Richard Allen Lynch, Sr. v. The State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-03-00136-CR

Richard Allen Lynch,

Appellant

v.

The State of  Texas,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 02-09-13,541BCCR

MEMORANDUM Opinion

A jury convicted Richard Allen Lynch of injury to a child and sentenced him to thirty-five years imprisonment. Lynch contends in a single issue that the court abused its discretion by admitting the testimony of his brother James regarding statements made by their mother Janie during a conversation between Janie, James, and Lynch himself. Because the statements were admissible as adoptive admissions, we will affirm.

Lynch was convicted of injuring his three-month-old son. His brother James was out of town when the injuries were inflicted and the son was hospitalized in Temple. When James returned, he joined the family at a motel in Temple. Janie and Lynch asked James to step out on the balcony to talk with them about the situation.

Janie told James that Lynch had beaten the baby and that they needed to take [Lynch] to a psych ward [because] he needed some help. In response, Lynch told James that he f---ed up and started crying. James testified that they tried to have Lynch admitted at a psychiatric hospital in Killeen, but Lynch was denied admission after an evaluation.

Lynch characterizes the conversation between Janie, James, and himself as containing three distinct statements: (1) that he had beaten his son, (2) that Janie wanted to hospitalize him, and (3) that Janie would try to get him some help. He contends that it is unclear which, if any, of these statements he adopted by acquiescence. He notes that he was surely traumatized after discovering the extent of the child s injuries, presumably not knowing what had caused it. He refers to the statements he gave the police, in which he maintained that he had accidentally dropped his son the day before he was hospitalized. Lynch contends that Janie s statement does not specify that he had directly spoken with her about his son s injuries. He suggests that his comment to James could be just as easily construed as an expression of remorse for having accidentally dropped his son.

Rule of Evidence 801(e)(2) excludes from the hearsay rule certain statements made by a party-opponent and offered against him at trial. Included within this definition is a statement of which the party has manifested an adoption or belief in its truth. Tex. R. Evid. 801(e)(2)(B). Such adoption can be manifested by actions, responses, or acquiescence. Legate v. State, 52 S.W.3d 797, 802 (Tex. App. San Antonio 2001, pet. ref d); see also Paredes v. State, 129 S.W.3d 530, 533-35 (Tex. Crim. App. 2004) (manifestation by response); Alvarado v. State, 912 S.W.2d 199, 214-15 (Tex. Crim. App. 1995) (manifestation by silent acquiescence).

We review a trial court s ruling on the admissibility of evidence under an abuse-of-discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). If the court s ruling is correct under any theory of law applicable to the case, we will uphold it. Id.

Janie told James that Lynch had beaten the baby. Lynch did not attempt to refute her statement. Although Lynch is correct that his response could be interpreted in more than one way, we cannot conclude that the court abused its discretion by implicitly concluding that Lynch s response constituted an adoption by silent acquiescence of Janie s statement. See Alvarado, 912 S.W.2d at 214-15; Flores v. State, 84 S.W.2d 675, 685 (Tex. App. Houston [1st Dist.] 2002, pet. ref d).

Accordingly, we overrule Lynch s sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed December 15, 2004

Do not publish

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