Harvey v. State

• Decision Date: 20 November 2003
• Docket Number: No. 06-02-00061-CR.,06-02-00061-CR.
• Citation: 123 S.W.3d 623
• Parties: Vaughn Earle HARVEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

123 S.W.3d 623

Vaughn Earle HARVEY, Appellant, v. The STATE of Texas, Appellee.

No. 06-02-00061-CR.

Court of Appeals of Texas, Texarkana.

Submitted October 30, 2003.

Decided November 20, 2003.

James W. Volberding, Tyler, for appellant.

Marcus D. Taylor, Wood County Dist. Atty., Henry Whitley, Special Asst. Dist. Atty., Quitman, for state.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

After she turned eighteen years of age in 2001, Jennifer Simmons for the first time disclosed the paternity of her son, conceived in 1995 when Jennifer was only twelve. Her outcry, to her adult boyfriend, Vonnie Kelly, was that her stepfather, Vaughn Earle Harvey, had sexually assaulted her then and was the father of her son. When Jennifer told Kelly the details of her ordeal, he advised her to contact the authorities. At the direction of Child Protective Services and the police, blood samples were taken from Harvey Simmons, and her son for paternity testing. The conclusion of these tests indicated there was a 99.99999% probability of Harvey's paternity.

A Wood County jury convicted Harvey of aggravated sexual assault of a child and assessed punishment at life imprisonment and a $10,000.00 fine. Harvey appeals with eight points of error that we, for purposes of analysis, group into four categories. Harvey contends on appeal that (1) Article 38.072 of the Texas Code of Criminal Procedure does not permit the State to use an outcry witness if the outcry statement was made when the victim was older than twelve years of age, (2) Harvey was denied a fair and impartial jury because potential jurors were solicited to donate their juror fees to certain state-sponsored funds, (3) the trial court erred in not striking a veniremember for cause, and (4) the selection of an all-white jury violates equal protection under the Fourteenth Amendment. We affirm.

Hearsay Statement of Victim

Harvey contends in his fourth, fifth, and sixth points¹ of error that Article 38.072 of the Texas Code of Criminal Procedure, which permits the hearsay statement of a child abuse victim who was twelve years of age or younger at the time of the offense, does not extend to child abuse victims' outcry statements made after they turn thirteen years of age. Article 38.072 provides:

This article applies to a proceeding in the prosecution of an offense ... if committed against a child 12 years of age or younger .... [and] 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.

Tex.Code Crim. Proc. Ann. art. 38.072 (Vernon Supp.2004).

Although Simmons was twelve years old at the time of the charged offense, Harvey argues that Article 38.072 does not apply in this case because Simmons' outcry statement was delayed beyond her thirteenth birthday. According to the record, Simmons was eighteen years old at the time of her outcry and nineteen at the time of trial. Harvey argues it is impermissible to allow hearsay testimony of an outcry statement of a victim who then is thirteen or older, and that doing so in this case, although it may not have affected the jury's decision as to his guilt, was harmful to the jury's decision regarding punishment.

Trial courts are afforded broad discretion in determining the admissibility of outcry statements, and the decision to admit such evidence will not be disturbed absent a clear abuse of that discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.App.1990). In reviewing matters committed to a trial court's discretion, appellate courts may not substitute their judgment for that of the trial court unless the court acted in an arbitrary or unreasonable manner, without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim. App.1990). In this case, the trial court expressed some doubt as to whether the Legislature contemplated that Article 38.072 might encompass an outcry statement six years after the alleged abuse, but found that the statement was reliable based on the time, content, and circumstances, and that the situation presented in this case fell within the parameters of the exception.

In Manuel v. State, No. 03-96-00185-CR, 1997 WL 347998 (Tex.App.-Austin June 26, 1997, pet. ref'd) (not designated for publication), the Third District Court of Appeals dealt with a similar, though less extreme, situation. The appellant in Manuel argued that, even though the complainant was allegedly molested when she was twelve years of age or younger, her outcry statement was not made until after her thirteenth birthday, rendering the statute inapplicable. Id. 1997 WL 347998 at *2-3. Based on its reading of the statute, however, the Third District Court of Appeals reasoned that "Article 38.072 applies to proceedings in the prosecution of offenses committed against children twelve years of age or younger" and "does not require that the outcry statement be made before the victim becomes thirteen years of age." Id. 1997 WL 347998 at *2-3. Instead, the determination of whether an outcry statement should be admitted "must be determined by the circumstances of each case." Id. We note that Article 38.072 has been referenced in cases in which the complainant was thirteen years old or older at the time of trial. See, e.g., Krupa v. State, No. 05-02-00116-CR, 2003 WL 115357 (Tex.App.-Dallas Jan.14, 2003, pet. ref'd) (not designated for publication) (complainant eighteen years old at time of trial—apparently under eighteen at time of outcry); Gurka v. State, 82 S.W.3d 416 (Tex.App.-Austin 2002, pet. ref'd) (complainant fifteen years old at time of trial).

In each of those cases, however, the victim's outcry statement was made while the victim was legally still a minor. In this case, Simmons' outcry came after she had reached the age of majority. Harvey asserts that Article 38.072 was not designed to protect adults, but inarticulate and frightened children. The language of the statute supports that assertion. Article 38.072 requires that, for outcry statements to be admissible, (1) an offense must have been "committed against a child 12 years of age or younger," and (2) outcry statements must have been "made by the child" victim. Tex.Code Crim. Proc. Ann. art. 38.072.

The courts should interpret terms used in the Texas Code of Criminal Procedure in accordance with "their usual acceptation in common language, except where specially defined." Tex.Code Crim. Proc. Ann. art. 3.01 (Vernon 1977). There is no definition of "child" in Article 38.072. The words "child," "minor," and "adult" have been defined variously by statutes having various purposes, but seem to separate into two principal groups.

In a number of definitions, to be a "child" or a "minor," the individual must be under eighteen, must have never married, and must not have had his or her disabilities removed. See Tex.Code Crim. Proc. Ann. art. 56.32(a)(1) (Vernon Supp. 2004) (defining "child" for Crime Victims' Compensation Act); Tex. Fam.Code Ann. § 101.003 (Vernon 2002) (defining "child," "minor," and "adult" for matters affecting parent-child relationship); Tex. Prob.Code Ann. § 3(t) (Vernon 2003) (defining "minor" for all Probate Code purposes except regarding guardianships); Tex. Prob.Code Ann. § 601 (Vernon 2003) (defining "minor" for guardianships).

In numerous other definitions, to be a "child" or "minor," the individual simply must be under eighteen years of age. See Tex.Code Crim. Proc. Ann. art. 63.001 (Vernon Supp.2004) ("child" for Chapter 63, on missing children and missing persons); Tex. Fam.Code Ann. § 152.102 (Vernon 2002) ("child" for Chapter 152, Uniform Child Custody Jurisdiction and Enforcement Act); Tex. Pen.Code Ann. § 43.24 (Vernon 2003) ("minor" for sale, distribution, or display of harmful material to minor); § 43.25 (Vernon Supp.2004) ("Sexual Performance by a Child"); § 43.251 (Vernon 2003) ("Employment Harmful to Children"); § 43.26 (Vernon 2003) ("Possession or Promotion of Child Pornography"); § 46.06 (Vernon 2003) ("Unlawful Transfer of Certain Weapons"). Sometimes the line is drawn at a different age. See, e.g., Tex. Pen.Code Ann. § 46.13 (Vernon 2003) ("child" as younger than seventeen for "Making a Firearm Accessible to a Child").

The two groups are distinguishable in that those that draw the line simply at eighteen years of age are intent on protecting the child's person, while those that add marriage or removal of disabilities are aimed at protecting the individual's legal or business affairs. Since Article 38.072 was designed to protect the child's person, we conclude it belongs in the group of statutes that draw the line simply at age eighteen. That conclusion is further supported in the very language of Article 38.072 explicitly requiring that the person to whom the outcry is made must be at least eighteen years of age at the time of the outcry while using the term "child" in referring to the victim making the outcry statement.

Therefore, we hold that, for Article 38.072 to apply, not only must the offense have been committed against a child twelve years of age or younger, but also the victim, while still a child—that is, not having reached his or her eighteenth birthday—must have confided the details of the ordeal to a person eighteen years of age or older. Failure of the second criterion renders Article 38.072 inapplicable. As a result, the trial court should not have permitted Kelly to testify with the content of Simmons' outcry statement.

As part of Harvey's argument against the admissibility of Simmons' outcry statement, he contends that, even if Article 38.072 did apply in this case, admission of the testimony would be prohibited by the Confrontation Clause of the Sixth and Fourteenth Amendments. Addressing this problem in Buckley...