Martinez, Charles Eugene

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.

PD-1654-04

CHARLES EUGENE MARTINEZ, Appellant

v.

THE

STATE OF TEXAS

ON APPELLANT = S PETITION FOR DISCRETIONARY REVIEW

FROM

THE TENTH COURT OF APPEALS

BRAZORIA COUNTY

Cochran, J. ,

delivered the opinion of the unanimous Court.

O

P I N I O N

Appellant was convicted of indecency

with a child and sentenced to ten years = imprisonment and a fine of

$15,000. On appeal, he argued that the

trial court erroneously admitted the hearsay testimony by the complainant = s mother as a victim outcry

statement. The court of appeals affirmed

appellant = s conviction, [1]

and we granted review to determine if the testimony was properly admitted under

Article 38.07 of the Texas Code of Criminal Procedure. [2] Because the hearsay statements made by

complainant = s mother were erroneously admitted,

we reverse the judgment of the court of appeals and remand the case for that

court to decide whether the admission of that hearsay was harmful error.

I.

Appellant was charged with three

counts of indecency with Ashley, a child younger than seventeen years of age. [3] At trial, the State = s evidence showed that appellant ran

Mustang Christian Ranch, a work ranch for troubled teens. The State presented two witnesses to prove

these indecency charges: Ashley = s mother and Ashley herself. According to the testimony of her mother,

Ashley, who was thirteen years old, was sent to the Mustang Christian Ranch for

a two-day period in January of 2001.

Ashley = s mother testified that after Ashley

came home from the ranch, she was A belligerent @ and A angry. @

The prosecutor then asked Ashley = s mother to repeat what Ashley had

told her about appellant = s actions. Appellant

promptly objected to the questioning of Ashley = s mother regarding these hearsay

statements. While the trial judge

allowed the prosecution to continue its line of questioning, he remarked that

he would not allow the admission of hearsay statements. However, as the prosecutor continued to

question Ashley = s mother regarding Ashley = s statements B and appellant continued to object to

the admission of hearsay evidence B the court began to overrule appellant = s objections and to allow Ashley = s mother to relate the out-of-court

statements made by Ashley. [4] Finally, the court instructed the jury that

while hearsay testimony was generally inadmissible, it was admissible if the

statement was the initial outcry of a victim of sexual molestation. [5] The trial court then allowed Ashley = s mother to testify regarding the

content of Ashley = s outcry statement to her.

Appellant again objected, stating, A I do not believe it = s permitted under the rules, under

the facts of this case, just for the record. @

The trial court again overruled appellant = s objection, and asked the witness to

repeat what Ashley told her verbatim.

Ashley = s mother did so:

She had said that he had come in while she was

sleeping. I believe that was Saturday

night. And had started running his hand

up her blouse. She said she started

coughing to try to wake somebody or try to get him to move. And that he finally did later on get up and

go out of the room. When I asked her if

she knew it was him, she told me that there was a mirror that was standing

there, and as he got up, she saw his reflection off of it. . . . She said the

next day Mr. Martinez sent people out B the

boys out to go to work. He said he

wanted to talk to her about her behavior. . . . She told me that at that point

she was asked to sit on the bed. Mr.

Martinez sat on the bed with her, and asked her something to the effect of,

would you let a boy do this, and he put his hand underneath her blouse. . . .

And then she said that he got on top of her, or forced her to get on top of

him. And she said that the whole time

she was wanting to get up, but she couldn = t. He was holding her down and rubbing up

against her.

Ashley took the stand immediately

after her mother. Her in-court rendition

of the events was very similar to the version that Ashley had told her

mother. On direct examination, Ashley

testified that during the first night of her stay, she awoke to find her A hand was rubbing on [appellant = s] leg, @ and later that night she A felt him rubbing inside [her] shirt. @

She said that, during the following afternoon, appellant again A put his fingers between the buttons @ of her shirt, and asked her if she A would let a guy do that to [her]. @

Appellant then forced Ashley to lie on the bed, and he A got on top @ of her and began A rubbing his genitalia against [her]

genitalia. @

She stated that appellant then left the room to answer the telephone,

but returned and A grabbed [her] and put [her] on top of him. @

Ashley stated that appellant continued to hold her on top of him and A move up and down @ until he heard his wife walk in the

door.

Based upon this evidence, the jury

convicted appellant and sentenced him to ten years = imprisonment. Appellant argued on appeal that the trial

court = s admission of Ashley = s hearsay statements made to her

mother was improper under Article 38.072 of the Texas Code of Criminal

Procedure [6]

because at the time of the events Ashley was thirteen years old, and Article

38.072 applies only to children twelve years of age or younger. [7] The court of appeals held that, while

appellant was correct that the statements were inadmissible under Article

38.072, they were admissible under Article 38.07. [8] Concluding that the trial court came to the

right conclusion for the wrong reason, the court of appeals affirmed the trial

court = s judgment. [9]

In a dissent, Justice Vance stated

that these hearsay statements were not admissible under either Article 38.072

or Article 38.07. [10] He argued that Article 38.07 allows otherwise

inadmissible hearsay testimony only when corroboration is required. Because Ashley was thirteen at the time of the offense,

corroboration was not required, and therefore her mother = s hearsay statements were

inadmissible. In a footnote, the dissent

also pointed out that:

Even if corroboration were required

[under Article 38.07], only the fact of the crime, and not its details, may be

admitted under this exception. When

properly admitted, the statement is not hearsay at all, since it is admitted

not for the truth of the matter asserted, but only for the fact of its utterance. See Brown v. State , 649 S.W.2d 160,

162 (Tex. App. B Austin 1983, no pet.). [11]

Because of the confusion concerning

the appropriate scope and application of Articles 38.072 and 38.07, we granted

review.

II.

Article 38.072 is a rule of

admissibility of hearsay evidence.

Article 38.07 is a rule

concerning sufficiency of the evidence. [12] These statutes serve related but entirely

distinct purposes. They are not

interchangeable. Indeed, never the twain

shall meet.

A. Article 38.072 : Hearsay Statement of a Child

Abuse Victim.

Hearsay statements, while generally

inadmissible, may be admitted under specific conditions when public policy

supports their use, and the circumstances surrounding the making of those

statements pedigree their reliability. [13] The enactment of Article 38.072 is a

legislative determination that one such specific situation is the outcry

statement of a child victim of sexual or physical abuse. [14] Because it is often traumatic for children to

testify in a courtroom setting, especially about sexual offenses committed

against them, the Legislature enacted Article 38.072 to admit the testimony of

the first adult a child confides in regarding the abuse. [15] This witness may recite the child = s out-of-court statements concerning

the offense, and that testimony is substantive evidence of the crime. [16]

However, the use of such out-of-court

statements is carefully limited. Only

those statements made to a person eighteen years of age or older qualify, and

then only if the child was twelve or younger when the abuse occurred. [17] The State must provide adequate pretrial

notice to the defendant of its intent to introduce the child outcry statement,

and it must provide the name of the outcry witness and a summary of the hearsay

statement. [18] Furthermore, the trial court must first

determine, outside the presence of the jury, that the statement is reliable A based on the time, content, and

circumstances of the statement. @ [19]

And the child must testify at trial or be available to testify. [20]

Thus, Article 38.072 is a rule of

evidence admissibility, allowing trial courts to admit some hearsay statements

in the prosecution of certain offenses against children when those statements

are made under the specified conditions.

This statute serves the societal interests of promoting the fair prosecution of child

abuse cases and of protecting children in court by allowing the admission of

their casual A street corner @ confidences to an adult as a

supplement to (or sometimes even a substitute for) [21]

what may be halting, incoherent, or traumatic in-court testimony.

B. Article 38.07: Testimony in

Corroboration of Victim of Sexual Offenses.

Article 38.07 differs from Article

38.072 in several essential respects.

While Article 38.072 assists the prosecution by making certain hearsay

outcry statements admissible, Article

38.07 protects the accused by creating a statutory corroboration requirement. [22] Its purpose is almost exactly opposite to

that of Article 38.072: this is a

defendant-protecting statute, rather than a child-victim-protecting

statute. It limits the circumstances in

which the State may obtain a conviction for sexual offenses based on the

testimony of a competent adult [23]

to situations in which: (1) the victim

made an outcry within one year of the criminal act; or (2) there is other

evidence that corroborates the victim = s testimony.

This statute may well be the

vestigial tail of an outmoded era, but it had its genesis in early opinions

from this Court. As long ago as 1896,

this Court stated that, in rape cases,

All of the authorities teach that, where a case of

this character rests solely upon the testimony of the prosecutrix, it is the

duty of the jury to scrutinize and weigh her testimony very carefully; and in

every case it is considered important as corroborative of her evidence that,

soon after the alleged rape, she made complaint of the outrage. [24]

By 1936, this judicial and societal

scepticism B perhaps based on the old adage that A Hell hath no fury like a woman

scorned @ B had evolved into a real A rule @ :

a conviction for rape by force will not be sustained

on the uncorroborated testimony of a woman who waits too long before announcing

her decision that she has been raped, unless the delay is supported by . . .

cogent reasons[.] [25]

This rule apparently evolved as a

reflection of A judicial concern that the victim had

actually consented and thus was in some sense an accomplice or akin to one. @ [26]

In 1975, the Texas Legislature set

out to abolish the judicially created corroboration requirement, but instead

ended up enshrining it in Article 38.07. [27] Nonetheless, the general legislative purpose,

both in 1975 and in later amendments, was to make conviction in rape cases

easier to obtain by reducing the impact of the traditional, judicially created

corroboration requirement. [28]

Thus, Article 38.07 requires the

State to offer some [29]

corroborative evidence, such as eyewitness testimony, a defendant = s admissions, medical testimony, or

other circumstantial proof, if the competent adult complainant in a sexual

assault prosecution has not informed any adult, other than the defendant, of

the alleged offense within a year of its commission. [30]

Of course, if the victim = s statements to that witness are otherwise admissible under

the hearsay rule, then the witness may recount the victim = s outcry. But Article 38.07 is not itself an exception

to the hearsay rule.

In

sum, Article 38.07 deals with the sufficiency of evidence required to

sustain a conviction for sexual assault but does not act as a hearsay

exception, while Article 38.072 deals with the admissibility of evidence

that would otherwise be barred by the hearsay rule. III.

In the present case, the trial court

found that the testimony of Ashley = s mother reciting Ashley = s outcry statement was admissible

under Article 38.072. 31 There is no dispute that Ashley was thirteen

years old when the offense occurred and that Article 38.072 applies only if the

victim is twelve years of age or younger at the time of the offense. Thus, the court of appeals was correct in

finding that the statement was inadmissible under Article 38.072. 32

However, the court of appeals then

stated that Ashley = s mother = s testimony A was admissible under the general outcry statute, Code of

Criminal Procedure Article 38.07, and the trial court strictly limited the

testimony to its proper scope. @ 33

This conclusion is mistaken.

First, because Ashley fits into one of the Article 38.07(b) exceptions B she was under seventeen at the time

of the offense B the State was not required to prove

that Ashley made any outcry statement.

Therefore, Ashley = s mother = s statement was neither necessary nor admissible under

Article 38.07. However, as the dissent

noted, 34 even if Article 38.07

did apply, this testimony went well beyond establishing that Ashley had in fact

made an outcry statement to her mother regarding appellant = s criminal acts. Ashley = s mother recounted exactly what

Ashley said to her.

The State argues that even if the

testimony were inadmissible under Article 38.07, Ashley = s statement to her mother fits within

the excited utterance hearsay exception. 35 Of course, evidence that is otherwise

admissible under a hearsay exception or exemption is not barred by Article

38.07, but the record fails to support the State = s position. Ashley = s mother testified that Ashley cried

the evening she returned from appellant = s ranch, and that the following day

she was angry. However, this alone is

not sufficient to prove that Ashley A was still dominated by the emotions,

excitement, fear or pain of the event @ when she told her mother about the

alleged acts. 36 She had not been near appellant for over two

days, 37 and there is no

evidence in the record that she was A in the instant grip of violent

emotion, excitement or pain @ immediately before or during her recount of the events. 38

Without further evidence that Ashley had no time or opportunity to calm

herself and reflect upon the two-day-old events, we cannot conclude that her

statements to her mother fit the excited utterance exception to the hearsay rule.

The State also argues that even if

the statements should not have been admitted under Article 38.07, the appellant

did not make the appropriate objection, and therefore waived his right to

complain on appeal. However, the record

reflects that appellant made numerous objections to the introduction of the

outcry evidence. 39 While it is true that appellant never stated

the actual rule the judge was apparently using to allow the statements into

evidence, 40 his objections were

certainly sufficient. 41 Appellant objected to the testimony as

hearsay; it was hearsay, and thus his objection was both proper and sufficient. 42 If the testimony fit some exception or

exemption to the hearsay rule (or if the evidence was not being offered for the

truth of the matter asserted) the State, as the proponent of the evidence, had

the burden of demonstrating the applicability of that exemption or exception. 43

Finally, the State argues that even

if the testimony was improperly admitted, it was harmless error. Because the court of appeals found that the

admission of the testimony was not error, it did not conduct a harm analysis. Despite the fact that both the appellant and

the State discuss the issue of harm at length, that issue is not before

us. We will therefore defer to the court

of appeals to determine whether the admission of the outcry statement was

harmless error.

In sum, the trial judge erred in

admitting Ashley = s outcry statement to her mother under either Article 38.072

or Article 38.07. Her statement was not

an excited utterance, and no other grounds for admitting it were offered. Therefore, we reverse the judgment of the

court of appeals, and remand the case to that court to conduct a harm analysis.

Delivered: November 2, 2005

Publish

[1]

Martinez v. State , 10-03-00052-CR, 2004 Tex. App. LEXIS 8359 (Tex. App. B Waco 2004) (not designated for

publication).

[2]

Specifically, this Court granted review to resolve the following issues:

1) Whether the court of appeals

erred in holding that there is no error when an outcry statement admitted

pursuant to Tex. Code Crim. Proc. Ann .

art. 38.07 (Vernon Supp. 2004), is admitted for the truth of the matter

asserted in the statement; and

2) Whether A outcry @ testimony is admissible pursuant to Tex. Code Crim. Proc. Ann. art. 38.07

(Vernon Supp. 2004), when the State is not relying on the uncorroborated

testimony of a person whose testimony is subject to Article 38.07.

[3]

Appellant was also charged with indecency with a child and injury to a child

involving a second complainant. A

majority of the evidence in the State = s

case related to the charges involving the second child, but the jury acquitted

appellant of those charges; thus, we need not detail any of that evidence.

[4]

The trial court stated:

Let me make sure the jury does understand

this. You have commonsense. I have mentioned that, folks. You can = t

draw any implications from anything. You

can listen to what the witness said. If

there = s a

conversation that = s

related, you can consider that if I allow it.

But you can = t presume

something was said if you haven = t

heard what was said unless there = s

credible evidence before you indicating that.

The reason I = m telling

you this is the fact that this witness contacted her father, you can = t presume Ashley said anything

specifically to this witness and make that presumption just because she contacted

her father. If counsel wants to ask this

witness what Ashley told her, and I let that come in, then you can consider

that and give it whatever weight, if any, you choose. But don = t

get caught up in trying to evaluate innuendos and implications.

[5]

Specifically, the trial court told the jury,

Let

me solve this problem. So the jury will

understand this, ladies and gentlemen, and again, I = m

trying to give you these instructions so you will understand that your job is

to judge the credibility of the evidence.

Under the law what a person says as related by another person is never

admissible as a general rule because it = s

hearsay because the other person is not present to be cross-examined to

determine what their source of information was.

So you can = t have

one witness tell what another witness said.

But in a molestation allegation, the law provides that the alleged

victim, that the first person that alleged victim makes a statement to,

qualifies as to what is called an A outcry. @

And the witness is allowed to relate what she was told by the purported

victim. But they can = t draw opinions or conclusions as to

what that victim meant. They can only

tell us what was said. So, Counsel, you

can ask this witness what was said. But,

ma = am, you can = t

give us opinions as to whether she was molested or whether she wasn = t or what happened. You can tell exactly what Ashley told

you. Then this jury can judge the

credibility of that. But you can = t give your opinions on what she told

you because that = s

improper.

[6]

Section 2(a) of this provision states:

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.

Under Subsection (b), A [a] statement that meets the

requirements of Subsection (a) of this article is not inadmissible because of

the hearsay rule if @ certain

notice and procedural requirements are fulfilled and the child testifies or is

available to testify at the proceeding.

[7] Id ., art. 38.072, ' 1 ( A 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) . . . @ ). Appellant also argued that the trial court

improperly commented on the weight of the evidence. However, this issue is not before the court,

and therefore not discussed.

[8] Tex. Code Crim. Proc . art 38.07 is titled A Testimony

in Corroboration of Victim of Sexual Offense, @

and it reads: (a) A conviction under

Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on

the uncorroborated testimony of the victim of the sexual offense if the victim

informed any person, other than the defendant, of the alleged offense within

one year after the date on which the offense is alleged to have occurred.(b)

The requirement that the victim inform another person of an alleged offense

does not apply if at the time of the alleged offense the victim was a person: (1) 17 years of age or younger;(2) 65

years of age or older; or(3) 18 years of age or older who by reason of age or

physical or mental disease, defect, or injury was substantially unable to

satisfy the person = s need

for food, shelter, medical care, or protection from harm.

[9]

Martinez , 2004 Tex. App. LEXIS 8359 , at *2-3.

[10]

Id. at *4-5 (Vance, J., dissenting).

[11]

Id. at *5 n.2.

[12]

See Carmell v. Texas , 529 U.S. 513 , 518 n.2 (2000) (noting that A Texas

courts treat Article 38.07 as a sufficiency of the evidence rule, rather than

as a rule concerning the competency or admissibility of evidence @ ).

[13] See House Committee on Criminal Jurisprudence , Bill Analysis, Tex. H.B. 579, 69th Leg., R.S.

(1985) (noting that A [g]enerally, out-of-court statements offered at

trial as proof of the matter asserted are inadmissible hearsay. Various exceptions to the hearsay rule exist

when circumstances make the out-of-court statements reliable. @ ). House Bill

579 was enacted as Tex. Code Crim. Proc .

art. 38.072.

[14]

See Garcia v. State , 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) (noting that

by enacting the A child

outcry @ hearsay

exception in article 38.072, the Legislature A was

obviously striking a balance between the general prohibition against hearsay

and the specific societal desire to curb the sexual abuse of children @ ); see also Rodriguez v. State ,

819 S.W.2d 871, 873 (Tex. Crim. App. 1991).

In Rodriguez , this Court referred to HB 579 and its legislative

history and stated,

Under Art. 38.072, by both the terms of the statute and by

the legislative history, outcry testimony admitted in compliance with Art.

38.072 is admitted as an exception to the hearsay rule, meaning it is

considered substantive evidence, admissible for the truth of the matter

asserted in the testimony. See

generally HB 579 bill analysis, including A Background

Information @ and A Purpose @

for Acts 1985, 69th Legislature; HB 579, Second Reading, May 9, 1985; HB 579,

Third Reading, May 13, 1985.

[15]

See Floor Notes on Hearing by Criminal Jurisprudence Committee on House

Bill 579 (69th Legislature, May 9, 1985). The bill analysis notes that

supporters of the bill argued:

It is often difficult for young children to repeat, in

courtroom settings in front of total strangers, what they have previously told

someone about an offense committed against them, especially in cases where they

have been sexually abused. Because they

usually make poor witnesses, their assailants are often freed. Under current law, the people whom these

children trust and in whom they have confided in are barred from repeating what

they have been told because it is considered hearsay. This bill would protect these young children

from the trauma of having to describe and relive the offenses in trial

testimony.

[16]

See Rodriguez , 819 S.W.2d at 873 .

[17] Tex. Code Crim. Proc . art. 38.072, ' '

1 & 2(a).

[18]

Id. , ' 2(b)(1).

[19]

Id. , ' 2(b)(2).

[20]

Id. , ' 2(b)(3).

[21]

The Confrontation Clause may act as a brake upon the admission of A testimonial @

child outcry statements unless the child actually testifies or is presently

unavailable but has been subject to cross-examination in a prior

proceeding. See generally Crawford v.

Washington , 541 U.S. 36 (2004).

[22] Tex. Code Crim. Proc . art. 38.07.

[23]

The statute specifically exempts any need to corroborate the testimony of (1) a

child seventeen or under, (2) a person sixty-five or older, and (3) an adult A who by reason of age or physical or

mental disease, defect, or injury was substantially unable to satisfy the

person = s need

for food, shelter, medical care, or protection from harm. @

Tex. Code Crim. Proc. art.

38.07(b).

[24]

Price v. State , 36 Tex. Crim. 143, 145 , 35 S.W. 988, 988 (1896); see

also Pefferling v. State , 40 Tex. 486 (1874). In Pefferling , the Texas Supreme Court

stated that, in rape prosecutions,

the proof of the offense depends very

frequently upon the testimony of the party charged to have been outraged, and

in most cases, to a very great extent, upon the truth and credibility of her

evidence, and unquestionably every reasonable test should be applied to her

integrity, for the safety of the accused.

Hence, the failure to make outcry, or call for aid when it might have

been readily obtained, or within reasonable time to discover the offense after

an opportunity to do so, are circumstances tending to discredit her

testimony. But if the absence of these circumstances

tend to raise the presumption that her testimony is false or feigned, proof of

them repels the suspicion which their absence raises. It has, therefore, been universally held that

recent complaint by the person injured, her state and appearance, marks of

violence, and the condition of her dress, shortly after the alleged occurrence,

may be proved as original evidence . . .

Id. at 492 .

[25]

Gray v. State , 130 Tex. Crim. 289, 293 , 93 S.W.2d 1146, 1148 (1936).

[26]

43 George E. Dix & Robert O. Dawson,

Texas Practice: Criminal Practice and Procedure ' 31.351

at 226 (2d ed. 2001) (collecting cases).

But as Professors Dix and Dawson note,

The Texas case law

does not, however, reflect careful and critical consideration of whether this

[later, in-court testimony by a rape victim] is in fact so extraordinarily

unreliable or of whether juries are so extraordinarily unable or disinclined to

recognize this unreliability as to warrant the safeguards provided by the

corroboration rule.

Id. at 227.

[27]

See id. (noting that the proposal to abolish the corroboration

requirement A was met

with concern that such action would eviscerate the rights of those accused of

sexual offenses @ ).

[28]

Id.

[29]

In Nemecek v. State , 621 S.W.2d 404, 406-07 (Tex. Crim. App. 1980)

(panel op.), we adopted the same sufficiency standard to corroboration of rape

victim testimony B evidence

that tends to connect the defendant with the offense B that

was already applied to the corroboration of accomplice-witness testimony. See Tex.

Code Crim. Proc . art. 38.14.

Professors Dix and Dawson, however, suggest that this standard is poorly

tailored to the original judicial concern of corroborating the rape victim on

the issue of consent. See Dix & Dawson , supra , ' 31.353 at 232.

[30]

Unfortunately, Article 38.07 provides no explicit guidance as to what evidence

should be admitted to prove that the victim made an outcry. As a result, there has been some inconsistency

among the courts of appeals regarding exactly what testimony is

admissible. Still, most courts agree

that Article 38.07 may be used only to prove that an outcry was made. In fact, in Rodriguez v. State , 819

S.W.2d 873 , we stated as much while describing how outcry evidence should be

used under Article 38.072: A the court of appeals treated the outcry

testimony as proof only that [the] outcry had been made and not as evidence of

the truth of the testimony, as though it was admitted pursuant to Article

38.07. @ However, some courts allow admission of a

verbatim recital of the victim = s

entire outcry statement, followed by a limiting instruction, if so

requested. See Heckathorne v. State ,

697 S.W.2d 8 (Tex. App. B Houston

[14th Dist.] 1985, pet. ref = d). The Heckathorne court stated

an outcry should not be admitted for

its truth, but merely as evidence that the victim informed someone of the

offense. The jury was entitled to hear

the complainant = s

statements alleging an offense, because these statements formed the basis upon

which the charge was initiated. Had

appellant requested a limiting instruction to the jury to consider this

testimony only for the narrow purpose that a statement was made and not for the

statement = s truth,

the trial judge would have been obliged to grant it.

Id ., at 12; see also Grogan v. State ,

713 S.W.2d 705, 709-10 (Tex. App. B Dallas

1986, no pet.). Other courts of appeals

have been more circumspect concerning the nature and extent of the testimony

admissible under the statute. See

Brown v. State , 649 S.W.2d 160, 162 (Tex. App. B

Austin 1983, no pet.) ( A The witness = testimony is admissible to show that the complaint

was made and the basic nature of the complaint.

It is not admissible to prove the actual details of the sexual attack or

even that the sexual attack actually occurred @ ).

Further, some courts of appeals

have held that, even when evidence of outcry is not required by Article 38.07,

an outcry statement is admissible under the statute as otherwise relevant

evidence. See Heckathorne ,

697 S.W.2d at 13 (finding that although outcry evidence was not a A prerequisite to the prosecution @ because victim was a child as defined

by Article 38.07, evidence of outcry was still admissible under the

statute). Other courts have held that

such evidence is inadmissible under the statute. See Brown , 649 S.W.2d at 162 ( A We believe in light of the fact that

the State did not seek a conviction on the > uncorroborated

testimony of the victim of the sexual offense =

. . . [Article 38.07] is inapplicable.

Accordingly, the [witness = s]

testimony was improperly admitted. @ ).

If the

Legislature did intend Article 38.07 to allow the admission of detailed outcry

statements, the statute would have a much more far-reaching effect than Article

38.072, because it would allow any outcry statement to come into

evidence when the Article 38.07 criteria are met. Such a rule would be inconsistent with the

evident purpose and history of Article 38.07.

31 While neither the trial judge

nor the attorneys explicitly mentioned Article 38.072 during the trial, and it

is unclear from the trial record whether the judge was referring to Article

38.072 or 38.07, both parties, as well as the court of appeals, concluded that

the trial judge was referring to Article 38.072 to support his ruling admitting

Ashley = s mother = s recital of her daughter = s outcry. We therefore accept this conclusion.

32 Martinez , 2004 Tex. App.

Lexis 8359 at *2.

33 Id. at *3.

34 Id. at *5 n.2.

35 Tex. R. Evid. 803(2).

36 See Zuliani v. State , 97

S.W.3d 589, 596 (Tex. Crim. App. 2003).

37 While the State argues in its

brief that Ashley = s A statement to her mother was

approximately one day after she returned home from the Appellant = s ranch, @

the trial record reflects that she did not make any outcry statement until the

Wednesday morning following her return from the ranch on Sunday evening. Although the time lapse between the event and

the statement is not dispositive of whether the statement fits within the

excited utterance exception, it is a

piece of evidence which may be considered. Zuliani , 97 S.W.3d at 595-96 .

38 Zuliani , 97 S.W.3d at

595 . The record does indicate that Ashley was A very

upset, @ but

nothing more was stated regarding her state of mind when she told her mother

about the incidents.

39 By our count, appellant

objected to Ashley = s mother = s testimony regarding the outcry statement

five times before the trial court finally gave him a running objection to the

testimony.

40 Again, we note that it is not

completely clear to us what rule the judge was using to admit the

statements. It could have been either

article 38.07 or 38.072. However, none

of the parties involved made any direct reference to any statutory provision on

the record. Obviously the opponent of

evidence cannot object on the basis that certain evidence is not admissible

under a specific rule if the offering party and the trial court never state

that the evidence is being admitted under a specific rule.

41 See Tex. R. App. P. 33.1(a). An objection is sufficient if it was timely

made and A stated

the grounds for the ruling that the complaining party sought from the trial

court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context. @

42 See Lankston v. State ,

827 S.W.2d 907, 910 (Tex. Crim. App. 1992) ( A Identifying challenged evidence as hearsay or as calling for hearsay should be regarded by courts at all

levels as a sufficiently specific objection, except under the most unusual

circumstances. @ )

(citations omitted).

43 Volkswagen of Am., Inc. v.

Ramirez , 159 S.W.3d 897 , 908 n.5 (Tex. 2004) ( A The

proponent of hearsay has the burden of showing that the testimony fits within

an exception to the general rule prohibiting the admission of hearsay evidence. @ ).