Opinion
No. 05-02-01004-CR
Opinion Filed October 1, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-27461-IU.
AFFIRM
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Danny Lee Perkins appeals his conviction for aggravated sexual assault of a child. After the jury found appellant guilty, the trial court assessed punishment at confinement for life. In two issues, appellant argues the trial court erred by denying his motion to suppress, and by overruling his hearsay objection to certain testimony. We overrule appellant's issues and affirm the trial court's judgment.
Eight-year-old D.P. testified that she stayed with her mother and appellant on weekends. One weekend night, the three of them turned in for the night with D.P. and appellant on the "couch bed" and her mother on the floor nearby. After D.P. told her mother that her stomach hurt, appellant began to rub D.P.'s stomach. Appellant then started rubbing D.P.'s private parts. According to D.P., while her mother slept, appellant touched her inside of her underwear, rubbed his penis on her leg, and then "sticked his penis" in her vagina. D.P. explained that she told her mother the next day, but recanted her story after her mother threatened to kill appellant. After the weekend visit ended, D.P. told her step-mother what had happened. After hearing this and other evidence, the jury convicted appellant of aggravated sexual assault of a child.
In his first issue, appellant contends the trial court erred by denying his motion to suppress. According to appellant, the statement he made to police was involuntary because it was induced by a promise of leniency. During the suppression hearing, Detective B.T. Younger testified that when he took appellant into the interview room, appellant read his Miranda warnings and initialed that he understood his rights. Younger denied making any threats or promises. On cross-examination Younger explained that he told appellant giving a statement "would show his cooperation in this investigation. It might look better on him. [Younger] didn't promise [appellant] anything or offer him leniency or anything like that."
Before a promise will render a confession inadmissible, it must be shown that the promise induced the confession. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993); Ramirez v. State, 76 S.W.3d 121, 126 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). To induce a confession, a promise must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that a defendant would speak untruthfully in response thereto. Muniz, 851 S.W.2d at 254; Ramirez, 76 S.W.3d at 126. Here, Younger's remark to appellant that giving a statement "might look better on him" was simply a statement of opinion. See Ramirez, 76 S.W.3d at 126 (concluding detective's statement that "typically juries and the court system sometimes favor people [who] tell the truth" was statement of opinion and not unequivocal promise of leniency). Because Younger's remarks to appellant did not positively and unequivocally promise leniency in return for a confession, the trial court did not err by denying appellant's motion to suppress.
Moreover, even if we were to conclude Younger's remarks induced appellant to give his statement, we would not conclude its admission constituted reversible error. In his statement, appellant asked for help and appellant claimed he could not remember what happened and did not know if D.P.'s story was true or not true. Appellant stated that he would never hurt D.P. on purpose and if he "did it is something [he was] not aware of." This statement is not truly a confession, because appellant did not unequivocally admit penetrating D.P.'s vagina with his penis. To the contrary, appellant asked for help because he could not remember what happened. Therefore, appellant's statement is not an unequivocal admission of guilt, and in view of the other evidence presented, including D.P.'s unequivocal testimony that appellant sexually assaulted her, we cannot conclude admission of the statement constituted reversible error. We overrule appellant's first issue.
In his second issue, appellant contends the trial court abused its discretion by allowing D.P.'s step-mother, Sheila Pruett, to testify as an "outcry witness" in violation of article 38.072 of the Texas Code of Criminal Procedure. Appellant maintains (1) the State failed to provide notice of Pruett as an outcry witness; (2) Pruett's testimony does not comport with the outcry notices; (3) Pruett was not the first person D.P. told about the sexual assault; and (4) the trial court did not conduct a hearing to determine the admissibility of the complained-of testimony. At trial, appellant's objection was that Pruett's testimony was "hearsay and it doesn't meet the requirements."
Contrary to the State's argument, appellant's objection is sufficient to preserve error on each of these complaints. In Long v. State, 800 S.W.2d 545 (Tex.Crim.App. 1990), the court of criminal appeals held as follows:
The language of the statute indicates the testimony is only admissible as a statutory exception to the hearsay rule if its procedures are followed. Therefore, in the prosecution of an offense pursuant to those set forth in Art. 38.072, Sec. 1, the provisions of the statute, including the notice and hearsay requirements, are mandatory, and must be complied with in order for a statement to be admissible over a hearsay objection.
Long, 800 S.W.2d at 547. Appellant did not waive his right to appellate review by failing to specifically object on each of the grounds raised on appeal. His "hearsay and it doesn't meet the requirements" objection was sufficient to preserve error for our review. See id. at 547-48.
Here, the State's 38.072 notice did not include Pruett as a potential outcry witness. Rather, the State notified appellant that four other witnesses — D.P.'s mother, her father, and two police officers were potential outcry witnesses. Thus, it was error for the trial court to permit Pruett to testify about what D.P. told her. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003) (requiring State to provide defendant, on or before fourteenth day before trial, name of witness and a written summary of statement). Because we have determined the State failed to name Pruett as an outcry witness, we need not discuss appellant's remaining complaints about Pruett's testimony. Tex.R.App.P. 47.1
Having found that the trial court erred by denying appellant's hearsay objection to Pruett's testimony, we must next determine whether the error was harmful. The improper admission of hearsay constitutes nonconstitutional error, and it will be considered harmless if, after examining the record as a whole, we are reasonably assured that the error did not influence the jury verdict or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); Gabriel v. State, 973 S.W.2d 715, 719 (Tex.App.-Waco 1998, no pet.). In making this determination, we consider the entire record and assess the harmfulness of the error by examining the source of the error, its nature, the extent the error was emphasized, potential collateral implications, the weight a juror would place on the error, and the possible repetition of the error by the State if declared harmless. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002); Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989); Gabriel, 973 S.W.2d at 719.
We cannot say, after examining the record as a whole, that allowing Pruett to testify about D.P.'s outcry statement improperly influenced the jury. D.P. testified to the same matter in specific detail. Thus, appellant had an opportunity to cross-examine the declarant. The State did not emphasize Pruett's testimony, but instead focused on D.P.'s live testimony at trial rather than her hearsay statements to her stepmother. Finally, there is nothing in the record to indicate that appellant was surprised by the content of Pruett's testimony. The State's outcry notice to appellant indicated that four other witnesses, D.P.'s mother, her father, and two police officers, would testify that D.P. told them that appellant "rubbed [DP.'s] private part with his hand and inserted his penis in [D.P.'s] private part." Pruett's testimony was consistent with these statements, and consequently, appellant was aware of the content of the outcry statements. After reviewing the record, we are reasonably assured that admitting Pruett's testimony did not influence the jury verdict or had but a slight effect. We overrule appellant's second issue.
Accordingly, we affirm the trial court's judgment.