Opinion
No. 10-03-00052-CR
Opinion delivered and filed September 15, 2004. DO NOT PUBLISH.
Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court # 40,619. Affirmed.
Stanley G. Schneider, Schneider McKinney, P.C., Houston, TX, for appellant/relator. Jerilynn K. Yenne, Brazoria County District Attorney, and Davis P. Bosserman, Brazoria County Asst. District Attorney, Angleton, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
OPINION
There is an apparent conflict in Texas Rule of Appellate Procedure 47.4. See TEX. R. APP. P. 47.4. Because the author of the Dissenting Opinion has opposed the designation of this memorandum opinion as a memorandum opinion, it must be designated as an opinion. "An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation." Id. The same rule, however, limits what opinions can be designated non-memorandum opinions:
An opinion must be designated a memorandum opinion unless it does any of the following:
(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
(c) criticizes existing law; or
(d) resolves an apparent conflict of authority.
Id. This opinion does not do any of those things, and thus "must" be designated a memorandum opinion. Id. We have, nevertheless, designated it as an opinion because the sentence of the rule regarding the opposition by the author of a concurrence or dissent is more specific, and subject to less interpretation, than the later portion of the same rule above quoted.
This opinion does, however, remain designated "do not publish" pursuant to Rule of Appellate Procedure 47.2. See TEX. R. APP. P. 47.2(b). A question remains whether it was the purpose of the rule to allow the author of a concurrence or dissent to publish the concurrence or dissent over the contrary vote of the other members of the panel, and, further, to attach as an appendix to that concurrence or dissent the opinion designated "do not publish." We choose, in this instance, to leave that issue to the jurisprudential judgment of the author, but ultimately it will be left to the rule makers to clarify.
This appeal concerns Appellant's convictions for three counts of indecency with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11 (Vernon 2003). We will affirm. 1. Outcry Witness. In his first issue, Appellant argues that the trial court erred in overruling Appellant's hearsay objections to the victim's mother's testimony concerning out-of-court statements by the victim concerning Appellant's offenses. The trial court admitted the testimony as outcry evidence. On appeal, Appellant argues that such outcry evidence was not admissible under Texas Code of Criminal Procedure Article 38.072, since that statute applies only to victims twelve years of age or younger, and Appellant's victim was thirteen years of age at the time of Appellant's offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 2004). We assume without deciding that Appellant's specific argument on appeal comports with his general objections at trial. See TEX. R. APP. P. 33.1(a); Resendiz v. State, 112 S.W.3d 541, 547 (Tex.Crim.App. 2003), cert. denied, 124 S.Ct. 2098 (2004). Nonetheless, the trial court did not err. The testimony was admissible under the general outcry statute, Code of Criminal Procedure Article 38.07, and the trial court strictly limited the testimony to its proper scope. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp. 2004); Thomas v. State, 916 S.W.2d 540, 542 (Tex. App.-Waco 1995, no pet.); Buckley v. State, 758 S.W.2d 339, 345-46 (Tex. App.-Texarkana 1988), aff'd, 786 S.W.2d 357 (Tex.Crim.App. 1990); Heckathorne v. State, 697 S.W.2d 8, 12-13 (Tex. App.-Houston [14th Dist.] 1985, pet. ref'd). We overrule Appellant's first issue. 2. Comment on the Weight of the Evidence. In Appellant's second, third, and fourth issues, he contends that the trial court commented on the weight of the evidence in its instructions to the jury concerning the outcry evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979). Appellant forfeited any complaint concerning the instructions, to which he failed to object. See TEX. R. APP. P. 33.1(a); Simpson v. State, 119 S.W.3d 262, 267 (Tex.Crim.App. 2003), cert. denied, 124 S.Ct. 2837 (2004); Wilson v. State, 90 S.W.3d 391, 394-95 (Tex. App.-Dallas 2002, no pet.). We overrule Appellant's second, third, and fourth issues. Having overruled all of Appellant's issues, we affirm the judgment.
DISSENTING OPINION
I disagree with the decision to affirm the judgment. First, the majority believes that the mother's testimony was admissible under article 38.07 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 1979). The victim was, however, thirteen years of age at the time of the offense, so no corroboration was required. Because corroboration was not required, the testimony was not admissible. The State's brief does not argue admissibility under article 38.07; rather, it says the testimony was admissible as an excited utterance. It then says that, even if inadmissible, the error was harmless. I disagree with both the State and the majority. I would hold that the court erred in admitting the testimony and that Martinez was harmed thereby. Next, Martinez says in issues two, three, and four that the trial court erred in commenting on the weight of the evidence concerning the mother's testimony about the victim's statement to her. Each issue is based on a separate reason: violation of article 38.05 of the Code of Criminal Procedure; violation of the United States Constitution; and violation of the Texas Constitution. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979). Notwithstanding that Martinez specifically argues in issues three and four that the asserted constitutional violations do not require preservation because they are "structural" errors, the majority rejects all three on preservation grounds. TEX. R. APP. P. 33.1(a). In that respect, the opinion simply does not discuss the issues that are raised, i.e., whether such a claim involves a category one or two right under Marin v. State, and whether the trial judge abdicated his duty to be impartial when he instructed the jury concerning the outcry testimony. See Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993). Agreeing with the majority that the article 38.05 issue was not preserved for our review, I would analyze the constitutional issues and find that the court's acts did not rise to the level of fundamental error of constitutional dimension. See Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000) (comments of trial judge were fundamental error of constitutional dimension requiring no objection). I would reverse the judgment and remand the cause for a new trial. Because the majority does otherwise, I respectfully dissent.
The majority has designated the opinion "do not publish." It is set out in full in the appendix.
Even if corroboration were required, only the fact of the crime, and not its details, may be admitted under this exception. When properly admitted, the statement is not hearsay at all, since it is admitted not for the truth of the matter asserted, but only for the fact of its utterance. See Brown v. State, 649 S.W.2d 160, 162 (Tex. App.-Austin 1983, no pet.).
In Veteto v. State, 8 S.W.3d 805, 816 (Tex. App.-Waco 2000, pet. ref'd), we found that an impermissible charge on corroboration was a comment on the weight of the evidence. Because of other errors, we did not conduct a harm analysis.