In re J.G.
| Decision Date | 01 February 2006 |
| Docket Number | No. 04-04-00520-CV.,04-04-00520-CV. |
| Citation | 195 S.W.3d 161 |
| Parties | In the Matter of J.G. |
| Court | Texas Court of Appeals |
Jose E. Barrers, Law Office of Jose Barrera, Corpus Christi, for appellant.
George P. Morrill, II, Dist. Atty., Martha Warner, Asst. Dist. Atty., Beeville, for appellee.
Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
J.G., a juvenile, was adjudicated to have engaged in delinquent conduct by committing aggravated sexual assault and was placed in the custody of the Texas Youth Commission with a possible transfer to the Institutional Division of the Texas Department of Criminal Justice for a period of ten years and one day. J.G. appeals, bringing the following issues: (1) whether the trial court should have allowed the complainant's mother to testify as an outcry witness; (2) whether the trial court committed fundamental error by commenting on the weight and credibility of the evidence; (3) whether the trial court should have allowed the State to amend its petition without re-certification by the grand jury; (4) whether the trial court should have allowed defense witnesses to offer rebuttal testimony; (5) whether the trial court allowed the State to bolster the complainant's testimony; (6) whether the trial court committed reversible error by allowing excessive leading questions; (7) whether the evidence is factually sufficient to support the finding that J.G. committed aggravated sexual assault; and (8) whether the trial court abused its discretion in finding that reasonable efforts were made to prevent or eliminate the need for J.G.'s removal from his home. Because the trial court did not commit reversible error and because the evidence is factually sufficient, we affirm the trial court's judgment.
On December 10, 2003, Z.H., the complainant, a five-year-old boy, was questioned by his kindergarten teacher, Mrs. Pennington. Mrs. Pennington had received a report that Z.H. was rubbing his genital area in class and had asked a classmate to watch him. Because Z.H. wanted another child to observe him, Mrs. Pennington, an educator of thirty-three years, recognized that Z.H. could be acting out sexually as a result of sexual abuse. Mrs. Pennington took Z.H. into the hall and asked him from whom he had learned the behavior. According to Mrs. Pennington, Z.H. clearly and unequivocally stated the first name of J.G., a twelve year-old boy. At the end of the school day, Mrs. Pennington approached Z.H.'s mom, Regina H., and informed her of the event.
In response, Regina H. asked Z.H. if anyone had ever touched his private parts. He answered, "Yes, [J.G.]." Regina H. asked what he meant, and Z.H. rubbed his penis with a rubbing motion and said, Regina H. called the local police and spoke with Sheriff Bruce Thomas. She also took Z.H. to the Children's Advocacy Center in Corpus Christi where he met with a counselor who interviewed him. During the interview, E.M., a six-year-old girl, was mentioned as a potential witness to the alleged event between Z.H. and J.G. E.M. was then brought to the child advocacy center; she indicated that oral sex had occurred between Z.H. and J.G. When informed of E.M.'s statements, Regina H. asked Z.H., "Did [J.G.] put his penis in your mouth?" According to Regina H., Z.H. turned bright red, hung his head, began to cry, and admitted that J.G. had done so.
Realizing the extent of J.G.'s alleged behavior, Regina H. remembered a suspicious incident involving Z.H. and J.G. According to Regina H., the two boys were in her bedroom fully clothed when J.G. offered to take Z.H. to his bedroom to read to him. Regina H. thought it strange that Z.H. did not want to go with J.G. because Z.H. "usually, you know, would want to play with anybody." The boys went into Z.H.'s room and closed the door. When Regina H. went to check on them about ten minutes later, she found the door barricaded. She asked what was blocking the door and demanded that the boys open the door immediately. It took a while, however, for the boys to open the door. Upon entering Z.H.'s bedroom, Regina H. found Z.H. in his underwear and J.G. lying on the floor. Initially, Regina H. thought that the boys had been watching a movie they were not allowed to watch or playing an unauthorized video game. As such, she did not report the incident.
During Z.H.'s testimony, he described a day where he, J.G., and E.M. were playing in his bedroom. According to Z.H., J.G. forced his penis into Z.H.'s mouth. J.G. threatened Z.H. that Z.H. would get in trouble if he told anyone. According to Z.H., he was afraid of J.G. and thought that J.G. would assault E.M. as well. After some questioning by the State, Z.H. corroborated Regina H.'s testimony regarding the "barricaded door" incident, which was a separate incident from the alleged assault. When cross-examined, Z.H. admitted that he had told his mother that the assaults had occurred "seventy-thousand times."
After the initial outcry and visit to the advocacy center, Z.H. saw Paula Rosenstein, a licensed clinical practitioner at Family Counseling Service in Corpus Christi. According to Rosenstein, most outcries are "accidental." That is, a person asks the right question at the right time and "everything comes tumbling out." In Z.H.'s case, the outcry was a result of being caught in class.
Rosenstein described the relationship between perpetrators and victims as one which has a traumatic bond. According to Rosenstein, Z.H. exhibited characteristics of abuse in the form of fear, anxiety, bed-wetting, and self-blame. She indicated that although Z.H. could not recall certain dates, children commonly cannot recall dates because they have a different concept of time than adults and they often suppress traumatic events. Thus, if a child said that he was abused seventy-thousand times, in a child's mind, that would just mean that the abuse happened on many different occasions.
At trial, J.G. testified in his own defense. According to J.G., he had only been to Z.H.'s house on two different occasions. On one of those occasions, J.G. testified that he witnessed Z.H. and E.M. hugging and kissing and saw them go into a closet together. According to J.G., when he told Regina H. about the event, she told him to "stop lying," and he left. J.G. repeatedly denied assaulting Z.H.
At trial, Regina H., Z.H.'s mother, testified about outcry statements made by Z.H. According to J.G., this testimony should not have been allowed for the following reasons: (1) Regina H. was not a proper outcry witness because she was not the first adult to whom Z.H. cried out; (2) Regina H.'s testimony was not reliable as to time, content, and circumstances; (3) Z.H. was not available to testify at the pre-trial hearing to determine the reliability of the outcry statement; and (4) there was an eyewitness to the alleged crime. Additionally, J.G. complains that Regina H. improperly testified to extraneous offenses. For the reasons below, we hold that all of J.G.'s issues lack merit.
The outcry statute found in section 54.031 of the Juvenile Justice Code should be interpreted and applied in a juvenile trial in the same manner as the parallel rule in the Code of Criminal Procedure is applied in an adult criminal trial. In re Z.L.B., 102 S.W.3d 120, 123 (Tex.2003). Section 54.031 creates an exception to the general rule excluding hearsay for the first report of sexual abuse that a child victim makes to an adult:
This section applies only to statements that describe the alleged violation that:
(1) were made by the child who is the alleged victim of the violation; and
(2) were made to the first person, 18 years of age or older, to whom the child made a statement about the violation.
TEX. FAM.CODE ANN. § 54.031(b) (Vernon 2002). For the exception to apply, (1) the State must provide the defendant with at least fourteen days' notice of its intent to offer the statement, the name of the witness who will testify about the statement, and a written summary of the statement; (2) in a hearing outside the presence of the jury, the trial court must determine that the statement is reliable based on the time, content, and circumstances of the statement; and (3) the child who is the alleged victim must testify or be available to testify at the hearing or in any other manner provided by law. See id. § 54.031(c).
The trial court has broad discretion in considering whether a child's statement falls within the hearsay exception provided by section 54.031, and the trial court's exercise of that discretion will not be disturbed on appeal unless a clear abuse of discretion is established by the record. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990); Davidson v. State, 80 S.W.3d 132, 139 (Tex.App.-Texarkana 2002, pet. ref'd); Reed v. State, 974 S.W.2d 838, 841 (Tex.App.-San Antonio 1998, pet. ref'd).
According to J.G., because Z.H. mentioned J.G.'s name when Mrs. Pennington questioned him, because Z.H. talked to a counselor at the Child Advocacy Center, and because Z.H. talked to J.G.'s mother, Regina H. was not the proper person to testify as the outcry witness. We disagree.
While J.G. correctly states that section 54.031's exception applies to statements made to the first adult a child confides in, he omits the rest of the statute's language. Section 54.031's exception applies to "statements that ... were made to the first person, 18 years of age or older, to whom the child made a statement about the violation." TEX. FAM.CODE ANN. § 54.031(b)(2) (Vernon 2002) (emphasis added). An outcry...
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