David Lynn Ratliff v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-262-CR





DAVID LYNN RATLIFF,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 43,741, HONORABLE JOE CARROLL, JUDGE PRESIDING

PER CURIAM

After accepting appellant's guilty plea and hearing his judicial confession, the district court found him guilty of aggravated sexual assault and assessed punishment at imprisonment for thirty years. Act of May 26, 1987, 70th Leg., R.S., ch. 573, § 1, 1987 Tex. Gen. Laws 2275, amended by Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, § 1, 1987 Tex. Gen. Laws 80 (Tex. Penal Code Ann. § 22.021, since amended). Appellant's only point of error is that the court erred by overruling his objection to hearsay testimony.

A police officer interrupted appellant in the act of sexually assaulting his six-year-old daughter in the front seat of a car. Over appellant's hearsay objection, the officer testified that the child told him that "her daddy was running his wiener on my tutu." We believe the district court properly admitted the girl's statement as an excited utterance. Tex. R. Crim. Evid. 803(2). Moreover, we are satisfied that any error in the admission of the evidence was harmless. In his own testimony, appellant admitted that he attempted to engage in sexual intercourse with the victim. Appellant also acknowledged his prior convictions for burglary and driving while intoxicated and a previous arrest for kidnapping and rape. We find beyond a reasonable doubt that the error, if any, in admitting the child's hearsay statement did not contribute to the punishment assessed. Tex. R. App. P. 81(b)(2).

The judgment of conviction is affirmed.

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: November 9, 1994

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