IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1909-11

MICHAEL JAY BAYS, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

GREGG COUNTY

HERVEY, J., filed a dissenting opinion in which KELLER, P.J., and

KEASLER, J., joined.

DISSENTING OPINION

I disagree with the disposition of this case. It is clear that a video recording of an

outcry statement is admissible pursuant to Article 38.072 of the Texas Code of Criminal

Procedure, provided that the other statutory requirements are met. In reaching the

opposite conclusion, the majority interprets the legislative intent too narrowly and relies
Bays dissent - 2

on a non-controlling statute.

We granted the State’s petition for discretionary review to determine whether the

court of appeals erroneously decided that, under Article 38.072 of the Texas Code of

Criminal Procedure, a child’s outcry statement may be offered only through an outcry

witness, not in the form of a video recording of the child’s outcry to that witness, which is

played at trial where both the witness and the child are available for cross-examination.

Hearsay is an out-of-court statement “offered in evidence to prove the truth of the

matter asserted.” Tex. R. Evid. 801(d). Whether hearsay is admissible at a criminal trial

is determined by the Texas Rules of Evidence and the Sixth Amendment of the U.S.

Constitution. Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Although

the rules of confrontation and the rules of hearsay generally protect similar values, the

overlap between the two is not complete. United States v. Owens, 484 U.S. 554, 560

1

(1988); California v. Green, 399 U.S. 149, 155-56 (1970).

Generally, hearsay is inadmissible, but it may be admitted if so provided by the

Rules of Evidence, or if it is allowed “by other rules prescribed pursuant to statutory

authority.” Tex. R. Evid. 802. One such statute is Article 38.072 of the Texas Code of

Criminal Procedure, which provides for the admission of the outcry statement of a child

Appellant did not raise the issue of confrontation to the court of appeals, and he does not 1

argue such here. Moreover, the Supreme Court has held that “when the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his

prior testimonial statements.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); see also

Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985) (per curiam); California v. Green, 399 U.S.

149, 162 (1970).
Bays dissent - 3

victim of sexual or physical abuse under specified circumstances. TEX. CODE CRIM.

PROC. art 38.072; Sanchez, 354 S.W.3d at 484. Article 38.072 applies only to statements

2

that describe the alleged offense, were made by the child against whom the charged

offense was allegedly committed, and were made to the first person, 18 years or older, to

whom the child or person with a disability made a statement about that offense. TEX.

CODE CRIM. PROC. art. 38.072, § 2(a). A statement that meets these requirements

overcomes the hearsay rule and is admissible if the following conditions are also

satisfied:

(1) [O]n 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 or person with a disability testifies or is available to testify at

the proceeding in court or in any other manner provided by law.

Id. § 2(b).

When interpreting statutory language, we focus on the “‘collective’ intent or

purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d 782,

The statute has been amended by three acts of the Legislature since proceedings began 2

against Appellant. See Act of June 11, 2009, 81st Leg., R.S., ch. 284, § 1; Act of June 19, 2009,

81st Leg., R.S., ch. 710, § 1; Act of April 21, 2011, 82nd Leg., R.S. Ch.1 § 2.07. None of those

changes affected the statute’s application to this case, so I will refer to the current version of the

statute.
Bays dissent - 4

785 (Tex. Crim. App. 1991). To determine the collective intent of the Legislature, we

look first to the literal text to discern its “fair, objective meaning.” Id. As we have

explained,

We do this because the text of the statute is the law in the sense that it is the

only thing actually adopted by the legislators, probably through

compromise, and submitted to the Governor for her signature. We focus on

the literal text also because the text is the only definitive evidence of what

the legislators (and perhaps the Governor) had in mind when the statute was

enacted into law. There really is no other certain method for determining the

collective legislative intent or purpose at some point in the past, even

assuming a single intent or purpose was dominant at the time of enactment.

Yet a third reason for focusing on the literal text is that the Legislature is

constitutionally entitled to expect that the Judiciary will faithfully follow the

specific text that was adopted.

Id. We must “presume that every word in a statute has been used for a purpose and that

each word, phrase, and sentence should be given effect if reasonably possible.” State v.

Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997). Only if the statutory language is

ambiguous or leads to absurd results may we consult extra-textual sources. Boykin, 818

S.W.2d at 785.

The majority concludes that Article 38.072 creates a hearsay exception for outcry

evidence only when that evidence is conveyed by the live testimony of the outcry witness,

not through the admission of video-recorded statements of the complainant. However,

the plain language of the statute is clearly and unambiguously broad enough to permit the

admission of an outcry statement in the form of a video recording.

The portion of Article 38.072 that refers to the offer of an outcry statement states
Bays dissent - 5

only that the party intending to offer the statement must “provide[] the adverse party with

the name of the witness through whom it intends to offer the statement.” TEX. CODE

CRIM. PROC. art. 38.072, § 2(b)(1)(B). This language indicates that the outcry statement

must be offered “through” a witness, that is, by means or agency of the witness. See

AMERICAN HERITAGE COLLEGE DICTIONARY 1413 (3d ed. 2000) (defining “through”);

WEBSTER’S II NEW COLLEGE DICTIONARY 1150 (1999) (same). But the language of the

statute is silent regarding, and does not limit, the particular form that the outcry statement

must take.

I recognize that the outcry witness often testifies directly as to the substance of the

outcry statement. This is because a recording of the outcry statement does not exist and

the outcry witness’s recount is the only evidence available of such. But the mere fact that

this is the more-common scenario does not mean that the admission of other evidentiary

forms of the outcry statement are prohibited. The Legislature could have restricted the

form in which the outcry statement is presented to the jury, but it elected not to. When it

enacted Article 38.071 in 1983 (two years before it enacted Article 38.072), the

Legislature specifically provided that the form of evidence admissible under that statute

was “the recording of an audio statement of the child.” In contrast, when it enacted

Article 38.072, the Legislature placed no such restriction on the form in which outcry

statements are presented to the jury.

In its discussion of legislative intent, the majority places much emphasis on the
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reference in the legislative committee report to testimony rather than to other forms of

evidence. But by focusing on the particular word “testify,” the majority downplays the

broader reach of the Legislature’s general intent. Because the hearsay rule barred adults

in whom child sex-abuse victims had confided from repeating what they had been told,

the Legislature’s stated purpose was to provide an exception to the hearsay rule to allow

statements of child victims to come into evidence. See HOUSE COMMITTEE ON CRIMINAL

JURISPRUDENCE, BILL ANALYSIS, Tex. H.B. 579, 69th Leg., R.S. (1985); HOUSE STUDY

GROUP, BILL ANALYSIS, Texas H.B. 579, 69th Leg., R.S. (May 9, 1985). Recognizing

that it is often traumatic for children to testify in a courtroom setting, especially about

sexual offenses committed against them, the Legislature constructed Article 38.072 to

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allow the child’s outcry statement to come in “through” the first adult in whom a child

confides regarding the abuse.

The language of the statute reflects that the first adult in whom a child confides is

to serve as a conduit for the admission of the outcry statement (as reflected by the

language “through whom”), without specifying whether the outcry statement is to be

conveyed through the outcry witness’s live testimony, a recording of the outcry statement,

or a combination of the two. The majority contends that because the Legislature

“envisioned that the child’s outcry would take the form of a spontaneous verbal

 Martinez v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. App. 2005); see also Coronado 3

v. State, 351 S.W.3d 315, 317 (Tex. Crim. App. 2011); Gonzales v. State, 818 S.W.2d 756, 759-

60 (Tex. Crim. App. 1991).
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communication to a trusted adult,” it “did not intend to permit admission of a child’s

videotaped statement.” But even if there were a focus on spontaneity, the Legislature

drafted the statute with language broad enough to encompass a situation in which the

child’s statement is recorded, even if less spontaneous.

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The majority concludes “that the admissibility of a child’s videotaped statement is

governed by the more specific video statute [Article 38.071], as opposed to the more

general outcry statute [Article 38.072].” But Article 38.071 cannot control a case such as

this when the victim was available and testified. Article 38.071 applies to situations in

which the child witness is unavailable, whereas Article 38.072, the statute at issue in this

case, requires that the child witness testify or at least be available to testify. A statute

5

The legislators were mindful of preserving the defendant’s rights to confront the witness, 4

and accordingly, they alleviated this concern by requiring that the complainant “be available to

testify.” See HOUSE STUDY GROUP, BILL ANALYSIS, Tex. H.B. 579, 69th Leg., R.S. (May 9,

1985).

The majority asserts that “[a]n irreconcilable conflict would exist if both statutes were 5

interpreted to permit the admission of a child’s videotaped statements because the outcry statute

would create a loophole for admitting evidence that is otherwise inadmissible under the more

stringent video statute.” This argument fails because the requirements of the two statutes are

tailored to different circumstances, that is, whether the child complainant is available or

unavailable. The requirements of Article 38.072 that the child victim be available and his

statement be admitted “through” the outcry witness minimize the need for the more stringent

requirements of Article 38.071. For example, Article 38.071 requires that the person taking the

child’s statement must be “neutral individual experienced in child abuse cases that seeks to find

the truth of the matter” or an “expert in the handling, treatment, and investigation of child abuse

cases” whose interview tactics did not consist of calculated questioning designed to elicit

particular responses. This requirement is unnecessary under Article 38.072 because the outcry

statute allows the defense to directly question and assess the witness’s neutrality and

professionalism and, if necessary, call the child victim to the stand to compare his recollection of

the outcry to that of the outcry witness.
Bays dissent - 8

cannot control the disposition of a case when the facts are not within its scope.

Moreover, I want to emphasize that the ground upon which we granted specifically

addresses only Article 38.072.

6

In conclusion, “[w]here the statute is clear and unambiguous the Legislature must

be understood to mean what it has expressed, and it is not for the courts to add [to] or

subtract from such a statute.” Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991)

(quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex. Crim. App. 1967)). Because Article

38.072 does not limit the form in which the outcry statement may be presented through

the outcry witness to the jury, the plain language is clearly broad enough to permit the

admission of an outcry statement in the form of a video recording, provided that the

statute’s other requirements are also satisfied. Accordingly, I believe that the admission

of the video recording of Anne’s outcry statement during Drennan’s testimony was proper

under Article 38.072.

For these reasons, I respectfully dissent.

Hervey, J.

Filed: April 17, 2013

Publish

The State’s specific ground for review states the following: Does Article 38.072 of the 6

Texas Code of Criminal Procedure “clearly contemplate” that an outcry statement will be offered

only through an outcry witness, or may a videotape of the child’s outcry to that witness be played

if both the witness and child are available for cross-examination?