                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00115-CR
        ______________________________


          MICHAEL JAY BAYS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 188th Judicial District Court
                Gregg County, Texas
             Trial Court No. 38,318-A




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                  MEMORANDUM OPINION

       In a bench trial, Michael Jay Bays stood trial simultaneously on three indictments, each of

which alleged sexual offenses allegedly committed against three young girls related to Bays. In

order to aid in protecting the identities of the child complainants, we employ the pseudonyms of

Charlotte, Emily, and Anne. The first indictment, alleging offenses against Charlotte, resulted in

two convictions and is addressed in our opinion issued this day in our cause number

06-10-00114-CR on the docket of this Court. The charges involving Emily resulted in an

acquittal. The appeal addressed in this opinion is from a conviction on the third of those

indictments, which alleged that Bays committed the offense against Anne of indecency with a

child by contact, the alleged victim being Anne. TEX. PENAL CODE ANN. § 21.11 (West 2011).

       Several points of error raised in this appeal are also presented in our cause number

06-10-00114-CR. Stated succinctly, the issues discussed in that companion case, which are

common with this matter, regard (1) the qualification of expert witnesses presented by the State,

and (2) whether impermissible hearsay was admitted at trial when a witness was allowed to testify

that two of the child complainant‘s statements were consistent with each other. We overrule

those points of error for the reasons stated in our opinion in our cause number 06-10-00114-CR.

       In the brief for this case, Bays claims that Section 21.02 of the Texas Penal Code

(criminalizing continuous sexual assault of a child) is unconstitutional. However, since this case




                                                2
does not involve the application of that statute, we determine it not relevant to this matter and

decline to address that argument.

       There are two points of error specific to this matter which are not addressed in our

companion opinion. In the present cause, Bays claims the evidence was insufficient to support a

conviction for indecency with Anne by contact, and he maintains that the trial court erred in

admitting a video-recorded interview of Anne into evidence.

Sufficiency of the Evidence

       Anne, Bays‘ step-granddaughter, was a third grader, eight years old at the time of trial.

During her testimony at trial, Anne said that Bays had touched her on her vagina, over the clothes,

but also acknowledged on cross-examination that the touching she described could have been the

result of an accident. From the context of various witnesses‘ testimony, this incident occurred in

the living room of Bays‘ home, with Charlotte in the room as Emily and Anne were sitting on

Bays‘ lap, at a time when other members of the family were outside. Barbara Bays (Bays‘ wife,

grandmother of Charlotte and Anne and mother of Emily) testified that the incident occurred in the

first few months of 2008. According to Barbara, shouts and a disturbance in the living room

brought the other family members into the house; at that time, Anne was sitting in Bays‘ lap and

Charlotte was screaming that Bays was restraining her there. Barbara said this was a kind of

teasing game the family played, a game wherein Bays would act as if he would not yet release the




                                                3
girls from his grasp in his lap. Barbara described Anne‘s demeanor when the adults entered the

room:

        Well, she had a smile on her face. She looked a bit confused because of
        [Charlotte] being just fearful and - - but she was still - - she was smiling, and she
        got down. And [Emily] is sitting in her daddy‘s chair, like what, what.

A short time later, after Charlotte had taken the other two girls out of the room and talked to them,

Charlotte led Emily and Anne in front of the family and announced that Anne had something to tell

them. According to Barbara‘s testimony, although Charlotte said that the younger girls had

something to relate, it was Charlotte who ―did all the talking‖ and told the family that Bays had

touched Anne ―down there.‖ Some family members (apparently Barbara and John and Maria,

Anne‘s parents) took Anne into the bathroom and questioned her about these claims. Anne said at

that time that Bays had not touched her.1

        There was evidence that Anne frequently engaged in masturbation,2 but Maria indicated

that this behavior had begun ―years‖ before the instant allegation was made. One of Anne‘s

medical records indicates reports of masturbation or similar behavior in January 2006, when she

would have been about five.




1
 About nine months later, in her video-recorded interview, Anne indicated that she did not want to say whether Bays
had touched her with her father in the room and that even when he was outside the bathroom, she did not say she had
been touched, and seemed concerned with her father listening at the door or peeking in.
2
 Gwen Seively ran a day care attended by Anne, and Seively noticed the frequent behavior and brought it to the
attention of Anne‘s parents.

                                                        4
            The extended family was divided in their beliefs about the truthfulness of Anne‘s

allegation. Maria expressed her belief in the story, indicating that she believed that Anne had

been abused, attributing Bays‘ conduct toward the child to his use of alcohol. Maria described

another event when the girls were preparing to leave to attend a game; at that time, Anne came to

the door and told Maria that Charlotte was crying. When Maria asked why this was occurring,

Anne told her, ―Because when we were little Grandpa touched all three of us.‖ On the other hand,

John and Barbara were both skeptical of (if not disbelieving) the allegation.

            Bays‘ defense at trial was to emphasize that on cross-examination, Anne said the touching

could have been an accident and to argue that Charlotte could have coached Anne and Emily to

make the allegations against Bays, maintaining that Charlotte herself was not credible.3

            In evaluating the legal sufficiency of the charged offense, we review all the evidence in the

light most favorable to the trial court‘s judgment to determine whether any rational jury could have

found the essential elements of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield

v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref‘d). Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917

(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury ―to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
3
    Please see our opinion in cause number 06-10-00114-CR for details of Charlotte‘s testimony and personal history.

                                                           5
facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

         The testimony of a child victim alone is sufficient to support a conviction for aggravated

sexual assault or indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp.

2011); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.––Dallas 2002, pet. ref‘d); Scott v. State, 202

S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref‘d). Based on Anne‘s testimony to the

trial court, the evidence was sufficient to support the conviction.4

Admission of Video-Recorded Interview

         Bays also challenges the trial court‘s admission of the video-recorded interview of Anne as

conducted by the forensic interviewer, Kelsey Drennan, on May 29, 2009, apparently a little over a

year after the incident. The State offered this recording, citing Article 38.072 of the Texas Code

of Criminal Procedure (which authorizes admission of a hearsay statement of a child sexual assault

victim) as authority for its admission. The statute allows for a witness who is over the age of

eighteen and the first person to whom a child sexual assault victim has related discernible details of

the abuse to testify to those statements in trial. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2

(West Supp. 2011); Broderick v. State, 35 S.W.3d 67, 74 (Tex. App.—Texarkana 2000, pet. ref‘d).

In this case, Drennan offered no outcry testimony from Anne.                        Instead, during Drennan‘s

testimony, the State was allowed to play the full video-recorded interview of Anne by Drennan.


4
 We reach this conclusion notwithstanding the statement by the State‘s appellate counsel at oral argument that if the
video interview were excluded (see below), there was insufficient evidence to support Bays‘ conviction.

                                                         6
Bays complains the video interview was not admissible under Article 38.072 and allowed for the

introduction of inadmissible hearsay. We agree.

       In Dunn v. State, 125 S.W.3d 610, 614 (Tex. App.––Texarkana 2003, no pet.), the State

gave notice of intent to offer outcry witness testimony, and that the State would offer in evidence

the video-recorded interviews. Id. at 612–13. We found the outcry statute does not anticipate or

provide for the admission of the video statements:

              The videotape containing the separate statements of each child, in this
       instance, was hearsay. It was therefore admissible only if some exception applied.
       The only suggested authority for such admission lies in Article 38.072. We cannot
       agree that the article contemplates that a videotape of the ―outcry‖ will be
       introduced. It clearly contemplates that a person, subject to confrontation and
       cross-examination, will testify about what was said. Here, the interviews (which
       could not be cross-examined) were played, in their entirety, so the jury could
       observe the children, and the person who conducted the interviews simultaneously
       provided a commentary explaining what the jury was observing.

               By admitting the videotape into evidence, the trial court allowed evidence
       into the record in violation of the Texas statute. The ruling of the trial court is
       therefore outside the zone of reasonable disagreement. We therefore conclude the
       trial court abused its discretion by admitting the evidence.


Id. at 614. Even so, in Dunn, we found the admission of the video harmless because the victims

all testified consistently with the content of the recording.

       This case is very similar to the situation in Dunn. The State argues that Dunn is

distinguishable because Dunn was a jury trial, while the instant case was a trial to the court. We




                                                  7
fail to understand how that distinction has a cogent bearing on this case. See generally Gipson v.

State, 844 S.W.2d 738, 740 (Tex. Crim. App. 1992).

       The State also argues that the video recording was admissible as a prior consistent

statement. See TEX. R. EVID. 801(e)(1)(B). A statement is not barred as hearsay if the declarant

testifies at trial, is subject to cross-examination concerning the statement, and the statement is

consistent with the declarant‘s testimony while being offered to rebut an express or implied charge

of recent fabrication, improper influence, or motive. See TEX. R. EVID. 801(e)(1)(B). The prior

consistent statement must relate to the same matter or incident about which the declarant testified

at trial. Kipp v. State, 876 S.W.2d 330, 338 (Tex. Crim. App. 1994). The prior consistent

statement must, however, also have been made before the motive to fabricate arose, not after it

arose. Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996); Haughton v. State, 805

S.W.2d 405, 408 (Tex. Crim. App. 1990) (―Rule 801(e)(1)(B) allows for the admission of prior

consistent statements to rebut allegations of improper influence or motive. A statement made

after the alleged motive to fabricate arose does not rebut the allegation. . . . [The rule] requires

that a prior consistent statement be made before the alleged improper influence or motive arose.‖).

       We question whether the statement made by Anne during the recorded interview is

consistent with the statement made by her at trial. At trial, Anne said she was touched over the

clothes, whereas in the statement made in her interview, she said that the touching was under the

clothes on her skin. Also in the recorded interview, she made a sweeping hand gesture indicating



                                                 8
that Bays touched her under her clothes.5 Indecency with a child by contact can be committed

with touching over the child‘s clothes. TEX. PENAL CODE ANN. § 21.11(c)(1) (West 2011); Guia

v. State, 723 S.W.2d 763, 766 (Tex. App.—Dallas 1986, pet. ref‘d). The act described by Anne in

the video interview, while constituting the same criminal offense as that she testified to before the

trial court, was also a different act: touching beneath her clothing, versus the over-the-clothing

touch she described at trial. A touching outside of the clothing could be more consistent with an

accidental touching than a touching of the skin, underneath the clothing.

        Even if it could be said that Anne‘s statement in the video-recorded interview was entirely

consistent with her trial testimony, the out-of-court statement was not made before the alleged

improper influence or motive which Bays implied (through his cross-examination of State‘s

witnesses) gave rise to the recitation of the incident. In his cross-examination, Bays suggested

that Charlotte had encouraged or put Anne and Emily up to making untrue allegations that Bays

had inappropriately touched them because of hard feelings she harbored against him. Charlotte

described an incident where the three girls were in the living room with Bays, and Anne jumped up

from his lap and asked why he was taking her pants down. Charlotte took the younger girls into

the bathroom, talked, and when they came out, Charlotte announced to Anne‘s parents and Barbara

that Anne wanted to tell the adults something. This led to the questioning of Anne by her family

described above.       In his questioning, Bays also made reference to an extended telephone


5
 The record does not indicate that a similar gesture was made during the child‘s trial testimony and the gesture
employed would have almost been out of place with the testimony given.

                                                       9
conversation among the three girls at some time before the allegations and outcries were made.

These incidents (which form the basis of Bays‘ claim of Charlotte‘s improper influence upon

Anne) both occurred prior to the May 29, 2009, video-recorded interview. Because the statement

offered by the State was not made before the purported motive to fabricate or improper influence

was brought to bear, Anne‘s statement in the video interview does not qualify as a prior consistent

statement. See Hammons v. State, 239 S.W.3d 798, 804–05 (Tex. Crim. App. 2007).

       The video interview was admissible neither under Article 38.072 for the reasons stated in

Dunn and explained above, nor under the alternative theory of it being a prior consistent statement

as argued by the State. The trial court erred in admitting the video interview in evidence. We

next consider whether this erroneous admission was harmful.

       Improper admission of hearsay evidence is nonconstitutional error. Garcia v. State, 126

S.W.3d 921, 927–28 (Tex. Crim. App. 2004). We must disregard the error unless it affected

Bays‘ substantial rights. TEX. R. APP. P. 44.2(b). Although Anne testified at trial that she was

touched in a proscribed area of her body, she acknowledged that the touching could have been an

accident. As discussed above, the touching described in the recorded interview was different

from that to which Anne testified at trial; it indicates a more purposeful (and, arguably, more

significant) kind of touching––under the clothes of a young child. We recognize that when

viewed from the perspective of determining whether a crime occurred, a touching under the

clothes is no different from a touching outside of them; however (when taking into account that the



                                                10
child acknowledged that the touching may have been accidental), a touching outside the clothes

would be much more likely to be accidental than an under-the-clothes touching. Our harm

analysis considers

       everything in the record, including any testimony or physical evidence admitted for
       the [fact-finder‘s] consideration, the nature of the evidence supporting the verdict,
       the character of the alleged error and how it might be considered in connection with
       other evidence in the case . . . the State‘s theory and any defensive theories, closing
       arguments, . . . and whether the State emphasized the error.

Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).

       This single proceeding was a simultaneous bench trial of three separate indictments, each

alleging an offense or offenses perpetrated against a different young girl. In our opinion in cause

number 06-10-00114-CR, we summarized the evidence supporting convictions for the offenses of

continuous sexual assault and sexual assault as committed by Bays against his other

step-granddaughter, Charlotte. The trial court acquitted Bays of the allegation involving an

offense against Bays‘ daughter, Emily. Throughout trial, Bays vigorously impugned Charlotte‘s

credibility and encouraged the impression that she had prompted or coached Emily and Anne to

make their own accusations. Regarding the alleged offense against Anne, Bays was able to get

Anne to agree that it was possible that the over-the-clothes touch she described on the stand could

have been accidental. It is true Bays could have further cross-examined young Anne about her

statements in the recorded interview, but it is questionable how effective such a course would have




                                                 11
been: cross-examining an eight-year-old child regarding the particulars of a statement given

almost ten months prior to the child‘s in-court testimony.

         We find the erroneous admission of Anne‘s video interview had a substantial influence on

the outcome of the proceeding. See Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App.

2002). If one takes no account of the recorded interview, there was not overwhelming evidence

of guilt of the offense against Anne. See Motilla v. State, 78 S.W.3d 352, 353–54 (Tex. Crim.

App. 2002). Had the State only presented the child‘s testimony, which was then qualified by her

acknowledgment the touching could have been an accident, we would find ourselves in ―virtual

equipoise as to the harmlessness of the error.‖ Burnett, 88 S.W.3d at 637–38.6 We sustain Bays‘

second point of error.




6
 ―For claims of non-constitutional error, we, like the Supreme Court, hold that ‗a conviction should not be overturned
unless, after examining the record as a whole, a court concludes that an error may have had ‗substantial influence‘ on
the outcome of the proceeding.‘ Put another way, if the reviewing court has ‗a grave doubt‘ that, the result was free
from the substantial influence of the error, then it must treat the error as if it did. ‗Grave doubt means that ‗in the
judge‘s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the
error.‘ Thus, ‗in cases of grave doubt as to harmlessness the petitioner must win.‘‖ Burnett, 88 S.W.3d at 637–38
(footnotes omitted).

                                                         12
No Review of Claim of Cumulative Error

       In his final point, Bays claims that the aggregate effect of the errors he has alleged

adversely affected his substantial rights. See TEX. R. APP. P. 44.2(b). Errors may be found

harmful in their cumulative effect. See Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim. App.

2002). Because we have sustained his second point of error, we overrule this point as moot.

       Having sustained Bays‘ second point of error, we reverse the trial court‘s judgment and

remand for further proceedings not inconsistent with this opinion.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:       October 19, 2011
Date Decided:         December 7, 2011

Do Not Publish




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