IN THE

TENTH COURT OF APPEALS

No. 10-03-00171-CR

Michael LeRoy Widows,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 32,573

          A jury convicted Michael Leroy Widows of indecency with a child and sentenced him to eleven years’ imprisonment and a $10,000 fine.  Widows contends in his sole issue that the court abused its discretion by permitting the complainant’s mother to present outcry testimony because the State failed to comply with the requirements of the outcry statute.  Because the same testimony was admitted through the complainant, because the outcry witness testified that she personally witnessed what her daughter told her had happened, and because Widows knew of the content of the testimony months before trial, the error did not affect Widows’s substantial rights.  Thus, we will affirm.

          The complainant’s mother, Valerie, testified that she had taken her four children to a local park for a picnic.  She saw Widows approach her daughter at a water fountain “and [her daughter] told me he touched her.”  The prosecutor asked Valerie a few more questions about her observations before returning to the content of her daughter’s statements.

          At this point, Widows objected on the basis of hearsay, and particularly, the State’s failure to comply with the requirements of the outcry statute.  The trial court then conducted a hearing outside the presence of the jury to determine the admissibility of the outcry testimony.  Valerie testified during this hearing that she saw Widows putting his hands on her daughter and that her daughter then ran back over to her and told her about what had happened.  Valerie’s daughter told her that Widows “was rubbing his hands across her clothes.”  On cross-examination, Valerie testified that she saw Widows rub his hands across her daughter from her shoulder to her genital area.

          Widows argued that the outcry testimony should be excluded because the State had not provided him with notice of its intent to introduce the testimony and did not provide him with a written summary of the daughter’s outcry statement.  The State argued that the purposes of the outcry statute were nonetheless satisfied because the daughter made virtually the same statement in her videotaped interview, which Widows’s counsel had reviewed four months before trial.  Widows’s counsel contended that the videotaped interview did not include any discussion by the daughter of the extent of Widows’s touching.

The court then reviewed the videotaped interview, in which the daughter did state that Widows touched her “where [her] bikini top goes” and in the genital area.  After reviewing the videotaped interview, the court overruled Widows’s objection, and the trial proceeded.

          Widows contends in his sole issue that the court abused its discretion by admitting Valerie’s outcry testimony.  The State responds that Widows failed to preserve this issue because his objection was untimely.    In particular, the State focuses on Widows’s failure to object when Valerie testified that her daughter told her “he touched me.”

          Despite Widows’s failure to object to this nonspecific hearsay statement, Widows promptly objected when Valerie began to testify regarding what her daughter said about the extent to which Widows touched her.  Because the latter is the specific testimony which Widows challenges on appeal, we hold that the issue was adequately preserved.  See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (objection is timely if made “as soon as the objectionable nature of the evidence became apparent”); Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (same).

          Article 38.072, section 2(b) establishes the prerequisites for the admissibility of outcry testimony over a hearsay objection.  Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b) (Vernon Supp. 2004–2005).  Those prerequisites are: (1) the State must give notice at least fourteen days before trial of its intent to offer the testimony, providing the name of the outcry witness and a written summary of the statement; (2) the trial court must determine in a hearing outside the presence of the jury that the statement is reliable; and (3) the child must testify or be available to testify.  Id.  If any of these prerequisites are not satisfied, then a hearsay objection to the testimony should be sustained.  See Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992); Duncan v. State, 95 S.W.3d 669, 671 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.—Waco 1998, no pet.).

          Here, the State failed to give the required statutory notice.  Therefore, the court abused its discretion by overruling Widows’s objection to the outcry testimony.  Id.  We now determine whether this error requires reversal.

          Texas appellate courts have generally found such error to be harmless if the defendant otherwise had knowledge of the content of the outcry statement or if the statement is testified to without objection by the complainant or by other witnesses at trial.  See e.g. Divine v. State, 122 S.W.3d 414, 419 (Tex. App.—Texarkana 2003, pet. ref’d); Duncan, 95 S.W.3d at 672; Broderick v. State, 35 S.W.3d 67, 74-75 (Tex. App.—Texarkana 2000, pet. ref’d); Gabriel, 973 S.W.2d at 720.

          Here, Widows’s counsel had reviewed the videotaped interview of the complainant four months before trial.  The complainant’s statements in the videotaped interview regarding the extent of Widows’s touching her are virtually identical to the statements attributed to her in Valerie’s outcry testimony.  Thus, counsel could not claim surprise from the content of the outcry testimony.

Valerie testified that she personally witnessed Widows touch her daughter as described in the outcry statement.  Her daughter testified to virtually the same facts.  Widows’s counsel had ample opportunity to cross-examine both Valerie and the complainant regarding these matters.

Accordingly, we conclude that the court’s error in admitting the outcry testimony did not affect Widows’s substantial rights.  See Tex. R. App. P. 44.2(b).  Thus, we overrule his sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed December 22, 2004

Do not publish

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