Musa, E.g., v. 45 F.3d 924 United States App.1996). (5th Cir.1995); Berry, 977 United States (5th Cir.1992); 918 United States v. F.2d case, appellant’s In trial ob this the (5th Lopez, 873 F.2d Cir. Jimenez arguments jections comport not his do with State, 1989); Burks v. trial, appellant appeal. At made the on the State, (Tex.Crim.App.1994); Rezac objection following to the admission of the State, 870-71; at Little v. videotape: Fancher Honor, we would ask that Your (Tex.Crim.App.1983). 839-40 not allow the video to be offered for Court argue appeal not on appellant does all, First of this was taken two reasons. rights his Confrontation Clause were Obviously, from the of ’94. back March not adminis- because the victim was violated video, video, showing not a on the there’s Instead, broadly proper oath. he tered a admon- nor that the child was setting argues that nonadversarial and wrong of mak- as to and truth ished de- lack of face-to-face cross-examination they not ing allegations, or whether or rights him prived of only playroom were a truthful However, appellant never men- Clause. told, going or it was to be truth would be at trial. His tioned the Confrontation Clause stories, going if to you up make she objection urged appeal, on trial was not somebody might truth of what tell the objection urged at trial. appellate was not to hear. There was no admonish- want Therefore, appellant did not draw truth, as to the need to tell the particular com- attention to his trial court’s they happens people if don’t tell what plaint. truth, things or that there could be by Holland v. This case is controlled things done if she did not tell happen, or (Tex.Crim.App. 699-700 the truth. 918, 921, State, 789 S.W.2d Briggs v. hearsay objection waived. 1991), that a which holds (Tex.Crim.App.1990). preserve not Confrontation does objection of a child-witness to the admission continues: Holland videotape: proffered the prosecutor At the time the proffers statement, objected an out-of-court appellant the State

When out-of-court pursuant not statutory predicate a child witness had statement of only that the requisite Article 38.072 fully in that satisfied been Ann.] Proo. Crim. [Tex.Code deficient; and reliability accused to upon incumbent showing ... it is could showing, the statute object the basis of confrontation such on that absent and/or At out of law. to take the statement process operate and due course not due excluding hear- general rule respond follow point pale the State can short, hearsay lodged a say. courses. First In ing either one of two *4 objection violation of to a objection, not an its intention to call can announce State synon- are neither The two con confrontation. to the stand to allow child declarant Hav- necessarily coextensive. ymous nor having to the accused frontation without statutory had predicate ing that the ruled himself. See call the child to stand objection met, hearsay (Tex.Cr. that the State, been Buckley v. S.W.2d 357 [786 taken, the trial not well 360-61; was therefore Briggs v. App.1990)] supra, at any ground for of other court had no notice State, Alternatively the supra, 922. at viola- on the basis of 1) No error exclusion. showing can make a both State yet preserved. confrontation was tion of that is reli out-of-court statement is one totality (citations omitted). circumstances able under the of at 700 802 S.W.2d made, Wright, 497 Idaho v. which it hearsay can vio of evidence The admission 805, 3139, 111 L.Ed.2d 638 110 S.Ct. U.S. v. Rob Clause. Ohio late the Confrontation 2(b)(2) 38.072, (1990), Article Sec. which 2531, erts, 56, 65-66, 100 2538- S.Ct. 448 U.S. 2) out-of- already requires; and use of the (1980). However, 597, 39, 607-08 65 L.Ed.2d child’s testi court statement lieu of the hearsay can also evidence admission of necessary protect the mony at trial “is evidentiary rules. violate Evid. Tex.R.Crim. particular child witness” welfare Additionally, the Confrontation Clause 802. Craig, particular Maryland v. ease. many concepts besides incorporates 3157, 3169, 836, 855, 110 111 497 U.S. S.Ct. testimony hearsay admit to have certain not 666, (1990); Buckley also L.Ed.2d 685 see testimony of Similarly, the admission ted. 360; State, State, supra, Long [742 at v. v. vio under oath sometimes by a witness not (Tex.Cr.App.1987)] supra, at 302 However, Clause. the Confrontation lates of these If the follows either 312. State evidentiary can also violate this admission courses, objection on accused’s two Additionally, Evid. 603. rules. Tex.R.Crim. grounds be overruled. confrontation should many incorporates Otherwise, objection is a the confrontation admit right not to have concepts besides the sustained, irre and should be valid one oath. not under testimony from a witness ted has satisfied spective of whether the State words, neither concepts are the two In other statutory for admissi predicate all of the Tucker v. coextensive. synonymous nor 38.072, hearsay Article su bility of under State, 523, (Tex.Crim.App.1988), 535 771 S.W.2d 912, pra. denied, 109 S.Ct. 492 U.S. rt. ce Therefore, (1989). an 3230, L.Ed.2d 578 106 requiring a purposes of One not ground that an oath was objection on the par objection opposing specific is to preserve not Confrontation given does v. respond. Zillender ty opportunity Clause error. State, 515, (Tex.Crim.App 517 rate, .1977). any Confrontation objection to a At if an alludes Even of evidence, by the admission it not violated excluding Clause is basis for constitutional defen if the videotaped unsworn objection error unless that preserve does not to cross-examine opportunity has the ba dant specifically points out the constitutional Collins, oath. Carson can be the witness errors Even constitutional sis. 762 (5th 461, Cir.), denied,

993 F.2d cert. 510 requisites of Proo. Ann. Tex.Code Crim. 38.071, Although § S.Ct. 126 L.Ed.2d 217 art. the admonishment been, appellant opportunity to was not as extensive as have it The had the could oath. Tex. impressed upon the victim the cross-examine the .victim under nonetheless 5(b). Therefore, importance telling Code Crim. PRoc. Ann. the truth. advantage trial Because he did not take of this was not an abuse of discretion for the opportunity, videotape. cannot claim that court to admit the any rights he was denied under the Confron objeetion-that appellant’s second tation Clause. someone talked to the victim before her testi- mony-has legal no basis. Additionally, a does child witness State, Hollinger not have to take an oath. judgment is affirmed. (Tex.App.—Tyler ref'd); pet. Romines v. GRANT, Justice, concurring. (Tex.App.—Fort pet. Worth ref'd). Instead, only to objection the trial court needs agree in the trial that the made impressed ensure that the child is with the urged ap- on court is not the same as Hollinger, importance telling the truth. complaint preserved for peal, and the is not However, review. for child witnesses Dufrene *5 affirm, (Tex.App.—Houston required [14th longer to swear or the wit- ref'd); pet. Gonzales v. Dist.] admonished to tell the truth ness should be (Tex. App.-Houston protection [1st the part as under Confron- ref'd). 1988, pet. Dist.] We will reverse tation Amendment of the Clause Sixth only if trial court’s determination it is an applicable to United States Constitution Dufrene, abuse of discretion. through the Fourteenth Amend- the states Reyna v. 191 ment. (Tex.App.—Corpus pet.). It Christi complained alleged Fultz victim appropriate for child to be admonished not admonished to tell the truth before was language tell truth in that the child to making As the United her statement. States E.g., Dufrene, can understand. Craig, Supreme Maryland Court held at 88—89. right guaranteed by requirements Two of the under TexCode only a of the Constitution includes not 38.071, § 5 that must Cmm. Proc. Ann. art. personal the witness but also examination of “substantially be satisfied” to make a record- insures that the witness will her testimo ing of an oral statement of a child admissible oath, ny impressing thus the witness under into evidence are: of the matter and with the seriousness (10) subject giving testimony, against by making to guarding before a lie placed possibility penalty perjury. or was other- of a Ma child was under oath appropriate 836, 110 ryland Craig, in a' manner 497 S.Ct. wise admonished maturity testify age and to 111 L.Ed.2d to the child's truthfully; out, majority pointed has As the (11) recording the court finds from the statutory longer is no Texas law the oath through an in camera examination of necessary if the child is otherwise for a child competent was to the child the child appropriate to the in a manner admonished testify recording at the time truthfully. maturity testify age and child’s made;.... to the child to testi- The entire admonition videotape this case shows in the fy truthfully given in lieu of an oath employee admon Child Protective Services present case was as follows: ishing the truth. The trial the victim tell “Well,_, you know employee: CPS videotape extensively viewed special room.” what? This is a regarding employee questioned the CPS “I videotape all Child: know is.” tape, concluding that the met employee: only tell the truth “We CPS

this room.” “I it.”

Child: know you “Okay, do know employee: so

CPS we’re at?” “Special

Child: room.” complies not think this with the re- do

quirements the Confrontation Clause 38.071, § Cbim. Pboc. Ann.

Tex.Code (Vernon Supp.1997). I concur because preserved. was not

error

Felipe & HINOJOSA Estela

Hinojosa, Appellants, OF AUTHORITY THE

HOUSING LAREDO, Appellee.

CITY OF

No. 04-95-00728-CV. Texas, Appeals of

Court of Antonio.

San 26, 1997.

Feb. Bush, Society, Legal Aid

Victor Laredo Inc., Laredo, Appellants. for Ramirez, Laredo, Appellee.

Daniel E. HARDBERGER, C.J., and Before STONE, JJ. RICKHOFF and

OPINION HARDBERGER, Chief Justice. entry and action. This is detainer a forcible court, to the the trial Following a trial judgment awarding possession entered a Housing Authority and property to the Hinojosa ordering Felipe Estela to deliv- Housing possession property to the er this original Authority. On submission court, points Hinojosas in two contended in(l) find- court of error the trial erred