Garcia v. State

¶1dissenting.

¶2The majority construes “the first person ... to whom the child made a statement about the offense” under Article 38.072 V.A.C.C.P. to mean something broader than it supposes the child in this case told the teacher. The rationale of the majority opinion not only alleviates the evidentiary proponent of its burden of proof on the “first person” issue, but misapprehends the legislative intent to provide procedural protections to strengthen the reliability of otherwise inadmissible hearsay evidence.

¶3Article 38.072, supra, “applies only to statements that describe the alleged offense that ... 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.” Article 38.-072, § 2(a)(2), supra. The original bill creating this section allowed “all hearsay statements of a child victim under 13 to be admitted into evidence.” Bill Analysis, H.B. 579, 69th Legislature (1985). This more expansive portion of the bill was replaced with the express limitation of the hearsay exception to “the first person” to whom the child describes the alleged offense. See id. The bill also amended the Family Code with a section substantially identical to Article 38.072. See Y.T.C.A. Family Code, § 54.031. Thus, the legislative intent — the “focal point” of the majority’s analysis — was not only to create a narrow hearsay exception in offenses relating to the physical and sexual abuse of children, but also to permit the admission of the statements only after certain procedural safeguards are met.

¶4The safeguard deemed particularly important by the Legislature is the limitation of hearsay witnesses to the first person to whom the child reports the offense. The requirement that the hearsay witness be the first person to receive the child’s story represents a balance between the necessity of introducing the child’s statements through an adult witness and the necessity of avoiding the dangers implicit in hearsay itself. As commentators have observed,

“Human belief evidence is inherently susceptible to certain defects, which fall into four categories traditionally called the ‘hearsay dangers.’ First, a belief may be erroneous because it results from a false impression of objective reality — a defect in perception — a lamentably common product of our imperfect physical and psychological faculties. Second, even a true perception may yield a false belief at a later time because of the tricks of human memory: the unconscious scrambling and regrouping of elements drawn from disparate experiences and from fantasies. Third, even an accurate memory of one person may mislead when used as evidence by another, if it is accidentally communicated imperfectly. However carefully focused, our instruments of communication, both verbal and nonverbal, may be clouded by ambiguity and its counterpart, misinterpretation. Finally, a valid memory may be falsified intentionally.”

¶5*93Goode, Wellborn, and Sharlot, Texas Rules of Evidence: Civil and Criminal, § 8.01.1 (Texas Practice 1988).

¶6The restriction to the first person greatly reduces the hearsay dangers peculiar to children. While children may well be as trustworthy as adults in relating events they have actually experienced, they nevertheless remain more vulnerable to suggestion, unintentional or otherwise, and are more easily influenced by the various authority figures involved in the often traumatic ordeal of a sexual abuse allegation. By limiting the statements of sexual or physical abuse to the child’s first conversation, the hearsay evidence is made more reliable not only because the child’s initial disclosure is more likely a self-motivated account of what the child herself remembers, but also because the original statements are untainted by the subtle influences of subsequent interrogators. Each time the child relates the story to a new adult, the risks that the story may be altered or nuances added to please the listener multiply. The statutory limitation also marks in time the circumstances of the child’s disclosure, facts often helpful to the factfinder in such cases. Indeed, the admissibility of the hearsay evidence is contingent in part on the trial court’s findings that the statement is reliable “based on the time, content, and circumstances of the statement.” Article 38.072 § 2(a)(2), supra.

¶7The need to avoid these hearsay dangers would be ill-served by permitting, as the original bill did, all hearsay statements to be admitted. The Legislature recognized this chief defect in the original bill, rejected this provision and substituted instead the “first person” limitation, now an integral specification of Article 38.072.

¶8It is clear from the majority’s recitation of the facts that the child’s teacher, Betty Ramirez, was “the first person” whom the child told about an alleged offense:

“PROSECUTOR: You told your teacher Betty Ramirez?

COMPLAINANT: Yes.

⅜ … # …

PROSECUTOR: What did you tell your teacher there in the classroom?

COMPLAINANT: Well, I told her what happened.”

¶9The teacher herself also confirmed that the child “talked to me for maybe 10 minutes or 15 minutes” that morning, and that the child “further relay[ed] information” to her about sexual abuse, wanting to “talk about it practically all day.” Thus the majority correctly concludes that the teacher really was the “first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.” Article 38.072, § 2(a)(2), supra.

¶10The teacher later took the complainant to her principal’s office where she left the child. Then, later in the afternoon, the child again gave statements to David Be-tancourt and Herman Muniz. Thus, Muniz is arguably the third or fourth person to whom the child told her story. Yet the majority attempts to make Muniz the “first person” under the statute by construing Article 38.072 § 2(a)(2), supra, to mean “more than mere words which give a general allusion that something in the area of child abuse was going on.”

¶11The majority’s conclusion that the statements made to the teacher were not “more than mere words which give a general allusion” is as supportable by the record as a conclusion to the contrary. The child talked to the teacher for at least ten or fifteen minutes, and apparently related enough about the topic of sexual abuse to motivate the teacher to take the child to the principal. Whatever the complainant conveyed to her teacher and principal, the principal felt it necessary to call the Department of Human Services. And whatever the principal related in her phone call to DHS, the Department almost immediately sent two specialists to the school to interview the child. Under these facts, we can just as easily infer that the child’s statements to her teacher were more than “a general allusion.”

¶12The majority’s rationale at arriving at its conclusion about the child’s statements to her teacher is puzzling. The majority readily concedes that “the record is void as to any specific details of the statements made to Ramirez [the teacher] and as to *94any description of the alleged offenses made to Ramirez by the complainant.” (emphasis added.) How this Court can “emphasize that from this record we cannot determine what it was the complainant told her teacher,” yet determine that whatever the child said it could not have amounted to a “description,” is a bewildering twist in reason.

¶13Moreover, it is unnecessary to even reach the question about the meaning of the highlighted portion of the statute which the majority construes. This court need not decide whether the child’s statements to her teacher — admittedly unknowable from the record — fits the majority’s definition of “description.” The real issue in this case is not statutory construction but the procedural consequences of a failure to comply with the basic provisions of Article 38.072. In other words, the issue for this court is not the evidentiary question about the sufficiency of proof, but the procedural question about burden of proof.

¶14Under this article, “the party intending to offer the statement” must provide both “the name of the witness through whom it intends to offer the statement” and a “written summary of the statement” to the adverse party at least fourteen days before trial. Article 38.072 § 2(b). That witness, under § 2(a), must be “the first person ... to whom the child made a statement about the offense.” Here the State, the party offering the statement, failed to provide either the first person’s name [Betty Ramirez, the teacher] or a summary of the child’s statement to her teacher. Instead, the State designated Muniz as the witness through whom it intended to offer the child’s statement.1 In doing so, the State might have misled appellant about the identity of the first person who received the child’s story, and certainly circumvented the procedural'safeguards which the statute explicitly creates and demands be met.

¶15One of the primary reasons for the exclusion of hearsay from the jury is its lack of reliability. The statute ameliorates this defect of hearsay evidence by ensuring that the opposing party not only be given notice that it will be introduced, but also be provided the witness’s name and a summary of the proposed evidence at least fourteen days before trial.2 This gives the opposing party the opportunity to investigate the witness and the “time, content, and circumstances of the statement”, and thereby prepare for the reliability hearing also required under the statute. See Article 38.-071 § 2(b)(2), supra. Having been given this opportunity for investigation and preparation, the adverse party may then reveal to the trial court any reasons which might exist for doubting the reliability of the hearsay. Even if the trial court finds that the hearsay is reliable enough to be admitted as substantive evidence of the guilt or innocence of the accused, the statements remain inadmissible unless the child testifies or is available to testify, as required by § 2(b)(3) of the statute. By requiring the testimony or availability of both the speaker (the child) and the listener (the outcry witness), the adverse party is ensured the opportunity to highlight for the factfinder any contradictions about the statements through trial examination and cross-exami*95nation. Through these safeguards, what is otherwise rank hearsay can be more confidently admitted for the factfinder’s consideration as reliable substantive evidence of the guilt or innocence of the accused.

¶16In this case, the defendant was given notice about two weeks before trial that Muniz was the first person to whom the child described the offense. When Ramirez began describing what the child told her, the defense — likely relying upon the State’s designation of Muniz as the first person — objected to the teacher’s hearsay. The objection was sustained. By the time Muniz testified, it was clear that Muniz was not the “first person,” and the defense objected that Muniz’s testimony was hearsay. The trial court overruled the objection and, after the required hearing, designated Muniz as the “first person.”

¶17The State invoked Article 38.072 to admit Muniz’s testimony, but then completely failed to comply with § 2(a)’s requirements. It is the burden of the proponent of evidence to lay the proper predicate for its admission; failure to do so renders the proffered evidence inadmissible. Because Muniz’s testimony is indeed hearsay not shown to fit Article 38.072’s exception, the defendant's objection to Muniz's testimony as hearsay should have been sustained.

¶18The trial court’s overruling of this hearsay objection was erroneous, and the appellate court should have conducted a harm analysis under Tex.R.App.Pro., Rule 81(b)(2). Instead, the appellate court found “no violation of Article 38.072” on the misguided rationale that “Ramirez did not testify about any statement made by [the complainant] that described the alleged sexual offenses.”

¶19Like that appellate court, the majority seems to assume that it was the defendant’s burden to develop Ramirez’s testimony and prove that she was in fact the first person to whom the child described the offense. Such an assumption is squarely contrary to Article 38.072 § 2(b)(1)(A), (B) and (C), which explicitly places the burden of designating the outcry witness on “the party intending to offer the statement.”

¶20The State bypassed each and every one of Article 38.072’s mandated procedures simply by selecting Muniz as the “first person,” and thereby subverted the whole legislative purpose to give the adverse party notice in advance of trial and to ensure the reliability of evidence before its admission to the jury. By misidentifying the “first person,” the State was able to utilize 38.072 without meeting any of its requirements. It seems rather inconsonant that the Legislature meant to permit “the adverse party” to profit from this statute by sidestepping the panoply of safeguards which this very statute explicitly provides. Because the majority opinion addresses none of these concerns, I respectfully dissent.