Hanson v. State

• Decision Date: 22 November 2005
• Docket Number: No. 10-04-00295-CR.,10-04-00295-CR.
• Parties: Douglas Eugene HANSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

180 S.W.3d 726

Douglas Eugene HANSON, Appellant, v. The STATE of Texas, Appellee.

No. 10-04-00295-CR.

Court of Appeals of Texas, Waco.

October 26, 2005.

Rehearing Overruled November 22, 2005.

Joseph L. Sheppard, Burleson, Richard Alley, Fort Worth, for appellant.

Dale S. Hanna, Johnson County Dist. Atty., Cleburne, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

A jury convicted Douglas Eugene Hanson of three counts of aggravated sexual assault of a child and two counts of indecency with a child. The jury assessed his punishment at fifteen years' imprisonment and a $2,000 fine for each of the aggravated sexual assault convictions and ten years' imprisonment and no fine for each of the indecency convictions. Hanson contends in four points that: (1) the court improperly commented on the weight of the evidence in the guilt-innocence charge by referring to the complainant as the "alleged victim" in an instruction regarding extraneous offenses; (2) the court abused its discretion by admitting the complainant's out-of-court statements because the State failed to comply with the outcry statute and because their admission violated his right of confrontation under Crawford v. Washington;¹ and (3) his multiple convictions for aggravated sexual assault and for indecency violate the state and federal constitutional protections against double jeopardy (2 points). We will affirm.

Comment on the Evidence

Hanson contends in his first point that the court improperly commented on the weight of the evidence in the guilt-innocence charge by referring to the complainant as the "alleged victim" in an instruction regarding extraneous offenses.

The wording at issue appears in the court's instruction to the jury that it could not consider evidence of extraneous offenses unless the jurors were satisfied beyond a reasonable doubt that Hanson had committed them. The instruction referred to any evidence "regarding the Defendant's having committed offenses against the alleged victim other than the offenses alleged against him in the indictment, or regarding the Defendant's having committed offenses against any other person." Hanson did not object to this instruction.

Because Hanson did not object, he must establish not only that the instruction was erroneous but also that he suffered egregious harm from it. See Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998); Steadman v. State, 160 S.W.3d 582, 585 (Tex.App.-Waco 2005, pet. ref'd).

Article 36.14 of the Code of Criminal Procedure governs the charge to the jury. It requires the trial court to submit its charge "not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp.2004-2005).

A charge improperly comments on the evidence if it "assumes the truth of a controverted issue." Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App.1986); Jackson v. State, 105 S.W.3d 321, 326 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Smith v. State, 959 S.W.2d 1, 27 (Tex.App.-Waco 1997, pet. ref'd). Thus, a reference in the jury charge to the complainant as "the victim" improperly comments on the evidence. See Casey v. State, 160 S.W.3d 218, 229-30 (Tex.App.-Austin 2005, pet. granted);² Veteto v. State, 8 S.W.3d 805, 816-17 (Tex.App.-Waco 2000, pet. ref'd); Talkington v. State, 682 S.W.2d 674, 675 (Tex.App.-Eastland 1984, pet. ref'd).

Here however, the language in question refers to the complainant as "the alleged victim." (emphasis added). Thus, the court's instruction did not assume that the complainant was in fact a victim. Accordingly, the instruction was not improper, and we overrule Hanson's first point.

Outcry Testimony

Hanson contends in his second point that the court abused its discretion by admitting the complainant's out-of-court statements because the State failed to comply with the outcry statute and because their admission violated his right of confrontation under Crawford v. Washington.

Article³ 38.072 permits the admission in evidence of the hearsay statement of a child abuse victim under limited circumstances. Pertinent to Hanson's case, the State must give notice of its intent to offer such a statement at least fourteen days before trial; the State must provide "a written summary of the statement"; the statement must be the first one describing the offense which the complainant made to an adult (eighteen or older) other than the defendant; and the complainant must testify at trial or be available to testify.⁴ See TEX.CODE CRIM. PROC. ANN. art. 38.072, § 2 (Vernon 2005).

Hanson contends that the outcry witness's testimony should have been excluded under article 38.072 because: (1) the State failed to give fourteen days' notice; (2) the State failed to provide a sufficiently detailed written summary of the statement; and (3) the person whom the State designated as the outcry witness was not the first adult to whom the complainant made a statement describing the offense.

Article 38.072 describes the proper outcry witness as "the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense." Id. art. 38.072, § 2(a)(2). The Court of Criminal Appeals has construed this to mean the first adult "to whom the child makes a statement that in some discernible manner describes the alleged offense. [This] statement must be more than words which give a general allusion that something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990). "[A] trial court has broad discretion in determining" the proper outcry witness. Id. at 92; accord Elder v. State, 132 S.W.3d 20, 26 (Tex.App.-Fort Worth 2004, pet. ref'd).

At a pretrial hearing to determine the admissibility of the outcry testimony, the complainant J.Q. testified that in December 2001 he told his guidance counselor, then his mother, then a therapist that Hanson had "touched [him] in [his] private parts." J.Q. explained that he did not describe this "in any great detail" with any of them. He discussed the incidents in far more detail with an investigator, Geanetta Salter, in February of the following year.⁵

On cross-examination, J.Q. testified that he further discussed the allegations with his parents during the months between the initial report in December and his interview with Salter in February. He testified that he told his father that Hanson had touched his penis and his "butt" but that he did not go into detail because he "didn't really feel comfortable" discussing it with his father.

The proper outcry witness is the adult to whom the complainant first tells "how, when, and where" he was assaulted. See Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd); Reed v. State, 974 S.W.2d 838, 841-42 (Tex.App.-San Antonio 1998, pet. ref'd). Here, J.Q. told his parents and the others with whom he talked before Salter only the general statement that Hanson had touched his "private parts" (using slightly more specific language with his father). There is nothing in the record to suggest that he told them any details about "how, when, and where" Hanson assaulted him. Id. Thus, we cannot say that the trial court abused its discretion in determining that Salter was the proper outcry witness. See Smith v. State, 131 S.W.3d 928, 931 (Tex.App.-Eastland 2004, pet. ref'd) (complainant told mother and doctor that defendant "had been performing oral sex on him" then later provided details to another adult); Castelan v. State, 54 S.W.3d 469, 475-76 (Tex.App.-Corpus Christi 2001, no pet.) (complainant told grandmother that defendant had "put his thing in through the back" then later provided details to counselor); Sims, 12 S.W.3d at 500 (complainant told mother that defendant "had touched her private parts" then later provided details to counselor).

It is undisputed that the State's outcry notice was untimely, having been given less than a week before trial. When Hanson objected on the basis of the timeliness of the State's notice, the State responded that Hanson's counsel had reviewed Salter's report in the State's file on "a couple of different occasions" and that she had previously told Hanson's counsel that the State intended to designate Salter as the outcry witness. Hanson's counsel did not dispute these assertions and did not claim surprise. In addition, the complainant testified at trial, and Hanson had the opportunity to cross-examine him. Accordingly, the State's untimely notice did not "affect [Hanson's] substantial rights." See TEX.R.APP. P. 44.2(b); Divine v. State, 122 S.W.3d 414, 419 (Tex.App.-Texarkana 2003, pet. ref'd); Gabriel v. State, 973 S.W.2d 715, 719-20 (Tex.App.-Waco 1998, no pet.); Fetterolf v. State, 782 S.W.2d 927, 930 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd).

Hanson next contends that Salter's testimony should have been excluded because the State failed to provide a sufficiently detailed written summary of the statement about which she would testify. See TEX.CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1)(C). We disagree. The State attached to its outcry notice a copy of Salter's handwritten notes taken during her interview of the complainant. This satisfied the State's obligation to provide a written summary of the statement about which the outcry witness would testify. See Soto v. State, 736 S.W.2d 823, 828 (Tex.App.-San Antonio 1987, pet. ref'd); cf. Biggs v. State, 921 S.W.2d 282, 285 (Tex.App.-Houston [1st Dist.] 1995, pet. granted)⁶ (summary which stated that defendant "had sexual contact" with complainant and "exposed his genitals to her" did not provide sufficient detail).

Accordingly, we cannot say that the court abused its discretion by overruling Hanson's objections to Salter's testimony premised on non-compliance...