Couchman v. State

• Citation: 3 S.W.3d 155
• Parties: (Tex.App.-Fort Worth 1999) ANTHONY ALLAN COUCHMAN, APPELLANT v. THE STATE OF TEXAS, STATE NO. 2-98-116-CR
• Decision Date: 09 September 1999
• Court: Court of Appeals of Texas

Page 155

3 S.W.3d 155 (Tex.App.-Fort Worth 1999)

ANTHONY ALLAN COUCHMAN, APPELLANT v. THE STATE OF TEXAS, STATE

NO. 2-98-116-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

SEPTEMBER 9, 1999

FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

SAM J. DAY, JUSTICE

PANEL B: DAY, RICHARDS, and BRIGHAM, JJ.

OPINION

A jury convicted Anthony "Tony" Allan Couchman of indecency with a child and the trial court assessed punishment at six years' confinement. On appeal, Couchman alleges the trial court erred in allowing two witnesses to testify about statements the victim made to them. He also argues that the State failed to prove venue was proper in Tarrant County. Finally, he contends that the evidence was legally insufficient to prove his identity as the perpetrator or that he touched the complainant with intent to arouse or gratify himself.

We affirm.

I. BACKGROUND

A.T., the complainant in this case, was born in March 1991 to Albert and Kim Taylor. Her parents separated the next year and later divorced. After the divorce, A.T. and her younger brother, K.T., lived with their mother in a house on Lagonda Street in Fort Worth. Their father eventually moved in with his sister, Patricia Arthur.

Couchman began dating Kim in late 1995 and moved into the house on Lagonda Street with her in January 1996. Toward the end of January, A.T.'s maternal grandmother, Linda Bisoul, was babysitting A.T. overnight in Bisoul's home. At bathtime, Bisoul explained to A.T. that she "needed to wash in her private places real good." A.T. told Bisoul that "she had a hole there," to which Bisoul responded, "Yeah, you do." A.T. then told Bisoul that "Tony put his finger there and it hurt."

On Friday, March 1, 1996, Arthur and Albert picked up A.T. and K.T. from their mother's Fort Worth home. The children played all day at Arthur's house and took a bath later that evening. After Arthur washed A.T.'s hair, she instructed her niece to wash the rest of her body. A.T. became upset and refused to wash her genital area, saying it hurt and burned. When Arthur asked why A.T. was hurting, A.T. pointed to her genitals and said Tony had touched her and stuck his finger inside her.

On March 6, 1997, Couchman was indicted on charges of aggravated sexual assault and indecency with a child. After a jury trial, Couchman was acquitted of the aggravated sexual assault charge and found guilty of indecency with a child by contact.

II. ADMISSION OF HEARSAY STATEMENTS

In his first two points, Couchman complains that the trial court erred in allowing Arthur and Bisoul to testify about A.T.'s out-of-court statements because they were hearsay not within any exception.¹ Specifically, he objects to A.T.'s statements that (1) her genitals hurt and burned, and (2) Tony touched her genitals and stuck his finger inside her.

A. Standard of Review

As an appellate court, we review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200, (1997); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). Therefore, we will not reverse a trial court as long as its ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; see Montgomery, 810 S.W.2d at 391. Moreover, if the trial court's ruling on the admission of evidence is correct under any theory of law, even if the trial court gives the wrong reason for its ruling, we must affirm the court's decision to admit the evidence. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Pettigrew v. State, 908 S.W.2d 563, 568 (Tex. App.-Fort Worth 1995, pet. ref'd).

Because the trial court in this case did not specify the basis for admitting A.T.'s out-of-court statements, we must determine whether the record supports a conclusion that the statements fell within one or more of the recognized hearsay exceptions.

B. The Victim's Statements to Arthur

"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX. R. EVID. 801(d). Hearsay is inadmissible at trial except as provided by statute or by the rules of evidence. See TEX. R. EVID. 802; Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). Rule 803(3) of the rules of evidence provides for the admissibility of a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health)." TEX. R. EVID. 803(3). As Couchman acknowledges, A.T.'s statement to Arthur regarding the pain in her genital area was admissible under this section.

Rule 803(3) does not, however, include "a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of [the] declarant's will." Id.; Gibbs v. State, 819 S.W.2d 821, 837 (Tex. Crim. App. 1991), cert. denied, 502 U.S. 1107 (1992). A.T.'s statements that Couchman put his finger inside her genitals and hurt her are statements of memory to prove the fact remembered that are inadmissible under this exception. This does not end our inquiry, however, because another exception applies.

Rule 803(2) of the rules of evidence provides that a statement is not excluded by the hearsay rule if it is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." TEX. R. EVID. 803(2). This exception is founded on the belief that statements made as a result of a startling event or condition are involuntary and do not allow the declarant an adequate opportunity to fabricate, thereby ensuring enough trustworthiness to fall outside the hearsay exception. See Hunt v. State, 904 S.W.2d 813, 816-17 (Tex. App.-Fort Worth 1995, pet. ref'd). In order for the utterance to be admissible under the Rule 803(2) exception, the statement must be the product of a startling occurrence, the declarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence, and the statement must be related to the circumstances of the startling occurrence. See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993); Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim. App.[Panel Op.] 1979).

No single rigid principle governs the admissibility of statements under the excited utterance rule. See Jones v. State, 772 S.W.2d 551, 554-55 (Tex. App.-Dallas 1989, pet. ref'd). The focus of the inquiry is whether the cumulative effect of the three requisites is sufficient to show the reliability of the statement. See Sellers, 588 S.W.2d at 918. Although the other factors are relevant, the critical issue is whether the declarant made the statement while dominated by the emotion arising from a startling event or condition. See McFarland, 845 S.W.2d at 846; Hunt, 904 S.W.2d at 816.

We also note that the startling occurrence that triggers an excited utterance need not necessarily be the crime itself. See Hunt, 904 S.W.2d at 816. In Hunt, an eleven-year-old girl was sexually assaulted by her father's friend. Three months later, she saw a television show about a young rape victim who had been stabbed by her attacker. Id. at 815. The girl began to cry uncontrollably and told her mother about the sexual assault. At trial, the victim testified that upon seeing the news program, she had become fearful that she might be pregnant. Id. at 816. We held that the shock of seeing the television news program triggered the victim's out-of-court statements, and her fear of pregnancy was startling enough to produce a state of nervous excitement so as to render her subsequent remarks spontaneous. Id. at 816-17.

In this case, Couchman argues that A.T.'s statements were inadmissible as excited utterances because the trial court expressly ruled that they were "too far removed from the original [offense] to be an excited utterance." We need not resort back to the actual offense, however, to find a startling occurrence that would bring A.T.'s statements under the Rule 803(2) exception. Arthur testified that after A.T. said her vaginal area was hurting and burning, Arthur removed the child from the bathtub and laid her on the bed. Arthur examined A.T.'s genitals, which appeared red, swollen, and irritated. When Arthur tried to question A.T. about the pain, the child was so upset that she could not speak. Arthur testified that A.T. eventually calmed down enough to talk, but the child remained "scared, crying[,] and upset."

The plain language of Rule 803(2) provides that either a startling event or condition may provoke a statement that is admissible as an excited utterance. See TEX. R. EVID. 803(2). Under the circumstances, the startling condition that evoked A.T.'s statements could have been the pain she was experiencing. At the time of A.T.'s statements, she was only four years old. Undoubtedly, some events or conditions that may not be startling to an adult may be overwhelming for a child. It would be reasonable to infer that a four-year-old child would be scared and upset by a burning sensation in her female sexual organ.

The record also reflects that A.T. was still "scared, crying[,] and upset" when she told her aunt and father about the abuse. Because the child was still dominated by the emotions arising from the frightening condition, her statements were made before she had a chance to fabricate and are thus sufficiently trustworthy. In addition, A.T.'s statements that Couchman had touched her and stuck his finger inside her related to the exciting condition that triggered her statements; i.e., why her genitals were hurting.

In light of the victim's age and the surrounding circumstances, we hold that the painful condition in her genital region was...