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Click here for the full text of this decision “We cannot agree that the article [38.072] contemplates that a videotape of the ‘outcry’ will be introduced. It clearly contemplates that a person, subject to confrontation and cross-examination, will testify about what was said. Here, the interviews (which could not be cross-examined) were played, in their entirety, so the jury could observe the children, and the person who conducted the interviews simultaneously provided a commentary explaining what the jury was observing.” FACTS:Ron Jason Dunn appeals from his conviction by a jury for the offense of aggravated sexual assault of a child. The trial court assessed his punishment at life imprisonment. HOLDING:Affirmed. Dunn contends the trial court abused its discretion by admitting a videotape of interviews with the victims as the “outcry” because a video recorder is not a person and cannot be cross-examined as would a witness. Article 38.072 provides that certain statements made by a child to the first adult person the child told of the offense are not excluded because of the hearsay rule. Dunn contends on appeal that a videotape cannot be a person; thus, by its very nature, the hearsay exception of Article 38.072 cannot apply. Although the objection did not articulate that specific turn of phrase, all of the matters involved in such an objection were raised. The objections argued at trial involved whether use of the videotapes would deny Dunn’s right to confront the witnesses, pointed out that the witnesses were available and the videotape would be cumulative and that he could not cross-examine the videotape. A defendant’s hearsay objection is sufficient to preserve error for any failure to comply with the mandatory requirements of Article 38.072 because, after a hearsay objection is made, the State has the burden to show it has complied with all the requirements listed in Article 38.072. Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990). The court concludes this objection is sufficient to bring the matters now raised on appeal to the trial court’s attention. The children explained in some detail in these lengthy interviews exactly what had been done to them and what Dunn had required them to do to him. The State played the videotape during its examination of the interviewer, allowing her to explain the events to the jury. At a later time, the two victims testified in person about the same matters, in similar detail. Hearsay is not admissible except as provided by statute or by the Texas Rules of Evidence. Texas Rule of Evidence 802. Article 38.072 of the Texas Code of Criminal Procedure creates an exception to the hearsay rule for statements of child abuse victims if all the requisite conditions are met. Article 38.072 provides that, in sexual offense cases committed against a child 12 years of age or younger, statements that were made by the alleged child victim to the first person, 18 years of age or older, other than the defendant, about the offense will not be inadmissible because of the hearsay rule. Texas Code of Criminal Procedure Article 38.072. In order for this hearsay exception to apply to such a statement, on or before the 14th day before the proceedings begin, the party intending to offer the statement must notify the adverse party of its intention to do so and must provide the adverse party with the name of the witness through whom it intends to offer the statement and also provide a written summary of the statement. Also, the trial court must find, 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. Id. Additionally, the child must testify or be available to testify at the proceeding in court or in any other manner provided by law. The trial court has broad discretion to determine whether the child’s statement falls within the hearsay exception. The exercise of that discretion will not be disturbed unless the record shows a clear abuse of discretion. Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000). The videotape containing the separate statements of each child, in this instance, was hearsay. It was therefore admissible only if some exception applied. The only suggested authority for such admission lies in Article 38.072. The court cannot agree that the article contemplates that a videotape of the “outcry” will be introduced. It clearly contemplates that a person, subject to confrontation and cross-examination, will testify about what was said. Here, the interviews (which could not be cross-examined) were played, in their entirety, so the jury could observe the children, and the person who conducted the interviews simultaneously provided a commentary explaining what the jury was observing. By admitting the videotape into evidence, the trial court allowed evidence into the record in violation of the Texas statute. The ruling of the trial court is therefore outside the zone of reasonable disagreement. The court concludes the trial court abused its discretion by admitting the evidence. In situations where an improperly admitted videotape “essentially repeated the testimony” of the victim, when the victim also testifies and the videotape is cumulative of the victim’s properly admitted testimony on the same issue, courts often disregard the error, reasoning that it could not have affected the appellant’s substantial rights. Jensen v. State, 66 S.W.3d 528 (Tex. App. Houston [14th Dist.] 2002, pet. ref’d). Here, the videotaped interviews take up approximately an hour of time, which was extended by the explanatory testimony of the interviewer. In no manner can they either be considered unpersuasive or brief. However, the video recordings of those interviews, as well as the commentary by the interviewer, are in all relevant respects the same as the eventual testimony of the victims at trial. The girls testified in person concerning the numerous sexual assaults they had experienced by Dunn’s actions. The victims’ live testimony consumes 37 pages of the record, while the cross-examination continued for another twenty-four pages. The videotapes total an hour in length, and the interviewer’s commentary (in which the videotapes were not transcribed) extends for another 28 pages. The state made no specific reference that could be attributed solely to the videotapes or the interviewer’s testimony during closing argument. The court finds that, because the testimony of the victims is the same as that of the videotapes, the erroneous admission of those videotapes does not affect the substantial rights of Dunn. There is testimony from both the victims, that Dunn had sexually abused them at times while they were living in Hopkins County, as well as at earlier times while they lived in other counties. Although, as pointed out by Dunn, there is some testimony that is inconsistent about the times and locations involved, the evidence presented is both legally and factually sufficient to allow the jury to conclude beyond a reasonable doubt that the offenses occurred and that they occurred in Hopkins County. Further, the court concludes, the evidence to the contrary is not so overwhelming as to be clearly wrong and unjust. OPINION:Jack Carter, J.

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