Richard Wayne Hutchison v. State

Hutchinson v. State AFFIRMED JULY 26, 1990 NO. 10-89-080-CR Trial Court # 88-878-C IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * * RICHARD WAYNE HUTCHISON, Appellant v. THE STATE OF TEXAS, Appellee * * * * * * * * * * * * * From 54th Judicial District Court McLennan County, Texas * * * * * * * * * * * * * O P I N I O N * * * * * * * Pleading not guilty, appellant Richard Wayne Hutchison was found guilty by a jury of the offense of aggravated sexual assault. Punishment was assessed by the jury at confinement in the Texas Department of Corrections for a term of twenty-five years. Appellant seeks reversal of his conviction on six points of error asserting that (1) the trial court failed to determine in a pretrial hearing that the outcry statement of the child victim to her aunt was sufficiently reliable to be admitted into evidence; (2) the State of Texas did not comply with the requirements of Article 38.072 of the Texas Code of Criminal Procedure; (3) the trial court erred in admitting into evidence a written statement made by appellant to a Texas Department of Human Services Agent because it was obtained in violation of appellant's Miranda rights; (4) the trial court erred in determining that the written statement of appellant was a voluntary statement; (5) the trial court erred in refusing to give a limiting instruction to the jury regarding the outcry testimony; (6) the trial court erred in denying appellant his right to confrontation and cross-examination of the complainant by allowing the State to introduce into evidence a tape recording of the child made three days prior to trial. We overrule these contentions and we affirm the judgment. Appellant was indicted for aggravated sexual assault on allegations that he had knowingly and intentionally caused his sexual organ to penetrate the mouth of Eulisha Johnson, a child younger than fourteen years of age and not the spouse of appellant. In a pre-trial hearing, appellant sought to have the "outcry" testimony of Carolyn Johnson, Eulisha Johnson's aunt, excluded. The court denied the motion in limine request and allowed the testimony to be offered into evidence. In points of error one and two, appellant complains that the State did not comply with the requirements of Article 38.072 of the Texas Code of Criminal Procedure which deals with the admissibility of outcry testimony. An outcry statement is a statement that describes the offense, made by a child twelve years of age or younger against whom the offense was committed, to the first person eighteen years of age or older. This testimony may not be inadmissible because of hearsay if certain requirements of Article 38.072 are met. The party intending to offer the statement must notify the adverse party of its intention to do so, provide the party with the name of the witness through whom it intends to offer the statement, and provide the adverse party with a written summary of the statement on or before the fourteenth day before the date the proceeding begins. Additionally, the trial court must find from a hearing held outside the presence of the jury that the statement is reliable based on the time, the content, and the circumstances of the statement; and the child must testify or be available to testify at the proceeding in court or in any other manner provided by law. Appellant complains that the reliability of the statement of the outcry witness was not determined in a hearing outside the presence of the jury prior to the commencement of trial. The records show that a pretrial hearing was held to discuss the matter of the admissibility of the hearsay statement made by the child regarding the sexual assault against her. Appellant made a general objection at trial which was not sufficient to apprise the court as to his present complaint. He merely objected that the outcry statement "should not be allowed because of failure to comply with Article 38.072 of the Texas Code of Criminal Procedure, and the fact that the Defendant and his attorney were not notified of the outcry witness's testimony." The court correctly overruled the objection because it did not specify which of the many subsections of Article 38.072 the outcry statement violated. Since the objection was general, it preserved nothing for appeal. Rule 52(a), Tex.Rules App.Proc.; Lewis v. State, 664 S.W.2d 345 (Tex. Cr. App. 1984). Point of error one is overruled. Appellant complains that he did not get notice from the state at least fourteen days before trial that it would use any outcry witness testimony. Appellant's first attorney, Mr. Goble, testified that he received a summary of the statement of the outcry witness from the District Attorney's office in the mail and that he read this letter. He also testified that he remembered that Mr. Morris, appellant's present attorney, looked over the District attorney's file at the arraignment hearing on February 17, 1989, preceding the trial in April. The record reveals a letter to Mr. Goble dated January 26, 1989, which gave the notice required by Article 38.072. This letter was a summary of the expected testimony of the outcry witness. The prosecuting attorney testified that he gave the entire file of the state to Mr. Morris to review at the hearing on February 17th. He also testified that he told Mr. Morris that the outcry witness, Carolyn Johnson, would be called as a witness. Appellant had notice through his first attorney on January 26th that an outcry witness would be called and then again when his present attorney reviewed the entire file on February 17th. In a factually similar case, the court in Fetterolf v. State, 782 S.W.2d 927 (Tex.App.--Houston [14th Dist.] 1989, pet. ref.), held that there was no prejudice to the defendant's case by admission of the outcry testimony. In that case, the defendant's attorney looked at the state's file and the defense counsel had knowledge of the statement and the contents of that statement. The defendant's counsel not only conceded the validity of this information, but he notified the court that a reasonable person could have deduced who the outcry witness was. Basically, his objection was that notice of the outcry testimony was never stated officially to him orally or by way of written complaint. The procedural requirements of article 38.072 are to prevent surprise to the defendant and his counsel. Since the complainant did provide live testimony at trial and there was no evidence in the record that the defendant's attorney was surprised by the outcry testimony, the court of appeals ruled that there was no prejudice to the defendant's case by admission of the outcry testimony. Fetterolf, 782 S.W.2d at 930. In our case, there was never any complaint by appellant of surprise or prejudice by reason of lack of notice. Appellant had the opportunity to review the state's file at the arraignment hearing in February. He had notice in January by letter to his attorney. The letter summarized the outcry witness's testimony. The trial began in April. Appellant had sufficient notice of the testimony. Point of error two is overruled. In his third and fourth points, appellant complains that the trial court erred in admitting into evidence an involuntary statement which was allegedly obtained in violation of his Miranda rights. Ms. Bachicha, a caseworker for the Texas Department of Human Services, testified that she took appellant's statement when he came into the office with his girlfriend, the child victim's mother. Ms. Bachicha testified that she did not consider him under arrest nor did she have the authority to make an arrest. After a complaint is made, it is DHS policy to take a statement from a potential abuser in order to clarify what has been done to the child. She testified that this is not done for criminal prosecution purposes but for determining the actual events which led to the complaint. She testified that she did not give any Miranda warnings, but she did tell appellant that he had the right to terminate the interview at any time and was free to leave. After asking appellant if he would like to talk to the police, they decided to go the next day. Appellant himself testified that he voluntarily came back the next day to go to the police. Ms. Bachicha testified that it was her job responsibility to notify the Police Department of sex abuse cases. She asked the appellant if he would write out a statement and he agreed. It is DHS policy to get a statement from the offender if he is willing to give one. She testified that she had the intent to give the statement to the police all along, yet appellant inconsistently testified that his girlfriend, Doris Johnson, promised him that if he talked to Ms. Bachicia he would not be arrested. Miranda v. Arizona holds that statements stemming from custodial interrogation are admissible unless they demonstrate the use of procedural safeguards which were effective to secure the privilege against self-incrimination. The court defined custodial interrogation as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Appellant knew that he was free to leave DHS and Ms. Bachicha. He testified to that fact. He came into the DHS because his girlfriend encouraged him to do so. Although Doris Johnson testified that Ms. Bachicha told appellant that he would not be arrested if he came in, his presence was still voluntary and not under the duress of a law enforcement officer. The only duress imposed upon him was that of his girlfriend. Contrary to appellant's argument, the record does establish that Ms. Bachica was "acting as an agent of law enforcement pursuant to a police practice." See Paez v. State, 681 S.W.2d 34, 37 (Tex.Cr.App.1984). There are several factors to be considered in determining whether or not a defendant is in custody. They include probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant which are all relevant to the determination of custody for interrogation purposes. United States v. Phelps, 443 F.2d 246 (5th Cir. 1971). The determination of custody is made upon the totality of the circumstances. Here, both appellant and Ms. Bachica testified that he voluntarily returned to DHS the second day. Ms. Bachicha was not a law enforcement officer and could not force him to return to the DHS. He came by his own persuasion. Appellant asserts in his brief that Ms. Bachicha, as DHS agent, coerced and induced him to make the incriminating statement. He asserts that his statement was taken under the premise that Ms. Bachicha would help him regain custody of his future step-daughter. Ms. Bachicha testified that she informed appellant that he had the right to terminate the interview at any time and that he was free to leave. Additionally, appellant testified that his girlfriend informed him that if he would go to the DHS and make a statement that he would not be arrested. Ms. Bachicha testified that she never said that to Ms. Johnson. Even if it were true, appellant was under no coercion by a law enforcement officer to make the statement. He was not under arrest and he was not in custody. He had a choice and he voluntarily confessed. Appellant does have the right to a determination of the voluntariness of the confession before it is submitted to the jury by way of a fair hearing and a reliable determination. Jackson v. Denno, 369 U.S. 375, 377, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The court held a pretrial hearing where appellant objected to the use of the confession at trial. The trial judge heard testimony from Ms. Bachicha and from appellant and determined that the confession was reliable and voluntary. Points of error three and four are overruled. Appellant complains in his fifth and sixth points that the trial court erred in refusing to give a limiting instruction to the jury to the effect that the outcry testimony could be considered only for the purpose of showing "that the communication allegedly took place," and that he was denied his full right to confrontation and cross-examination of the complainant by the court's allowing the state to introduce into evidence a tape recording of an interview of the child made three days prior to trial. In Fetterolf, the defendant complained that the trial court erred in refusing to include in the court's charge an instruction to the jury that the outcry testimony was admitted for a limited purpose. The court of appeals held that pursuant to and in accordance with the intent of the Legislature in creating such an exception to the hearsay rule, the request for a limiting instruction as to the outcry testimony was inapplicable. 782 S.W.2d at 931. We agree with this ruling. The statement was admissible under Article 38.072 for its full probative value. Point five is overruled. The full opportunity for cross-examination at trial in the defendant's presence provides meaningful confrontation. Mares v. State, 758 S.W.2d 932, 934 (Tex. App.--El Paso 1988, pet. ref.). Eulisha Johnson was present at the trial and the appellant had the opportunity to cross-examine her as to the matters in the tape recording as well as to the matters raised at trial. Additionally, the tape recording was admitted before the jury only for impeachment purposes after the child victim had testified in favor of appellant by denying that the offense had been committed. Point of error number six is overruled. The judgment is affirmed. VIC HALL DO NOT PUBLISHJustice