Is Child's Hearsay Statement on Sexual Assault Allowed ?
In Yzaguirre v. State, 938 S.W.2d 127 (Tex. App. - Amarillo 1996, pet. ref'd), the trial court excluded testimony that the complainant's mother had chastised her son (the complainant) for comparing genitals with a male cousin.
When the mother later discovered the defendant in bed with her son, the complainant first stated nothing had happened, then said the defendant had molested him.
The defendant stated he had been napping when the complainant crawled into bed with him, and that it was the complainant who molested him.
The court of appeals reversed, holding that the excluded testimony showed that complainant had been in trouble for inappropriate sexual behavior in the past and therefore had a motive to lie when caught a second time.
Under TEX. CODE CRIM. PROC. ANN. Art. 38.072 (Vernon Supp. 1999), a hearsay statement made by a child under twelves years of age, against whom a sexual assault was allegedly committed, is admissible if it is made to the first person eighteen years of age or older to whom the child made a statement about the offense.
The statement must be "more than words which give a general allusion that something in the area of child abuse was going on." Molina v. State, 971 S.W.2d 676, 682 (Tex. App. - Houston [14th Dist.] 1998, no pet.), citing Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).