An unnoticed outcry statement may still be admissible if the statement is admissible under a hearsay exception.[In the Matter of A.W.B.](10-1-8A)

On February 2, 2010, the Amarillo Court of Appeals held that failure to meet the statutory requisites for an outcry statement was not error where witness's statement was admissible as an excited utterance.

10-1-8A. In the Matter of A.W.B., No. 07-08-0345-CV, ___ S.W.3d ___, 2010 WL 364250 (Tex.App.-Amarillo, 2/2/10).

Facts:On September 10, 2007, Jane Doe, a four year old, was taken by her grandmother, Gwen, to gymnastics class at Ready, Set, Go, in Plainview, Texas. Gwen left Jane Doe with A.W.B., a 16 year old, because Gwen thought that A.W.B. worked for Ready, Set, Go and Jane Doe appeared to know A.W.B. As Gwen returned to her car, she noticed A.W.B. and Jane Doe walking up a stairway that did not lead to Jane Doe's classroom. Gwen followed the two to an upstairs room and, upon entering the room, Gwen saw Jane Doe standing in front of A.W.B. with her face near A.W.B.'s crotch. A.W.B. noticed Gwen, jumped, and pulled up his pants. Gwen confronted A.W.B.'s mother, who worked for Ready, Set, Go, regarding what she had seen and then immediately took Jane Doe to her mother, Audra. When Gwen arrived, Audra heard Jane Doe screaming and crying, so she ran over to the vehicle to see what was wrong. Audra attempted to console Jane Doe and, eventually, she asked Jane Doe what had happened. Jane Doe told her that A.W.B. put his private in her mouth. Following this report, Audra called the police about the incident.

As part of the police investigation of the report, A.W.B. gave a statement. In this statement, A.W.B. admitted that he pulled his pants down and showed Jane Doe his front. However, A.W.B. claimed that he never put a hand on her at all. This statement was admitted into evidence during the subsequent adjudication hearing.

The State filed a Petition alleging that A.W.B. had engaged in delinquent conduct. By this petition, the State alleged that A.W.B. had (1) committed aggravated sexual assault of a child by intentionally or knowingly causing the penetration of Jane Doe's mouth by A.W.B.'s sexual organ, (2) committed attempted aggravated sexual assault on Jane Doe, (3) caused Jane Doe to touch A.W.B.'s genitals, and (4) intentionally and knowingly exposed his genitals to Jane Doe. All four of these allegations relate to the single incident occurring on September 10, 2007.

Prior to the adjudication hearing, A.W.B.'s counsel filed a motion for psychological evaluation of A.W.B. The motion requested a psychological examination pursuant to section 51.20 of the Texas Family Code because A.W.B.'s counsel believed that A.W.B. has or may have significant limitations in his ability to form the requisite intent to commit the alleged delinquent conduct ... alleged by the State. SeeTEX. FAM. CODE ANN. § 51.20 (Vernon 2008). This motion was granted by the trial court and Dr. Richard Wall was appointed to conduct a psychological examination of A.W.B. Dr. Wall performed this evaluation on October 1, 2007.

During the adjudication hearing, Gwen testified regarding what she observed at Ready, Set, Go on September 10, 2007. Over A.W.B.'s hearsay objection, Audra testified that Jane Doe told her that A.W.B. had put his private in her mouth. Dr. Wall also testified regarding his examination of A.W.B. However, the trial court sustained the State's relevancy objection to the report Dr. Wall prepared in conjunction with his psychological examination of A.W.B. At the close of the adjudication hearing, the trial court found each of the State's four allegations true and proceeded to disposition. At the close of the disposition hearing, the trial court ordered A.W.B. committed to the Texas Youth Commission for an indeterminate period not to exceed A.W.B.'s 19th birthday. A.W.B. timely filed notice of appeal of both the adjudication and disposition.

Held:Adjudication affirmed in part vacated in part, Disposition affirmed

Opinion:By his first issue, A.W.B. contends that the trial court abused its discretion by allowing Audra to testify as to Jane Doe's outcry statement without the State satisfying the requirements of section 54.031 of the Texas Family Code. See§ 54.031. A.W.B.'s argument focuses on the trial court's failure to hold a hearing on whether the outcry testimony of Audra met the statutory requisites.

An appellate court reviews a trial court's decision to admit or exclude evidence under an abuse of discretion standard. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); In re J.A.C., No. 14-02-00806- CV, 2005 Tex.App. LEXIS 4519, at *2 (Tex.App.-Houston [14th Dist.] June 14, 2005, pet. denied) (memo.op.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Robinson, 923 S.W.2d at 558;In re J.A.C., 2005 Tex.App. LEXIS 4519, at *3. We must uphold the trial court's decision so long as it falls within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App.2002); In re J.A.C., 2005 Tex.App. LEXIS 4519, at *3. A trial court's ruling in admitting or excluding evidence must be sustained if reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002); In re J.A.C., 2005 Tex.App. LEXIS 4519, at *3.

In the present case, Audra's testimony regarding what Jane Doe told her was admissible as an excited utterance and, as such, any failure to meet the statutory requisites for an outcry statement is not error. It is clear that Audra's testimony of what Jane Doe told her is hearsay. SeeTEX. R. EVID. 801(d). However, Rule 803 provides a number of exceptions to the general rule that hearsay is not admissible. An excited utterance is not excluded by the hearsay rule, regardless of the declarant's availability, and is defined as A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. TEX. R. EVID. 803(2). To meet this exception, the statement must (1) be the product of a startling occurrence that produces a state of nervous excitement in the declarant that renders the statement spontaneous and unreflecting, (2) have been made at a time when the state of excitement still so dominates the mind of the declarant that there is no time or opportunity to contrive or misrepresent, and (3) relate to the circumstances of the occurrence preceding it. See Sellers v. State, 588 S.W.2d 915, 918 (Tex.Crim.App.1979). The reviewing court should not examine each requirement independently, but should rather focus on whether the combined effect shows the statement to be sufficiently reliable. Id.

In the present case, the evidence establishes that Jane Doe began to cry uncontrollably immediately after Gwen witnessed the encounter between Jane Doe and A.W.B. The time elapsed between when Gwen witnessed the encounter and Jane Doe made the declaration that A.W.B. put his private in her mouth was approximately 10 minutes and, throughout this period, Jane Doe cried. Further, while Audra asked Jane Doe what was wrong, the declaration was not the result of questioning and was a spontaneous declaration regarding the occurrence that caused the emotional state Jane Doe was in at a time that Jane Doe was still in that emotional state.

Conclusion: From these facts, we cannot say that the trial court abused its discretion in admitting Audra's testimony relating Jane Doe's declaration.

We overrule A.W.B.'s first issue.