Paul David Cochran v. The State of Texas--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-97-309-CR

PAUL DAVID COCHRAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 97-071-CR

O P I N I O N

A jury convicted Appellant Paul David Cochran of aggravated sexual assault of a child. See Tex. Pen. Code Ann. 22.021(a)(1)(B)(iv), (2)(B) (Vernon Supp. 1999). Cochran pleaded true to enhancement allegations making him an habitual offender, and the court sentenced him to thirty years imprisonment. In a single issue, Cochran argues the court erred in admitting the testimony of the outcry witness without making a finding on the record that the victim s statement to the outcry witness is reliable. See Tex. Code Crim. Proc. Ann. art. 38.072, 2(b)(2) (Vernon Supp. 1999). We will affirm the judgment.

BACKGROUND

The victim J.F. was seven-years-old at the time of the offense and eight at the time of trial. Outside the jury s presence, the court conducted a hearing to determine whether it would permit sheriff s deputy Julie Morrison to testify as an outcry witness. The State presented three witnesses in this hearing: Morrison; a neighbor; and J.F. s mother. In April 1997, the neighbor had overheard J.F. tell a friend that he had watched a pornographic movie and promptly reported this to J.F. s mother. When she asked J.F. about this, he looked at her very sad and said, Momma, Paul is gay. J.F. s mother then called the sheriff s department. According to her, J.F. never told her what Cochran had done to him.

Morrison interviewed J.F. on April 30. He told her that Cochran had forced him and another boy to watch a pornographic movie one evening when Cochran was babysitting them. J.F. was embarrassed about the situation but did tell Morrison that the movie had sex in it. He told Morrison that Cochran did not touch him on this occasion but sat and watched the movie with the boys. Later that evening, J.F. s mother contacted Morrison again and reported that J.F. told her he was afraid to tell [Morrison] that he had been hurt. Morrison returned and talked with J.F. again. He told her that Cochran had touched him and hurt his butt but declined to say anything further.

On May 16, J.F. s class took a field trip to the county jail. When Morrison met the class, she overheard J.F. tell his teacher that Morrison was the person whom he had told he had been hurt really bad. Morrison discussed this comment with J.F. five days later by asking how Cochran had hurt him. He described in some detail three instances when Cochran had assaulted him. The State sought to introduce J.F. s detailed description of the assaults through Morrison as the outcry witness.

As we read Cochran s initial objection in the hearing on the outcry testimony, he complained that the neighbor s testimony was not outcry testimony but rather evidence of an extraneous offense (Cochran s forcing J.F. to view the pornographic movie). The State responded that it intended to offer the testimony of the neighbor and J.F. s mother to establish the context for J.F. s outcry to Morrison. The court informed Cochran it would give the jury a limiting instruction on this testimony if he requested one at the time the witnesses testified.

Upon Cochran s objection, the court provided a limiting instruction during the testimony of J.F. s mother, instructing the jurors not to consider her testimony about J.F. s statements about viewing the movie for the truth of the matter. // The court also included a limiting instruction in the charge instructing the jurors not to consider evidence of extraneous offenses unless they believed beyond a reasonable doubt Cochran committed them and, if so, only for state of mind and the previous and subsequent relationship between Cochran and J.F. See Tex. Code Crim. Proc. Ann. art. 38.37, 2 (Vernon Supp. 1999).

Cochran also objected in the pretrial hearing that Morrison s testimony included evidence of two extraneous offenses because she was prepared to testify that J.F. said Cochran assaulted him three times whereas the indictment alleges only one assault. The court overruled this objection. Cochran raised no further objections to Morrison s testimony.

Cochran argues in his sole issue that the court erred in admitting Morrison s testimony under the outcry exception to the hearsay rule without making findings on the record concerning the reliability of J.F. s statements to her. The State responds that Cochran has failed to preserve this issue for our review because he failed to object to Morrison s testimony.

Rule 103(a)(1) of the Rules of Evidence provides in pertinent part that a party must object to the admission of evidence in order to preserve error for appeal. Tex. R. Evid. 103(a)(1); accord Tex. R. App. P. 33.1(a)(1)(A). The Court of Criminal Appeals has held that the predicate requirements of article 38.072 must be satisfied when the opponent of outcry testimony raises at a minimum a hearsay objection to the testimony. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). In a case procedurally similar to Cochran s, the Dallas Court of Appeals held that the defendant s failure to object to the trial court s failure to make written findings on the reliability of the child victim s statement resulted in a failure to preserve for appellate review any error in the admission of the outcry testimony. Norris v. State, 788 S.W.2d 65, 68 (Tex. App. Dallas 1990, pet. ref d).

Article 38.072 provides in pertinent part that the hearsay rule will not bar the admission of outcry testimony if:

the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement.

Tex. Code Crim. Proc. Ann. art. 38.072, 2(b)(2). This is the only requirement of article 38.072 which Cochran alleges has not been satisfied. Accordingly, we limit our discussion to this provision. //

Cochran did not object to Morrison s testimony on the basis of hearsay or to the court s failure to make express findings on the reliability of J.F. s statements to Morrison. He concedes as much. He claims however that the requirement of a reliability finding constitutes an absolute requirement which cannot be waived or forfeited. Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993). However, Marin itself rejects this argument.

Outcry testimony is objectionable hearsay if not admitted under an exception to the hearsay rule, such as article 38.072. Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992). Hearsay testimony must be admitted [u]nless a litigant exercises his option to exclude [such] evidence. Marin, 851 S.W.2d at 278. Moreover, a litigant s failure to exercise his option to exclude hearsay testimony by objection results in a forfeiture of the right to challenge the admission of such testimony on appeal. Id. at 280. Accordingly, because Cochran did not object to Morrison s testimony, he failed to preserve the issue presented for our review. See Long, 800 S.W.2d at 547-48 (discussing requirements for preservation of error in outcry cases); Norris, 788 S.W.2d at 68; Poole v. State, 974 S.W.2d 892, 899 (Tex. App. Austin 1998, no pet. h.); Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1)(A).

Even if Cochran had preserved this issue, this Court has recently concluded that article 38.072 does not require a court to articulate findings of reliability on the record. Gabriel v. State, 973 S.W.2d 715, 718 (Tex. App. Waco 1998, no pet.). We issued Gabriel shortly after the parties filed their briefs in Cochran s case. Because Cochran presents an argument not made in Gabriel, we write further to address his contention.

Cochran analogizes the article 38.072 requirement that a court find the victim s statement reliable to the requirement of article 38.22, section 6 that a court make written findings of fact and conclusions of law in cases where the voluntariness of an accused s statement is challenged. Compare Tex. Code Crim. Proc. Ann. art. 38.072, 2(b)(2) with Tex. Code Crim. Proc. Ann. art. 38.22, 6 (Vernon 1979). We disagree.

Article 38.22, section 6 expressly requires a court to make written findings and conclusions. Tex. Code Crim. Proc. Ann. art. 38.22, 6; State v. Acosta, 948 S.W.2d 555, 556 (Tex. App. Waco, order), disp. on merits, 951 S.W.2d 291 (Tex. App. Waco 1997, pet. ref d). To the contrary, article 38.072, section 2(b)(2) does not expressly require written findings. Thus, the latter is more analogous to rule 403 of the Rules of Evidence, which requires a court to balance the extent to which the probative value of evidence is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or undue delay or needless cumulation. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (op. on reh g); Tex. R. Evid. 403.

A trial court need not make express findings on the record when conducting the balancing test required by rule 403. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). We hold that a trial court similarly does not have to make findings on the record when making the reliability determination required by article 38.072, section 2(b)(2).

CONCLUSION

Cochran failed to preserve for our review the issue presented. Even if he had, we find from the record that the court did not abuse its discretion in finding that J.F s outcry to Morrison was reliable. We overrule Cochran s sole issue and affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings (not participating)

And Justice Vance

Affirmed

Opinion delivered and filed March 24, 1999

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