D. Notice Requirement
The prosecutor must give notice of intent to offer the outcry statement. The notice must be in writing and must give the defendant adequate notice of the content and scope of the outcry testimony. The summary must describe the alleged offense in some discernable manner; that is, it must inform the defendant of the essential facts relating to the outcry statement.1 The notice must identify the sponsoring witness by name. It must provide a written summary of the outcry witness’s statement.2 Courts reviewing the adequacy of the notice will contrast the prosecutor’s written summary with the witness’s testimony at trial.3
The notice must inform the defendant of the essential facts to be related in the outcry statement.4 A general allusion that something in the nature of sexual abuse has occurred is not specific enough to constitute the outcry referenced by the statute.5 The indicia of reliability that a trial court may consider in determining whether to admit a child’s hearsay statement under Article 38.072 are: (1) whether the child testifies at trial and admits making the out-of-court statement, (2) whether the child understands the need to tell the truth and has the ability to observe, recollect and narrate, (3) whether other evidence corroborates the statement, (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults, (5) whether the child’s statement is clear and unambiguous and arises to the needed level of certainty, (6) whether the statement is consistent with other evidence, (7) whether the statement describes an event that a child of that age could be expected to fabricate, (8) whether the child behaves abnormally after the contact, (9) whether the child has a motive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whether the accused had the opportunity to commit the offense.6
In Espinoza v. State, 571 S.W.3d 427 (Tex. App.–Ft. Worth 2019), the trial court was found to have acted within its discretion when it allowed a forensic interviewer to testify as the minor’s outcry witness although the minor had told her sister something about the abuse before the forensic interviewer, where neither party developed any testimony about what the minor victim told her sister, leaving the record void as to any specific details of the statement to the sister. Inconsistency in a child’s outcry in later trial testimony is a matter of credibility and goes to the weight of the evidence, not the reliability of the statement or its admissibility.7
Notice must be given to the defense fourteen days prior to the date the proceeding begins.8 The purpose of the 14-day notice is to prevent the defense from being surprised by the introduction of the outcry testimony.9
3. Remedies for Non-Compliance
If outcry notice is not filed in a timely fashion, or is insufficient in its scope, the trial court may exclude the statement from evidence. Alternatively, on proper request, the court may grant a continuance allowing the defense fourteen days to prepare for the statement. If a court declines to exclude the evidence due to non-compliance with the notice requirement the defendant probably must ask for a continuance in order to preserve error.10
4. Harmless Error Potential
The purpose of the notice requirement is so that defense counsel receives timely, adequate notice of the content and scope of the outcry statement. Several cases say this is done to prevent surprise inherent in its introduction.11 Thus, if the defendant has actual knowledge of outcry testimony substantially before trial, and if there is no evidence of surprise, appellate courts have held that failure to satisfy the statutory notice requirement is harmless.12
The improper admission of hearsay of a child abuse complainant is non-constitutional error that is harmless unless it affects the defendant’s substantial rights.13 Failure to provide notice is harmless if the defendant has been permitted to review the State’s entire file.14 Additionally, failure to give the required statutory notice is deemed harmless if the statement is testified to without objection by the complainant or other trial witnesses.15 In Padilla v. State, 278 S.W.3d 98, 107 (Tex. App.–Texarkana 2009), the State’s failure to give the defendant written notice of the outcry statement was harmless because defense counsel admitted he was not surprised and he was prepared to continue with the trial and the jury had heard much of the same testimony from the complainant during the trial. In Prieto v. State, 337 S.W.3d 918 (Tex. App.–Amarillo 2011, pet. ref’d.), the Court found the admission of erroneous outcry testimony to be harmless because similar testimony had been admitted into evidence under Rule 803(4) and the victim had testified in great detail, and without objection, to multiple instances of abuse by the appellant.16 In Owens v. State, supra at 704, the court held that any error in the substance of the outcry notice was harmless where there was no indication the defendant was surprised by the outcry testimony and the difference between the notice and the testimony.
The idea that the purpose of the notice of the outcry testimony statement is just to prevent surprise is contrary to an explanation by Judge Clinton in Garcia v. State regarding the purpose of Article 38.072 notice. There, Judge Clinton observed that Article 38.072 ameliorates the lack of reliability of hearsay “by ensuring that the opposing party not only be given notice that it will be introduced, but also be provided the witness’s name and a summary of the proposed evidence at least fourteen days before trial. This gives the opposing party the opportunity to investigate the witness and the ‘time, content, and circumstances of the statement’, and thereby prepare for the reliability hearing also required under the statute.17 Having been given this opportunity for investigation and preparation, the adverse party may then reveal to the trial court any reasons which exist for doubting the reliability of the hearsay. Even if the trial court finds that the hearsay is reliable enough to be admitted as substantive evidence on the guilt or innocence of the accused, the statements remain inadmissible unless the child testifies or is available to testify, as required by § 2(b)(3) of the statute. By requiring the testimony or availability of both the speaker (the child) and the listener (the outcry witness), the adverse party is ensured the opportunity to highlight for the fact finder any contradictions about the statements through trial examination and cross-examination.”18 According to Judge Clinton there is much more to the purpose of Article 38.072 than merely preventing surprise to the defendant. His analysis is based on the content of the statute and not just judicial supposition.
E. Confrontation Clause
In De La Paz v. State, 273 S.W.3d 671 (Tex. Crim. App. 2008), the defendant was charged with aggravated sexual assault of his daughter K.D. The trial court admitted K.D.’s medical records in which medical personnel wrote that K.D. said that the defendant had poked her in the vagina with “his pee pee.” The defendant objected to the reading of the records under the confrontation clause. Neither K.D. nor any of the hospital employees who made the entries testified at the defendant’s trial. The Court of Criminal Appeals held that once the defendant objected to the admission of the notes under Crawford v. Washington, the burden shifted to the State, as the proponent of the evidence, to establish that it was admissible under Crawford, citing its own decision in Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008). The Court held that once the defendant objected, “the State was obligated to establish either (1) that the notes did not contain testimonial hearsay statements or (2) that the notes did contain testimonial hearsay statements but that such statements were nevertheless admissible under Crawford.”19 The Court concluded that the State failed to carry its burden because the hearsay statements contained in the notes were not obviously non-testimonial, and therefore the trial court erred in admitting the notes.20 However, on remand, the Court of Appeals held that the error in admitting the notes was harmless, and due to the strength of the other evidence, it did not contribute to the conviction or punishment.21
In Kelly v. State, 321 S.W.3d 583, 602-05 (Tex. App.–Houston [14th Dist.] 2010), it was reversible error for the trial court to allow, over a Confrontation Clause objection, DFPS workers to testify to statements made by other children and adults that were interviewed as part of their investigation, but who did not testify at trial. Once the Confrontation Clause objection was made it was the burden of the proponent of the evidence (here the State) to establish the statements were admissible under Crawford v. Washington. Art. 38.072 does not deny the defendant his constitutional right to confrontation, as long as the child declarant is available for cross examination at trial.22 The admission of a child’s testimony from an Article 38.072 hearing, when the child is not available to testify at trial, violates the defendant’s Sixth Amendment confrontation rights, because the narrow scope of the Article 38.072 hearing does not provide sufficient prior opportunity to cross-examine the declarant.23
Whether an out-of-court statement of a witness, offered into evidence in court, is subject to the Confrontation Clause, is determined by whether its primary purpose is testimonial, that is, whether the “primary purpose” of the conversation is to “creat[e] an out of court substitute for trial testimony.”24 In Ohio v. Clark, the Supreme Court held that a three-year old’s statement to his pre-school teachers about who caused his visible injuries, was not testimonial because the interest of the teachers was to find out what happened to the child in order to address what appeared to be an emergency situation, not to gather evidence for a criminal prosecution. “Where no such primary purpose exists, the admissibility of a statement is the concern of the state and federal rules of evidence, not the Confrontation Clause.”25
F. Impact On Sufficiency of Evidence Determination
A child’s outcry statement is substantive evidence of guilt.26 The outcry statement of a child victim may, standing alone, be sufficient to support a verdict. It need not be corroborated or substantiated by the child’s testimony or by other independent evidence.27
Read Part 1 in the March 2022 issue of the Voice Online.