1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). NO. 07-05-0207-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C NOVEMBER 3, 2005

______________________________ CURTIS BENARD ROBBINS, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 3 20TH DI STRICT COURT OF PO TTER CO UNTY; NO. 49,313-D; HONORABLE D ON EMERSON , JUDGE

_______________________________ Before QUINN, C.J., and REAVIS an d HANCOCK, JJ.
MEMORA NDUM OPIN ION
Followi ng a plea of

notguilt y, app ella nt Cu rtis B ena rd Rob bins was con victe d by a jury of indecency w ith a child by sexual co ntact and sentenced to 16 years co nfinement. In presenting this appeal, counsel has filed a n Anders 1 brief in suppor t of a motion to wit hdraw . We grant counsel ’s mot ion and affirm.2

In support of his moti on to withdr aw, counsel certifies he h as dilig ently rev iewed the record and, in his opi nion, the recor d reflects no r

eversibl e error upon which an appeal can be predicated. A nders v. C alifornia, 386 U .S. 738, 744-45, 87 S.Ct. 1396, 18 L.E d.2d 493 (1967); Monroe v. State, 671 S.W .2d 583, 585 (Tex.App. –San Antonio 1984 , no pet.). Thus, he concludes th e appeal is frivolou s. In com pliance with High v. State, 57 3 S.W.2d 807, 813 (Tex.C r.App. 1978), counsel has cand idly di scus sed wh y, under the contr olling authorities, there is no error in the court' s judgment. C ounsel has also show n that he sent
a copy of the brief to appella nt and informed appellant that, in counsel'sview , the appeal is without merit. In additi on, cou nsel h as demo nstrated that he notif ied appellant of his right to review the record and file a pro se response if he des ired to do so. Appellant did not file a res pons e. N eith er d id t he State fa vor us w ith a br ief. Appellant

l ived w ith his wi fe, Grazy na, and her minor stepdaughter, S.W. W hen S

. W. was 11 years old, she related to her school counsel or that ap p ellan t used to come into her room and touch her pr ivate parts. She also to ld the counselor that video camer

as had been placed in he r bedroom and bathr oom. At trial , Gra zy na testified she found a video tape in a spar

e bedroom used by

appellant w hich depi cted images of S.W .’s bedroom and of S.W. taking a bath. The v ide o tap e was p laye d for the jury . Grazy na further testified that, after view ing the tape, she searched S.W.’s room and di scovered a
camera hidden in the drapes and a h ole in the wall between th e linen clos et and the bathro om. When confronted with the c amer a, appellant tol d Grazy na that he was using the ca mera to bl ackm ail S. W . so t hat s he wou ld sta rt min ding h im. G razyna divo rce d appellant the fo llowing year.3

The jury al so heard testi mony from the nurse practi tioner wh o conducted the sex ual assault examination. S.W. told the nurse that appellant beg an sexuall y abusing her when she was in fir

st grade. The physical examination revealed a healed tear on S.W.’s hymen. After hearing the evidence, the jury convicted appellant of indece ncy wi th a child by sexual contact and asses sed his punish mentat 16 years confinement. Appe llant subsequently filed a notice of appeal

. By his Andersbrief, counsel c on cedes three grounds that could arguab ly support
an appeal. The first is whether the trial court abused its di scretion in admitting th e testimony

of the school couns elor intoevidence as statements from an outcry witness. An
o utcry witn ess is the fir st adult to w hom the child v ictim makes a s tatement about the offen se. See Tex. Code Crim. Proc. Ann. art. 38.072 , § 2(a)(2) (Vernon 2005). Outcry statements are excepted from the hearsay rule of excl usion. Id. at § 2(b); D orado v. Sta te, 843 S.W.2d 37, 38 (Tex.Cr.App. 199 2). Artic le 38.072 applies to prosecuti ons of

certain offenses committed agai nst a child 12 years old or younger. Tex. Code Crim. Proc. Ann. art. 38.0 72, § 1. The vi ctim's age when the offense is committed trig gers w heth er th e statute appli es, not

the v icti m's ag e at thetime the outcry s tatement is made. See Harvey v. State, 123 S.W .3d 623, 627-29 (Te x.App.-Texarkana 2003, pet. ref'd).
In the present cas e, testimony indicated that S .W. was less than 12 years of age at the time the offe nse was committed. The State called S.W.’s school couns elor, Laura Ly nn Click, as their outcry witness. Appellant’s trial counsel objected to her t estimon y as inadmissible under Craw ford v. Washington, 541 U.S. 36 ( 2004), because i t was4

“testimonial in nature.” The object ion was overruled and the testimony w as admitted. Crawford holds that out-of-cou rt testimonial evidence from a witnes s is prohib ited, under the Confrontation Clause, unless the witness is u nav ailable and the defendant had a prior opportun ity

to cross- examine the w itness. Id. Here, appella nt’s reli ance on Crawfor d i s misplaced. The State did not attempt to present out- of-court testi monial evid ence, both the outcrywitnessand the vic tim were a vailable at trial, a nd appellant had an op portunity to
cros s-examineboth. We conclude the trial court did not a buse its dis cretion becau s e Crawford is not appli cable, a nd the out cry testimony was properly admitted under article 38.072.
The secon d point presented is whethe r the trial court abused i ts discreti on i n admitting the video ta pe showin g S.W .’s bedroom and S.W . taking a bath into evidence
over appell ant’sobjec

tion. Duri ng theState’ s dir ect exami nati on of Grazy na, the State proposed to play a copy of the vi deo tape she found in thespare bedroom for t he jury. Trial counsel immediately objected that theStat e had not l aid a prop er fo und atio n. Sp ecif icall y, counsel for ap pellant asser ted that there w

as no testimony

concerning whether Gr azyna had viewed the copy of the tape, the typ e of recording equipment used, or whether the tape had been edited. Cou nsel’s objec tion was o verruled and the tape was play ed for the jury. Rule 901(a) of the Rules of Evidence providesthat “authentication or identi fication
as a cond iti on precedent to admi ssibilit y is sat isfied by ev idence sufficient tosupport a findin g tha t the matter in question is what itsproponent clai ms.” Rule 901 (b) prov ides several acceptable methodsfor properly authenticating or identify ing evi dence. Testimony5

of a witness

with know ledge that a matter is w hat it is cl aimed to be is s ufficient to authenticate a tape recording. Tex. R. Evid. 901(b)(1). Here, the State submitted to the jury that the vid eo tape offered into ev idence wasa copy of the original tha t Grazy na found in the spare bedroom. Prior to i ts admission, Grazy na testified that t he tape was a true and accurate copy. Under Rule 901, we fin d this test imony was sufficient to authe nticate the tape.
The third point presented is w hether the trial cour t should hav e granted a mistrial due to juror misconduct. Foll owing hi s convic tion, appellant filed a motion for new trial pur suant to Rul e 21. 3(f)of the Rules of Appellate Procedure alleg ing that a j uror spoke w ith someone aboutthe case duri ng the course of the trial. A sworn affidavit from a w itness was attached to the motion and stat ed the events as follows: My mom and I were sitting outside the 320th District Court during Curtis Robbins’ jur

y trial . I observed three men w ho appeared to be w orking on some wiri ng in the publ ic area w here we w ere sitting . Two of the men wer e working on the wiring and then the ir boss show ed up. The boss asked one of the men, “Wher e is your dad? Is he stil l in the cour troom?” The son sai d, “They are still deliberating .” The other man asked the son, “Wh at is this case about” The son replied, “My dad told me it’ s about a guy thatfingered a little girl.”
Wh en a juror con verses w ith an unauthori zed person ab out a case, “i nj ury to th e accused is presumed,”and a new trial may be w arranted. Qui nn v. State, 958 S.W.2d 395, 401 (Tex .Cr.App. 1997) (citing Robinson v . State, 851 S.W.2d 216, 230 (Tex.C r.App. 1991)); Tex. R. App. P. 21.3(f ). However, this presumpti on may be rebutted. Quinn , 958 S.W.2d at 401. Here, nothing in the motion for n ew trial or the attached affidavi t identifies6

the alleged j uror involved in t he conversa tion or w hether the “dad”referred to in the overheard conversat ion ac tual ly served on t he jury pan el. Without further evidence from the record, we find the trial court did not err by failing to grant a mistrial.
We have made an ind epend ent examin ation of the entirerecord to determine whether there are any arguable grounds which might support this appeal. See Pens on v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed.2d 300 (1988); Staf ford v. State, 81 3 S.W.2d 503, 511 (Tex.Cr .App. 1991). We have found no such gr ounds and agreewith coun sel that the appeal is frivolous. Currie v. State, 516 S.W .2d 684 (Tex.Cr.App. 1974); Lacy v . State, 477 S.W .2d 577, 578 (Tex.Cr.App. 19 72).
Acco rdin gly, counsel's motion to withdraw is hereby g ranted and the judgment of the trial cour t is affirmed.
Don H. Reavis Justice Do not publish

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