Bays, Michael Jay

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1909-11

MICHAEL JAY BAYS, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

GREGG COUNTY

Alcala, J., delivered the opinion of the Court, in which Meyers, Price,

Womack, Johnson, and Cochran, JJ., joined. Keller, P.J., filed a dissenting

opinion, in which Keasler and Hervey, JJ., joined. Hervey, J., filed a dissenting

opinion, in which Keller, P.J., and Keasler, J., joined.

O P I N I O N

On the State's petition for discretionary review, we determine that Article 38.072 of

the Texas Code of Criminal Procedure, the outcry statute, is a hearsay exception statutorily

limited to live testimony of the outcry witness. (1) See Tex. Code Crim. Proc. art. 38.072 . The

child-complainant's own videotaped statement does not meet the requirements for being

admitted under that statute. Id . Because the trial court impermissibly admitted the child's

videotaped statement under the outcry statute, we affirm the court of appeals's judgment

reversing the conviction of Michael Jay Bays, appellant, for indecency with a child by

contact. See Bays v. State, No. 06-10-00115-CR, 2011 WL 6091773 , at *6 (Tex.

App.--Texarkana Dec. 7, 2011) (not designated for publication); Tex. Penal Code §

21.11(a)(1).

I. Background

Anne (2) was six years old at the time of the incident with appellant, her step-grandfather. Anne and her young relatives, Emily and Charlotte, were watching television

with appellant in his living room. (3) While Charlotte and Emily sat across the room from them,

appellant touched Anne's genitals as she sat on his lap. When she pushed his hand away, he

restrained Anne so that she could not leave. Charlotte started yelling, "He won't let her go,

he won't let her go." The commotion was heard by several adults who were outside of the

house, including appellant's wife, who is also Anne's grandmother, and Anne's parents.

After the adults entered the house, Charlotte announced that Anne had something to

tell everyone, and immediately offered that appellant had touched Anne "down there."

Anne's grandmother then privately questioned Anne in another room. Testimony was

inconsistent as to what Anne told her grandmother about the incident at that time. (4)

About one year later, Anne and her cousin, Charlotte, each revealed to their mothers

that appellant had sexually abused them. Anne, Charlotte and their mothers met to discuss

the matter. Anne told the two mothers that appellant had touched her genitals while she was

sitting on his lap, and they reported the abuse to the police. During the investigation, police

officers asked Kelsey Drennan, an investigator for the Texas Department of Family and

Protective Services (TDFPS), to interview Anne, Charlotte and Emily. All three interviews

were conducted separately on the same day and were videotaped.

During her interview with Anne, Drennan asked, "Is there anything that we're

supposed to talk about?" Anne responded, "Not that I know of." Drennan then asked Anne

if anyone had ever tried to look at or touch her "hiney" or "tuti-tu," which was the word used

by Anne for her female sexual organ. Anne responded, "just my grandpa, just once, that's

all I can remember," referring to appellant. Drennan inquired whether he touched her tuti-tu

on the outside or inside of her clothes. Anne replied, "He went inside." She pointed at the

waistband of her shorts and made a downward motion to indicate that appellant had reached

inside her shorts. To confirm, Drennan asked Anne if appellant touched her on her skin or

on top of her clothes, to which Anne replied, "skin." Anne stated that appellant did not put

his hand inside her tuti-tu but did touch the surface. Anne stated that the touching occurred

while she was sitting "on his lap" on the couch in her grandmother's house.

Appellant was charged with indecency with a child by contact and he pleaded not

guilty. The case was tried to the bench along with other accusations of sexual abuse

committed against Emily and Charlotte. At trial, the State called Drennan as its designated

outcry witness and offered the 30-minute videotape of Anne's interview. Over appellant's

hearsay objection, the trial court admitted the recording in its entirety, and it was played for

the court. Drennan did not testify about any of Anne's outcry statements; the sole evidence

of the statements Anne made to Drennan was the videotape of the interview.

After the videotape was played, Anne testified. Her description of the incident was

largely consistent with that contained in the videotape except she testified that the touching

was over her clothes. Anne acknowledged that the touching could have been accidental, but

stated that appellant had lied when he said he did not touch her.

In his defense, appellant testified that he could have accidentally touched Anne's

genital area on the outside of her clothing while he was playing with her, but he denied that

he touched her under her clothes. Disbelieving the defense, the trial court found appellant

guilty and sentenced him to ten years' imprisonment. (5)

The court of appeals reversed the conviction. It held that the videotape was

inadmissible hearsay that did not fall within the type of hearsay permitted under the outcry

statute. Bays , 2011 WL 6091773 , at *3. Relying on its prior decision in Dunn v. State , the

court of appeals noted that "the outcry statute does not anticipate or provide for the admission

of the video statements." Id. (citing 125 S.W.3d 610, 614 (Tex. App.--Texarkana 2003, no

pet.)). The court of appeals concluded that the outcry statute does not "contemplate[] that a

videotape of the outcry will be introduced. It clearly contemplates that a person, subject to

confrontation and cross-examination, will testify about what was said." Id . (6) We granted the

State's petition for discretionary review to determine whether the court of appeals erred by

holding that the outcry statute does not permit the admission of video statements. (7) The State

argues that the videotaped interview should be admissible under the outcry statute because

the statute does not expressly require that the child's statements be related through witness

testimony. The State further argues that the statute's underlying goal of admitting reliable

statements is best served by permitting admission of the videotaped interview. In response,

appellant argues that the statutory hearsay exception for a child's outcry statements applies

only when those statements are conveyed through the testimony of the proper outcry witness,

and that other forms of evidence, such as videotapes, do not fall within the hearsay exception

for outcry evidence.

II. Analysis

Both the State and appellant offer conflicting, but plausible, interpretations of the

outcry statute. Because we determine that the statute is ambiguous with respect to what form

the outcry evidence must take when introduced at trial, we proceed to consider the

appropriate extra-textual factors. We conclude that the statutory hearsay exception for outcry

evidence applies only when the child's statements are conveyed through the testimony of the

properly designated outcry witness.

A. Law Applicable to Statutory Interpretation

Statutory interpretation is a question of law that we review de novo . Nguyen v. State ,

359 S.W.3d 636, 641 (Tex. Crim. App. 2012). In interpreting statutes, we seek to effectuate

the Legislature's collective intent and presume that the Legislature intended for the entire

statutory scheme to be effective. See Tex. Gov't Code § 311.021; Boykin v. State , 818

S.W.2d 782, 785 (Tex. Crim. App. 1991). To achieve this goal, we necessarily focus our

attention on the literal text of the statute and attempt to discern the objective meaning of that

text at the time of its enactment. Nguyen , 359 S.W.3d at 642 . If the language is unambiguous,

our analysis ends because the Legislature must be understood to mean what it has expressed,

and it is not for the courts to add to or subtract from such a statute. Boykin , 818 S.W.2d at

785 .

If, on the other hand, the meaning of a statute is ambiguous, we may consider limited

extra-textual factors to discern the meaning that best honors the will of the Legislature.

Cornet v. State , 359 S.W.3d 217, 221 (Tex. Crim. App. 2012) . Ambiguity exists when a

statute may be understood by reasonably well-informed persons to have two or more different

meanings. See Boykin , 818 S.W.2d at 785-86 ; State v. Neesley , 239 S.W.3d 780, 783 (Tex.

Crim. App. 2007). In construing ambiguous statutes, relevant factors that we may consider

include legislative history, laws on the same or similar subjects, and consequences of a

particular construction. See Tex. Gov't Code § 311.023; Mahaffey v. State , 364 S.W.3d 908,

913 (Tex. Crim. App. 2012) (in construing statutes, court may look to other provisions within

entire statutory scheme rather than merely single, discrete provision at issue).

B. Analysis of Article 38.072 Statutory Language

The outcry statute creates a hearsay exception for a child-complainant's out-of-court

"statements" that "describe the alleged offense," so long as those statements were made "to

the first [adult] person . . . to whom the child . . . made a statement about the offense." See

Tex. Code Crim. Proc. art. 38.072, § 2(a)(1)-(3). Subsection (b) establishes additional

procedural requirements, including that the party intending to offer the statement provide the

adverse party with a "written summary of the statement" and the "name of the witness

through whom it intends to offer the statement." See id. at § 2(b).

With respect to the question of what forms of evidence are admissible under the

statute, t he phrase "witness through whom it intends to offer the statement" could reasonably

be interpreted as indicating that the child's outcry statement must be conveyed directly

"through" the testimony of the outcry "witness." See id. ; Merriam-Webster's Collegiate

Dictionary 1360 (10th ed., 1996) (defining "witness" as "one who testifies in a cause or

before a judicial tribunal"); Prudholm v. State , 333 S.W.3d 590, 594 (Tex. Crim. App. 2011)

(court may presume that words not defined in statute are used in their "ordinary and common

sense"). Under this interpretation, the outcry statute would permit the "first person" to whom

the child made a "statement about the offense" to testify regarding the content of those

statements. See Tex. Code Crim. Proc. art. 38.072, § 2(a). The statute would not, however,

permit the child's statements to be conveyed through other mediums, such as video or audio

recordings, because such "statements" would not be properly offered "through" a "witness."

See id . at § 2(a)-(b).

In support of this interpretation, we note that, although it has never precisely

addressed the present question, this Court has repeatedly described the form of outcry

evidence admissible under the statute as testimony from a witness. See, e.g., Sanchez v. State ,

354 S.W.3d 476 , 479 n.1 (Tex. Crim. App. 2011) ("An outcry witness may testify . . . about

the victim's out-of-court description of the offense."); Lopez v. State , 343 S.W.3d 137, 140,

144 (Tex. Crim. App. 2011) (describing outcry statute as permitting "hearsay testimony"

from an "outcry witness"); Martinez v. State , 178 S.W.3d 806, 811 (Tex. Crim. App. 2005)

(outcry "witness may recite the child's out-of-court statements concerning the offense");

Rodriguez v. State , 819 S.W.2d 871, 872 (Tex. Crim. App. 1991) (describing outcry statute

as permitting "testimony" from "outcry witness"); Shelby v. State , 819 S.W.2d 544, 550-51

(Tex. Crim. App. 1991) (noting that outcry witness "permitted to relate to the jury the

statements made by the complainant on the date of the offense"); Long v. State , 800 S.W.2d

545, 547 (Tex. Crim. App. 1990) (outcry witness would "testify as to what the child

[complainant] told her"); Garcia v. State , 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) (outcry

statute "demands that only the 'first person' [in whom child confides] is allowed to testify").

Furthermore, the Texas intermediate courts of appeals that have examined this precise

question have uniformly determined that the outcry statute limits the form of evidence to

testimony from a witness. See, e.g., Dunn , 125 S.W.3d at 614 (holding that video testimony

not properly admitted under outcry statute because the statute "clearly contemplates that a

person, subject to confrontation and cross-examination, will testify about what was said");

Divine v. State , 122 S.W.3d 414, 418 (Tex. App.--Texarkana 2003, pet. ref'd) (noting that

court has "repeatedly emphasized that a videotape is not a person; therefore, Article 38.072

cannot apply to it"); Scott v. State , 222 S.W.3d 820, 831 (Tex. App.--Houston [14th Dist.]

2007, no pet.) (noting that "Article 38.072 does not apply to admission of a child's

videotaped interview because it applies to the testimony of a live outcry witness"). The statute, however, is subject to an alternative interpretation. Although the statute

clearly contemplates that the child's statements will be offered "through" an outcry

"witness," the State argues that this language does not necessarily compel the conclusion that

the witness must relate the child's statements through testimony. See Tex. Code Crim. Proc.

art. 38.072, § 2(b)(1)(B). Rather, under this latter interpretation, any form of evidence,

including a video recording of the child's out-of-court statement, would be admissible, so

long as the proper outcry witness was present at trial and could act as a sponsoring witness

for that recording. See id . at § 2(a)-(b).

The statute, while strongly suggesting that the child's statements will be conveyed

through the testimony of the outcry witness, does not expressly exclude forms of evidence

other than witness testimony. See id . Because the statute may be understood by reasonably

well-informed persons to have two meanings, we conclude that the statute is ambiguous. See

Boykin , 818 S.W.2d at 785-86 ; Neesley , 239 S.W.3d at 783 . We proceed to consider the

appropriate extra-textual factors. See Shipp v. State , 331 S.W.3d 433, 439 (Tex. Crim. App.

2011); Mahaffey , 316 S.W.3d at 637; Tex. Gov't Code § 311.023.

C. Extra-textual Analysis

As explained in more detail below, an analysis of the extra-textual factors supports

the conclusion that the videotaped interview of the child does not fall within the statutory

hearsay exception for outcry evidence.

1 . Legislative History

The legislative history surrounding the enactment of the outcry statute clearly

indicates that lawmakers intended to create a hearsay exception for live, in-court testimony

by an outcry witness. When originally enacted in 1985, the statute's supporters noted that the

legislation was necessary because adults in whom child sex-abuse victims had confided were

"barred from repeating what they have been told because it is considered hearsay." See Act

of May 27, 1985, 69th Leg., R.S., Ch. 590, § 1, effective Sept. 1, 1985; House Study

Group, Bill Analysis, Tex. H.B. 579, 69th Leg., R.S. (May 9, 1985). (8) The outcry statute

aimed to alleviate this problem by allowing "the first person the child told of the offense to

testify about what the child said." House Study Group, Bill Analysis, Tex. H.B. 579,

69th Leg., R.S. (May 9, 1985). (9) Never mentioning any type of evidence other than live

testimony by a witness, the legislative-committee report makes multiple references to the

outcry witness's ability to "testify as to the child's statements. " Id. (10)

This legislative history of the outcry statute reflects lawmakers' understanding that

the first adult in whom a child confides about sexual abuse will usually be a close relative,

a trusted teacher, a school counselor, or a neighbor. (11) See id. (noting that outcry statute was

intended to except from hearsay rule testimony of "people whom these children trust and in

whom they have confided"); see also Martinez , 178 S.W.3d at 811 (stating that outcry statute

serves society's interest in "protecting children in court by allowing the admission of their

casual 'street corner' confidences to an adult"); Ex parte Thompson , 153 S.W.3d 416, 422

(Tex. Crim. App. 2005) (Cochran, J., concurring) (noting that, in aggravated sexual assault

of a child prosecutions, there is typically an " outcry witness, normally the mother or other

female relative, who testifies that the child told her about the abuse"). In light of the belief

that a trusted adult would usually be the outcry witness, it is reasonable to assume that this

witness would have neither the opportunity nor the desire to videotape a child's outcry

statement as that child reveals for the first time the intimate details of an abusive sexual

encounter. Because it envisioned that the child's outcry would take the form of a spontaneous

verbal communication to a trusted adult, it is reasonable to conclude that the Legislature did

not intend to permit admission of a child's videotaped statements, which suggest a lesser

degree of spontaneity (and, perhaps, reliability). We conclude that the legislative report's sole

reference to testimony rather than to other forms of evidence, and the unlikelihood that a

person trusted by the child would videotape her outcry together compel a conclusion that the

Legislature did not intend for admission of videotapes under the outcry statute.

2. More Specific Law on Same Subject

The admissibility of a child-victim's pretrial recorded statements is more specifically

governed by a related statute set forth at Texas Code of Criminal Procedure Article 38.071,

which we refer to as the "video statute." (12) See Tex. Code Crim. Proc. art. 38.071; Tex.

Gov't Code § 311.026; Cheney v. State , 755 S.W.2d 123, 126 (Tex. Crim. App. 1988)

(statutes on same or similar subjects may be construed jointly; in case of conflict, specific

statute applies over general statute addressing same subject). The video statute creates a

hearsay exception for a child's video- or audio-recorded pre-trial statements, but only if

stringent requirements are met, including that the child is unavailable to testify at trial and

that the interviewer is a neutral person experienced in child-abuse cases or a child-abuse

expert. See Tex. Code Crim. Proc. art. 38.071, §§ 1, 2, 5 (providing for admission of

"recording of an oral statement of the child" only if certain requirements are met); Matz v.

State , 14 S.W.3d 746, 746 (Tex. Crim. App. 2000) (noting that video statute "provides that

under certain circumstances, a recording of an oral statement of a child sexual assault victim

is admissible"); Torres v. State , 33 S.W.3d 252, 256 (Tex. Crim. App. 2000) (describing

video statute as governing "special out-of-court circumstances . . . regarding the recording

of statements by children"); Smith v. State , 88 S.W.3d 643, 647 (Tex. App.--Tyler 2000)

(stating that video statute "provides a detailed procedure by which a videotaped interview of

a child may be admitted into evidence"), vacated on other grounds by 61 S.W.3d 409 (Tex.

Crim. App. 2001). (13)

T he legislative history surrounding the video statute reveals that legislators intended

that it provide the vehicle driving the admission of videotaped, pretrial statements by child-victims. House Study Group, Bill Analysis, Tex. S.B. 836, 68th Leg., R.S. (May 24,

1983) (noting that the video statute "would permit the pretrial videotaped testimony of

children aged 12 and under to be used as evidence in sexual-abuse cases"). Understanding

that "videotaped recordings of a child's testimony are now considered hearsay evidence and

they are not admitted in court," lawmakers enacted the video statute so that "pretrial

videotapes would be admissible only if they met several listed requirements." Id. ; s ee also

House Committee on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 836, 68th Leg.,

R.S. (May 19, 1983) (noting that video statute "provides for the circumstances under which

children who are victims of sexual offenses may visually and aurally record testimony which

is admissible in Court"). Lawmakers, thus, viewed the video statute, enacted two years prior

to the outcry statute, as the vehicle through which a child's pretrial recorded statements could

be offered as substantive evidence at trial.

An irreconcilable conflict would exist if both statutes were interpreted to permit the

admission of a child's videotaped statements because the outcry statute would create a

loophole for admitting evidence that does not meet the requirements of the more stringent

video statute. For example, the video statute allows for admission of a child's videotaped

statement only when the child is unavailable to testify, but, on the other hand, the outcry

statute applies only when the victim is available to testify. Compare Tex. Code Crim. Proc.

art. 38.071, § 1 (trial court must "determine[] that a child younger than 13 years of age would

be unavailable to testify in the presence of the defendant"), with id. at art. 38.072, § 2(b)(3)

(outcry statute hearsay exception applies only if child is younger than 14 years old and child

"testifies or is available to testify" at trial). (14) Furthermore, the video statute contains stringent

requirements aimed at ensuring the interviewer's neutrality and professionalism, but, on the

other hand, the outcry statute merely requires that the statements be reliable and does not

require that the outcry witness be neutral. Compare Tex. Code Crim. Proc. art. 38.071, §§

2, 5 (under video statute, person taking child's recorded statement must be "neutral

individual experienced in child abuse cases that seeks to find the truth of the matter" or an

"expert in the handling, treatment, and investigation of child abuse cases" whose interview

tactics did not consist of calculated questioning designed to elicit particular response), with

id. at art. 38.072, § 2(b)(2) (under outcry statute, child's statement need only be "reliable

based on the time, content, and circumstances of the statement"), and Sanchez , 354 S.W.3d

at 488 (outcry testimony admissible even if outcry witness biased).

Construing the statutes jointly, we conclude that the admissibility of a child's

videotaped statement is governed by the more specific video statute, as opposed to the more

general outcry statute. Cheney , 755 S.W.2d at 126 ; Tex. Code Crim. Proc. arts. 38.071,

38.072. To permit admission of a complainant's videotaped statement under the more lenient

outcry statute would undermine the video statute's rigid unavailability requirement and its

requirements aimed at guaranteeing the expertise and neutrality of the interviewer. See

Cheney , 755 S.W.2d at 126 ("If the conflict between the general provision and the special

or local provision is irreconcilable, the special or local provision prevails as an exception to

the general provision."). Here, the requirements of the video statute were not met because

the child was available to testify at trial. (15) See Tex. Code Crim. Proc. art. 38.071, § 1. We

decline to adopt an interpretation of the outcry statute that thwarts the Legislature's clearly

stated intent to make a child's videotaped statement admissible as substantive evidence only

under strictly limited circumstances. See id . at §§ 1-5. (16)

3. Consequences of Any Possible Constructions of Statute

The State argues that the videotape should be admissible under the outcry statute

because a video-recorded interview is "a far more accurate representation of a child's

statement than a person's memory of the child's statement." But the outcry statute does not

provide for admission of the most accurate, or the most detailed, statement from the child.

Rather, the Legislature has created a narrow hearsay exception that applies only when the

child's statements describe the alleged offense and were made to the first adult outcry

witness. See Tex. Code Crim. Proc. art. 38.072, § 2(a)(1)-(3). Additionally, the hearsay

exception for outcry is applicable only if the statute's stringent procedural requirements are

met. See id . at. § 2(b); Long , 800 S.W.2d at 547 (holding that outcry witness "testimony is

only admissible as a statutory exception to the hearsay rule if its procedures are followed").

The statute's explicit content and procedural requirements are mandatory, even though they

may at times result in admission of a less detailed statement from the child. (17)

Furthermore, although the legislative history of both the video and outcry statutes

indicates lawmakers' concern about the reliability of a child's out-of-court statements, the

Legislature was also focused on excluding unfairly prejudicial evidence, particularly

videotaped victim statements, and preserving a defendant's right of confrontation . See House

Committee on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 66, 70th Leg., 2nd

C.S. (July 17, 1987) (indicating legislative intent to tighten restrictions on use of videotaped

testimony to avoid potential Confrontation Clause violations and noting that videotape

procedure had been, in some cases, abused "to achieve maximum effect on the jury"). By

carefully examining the various concerns inherent in the admission of hearsay evidence, it

is reasonable to conclude that the Legislature narrowly permitted the introduction of outcry

statements through witness testimony, but excluded videotaped statements that did not meet

the more particularized admission requirements intended to guarantee the neutrality of the

interviewer and to protect a defendant's rights under the Confrontation Clause. Contrary to

the State's suggestion, the reliability of the child's statement was not lawmakers' sole

concern when they enacted the outcry statute. See Garcia, 792 S.W.2d at 91 (in creating

outcry statute, "[L]egislature was obviously striking a balance between the general

prohibition against hearsay and the specific societal desire to curb the sexual abuse of

children").

III. Conclusion

Based on our analysis of the statutory language in conjunction with an examination

of the applicable extra-textual factors, we conclude that outcry statute does not permit

admission of video-recorded statements of a complainant. We, therefore, affirm the court of

appeals's judgment reversing appellant's conviction for indecency with a child by contact.

Delivered: April 17, 2013

Publish

1. The outcry statute creates a hearsay exception for a child's first outcry of sexual abuse to an

adult. Tex. Code Crim. Proc. art. 38.072

, § 2(a). The statute applies only in prosecutions of

specified sexual offenses if committed against a child younger than 14 years of age. Id . at § 1. The

statute applies only to out-of-court statements that (1) "describe the alleged offense," (2) are "made

by the child," and (3) are "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." Id. at § 2(a). It further requires that the

adverse party be notified of the name of the outcry witness, that the adverse party be provided with

a "written summary of the statement," that the trial court hold a hearing to determine whether the

child's statement is reliable, and that the child testify or be available to testify at trial. See id. at §

2(b). If both Subsections (a) and (b) are satisfied, then the child's outcry statement "is not

inadmissible because of the hearsay rule." Id. Outcry statements are considered substantive evidence

of the crime. Martinez v. State , 178 S.W.3d 806, 811 (Tex. Crim. App. 2005). The outcry statute

has been amended three times since proceedings commenced against appellant. See Act of May 29,

2009, 81st Leg., R.S., ch. 284, § 1; Act of May 27, 2009, 81st Leg., R.S., ch. 710, §§ 1-2; Act of

April 11, 2011, 82nd Leg., ch. 1, § 2.07. None of these recent amendments alter the statute's

application to this case. We shall refer to the current text of the outcry statute.

2. To protect the identities of the children involved in this case, the court of appeals employed

the pseudonyms "Anne" to refer to the complainant and "Emily" and "Charlotte" to refer to her

minor relatives, who were also complainants in two companion cases against appellant. We continue

to employ those pseudonyms in this opinion.

3. Charlotte is appellant's step-granddaughter and was approximately twelve years old at the

time of the incident. Emily is appellant's daughter and was approximately eight years old at the time

of the incident.

4. Anne's grandmother testified that Anne said appellant did not touch her. Anne's mother

stated that Anne was embarrassed or shocked and refused to say either way at that time whether

appellant had touched her. During Anne's videotaped interview, she stated that she told her

grandmother that appellant touched her "tuti-tu" on the day of the incident, but that she didn't tell

anyone else at that time because she was confused and "didn't know what to do."

5. Appellant was additionally found guilty of sexual offenses committed against Charlotte, but

was acquitted of the indecency charge involving Emily. Appellant's convictions for

continuous

sexual assault of a child and sexual assault of a child involving Charlotte were affirmed on appeal,

resulting in sentences of twenty-five and ten years' imprisonment respectively. See Bays v. State ,

06-10-00114-CR, 2011 WL 6091757 (Tex. App.--Texarkana Dec. 7, 2011, pet. ref'd).

6. The court of appeals found the error harmful because, aside from the recorded interview,

"there was not overwhelming evidence of guilt." Bays v. State, No. 06-10-00115-CR, 2011 WL

6091773 , at *6 (Tex. App.--Texarkana Dec. 7, 2011) (not designated for publication). Specifically,

the court of appeals noted that Anne stated in the videotape that appellant touched her genitals under

her clothing, but testified at trial that appellant touched her over her clothing. On this basis, the court

of appeals concluded that the "erroneous admission of Anne's video interview had a substantial

influence on the outcome of the proceeding." Id .; see also Tex. R. App. P. 44.2(b). The issue of harm

was not raised by the State in its petition, and we do not review the court of appeals's harm analysis

in this opinion. Likewise, appellant does not present a challenge under the Confrontation Clause.

We note, however, that because both the interviewer, Drennan, and the interviewee, Anne, testified

at trial and were subject to cross-examination, the defendant was afforded his rights under the

Confrontation Clause. See Crawford v. Washington , 541 U.S. 36 , 59 n.9 (2004) (

"When the

declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at

all on the use of his prior testimonial statements.").

7. The State's sole ground for review asks, "Does Article 38.72 [sic] of the Texas Code of

Criminal Procedure 'clearly contemplate' that an outcry statement will be offered only though an

outcry witness, or may a videotape of the child's outcry to that witness be played if both the witness

and child are available for cross-examination?"

8. The outcry statute has its historical origins in the law of evidence relating to rape and

statutory rape prosecutions. In a rape prosecution, a conviction would not be sustained on the

uncorroborated testimony of a complainant who failed to make a prompt outcry. See White v. State ,

478 S.W.2d 506, 508 (Tex. Crim. App. 1972) (testimony of prosecuting witness in rape case "need

not be corroborated except in instances of a belated outcry"). Outcry evidence, therefore, was

historically admissible at trial, but (1) only for the limited purpose of proving that an outcry had

occurred, and (2) the content of the outcry was inadmissible. See, e.g., Holland v. State , 802 S.W.2d

696 , 699 n.4 (Tex. Crim. App. 1991) (explaining that "outcry or recent complaint evidence is not

considered hearsay" because only "bare fact" of outcry, not "content of outcry," admissible); Sledge

v. State , 686 S.W.2d 127, 130 (Tex. Crim. App. 1984) (noting that

"State was entitled to show only

the fact of ' outcry,' but not the details or underlying circumstances"). The outcry statute modifies

this common-law rule by permitting the fact finder to consider the outcry as substantive evidence,

but only if certain procedural and content requirements are met. See Tex. Code Crim. Proc. art.

38.072, § 2(a) (creating hearsay exception for "statements" of child-complainant that "describe the

alleged offense" and are made to "first person" child told about offense); Martinez , 178 S.W.3d at

811 (noting that hearsay exception for outcry "carefully limited" and applicable only when "specified

conditions" are met).

9. In 2009, when the Legislature amended the outcry statute to increase the statutory maximum

age of a qualifying child-victim from 12 to 14, the Legislature reaffirmed the purpose of the outcry

statute, noting that "an outcry witness may be allowed by the judge to give testimony regarding

statements from the victim concerning the alleged offense." See House Research Organization,

Bill Analysis, H.B. 2846, 81st Leg., R.S. (May 8, 2009). Lawmakers additionally noted that only

outcry "testimony" describing "the alleged offense" would be admissible at trial, while statements

describing extraneous offenses would be inadmissible. See Senate Research Center, Bill

Analysis, Tex. H.B. 2846, 81st Leg., R.S. (May 19, 2009).

10. We may presume that legislators, in enacting the outcry statute, were aware of our case law

dealing with the issue of outcry evidence. See Scott v. State , 55 S.W.3d 593, 596 (Tex. Crim. App.

2001) (we may "

presume the Legislature was aware" of relevant case law in drafting provisions ). For

more than fifty years, this Court has described "outcry" evidence as consisting of testimony by a

witness who describes the complainant's first revelations of abuse. See, e.g. , Richardson v. State ,

458 S.W.2d 665, 666 (Tex. Crim. App. 1970) (rejecting appellant's hearsay complaint that "witness

testified that [complainant] came to his house immediately after" the assault and reported the rape;

testimony relating complainant's "outcry was clearly an exception to the hearsay rule"); Torbert v.

State , 313 S.W.2d 303, 307 (Tex. Crim. App. 1958) (upholding admissibility of complainant's

parents' "testimony . . . as to the outcry made to them"); Hale v. State , 300 S.W.2d 75, 76 (Tex. Crim

App. 1957) (trial court did not err in permitting father to " recount the outcry made by the child"

morning after sexual assault). This historical background strongly suggests that lawmakers would

have understood that they were creating a means of admitting the live testimony of the first adult in

whom the complainant confided, and not a videotaped statement from the complainant herself.

11. The legislative history indicates that lawmakers intended to

narrowly limit the scope of the

outcry statute to statements made to a trusted confidant of the child. See Tex. Code Crim. Proc. art.

38.072, §2(a)(3) (permitting only first outcry witness to testify). Prior to enacting the "first person"

rule, lawmakers rejected a proposal that would have instead permitted the testimony of trained child

advocates. See House Study Group , Bill Analysis , Tex. H.B. 579, 69th Leg., R.S. (May 9, 1985)

(bill's opponents stated that "this exception to the hearsay rule should not be so limited," and that

"it would make more sense to allow those specifically trained in child-abuse cases to testify as well

about what the victim had previously said to them about the alleged offense"). Instead the Legislature

adopted the current provision making admissible only the "testimony" of the "first person a child

cries out to." Id .

12. Pursuant to the Texas Family Code, an interview conducted by TDFPS must be audio- or

video-recorded if conducted during an active investigation. See Tex. Fam. Code § 261.302(e).

Admissibility of such recorded interviews at trial is governed by the video statute, which specifically

applies to pretrial videotaped statements from a victim. See Tex. Code Crim. Proc. art. 38.071.

Under the video statute, among additional requirements, a recording of a victim statement is

admissible only when the child is unavailable to testify and the trial court finds either (1) that the

factual issues were "fully and fairly" inquired into in a "detached manner" by a neutral individual

experienced in child-abuse cases who "seeks to find the truth of the matter," or (2) that "the

statement was not made in response to questioning calculated to lead the child to make a particular

statement," that the person conducting the interview is an expert in handling child abuse cases and

subject to cross-examination at trial, that law enforcement and attorneys were not present, and that

the child was placed under oath prior to making the statement. See id. at §§ 1, 2, 5.

13. This Court recently held certain provisions of the video statute unconstitutional on

Confrontation Clause grounds. See Coronado v. State , 351 S.W.3d 315, 317, 329-31 (Tex. Crim.

App. 2011) (holding that article 38.071, § 2, provision allowing for use of videotaped ex parte

interrogatories submitted by defendant and posed by "neutral" forensic interviewer was not

"constitutional substitute for live cross-examination and confrontation" of victim). In Coronado , we

reasoned that the video statute provision allowing for ex parte interrogatories violated the

Confrontation Clause because there was no "rigorous adversarial testing" of the victim's statements

by the "greatest legal engine for uncovering the truth: contemporaneous cross examination." See id .

at 331; U.S. Const., amend. VI. We further noted that courts have routinely held that videotaped

victim interviews are testimonial and thus inadmissible pursuant to the Confrontation Clause unless

the child testifies at trial or the defendant had a prior opportunity for cross-examination. Coronado ,

351 S.W.3d at 325 .

14. The legislative-committee report supporting passage of the outcry statute indicates that

legislators were mindful of preserving "the defendant's right to confront the witness," and, for this

reason, lawmakers included the requirement that the complainant "be available to testify in court."

See

House Study Group, Bill Analysis, Tex. H.B. 579, 69th Leg., R.S. (May 9, 1985). For

similar reasons, lawmakers stipulated that a child's videotaped statements would be inadmissible at

trial unless the child-complainant had been declared unavailable to testify. See House Committee

on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 66, 70th Leg., 2nd C.S. (July 17, 1987)

(amending video statute to provide additional protections under the Confrontation Clause, including

that finding of unavailability be "individualized").

15. See, e.g., Edwards v. State , 107 S.W.3d 107, 110-11 (Tex. App.--Texarkana 2003, pet. ref'd)

(holding trial court abused its discretion by "admitt[ing] the videotaped interview with the child

without any evidence to reflect the child was unavailable to testify," in violation of video statute);

Morales v. State , 222 S.W.3d 134, 142 (Tex. App.--Corpus Christi 2006, no pet.) ("child-complainant must be unavailable to testify before a videotape of the child's testimony is admissible"

under video statute).

16. Relying on this same rationale, we have previously held that we would not allow one hearsay

exception to be used as a "back door" for admitting evidence expressly excepted from another

hearsay exception, thereby indicating legislative intent to maintain the normal operation of the

hearsay rule with respect to that evidence. See Cole v. State , 839 S.W.2d 798, 811 (Tex. Crim. App.

1992) (op. on reh'g) (law enforcement investigative reports do not fall within hearsay exception for

business records).

17. Presiding Judge Keller suggests that we should analyze the outcry statute in the same way

that we analyze other hearsay exceptions, such as excited utterances, where we determine whether

the evidence supports that exception, but then permit that evidence to be introduced through any

form, such as testimony or a recording of a 911 call.

See Gardner v. State , 306 S.W.3d 274, 288-92

(Tex. Crim. App. 2009). This comparison, however, is inapplicable here for two reasons. First, to

constitute as an excited utterance, a statement must relate to a startling event or condition and have

been made while the declarant was under the stress of excitement caused by the event or condition.

See Tex. R. Evid. 803(2); Zuliani v. State , 97 S.W.3d 589, 595-96 (Tex. Crim. App. 2003). Nothing

in the excited utterance hearsay exception limits the form of the evidence in any way. In contrast,

the outcry statute clearly contemplates the role of an outcry "witness" through whom the child's

statement will be offered, and is thus not wholly silent with respect to how the outcry evidence will

be presented at trial. See Tex. Code Crim. Proc. art. 38.072 , § 2. Second, as explained in more

detail above, the legislative history of the outcry and video statutes reveals that the Legislature

intended to require that videotaped victim statements meet certain requirements aimed at

guaranteeing the neutrality of the interviewer and unavailability of the child, whereas the outcry

statute was intended to be limited to statements made to the first outcry witness. Because videotapes

may be admissible generally for other hearsay exceptions, this does not mean that a statute governing

a very specific type of hearsay may not exclude videotapes and instead require that the proper outcry

witness actually testify. See Tex. R. Evid. 101(c) (Code of Criminal Procedure provisions take

precedence over Texas Rules of Evidence; inconsistencies to be removed "by reasonable

construction"). We are unpersuaded by the argument that because videotapes are generally

admissible under the rules of evidence they must, therefore, be permitted here.