Matthews v. State
| Decision Date | 30 November 2004 |
| Docket Number | No. 12-03-00437-CR.,No. 12-03-00435-CR.,No. 12-03-00439-CR.,No. 12-03-00436-CR.,No. 12-03-00438-CR.,No. 12-03-00441-CR.,No. 12-03-00440-CR.,12-03-00435-CR.,12-03-00436-CR.,12-03-00437-CR.,12-03-00438-CR.,12-03-00439-CR.,12-03-00440-CR.,12-03-00441-CR. |
| Citation | 152 S.W.3d 723 |
| Parties | James Michael MATTHEWS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
J. Douglas Froneberger, Sulphur Springs, for appellant.
Martin E. Braddy, for appellee.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
James Michael Matthews appeals his convictions for one count of aggravated sexual assault of a child1 and ten counts of indecency with a child.2 Appellant raises four issues on appeal. We affirm.
Appellant was charged by multiple indictments with eleven3 counts of indecency with a child and one count of aggravated sexual assault of a child. The indecency charges stemmed from allegations from Appellant's daughter, J.M., and his two nieces, E.W. and L.A.4 The charge of aggravated sexual assault related to an incident alleged by E.W. Each of the complainants testified at trial.
L.A. testified concerning four incidents involving Appellant that began occurring sometime before her eighth birthday. L.A. testified that, on one occasion, she was at Appellant's house late one afternoon, and that she, Appellant, and her cousin, S.W., who is Appellant's son, were lying on her aunt's bed.5 L.A. testified that she was lying between Appellant and S.W. According to L.A., while her cousin was asleep, Appellant touched and rubbed L.A.'s vagina underneath her clothes with his hand. L.A. testified that Appellant then made her touch and rub his penis with her hand.
On another occasion, when L.A. was visiting her grandparents' house, she, Appellant, and S.W. were walking in a nearby pasture next to a wooded area. L.A. testified that S.W. went off to play, and while he was away, Appellant sat on a fallen tree with L.A. on his lap. L.A. stated that as she sat on Appellant's lap, Appellant touched her vagina on top of her clothing and made her touch his penis on top of his clothing.
L.A. testified that in another instance, she and S.W. were sitting in the living room at her grandparents' house when Appellant entered the room. L.A. stated that she was lying on the sofa and that Appellant entered the room and sat next to her. L.A. testified that, as Appellant sat there, he touched her vagina with his hand on top of her clothes.
L.A. next testified that on yet another occasion, she was alone with Appellant in his house. According to L.A., Appellant laid on the floor and made her get on top of him and kiss him on the lips.
E.W. testified concerning four incidents involving Appellant that occurred when she was approximately nine or ten years old. E.W. testified that, on one occasion, while she was visiting her grandparents' house, she was in an uncle's bedroom alone with Appellant. According to E.W., Appellant pulled her shorts and underwear down to her ankles. She then walked into a nearby room. E.W. testified that Appellant followed her, picked her up, and put his mouth on her vagina.
E.W. further testified concerning another incident when she and Appellant were in the bathroom at Appellant's house. E.W. stated that Appellant pulled down his pants, took her hands, placed them on his erect penis, and made E.W. masturbate him.
E.W. testified that, on another occasion, when she was spending the night at Appellant's house and was sleeping in the bed with Appellant and his wife, she awoke to discover Appellant's fingers inside her vagina.
Finally, E.W. testified that on yet another occasion, she and Appellant were in the woods near her grandparents' house picking blackberries. E.W. stated that Appellant either removed or unbuttoned his shirt and, with E.W. on top of him, touched her breast.
J.M. testified concerning an incident involving Appellant that occurred when she was eleven years old. According to J.M., on August 14, 2001, she was at home and had fallen asleep on the bed that she and her mother ordinarily shared. J.M. awoke when Appellant entered the room and sat on the bed beside her. J.M. stated, "He started touching me, but he was being more aggressive than he usually was." She then testified that Appellant laid down on the bed and touched her vagina and breast with his hand on top of her clothes. J.M. stated that Appellant touched her vagina for a few minutes and kissed her on her mouth and the top of her chest. J.M. further testified that Appellant touched her chest under her clothes, but on top of her undergarments.
J.M. recounted that prior to the aforementioned incident, she had attempted to commit suicide by swallowing a bottle of pills. At the time, her given reason for her suicide attempt was that she was depressed and her mother was not paying much attention to her. J.M. testified that she now realizes that she took the pills because she did not want to be alone with her father on an upcoming vacation because he would "touch" her sometimes. J.M. stated that she never said anything about it because it was easier to make up another excuse for her behavior. Following the incident on August 14, J.M. became depressed and anorexic. J.M. testified that she stopped eating because she thought Appellant molested her because there was something wrong with her body.
Appellant's wife testified that while at work, she received a phone call from her daughter, J.M., in August 2001. Appellant's wife testified that J.M. was crying and told her that "she had come to lay down to take a nap on [her] bed and had the TV on, and [Appellant] had come over ... [and] touched her private parts and her breasts."
Kathy Smedley, the program director for the Northeast Texas Child Advocacy Center, interviewed J.M. after the matter was referred to the Advocacy Center by Child Protective Services.7 Smedley testified that J.M. told her that Appellant touched her vagina. A videotape of the interview between Smedley and J.M. was introduced into evidence over Appellant's objection.
Following the close of evidence and argument of counsel, the jury found Appellant guilty as charged on ten counts of indecency with a child and one count of aggravated sexual assault of a child. The jury further recommended punishment at imprisonment for ten years and a $2,000 fine for each count of indecency with a child and imprisonment for forty years and a $5,000 fine for the count of aggravated sexual assault of a child. The trial court sentenced Appellant accordingly. This appeal followed.
In his first issue, Appellant argues that the trial court erred in admitting the outcry testimony of both Appellant's wife and Kathy Smedley.8 A trial court has broad discretion in determining the admissibility of outcry witness testimony. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990). The exercise of such discretion will not be disturbed unless a clear abuse of discretion is established by the record. Id. A trial court's findings will be upheld when they are supported by the evidence. Id.
Outcry testimony is admissible in spite of the hearsay rule with respect to statements that describe the alleged offense where such statements (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. See TEX.CODE CRIM. PROC. ANN. art. 38.072 § 2(a), (b) (Vernon Supp. 2004-05). To "describe the alleged offense," the statute demands that the statement must be "more than words which give a general allusion that something in the area of child abuse was going on[,]" but rather, must describe the offense "in some discernible manner[.]" Garcia, 792 S.W.2d at 91.
Admissible outcry witness testimony is not person-specific, but event-specific. See Broderick v. State, 35 S.W.3d 67, 73 (Tex.App.-Texarkana 2000, pet. ref'd). However, before more than one outcry witness may testify, it must be determined that the outcry concerned different events, and not simply a repetition of the same event as related by the victim to different individuals. Id.
In the case at hand, the charges at issue relating to J.M. allege (1) that Appellant intentionally or knowingly engaged in sexual contact with J.M. by touching her genitals and (2) that Appellant intentionally or knowingly engaged in sexual contact with J.M. by touching her breast. Appellant's wife testified that J.M. told her that Appellant had molested her by touching her "private parts" and her "breasts." Smedley subsequently testified that J.M. told her that Appellant touched her vagina. While the record reflects that Appellant's wife was the first person over eighteen to whom J.M. related the incident of Appellant touching her breasts, J.M.'s statement that Appellant touched her "private parts" does not describe any alleged offense in a discernable manner as required by the statute. The statement that Appellant touched J.M.'s "private parts" is no more than a general allusion that child abuse had occurred. Thus, Appellant's wife did not offer outcry testimony with respect to the allegations that Appellant touched J.M.'s genitals. As Smedley testified that J.M. told her that Appellant touched her vagina, she is the proper outcry witness for that incident. We hold that the trial court did not err in admitting the testimony of two outcry witnesses as their testimony related to different incidents.
As part of his first issue, Appellant further argues that if Smedley's testimony was properly admitted, then the trial court erred in admitting the videotaped interview between Smedley and J.M. because the tape contained cumulative evidence. As with all rulings on the admissibility of...
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