*1 proven. cases were In order to hold to the proclaimed rule today, any we overrule lan- Mickey GARCIA, Appellant, Dean guage contrary Anderson, Pit- v. cock, Pena, Thompson, any or other case Texas, Appellee. STATE of
in Thompson’s Appellant’s line. first ground for 165-89, review is overruled. Nos. 166-89. Texas, Appeals Court Criminal We now turn to an examination of En Banc. appellant’s ground other for review. As above, stated our holding Rose mandates June 1990. giving parole of the statutory law
charge perform was error. We must now analysis Arnold to determine whether
this error was harmful. See Arnold v.
State,
We find no indication jury parole took the into laws setting appellant’s
account when sentence. appellant
Given the fact that received the punishment (short
minimum for his crime probation), considering that there was parole
no mention of during laws voir dire counsel, argument recognizing jury
the absence of note from the
asking parole question, related we find
beyond a parole reasonable doubt that the appellant’s
law made no contribution to
punishment. judgment Appeals of the Court of
affirmed.
McCORMICK,P.J., joins part
opinion dealing appellant’s with first claim
but concurs in the result reached in disposition ground of error number
two.
CLINTON, J., concurs in the result. J.,
TEAGUE, joins part opin- dealing appellant’s claim
ion dispo-
dissents to the result reached ground
sition of of error number two. *2 1988). judgment
pus Christi We affirm appeals. of of court re- petitions discretionary In these for view, complains Her- appellant that witness designated by improperly Muniz man was as the witness under the trial court Code of Crimi- Article 38.072 of Texas Procedure, testimony elicited nal and that made to regarding from Muniz statements inad- by complainant him was therefore Appellant hearsay. contends that missable Ramirez, complainant’s grade first Betty teacher, person eighteen was the first old to whom the victim had years or older given describing a offense. April reflects on
The record old, 1987, complainant years at- was seven residing tending grade, and with her first stepfather, appel- and her natural mother Gomez, ap- Edinburg, Jose for Antonio Complainant’s Mickey lant Dean Garcia. pellant. Ramirez, teacher, grade Betty attend- Euresti, Jr., on Benjamin Atty. put Dist. and seminar ed a abuse Saenz, Atty., day. Upon Luis V. Dist. Browns- her return to Asst. school nurse that Austin, ville, Huttash, classroom, explained Atty., Robert State’s Ramirez for the in classroom that she had State. children her been Her regarding
in sexual abuse. a session testimony part is as follows: in I So went back into RAMIREZ: PETI- OPINION ON APPELLANT’S students, I my classroom told TIONS FOR DISCRETIONARY “Well, in a about sexual I was session
REVIEW
anybody
like
know if
abuse
I’d
holding
mitted
mine whether
for
indecency with child and
cases.
(4).
dentiary hearsay exceptions
This Court
MILLER, Judge.
discretionary
Appellant
pursuant
hearsay testimony
V.A.C.C.P.,
Tex.R.App.Pro.,
granted appellant’s petitions
a
was
review
court
convicted
provisions
of
in order
Rule
was
appeals
aggravated
deals
properly
200(c)(2)
child abuse
a
to deter
erred
jury
sex
evi-
ad
&
raised
you felt was
one of
one ever
had to
them,
afraid to tell someone?” Several
private parts
hands
[******]
“Has
up.
go
raised
classroom
my
treated
down
anyone
wrong
students
of
you
has ever been”—I
their
[complainant]
ever touched
in a bad
kind? Has
and her hand
level
you
way that
were
your
any-
was
ask
rent terms of
Texas
ual
Code Sections
assault
jury
Department
assessed
pursuant
ten and
punishment
twenty years
Corrections, respec
to V.T.C.A.
22.021(a)(1)(B).
at concur
Penal
When she
having
[******]
my
desk and she
problems
raised her hand
at
home.
told
me she
she came
up
voluntarily
up my
desk
came
$1,000
plus
... she
tively,
fine. The court
me
to tell
a lot
just wanted
and she
appeals affirmed
convictions. Garcia
going on
home.
things,
at
what
State,
(Tex.App
91 is, (2) person, may offense” sometimes be a were made to the first 18 about the older, years age scrutiny other than the demands close difficult one that defendant, to the child made a by judge. whom the trial statement about the offense. In the case at bar the trial court (Emphasis supplied). inter- This Court Ramirez, Muniz, not was the ruled that highlighted prets portion above designated outcry In order to be witness. outcry statute to mean that the witness court, one witness the trial person, years must be the first old or clearly by the element that must be shown older, statement to whom the makes a is that the victim described the evidence some discernible manner describes From numerous offense to that witness. offense. We believe record, examples in the we see that must more than words which some complainant told her teacher that give general something allusion home, thing happened had at and that it going on. In the area of child abuse was *4 However, had to do child abuse. the with particular picking wording the of the “first any specific to details of record is void as person” requirement, legislature the was the statements made to Ramirez and as to obviously striking a balance between the alleged any description of the offenses general prohibition against hearsay and the by complainant. made to Ramirez the specific societal desire to the sexual curb general phrases Thus conclude that the we generally abuse of children. See Ohio v. complain in Ramirez and evidence used — Osborne, U.S. -, 110 S.Ct. ant, (i.e. response prosecutor’s in to the (1990). L.Ed.2d 98 That balance is the fo relay informa question “Did she further point analysis. portion cal of our The of discussed?”, you topic you the tion to catering hearsay prohibi the statute to the “Yes, just she wanted to Ramirez answered only person” tion demands that the “first day”, and in practically talk about it testify. allowed to But the societal interest question response prosecutor’s “What curbing hardly in child abuse would be your teacher there in the class did tell person” served if all that “first had to “Well, room?”, I complainant answered testify general allegation a from the happened”), apparently did told her what something child that in the area of child context, view, not, in the trial court’s going on at home. Thus we abuse was general to more than the allusion amount meaning that decline to read the statute as heretofore condemned. any arguably relates to allegation evolves into an of what later from this record we emphasize that We against particular person a will abuse complain- what it was the cannot determine 2(a)(2). satisfy requisites of The Sec. Indeed, is due ant told her teacher. general allu statute demands more than a objecting to the teacher part to the defense sion of sexual abuse. lay did narrating said. The State what was the out- great proper predicate that Muniz was recognize in this area a a We witness, the de- After which cry however. deal of the trial court’s attention will opportunity to recall Ra- ample is of- fense had parlance of children warranted. The predicate, exact, attempt to rebut this generalities can be mis- mirez ten not do Nor did the defense determination failed to so. leading. The of who re- testimony from the elicit person” given a “statement who was (3) history; legislative determining interpretation this stat- In our of 1. ute, V.T.C.A., (4) statutory provi- law or former Code common we turn Government sions, including or similar the same deals with statute construction laws on § 311.023 which subjects; aids. It reads as follows: (5) particular construc- statute, consequences of a construing a whether or not In tion; face, ambiguous on its statute is considered (6) of the stat- construction may among administrative other matters the: court consider ute; attained; (1) sought object to be emergen- (7) preamble, (caption), (2) title under which the statute circumstances enacted; cy provision. garding specifies of the placed express statements she with limitation of the In hearsay exception person” made to Ramirez. the absence of to “the first clarification, ruled, such whom the child the trial court describes the of- on it, fense. See designation id. bill also amended the evidence before as to Family Code a section substantially outcry witness.2 identical to Article 38.072. See Y.T.C.A. findings A court’s upheld trial will be Code, Thus, Family legisla- 54.031. they supported by evidence, when are point” majori- tive intent —the “focal and a trial court has discretion in broad ty’s analysis only to create a —was determining admissibility of such evi- hearsay exception narrow in offenses relat- dence. The exercise of that discretion will ing physical and sexual abuse not be disturbed unless a clear abuse of children, permit but also to the admission that discretion is established the record. proce- the statements after certain This Court finds no abuse of discretion safeguards dural are met. the trial court in its determination that safeguard particularly deemed im- Muniz was the as contem- witness portant by Legislature is the limitation 38.072, V.A.C.C.P., plated by Article person witnesses first thus, correctly the trial court ruled con- reports whom the child the offense. The cerning admissibility requirement witness be exception Appellant’s ground for evidence. story to receive the child’s review both cases is overruled. The represents necessity a balance between the judgment appeals of the court of is af- introducing the child’s statements firmed. *5 through necessity an adult witness and the avoiding dangers implicit hearsay CLINTON, Judge, dissenting. observed, itself. As commentators have majority person The construes “the first inherently “Human is belief evidence child ... to whom the made a statement defects, susceptible to certain which fall the offense” under Article about categories traditionally into four called something V.A.C.C.P. to mean broader First, ‘hearsay dangers.’ a belief supposes than it the child in this case told may be erroneous because it results from majority the teacher. The rationale of the impression objective reality a false —a only opinion evidentiary not alleviates the perception lamentably defect in com- —a proponent proof of its burden of on the product imperfect physical mon of our issue, person” misapprehends “first Second, psychological and faculties. legislative provide procedural pro- intent to perception may yield even a true a false strengthen reliability tections to of oth- belief at a later time because of the hearsay erwise inadmissible evidence. memory: the uncon- tricks of human “applies only to supra, Article regrouping scrambling scious of ele- statements that describe the of- disparate experiences ments drawn from per- fense that were made to the first Third, ... and from fantasies. even an accu- son, older, other than years age 18 or may memory person rate of one mislead defendant, another, child made a to whom the if it is when used as evidence 38.- imperfectly. the offense.” Article accidentally about communicated 072, 2(a)(2), focused, supra. original bill cre- our carefully The instru- However § ating communication, “all section allowed ments of both verbal nonverbal, by ambiguity may statements of a child under 13 to be be clouded victim misinterpretation. Analysis, counterpart, admitted into Bill and its evidence.” memory may be falsified Legislature (1985). Finally, H.B. 69th This a valid intentionally.” expansive portion more re- of the bill was briefs, by any 2. We note record we argument that the referenced in the dissent raises an principal prior that the child also talked to the us to ad- have said contention before do not to her conversation with Muniz. Since this con- dress. brief, appellant’s tention was not made in nor
93 Well, I Sharlot, her what Goode, Wellborn, Rules COMPLAINANT: told Texas Criminal, happened.” 8.01.1 of Evidence: Civil § 1988). (Texas Practice also confirmed that the The teacher herself person maybe minutes greatly restriction to the first to me for The child “talked peculiar morning, hearsay dangers that the reduces or 15 minutes” that may children. While children well be as to her relay[ed] child information” “further relating trustworthy abuse, events wanting adults about to “talk about sexual they actually experienced, they have never- day.” majority practically it Thus the sugges- theless remain more vulnerable really correctly that the teacher concludes otherwise, tion, unintentional or and are years age or person, the “first easily by the various au- defendant, more influenced older, than the to whom other thority figures in the often trau- involved of- child a statement made allegation. matic ordeal a sexual abuse 38.072, 2(a)(2), supra. fense.” Article By ments are untainted bers, would factfinder be this time the child’s marks in time the circumstances of the tion, physical abuse to the child’s that the statement is reliable “based on tingent statement.” Article 38.072 § missibility time, adult, ences of tered this original er Ramirez, disclosure more specification Article 38.072. reliable of the facts that the account of what the child herself remem- The Betty Ramirez? It COMPLAINANT: “PROSECUTOR: multiply. admitted. The limiting the chief defect in the provision is clear from the told about an but also because the n content, person” need to disclosure, be ill-served bill nuances added to was “the first child subsequent part risks is did, [*] such cases. avoid these and substituted on the trial relates the limitation, because statements facts statutory [*] evidence made more Legislature recognized likely hearsay You offense: alleged by permitting, circumstances Yes. child’s interrogators. original majority’s often person” # told story may the subtle influ- the child’s initial please now hearsay dangers a evidence is con- court’s story Indeed, is teacher, Betty limitation also original statements self-motivated helpful 2(a)(2),supra. of sexual or your bill, instead the [*] whom the listen- recitation conversa- findings rejected integral teacher the ad- as a new state- Each [*] the the the the al- to to whom the interview the can readily than mere words which ments the motivate the teacher principal felt it partment of ly person” talked fifteen enough conclusion about her teacher her conclusion to sion” is statements to her eral allusion that conveyed ever majority attempts to make Muniz the tancourt and Herman child. “more child “a The teacher later DHS, arguably sent general allusion.” principal. just as principal’s the again gave statements to abuse was majority’s made majority’s than to concedes that Then, about minutes, 38.072 § as the two under principal to the child told her supportable mere words which Department almost immediate- to the teacher were not her teacher and Human Services. And what- easily infer that child. Under these specialists is later the teacher for Whatever the the the statute office where she necessary third or rationale going puzzling. conclusion the child’s statements something 2(a)(2), related topic of sexual abuse teacher took the contrary. “the record is void Muniz. to apparently give general allu- on.” to take fourth supra, at were story. the record at to afternoon, her the in the arriving at its principal, Thus, least ten call the De- the child to complainant give the construing more The phone David school to the state- facts, we majority Yet left area of related child’s a “more Muniz mean child than *6 as a gen- call the Be- as or to of the statements any specific details your did tell PROSECUTOR: What and as to made to Ramirez classroom? [the teacher] teacher there in the any description through of the offenses whom it intended to offer the complainant.” so, made to Ramirez the doing child’s statement.1 In the State added.) (emphasis How this can might appellant Court misled have about the iden- “emphasize that from this record we can- tity person of the first who received the not determine what it was the story, certainly child’s circumvented teacher,” yet told her determine that what- procedural'safeguards the which the stat- ever the child it could not said have explicitly ute creates and demands be met. “description,” amounted to a is a bewilder- primary One of the reasons for the exclu- ing twist reason. jury sion of from the is its lack of Moreover, unnecessary it is to even reach reliability. The statute ameliorates this de- question meaning the about the of the by ensuring fect of evidence highlighted portion of the statute opposing given party not be notice majority construes. This court need not introduced, pro- that it will be but also be decide whether the child’s statements to summary vided the witness’s name and a admittedly her unknowable from teacher— proposed of the evidence least fourteen at majority’s the record—fits the definition of days gives opposing before trial.2 This “description.” The real issue this case is investigate party opportunity statutory proce- construction “time, content, witness and the and circum- consequences comply dural of a failure to statement”, thereby pre- stances of the provisions basic of Article 38.072. pare reliability hearing for the also re- words, In other the issue for this court is quired See Article 38.- under statute. evidentiary question not the the suf- 2(b)(2), given supra. Having been § procedural ques- ficiency proof, but the investigation prep- opportunity for proof. tion about burden of aration, party may then the adverse reveal might to the trial court reasons which article, party intending Under this “the doubting reliability for of the exist provide to offer the statement” must both hearsay. Even if the trial court finds that through of the it “the name witness whom enough admit- reliable intends to offer the statement” and a guilt ted as substantive evidence summary of the statement” to the “written accused, innocence of the the statements party days adverse at least fourteen before remain inadmissible unless the child testi- witness, 2(b). trial. Article 38.072 That § testify, required fies or is available 2(a), under must be “the first ... § 2(b)(3) By requiring statute. the child made a statement about whom availability speak- testimony or of both the State, party the offense.” Here the (the (the child) er and the listener statement, offering provide failed to witness), party is ensured the the adverse person’s [Betty Ra- either the first name highlight for factfinder opportunity to mirez, summary of the or a *7 teacher] Instead, any contradictions about the statements her teacher. child’s statement to cross-exami- through trial examination and designated the Muniz as the witness State (A) attempt party the adverse of its inten- majority notifies 1. The notes that "[n]o so; during by any to the State at time the trial made designate tion to do witness.” (B) this witness as the provides party the adverse with the course, attempt also such an would have Of through whom it intends name of the witness requirements procedural of the arti- violated the statement; the to offer give notice at least cle because the State did not (C) party provides adverse with a writ- the days in advance of trial. statement; summary of the ten finds, (2) hearing conduct- court in a the trial 2(b), procedural por- 2. Article is the jury, presence of the ed outside the of the statute: tion time, the con- is reliable based on statement requirements of "A that meets the statement; tent, and circumstances (a) is not inadmissi- Subsection of this article (3) available at the child testifies or is the hearsay rule if: ble because any proceeding other manner in court or in (1)on day date 14th before the or before the provided by for law.” intending begins, party proceeding statement: offer the every one bypassed is each and Through safeguards, these what The State nation. procedures more Article 38.072’s mandated otherwise rank can be confi- of selecting for the consid- as the “first dently simply admitted factfinder’s Muniz thereby evidence the whole person,” eration as reliable substantive subverted par- guilt give or innocence of the accused. legislative purpose the adverse in advance of trial and to ensure ty notice case, given In this the defendant was reliability its admis- of evidence before trial that notice about two weeks before By misidentifying the jury. sion to the first Muniz was whom to utilize person,” “first State was able Ra- child described offense. When meeting require- any without of its describing began the child told mirez what inconsonant that ments. It seems rather her, upon the likely relying the defense— permit meant “the ad- Legislature Muniz designation as the first State’s profit this statute party” to from verse person objected hearsay. to the teacher’s — safeguards sidestepping panoply objection By the time was sustained. very explicitly provides. statute testified, it was that Muniz Muniz clear majority opinion addresses Because the person,” was not the “first and the defense concerns, dis- respectfully of these I none objected testimony that Muniz’s hear- sent. say. objec- The trial court overruled and, required desig- hearing, tion after the STURNS, JJ., join. TEAGUE and person.” Muniz as the
nated invoked 38.072 to admit State testimony, completely Muniz’s then 2(a)’s comply requirements.
failed to with § proponent
It is the burden of the of evi- proper lay predicate
dence to for its
admission; failure to do so renders the
proffered evidence inadmissible. Because testimony
Muniz’s indeed SOLIS, Appellant, Eddie exception, to fit Article shown 38.072’s v. testimony objection defendant's Muniz's Texas, should Appellee. have been sustained. The STATE overruling The trial court’s of this hear- No. 1183-86. erroneous, appel- say objection was and the Texas, Appeals of Criminal Court court should have a harm late conducted En Banc. Rule analysis Tex.R.App.Pro., under Instead, 81(b)(2). appellate court found June 1990. mis- “no violation of Article 38.072” on the guided not tes- rationale “Ramirez did
tify com- statement made [the
plainant] alleged sexual that described the
offenses.” court, appellate majority
Like the defen-
seems to assume it was testi- develop Ramirez’s
dant’s burden *8 prove
mony she was fact to whom described the child assumption Such
the offense.
squarely contrary (B) 2(b)(1)(A), (C), explicitly
places designating the burden party intending “the
witness on to offer
the statement.”