Gurka v. State

• Decision Date: 04 April 2002
• Docket Number: No. 03-01-00239-CR.,03-01-00239-CR.
• Citation: 82 S.W.3d 416
• Parties: Stephen GURKA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

82 S.W.3d 416

Stephen GURKA, Appellant, v. The STATE of Texas, Appellee.

No. 03-01-00239-CR.

Court of Appeals of Texas, Austin.

April 4, 2002.

Discretionary Review Refused July 31, 2002.

COPYRIGHT MATERIAL OMITTED

Linda Icenhauer-Ramirez, Austin, for Appellant.

Ronald Earle, District Attorney, M. Scott Taliaferro, Assistant District Attorney, Austin, for Appellee.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and ONION.^*

BEA ANN SMITH, Justice.

Appellant Stephen Gurka was found guilty of aggravated sexual assault of a child. See Tex. Pen.Code Ann. § 22.021 (West 2002). The trial court sentenced the appellant to twenty-eight years' imprisonment. The appellant argues that the trial court erred in admitting the testimony of three witnesses for the State. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This case was brought following the delayed outcry by a victim of sexual abuse. C.B. alleged that while her mother was married to Stephen Gurka, between late 1992 and February 1995, Gurka sexually assaulted her. C.B., who was fifteen-years old at the time of trial, testified that starting when she was around five or six years old and continuing while he was married to her mother, Gurka molested her on four occasions. C.B. testified that Gurka threatened to kill anyone she told about the incidents. Her mother divorced Gurka in 1995. C.B. testified that about two years after the divorce, when she was twelve years old, she told her cousin Reanell and her sister that Gurka had molested her. Later, she also told her friend Brittany. According to her testimony, C.B. begged all three girls not to tell anyone her "secret" because she was still afraid that Gurka would kill anyone she told; she was especially fearful that Gurka would harm her mother. Her cousin Reanell eventually told their grandmother about a year later. By this time, C.B.'s mother had married Leslie Wuensche. The grandmother never discussed the matter with C.B. but reported the information to Wuensche, who ultimately confronted his stepdaughter about the abuse. After C.B. admitted to her new stepfather that Gurka had molested her, Wuensche contacted the police.

C.B. was approximately thirteen years old when the matter was reported to law enforcement authorities; between six and seven years had elapsed from the first alleged assault. At trial, the State had to combat the obvious prejudice associated with the victim's long delay in reporting the abuse to an adult and the absence of any physical evidence.¹ In its case-in-chief, the State attempted to explain the delay. C.B. testified that she had been fearful that Gurka would harm her mother if she told anyone and that she was still afraid of Gurka. She also stated that she waited until her mother divorced Gurka before she told anyone about the abuse. The State emphasized that C.B. told her sister, cousin, and friend about the events several years before the report to authorities, but begged them not to tell anyone.² Both her cousin Reanell and her friend Brittany testified that C.B. had revealed her "secret" to them and that they had kept the information confidential until Reanell finally told her grandmother.

Gurka objected to the testimony regarding C.B.'s conversations with Reanell, Brittany, and Wuensche on the grounds of hearsay. Gurka's specific objection was that the testimony would constitute improper "backdoor hearsay" condemned by the court of criminal appeals in Schaffer v. State, 777 S.W.2d 111 (Tex.Crim.App. 1989). The State responded that it did not seek to elicit from the three witnesses what C.B. told them; indeed, C.B. had already testified as to the conversations with each witness. Rather, the State sought to introduce the testimony to prove that the conversations had taken place. The judge allowed the testimony for the most part. The State in its closing argument emphasized that it had provided sufficient evidence to explain the delayed outcry:

So [C.B.] stays silent. And when does she tell about this abuse? Later when she feels safer, when her mother has divorced Stephen Gurka and she is away from him. And even when she does tell, who does she tell? A cousin two years her senior, somebody she trusts, and another little girl that is a friend of hers in her same peer group. And what does she tell them when she tells them about this abuse? What does she ask them? She asked them — she begs them to please keep this a secret. Please don't tell.

And later, the State continued,

And we brought you as many witnesses as we could. We brought you [C.B.]. We brought you the cousin Reanell. We brought you Brittany. We believe we showed that there was a chain with this secret, and this secret made it to grandma and that eventually the same secret made its way to [C.B.]'s stepfather Les [Wuensche].

The State also presented expert testimony by Vivian Heine regarding typical child sexual assault cases and factors contributing to delayed outcries. Heine is a licensed social worker with twenty-six years of experience who directs a treatment center for victims of violent crimes and their families. Heine testified that she had worked with approximately 7000 sex offenders and an equal number of sexual assault victims. She pointed out some factors that contribute to delayed disclosure by young victims of sexual abuse. Heine testified that a child victim typically reports an incident within twenty-one months; C.B. waited some two years after Gurka left the home to tell her cousin. Heine testified, however, that the age of the child and feelings of shame and embarrassment, coupled with fear of the perpetrator, could contribute to the child's decision not to reveal the abuse until much later. She also stated that it was common for children between the ages of twelve and fourteen to reveal the abuse to someone in their peer group rather than to an adult.

The defense called Gurka's mother and sister-in-law, who testified that during Gurka's marriage to C.B.'s mother, C.B. did not appear afraid of him and that the two had a good relationship. The defense put on no other witnesses.

The jury found Gurka guilty of aggravated sexual assault. In three points of error, Gurka complains that the judge's evidentiary rulings were erroneous because the witnesses' testimony constituted backdoor hearsay.

DISCUSSION

We review the trial court's decision to admit evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh'g). As long as the trial court's ruling was within the zone of reasonable disagreement, the appellate court will not reverse the ruling. Montgomery, 810 S.W.2d at 391.

"Hearsay" is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Tex.R. Evid. 801(d). "Statement" is defined as "(1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression." Tex.R. Evid. 801(a). The court of criminal appeals in Schaffer clarified that even if the out-of-court statement itself is not introduced, the hearsay rule may apply if the testimony allows the jury to ascertain the purport of the statement. Schaffer, 777 S.W.2d at 113-15. In that case, Schaffer defended against the charge of possession of a controlled substance by claiming he was a police informer for an officer named Jimmy Seals. Id. at 112. Apparently surprised by the testimony, the State called as a rebuttal witness a narcotics investigator who testified that he had talked to Seals that morning. Id. at 113. The State then asked the investigator whether, as a result of his conversation with Seals, he would ask the State to drop the charges against Schaffer. Id. The investigator responded, "No, sir." Id. Neither the State nor Schaffer subpoenaed Seals for trial. Id.

On appeal, Schaffer argued that while the investigator did not testify as to what Seals told him on the phone, the exchange on the stand allowed the jury to infer the import of the out-of-court statement. Id. The court agreed that by allowing the testimony, the trial court had, in effect admitted hearsay testimony from Seals because the investigator's answer indirectly conveyed the substance of Seals's out-of-court statement. Id. at 114. The court opined that

where there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. In short "statement" as defined in Tex.R. Civ. Evid. 801(a) ... necessarily includes proof of the statement whether the proof is direct or indirect.

Id.

Important to Schaffer's holding was the court's conclusion that the testimony served no purpose other than to disprove the defendant's assertion that he had been working as an informer for Jimmy Seals. The court emphasized that the investigator had been recalled as a rebuttal witness only to disprove the defendant's claim. Given these facts, the court concluded, "[t]here is no doubt that the State's sole intent in pursuing this line of questioning was to convey to the jury that Seals had told [the investigator] that appellant was not an informant." Id. at 114 (emphasis added).

In a subsequent case, the court of criminal appeals rejected the asserted claim of "backdoor hearsay" and emphasized that whether testimony constitutes indirect hearsay as found in Schaffer turns on the facts of each case as they are developed at trial. See Head v. State, 4 S.W.3d 258, 261-63 (Tex.Crim.App.1999). The court explained that whether testimony constitutes impermissible hearsay "turns on how strongly the content of the out-of-court statement can be inferred from the context." Id. at 261. The court must decide whether the evidence compels an ...