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Click here for the full text of this decision FACTS: After she turned eighteen years of age in 2001, Jennifer Simmons for the first time disclosed the paternity of her son, conceived in 1995 when Jennifer was twelve. Her outcry, to her adult boyfriend, Vonnie Kelly, was that her stepfather, Vaughn Earle Harvey, had sexually assaulted her then and was the father of her son. When Jennifer told Kelly the details of her ordeal, he advised her to contact the authorities. At the direction of Child Protective Services and the police, blood samples were taken from Harvey, Simmons, and her son for paternity testing. The conclusion of these tests indicated there was a 99.99999% probability of Harvey’s paternity. A Wood County jury convicted Harvey of aggravated sexual assault of a child. Harvey appeals. HOLDING: Affirmed. Harvey contends that Texas Code of Criminal Procedure Article 38.072, which permits the hearsay statement of a child abuse victim who was twelve years of age or younger at the time of the offense, does not extend to child abuse victims’ outcry statements made after they turn thirteen years of age. Although Simmons was twelve years old at the time of the charged offense, Harvey argues that Article 38.072 does not apply in this case because Simmons’ outcry statement was delayed beyond her thirteenth birthday. According to the record, Simmons was eighteen years old at the time of her outcry and nineteen at the time of trial. Harvey argues it is impermissible to allow hearsay testimony of an outcry statement of a victim who then is thirteen or older, and that doing so in this case, although it may not have affected the jury’s decision as to his guilt, was harmful to the jury’s decision regarding punishment. The court hold that, for Article 38.072 to apply, not only must the offense have been committed against a child twelve years of age or younger, but also the victim, while still a child � that is, not having reached his or her eighteenth birthday � must have confided the details of the ordeal to a person eighteen years of age or older. Failure of the second criterion renders Article 38.072 inapplicable. As a result, the trial court should not have permitted Kelly to testify with the content of Simmons’ outcry statement. As part of Harvey’s argument against the admissibility of Simmons’ outcry statement, he contends that, even if Article 38.072 did apply in this case, admission of the testimony would be prohibited by the Confrontation Clause of the Sixth and Fourteenth Amendments. Addressing this problem in Buckley v. State, 758 S.W.2d 339 (Tex. App. – Texarkana 1988), aff’d, 786 S.W.2d 357 (Tex. Crim App. 1990), this court held that the right to confrontation was satisfied by Article 38.072′s requirement that each case be judged on its own merits, admitting only those statements found reliable based on the time, content, and circumstances. The Texas Court of Criminal Appeals affirmed, further stating that the opportunity to cross-examine the declarant of an out-of-court statement was sufficient to pass constitutional muster by providing an adequate opportunity for confrontation. Buckley v. State, 786 S.W.2d 357 (Tex. Crim. App. 1990). This is true even if literal confrontation is not afforded contemporaneously with the statement itself. In the case at bar, Harvey had ample opportunity not only to cross-examine Kelly as to Simmons’ outcry statement, but also to cross-examine Simmons herself. Therefore, admitting Kelly’s outcry testimony was not constitutional error. The court concludes Simmons’ outcry does not qualify as an excited utterance. Kelly’s testimony was merely cumulative of other evidence properly admitted. Harvey’s substantial rights were not affected. Harvey contends he was deprived of his Sixth and Fourteenth Amendment right to a fair and impartial jury because potential jurors (one of which was seated on the petit jury and served as the foreman) were asked to contribute to child services and victims’ compensation funds sometime before voir dire. “The doctrine of implied bias is limited in application to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Ruckman v. State, 109 S.W.3d 524 (Tex. App.-Tyler 2000, no pet.). A juror may deplore the crime underlying the action in which he or she has been called on to serve, even donating to general funds designed to assist victims of that crime, and still be able to impartially weigh the evidence presented as to a defendant’s guilt or innocence and, if the defendant is found guilty, fairly assess punishment. The court holds that neither this right nor the right to equal protection under the law was infringed when Harvey, a member of a racial minority, was refused a request to include at least one member of the same minority on the jury. OPINION: Morriss, C.J.

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