Bays v. State

• Citation: 396 S.W.3d 580
• Decision Date: 17 April 2013
• Docket Number: No. PD–1909–11.,PD–1909–11.
• Parties: Michael Jay BAYS, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

396 S.W.3d 580

Michael Jay BAYS, Appellant

v.The STATE of Texas.

No. PD–1909–11.

Court of Criminal Appeals of Texas.

April 17, 2013.

Recognized as Unconstitutional

Vernon's Ann.Texas C.C.P. art. 38.071George McCall Secrest, Jr., Attorney at Law, Houston, TX, for Appellant.

Zan Colson Brown, Assistant District Attorney, Longview, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for State.

OPINION

ALCALA, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined.

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.¹SeeTex.CodeCrim. 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. SeeTex. 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. SeeTex. 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.” SeeTex.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, the 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) (d...