Opinion
No. 05-01-01403-CR.
Opinion Filed August 28, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F00-32187-WH. Affirmed.
OPINION
A jury convicted Kevin Henry McKoy of aggravated sexual assault and assessed a thirty-year sentence. In two points of error, appellant contends there is a conflict between the abstract and application sections of the jury charge and the trial court erred in overruling his objection to the victim's outcry statement. We affirm the trial court's judgment.
BACKGROUND
The complainant, S.B., her two sisters, and her mother, R. O., lived together. When S.B. was younger, R. O.'s boyfriend began staying overnight with them. After seeing a television program on child sexual abuse, S.B.'s grandmother suggested that R. O. have a talk with her girls. S.B. told her mother that appellant had "humped" her since she was six years old. S.B. was ten years old at the time of trial.THE JURY CHARGE
In his first point of error, appellant contends the trial court's jury charge's abstract section defined his offense under section 22.021(a)(1)(B)(iii) of the penal code but the application section applied the facts under section 22.021(a)(1)(A)(iii). See Tex. Pen. Code Ann. § 22.021 (Vernon 2003). Essentially, appellant contends the trial court defined his offense as involving contact or penetration of a child's sexual organ but then allowed the jury to convict him of an offense involving contact or penetration of a person's sexual organ without consent. See id. Appellant concedes he did not object to the charge at trial, but he contends the error is so egregious and created such harm that he was denied a fair and impartial trial. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). The State responds that the abstract and application sections allege the same manner and means and charge the same offense under sections Tex. Pen. Code Ann. 22.021(a)(1)(B)(iii) and 22.021(a)(2)(B). We agree.1. Applicable Law
A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor, and the victim is under the age of fourteen. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii) and (a)(2)(B)(Vernon 2003). A person commits aggravated sexual assault if he intentionally or knowingly causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor, and the victim is under the age of fourteen. Tex. Pen. Code Ann. § 22.021(a)(1)(A)(iii) and (a)(2)B (Vernon 2003).2. Application of Law to Facts
The indictment charges appellant with "the contact and penetration of the female sexual organ of [S.B.], a child, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of said defendant, and, at the time of the offense, the child was younger than 14 years of age." The trial court's jury charge defined aggravated sexual assault as follows:A person commits the offense of sexual assault if he intentionally or knowingly causes the sexual organ of a child to contact or penetrate the sexual organ of another person, including the defendant.
A person commits aggravated sexual assault if he commits sexual assault as herein above defined and the victim is younger than 14 years of age.The charge's application paragraph directed the jury to find appellant guilty if the evidence showed beyond a reasonable doubt that he did "cause the contact or penetration of the female sexual organ of [S.B.], a child, who was not then the spouse of [appellant], by an object, to-wit: the sexual organ of [appellant], and . . . the child was under 14 years of age. The abstract section's definition of aggravated sexual assault follows the language of the indictment and sections 22.021(a)(1)(B)(iii) and 22.021(a)(2)(B). See Tex. Pen. Code Ann. §§ 22.021(a)(1)(B)(iii), 22.021(a)(2)(B). The application paragraph follows those sections but uses the wording of the indictment rather than the penal code. Subsection (a)(1)(A) describes aggravated sexual assault involving non-consenting victims. Subsection (a)(1)(B) describes aggravated sexual assault involving child victims. The jury charge in this case both defines and applies aggravated sexual assault involving a child victim. Reading the charge as a whole, we conclude appellant's contention lacks merit. We overrule appellant's first point of error.
OUTCRY TESTIMONY
In his second point of error, appellant contends the trial court erred in overruling his objection to R. O.'s hearsay testimony about S.B.'s outcry statement. Appellant maintains the written summary was insufficient because it differed from both R. O.'s testimony at the article 38.072 hearing and her testimony before the jury. Appellant argues that because the written summary did not fully reflect the outcry testimony, the summary was insufficient to satisfy article 38.072 as a matter of law and inform him of the statement's content, and it deprived him of his constitutional rights to due process of law and a fair hearing.1. Applicable Law
Hearsay testimony of a child victim's first outcry statement to an adult regarding a sexual offense is admissible under certain circumstances. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003). The trial court admits outcry testimony when (1) the party that intends to offer the statement notifies the opposing party, provides the name of the outcry witness who will testify, and provides a written summary of the statement; (2) the trial court conducts a hearing outside the jury's presence and finds the statement reliable after considering the time, content, and circumstances of the statement; and (3) the victim either testifies or is available to testify. Id. § 2(b). The State's written summary must provide adequate notice of the content and scope of the outcry statement. Gay v. State, 981 S.W.2d 864, 866 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd); Norris v. State, 788 S.W.2d 65, 68 (Tex.App.-Dallas 1990, pet. ref'd). These notice and hearing requirements prevent the defendant from being surprised by outcry testimony. Gay, 981 S.W.2d at 866; Fetterolf v. State, 782 S.W.2d 927, 930 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd). The State bears the burden to prove compliance with the statute. Gabriel v. State, 973 S.W.2d 715, 719 (Tex.App.-Waco 1998, no pet.). The pretrial written summary's not including threats to the victim when coupled with a showing of harm and prejudice requires we reverse a defendant's conviction. See Gay, 981 S.W.2d at 866-67. To determine if the trial court's admitting inadmissible hearsay harmed appellant, we review the record under rules of appellate procedure. Tex.R.App.P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We consider inadmissible hearsay evidence as harmless if, after reviewing the record as a whole, we are reasonably assured that "the error did not influence the jury or had but a slight effect." Johnson, 967 S.W.2d at 417; Thomas v. State, 1 S.W.3d 138, 142 (Tex.App.-Texarkana 1999, pet. ref'd).1. Application of Law to the Facts
Before trial, the State filed a "notice of outcry statement" summarizing R. O.'s proposed outcry testimony as follows:Sometimes [appellant] would come in [S.B.'s] room in the middle of the night. [S.B.] would wake up and [appellant] would be in her bed. [Appellant] would be having sex with [S.B.] He would be naked. [Appellant] told [S.B.] not to tell-that it was their secret. He touched [S.B.] with his hand and his penis-inside of her.During the trial, S.B. testified appellant had entered her room at night while she slept, placed his penis into her vagina and her bottom, and had "humped" her with his penis going up and down. A yellow substance came out of appellant's penis during these incidents. After S.B. testified, the trial court had a hearing outside the jury's presence to determine the admissibility of the outcry statement. At the hearing, R. O. testified she had questioned S.B. one night in May 2000 to discover whether anyone had inappropriately touched her. S.B. began crying and disclosed that for several years appellant had been sneaking into her bed. Appellant had taken off his clothes and "would get on top and move his stuff on her. He would put it between her legs. When she would wake up her panties would be off when he was on top of her." S.B. told R. O. that appellant's "stuff" touched her in her "private parts" and "private area" which R. O. understood to mean her vagina. S.B. said she had not disclosed appellant's assaults earlier because appellant had warned her not to tell anybody and she was scared. Appellant had told her the following:
It was their secret. If she told that he wouldn't be her daddy no more, and me [R. O.] and him would be into a fight and mommy would put him out. Those kind of threats. And that if she told, that he wouldn't be able to be around her. And she loved him. So she was scared that she would lose him in her life.S.B. also said the assaults began when she was six-years old and the final assault had occurred two or three days before she told her mother. During the last assault, appellant had come into S.B.'s room and climbed into her bed. When appellant heard R. O. coming, he left the room and S.B. pretended to be asleep. Later, appellant returned and got in S.B.'s bed again. Appellant was whispering and breathing heavily and told her "he was going to bust it." S.B. did not understand what appellant meant. When appellant cross-examined R. O. about threats appellant had made to S.B., R. O. did not recall S.B. recounting any threats to kill her, but did reiterate appellant threatened to "bust her" and told her "he could do something to mommy." After R. O. testified, appellant objected to the trial court's admitting the outcry testimony because of vagueness and the State's pretrial summary of the outcry was insufficient because it had not included the physical threats against S.B. The trial court overruled appellant's objection, finding S.B. was available and had testified, had made a statement to a person over eighteen-years old about the offense, that proper notice was given, and that the statement was reliable based on the time, content, and circumstances of the statement. The trial court granted appellant a running objection to the outcry testimony. When the jury returned to the courtroom, R. O. testified that appellant would lie on top of S.B. in her bed when she was asleep. He was naked and "[w]hen he gets on top of her, he's rubbing stuff and has his stuff on her. . . . She was describing it as her T-shirt is up and panties was down and he is humping her when she wakes up." When asked to try and recall S.B.'s exact words, R. O. testified that "[h]is stuff was touching her private. And he would get on top of her and he would be rubbing her back and forth." R. O. identified S.B.'s "private" as her vagina and appellant's "stuff" as his penis. S.B. was scared, crying, and red-faced during the outcry conversation. At the hospital, while S.B. was being examined, R. O. found out the abuse "started early, back in Grapevine. . . ." In reciting why S.B. had endured the abuse for so long without disclosure, R. O. explained:
[R. O.]: She was scared. And she didn't want nothing to happen to [appellant]. And, you know, she didn't call him Kevin, she called him daddy. She didn't want nothing to happen to daddy. And that if she told me it could be-he would be made to move out for good, and she wouldn't have no daddy in her life. That he wouldn't be there and that he might do something to me, you know.
[STATE]: Did she talk to you about anything else that he said to her when he did this to her?
[R. O.]: Yeah. She said that when he was on top of her the last time, he was breathing heavy and he whispered in her ear that he was going to bust her. He was going to bust her. She asked me what does that mean. She didn't know what that meant. She just remembered him breathing heavy. I remember her saying she closed her eyes and she would just cry. It hurt, but she couldn't-she was scared to scream out or whatever.Our review of the record confirms the written summary differed in some respects from R. O.'s accounts of the outcry in the hearing and before the jury. However, merely showing the accounts differed in some respects does not render the outcry inadmissable. Without some showing that the insufficient summary surprised or harmed him, appellant cannot prevail. See Garcia v. State, 907 S.W.2d 635, 638 (Tex.App.-Corpus Christi 1995), aff'd, 981 S.W.2d 683 (Tex.Crim.App. 1998) (overruling complaint about insufficient summary because record did not contain evidence of harm or indicate harm or prejudice to defendant). Although appellant complains the summary differed from the testimony given, he neither specifies what differences are material nor contends he was surprised or harmed by any of R. O.'s testimony. At trial, appellant objected that the written summary did not include alleged physical threats against S.B. Assuming, without deciding, appellant's point of error on appeal raises the same complaint, the only physical threat the jury heard was appellant's threat to "bust" S.B. Nor does appellant contend he was surprised when R. O. testified about the threat or that the court's admitting the threat prejudiced his defense. Moreover, appellant does not explain, and the record does not show, that the court's admitting the threat into evidence had any effect on the jury's verdict. Appellant had the opportunity to cross-examine both S.B. and R.O. when they testified at trial. In addition to S.B.'s graphic testimony of the offense, the record includes a forensic consultant's testimony. He testified appellant confessed to him during an interview that appellant had sexually molested S.B. over a period of time by rubbing his penis on her vagina and touching her vagina with his hands. The State also elicited from R. O. that appellant met with her and tried to get her to drop the charges against him if he would get counseling. During the meeting, appellant told R. O. she did not want to know the truth and then, without stating directly what he had done to S.B., told her that demons had possessed him and caused him to revert to a childlike state when he did things with S.B. that he had wanted to do with a neighbor girl when he was a child. 44.2(b) Assuming, without deciding, that the State violated article 38.072 by not specifying this threat in its written notice, we conclude the admission of the threat to "bust" S.B. and all other differences between the summary and R. O.'s testimonies about the outcry statement had either no effect, or at most a slight effect, on the jury's verdict. See Johnson, 967 S.W.2d at 417; Thomas, 1 S.W.3d at 142 We overrule appellant's second point of error. We affirm the trial court's judgment.