Barnes v. State
| Decision Date | 12 May 2005 |
| Docket Number | No. 03-04-00059-CR.,03-04-00059-CR. |
| Parties | Jonathan BARNES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Supreme Court |
Alexander L. Calhoun, Austin, for Appellant.
Melinda E. O'Neil, Asst. Crim. Dist. Atty., Lockhart, for Appellee.
Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
A jury found appellant Jonathan Barnes guilty of three counts of aggravated sexual assault of a child, for each of which it assessed punishment at ninety-nine years' imprisonment and a $10,000 fine. See Tex. Pen.Code Ann. § 22.021 (West Supp.2004-05). Appellant brings forward nine points of error complaining of the admission of hearsay, unqualified expert testimony, and extraneous misconduct evidence; a violation of the witness exclusion rule; the denial of his right of confrontation; improper jury argument; and double jeopardy. Finding appellant's double jeopardy claim to be well-taken, we will reform the judgment of conviction to set aside the conviction on one of the three counts. We will overrule appellant's remaining points of error and affirm the judgment of conviction as reformed.
In July 2002, appellant was living in Lockhart with his two daughters, his girlfriend Jamie Corley, and Corley's son. On July 8, Corley and the children went to visit a friend in Manchaca. Corley testified that during a private moment that night, appellant's ten-year-old daughter, C.B., asked Corley "if she could tell me something." C.B. then told Corley that C.B. added that she "was touched down in her personal area and on her mouth." Corley testified that C.B. had pointed to her vaginal area when she said "down there" and had said that "it bled and it hurt." C.B. told Corley that this had happened more than once, soon after her mother died in 1997.1
After returning to Lockhart on the morning of July 9, Corley told appellant what C.B. had said. They argued, and appellant ordered Corley and her son out of the house. Corley went to a neighbor's house and called the police.
Lockhart police officer Tara Tippie was one of the officers who responded to the call. Tippie testified that appellant remained calm when told why the officers were there. He admitted Tippie into the house, introduced her to his daughters, and remained outside while Tippie spoke to the girls. Tippie testified that C.B. told her that "her dad had made her have sex with him." More specifically, Tippie testified that C.B. said that "her father had put his penis in her mouth" and "also she pointed down to her vagina area."
Tippie's patrol car was equipped with video recording equipment and the officer was wearing a microphone. Her conversation with C.B. was recorded, and the recording was introduced in evidence by the defense and played for the jury. The court reporter's record reflects that C.B. told Tippie, "Daddy forced me to have sex with him." Asked when, C.B. answered, Asked how often this had happened, C.B. replied, "It was three or four times." Asked what he had made her do, C.B. said, "He put his — he put his penis in my mouth and here."
Dr. Beth Nauert, a pediatrician, examined C.B. at the Children's Advocacy Center two weeks after her outcry. Nauert testified that during a preliminary interview, C.B. told her that when she was "4 or 5 or 6," her father "took [her] clothes off" and touched her with "his hands and his nuts." Nauert said that C.B. described being touched "both in her mouth and her vaginal area." Asked by the prosecutor "whether or not there had been actual penetration of the vaginal area," Nauert replied, Later, during cross-examination, Nauert testified that she was unsure whether C.B. had said that she was touched "in" or "inside" her vaginal area. Nauert also said that she and C.B. did not discuss how often this had happened.
Nauert testified that C.B.'s physical examination was normal. Specifically, C.B.'s hymen was intact and there was no physical indication of sexual abuse. Nauert testified that the physical examination did not rule out the possibility of sexual abuse, but did not confirm it.
C.B., who was eleven at the time of trial, testified by closed-circuit television. She was a reluctant witness. She acknowledged having received "bad touches," but refused to elaborate. At the State's request, the court allowed C.B. to answer questions by writing on a legal pad. In this manner, C.B. testified that she was mad at appellant because "he raped me." She also testified that she had seen a penis only once, during a fifth-grade class.
In his own testimony, appellant denied committing the alleged offenses. He and other defense witnesses testified that Corley was mentally unstable and not credible. Appellant believed that Corley had caused C.B. to make the false accusations against him.
Appellant contends the trial court erred by admitting Officer Tippie's testimony describing C.B.'s statements to her on the morning of July 9. The court overruled appellant's hearsay objection after the State invoked the excited utterance exception. Tex.R. Evid. 803(2). We review evidence rulings for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App.1991) (op. on reh'g).
Rule 803(2) permits the admission of an out-of-court statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The exception is founded on the belief that a statement made as a result of a startling event or condition is involuntary and does not allow the declarant an opportunity to reflect or fabricate, thereby ensuring its trustworthiness. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003); Gutierrez v. State, 85 S.W.3d 446, 455 (Tex.App.-Austin 2002, pet. ref'd). It is not dispositive that the statement was made in answer to a question or that it was separated by a period of time from the startling event, but these are factors to be considered in applying the rule. Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001). The critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement. Id.
Tippie testified that C.B. was crying and "just very withdrawn from me, very upset." There is no evidence, however, that C.B.'s emotional state was due to the stress of excitement caused by some startling event or condition. Appellant's conduct was doubtlessly shocking or startling when it occurred, but there is nothing in the record to indicate that, five years later, C.B. was still dominated by the emotions it produced. It has been held that the startling event that triggers an excited utterance need not be the crime itself. Hunt v. State, 904 S.W.2d 813, 816 (Tex.App.-Fort Worth 1995, pet. ref'd). Assuming this is correct, there is no evidence of any other startling event or condition that triggered C.B.'s statements to Tippie. The circumstances shown by this record do not reflect that C.B.'s statements to the officer "resulted from impulse rather than reason and reflection." Zuliani, 97 S.W.3d at 596 (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App.1964)); and see Harvey v. State, 123 S.W.3d 623, 631 (Tex.App.-Texarkana 2003, pet. ref'd) (). Finding no other grounds for admission, we agree with appellant that the trial court abused its discretion by admitting Tippie's hearsay testimony.
Although Tippie's hearsay testimony was erroneously admitted, reversible error is not presented. The erroneous admission of evidence will not result in reversal when the same evidence was elsewhere received without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998); Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984); Perez v. State, 113 S.W.3d 819, 831 (Tex.App.-Austin 2003, pet. ref'd). During his cross-examination of Tippie, appellant offered in evidence the recording of the officer's conversation with C.B. in which C.B. made the objected-to statements. By introducing C.B.'s statements to Tippie in this manner, appellant waived or forfeited his objection to their earlier admission, or alternatively rendered the earlier error harmless. Leday, 983 S.W.2d at 718. Point of error three is overruled.
Appellant contends the trial court erred by admitting Corley's outcry testimony without holding a hearing to determine its reliability. See Tex.Code Crim. Proc. Ann. art. 38.072 (West Supp.2004-05). Article 38.072 creates an exception to the hearsay rule for the outcry statements of children who are victims of certain sexual and assaultive offenses. As a predicate for the admission of such testimony, the statute requires the trial court to conduct a hearing outside the jury's presence to determine the outcry statement's reliability based on the time, content, and circumstances of the statement. Id. art. 38.072, § 2(b)(2).
Although appellant did not request a hearing or object to its absence, he did timely object to Corley's testimony as hearsay. This placed the burden on the State, as the proponent of the outcry testimony, to show that the evidence was admissible under article 38.072 or some other exception to the hearsay rule. Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App.1990). The State concedes that the only basis for...
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