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cited utterance does not require a startling event. The event may be one which the average person finds exciting or one which the declarant finds unexciting. The basis for the present sense impression rule is not the nervous excitement produced by the exposure of the declarant to a startling event but rather the contemporaneousness of the statement with the event.loO A present sense impression differs from an excited utterance in two other signifi- cant respects. First, the present sense im- pressiom must "describe or explain" the event or condition whereas the excited utterance need only relate to the event or condition. The former is limited to a de- scription or explanation of the event or condition and, in the absence of a startling event, may extend M farther, while the latter need only "relate" to the startling event thus affording a broader scope of the subject matter covered.l01 Second, the time element for the present sense impression extends no farther than the time needed for translating the observation into speech,lO' whereas the time element for the excited utterance may extend as far as the dura- tion of the stress caused by the startling event. While distinctions between present sense impression and excited utterance serve to resolve close cases, as a practical matter the majority of thecasesin criminal law will involve some type of startling event.'03 If a statement by a rape victim is made which is not the result of a startling event or the result of a present sense impression, then the statement may beadmissible under the theory of "bare fact complaint." Bare Fact Complaint The bare fact complaint or outcry, has been applied historically in rape cases. Its use gradually spread to other types of sex offenses such as indecency, sex assault and aggravated sex assault. Today, it is a well settled evidentiary proposition that statements constituting a rape victim's complaint are admissible in the state's case in chief as direct evidence without regard to the spontaneity thereof.10' While this '*may seem somewhat inconsistent with the rule that no witness or party may thus bolster up, by proof of prior consistent statement, before the opponent has attacked him by impeaching evidence, the exception in this case is warranted by the usually strong popular aspersions which 34 VOICE for the Defense I November 1987 would he cast upon the [complainant] by failure to complain in cases of rape."lO' Such statements are admissible to cor- roborate the victim's testimony. Thus, the bare fact complaint is only admissible if the victim testifies.lo6 The proper rule of bare fact complaint should require that where the complainant's credibility has not been impeached the testimony of the witness(es) to whom such complaint has been made, should be limited to the "mere" fact of the complaint, including only as much of the complaint that identifies the occurrence com- plained of with the crime charges. Any fuaher discussion would be immaterial for the purpose of corroboration. Thus, unless the bare fact complaint qualifies as an excited utterance, present sense impression, or as some other exception to hearsay, the details of the offense and identity of the accused are not permitted.'07 If the victim fails to make a complaint, evidence of that fact may be given by the defense.los But where this is done, the state may show why no complaint was made.Io9 If the victim does make a complaint then that complaint may qualify nnder the fourth and final hearsay exception, to wit: "Hear- say Statement of a Child Abuse Victim." Hearsay Statements of Child Abuse Victims Art. 38.072 Tex. Code Crim. Proc. allows hearsay statements ofa child abuse victim nnder certain enumerated conditions. One of the conditions is that the statement he one involving an offense such as indecency with a child, sexual assault of a child, aggravated sexual assault of a child, or any other designated offense. Another condition is that the statement be one by the child, 12 years of age or younger, against whom the offense was allegedly committed. In addition, the statement must be one that describes the alleged offense. The details of the offense are admissible only if the statement was made to the first person, 18 years of age or older, other than the defendant, to whom the ch31d made a statement about the offense.L10 A statement that meets the aforemen- tioned conditions are not inadmissible because of the hearsay rule if: (1) On or before the 14th day before the date the proceeding begins, the party intending to offer the statement: (a) notifies the adverse party of its intention to do so; (b) provides the adverse party with the name of the witness through whom it intends to offer the statement; and (c) provides the adverse party with a written summary of the statement; (2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and (3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.'", The rationale for Art. 38.072 is to make it less difficult to obtain a conviction in sexual offenses involving children."' Art. 38.072 was not designed to supersede any existing law but to be used in addition to or as an alternative to existing law.lL3 One particular situation this article was designed to cover is the case where a child would relate to a teacher or other adult the details of the offensemore than six to eight months after the offense.I14 This seems to be fair because of the unique problems caused by sexual assaults on children. In Hill v. State, 658 S.W. 2d 705,709 (Tex. App.-Dallas [5th District] [1983]) Justice Gnillot, in his dissent, recognizes the unique problems involving children when he stated: "[i]t does not make sense to require a child's testimony to be corrobo- rated just because that child fails to inform anyone of the violation within six months. In most insances, the cases involving sexual abuse and rape of a child are one that involve a father, a relative or someone close to one of the child's parents. And, more often than not, the perpetrator has threatened the child with death or severe injury if she or he tells anyone. What child, under these circumstances, would not hesitate to make an outcry? Under the best of circumstances every child has a healthy fear of his or her parents-- especially the father-but, nnder circumstances in which there is sexual abuse by a threatening father, that healthy fear becomes terror. It takes monumental courage for a child to inform someone that his or her father has committed sexual ab~se.""~ Justice Clinton, in his concurring opinion in Hernandez v. State, 651, S.W. 2d 746 (Tex. Crim. App. 1983), also realized the
difficulty of obtaining a conviction in a sex App. 1983) a doctor was permitted to medical history, (2) past orpresent sensaoffense case against children by stating: testify that the child victim had received tions, and (3) inception or general causes a fiveinch skull fracture and a deep lacera- of the disease or injury. A11 three types are ''tilt is felt that much of the problem tion above the left eye as a result of a blow. admissible where they are "reasonably associated with the reporting a pros- This testimony was admitted to prove ser- pertinent to diagnosis or treatment." The ecution of rape is that the present ious bodily injury in an aggravated sexual role changed prior law in two main points. statutes discourage the reporting and assault case. In Brown v. State 649 S.W. First, the rule adopted an expansive approsecution because of the embar- 2d 160 (Tex. App. [3rd Dist] 1983) the ex- proach by allowing statements concerning rassment to the victim and difficulty amining physician was permitted to testify past symptoms and those which elated to in obtaining a con~iction."~ as to statements made to him by the rape the cause of the injury. Second, the rule The statutes referred to by Justice Clinton victim that he was sexually attacked by a abolished the distinction between the docwere those preceding Article 38.072. man. This hearsay statement by the victim tor who is consulted for the purposes of Aaile38.072, spontaneous utterances, was admissible to show the basis for the treatment and examination for the purpose present sense impressions, and bare facl physician's opinion that the victim's ten- of diagnosis only; the latter usually refers complaints collectively give rise to a new derness in anal-sphincter region was con- to a doctor who is consulted only in order and bmader meaning of complaint witness sistent with being the victimof a sexual at- to testify as a witness. for purposes of proving sex offenses tack. The expert's opinion also served to The statements which are likely to genagaina children. prove penetration in the sexual assault erate the most controversy during litigation case. In both Francher and Brown the a* those which are made for the purpose Expert Testimony testimony of an expert witness was offered of medical diagnosis or treatment de- The final manner of proving a sex of- as independent proof to prove a required scribing "the inception or general charfense is by expert testimony. Expert testi- element of the offense. acter of the cause or external source mony is useful in sex offense cases to In addition to being used as independent thereof", that is, facts which go &to details either prove an element of the offense or proof, the expert'stestimony may also he of the offense. The key question in resolvsupport the credibility of a witness or both. used to support the credibility of the vic- ing the controversy is whether these state- Before discussing the benefits of expert tim. In Perez v. State, 653 S.W. 2d 872 ments were reasonably pertinent to diagtestimony, a brief discussion is required as (Tex. App.-Corpus Christi 119831 rev. nosis or treatment. The rationale behind to who is an expert and what type of testi- ref.) the court upheld the admission of a the mle has been often stated.lz2 Namely mony may he considered expert testimony. rape counselor's testimony on passive the patient has a strong motive to tell the An expert is one qualified by "knowl- resistance as a preventive technique in sex- truth because diagnosis or treatment will edge, skill, experience, training, or educa- ual assault incidents. In Clayton v. Stare, depend in part upon what the patient tion."'17 The fields of knowledge which 139 Tex. Cr. R. 86, 138 S.W. 2d 1084 says.123 It is thought that the declarant's may he drawn upon are not liitedmerely (1%0), the court permitted a doctor to motive guarantees sufficient trustworthto "scientific" and "technical" knowl- testify that the events as experienced by the iness to allow an exception to the hearsay edge, but extends to all "specialixed" female rape victim would create in the rule.12" kn~wledge."~ Thus an expert witness may mind of a sensitive woman suicidal emo- The type of statement allowed should be be a physician, psychologist, rape coun- tions. In this case the woman had attempted as to what happened rather than who selor, or social worker. The type of testi- to commit suicide three days after the event caused it. The former in most cases is permony received into evidence as expert and the nrosecution used this testimonv to tinent to diaenosis and treatment while the testimony must be that which would assist su&rtLer credibility. Perez and ~t$ton latter would~eldom, if ever, be sufficiently thej~ry."~ Where the subject matter of the are just two of a number of cases which related.lZs testimony will assist the jury, an expert will allow the credibility of a witness to may testify as to his opinion, based upon be supported by expert testimony. Conclusion facts or data perceived by or make known The primary basis for admitting expert to him at or before the hearing. His opin- testimony into evidence is Texas Criminal Effective prosecution of sex offenses ion, however, must be based upon the facts Rule 803(4). The rule provides that against children requires a special balancor data reasonably relied upon by experts "[sltatements made for the purposes of ing of the interest of society, rights of the in the particular field.'20 Thus, the expert medical diagnosis or treatment and de- victim and rights of the defendant. It means may base his opinion "entirely" on hear- scribing medical history, or past or pres- more than just ohtaining a conviction of an say, or otherwise inadmissible data, pro- ent symptoms, pains, or sensations in the accused at all cost hut instead requires a vided the data is reasonably relied upon by inception or general character of the cause vast understanding of the various principlm other's in the expert's field and provided or external source thereof insofar as rea- and theories involved. Effective prosecuthat his testimonv would assist the trier of sonably pertinent to diagnosis or treat- tion requires a knowledge of the type of fact. ment. "I2' offenders who comqit sex offenses, the ef- The expert's testimony may he useful in This new role significantly liberalized fect the offense has upon the victim, the proving one of the required elements of a prior practice concerning purposes of effect the criminal justice system has on sex offense involving a child. In F~nrtcher medical diagnosis or treatment. Rule the victim, the offenses involved, and the v. State 659 S.W. 2d 836 (Tex. Crim. 803(4) admits three types of statements; (1) manner of proving the offenses. November 1987 / VOICE for the Defense 35
Page 1 and 2: ' Dane Whitworth. David Sheppard, R
Page 3 and 4: President's Report Should We or Sho
Page 5 and 6: David A. Sheppard obtained his J.D.
Page 7 and 8: set in pan or in whole he casts of
Page 9 and 10: H.B. 2575 writinz. If rhe murf d c
Page 11 and 12: taken outsidethemuttroom and he rec
Page 13 and 14: adopted by the health care agency o
Page 15 and 16: The DWI Roadblock Dilemma An Explic
Page 17 and 18: cause because the DWI iquad was aga
Page 19 and 20: that warrantless arrests in this St
Page 21 and 22: solely from thelips of the officers
Page 23 and 24: ests are being made. Potential viol
Page 25 and 26: SHOULD CONSIDER FACTORS SUCH AS BOT
Page 27 and 28: COURT OF CRIMNAL A P P E A L S Alex
Page 29 and 30: ARREST -- WARRANTLESS -- PROBABLE C
Page 31 and 32: 2. Would D confined without bail be
Page 33 and 34: Melvin Edward BUTLER, No. 1063-83 -
Page 35 and 36: Preparing the Record co~rlinuedfmm
Page 37 and 38: . . I. I. After submission, if it a
Page 39 and 40: The Sex Offense Laws The Texas Pena
Page 41: it was noibeing offered to prove th
Page 45 and 46: En Garde: The State's Rebuttal "Onc
Page 47 and 48: Another possible remedy may he to p
Page 50 and 51: On August 21, 1987, the Court of Ap
Page 52 and 53: Juan C. Duran 3103 Bee Cave Rd., a2
Page 54 and 55: Dale A. McCleary 310 N. Mesa, 3rd F
Page 56 and 57: Ray Velarde 10i3 Montana El Pasa, T
Page 58 and 59: Sometimes keeping this column going
Page 60: I ! TEXAS CRIMINAL DEFENSE LAWYERS

Dane Whitworth. David Sheppard, Ruth Ellen Gura and Gerry orris ...

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