From Casetext: Smarter Legal Research

Dorado v. State

Court of Criminal Appeals of Texas, En Banc
Dec 9, 1992
843 S.W.2d 37 (Tex. Crim. App. 1992)

Summary

holding that the trial court did not abuse its discretion in designating the outcry witness where the record failed to show that the complainant detailed the alleged offense to another person who appellant claimed was the "outcry" witness

Summary of this case from Rodriguez v. State

Opinion

No. 403-92.

December 9, 1992.

Appeal from 243rd District Court, El Paso County, Herb Marsh, Jr., J.

Charles H. Rennick, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., David Hilton, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty. and Jeffrey L. Van Horn, Asst. State's Atty., Austin, for the State.

Before the Court en banc.


OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW


We granted review on two grounds; the one more germane to the error found by the court of appeals reads as follows:

2. Is a harm analysis, pursuant to Tex.R.App.P. 81(b)(2), precluded if an appellate court determines that there has been a violation of the 'mandatory' notice requirements contained in Vernon's Ann.C.C.P. Art. 38.072, Sec. 2(b).

State's PDR, at 5. See Dorado v. State, 824 S.W.2d 794 (Tex.App. — El Paso 1992), holding that since under Long v. State, 800 S.W.2d 545, at 547 (Tex.Cr.App. 1990), compliance is necessary to "render otherwise inadmissible hearsay admissible as a statutory exception to the hearsay rule," the trial court erred to admit the statement. Id., at 795-796.

The first ground for review presents as a general proposition whether a harm analysis under Rule 81(b)(2) is precluded by an appellate determination that "mandatory" provisions of a statute were violated. Because we need not reach that question here, we will dismiss the first ground for review as improvidently granted.

Although it correctly applied Long v. State, supra, to the facts of the case in finding error, the court of appeals seemingly was led by the "mandatory nature of the statutory provisions [in Article 38.072, § 2(b) ]" to " presume harm existed in admission of the testimony." Id., at 796. In this instance, however, the focus must be on the effect of noncompliance with the statute on admissibility of the proffered testimony.

Emphasis here and throughout is added by the writer of this opinion unless otherwise indicated.

When offered for the truth of the matters asserted, so called "outcry testimony" is hearsay; as such, it is objectionable unless the testimony is permitted by a prescribed exception to the hearsay rule. See Tex.R.Cr.Evid. 801 and 802.

Article 38.072 creates just such an exception to the hearsay rule of exclusion, but only when requisite statutory conditions are met. Here, as the court of appeals rightly held, the State did not comply with the mandate that its notice to appellant be associated "with a written summary of the statement." Id., Sec. 2(b)(1)(C); Dorado, supra, at 795.

Therefore, the State failed to lay the proper mandatory predicate for achieving admissibility of testimony that is otherwise inadmissible hearsay. Thus such testimony was objectionable on that account. Appellant did object; the trial court should have sustained rather than overrule his objection and thereby fell into error in admitting plain hearsay testimony.

But that error does not invoke the "mandatory statute" immunization doctrine exemplified by cases such as Sodipo v. State, 815 S.W.2d 551 (Tex.Cr.App. 1990). Erroneous admission of hearsay evidence has always been subject to a harm analysis — before and after Rule 81(b)(2) — because the record will reveal enough "concrete data from which an appellate court can meaningfully gauge or quantify the effect of the error." Id., at 554.

Thus, the court of appeals should not "presume harm," instead of making a harm analysis pursuant to Rule 81(b)(2).

Accordingly, we vacate the judgment of the court of appeals and remand the cause to that court for reconsideration under Rule 81(b)(2).

McCORMICK, P.J., not participating.


Summaries of

Dorado v. State

Court of Criminal Appeals of Texas, En Banc
Dec 9, 1992
843 S.W.2d 37 (Tex. Crim. App. 1992)

holding that the trial court did not abuse its discretion in designating the outcry witness where the record failed to show that the complainant detailed the alleged offense to another person who appellant claimed was the "outcry" witness

Summary of this case from Rodriguez v. State

requiring a non-constitutional harm analysis for hearsay statements incorrectly admitted as exceptions under article 38.072

Summary of this case from Gladney v. State

requiring a non-constitutional harm analysis for hearsay statements incorrectly admitted as exceptions under article 38.072

Summary of this case from Felix-Zazueta v. State

requiring a nonconstitutional harm analysis for hearsay statements incorrectly admitted as exceptions under article 38.072

Summary of this case from IVY v. STATE

requiring a nonconstitutional harm analysis for hearsay statements incorrectly admitted as exceptions under article 38.072

Summary of this case from Wingard v. State

In Dorado, the Texas Court of Criminal Appeals held that, where the State fails to present to the defendant a written summary of the outcry witness's testimony in compliance with Article 38.072, the outcry witness's testimony is hearsay testimony that should be excluded.

Summary of this case from Green v. State

In Dorado, the Court of Criminal Appeals held that when the State fails to provide 38.072 notice, when such notice is required, error should not be presumed.

Summary of this case from Duncan v. State

In Dorado, the error involved the State's failure to comply with a mandatory statutory provision involving notice to the defendant before "outcry testimony" will be admissible at trial as an exception to the hearsay rule.

Summary of this case from Patterson v. State
Case details for

Dorado v. State

Case Details

Full title:John DORADO, Appellant, v. The STATE of Texas

Court:Court of Criminal Appeals of Texas, En Banc

Date published: Dec 9, 1992

Citations

843 S.W.2d 37 (Tex. Crim. App. 1992)

Citing Cases

Patterson v. State

Once a defendant preserves error by raising an objection to hearsay, the burden then shifts to the State to…

Dorado v. State

On original submission, we reversed the judgment in this cause and remanded to the trial court for a new…