Bays, Michael Jay

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1909-11

MICHAEL JAY BAYS, Appellant v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

GREGG COUNTY K ELLER, P.J., filed a dissenting opinion in which K EASLER and H ERVEY, JJ., joined.

The issue in this case is no different from whether a recording of a 911 call may be played to a jury when the contents of the call are otherwise admissible. Statements made during a 911 call are hearsay, but they may be admissible under one or more hearsay exceptions, such as dying declaration, excited utterance, or present sense impression.1 We have upheld the admission of the

BAYS DISSENT - 2 testimony of a 911 operator regarding such statements,2 and if that testimony is admissible, the recording of the call itself is admissible.3 This practice has occurred in the courts of Texas and in other states.4

By saying, “A statement that meets the requirements of Subsection (a) is not inadmissible because of the hearsay rule,” Article 38.072 simply creates a hearsay exception, on par with other types of exceptions such as excited utterances.5 Although Article 38.072 contemplates that there is a sponsoring witness for an outcry statement, the statute does not specify how the sponsoring witness is to offer the outcry statement. The witness could testify to the contents of the statement, or the witness could sponsor an electronic recording of the statement. An outcry witness could even sponsor a written recording, if the child’s outcry were made in writing.6

The Court contends that the outcry statute differs from other hearsay exceptions because the statute “clearly contemplates the role of an outcry ‘witness’ . . . and is not wholly silent with respect to how the outcry evidence will be presented at trial.”7 I must respectfully disagree. Nowhere does the statute refer to “testimony” from an outcry witness. Instead, the statute refers to a “statement”

BAYS DISSENT - 3 by the child and it refers to a witness through whom a party intends to offer “the statement.”8 The Court contends that this language supports the notion that the child’s outcry statement will be conveyed “through” the testifying outcry witness because a witness is someone who testifies in court, but as Judge Hervey explains in her dissent, this language is broad enough to encompass submitting materials through a witness. A witness can, for example, take the stand to lay the predicate for a business record, a videotape, or a defendant’s written confession.

I can see why a defendant would not want the jury to see and hear exactly what his victim said when she made her outcry, but it makes no sense to say that a less reliable method of relating that outcry (oral testimony) is admissible while a more reliable recitation of the outcry (video recording) is not. With these comments, I join Judge Hervey’s dissenting opinion.

Filed: April 17, 2013 Publish