                                    NO. 07-05-0207-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                   NOVEMBER 3, 2005

                           ______________________________


                        CURTIS BENARD ROBBINS, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 49,313-D; HONORABLE DON EMERSON, JUDGE

                          _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                                MEMORANDUM OPINION


      Following a plea of not guilty, appellant Curtis Benard Robbins was convicted by a

jury of indecency with a child by sexual contact and sentenced to 16 years confinement.

In presenting this appeal, counsel has filed an Anders1 brief in support of a motion to

withdraw. We grant counsel’s motion and affirm.

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          Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
       In support of his motion to withdraw, counsel certifies he has diligently reviewed the

record and, in his opinion, the record reflects no reversible error upon which an appeal can

be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.–San Antonio 1984, no pet.).

Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d

807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling

authorities, there is no error in the court's judgment. Counsel has also shown that he sent

a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal

is without merit. In addition, counsel has demonstrated that he notified appellant of his

right to review the record and file a pro se response if he desired to do so. Appellant did

not file a response. Neither did the State favor us with a brief.


       Appellant lived with his wife, Grazyna, and her minor stepdaughter, S.W. When

S.W. was 11 years old, she related to her school counselor that appellant used to come

into her room and touch her private parts. She also told the counselor that video cameras

had been placed in her bedroom and bathroom. At trial, Grazyna testified she found a

video tape in a spare bedroom used by appellant which depicted images of S.W.’s

bedroom and of S.W. taking a bath. The video tape was played for the jury. Grazyna

further testified that, after viewing the tape, she searched S.W.’s room and discovered a

camera hidden in the drapes and a hole in the wall between the linen closet and the

bathroom. When confronted with the camera, appellant told Grazyna that he was using

the camera to blackmail S.W. so that she would start minding him. Grazyna divorced

appellant the following year.

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       The jury also heard testimony from the nurse practitioner who conducted the sexual

assault examination. S.W. told the nurse that appellant began sexually abusing her when

she was in first grade. The physical examination revealed a healed tear on S.W.’s hymen.

After hearing the evidence, the jury convicted appellant of indecency with a child by sexual

contact and assessed his punishment at 16 years confinement. Appellant subsequently

filed a notice of appeal.


       By his Anders brief, counsel concedes three grounds that could arguably support

an appeal. The first is whether the trial court abused its discretion in admitting the

testimony of the school counselor into evidence as statements from an outcry witness. An

outcry witness is the first adult to whom the child victim makes a statement about the

offense. See Tex. Code Crim. Proc. Ann. art. 38.072 , § 2(a)(2) (Vernon 2005). Outcry

statements are excepted from the hearsay rule of exclusion. Id. at § 2(b); Dorado v. State,

843 S.W.2d 37, 38 (Tex.Cr.App. 1992). Article 38.072 applies to prosecutions of certain

offenses committed against a child 12 years old or younger. Tex. Code Crim. Proc. Ann.

art. 38.072, § 1. The victim's age when the offense is committed triggers whether the

statute applies, not the victim's age at the time the outcry statement is made. See Harvey

v. State, 123 S.W.3d 623, 627-29 (Tex.App.-Texarkana 2003, pet. ref'd).


      In the present case, testimony indicated that S.W. was less than 12 years of age at

the time the offense was committed. The State called S.W.’s school counselor, Laura Lynn

Click, as their outcry witness. Appellant’s trial counsel objected to her testimony as

inadmissible under Crawford v. Washington, 541 U.S. 36 (2004), because it was


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“testimonial in nature.” The objection was overruled and the testimony was admitted.

Crawford holds that out-of-court testimonial evidence from a witness is prohibited, under the

Confrontation Clause, unless the witness is unavailable and the defendant had a prior

opportunity to cross-examine the witness. Id. Here, appellant’s reliance on Crawford is

misplaced. The State did not attempt to present out-of-court testimonial evidence, both the

outcry witness and the victim were available at trial, and appellant had an opportunity to

cross-examine both. We conclude the trial court did not abuse its discretion because

Crawford is not applicable, and the outcry testimony was properly admitted under article

38.072.


       The second point presented is whether the trial court abused its discretion in

admitting the video tape showing S.W.’s bedroom and S.W. taking a bath into evidence

over appellant’s objection. During the State’s direct examination of Grazyna, the State

proposed to play a copy of the video tape she found in the spare bedroom for the jury. Trial

counsel immediately objected that the State had not laid a proper foundation. Specifically,

counsel for appellant asserted that there was no testimony concerning whether Grazyna

had viewed the copy of the tape, the type of recording equipment used, or whether the tape

had been edited. Counsel’s objection was overruled and the tape was played for the jury.


       Rule 901(a) of the Rules of Evidence provides that “authentication or identification

as a condition precedent to admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.” Rule 901(b) provides

several acceptable methods for properly authenticating or identifying evidence. Testimony


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of a witness with knowledge that a matter is what it is claimed to be is sufficient to

authenticate a tape recording. Tex. R. Evid. 901(b)(1). Here, the State submitted to the jury

that the video tape offered into evidence was a copy of the original that Grazyna found in

the spare bedroom. Prior to its admission, Grazyna testified that the tape was a true and

accurate copy. Under Rule 901, we find this testimony was sufficient to authenticate the

tape.


        The third point presented is whether the trial court should have granted a mistrial due

to juror misconduct. Following his conviction, appellant filed a motion for new trial pursuant

to Rule 21.3(f) of the Rules of Appellate Procedure alleging that a juror spoke with someone

about the case during the course of the trial. A sworn affidavit from a witness was attached

to the motion and stated the events as follows:


        My mom and I were sitting outside the 320th District Court during Curtis
        Robbins’ jury trial. I observed three men who appeared to be working on
        some wiring in the public area where we were sitting. Two of the men were
        working on the wiring and then their boss showed up. The boss asked one of
        the men, “Where is your dad? Is he still in the courtroom?” The son said,
        “They are still deliberating.” The other man asked the son, “What is this case
        about” The son replied, “My dad told me it’s about a guy that fingered a little
        girl.”


        When a juror converses with an unauthorized person about a case, “injury to the

accused is presumed,” and a new trial may be warranted. Quinn v. State, 958 S.W.2d 395,

401 (Tex.Cr.App. 1997) (citing Robinson v. State, 851 S.W.2d 216, 230 (Tex.Cr.App.

1991)); Tex. R. App. P. 21.3(f). However, this presumption may be rebutted. Quinn, 958

S.W.2d at 401. Here, nothing in the motion for new trial or the attached affidavit identifies

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the alleged juror involved in the conversation or whether the “dad” referred to in the

overheard conversation actually served on the jury panel. Without further evidence from

the record, we find the trial court did not err by failing to grant a mistrial.


       We have made an independent examination of the entire record to determine

whether there are any arguable grounds which might support this appeal. See Penson v.

Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d

503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that

the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State,

477 S.W.2d 577, 578 (Tex.Cr.App. 1972).


       Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the

trial court is affirmed.


                                             Don H. Reavis
                                               Justice

Do not publish.




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