Perfectly balanced scale.

Background: Article 38.072, §2(a)(3) permits an outcry witness to provide hearsay testimony concerning sexual abuse. The statute applies only in prosecutions of specified sexual offenses if committed against a child younger than 14 years of age or a disabled person. TEX. CODE CRIM.

PROC. art. 38.072, § 1.

Main Ways to Prevent Proffered Witness from Testifying:

1) Notice was Insufficient

2) This is not the Proper Outcry Witness

3) Outcry Statement Insufficient to Qualify for Exception

BACKGROUND AND LAW

Applicability: This article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code, if committed against a child younger than 14 years of age or a person with a disability:

(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);

(2) Section 25.02 (Prohibited Sexual Conduct);

(3) Section 43.25 (Sexual Performance by a Child);

(4) Section 43.05(a)(2) (Compelling Prostitution);

(5) Section 20A.02(a)(7) or (8) (Trafficking of Persons); or,

(6) Section 15.01 (Criminal Attempt), if the offense attempted is described by Subdivision (1),

(2), (3), (4), or (5) of this section.

TEX. CODE CRIM. PROC. art. 38.072, § 1.

Elements: To qualify as the outcry witness under this article, the witness must have been:

1) the first person;

2) 18 years of age or older, other than the defendant;

3) to whom the child made the statement about the offense.

OBJECTING

Objecting to Outcry Statements: Object as soon as this issue presents itself. The objection should be to inadmissible hearsay, lack of notice, an improper outcry witness, confrontation clause, due process, or some combination thereof as appropriate. Holland v. State, 802 S.W.2d 696, 699−700 (Tex.Crim.App. 1991). Always make a hearsay objection and then the others, but always hearsay. A hearsay objection to outcry testimony puts the burden on the State to prove the testimony is admissible under the provisions of article 38.072 or another hearsay exception. Long v. State, 800 S.W.2d 545, 547-48 (Tex. Crim. App. 1990). Always request a hearing outside of the presence of the jury in which the trial court must find that, “the statement is reliable based on the time, content, and circumstances of the statement.” Hearing is required by TEX. CODE CRIM. PROC. art. 38.072, § b(2). Hearing is waived if not requested. Object until you get a very specific running objection to this witness providing outcry testimony about this event. Miller v. State, 08-02-00099-CR, 2003 Tex. App. LEXIS 4987, 2003 WL 21357555 at *3 (Tex. App. El Paso―June 12, 2003, no pet.) (holding “Although Miller objected to the question about whether the child made any statements to the witness, he did not object to the questions that actually elicited the statements. We therefore conclude that any error in the admission of these statements is not preserved.”).

Garcia v. State, 05-03-00001-CR, 2004 Tex. App. LEXIS 4341, 2004 WL 1068153 at *23 (Tex. App. Dallas―May 13, 2004, pet ref’d) (holding “Although appellant objected to Officer Moore’s testimony on the basis of article 38.072, once the state responded that Moore was the proper outcry witness because she was the first person to whom L.C. gave any details, appellant did not request a hearing or make an offer of proof to determine what L.C. specifically told his parents prior to speaking to Officer Moore. Without such evidence, it is not possible to say that anyone other than Officer Moore was the proper outcry witness.”).

Creech v. State, 05-09-00762-CR, 2011 Tex. App. LEXIS 3340, 2011 WL 1663040 at * 9 (Tex. App. Dallas―May 4, 2011) ( holding, “when Cameron testified, appellant did not object to the lack of article 38.072 notice; therefore, any error was waived”).

METHODS TO PREVENT PROFFERED OUTCRY WITNESS FROM TESTIFYING

All of the Elements of the Statute Must be Met: The outcry must be relatively specific and all elements of this exception must be satisfied. Long v. State, 800 S.W.2d 547 (Tex. Crim. App. 1990). Substantial compliance does not allow the person to testify.

Insufficient Notice: In Dallas County this should be your first place to check. Many or most notices of outcry statement are insufficient. The State must provide the adverse party be provided with a “written summary of the statement” and “the name of the witness through whom [the State] intends to offer the statement.” (Emphasis added.). Article 38.072, § 2(b). Notice must be provided “on or before the 14th day before the date the proceeding begins.” Article 38.072, § 2(b)(1). Defendant has no obligation to request a summary of testimony to be given; the burden to provide the summary is placed solely on the state pursuant to Tex. Code Crim. Proc. Ann. art. 38.072(2)(b)(1). President v. State, 926 S.W.2d 805 (Tex. App.―Austin 1996).

  1. Challenge the Sufficiency of the Notice: written summary must give the defendant adequate notice of the content and scope of the outcry testimony. While there is no authority requiring a detailed summary, the summary of the outcry statement must be more than a general allusion to sexual abuse. It must describe the alleged offense in some discernible manner. It is sufficient if it reasonably informs the defendant of the essential facts related in the outcry statement. Davidson v. State, 80 S.W.3d 132, 136 (Tex. App.―Texarkana 2002, pet ref’d).

The purpose of this notice requirement is to prevent the defendant from being surprised by the introduction of the outcry hearsay testimony. Gay v. State, 981 S.W.2d 864, 866 (Tex. App.―Houston [1st Dist.] 1998, pet. ref’d). Therefore, the written summary must give the defendant adequate notice of the content and scope of the outcry testimony. Id.

Connect this with second method for preventing a witness from testifying, that is that the notice is “person specific” rather than “event specific.” Many times transcripts say that mom was the first person to whom the child made the outcry. Probably true, but that does not meet the standard. The standard is that the proper outcry witness is the first person who received information such as the how, when, what, who, and where information about the event that is to be testified to.

  1. B) Limit the Scope of Outcry Witness Testimony: do not permit the outcry witness from    testifying beyond the scope of the summary provided in the notice. I.E. this outcry witness is to testify to a particular event or event(s). Qualifying as an outcry witness for one event does not allow this outcry witness to testify to all aspects of the offense. Object once the testimony strays beyond the notice.

This Witness is Not the Proper Outcry Witness: A determination of whether the witness is the proper-outcry witness is “event-specific” rather than “person-specific.” Lopez v. State, 343 S.W.3d 137, 140 (Tex.Crim.App. 2011). This means that the proper outcry witness is not the first witness to whom the child or disabled person made the outcry but rather the qualifying person to whom the child or disabled person made the outcry about the specific event to and, of course, there can only be only one proper and qualified outcry witness per event. Lopez v. State, 343 S.W.3d 137, 140 (Tex.Crim.App. 2011).

Nino v. State, 223 S.W.3d 749, 753(Tex. App.―Houston [14th Dist.] 2007, no pet.) (holding, “Though the child’s statements were not lengthy or detailed, they contained sufficient information about the nature of the act and the perpetrator to fall under article 38.072 of the Texas Code of Criminal Procedure.).

Multiple Outcry Witnesses: It is common practice in Dallas County to provide notice for multiple outcry witnesses. Many times not all of these witnesses testify or are even present for trial. When multiple notices have been filed, there is usually no way to discern who the first person was to receive the outcry unless all the potential outcry witnesses testify. This is especially true if you are talking about a child psychiatrist or someone who was brought in to get a full accounting of the event.

  1. a) Because proper outcry is “event-specific,” multiple outcry witnesses may testify about separate acts of abuse committed by the defendant against the child. See Lopez v. State, 343 S.W.3d 137, 140 (Tex.Crim.App. 2011); Tear v. State, 74 S.W.3d 555, 559 (Tex. App.—Dallas 2002, pet. ref’d).

Testimony of a second outcry witness is admissible if it concerns a separate, discrete instance of sexual abuse from the instance testified about by the first outcry witness. See Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.―Austin 1998, pet. ref’d). However, the outcry testimony of a second witness is not admissible under article 38.072 when the witness merely provides additional details regarding the same instance of sexual abuse. Brown v. State, 189 S.W.3d 382, 387 (Tex. App.―Texarkana 2006, pet. ref’d) (“[B]efore more than one outcry witness may testify, it must be determined the outcry concerned different events and was not simply a repetition of the same event told to different individuals.”); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.―Texarkana 2000, pet. ref’d) (“[T]he proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense.”).

Was the Child’s Outcry to the Potential Outcry Witness Sufficient to Qualify the Witness to Testify under the Exception?:

The outcry statement made by the child must have been “‘more than words which give a general allusion that something in the area of child abuse is going on;’ it must be made in some discernible manner and is event-specific rather than person-specific.” Lopez v. State, 343

S.W.3d 137, 140 (Tex.Crim.App. 2011). The proper outcry will tend to include the “how, when, and where” of the assault. Hanson v. State, 180 S.W.3d 726, 730 (Tex. App.—Waco 2005, no pet.). So the questions for the hearing on the admissibility of this outcry-witness testimony are questions about the amount of detail that the child provided. Again there must be some specificity here and it is focused on the event rather than the person.

HEARING ON ADMISSIBILITY OF THE OUTCRY STATEMENT

Nothing makes this different than any other objection. State offers the evidence, Defendant objects, State has burden to establish admissibility, and then Defendant has burden to challenge the admissibility of that evidence. Judges get this backwards sometimes. Make the State do the work.

This hearing is to determine whether this person is the proper outcry witness. The hearing is to focus on the time, content, and circumstances of the outcry statement, not the underlying event itself. The hearing is intended to be narrow in its scope and should not stray from the circumstances of the statement. The goal of the hearing is to determine whether this is the proper outcry witness and that the statement is “reliable.” Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.―Houston [1st Dist.] 2002, pet ref’d); Sanchez v. State, 354 S.W.3d 476, 478 (Tex. Crim. App.2011).

The proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense. Robinett v. State, 383 S.W.3d 758, 761−62 (Tex. App.―Amarillo 2012, no pet.).

A pre-trial hearing conducted under Code of Criminal Procedure Article 38.072 § 2(b)(2) is intended only to determine the reliability of the complainant’s out-of-court statement.

MISCELLANEOUS

Other Mediums do not Qualify for Outcry Exception. Bays v. State, 396 S.W.3d 580, 586 (Tex.Crim.App. 2013) (holding that videotaped interview of the child does not fall within the statutory hearsay exception for outcry evidence).

The courts have interpreted the language of this statute to apply to any child who has not yet reached 14 years of age at the time of the offense. Marquez v. State, 165 S.W.3d 741, 746 (Tex. App.―San Antonio 2005, pet ref’d).

The Law Office of Niles Illich, Ph.D., J.D. Outcry witness testimony. Current as of October 2014.