## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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M I C H A E L J A Y B A Y S , A p p e l l a n t

v . T H E S T A T E O F T E X A S

O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E S I X T H C O U R T O F A P P E A L S

G R E G G C O U N T Y

K E L L E R , P
. J
. , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h K E A S L E R a n d H E R V E Y , J J
. , j o i n e d
. The issue in this case is no differ ent from whether a re cording of a 911 c all may be play ed

to a jury when the contents of the call are otherwise admissible. Statements made during a 911 call

are hear say , but they may b e admi ssible under one or more hear say exceptions, such as dy ing
decla ration, excited utter ance , or prese nt se nse impression. We ha ve upheld the admission of the 1

See Gardner v. State , 306 S.W .3d 274, 288-92 (Tex. Crim. App. 2009) (State arg ued that 1 statements made in a 911 call wer e admissible under all three theories. We addre ssed only whether the par ticular 911 c all in question qualified as a dy ing de clar ation, and we held that it did.).BA YS DI SSENT - 2

testi m o n y o f a 911 opera tor reg arding such statements, and if that testimony is admissible, the 2

rec ording of the c all itself is admissibl e. This prac tice has occur red in the courts of Texas and in 3
other states. 4 By say ing, “A st at em en t t hat m eets the require ments of S ubsection (a) i s not inadmissible
beca use of the hear say rule,” Article 38.072 simply cre ates a hear say exception, on par with other ty pes of exceptions such as excited utteranc es. Although Article 38.072 contemplates that there is 5

a sponsoring witness for an outcry statement, the statute does not specify how the sponsoring witness
is to offe r the outcry statement. The witness could testify to the contents of the statement, or the
witness could sponsor an elec tronic rec ording of the statement. An outcry wit n es s co u l d even
sponsor a wr itten rec ording , if the child’s outcr y wer e made in writing. 6
The Court contends that the outcry statute differ s from other hear say exceptions beca use the

statute “cle arly contemplates the role of an outcry ‘witness’

. . . and is not wholly silent with respe ct

to how the outcry evidenc e will be prese nted at trial.” I must respe ctfully disag ree
. Nowher e does 7
the statute ref

er to “ testimony ” from an outcr y witness. I nstead, the statute r efe rs to a “sta tement”

See id. 2
See id. I t is not clea

r whether the 911 tape was itself admitted, though it appea rs possible 3 that it was. See id. at 307 n.6. The Court made no distinction betwee n the tape and testimony about the tape. See also Dixon v. State , 358 S.W .3d 250, 254 (Tex. App.–Houston [1 Dist.] 2011)(holding st rec ording of 911 ca ll admissibl e over hear say objection).
See Davis v. W

ashington , 547 U.S. 813, 818-19 (2006); Estrada v. State , 313 S.W .3d 274, 4 300 (Tex. Crim. App. 2010); Dixon , supra
. T E X
. C O D E C R I M
. P R O C . art. 38.072, § 2(b)

. 5
I f a child reve als that she has been sexually assaulted by writing a letter to a rela tive, I see 6 no justification for excluding the letter fr om evidence as long as the c hild is available to testify

. Court’s op. at n.17. 7BA YS DI SSENT - 3

by the child and it r efe rs to a witness throug h whom a par ty intends to offer

“the state ment.” The 8
Court contends that this lang uag e supports the notion that the child’s outcry statement will be

c o n v e y ed “throug h” the testify ing outcry witness beca use a witness is someone who testifies in cour t,
but as J udg e Her

vey explains in her dissent, this lang uag e is broad enoug h to encompa ss submitt ing
materia ls thr o u gh a wi t ness. A witness can, for example, take the stand to lay the predic ate for a business rec ord, a vide otape, or a def endant’ s written conf

ession.
I can see why a d efe ndant would not want the jury to see and hear exactly what his victim
said when she made he r outcry , but it makes no sense to say that a less reliable method of relating
that outcry (ora l testimony ) is admissible while a more reliable rec i t at i o n o f t h e outcry (video

rec ording ) is not. Wi th these comments, I join J udg e He rvey ’s dissenting opinion.

Filed: Apr il 17, 2013 Publis h

See T E X
. C O D E C R I M
. P R O C . art. 38.072, § 2(a ), 2(a )(1) (B ), 2(b) , 2(b)( 1)(B ).

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