Opinion
No. 09-07-058 CR
Opinion Delivered January 16, 2008. DO NOT PUBLISH.
On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 91428.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
A jury convicted Lonnie Levine Comeaux of indecency with a child; the trial court sentenced him to fifteen years in prison. In his issues on appeal, Comeaux asserts the trial court committed fundamental error by allowing hearsay testimony from a State's witness that improperly bolstered the credibility of the complaining witness. The gravamen of Comeaux's complaint is that because the State failed to give notice of its intent to use the child complainant's mother as an outcry witness under article 38.072, the trial court erred in admitting her hearsay testimony. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). Article 38.072 provides an exception to the hearsay rule for the outcry statements of children who are victims of certain sexual and assaultive offenses. Id.; see Martinez v. State, 178 S.W.3d 806, 810-11 nn. 13-15 (Tex.Crim.App. 2005) (explaining policy basis of exception to hearsay rule). The State must give notice of its intent to use the outcry statement, the name of the witness through whom it intends to offer the statement, and a summary of the statement. Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b) (Vernon 2005). The State gave notice of its intent to use certain outcry statements. The notice did not include any statements made to the complainant's mother. Comeaux failed to object at trial to the mother's testimony. The question is whether Comeaux was required to have made a timely, specific objection at trial. Unless his right to avoid this type of evidence is a right that is either an absolute, systemic requirement or a "waivable-only" right, he was required to object. Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App. 2002). The Court of Criminal Appeals has held "there is no authority supporting appellant's assertion that admission of hearsay is fundamental error which can be raised for the first time on appeal." Moore v. State, 935 S.W.2d 124, 130 (Tex.Crim.App. 1996). "[T]he admission of hearsay must be preserved with a timely and specific objection to the evidence." Id. (citing Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991)), Tex. R. App. P. 33.1; Reynolds v. State, 227 S.W.3d 355, 370 (Tex.App.-Texarkana 2007, no pet.) (If the State offers an out-of-court statement pursuant to article 38.072, a defendant must object to the statement to preserve error for appellate review.); Laredo v.State, 194 S.W.3d 637, 640 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd) (Because appellant made no objection when the victim's mother testified regarding the details of the outcry, he did not preserve a complaint for appellate review.). We hold that the trial court's admission of the mother's hearsay testimony was not fundamental error, and that by failing to object at trial, appellant waived the issues he asserts on appeal. We overrule appellant's two issues and affirm the conviction. AFFIRMED.
The record suggests Lonnie Levine Comeaux is also known as Lonnie Levern Comeaux.