Garza, Ruben v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RUBEN GARZA, )

) No. 08-01-00489-CR

Appellant, )

) Appeal from the

v. )

) 346th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20010D04293)

)

O P I N I O N

Appellant, Ruben Garza, appeals his conviction by a jury for the offense of injury to a child. The court sentenced Appellant to 7 years= in the Institutional Division of the Texas Department of Criminal Justice. The single issue on appeal is whether he was denied his constitutional right to confront the child complainant.

Appellant, his girlfriend, Kristy Swick, and their two children had been living in the single car garage of Appellant=s parent=s home for about two months. Appellant, Ms. Swick and their two-year-old son, R.G., shared a bed--a box spring and mattress on the garage floor. Ms. Swick slept on one side, Appellant in the middle, and R.G. on the opposite side. On July 21, 2001, R.G. and his father laid down to go to sleep. Ms. Swick sat on the bed watching television. R.G. was tossing and turning and Appellant began yelling at the boy to be still and go to sleep. Ms. Swick heard Appellant slap the boy. As she turned to look, Appellant got out of bed and knelt down beside the bed facing his whimpering son. He was smoking a cigarette. Ms. Swick turned back to the television and then she felt her son begin to violently shake. She got up and went over to her son and asked Appellant what happened. He said Anothing.@ She asked R.G. what happened, and he answered ADaddy burned me.@ Ms. Swick lifted the boy=s tee-shirt up and found an evident cigarette burn mark in the middle of the boy=s chest. Appellant had a lit cigarette in his fingers.

At trial, when Ms. Swick testified about what R.G. had told her--ADaddy burned me@-- the defense objected, on grounds that he was being denied his constitutional right to confront a witness in violation of the Sixth Amendment. The State responded that the statement was admissible as an Aexcited utterance.@ The trial court overruled the objection.

Prior to and subsequent to Ms. Swick=s testimony, two police officers testified that they had gone to the Garza home on July 22 looking for Appellant for whom there was a fugitive warrant from California. Both officers observed a circular burn on R.G.=s chest, and they testified that it was circular and the same circumference as a cigarette. Additionally, a series of photos were taken July 22, were admitted into the record, and they pictured the burn on the boy=s chest.

Standard of Review

The trial court has broad discretion in determining the admissibility of evidence, and its ruling will not be reversed on appeal absent a clear abuse of discretion. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991); Levario v. State, 964 S.W.2d 290, 296 (Tex.App.--El Paso 1997, no pet.). As long as the trial court=s ruling was at least within the zone of reasonable disagreement, we will not intercede. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(Opin. on reh=g); Levario, 964 S.W.2d at 297.

Appellant=s complaint is that the admission of R.G.=s statement to his mother which was hearsay testimony violated the Confrontation Clause of the U.S. Constitution. Specifically, he argues that the State failed to meet the requirements of the Aoutcry@ rule. See Tex.Code Crim.Proc.Ann. ' 38.072 (Vernon Supp. 2003).

The record does show that the State gave notice of its intention to offer the statement pursuant to the outcry rule. However, it does not appear that any preliminary hearing took place, and prior to Ms. Swick=s testimony, Appellant=s trial counsel objected, saying AI will lodge an objection to any alleged outcry at this point of the child, without having the right to have the child comply with the Sixth Amendment, confrontation of witnesses.@ To this, the trial court replied, AThe child is not being called.@

On appeal, Appellant ignores the State=s basic contention that the hearsay statement was independently admissible as an Aexcited utterance@ exception. Indeed, he does not challenge the trial court=s ruling that the statement was admissible as an Aexcited utterance.@ We must also note that the State, for its part in this appeal, ignored the confrontation clause complaint raised by Appellant.

Recently, this Court found that where the excited utterances at issue were not made in a prior judicial proceeding, the State was not obligated to prove the unavailability of R.G. Arzaga v. State, 86 S.W.3d 767, 774 (Tex.App.--El Paso 2002, no pet.), citing White v. Illinois, 502 U.S. 346, 355-56, 112 S. Ct. 736, 742-43, 116 L. Ed. 2d 848 (1992). In this case, there was no prior judicial proceeding. Appellant does not challenge that R.G.=s statement that ADaddy burned me@ was an excited utterance. Accordingly, we overrule Appellant=s single issue and affirm the judgment of the trial court.

July 29, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)