*1 apply broadly as it was stated. (on Aguirre rehearing) Murphy HEAD, Jr., Appellant, dem- Jack onstrate this desire to limit Court’s Gar- say rett to its now expressly facts. We so put confusion this end on The STATE Texas. overly
point. We disavow our broad state- to support ment in Garrett that in order a No. 0045-99. felony provi- conviction under the murder “[tjhere sion, showing a must be of feloni- Texas, Appeals Court of Criminal than ous criminal conduct other the assault En Banc. Garrett, causing the homicide.” Oct. S.W.2d 546. We hold Garrett did not a general “merger create doctrine” in Tex- only
as. The doctrine exists the extent 19.02(b)(3). Thus,
consistent with section
Garrett hereinafter stands for the
proposition felony that a conviction for 19.02(b)(3),
murder under section will not underlying felony when the man-
lie is
slaughter or a included lesser offense of
manslaughter. holding This is consistent plain meaning felony
with the mur- provision.
der explained As we Garrett: felony predicated
If a be on murder assault, underlying aggravated
statutory restriction on the basing felony prohibits
doctrine that a prosecution voluntary
murder on man-
slaughter regularly could be circumvent- legislative prohibition against
ed. The 19.02(a)(3) [now,
resting Sec.
19.02(b)(3) voluntary on prosecution ]
manslaughter necessarily a pro- includes against resting prosecu- such
hibition statutorily on
tion offenses includable
voluntary manslaughter.
Garrett, 573 at 546. injury offense of a child is of manslaugh a lesser offense included Appeals The Court of did not err
ter.
holding inapplicable Garrett the facts of case. judgment of the Court
affirmed.
McCORMICK, P.J., concurred in the
result. *2 indecency by
contact and with a child ex life, him posure and sentenced to a term of confinement, twenty years and ten af respectively. Appeals Court of appellant’s unpub firmed conviction in an Head v. opinion. lished No. 2-96- 489-CR, slip op. (Tex.App at 2 . —Fort 1998) curiam). granted (per Worth We appellant’s Discretionary Petition for Re separate view in which he raises five one, three, grounds for review. Grounds hereby four and five are dismissed as im providently granted. We review question limited of whether the Court of in holding erred that the testimo ny of a police investigator, which per asserted the statements of two sons he interviewed were “consistent” with victim, the facts related to him the did convey the contents of an out-of-court meaning “statement” within the of Texas 801(d).1 Rule of Evidence We affirm the judgment court. Appellant sexually was accused of as- “C.S.”, saulting year-old the fourteen daughter girlfriend, live-in of his after apparent pregnant became that C.S. was with his child. When she discovered she aunt, pregnant, was revealed to her C.S. (“Smith”), Janet Smith ongoing sexual abuse had been since she years-old. five was C.S. Smith Davidson, Bedford, Don appellant. appellant began regularly “touch” her Faulkner, DA, F. Helena Assist. Fort shortly after he moved with C.S.’s moth- Worth, Paul, Matthew Atty., State’s Aus- er in 1984. also confided in C.S. Smith tin, for the State. appellant began having sexual inter- course with her when she in the third OPINION grade. MEYERS, J., opinion delivered the McCORMICK, P.J., Court which outcry, As a result C.S.’ s the case MANSFIELD, KELLER, PRICE, (“Peter- was referred to Mark Peterson KEASLER, J.J., joined. HOLLAND and son”), investigator a criminal Jack Attorney’s A Counties’ District Of- appellant aggravated convicted Wise assault, sexual indecency with a child fice. Peterson conducted the initial inves- Indeed, appellant subject 1. At to the Texas under the old criminal rules. both Evidence, Rules of Criminal sub- which were and the State cite 'the Texas sequently support combined with the Texas Rules Rules of Evidence in arguments. of their March, resulting Civil Evidence in We will continue this convention Texas Rules of Evidence made no substantive and cite to current our own rules in changes hearsay provisions to the relevant discussion. only told which included A. No. She me tigation allegations, [SMITH] C.S., her things. her those two And then asked taking written statements from Jack, her and the when she lived with mother and Smith. then, children, did it and she happen to trial. ultimately proceeded The case yes. said This was when she was *3 part The called three witnesses as State old. Smith, its Peterson and the case-in-chief— next witness. He Peterson was State’s witness, Smith, outcry testi- victim. about the testified on direct examination spoke generally about the fied first. She Specifically, he investigation. course of his how she family’s circumstances about interviewed indicated that after he C.S. pregnancy. about came to find out C.S.’s from both Smith took written statements then testified about the encounter She following ex- mother. The name pressed she C.S. to reveal the which subject of change, appellant’s which is the baby’s of her father: complaint, place: then took I her a couple A. asked [SMITH] state- Q. Were the [PROSECUTOR] responsible, times who was and she gave mother] and C.S.’s [Smith ments was, “I thing the first she said said— —with consistent thing don’t know.” The second Objection, COUNSEL]: [DEFENSE I crying. started And happened, she Your Honor. Calls didn’t have to be told her that she her, no one hurt scared and would THE COURT: Overruled. me, okay. that it was And she could tell Q. Were the state- [PROSECUTOR] time that Head she told me at that Jack they gave you consistent with ments person responsible. was the you by related to [C.S.]? the facts said, just I “Did this I asked her— Yes. A. [PETERSON] time?” And said no. happen one she Appeals, appellant the Court “Well, said, I this start And when did by not sus- claimed the trial court erred happening?” objection. Appellant taining his said, “Well, I when was real And evi- the state of the asserted that small.” includ- jury, presumably dence before said, you? I were Can testimony, And “How old Peterson’s ing previous Smith’s you back?” the three statements remember answer that each of effectively communicat- were “consistent” said, “Yes, I was about five And she to the of the statements ed the substance touching her. years old.” He’d started disagreed and jury. court said, long go I did this on?” And “How error, hold- point of overruled third said until she was And she answer, did not con- ing: “Peterson’s ‘Yes’ was in the third grade. When she by made vey contents of statement having sex with her. grade, he started Peterson. or the mother the aunt said, mother?” your “Where was And offered simply There was no statement said, “My mother was work- And she There- asserted. the truth of the matter that time.” And she said ing night at at fore, not fall answer did Peterson’s night and at happened after school Head, hearsay.” prohibited category work, what she while her mother was no it concluded that at 5. Because slip op. told me. by presented out-of-court you Did she tell Q. [PROSECUTOR] testimony, the Court Peterson’s it happened? how often existed. hearsay problem that no opined Id. A. No. [SMITH] statement, than “Hearsay” is a say how
Q.
Did she
[PROSECUTOR]
testifying
while
on,
by
made
the declarant
period of time?
one
long it went
offered in
charges against
appellant.
evidence to
Id. The
truth of the matter
“No,
asserted. Tex.R. Evid.
investigator responded,
sir.” Id. The
801(d). The Rules define “statement” as
argued
State
that since no out-of-court
“(1) an
expression
oral or written verbal
evidence,
“statement” was received into
no
(2) nonverbal conduct of a
if it
person,
is hearsay
Id.
problem existed.
This Court
intended
him as a substitute for verbal
was,
disagreed, concluding that the State
801(a).
expression.” Tex.R. Evid.
essence,
attempting
indirectly
do
here, then,
question presented
is whether
is,
directly
what it could not do
—that
Peterson’s
that the statements
investigator
inform the
that Seals
of Smith and C.S.’s mother were “consis-
told him that the
was not an in-
C.S.,
tent” with
the facts as related
formant.
Id. at 114. The Court therefore
revealed a “statement”
within the
of held:
*4
801(d).
Rule
there is an inescapable
[W]here
conclu-
It
is well settled that an out-of-
piece
sion that a
being
of evidence is
court “statement” need not
directly
be
prove
offered to
statements made out-
quoted in order to run
hearsay
afoul of the
courtroom,
party may
side the
rules. See
777 S.W.2d
hearsay
Schaffer
circumvent
the
prohibition
(Tex.Crim.App.1989);
114
2 Steven
through artful questioning designed to
al.,
et
Goode
Texas PRACTICE:Guide to the
short,
elicit hearsay indirectly.
In
Texas Rules of Evidence:
and
Civil
Crimi
801(a)
“statement” as defined in [Rule
]
(2d ed.1993).
§
801.2
In
this
nal
Schaffer
necessarily
.proof
includes
of the state-
801(a)
Court held
that the
of Rule
proof
ment whether the
or
is direct
indi-
necessarily included evidence offered to
rect.
prove statements made outside the court
Id. Because the “sole intent” of the investi-
Schaffer,
room.
judgment of the appellate court.
Q. they Were the gave statements WOMACK, J., delivered a concurring you consistent with the facts related opinion. you by [the victim]? A. Yes.
JOHNSON, J., delivered a dissenting opinion. A week later Mr. got Peterson some telephone bills from Ms. Smith. After the WOMACK, J., filed concurring born, baby got samples he blood from opinion. baby. got the victim and the Then I concur in the judgment of the Court. sample appellant. blood from the He *6 I would testimony like make the transferred testing clear. the blood to a DNA The first aunt, facility. witness was the victim’s Then he transferred the case to Smith, (The Ms. who testified about the the Fort police. victim’s Worth assault that “outcry” her, statement pregnant see of left the victim Code was committed in Criminal Procedure art. another county 38.072. She also a number of after testified that she had made a the assault that handwritten was on trial. At trial the officer, to the investigating defense admitted appellant Mr. committed Peterson, assault.) but say she did not in what was the later it. The appellant and the dissent that argue
Mr. Peterson testified about the in steps the evidence permitted an inference that investigation. his got report He from the out-of-court statements were consis- Child Protective Services and was contact- testimony tent with of another witness.1 ed Ms. Smith. Evidently he learned It is clear to the dissenter that Mr. Peter- that the year-old fourteen victim preg- testimony was son’s ‘solely’ “was offered nant and had named the appellant as the purposes corroborating of both Smith’s appellant father. He met the at place testimony his earlier and [the victim’s] subse- work, of appellant and the denied being quent testimony,” and that the Court victim, the father. Then he met with the explain possible “does not what other rea- mother, her and Ms. Smith. He inter- son could there have been.” Post at 265- and, viewed the victim at request, her 66. That purpose apparent was to the wrote a statement which signed. He court of and it appeals, readily ap- is not victim,” appellant disagree mony and the dissent of the who had not testified at testimony point about which witness's was says, consis- that in the trial. The dissent post Smith, tent testimony out-of-court statements. The it was the of Ms. appellant says, Brief at it was "the testi- who had testified. short, parent hearsay indirectly. to me. evidence was ill-de- elicit In testimony, signed to corroborate their as in Tex.R.Civ. “statement” defined 801(a) (now it did not Mr. since mention it. Peterson’s Evid. see Tex.R.Crim.Evid. of his step-by-step 801(a)) was review necessarily proof includes context, investigation. it seems proof statement whether the is direct or that the evidence to prove me was offered indirect. no at that that there were inconsistencies “Inescapable part formed no conclusion” investigation time in the which would rule; purpose the rule on the turns for him to investigatory called take other C it is whether steps. The evidence the three proof offered as indirect of the truth of an statements, persons consistent did not out-of-court statement. And we no contents but there was evidence of the applies rule there is an say where of those statements. inescapable conclusion of the statement’s upholds rul- The Court court’s trial literally cor- purpose. Our statement was ing to admit this “[t]he evidence because rect; applies the rule there is an where reasonably court could have conclud- trial inescapable purpose. conclusion testimony, ed that Peterson’s when taken conclusion apply But it also when the context, did not any inescapable lead to inescapable. less than Indeed when we is as to the of the out- conclusions substance decided the case we what was asked statements.” at 262. I do of-court Ante evidence, not whether purpose that we it is agree should ask whether was an conclusion: purpose inescapable “inescapable that evidence an conclusion” bar, however, “In the case the State hearsay. intended to be is Segovia’s testimony for no oth- introduced “inescapable The words conclusion” inferentially prove than to Seals er reason v. opinion
were used in our in Schaffer Segovia was not (Tex.Cr.App. S.W.2d . out-of-court, implied Seal’s informer. 1989),in this context: truth and statement was offered for its rule hear- concerning hearsay.” therefore Schaffer case say is set out McCormick cited at 115. have never We on Evidence: “in- establishing a standard purpose “If the is to deciding conclusion” whether escapable to evi- use an out-of-court statement indirect I would not *7 therein, truth dence the of facts stated today. do so objection hearsay the cannot be obvi- the by eliciting purport ated the JOHNSON, J., dissenting filed a in form. Thus evi- indirect opinion. purport as to the of ‘information dence witness, by the or received’ Appellant was respectfully dissent. investigations made of the results of in- prosecuted aggravated assault and by persons, proof as offered decency a child. At the state with court, the facts asserted out of are Smith, outcry wit- first called Janet hearsay.” McCor- properly classed as ness, concerning testify. to Smith testified Evidence, 249, p. C.S., on 735 mick Section with complainant, her encounter Ed.1984). Rev., 3rd (Cleary alleged in which C.S. her about Thus, inescapable state’s next wit- by appellant. where there is an abuse ness, Peterson, piece conclusion that of evidence Mark testified by made to him Smith given offered to statements statements with” courtroom, may not mother were “consistent party outside the C.S.’s Ante, by him at 260-61. to prohibition circumvent facts C.S. to on basis through questioning designed Appellant'objected artful
265 hearsay, and the trial “inescapably” court overruled his in as relat- Schaffer objection. ing the contents of the out-of-court state- (ante, 262); that, ments it contends in appeal, On the Court of over contrast, testimony in the instant case appellant’s point ruled of error on this requires “deduction” and an “inferential answer, issue. It stated: “Peterson’s in leap” from the order to constitute Tes,’ did convey the contents of hearsay. very point Id. That is the statement made the aunt or the [Smith] indirect, hearsay; indirect because it is mother to simply Peterson. There nowas type some of deduction inference must statement offered for the truth of the mat always be made. State, ter asserted.” Head v. No. 2-96- 489-CR, slip op. (Tex.App. at 5 distinguish This attempt to — Fort Schaffer 1998) (not Worth, 8, designated October the instant all puzzling case is the more publication). because the required Schaffer leap” more of an “inferential than does the
This holding by the Court of Appeals is
Schaffer,
the instant case. In
incorrect. Smith first testified to certain
events,
charged
defendant was
with possession
and Peterson then testified that
Schaffer,
a controlled substance.
the events
as described to him
C.S.
at 112. He
were
S.W.2d
claimed that he had
“consistent with” what Smith and
acting
C.S.’s mother had
been
as an informant to
told him.
an Officer
Since Smith
already
herself had
Id.
A
testified as to
Seals.
at 112-113.
narcotics investi
those
events,
gator
same
effectively
spoken
Peterson
testified that he had
testified
C.S.,
to the content of what
Seals and when
her mother
asked whether he would
and Smith had said
ask
drop
to him.
all of
the state to
the charges against
While
these statements
were
hear
as a result of
inadmissible
his discussion with
say,
Seals,
the most egregious of
he said “no.” Id. at
In an
these is the
113.
mother;
McCormick,
concerning
opinion by Presiding Judge
C.S.’s
was not the outcry
we held that this
witness and did not
Id. at 113-
testify, so
effectively
Certainly,
Peterson
“leap”
testified as
inference or
to the inadmissible
statements of a non-
be made
must
Seals
Schaffer:
testifying informant. This is
told the
precisely the
witness
defendant was
contrast,
of indirect hearsay that we
not an
By
held to be
informant.
in this
111, case,
error
step
figure
S.W.2d
takes
a small
Schaffer
113-114 (Tex.Crim.App.1989);
out that
previous testimony,
see also
Smith’s
877,
Burks v.
well as
subsequent testimony,
897-898
were
denied,
(Tex.Crim.App.1994),
essentially
C.S.,
cert.
the same as what
her
U.S.
1114,
909,
115 S.Ct.
Forty ago, Judson University at the
Professor Law Cali-
fornia, Berkeley, York New Uni- Law,
versity School wrote about indirect
hearsay, objectionable
While the character of hearsay] evidence seems ob-
[“indirect” enough, it will be observed ...
vious hearsay objection frequently
how
has in the trial been brushed aside
courts, and, how the also
courts, infrequently, have fumbled relatively simple
what seems to be a
problem of law. evidence Falknor, Hearsay,
Judson F. “Indirect” (1956). In my Law
Tulane Review
own is a con- experience, difficult persons and
cept many indirect hear- reason
say even more so. see no
make even difficult concept more which is irreconcilable
reaching decision give case law now Our will Schaffer. guidance to contradicting lower courts
analyzing Such con- into
fusion need not introduced our be
jurisprudence. I dissent.1 *9 dismisses, granted we all explana- ously indicated that majority without tion, grounds for appellant’s petition. review. grounds four A check Ante, petition discretionary his that we paperwork indicates the relevant review, appellant presented grounds for five two, ground granted only the indirect granted petitions for dis- review. The list of issue. April cretionary errone- review for