Fetterolf v. State

• Decision Date: 14 December 1989
• Docket Number: No. C14-89-132-CR,C14-89-132-CR
• Citation: 782 S.W.2d 927
• Parties: Richard John FETTEROLF, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 927

782 S.W.2d 927

Richard John FETTEROLF, Appellant, v. The STATE of Texas, Appellee.

No. C14-89-132-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 14, 1989.

Discretionary Review Refused March 14, 1990.

John J. Browne, Houston, for appellant.

Linda A. West, Houston, for appellee.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Richard John Fetterolf, appeals his judgment of conviction for the offense of Indecency with a Child. TEXAS PENAL CODE ANN. § 21.11 (Vernon 1989). The jury found appellant guilty. Upon further finding the two enhancement paragraphs of the indictment to be true, the jury assessed punishment at 30 years confinement in the Texas Department of Corrections. We affirm.

Appellant brings six points of error. In his first point of error appellant asserts that the trial court erred in admitting hearsay evidence under Article 38.072 of the TEX.CRIM.PROC.CODE ANN. (Vernon 1989) when the procedural requirements for admissibility under the statute were clearly ignored by the State. In his second point of error appellant asserts that appellant's conviction is void having been obtained through evidence introduced under an unconstitutional statute, to-wit, Article 38.072 of the TEX.CRIM.PROC.CODE ANN., in that it is violative of the confrontation clauses of the sixth amendment to the United States Constitution and Article 1, Sec. 10 of the Texas Constitution, and the Due Process Clause of the Fourteenth Amendment and the Due Course of Law provisions in Article I, Sec. 19 of the Texas Constitution. In his third point of error, appellant asserts the trial court erred in refusing appellant's request to instruct the jury as to the limited purpose for which the outcry witness' testimony was admitted. In his fourth point of error, appellant asserts the trial court erred in refusing appellant's request to instruct the jury on the lesser included offense raised by the evidence, to-wit, assault by contact, under Section 22.01(a)(3) of the TEX.PENAL CODE ANN. In his fifth point of error appellant asserts the evidence is insufficient to sustain his conviction. In his sixth point of error, appellant asserts his conviction is void in that it is based upon Sections 21.11 and 21.01 of the TEX.PENAL CODE ANN. which are inoperative in that they are vague, so indefinitely framed or of such doubtful construction that they cannot be understood.

The complainant, W.B., was a female child, ten years of age, on October 23, 1988 when the offense occurred. The complainant had spent the previous night, October 22, 1988, at the home of her ten-year old classmate, Dawn Rundle. Also present at the house were Dawn Rundle's mother and step-father, the appellant.

On direct examination, complainant testified as follows: complainant and her classmate, Dawn, had fallen asleep on the living room couch while watching T.V.; early the next morning the girls were awakened by a cat scratching on the window screen; appellant was then in the kitchen cooking bacon; the girls read books before dropping off to sleep again. Complainant testified she was re-awakened at about 6:30 a.m. when she felt appellant's hand underneath her T-shirt, rubbing her breast in a circular motion. Appellant was lying down on the floor in front of the couch. Complainant testified when she got up from the couch she saw that appellant's hand was situated on the seat of the couch upon which complainant had been sleeping; complainant stated that appellant's hand then fell down beside him on the floor. Complainant testified she confided in her ten-year old classmate, Dawn, about the occurrence but that Dawn responded that appellant would not do what complainant had described. Complainant then accompanied Dawn, Dawn's mother and appellant to a park. After the outing in the park, Dawn's mother and appellant drove complainant back to her own home and complainant made her outcry statement to her mother immediately upon arriving. The authorities were contacted.

In his first point of error, appellant asserts the trial court erred in permitting the outcry witness to testify as to what complainant related to her because the procedural requirements of Article 38.072 were not satisfied by the State. TEX.CODE CRIM.PROC.ANN. art. 38.072. (Vernon 1989). Appellant, therefore, complains that the outcry testimony of the complainant's mother violated the child outcry hearsay exception. Article 38.072 reads in relevant part as follows:

Sec. 1. This article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code, if committed against a child 12 years of age or younger.

(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);

* * * * * *

Sec. 2. (a) This article applies only to statements that describe the alleged offense that:

(1) were made by the child against whom the offense was allegedly committed; and

(2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.

(b) A statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if:

(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:

(A) notifies the adverse party of its intention to do so;

(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and

(C) provides the adverse party with a written summary of the statement;

(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and

(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.

Prior to the testimony of the outcry witness (the complainant's mother), defense counsel objected on the record that he had been provided with written notice of the outcry statement on February 6, 1988, which was only one day before the jury was selected as opposed to fourteen days before trial as prescribed by the statute recited above. The record further reveals that a discussion then ensued between defense counsel and the prosecutor before the Court. The prosecutor informed the Court that this case had previously been set for trial on January 3, 1988; that the prosecutor had opened his file to the defense counsel; that defense counsel had accessed the file and was aware both of the statement and the content of the outcry witness and also of the State's subpoena list. Defense counsel not only conceded the validity of this information but he, himself, notified the Court that by reading the State's file a reasonable person could deduce or anticipate who the outcry witness was. Defense counsel then explained that his objection was that notice of the outcry testimony was never stated officially to him. Further, the record reflects that defense counsel had actual notice of the outcry testimony of complainant's mother through way of the written statement of complainant.

The procedural requirements of article 38.072 which the State failed to satisfy were the notice and hearing requirements, the purpose of which are to prevent surprise to appellant's counsel. Since the complainant did provide live testimony at trial and since there is no evidence in the record that appellant's attorney was surprised by the outcry testimony of the complainant's mother, there was no prejudice to appellant's case by admission of the outcry testimony. Brown v. State, 756 S.W.2d 793, 797 (Tex.App.--Houston [14th Dist.], 1988, pet. ref'd); Hupp v. State, 729 S.W.2d 355 (Tex.App.--Dallas 1987) (vacated and remanded for analysis of parole charge under Hupp v. State, 761 S.W.2d 10 (Tex.Crim.App.1988). Appellant's point of error one is overruled.

In his second point of error, appellant asserts that TEX.CODE.CRIM.PROC.ANN. art. 38.072 (Vernon 1989) is unconstitutional as violative of his right to be confronted with the witnesses against him and his rights to due process and due course of law. Specifically, appellant contends that article 38.072 is unconstitutional for the same reason that the court of criminal appeals declared article 38.071 TEX.CODE CRIM.PROC.ANN. (Vernon 1979) unconstitutional in Long v. State, 742 S.W.2d 302 (Tex.Crim.App.1987). We do not agree. In the first instance, in order to have standing to challenge the constitutionality of a statute, the challenger must first demonstrate that, in its operation, the complained of statute is unconstitutional as to the challenger in his own situation. Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Parent v. State, 621 S.W.2d 796 (Tex.Crim.App.1981). We find that appellant has failed to demonstrate that Article 38.072 is unconstitutional as to him in his situation for a variety of reasons. We emphasize to appellant that the basis upon which the court of criminal appeals held article 38.071 unconstitutional is not applicable to article 38.072. In Long, the court of criminal appeals ruled article 38.071 to be unconstitutional because it allowed the State to introduce into evidence a videotaped interview of the child/complainant and then wait for the defendant to choose between calling the witness, thereby allowing the State to repeat the substance of the videotaped statement, or to give up the right to confront his accuser by not calling the witness. Unlike the trial in Long, in the case before us, there was no videotaped interview of the complainant made by a representative of the State out of the defendant's presence which was played for the jury during the State's case-in-chief. Unlike the trial in Long, the State did not call the complainant as a rebuttal witness to bolster an unimpeached videotape. Further, unlike the trial in Long, the complainant in the instant case provided live...