Summary
affirming trial court's hearsay challenge to video recording because defense counsel's cross-examination of child complainant suggested her testimony was fabricated or the subject of improper influence
Summary of this case from Samsel v. StateOpinion
No. 05-04-00252-CR
Opinion Filed May 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F02-32224-MH. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MEIRS.
MEMORANDUM OPINION
Julio Rodriguez was indicted for aggravated sexual assault and indecency with a child involving the same complainant. The jury was unable to reach a verdict on the aggravated sexual assault charge, but convicted Rodriguez of indecency with a child. Rodriguez pled true to an enhancement paragraph and the jury assessed punishment at life imprisonment and a $10,000 fine. Rodriguez appeals and raises a single issue: whether the trial court erred in admitting an incriminating videotaped interview of the complainant. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). We reverse only when the trial court's decision was so clearly wrong as to fall outside the zone of reasonable disagreement. Id. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id. Rodriguez argues on appeal that the videotape contained hearsay and no exception applied. He argues that because the complainant testified at trial, article 38.071 of the code of criminal procedure does not allow admission of the videotape. Tex. Code Crim. Proc. Ann. art. 38.071, § 1 (Vernon 2005) (allowing admission of recorded statement of child under thirteen in certain circumstances). We agree that article 38.071 does not apply unless the trial court determines the child witness is unavailable to testify. Id. However, prior consistent statements of a witnesses are admissible to rebut an express or implied charge of recent fabrication or improper influence or motive. Tex. R. Evid. 801(e)(1)(B); Graves v. State, 176 S.W.3d 422, 429 (Tex.App.-Houston [1st Dist.] 2004, pet. dism'd). Defense counsel through his cross-examination of the complainant suggested her testimony was fabricated or the subject of improper influence. He had her testify about how many times she had talked with her mother, her grandmother, the school counselor, and the prosecutor about her testimony. He also had her testify that her mother talked with her about the mother's sexual abuse as a child. Rodriguez argues the videotaped statement is not consistent with the child's testimony at trial as required by rule 801(e)(1)(B), and in fact is substantially different from her trial testimony. The videotape includes many statements consistent with the complainant's trial testimony and some inconsistent statements. However, we cannot conclude the trial court abused its discretion in deciding to admit the videotape to rebut the inference of recent fabrication or improper influence. See Wisdom v. State, 143 S.W.3d 276, 281-82 (Tex.App.-Waco 2004, no pet.) (trial court did not abuse its discretion in admitting prior consistent statement although there were some discrepancies between prior statement and trial testimony). We resolve Rodriguez's sole issue against him. We affirm the trial court's judgment.