Arvay v. State

• Decision Date: 07 February 1983
• Docket Number: No. 05-81-00787-CR,05-81-00787-CR
• Parties: Fred ARVAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 320

646 S.W.2d 320

Fred ARVAY, Appellant, v. The STATE of Texas, Appellee.

No. 05-81-00787-CR.

Court of Appeals of Texas,

Dallas.

Feb. 7, 1983.

Kerry P. Fitzgerald, Dallas, for appellant.

Henry Wade, Dist. Atty., Tom Streeter, Asst. Dist. Atty., for appellee.

Before GUITTARD, C.J., and CARVER and FISH, JJ.

CARVER, Justice.

Fred Arvay appeals his conviction of indecency with a child, a violation of Section 21.11(a)(1) of the Texas Penal Code, for which he received a 5 year probated sentence. We affirm.

Arvay's first ground of error is that the trial judge committed reversible error in eliciting from Thomas J. Holbein, Sr., the complainant's father, hearsay testimony made by the complainant, Thomas J. Holbein, Jr. It is argued that the out of court statement made to Holbein, Sr., by his son, that Arvay had been "feeling him up," is inadmissible hearsay. It is well established that a hearsay statement made by a child may be admitted as res gestae, if the trial court finds the usual requirements of res gestae are present such as a spontaneous utterance made under the immediate influence of an exciting event. D.L.N. v. State, 590 S.W.2d 820, 822 (Tex.Civ.App.--Dallas 1979, no writ) (involving deviate sexual intercourse with a child). See also City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 262-63 (1944); Bennett v. State, 382 S.W.2d 930, 931 (Tex.Cr.App.1964); Oldham v. State, 167 Tex.Cr.R. 644, 322 S.W.2d 616, 619 (1959). Holbein, Jr. testified that Arvay's fondling of his genitals had the same effect upon him as if he had "seen a ghost." The trauma of this event, as expressed by Holbein, Jr., supports the trial court's conclusion that he was still suffering from its effects when he informed his father of Arvay's actions less than an hour after they occurred. We hold that the trial court properly exercised its discretion in permitting Holbein, Jr.'s out of court statement to be admitted into evidence as res gestae. See Fretwell v. State, 442 S.W.2d 393, 394 (Tex.Cr.App.1969) (statements made by a child after a sex offense are admissible as res gestae); Hudgeons v. State, 384 S.W.2d 720, 721 (Tex.Cr.App.1964).

Arvay also complains that the evidence provided at trial is both factually and legally insufficient to support the jury's verdict. He contends that under the recent amendment of Article 5, Section 6 of the Texas Constitution, expanding the jurisdiction of the courts of appeals to include criminal matters, the standards of review for testing the factual sufficiency of the evidence to be applied in criminal matters should be the same as is applied in civil matters, i.e., whether "the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust." In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952). We cannot agree. In criminal cases the Court of Appeals does not have the same jurisdiction it has in civil cases to remand for a new trial if it determines that the verdict or judgment is contrary to the overwhelming preponderance of the evidence. Its only function is to determine whether, in the light of all the evidence, considered in the light most favorable to the State, a rational jury could have reasonably concluded that the accused was guilty beyond a reasonable doubt. See Combs v. State, (En banc), 643 S.W.2d 709 at 716 (Tex.Cr.App.1982). This is a question of law rather than one of fact. Id. at 716-717. If the evidence is held to be insufficient by this standard, an acquittal must be ordered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Thus in Combs the court observed in a footnote: "We perceive no other standard may be utilized by the Court of Appeals in reviewing criminal convictions other than sufficiency of the evidence to support the...