In re Z.L.B. , 56 S.W.3d 818 ( 2001 )

OPINION

Opinion By

Justice MORRIS.

In a hearing before the court without a jury, the trial court found that Z.L.B., a juvenile, engaged in delinquent conduct by committing indecency with a child. In four issues presented on appeal, appellant contends the evidence was legally and factually insufficient to support the trial court’s adjudication, the trial court erred by admitting hearsay evidence that did not meet the statutory prerequisites for outcry testimony, and the trial court erred in denying appellant’s motion to suppress his written confession. Although we conclude the evidence is legally sufficient to support the trial court’s delinquency adjudication, we conclude the trial court erred by admitting into evidence the proffered hearsay testimony. We also conclude the error requires reversal. Accordingly, we reverse the trial court’s adjudication and remand for a new trial.

Appellant, twelve years old at the time of the alleged offense, was accused of engaging in sexual contact with his little brother with the intent to arouse and gratify his own sexual desires. See Tex. Pen.Code Ann. §§ 21.01(2), 21.11(a)(1) (Vernon 1994 and Supp.2001). Appellant complains in his second issue that the evidence was legally insufficient to support his adjudication. He specifically contends the evidence does not show that he engaged in sexual contact with his brother or, alternatively, that the evidence does not show he engaged in the contact with the intent to arouse or gratify his sexual desires. Adjudications of delinquency are based on the criminal standard of proof. See Tex. Fam.Code Ann. § 54.03(f) (Vernon Supp.2001); In re L.M., 993 S.W.2d 276, 284 (Tex.App.—Austin 1999, pet. denied). Therefore, we review the legal sufficiency of the evidence in adjudication of delinquency cases by applying the standards applicable to legal sufficiency challenges in criminal cases. See L.M., 993 S.W.2d at 284; see also C.D.F. v. State, 852 S.W.2d 281, 284 (Tex.App.—Dallas 1993, no writ). We examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In this case, appellant stated in a written confession that he had pulled down his brother’s pants and touched his brother’s “private” four or five times in a closet and in a living room. He also stated that he felt bad about what he had done. The director of the brother’s daycare center testified as well. She stated that appellant’s brother told her appellant was “touching his privates” and he wanted it to stop. On hearing that allegation, she contacted Child Protective Services, but the brother was “close-mouthed” with the police when the officer attempted to talk with him. At that time, the daycare director let the matter drop.

The daycare director next testified that appellant’s brother later made a second claim that appellant was touching his “privates.” When he said “privates,” he pointed to his genital area. She asked him to indicate on her hand how appellant was touching him, and he rubbed “up and down” on her hand saying, “this is what he’s doing to my privates.” He also asked her to call the police so he could tell them what had happened. Afterward, he spoke with a police officer at the daycare center. At trial, appellant’s five-year-old brother claimed he had lied when he told the police officer that appellant had touched his private part.

Both the daycare director’s testimony and appellant’s confession show that he engaged in sexual contact; thus, the evidence is legally sufficient on this issue. Moreover, when viewed in the light most favorable to the trial court’s ruling, evidence of the specific touching (supported by the facts that appellant engaged in some of the conduct hidden in a closet and both he and his brother felt bad about it) is legally sufficient to prove appellant had the requisite intent. See C.F. v. State, 897 S.W.2d 464, 472 (Tex.App.—El Paso 1995, no writ). Accordingly, appellant’s contention that the evidence is legally insufficient is not well taken.

In the third issue presented, appellant contends the trial court erred by admitting hearsay evidence that did not qualify as outcry testimony. The family code allows the admission of outcry testimony, as an exception to the hearsay rule, in the adjudication of delinquency for certain sexual or assaultive offenses committed against children who are twelve years old or younger. See Tex. Fam.Code Ann. § 54.031(a) (Vernon 1996). The statute applies only to statements made (1) by the child who is the alleged victim of the violation and (2) to the first person, eighteen years old or older, to whom the child “made a statement” about the violation. Id. § 54.031(b). To qualify as admissible outcry testimony, a child’s statement must “describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse.” Sims v. State, 12 S.W.3d 499, 500 (Tex.App.—Dallas 1999, pet. ref'd) (discussing outcry statements admissible under substantially similar provision in code of criminal procedure).

At trial, the State called the daycare director to testify. The director first testified, without objection, about the brother’s initial allegation of sexual contact. The day after the initial statement, the daycare director called Child Protective Services. She took no more action, and the brother refused to talk to the police.

When the daycare director testified about the brother’s second claim of sexual abuse, appellant objected that the daycare director was not the first person appellant’s brother had told about the alleged sexual contact. After the defense attorney referred to an affidavit by the daycare director in which she said appellant’s brother had told his mother about the alleged sexual contact, the trial judge placed the burden of proving non-compliance with the outcry statute on appellant. He instructed the defense, “To the extent that you are able to establish at some later point that this wasn’t an outcry statement, that it wasn’t a first statement made, then I will deal with that. And if I need to, I will disregard it.” The State conceded that appellant’s brother first had told his mother about the offense. The prosecutor, however, claimed the mother “did nothing about” the allegations and was “adverse to the State.” The prosecutor argued, “Case law tells us that if that first person does not believe or does not take any action, ... then the outcry witness is the first person who does do something, and that is [the daycare director].” The State now argues on appeal that a different outcry witness may testify when the “original outcry witness is disqualified, unavailable, or has become adverse to the State’s case.” See Foreman v. State, 995 S.W.2d 854, 859 (Tex.App.—Austin 1999, pet. ref'd) (holding that “first person” means the first adult who can remember and relate the child’s statement at trial in a discernible manner that describes the alleged offense); Anderson v. State, 831 S.W.2d 50, 53-54 (Tex.App.—Fort Worth 1992, pet. ref'd) (holding that the trial court did not abuse its discretion in finding that the mother of the complainant was not the outcry witness in the case because evidence showed she had denied the complainant had told her about any offense and she was a potential additional defendant for the offense).

Appellant clearly objected that the daycare director’s testimony about her second conversation with appellant’s brother was inadmissible because it did not meet the outcry exception to the hearsay rule. This timely objection preserved appellant’s complaint for appeal. See Tex.R.App. P. 33.1. The State, faced with appellant’s timely objection and as the proponent of the hearsay evidence, had the burden of establishing compliance with the mandatory provisions of the outcry statute to render the testimony admissible. See Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.—Houston [14th Dist.] 1996, pet. ref'd); see also Long v. State, 800 S.W.2d 545, 547 (Tex.Crim.App.1990). Even if we assume the State’s characterization of the law is correct, it offered no evidence to meet this burden. Only after appellant’s objection had been overruled did the State elicit testimony from the daycare director that she learned during the first allegation that the brother had told his mother about the sexual contact and she had done “nothing.” Moreover, the fact that the mother failed to act is not evidence supporting the State’s current claim that appellant’s mother was disqualified, unavailable, or adverse to the State’s case.

If the prosecutor intended her argument at trial to be an offer of proof, she needed to supplement it with a specific summary of the evidence showing the mother was an improper outcry witness. See Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App.1998). She did not do so. By failing to counter appellant’s objection with evidence showing appellant’s mother could not be the outcry witness, the State failed to meet its burden of establishing compliance with the outcry statute. In effect, the State failed to establish the daycare director was a qualified outcry witness. Therefore, the trial court erred by admitting the daycare director’s hearsay testimony. We must now determine whether appellant was harmed by the error.

Improper admission of hearsay evidence is non-constitutional error. See Couchman v. State, 3 S.W.3d 155, 160 (Tex.App.—Fort Worth 1999, pet. ref'd); see also Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). Therefore, if the error did not affect appellant’s substantial rights, it must be disregarded. See Tex.R.App. P. 44.2(b); see also In re C.R., 995 S.W.2d 778, 785 (Tex.App.—Austin 1999, pet. denied). To make this determination, we must decide whether the error had a substantial or injurious effect on the trial court’s finding. See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000). We must consider the entire record, including any testimony or physical evidence admitted for the fact finder’s consideration, the nature of the evidence supporting the finding, the character of the alleged error, and how the alleged error might be considered in connection with other evidence in the case. See id.

The primary evidence supporting appellant’s conviction consisted of his confession (which was the statement of a twelve-year-old boy who was questioned without a parent present) and the hearsay testimony of the daycare director. Although appellant’s confession admitted he had engaged in sexual contact with his younger brother and felt bad about it, the daycare director’s testimony about her second visit with appellant’s brother is the only proof in the record showing the actual way appellant touched his brother, indicative of appellant’s intent to arouse his sexual desire. The objected-to hearsay testimony also shows appellant’s brother’s shame over what occurred, which suggests that the touching was not merely incidental. Moreover, the testimony shows that the younger brother wanted to tell the police what had happened. In effect, the testimony admitted by the trial court significantly aided the State’s case not only by graphically showing appellant’s intent, but also by controverting appellant’s brother’s later claim at trial that appellant had not engaged in sexual contact with him.

We acknowledge that even if this evidence had been excluded, evidence of the brother’s first allegation of sexual contact made to the daycare director still would have been before the fact finder. Thus, the evidence in the second statement that appellant was touching his brother’s “privates” was made harmless by the same evidence in the first statement. See Leday v. State, 983 S.W.2d 713, 715-17 (Tex.Crim.App.1998). Nevertheless, the second statement contained probative evidence not contained in the first statement. Only the second hearsay statement revealed the manner of touching, where the touching occurred, and the fact that appellant’s younger brother wanted to tell the police what had happened. The second hearsay statement provided the only fact in the record establishing an element of the offense — appellant’s intent to arouse his sexual desire.¹ Because the erroneously admitted statement “covered different ground,” the fact that the brother’s earlier allegation made to the daycare director was admitted into evidence without objection does not render the entire statement harmless. See Gay v. State, 981 S.W.2d 864, 867 (Tex.App.—Houston [1st Dist.] 1998, pet. ref'd). We reject the dissent’s characterization that the evidence admitted concerning the first conversation was substantially similar to the daycare center director’s testimony, admitted over objection, concerning the second conversation.

We conclude the erroneous admission of the daycare director’s testimony concerning the second statement by appellant’s brother, which established appellant’s intent to arouse his sexual desire, affected appellant’s substantial rights. Therefore, we resolve appellant’s third issue in his favor. Because of our disposition of the third issue, it is unnecessary for us to address the remaining issues.

We reverse the trial court’s judgment and remand the case for a new trial.

1 . Although the record also contained evidence that appellant engaged in some of the conduct hidden in a closet and he felt bad about it, these facts by themselves do not prove appellant’s intent.