Buckley v. State , 1988 Tex. App. LEXIS 1562 ( 1988 )

GRANT, Justice.

Donald Whitfield Buckley, Sr. was convicted by a jury of the offense of aggravated sexual assault. The jury assessed punishment at ninety-nine years confinement in the Texas Department of Corrections. Buckley appeals this conviction.

In his sole point of error, Buckley maintains that the trial court erred in admitting evidence pursuant to Article 38.072 of the Texas Code of Criminal Procedure because this statute violates his constitutional right to confront his accuser as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 1, § 10 of the Texas Constitution.

During the 1986-87 school year, the alleged victim lived in Daingerfield with Buckley, who is her father, and her two brothers, ages seven and nine. The children’s mother had not lived with them since the alleged victim was three years old. The alleged victim was then eight years old and had completed the second grade. Shortly after school ended, about May 29, 1987, the alleged victim’s oldest sister, Dianne Lillie, visited her younger sister and brothers in Daingerfield, and the alleged victim went to live with her. After living with her sister about one week, the alleged victim related facts which gave rise to this prosecution, and it is this statement by the alleged victim to Lillie which gives rise to the questions on appeal.

The statute in question, Article 38.072 provides 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 a child 12 years of age or younger:

(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);

(2) Section 25.02 (Incest);

(3) Section 25.06 (Solicitation of a Child, added by Chapter 413, Acts of the 65th Legislature, Regular Session, 1977); or

(4) Section 43.25 (Sexual Performance by a child).

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 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 the 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.

Tex.Code Crim.Proc.Ann. art. 38.072 (Vernon Supp.1988).

Before any evidence was presented to the jury, the trial court extensively questioned the child alleged to have been the victim. The child was then placed under oath and was questioned outside the presence of the jury by the district attorney and the attorney for the defendant. Dianne Lillie was then called as a witness outside the presence of the jury and was questioned by the attorneys for both sides.

The State opened its presentation of evidence to the jury by calling Lillie as its first witness. Her testimony before the jury included the following:

A She told me that my dad was spreading her legs open, putting his tee tee in her tee tee.

Q Could you speak up a little bit. She said what?

A She said that my father was spreading her legs open and putting his tee tee in her tee tee.

Q Have you known [the victim] ever since she was born?

A Yes, sir.

Q Have you lived with her or visited periodically on a more or less regular basis?

A Yes, sir.

Q Are you familiar with the kind of terms that she may use to describe the private parts of the body?

A Yes, sir.

Q Do you know what she would have meant in Buckley family parlance by tee tee?

A Yes, sir.

[[Image here]]

Q Would you answer the question please, Dianne. What did tee tee mean in Buckley family parlance?

A Penis and vagina.

Q And she stated that your father, the Defendant in this case, he put his tee tee in her tee tee?

A Yes, sir.

[[Image here]]

Q Did she state whether she’d been hurt in this incident?

A Yes, sir.

[[Image here]]

Q Your answer, ma’am?

A Yes, sir.

Q She stated that she had been hurt? A Yes, sir.

[[Image here]]

Q Dianne, you’ve been talking about something that [the victim] told you in your visit to the home right at the end of the school year.

A Yes, sir.

Q In that conversation with [the victim] did she mention to you whether your dad had threatened her.

[[Image here]]

A Yes, sir.

Q What exactly did she tell you.

[[Image here]]

A She said that he told her not to tell anybody about it.

Q Did she say whether she understood anything was going to happen if she did.

[[Image here]]

A She said that it scarred (sic) her.

Q Did you understand whether she meant that she felt anything was going to happen to her if she told?

[[Image here]]

Q What exactly did [the victim] tell you regarding any threats that ihay have been made?

[[Image here]]

A She told me that she was scared, because she thought that he would do what he was doing and hurt her worse. Q When did she make this statement to you?

A Almost a week after she was staying with me.

Q Did she start staying with you right after school was out?

A Yes, sir.

Q Do you remember about the date that she would have made the statement to you?

A About the 5th of June.

[[Image here]]

Q Did [the victim] tell you when it was that this incident occurred?

A Yes, sir.

Q When did she say it occurred.

[[Image here]]

A The last day of school.

Q Did you understand that to be about a week before she told you?

A Yes, sir.

Q Did you understand where this is supposed to have occurred?

A Yes, sir.

[[Image here]]

Q Okay. Did [the victim] tell you whether this incident happened in a public place, a car, somebody’s home or any specific place?

A Yes, sir.

Q What did she tell you?

A It was in her home.

Q That being the Buckley home in Morris County?

A Yes, sir.

After Lillie’s testimony, the State called Dr. Colton Bradshaw. He testified that for the purpose of medical diagnosis, the child, who was the alleged victim, told him that “he [her father] would sometimes pull her legs apartment (sic) and lie very close to her, sometimes — and she hesitated and then I asked sometimes does he go inside your body and her answer was yes.” The doctor further testified that his physical examination of the alleged victim found indications which were consistent with the child’s statement to him. The State then called the alleged child victim, and she testified that her father, Buckley, sexually assaulted her.

Buckley contends that Article 38.072 of the Texas Code of Criminal Procedure is unconstitutional for the same reason that the Court of Criminal Appeals declared Article 38.071 of the Code of Criminal Procedure unconstitutional in Long v. State, 742 S.W.2d 302 (Tex.Crim.App.1987). However, we find that the basis upon which the Court of Criminal Appeals declared Article 38.071 unconstitutional in the Long case is not applicable to Article 38.072 in the present case.

Although this type of statement is not a well-rooted exception to the hearsay rule to show the truth of the matter stated, at least twenty-seven states had enacted some form of the child-victim hearsay exception as of May, 1987.¹ J. Myers & N. Perry, Child Witness Law and Practice § 5.38 (Supp.1988), citing R. Eatman & J. Bulkley, Protecting Child Victim/Witnesses: Sample Laws and Material 51 (1986), as reported by the American Bar Association’s National Center for Child Advocacy and Protection. In the case of In re Marriage ofP.KA., 725 S.W.2d 78 (Mo.Ct.App.1987), the court, upon finding that a child’s statement did not fit within any of the hearsay exceptions, created a hearsay exception for the statements of children. The Texas Legislature created such an exception by the passage of Article 38.072 of the Code of Criminal Procedure.

The Bill Analysis of 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-court 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.

There are significant distinctions between the statutory provisions in Article 88.071, which the Court of Criminal Appeals found to be unconstitutional in Long v. State, supra, and Article 38.072, and there are also significant distinctions between the facts in the present case and the facts in Long v. State. In Long, the State in its case-in-chief did not call the child who was the alleged victim, but instead showed the jury a videotaped interview with the child. In the interview, the child was asked questions by a state employee trained in handling child abuse cases, but the defendant was denied the opportunity for a contemporaneous cross-examination of the child. The State later called the child in person on rebuttal. This differs significantly from the situation in the present case. First, the hearsay presentation does not have the impact of presenting the child witness through a visual electronic medium. Second, the State did not have a representative asking the child questions when the child made these initial statements, but the child spontaneously told her older sister of the occurrence. Third, the State called the child in the case-in-chief to verify the making of the statements and to allow cross-examination.

What the Court of Criminal Appeals condemned in Long was a statute (Article 38.-071) that was constitutionally unacceptable, because it was not “individualized to a particular prosecution and on its face and in its operation [it] assumes that confrontation in a particular class of cases will produce unnecessary trauma.” The court in Long cited Globe Newspaper Company v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), and Allen v. State, 700 S.W.2d 924 (Tex.Crim.App.1985), with approval for the principle that each case has to be judged on “its own merits, otherwise the statute would be unconstitutional.” The failure to judge each case on its own merits was what the court found to be “the constitutional deficiency that plagues Article 38.71.”

The necessity of approaching each case to determine the applicability of the statute is preserved in Article 38.072, § 2(b)(2). The trial court found, in a hearing conducted outside the presence of the jury, that the statement was reliable. Such a finding is specifically required by the statute before this testimony becomes admissible.

This statutory provision gives the trial court the opportunity to determine if the testimony reaches the level of reliability required to be an exception to the hearsay rule. Indicia of reliability that the trial court may look to include (1) whether the victim testifies at the trial and admits making the out-of-court statement; (2) whether the child is of a level of maturity to understand the need to tell the truth and to have the ability to observe, recollect, and narrate; (3) whether the child’s out-of-court statement is corroborated by other evidence; (4) whether the child’s out-of-court statement was spontaneously² made in the child’s own terminology or whether there is evidence of prior prompting or manipulation by adults; (5) whether the child’s out-of-court statement is clear and unambiguous and rises to the needed level of certainty; (6) whether the statement is consistent; (7) whether the statement describes an event that a child of his or her age could not be expected to fabricate; (8) whether there is abnormal behavior by the child after the contact; (9) whether there is a motive for the child to fabricate the out-of-court statement; (10) whether the statement is against the interest of the child, e.g., the child expects punishment because of reporting the conduct; and (11) whether there was an opportunity under the evidence for the alleged act to have been committed by the defendant. We find that at the time the evidence was offered the record is sufficient for the trial judge to have found most of the foregoing factors in support of reliability; and that the evidence in its entirety supports a finding of all of these factors.

The Court of Criminal Appeals in the Long case was critical of placing the defendant in the position of having to incur the wrath of the jury by calling the child to testify.³ Article 38.072, § 2(b)(3) requires that the child be available to testify in order for the out-of-court statement to be admissible. In the present case, the child was present and was called by the State to testify during the State’s case-in-chief.

We do not find Article 38.072 to be unconstitutional as applied to this case, and therefore, the judgment of the trial court is affirmed.

1 . Such testimony is admissible under Tex.Code Crim.Proc.Ann. art. 38.07 (Vernon Supp.1988) and is required under that section to corroborate the testimony of the victim in certain circumstances. However, outcry testimony under Article 38.07 is admissible only to show that the complaint was made and the nature of the complaint, not to prove that the sexual attack occurred. Grogan v. State, 713 S.W.2d 705 (Tex. App.-Dallas 1986, no pet.); Brown v. State, 649 S.W.2d 160 (Tex.App.-Austin 1983, no pet.).

The court implies in Long that the videotaped statement is not a well-recognized exception to the hearsay rule by stating the following parenthetically: “[UJnderstandably, the State does not argue or even suggest that [a well-recognized exception to the hearsay rule] is a basis for approving the statute.”

In State v. Slider, 38 Wash.App. 689, 688 P.2d 538 (1984), the Washington Court of Appeals determined that because the child sexual abuse exception is not a "firmly rooted" hearsay exception, particularized guarantees of trustworthiness are required for admissibility. The court concluded that a higher standard of reliability is required as a substitute, because this exception does not fall with the traditional hearsay exceptions.

The only way that this evidence could qualify under the exceptions in Tex.R.Evid. ,803 is if it could qualify as a present sense impression, an excited utterance, a statement made for the purposes of medical diagnosis and treatment, or as a statement made against interest. It cannot qualify under Rule 803 merely on the basis of being an outcry.

2 . "A child victim’s spontaneous out-of-court account of an act of sexual abuse may be highly credible because of its contents and surrounding circumstances; young children, having no sexual orientation, do not necessarily regard a sexual encounter as shocking or unpleasant and frequently relate such incidents to parent or relative in matter-of-fact manner.” State v. D.R., 109 N.J. 348, 537 A.2d 667 (1988).

3 . The Georgia Supreme Court upheld a similar statute and met the problem oi cross-examination by requiring the trial court to adopt the following procedure:

Before the state rests, the court shall, at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child.

Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987).

The Texas Rules of Evidence for both civil and criminal cases did not adopt Rule 614 of the Federal Rules of Evidence which allows the court to call witnesses.