in the Interest of E. D. ( 2004 )

Affirmed and Memorandum Opinion filed February 5, 2004

Affirmed and Memorandum Opinion filed February 5, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00007-CV

____________

IN THE INTEREST OF E.D.  

On Appeal from the County Court at Law No. 1

Galveston County, Texas

Trial Court Cause No. 02JV0046

M E M O R A N D U M O P I N I O N

Appellant E.D. appeals his conviction for delinquent conduct, namely aggravated sexual assault of a child younger than the age of fourteen.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.4.  We affirm.

A bifurcated jury trial was conducted on October 29-31, 2002.  After determining appellant=s guilt, the trial court rendered a determinate sentence of fifteen years and ordered him committed to the custody of the Texas Youth Commission. This appeal followed.

In his sole issue presented for review, appellant argues that the trial court erred in admitting the videotape containing testimony by E.C. (Acomplainant@) identifying appellant as the perpetrator.  We review a trial court=s decision to admit evidence for abuse of discretion. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 2003).  We will not reverse that decision unless it falls outside the zone of reasonable disagreement.  Id.

Appellant claims that the videotaped testimony is not admissible under the hearsay exception for prior consistent statements because the videotape was not made until after the allegedly improper motive arose, citing Turro v. State, 950 S.W.2d 390 (Tex. App.CFort Worth 1997, pet. ref=d) and Haughton v. State, 805 S.W.2d 405 (Tex. Crim. App. 1990).  Under Rule 801(e)(1)(B) of the Texas Rules of Evidence, a party may introduce a prior consistent statement if the declarant testifies at trial and is subject to cross-examination, and the statement Ais offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.@  The record reflects that this requirement was satisfied.

During appellant=s cross-examination of complainant, the following exchange occurred:

Q:      When was the last time that you and your mom have talked about what happened that night?

A:      I don=t remember.

Q:      Was it a few days ago or was it a long time ago?

A:      I think a week ago.

Q:      Did your mom tell you what to say or not to say?

A:      Yes.

Q:      Did your mom tell you to make sure to blame [appellant], that he=s the only one that did this?

A:      No.

Q:      What did your mom tell you to say?

A:      She just said to tell the truth, nothing but the truth.

This exchange makes clear appellant=s attempt to show that complainant=s testimony at trial had been influenced by her mother.  The videotape was offered by the State to rebut the charge of improper influence and was made on November 20, 2001Cwell before the conversation between complainant and her mother took place in October 2002.  Therefore, the trial court did not err in admitting complainant=s videotaped testimony.  Accordingly, appellant=s sole issue presented for review is overruled.

The judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed February 5, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.