



   MARY'S OPINION HEADING                                           



   NO. 12-02-00285-CR


IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS

JIMMIE ED HUGHES, JR.,§
		APPEAL FROM THE 349TH
APPELLANT

V.§
		JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE§
		HOUSTON COUNTY, TEXAS
 
OPINION
	Appellant Jimmie Ed Hughes, Jr. was charged with three counts of sexual assault and two
counts of indecency with a child.  The jury found Appellant guilty of two counts of sexual assault
and two counts of indecency with a child and assessed his punishment at fifteen years of
imprisonment and a $10,000.00 fine in each case.  In two issues presented, Appellant contends the
trial court erred in admitting evidence of extraneous acts of sexual abuse and hearsay statements of
the complainant.  We reverse and remand for a new trial.

Background
	Appellant is the father of the complainant, C.D.H. (1)  Appellant and C.D.H. lived in the family
home with Appellant's wife, Denise Hughes, who is C.D.H.'s mother, Appellant's two other
children, and his nephew.  C.D.H. was fifteen years of age when she reported the abuse, her brother
was thirteen and her little sister, two.
	The chain of circumstances that ultimately led to Appellant's indictment began at the home
of Appellant's twin brother, Tim Ed Hughes.  Opal is C.D.H.'s first cousin, Tim Ed's daughter. 
Opal's friend, Evelyn, spent the night of November 8, 2000 with Opal at the Tim Ed Hughes home. 
According to Evelyn's testimony, Tim Ed Hughes did something sexually inappropriate to her. 
When Evelyn returned home, she told her mother what Tim Ed had done.  One of her mother's
friends notified the police.  Opal told her mother that her father, Tim Ed, had also molested her. At
the request of the sheriff's office, Patricia, Tim Ed's wife, took Opal to the Grapeland police station
to be interviewed. Denise Hughes, Appellant's wife, was also there with Opal and Patricia.  Before
the initial interview with Opal began, Denise went home to get C.D.H. to be with Opal for "moral
support" because the two cousins were very close.  On the way back to the police station, C.D.H. told
her mother that she had also been sexually molested and named Appellant as the perpetrator.  When
they arrived back at the Grapeland Police Department, C.D.H.'s mother was "visibly shaken . . . 
with her hands cupped over her face . . . shaking."  She had never suspected any sexual abuse had
taken place.
	At trial, C.D.H. testified that she and Opal had discussed their mutual history of abuse as well
as the possibility of reporting it.  C.D.H. was with Opal while Opal was interviewed by Deputy
Wellborn of the Houston County Sheriff's Department.  Listening to Opal's interview, C.D.H.
"broke down," Deputy Wellborn asked her what was the matter, and she told him her father had been
sexually abusing her since she was four years old.  In response to the deputy's questions, she narrated
a history of various kinds of sexual abuse going back as far as she could remember.  She told Deputy
Wellborn that her father had fondled her breasts on the preceding Tuesday night or early Wednesday
morning.  C.D.H. was then interviewed by Elaine Baggerly, an investigator for Child Protective
Services, to whom she repeated the same history of sexual abuse. 
	Appellant was described as "in shock" and then angry when he came to the police station. 
Appellant denied that he had sexually abused his daughter and characterized her as something of a
discipline problem.  He was heard to say that she must be doing this to him in retaliation for a recent
punishment he had given her when she came home drunk from a street dance in Grapeland. 
	Both Deputy Wellborn and Ms. Baggerly found it strange that Appellant fell asleep on the
floor of the police station during the early morning hours while the investigation was still in
progress. Despite Appellant's denial of the allegations, Ms. Baggerly obtained his agreement to leave
the home. At trial, Appellant again contended that C.D.H. was a discipline problem and that her
accusations were unfounded and made in retaliation for the punishment Appellant had recently
administered to her.  However, the record does not reflect that the punishments administered by
Appellant were unduly severe.

 Hearsay Statements

	In his second issue presented, Appellant complains that "[t]he trial judge reversibly erred by
admitting into evidence the complainant's hearsay statements through an outcry witness."  Appellant
contends that Deputy Wellborn and Elaine Baggerly should not have been allowed, over his hearsay
objection, to repeat for the jury an eleven-year history of sexual abuse told them by the complainant
during hours of interrogation.  Deputy Wellborn testified as follows:


	So, anyway, I started visiting with her, and she advised me that she - that her father, Jimmie,
had been sexually -

		MR. SALLEY: I object.  Hearsay.

		THE COURT: Overruled.


	(By Ms. Conley) You may answer.

	A.	Had been sexually assaulting her for a number of years and advising me that this
abuse had started when she was approximately four years old.  In speaking with the
child at that time, I asked her what type of abuse she had endured, and she told me
that her father had - 

		MR. SALLEY: Judge, may I have a running objection on hearsay?

		THE COURT:	I have overruled your objection.  If I granted
your running objection neither one of us
would know when it started or ended, so, no
you may not.

		MR. SALLEY: Thank you, Judge.

	A. 	(By the Witness) And she told me that this had been going on since she was four
years old.  I asked her what type of abuse that, you know, she had been having done
to her.  She said that her father would - had done everything from coming in and
rubbing her on top of her clothing to moving his hand under her clothing to
inserting his fingers into her vagina, and he had also performed oral sex on her.  She
said that the first time she remember her father was standing in the bathroom - and
I assume that he was nude at the time because she said that he was trying to get her
to put her mouth on his penis and suck it like a straw, and had even taken her hand
and put it around it at that time, moving her hand up and down.


Deputy Wellborn also testified that C.D.H. told him her father threatened her.

	Q. 	Did you have any indication that any threats had been made if [C.D.H.] told of what
had been happening in her home?

	A. 	Yes, ma'am. [C.D.H.] told us - I asked her - 

		MR. SALLEY: Object to the hearsay again, Judge.

		THE COURT: Yes, sir.  Overruled again.

	A. 	I asked her if she had been threatened in anyway.  It's very common for somebody
to say if you tell on me I'm going to kill you or I'm going to kill your mother or if
you say anything you're going to embarrass this family.  She said that her daddy had
not threatened to kill her but he had threatened to beat her with a belt on this very
day here because she was talking to her aunt, and I believe her name was Trish or
- I think it was Patricia but they called her Trish.


Deputy Wellborn also testified without objection, "In my experience I have not had a child make an
outcry that it wasn't proved that, you know, it had actually happened."
	Elaine Baggerly, the Child Protective Service investigator, was the State's next witness.  She
had interviewed C.D.H. just after Deputy Wellborn.  She testified, without objection, that she found
C.D.H. "very believable," that "she appeared very honest" and that she had "a very strong feeling
that C.D.H. was telling the truth."  When the prosecutor asked Baggerly the types of sexual abuse
that C.D.H. had related to her, Appellant objected on hearsay grounds.  The prosecutor argued that
Baggerly's testimony regarding what the complainant had told her about her history of sexual abuse
was offered as an excited utterance under Texas Rule of Evidence 803(2).  The trial court found the
evidence admissible because the complainant was still in the grip of the emotional excitement
provoked by hearing Opal tell Deputy Wellborn about the abuse she had endured.  Ms. Baggerly then
testified, in pertinent part, as follows:

	Q. 	In her description to you of what had occurred to her during her childhood, what
type of things did she tell you?

	A. 	That her father penetrated her vagina with his hands, with his fingers.  That he
penetrated her vagina with his tongue.  She described it as performing oral sex and
sticking his tongue inside of her.  He fondled her breasts.  That he took her hand
and placed her hand on his penis moving her hand up and down in a masterbation
[sic]-type movement.

	Q. 	And do you recall whether there were similar type situations throughout the years
or was that an isolated type of situation?


	My understanding was that these type of acts occurred on several different occasions.  It was not a
single event, but these were the kinds of things that he did.

	Q. 	Okay.  That these things were repeated a lot?

	A. 	Yes.


	The State maintains that the testimony of both Deputy Wellborn and Ms. Baggerly was
admissible as an excited utterance.  Rule 803(2) states, as follows:

	The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
	. . . .



Excited Utterance.  A statement describing an event or condition made while the declarant was under
the stress of excitement caused by the event or condition.

 

Tex. R. Evid. 803(2).
Standard of Review
	A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion
standard.  See Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990).  If the trial
court's ruling on the admission of evidence is correct under any theory of law, the trial court's
decision should not be disturbed even if the trial court gives the wrong reason for its ruling.  See
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
Applicable Law
	The excited utterance exception to the hearsay rule is based upon the belief that excitement
stills the capacity for reflection so that utterances made by a declarant while excited by a startling
event are free from conscious fabrication.  2 Goode, Wellborn & Sharlot, Texas Practice:
Texas Rules of Evidence: Civil & Criminal § 803.3 (3d ed. 2002).  The exception has three
requirements:

 (1) 	the statement must be the product of a startling occurrence that produces a state of
nervous excitement in the declarant and renders the utterance spontaneous and
unreflecting,

	(2) 	the state of excitement must still so dominate the declarant's mind that there is no
time or opportunity to contrive or misrepresent, and

	(3) 	the statement must relate to the circumstances of the occurrence preceding it.


Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim. App. [Panel Op.] 1979).  The court of criminal
appeals has more recently explained:

 It is not dispositive that the statement is an answer to a question or that it was separated by a period
of time from the startling event; these are simply factors to consider in determining whether the
statement is admissible under the excited utterance hearsay exception.  The critical determination is
"whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event" or
condition at the time of the statement.


Salazar, 38 S.W.3d at 154 (citations omitted) (quoting McFarland v. State, 845 S.W.2d 824, 846
(Tex. Crim. App. 1992)).  The inquiry should focus on whether the cumulative effect of the three
Sellers requisites shows the statement to be sufficiently reliable.  Sellers, 588 S.W.2d at 918.
	The startling event that triggers the excited utterance need not be the crime itself.  See Hunt
v. State, 904 S.W.2d 813, 815 (Tex. App.-Fort Worth 1995, pet. ref'd).  In Hunt, an eleven-year-old
girl began to cry uncontrollably upon seeing a television news item about a young rape victim who
had been stabbed by her attacker.  When her mother asked her why she was crying, she told her
mother that her father's friend had sexually assaulted her three months before.  Id.  At trial, the girl
testified that seeing the news program made her afraid that she might be pregnant.  Id.  Over the
defendant's objection, her mother was also permitted to testify to what her daughter had said.  Id. 
The court held that the shock of seeing the television news program, coupled with her fear of
pregnancy, was sufficient to produce a state of nervous excitement so as to render her subsequent
remarks spontaneous.  Id. at 816-17.
Application of Law to Facts
	The interviews at the Grapeland police station lasted, according to the record, an estimated
four to six hours.  The questioning of Opal and C.D.H. by Deputy Wellborn and Ms. Baggerly
consumed much of that time.  That some of a declarant's statements were in response to questions
does not necessarily make them inadmissible under this exception to the hearsay rule.  McFarland
v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992).  But it is an important factor in determining
the spontaneity of the statement.  Both Deputy Wellborn and Ms. Baggerly asked C.D.H. questions
calculated to elicit information about past events and activities.  "Responses to this type of
questioning are normally considered reflective narratives of past events" and hence lacking the
spontaneity required to be admissible under this exception.  See Glover v. State, 102 S.W.3d 754,
765 (Tex. App.-Texarkana 2002, pet. ref'd); see also Rubinstein v. State, 407 S.W.2d 793, 795
(Tex. Crim. App. 1966).
	There is no question that C.D.H. became distraught when she heard Opal tell about how she
was abused by her father.  And it is natural that she would be in a tearful and agitated state while
engaged over nearly a two-hour period in something so painful as twice retelling an eleven-year
history of sexual abuse by her own father.  Nevertheless, the rule requires a determination (1)
whether C.D.H.'s presence with Opal and Deputy Wellborn at Opal's interview was an occurrence
startling enough to produce a state of nervous excitement which would render her statements made
during two lengthy interrogations "spontaneous and unreflecting" and, if so, (2) whether the startling
event continued to dominate the reflective powers of her mind during that period.  Several
circumstances argue against it here.  
	C.D.H. was brought to the Grapeland Police Department to lend moral support for her
younger cousin Opal while she talked to the investigators.  Opal and C.D.H. had recently discussed
their shared history as victims of sexual abuse.  C.D.H. had assured Opal that if she had to turn her
father in, she would not be left to suffer alone.  She knew why she was going to be with Opal, and
she knew what she was going to hear.  It was undoubtedly stressful but should not have been startling
or surprising.  The two interviews were conducted in tandem.  The length of the interviews is itself
a circumstance arguing against unreflecting spontaneity.  The record indicates that both girls
remained in the room throughout the interviews by both Deputy Wellborn and Ms. Baggerly.  The
investigators, in their testimony, did not recount unreflecting statements made by the complainant. 
Instead, they summarized what they described as a very detailed narrative that emerged over a
protracted interrogation.
	The State also suggests that C.D.H.'s reflective powers were dominated by the emotions
triggered when her father fondled her breast some three days before.  But the record shows that
although she mentioned the incident, she apparently did not dwell on it and Deputy Wellborn made
no written note of it.  She did relate incidents of a much more disgusting nature which she said had
occurred as often as three times a week throughout her childhood.  It seems unlikely that she was still
gripped by the emotion triggered by the incident three days before.
	Several factors distinguish this case from Hunt.  In Hunt, the child told of one assault, not
an eleven-year pattern of abuse.  In Hunt, the outcry came suddenly during or immediately following
the television news story about the young rape victim who had been stabbed.  In the instant case,
C.D.H. was forewarned about the purpose of the police interviews with Opal, and she had discussed
the situation with Opal.  The facts in this case emerged during two extended interviews.  The
complainant in Hunt was only eleven years of age.  C.D.H. was fifteen and probably more able and
likely to reflect before answering.
	Responding to the investigator's questions, C.D.H. narrated a painful personal history.  But
narrations, especially of this length, are inherently reflective, not spontaneous.  As its name strongly
suggests, the exception for excited utterances or spontaneous declarations was not developed to
allow the introduction into evidence of extended narratives by crime victims, and certainly not
summaries of those narratives as in the instant case.  The extra-legal considerations supporting a
broadening of the exception are especially compelling in cases involving the sexual abuse of
children.  The victim is frequently emotionally overwrought in reporting the crime, and the crime
is universally regarded as monstrous.  These considerations doubtless played a role in the
legislature's creation of Texas Code of Criminal Procedure Article 38.072, a special hearsay
exception in the prosecution of sexual crimes against children twelve years of age or younger.  But
admissibility is conditioned upon the satisfaction of several requirements intended to reduce the
dangers inherent in hearsay testimony.  To be admissible, the statement must be by the child victim
made to the first person over eighteen years of age, other than the defendant, to whom the child made
a statement about the offense.  But it is admissible only if the prosecutor gives fourteen days notice
of intent to use the statement, and provides the defendant with the name of the witness and a
summary of the statement.  Even then, the trial court must conduct a hearing outside the presence
of the jury to determine the statement's reliability before the statement is admitted.  The rule
provides for only one outcry witness.  Before more than one outcry witness may testify, the outcry
must be about different events, and not simply the repetition of the same event as related by the
victim to different individuals.  Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.-Texarkana 2000,
pet. ref'd).  In the instant case, the State named two outcry witnesses, but otherwise failed to comply
with Article 38.072.  Consequently, the trial judge indicated he would exclude outcry testimony.
	In this case, it is impossible to conclude that C.D.H.'s statements were made without
opportunity for reflection or deliberation.  We decline to further expand the excited utterance
exception to include a summary distilled from a protracted interrogation.  The court of appeals in
Glover observed "[t]he danger of allowing expansion of the excited utterance exception to include
this type of information is that it will become as broad and indeterminate as the former res gestae
exception."  Glover, 102 S.W.3d at 765.  We conclude that, measured against the Sellers criteria,
the statements in question were not admissible under Rule 803(2), and the trial court erred in
admitting them.

Harm Analysis
	Improper admission of hearsay evidence is nonconstitutional error.  See Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998).  Therefore, if the error did not affect Appellant's
substantial rights, it must be disregarded.  See Tex. R. App. P. 44.2.  A substantial right is affected
if the error had a substantial or injurious effect on the jury's verdict.  See Morales v. State, 32
S.W.3d 862, 867 (Tex. Crim. App. 2000).  The reviewing court must consider the entire record, the
nature of the evidence supporting the verdict, the character of the alleged error, and how the alleged
error might be considered in connection with other evidence in the case.  Id. 
	Both Deputy Wellborn and Ms. Baggerly were allowed to summarize for the jury what the
complainant had told them: that at one time or another, Appellant had penetrated her vagina with his
hands, fingers, and tongue, and that when she was four, he had asked her to suck his penis like a
straw.  They told the jury that the abuse had occurred two or three times a week since C.D.H. could
remember.  Both Deputy Wellborn and Ms. Baggerly told the jury that they were impressed by
C.D.H.'s very detailed descriptions of the disgusting things her father had done to her.

		We were fortunate enough to hear Officer Robert Wellborn.  He was a deputy with the
Houston County Sheriff's Office.  I thought he was very direct and clear about his assessments at that
time when he interviewed [C.D.H.]. [C.D.H.] told him very definite - as he said, very very credible,
and he gave you any number of reasons why he found her credible.  He explained to you about the
training he had had as a law enforcement officer, and specifically in investigations of sexual abuse. 
One of the things he said was that [C.D.H.] was very upset.  This wasn't a rehearsal deal.  There was
a lot of mental anguish going on and it was very difficult for her to share the most intimate things that
any us can ever imagine.  By her detail and her consistency and her unwavering he became convinced
that she was telling the truth, and he was pretty strong about that while he was on the stand.

		He was concerned about the fact that she had been threatened in that [C.D.H.] has related that
her dad said he would beat her.  Deputy Wellborn mentioned that to you, that it was a concern of his,
too.

		. . . .

		Ms. Baggerly was very, very direct in her questioning and her questioning on cross-examination.  Her words were, I believed [C.D.H.] . . . But in her opinion, she believed [C.D.H.].
[C.D.H.] was forthright.  She was cooperative.  She gave her the information she asked for and she
articulated that as well as she could. 


	A criminal conviction should not be overturned for non-constitutional error if the appellate
court, after examining the record as a whole, has fair assurance that the error did not influence the
jury, or had but a slight effect.  Johnson, 967 S.W.2d at 417.  We have no such assurance in this
case.  The State was prohibited from introducing the testimony of an outcry witness for failure to
comply with Texas Code of Criminal Procedure Article 38.072.   Had the State complied with
Article 38.072, it could not have introduced the testimony of two outcry witnesses unless the
witnesses testified about different events.  Nevertheless, by the trial court's error, the State avoided
compliance with the requirements of Article 38.072 and introduced the testimony of not one, but
two, witnesses who, over defense counsel's objection, described in detail the same events C.D.H.
related in protracted interviews.  Moreover, the State strongly emphasized Deputy Wellborn's and
Ms. Baggerly's testimony in closing argument.  The prosecutor especially dwelt upon their
conclusions about C.D.H.'s credibility and how impressed they were with the detail C.D.H. provided
about her life of sexual abuse.  
	Our examination of the record as a whole leads us to the conclusion that the admission of the
hearsay evidence  probably had an injurious influence on the jury's deliberations and thereby affected
a substantial right of the Appellant. We sustain Appellant's first issue.  Because of our disposition
of this issue, we do not address Appellant's remaining issue.  Tex. R. App. 47.1.
	We reverse the judgment and remand the cause to the trial court for a new trial.

   BILL BASS   
									Justice


Opinion delivered August 13, 2003.
Panel consisted of Worthen, C.J., DeVasto, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by
assignment.































(PUBLISH)
1.       We refer to the complainant by her initials.

