Aрpellant, David Hollinger, appeals a jury conviction for aggravated sexual assault of a child, in which his punishment was assessed at life imprisonment. Appellant contends that the court erred when it allowed a child to testify who was not a competent witness and when it аllowed an “outcry” witness to testify under Article 38.072 of the Texas Code of Criminal PROCEDURE. Appellant also challenges the sufficiency of the evidence to support his conviction. We will affirm.
The victim, (“C.L.”), was a three year old boy at the time of the alleged assault. On June 10,1992, C.L.’s parents wеre scheduled to meet with a home rental agency. C.L.’s mother, (“Karla”), asked her sister, who was also Appellant’s mother, to look after C.L. Appellant had been diagnosed as a pedophile and had previously been convicted for sexually assaulting children. As а result, Karla asked Appellant’s mother to make sure that Appellant was not at home while C.L. was present. Later that afternoon, Karla telephoned her sister. Appellant answered the phone and informed Karla that his mother was not there. Karla testified thаt Appellant sounded upset and asked her to come get C.L. When Karla arrived at Appellant’s house, Karla’s sister and brother-in-law were both present.
Approximately three hours later, Karla was changing C.L.’s diaper and noticed that the child’s rectum was red and irritatеd. C.L. told his mother that his rectum was “hurting” him, and that “[the Appellant]” did it. C.L. then described to her the sexual activities that Appellant had performed on him. C.L. told his mother that Appellant tried to put Appellant’s “dick” into C.L.’s “bottom,” that Appellant put Appellant’s *37 “weenie” into C.L.’s mouth, and that Aрpellant put C.L.’s “weenie” into Appellant’s mouth. C.L. also told his mother that Appellant threatened that he would kill C.L. if he told anyone.
Karla immediately went to the Smith County Sheriffs Department and filed a report. Afterwards, Karla took her son to the emergency room at Mothеr Francis Hospital for an examination.
Dr. James Ryder, the emergency room doctor, testified that C.L.’s anus was red and enlarged. Dr. Ryder also testified that C.L. told him that Appellant hurt his bottom and put a gun to his head and threatened to shoot him. Based upon the information given Dr. Ryder by C.L. and Karla, Dr. Ryder concluded that C.L. had been sexually assaulted. However, Dr. Ryder also admitted under cross-examination that there could have been other explanations for his findings.
C.L. testified, but his testimony was confusing. He stated that it was a “cop last night that hurted” his bottom. C.L. also told the jury that Aрpellant had shot him in his face and on his bottom with a BB gun. On cross-examination, C.L. said that Appellant had shot him with a water pistol.
Karla testified as an outcry witness pursuant to Article 38.072 of the Texas Code of CRIMINAL PROCEDURE. See Tex.Code Crim. ProoAnn. Art. 38.072 (Vernon Supp.1994). She told the jury the statements that C.L. had made to her shortly after they returned from Appellant’s home.
Appellant’s mother testified that she was at the house with Appellant and C.L. at the time the sexual assault allegedly occurred. She stated that Appellant was never alone with C.L., and that C.L. never complained that Aрpellant had hurt him in any way. She stated that Appellant’s air pistol was in the pawn shop when the incident happened to C.L. and that there were no water pistols at her house.
Dr. Charles Fries, a clinical psychologist, also testified. Dr. Fries had fourteen years experiеnce in child sexual abuse cases and explained to the jury the dynamics of pedophilia. He stated that “butt” and “dick” were generally foreign to a three-year-old’s vocabulary. Therefore, it was Dr. Fries’ opinion that C.L.’s statements to his mother about what Appellant had done to him was the truth. Dr. Fries also stated that it was not unusual for a child to have problems recalling specific facts about an incident that occurred over ten (10) months before as C.L. did in this case.
Appellant was the last witness who testified. Appellant denied that he sexually assaulted C.L.
First, we will address Appellant’s third and fourth points of error in which he challenges the sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence on appeal, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia,
Outcry testimony that is admitted in accordance with Article 38.072 is admitted as an exception to the hearsay rule and is considered substantive evidence, admissible for the truth of the matter asserted. Tex. Code CrimProcANN. art. 38.072 (Vernon Supp.1994);
Rodriguez v. State,
In his first and fifth points, Appellant contends that the trial court abused its discretion when it permitted C.L. to testify. Appellant argues that C.L. was not competent to testify because of his age and lack of understanding of the oath. He also arguеs that the court erred when it allowed C.L. to testify without taking an oath to tell the truth.
The determination of a trial court that a child witness is competent to testify is reviewable by an abuse of discretion standard.
Reyna v. State,
In this case, the trial court held a competency hearing to determine whether to permit C.L. to testify. C.L. was four years of age at the time of trial, and he was three years of age when the alleged еvent occurred. C.L. correctly answered the court’s questions concerning his family, his name, and his birthday. C.L. acknowledged that he knew the difference between telling a he and telling the truth, and stated that it was good to tell the truth. Although he did not give details of the alleged assault, C.L. identified Appellant as the one who “hurted” him. C.L. also stated that he remembered telling his mother a long time ago that Appellant had hurt him.
Appellant admits that C.L. was able to accurately relate some facts; however, Appellant points out that C.L. was confused when he was asked to identify colors. C.L. also said that he did not get into trouble if he told a lie and told the court that Appellant shot him with a water pistol. Although the judge observed that “[C.L.] was really not very old to have an independent recollection of what happened last June,” the judgе allowed C.L. to testify without taking an oath and instructed the jury to consider his testimony.
Rule 601 of the Texas Rules of CRIMINAL Evidence provides, in pertinent part:
(a) every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall bе incompetent to testify in any proceeding subject to these rales:
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(2) Children. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.
Tеx.R.Crim.Evid. 601 (Vernon Supp.1990). This Rule creates a presumption that a person is competent to testify.
Rodriguez v. State,
Next, we address Appellant’s concern about the court’s failure to require C.L. to be sworn under the oath. A child does not have to takе the oath.
Gonzales v. State,
By his second point of error, Appellant contends that the trial court erred in permitting the victim’s mother to testify about the “outcry” statement of the victim, under Article 38.072 of the Texas Code of CRIMINAL PROCEDURE. Appellant argues that Karla’s statement would be “hearsay,” and therefore inadmissible, because the child was incompetent and not “available” to testify. Thus, Appellant reasons that the State failed to meet the preliminary admissibility requirements of Article 38.072. Appellant has cited no authority for his position on this point; therefore, under Texas Rule of Appellate PROCEDURE 74(f), we cоnsider the issue waived. However, in the interest of justice, we will address the issue and determine whether the trial court abused its discretion.
Article 38.072 applies only to certain categories of offenses under Chapter 21 of the Texas Penal Code when an offense is committed against a child who is twelve years of age or younger. Tex.Code Crim. ProcAnn. Art. 38.072 (Vernon Supp.1994). The Article further 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 сommitted; 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 hearsаy rule if:
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(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.
Tex.Code CrimProcAnn. Art. 38.072 (Vernon Supp.1994). The purpose of Article 38.072 is to allow the State to introduce testimony which would otherwise be inadmissible hearsay.
Long v. State,
*40 At the hearing, the trial court determined the child’s statement was reliable based upon time, context, and circumstanсes. It took into consideration the child’s age, the condition of the child’s anus just a few hours after leaving Appellant’s house, and the child’s spontaneous use of words that described the acts that had occurred to him, and most importantly, the credibility of the child’s mother. After the trial court found that the victim was competent to testify and that the child was “available” to testify, C.L. did testify and was cross-examined. C.L.’s testimony was vague and contradicted his previous statements concerning Appellant’s inappropriateness with him. Even though his testimony was not hаrmonious with the earlier outcry statement that C.L. had made to Karla right after the incident, we believe that C.L. testified to the best of his ability, and conclude that C.L. was still “available” to testify. Therefore, all of the requirements of the outcry statute were met. We hold that the trial court did not abuse its discretion. Appellant’s second point of error is overruled.
The judgment of the trial court is affirmed.