Smith, Skie Jordan

PD-0325-15

PD-0325-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/25/2015 1:51:31 PM

Accepted 3/26/2015 1:22:42 PM

ABEL ACOSTA

CLERK

NO. ___________

TO THE COURT OF CRIMINAL APPEALS OF TEXAS

SKIE JORDAN SMITH Appellant

VS.

THE STATE OF TEXAS, Appellee

***************

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

**************

FROM THE COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS

AT TEXARKANA

NO. 06-14-00071-CR

MARION COUNTY

TRIAL COURT NO. F14369

Tim Cone

P.O. Box 413

Gilmer, Texas 75644

State Bar #04660350

March 26, 2015

ATTORNEY FOR APPELLANT

2

TABLE OF CONTENTS

Page

Table of Contents………………………………………… 2

Name of All Parties……………………………………… 3

Index of Authorities……………………………………… 4

Statement of the Case……………………………………. 5

Statement of the Procedural History…………………….. 7

Statement Declining Oral Argument……………………. 7

Questions for Review…………………………………… 7

Question One:

Did the Court of Appeals err in finding Appellant’s

trial attorney failed to preserve error regarding the proper outcry

witness?................................................................. 7,8

Question Two:

Did the Court of Appeals err in finding Appellant’s

trial attorney failed to preserve error regarding the

admission of an inadmissible tape recorded statement

of the complaining witness?.............................................. 7,9

Reasons for Review……………………………………… 8

Argument and Authorities……………………………….. 8

Prayer and Relief………………………………………… 11

Certificate of Compliance……………………………….. 12

Certificate of Service…………………………………….. 12

Appendix – Court of Appeals Opinion

3

NAMES OF ALL PARTIES

The parties to the trial court’s judgment are the State of Texas and

Appellant, Skie Jordon Smith, TDCJ.

The trial court judge was the Honorable Lauren Parish, 115th Judicial

District Court, Marion County, Texas.

At trial and on appeal, the State was represented by Marion County

Attorney Angela Smoak, Marion County, Texas.

Appellant was represented at trial by Matthew R. Patton, III, 316 Titus

Street, Gilmer, Texas, and on appeal by Tim Cone, Gilmer, Texas.

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INDEX OF AUTHORITIES

PAGE

STATUTES:

Texas Code of Criminal Procedure, Art. 38.072……………..... 8

Texas Code of Criminal Procedure, Art. 38.071………………. 9

RULES:

Texas Rule of Appellate Procedure, 66.3(f)……………………. 8

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SKIE JORDAN SMITH Appellant

V.

THE STATE OF TEXAS Appellee

**********

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

**********

TO THE HONORABLE COURT OF APPEALS:

Comes now Skie Jordan Smith, Appellant, and respectfully urges this

Court to grant discretionary review in this case.

STATEMENT OF THE CASE

SKIE JORDAN SMITH appeals the conviction and sentence for

Aggravated Sexual Assault of a Child. The Appellant was indicted in Cause

Number F14369 by the Marion County Grand Jury on September 28, 2012,

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for the offense of Aggravated Sexual Assault of a Child. CR8. The sole

allegation set out in the indictment accused the Appellant of oral penetration

of the child by his sexual organ. CR8. On November 12, 2013, a hearing on

Appellant’s motion to suppress evidence was held. Supp.1RR. The

Appellant’s motion was denied. Supp.1RR41. A jury was selected on March

17, 2014. 2RR. On the same day, before jury selection began, the trial court

held a hearing on the Appellant’s objection to the testimony of the outcry

witness, the mother of the child (Tereena Woods). 2RR4-20. Trial began on

March 18, 2014. 3RR. The jury convicted the Appellant of Aggravated

Sexual Assault of a Child on March 19, 2014, and assessed his punishment

at forty years confinement in the Institutional Division of the Texas

Department of Criminal Justice. 4RR97, 108. On February 25, 2015, the

Sixth Court of Appeals affirmed the conviction in a published opinion. The

Appellant now files this Petition for Discretionary Review.

For clarity, THE STATE OF TEXAS will be referred to as “The

State”, and SKIE JORDAN SMITH, will be referred to as “Defendant” or

“Appellant.”

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STATEMENT OF PROCEDURAL HISTORY

The case was appealed to the Court of Appeals, Sixth Appellate

District of Texas at Texarkana. On February 25, 2015, that Court affirmed

the conviction in an opinion that was published. There was no motion for

rehearing filed.

STATEMENT DECLINING ORAL ARGUMENT

Oral argument of this case is not requested on behalf of Appellant.

QUESTIONS FOR REVIEW

Question No.1

Did the Court of Appeals err in finding the Appellant’s trial attorney

failed to preserve error regarding the proper outcry witness?

Question No. 2

Did the Court of Appeals err in finding the Appellant’s trial attorney

failed to preserve error regarding the admission of an inadmissible tape

recorded statement of the complaining witness?

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REASONS FOR REVIEW

Texas Rule of Appellate Procedure 66.3(f): A Court of Appeals has

so far departed from the accepted and usual course of proceedings as to call

for an exercise of the Court of Criminal Appeals power of supervision.

Further, this matter should be addressed by the Court of Criminal Appeals in

the best interest of justice.

ARGUMENT AND AUTHORITIES

Question No. 1

Prior to trial beginning, Appellant’s trial attorney objected to the

mother of the complaining witness (pseudonym “Jane Doe”, a child) being

allowed to testify as the proper outcry witness. At the end of the hearing, the

trial court overruled the objection and ruled that the mother of the child

could testify at trial as the outcry witness, which she did. The Texas Code of

Criminal Procedure, Art. 38.072 allows for the admission of the testimony of

an outcry witness from the first person over eighteen years of age the child

tells of the alleged abuse. During the first (of two) CAC interviews-both of

which were published to the jury at trial, the child (Jane) clearly tells the

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CAC interviewer the first person she told of the alleged abuse was

“Memaw” (State’s exhibit no. 4). While the record is not a model of clarity

regarding the identity of “Memaw”, it does appear fairly clear that

“Memaw” is the maternal grandmother of the child-who would be an adult

over the age of eighteen years. The Court of Appeals held that the

Appellant’s trial counsel failed to preserve the error in this regard. However,

it was based on the request of the Appellant’s trial attorney that the pretrial

hearing was held-based on the objection to the child’s mother as the proper

outcry witness. The Court of Appeals should have held that the issue was

preserved and a fair review of the record shows the child’s mother was not

shown to have been the proper outcry witness. As such, the mother’s

testimony should not have been admitted as to the outcry statements from

the child, which were very harmful to the Appellant.

Question No. 2

At trial, the child testified. Therefore, no CAC recorded interview was

admissible. Texas Code of Criminal Procedure, Art. 38.071. In the case at

bar, the child gave two CAC recorded interviews. In the first interview, the

child denied any act on the part of the Appellant that would substantiate the

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allegations set out in the indictment. (State’s exhibit No. 4). In the second

CAC interview, the child did make statements that would support the

allegations in the indictment. Appellant’s trial attorney did not object to the

admission of the first interview. This would seem to be sound trial strategy

since the statements made by the child essentially denied the allegation set

forth in the indictment. However, when the State offered the second CAC

recorded interview (State’s exhibit No.5), the Appellant’s trial attorney did

object. The objection made at trial was that the recording was improper

redirect examination. The Court of Appeals held the trial objection and the

point of appeal were not the same; therefore, error was not preserved. The

argument made on appeal was that the recording was inadmissible under the

statute and lent credibility to the testimony of the child. Appellant’s trial

attorney made an objection that the recording was improper redirect

examination. The reason the recording was not admissible was that it was

improper redirect examination in that it was not admissible under the statute

and it lent credibility to the child’s testimony. The same exact words may

not have been used at trial and on appeal but the objection and the point of

error refer to the same erroneous admission of the recording. The Court of

Appeals should have found that the admission of the second CAC interview

was error and clearly harmful to the Appellant.

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PRAYER AND RELIEF

Appellant prays that this Petition for Discretionary Review be

granted; that this case be submitted to the Court after full briefing; that the

Court of Appeals’ decision be set aside, the case remanded to the Court of

Appeals for further review or that the Appellant receive a new trial.

Respectfully submitted,

/s/ Tim Cone

________________________

TIM CONE

State Bar #04660350

Attorney for Appellant

P.O. Box 413

Gilmer, Texas 75644

903-725-6270

903-725-5494 (Fax)

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CERTIFICATE OF COMPLIANCE

I certify that the foregoing document complies with Texas Rules of

Appellate Procedure, Rule 9 regarding length of documents, in that

exclusive of caption, identify of parties and counsel, statement regarding

oral argument, table of contents, index of authorities, statement of the case,

statement of issues presented, statement of jurisdiction, statement of

procedural history, signature, proof of service, certification, certificate of

compliance, and appendix, it consist of 571 words.

/s/Tim Cone

_________________________

TIM CONE

CERTIFICATE OF SERVICE

On the 25th day of March, 2015, copies of the foregoing Appellant’s

Petition for Discretionary Review were delivered to the Office of Honorable

Angela Smoak, Marion County Attorney, 102 West Jefferson, Jefferson,

Texas 75657, and the State Prosecuting Attorney, at P.O. Box 13046,

Capitol Station, Austin, Texas 78711, by United States mail postage

prepaid.

/s/Tim Cone

_________________________

TIM CONE

Counsel for Appellant

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00071-CR

SKIE JORDAN SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th District Court

Marion County, Texas

Trial Court No. F14369

Before Morriss, C.J., Moseley and Burgess, JJ.

Opinion by Justice Moseley

OPINION

Skie Jordan Smith was convicted by a Marion County jury for the aggravated sexual

assault of Jane Doe, 1 a child younger than fourteen years of age, and sentenced to forty years’

incarceration. On appeal, Smith raises three complaints: (1) he maintains that the person

allowed to testify as an outcry witness did not properly qualify as an outcry witness under the

relevant Texas Code of Criminal Procedure provision, (2) Smith takes the position that the

evidence against him was insufficient to support a finding of guilt, and (3) he complains that the

trial court erred in allowing the admission into evidence of an audio/video-recorded interview

with the child complainant. Upon review of the record and applicable law, we overrule Smith’s

points of error and affirm the trial court’s judgment and sentence.

I. The Evidence Was Sufficient

In order to avoid redundancy in stating the evidence presented, we first examine the

sufficiency of the evidence to support Smith’s conviction.

In evaluating the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the trial court’s judgment to determine whether any rational jury could have

found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine

legal sufficiency under the direction of Brooks, while giving deference to the responsibility of

the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

1

This is a pseudonym employed in this opinion to protect the identity of the child victim.

2

inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson, 443 U.S. at 318–19).

Sufficiency of the evidence is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.” Id.

Under the hypothetically correct jury charge standard, in order to sustain the charges

made against Smith, the State was required to prove that Smith intentionally or knowingly

caused the penetration of Jane’s mouth with his sexual organ and that this act occurred in Marion

County. See TEX. PENAL CODE Ann. § 22.021(a)(1)(B)(ii) (West Supp. 2014).

Jane is the daughter of Smith’s former girlfriend. Nine years old at the time of trial, Jane

testified that during a span of time when she and her mother lived with Smith in Oklahoma and,

later, in an apartment in Jefferson, Texas, Smith engaged in regular touching of Jane’s “private”

and bottom. 2 The child also said that while the parties lived in the Jefferson apartment, on more

than one occasion, Smith made her put his private into her mouth and that “white stuff came out”

2

It is understood that child sexual assault victims may well describe their relevant body parts without the

sophistication, specificity, or anatomical accuracy employed by adults or, for that matter, by the criminal statutes

being enforced. “Where the child has sufficiently communicated to the trier of fact that the touching occurred to a

part of the body within” the Penal Code’s definitions, “the evidence will be sufficient to support a conviction

regardless of the unsophisticated language that the child uses.” Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim.

App. 1977); see also Guia v. State, 723 S.W.2d 763, 765 (Tex. App.—Dallas 1986, pet. ref’d) (touching where one

“‘went to the bathroom’” or “‘tee-teed’” sufficient for sexual contact); Bryant v. State, 685 S.W.2d 472, 474–75

(Tex. App.—Fort Worth 1985, pet. ref’d) (being touched “between her legs” sufficient for sexual contact). Jane

testified sufficiently to identify her terms for her and Smith’s body parts as corresponding with their respective

sexual organs, and Smith does not challenge this aspect of her testimony.

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of it. 3 Jane said this happened more than ten times, and she also described the various rooms in

the apartment where these abuses took place and the clothing she and Smith wore on many of

those occasions. She testified about an incident that took place in Oklahoma when Smith and his

brother were present. On that occasion, she was made to take Smith’s brother’s “pee-pee” in her

mouth.

Based on Jane’s testimony, the evidence was sufficient to support a finding that Smith

knowingly or intentionally caused the penetration of Jane’s mouth with his sexual organ, that

Jane was a child under the age of fourteen at the time, and that the act occurred in Marion

County. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii) (West Supp. 2014). The testimony of

a child complainant, standing alone, “is sufficient to support a conviction for aggravated sexual

assault.” Allen v. State, 436 S.W.3d 815, 820 (Tex. App.—Texarkana 2014, pet. ref’d); see also

TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014).

In addition to the above, Jane’s mother testified that one evening, she smelled a “vaginal

smell” emanating from Jane’s fingers; concerned that Jane had been masturbating, she

questioned her. Jane related to her mother that Smith had taught her to touch her vaginal area

and also revealed that Smith had made the child take his sexual organ in her mouth. The State

introduced two audio/video recordings of interviews Jane gave at the local Children’s Advocacy

Center (CAC) into evidence. In those interviews, Jane described the above sexual assaults as

well as other inappropriate activity (such as Smith masturbating on the bathroom floor while

3

Jane said that on at least one occasion, Smith told her, “Don’t swallow it.”

4

Jane and Smith’s son took a bath together at Smith’s insistence and Smith showing Jane

pornographic material). 4 The evidence was sufficient to support the jury’s finding of guilt.

II. Identity of Proper Outcry Witness

Smith complains in his appellate brief that the trial court erred in allowing Jane’s mother

to testify as an outcry witness. 5 Smith argues that a relative or friend of Jane, to whom Jane

referred as “Memaw,” was the proper outcry witness, not Jane’s mother.

On appeal, Smith points to Jane’s statement in one of the recorded interviews wherein

she related that she told Memaw about Smith’s abuse before she told her mother. 6 There was a

hearing held regarding the admissibility of Jane’s mother’s testimony as an outcry witness. In

the pretrial hearing regarding this issue, Smith never raised any issue pertaining to Memaw, what

might have been said by Jane to Memaw, at what time it might have been said, or whether

Memaw would have been a proper outcry witness. He never asked about Jane’s statement in the

recording that she had told Memaw something about Smith’s conduct before she told her

4

Some of this evidence—the mother’s testimony of Jane’s outcry statement and one of the recorded interviews—is

the subject of other points of error. Jane’s testimony was sufficient to support the conviction.

5

See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2014). “The outcry statute creates a hearsay exception

for a child’s first outcry of sexual abuse to an adult.” Bays v. State, 396 S.W.3d 580, 581 n.1 (Tex. Crim. App.

2013). This exception is allowed if the child makes a statement describing the alleged offenses, and it allows the

first person over the age of eighteen to relate the child’s statement at trial. Id.

6

Jane gave two audio/video-recorded interviews at the local CAC. The recordings were admitted into evidence,

even though Jane testified at trial. We address these interviews in our analysis of Smith’s third point of error, infra.

Even if the recordings were not admissible, Smith failed to lodge an objection to them at trial. As a result, the

evidence still has probative value in our review of the sufficiency of the evidence. See TEX. R. EVID. 802;

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (hearsay evidence admitted without objection still

given probative value).

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mother. 7 The only witness at that hearing was Jane’s mother, who described what Jane told her

about Smith’s abuses and the chronology of those disclosures. Smith’s cross-examination of the

mother focused on which acts Smith had performed on or with Jane, the time frame of when Jane

had told her mother of Smith’s actions, and whether Jane related other acts subsequent to the first

time she told her mother about Smith’s improprieties. In other words, Smith only inquired into

what Jane had told her mother and when she had told her those things. For example, Jane’s

mother said that during the initial outcry, Jane told her that Smith had taught her to touch her

private area and that Smith had made her put his “pee-pee” in her mouth. Jane’s mother went on

to say that on subsequent occasions, the child disclosed more of Smith’s activities (such as an

occasion where Smith made Jane and Smith’s son take a bath together while Smith “pulled his

pee-pee out and moved it back and forth real fast”). Smith never argued at that time that Jane

had made other prior comments which would qualify as outcry statements to another person over

the age of eighteen. In explaining his objection to the trial court, Smith stated that he wanted the

mother’s testimony limited to Jane’s initial outcry. Smith argued,

But she later, the girl talked [to] several other people and more stuff came out and

what she [Jane’s mother] testified yesterday I’ve got no objection to, but if she

wants to expound on it, well, she later told me this and this and this, I do have a

problem because that wasn’t the initial outcry.

Smith indicated he would lodge objections during trial if the mother testified to incidents other

than those told her during Jane’s initial outcry.

7

As a matter of fact, neither audio/video recorded interview was offered, admitted, or even discussed at the hearing

on the admissibility of Jane’s mother’s testimony as an outcry witness. Also, in her trial testimony, Jane said she

told her mother before she told Memaw. Just as a child is not expected to testify with the anatomical specificity

expected of an adult, generalities and imprecisions in reciting chronological order can be understood. See, e.g.,

Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (considering child’s “rough

time-frame of the events” in relating sexual abuses).

6

Nothing in Smith’s trial objections alerted the trial court that Smith believed Jane’s

mother was not the proper outcry witness. An appellate point of error must have been raised by

a motion or objection at trial, and the complaint raised on appeal must be the same as that urged

at trial. Otherwise, the appellant has not preserved the matter for appellate review. TEX. R. APP.

P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (nothing preserved for

review if issue on appeal does not comport with objection at trial). Because his trial objection

does not comport with this point of error raised on appeal, Smith failed to preserve the issue for

our review.

Even if Smith had objected at trial on the ground that Jane’s mother was not the proper

outcry witness, he presented no evidence to the trial court establishing that any other person

would have qualified in that capacity. His statement to the trial court that Jane had spoken to

other people “and more stuff came out” was neither explained by him nor supported by evidence

at the pretrial hearing. Further, even had Jane told other people about different conduct or acts

Smith had done to her, such a revelation (if the other statutory requirements were met) would not

necessarily preclude those persons from testifying under the outcry statement’s authorization.

As we have noted previously,

[A]n outcry witness is not person-specific, but event-specific. Before more than

one outcry witness may testify, however, the outcry must be about different

events, and not simply a repetition of the same event as related by the victim to

different individuals. . . . [T]here may be two proper outcry witnesses if they each

testify about different events, but there may be only one outcry witness to the

victim’s statement about a single event. The proper outcry witness to a single

event is the first adult person other than the defendant to whom the victim made a

statement describing the incident.

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Broderick v. State, 35 S.W.3d 67, 73–74 (Tex. App.—Texarkana 2000, pet. ref’d). There was

nothing before the trial court suggesting that Jane made event-specific outcries to any person

other than her mother. Had this matter been preserved for our review, we could not find that the

trial court abused its discretion in overruling Smith’s challenge to Jane’s mother testifying as the

outcry witness. 8

III. Admission of Audio/Video Recorded Interviews

In his third point of error, Smith complains of the admission into evidence of the second

audio/video-recorded interview which Jane gave at the CAC. In certain circumstances, an

audio/video recording of a statement given by a child sexual-assault complainant may be

admissible in a criminal prosecution, but the statutory authority for such admission is limited to

situations where the child complainant is “unavailable to testify in the presence of the defendant .

. . .” TEX. CODE CRIM. PROC. ANN. art. 38.071 (West Supp. 2014). Smith is correct in arguing

that Jane was available to testify (not only was she available to testify, she actually did testify)

and, thus, the recording was not admissible under Article 38.071.

Article 38.071’s requirements are numerous and clear; those requirements are not

satisfied where the child is available to testify at trial. Bays v. State, 396 S.W.3d 580, 590 (Tex.

Crim. App. 2013). In Bays, the child complainant testified at trial, but the State also was allowed

to introduce an audio/video-recorded interview of the child. This Court overturned Bays’

conviction after finding that the trial court committed reversible error in the admission of the

8

We review a trial court’s ruling on a challenge to the outcry witness under an abuse of discretion standard. Eldred

v. State, 431 S.W.3d 177, 182 (Tex. App.—Texarkana 2014, no pet.).

8

video interview, despite the argument of the State that the recording was admissible under the

outcry statute, Article 38.072. 9 On appeal, the Texas Court of Criminal Appeals rejected that

argument, ruling that “[t]o permit admission of a complainant’s videotaped statement under the

more lenient outcry statute would undermine [Article 38.071’s] rigid unavailability requirement

and its requirements aimed at guaranteeing the expertise and neutrality of the interviewer.” Id.

Because Jane testified at trial, neither of her recorded interviews was admissible at trial. 10

Smith did not object to admission of the first audio/video-recorded interview. Smith argues that

this was a reasonable strategy, as Jane did not, during that interview, allege conduct amounting

to the indicted offense. It was only in the second interview that Jane described Smith’s

penetration of Jane’s mouth with his sexual organ. When the State offered this interview, Smith

couched his objection to its introduction in this fashion: “(S)ubject to my prior objection I would

object, it’s not proper redirect.” Unless he was referring to the pretrial hearing concerning the

outcry witness, we locate no “prior objection” to which Smith may have been referring in that

statement. As discussed above, the focus of the pretrial hearing was on Jane’s outcry statements

to her mother; there was no mention of the admissibility of either of the recorded interviews or of

the State’s compliance with Article 38.071. An argument that the second audio/video-recorded

interview was not proper redirect examination is not the same objection as one claiming that the

video recording is not admissible pursuant to Article 38.071. Although there may have been a

valid argument for the exclusion of the audio/video recorded interview, that argument was not

9

Bays v. State, No. 06-10-00115-CR, 2011 WL 6091773, at *6 (Tex. App.—Texarkana Dec. 7, 2011) (mem. op., not

designated for publication), aff’d, 396 S.W.3d 580 (Tex. Crim. App. 2013).

10

But see TEX. R. EVID. 801(e)(1)(D) (statement not hearsay when (1) declarant testifies at trial or hearing,

(2) declarant is subject to cross-examination, and (3) statement offered in accordance with Article 38.071).

9

presented to the trial court. As we have stated previously both in this opinion and elsewhere, an

appellant’s point of error on appeal must be the same as the objection lodged in the trial court,

lest the complaint not be preserved for our review. We overrule this point of error.

We affirm the judgment of the trial court.

Bailey C. Moseley

Justice

Date Submitted: January 7, 2015

Date Decided: February 25, 2015

Publish

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