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Click here for the full text of this decision FACTS:Appellant was convicted of indecency with a child and sentenced to ten years’ imprisonment and a fine of $15,000. On appeal, he argued that the trial court erroneously admitted the hearsay testimony by the complainant’s mother as a victim outcry statement. The court of appeals affirmed appellant’s conviction, and the court granted review to determine if the testimony was properly admitted under Texas Code of Criminal Procedure Article 38.07. HOLDING:Article 38.072 is a Rule of admissibility of hearsay evidence. Article 38.07 is a Rule concerning sufficiency of the evidence. Article 38.07 deals with the sufficiency of evidence required to sustain a conviction for sexual assault but does not act as a hearsay exception, while Article 38.072 deals with the admissibility of evidence that would otherwise be barred by the hearsay rule. The trial court found that the testimony of the complainant’s mother reciting complainant’s outcry statement was admissible under Article 38.072. There is no dispute that the complainant was 13 years old when the offense occurred and that Article 38.072 applies only if the victim is 12 years of age or younger at the time of the offense. Thus, the court of appeals was correct in finding that the statement was inadmissible under Article 38.072. However, the court of appeals then stated that the complainant’s mother’s testimony “was admissible under the general outcry statute, Code of Criminal Procedure Article 38.07, and the trial court strictly limited the testimony to its proper scope.” This conclusion is mistaken, the court decides. First, because the complainant fits into one of the Article 38.07(b) exceptions � she was under 17 at the time of the offense � the state was not required to prove that the complainant made any outcry statement. Therefore, the complainant’s mother’s statement was neither necessary nor admissible under Article 38.07. However, even if Article 38.07 did apply, this testimony went well beyond establishing that the complainant had in fact made an outcry statement to her mother regarding appellant’s criminal acts. The complainant’s mother recounted exactly what the complainant said to her. The state argues that even if the testimony were inadmissible under Article 38.07, the complainant’s statement to her mother fits within the excited utterance hearsay exception. Of course, evidence that is otherwise admissible under a hearsay exception or exemption is not barred by Article 38.07, but the record fails to support the state’s position. The complainant’s mother testified that the complainant cried the evening she returned from appellant’s ranch, and that the following day she was angry. However, this alone is not sufficient to prove that the complainant was still dominated by the emotions, excitement, fear or pain of the event when she told her mother about the alleged acts. She had not been near appellant for more than two days, and there is no evidence in the record that she was in the instant grip of violent emotion, excitement or pain immediately before or during her recount of the events. Without further evidence that the complainant had no time or opportunity to calm herself and reflect upon the two-day-old events, the court cannot conclude that her statements to her mother fit the excited utterance exception to the hearsay rule. The trial judge erred in admitting the complainant’s outcry statement to her mother under either Article 38.072 or Article 38.07. Her statement was not an excited utterance, and no other grounds for admitting it were offered. OPINION:Cochran, J., delivered the court’s opinion.

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