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Garcia v. State4/23/2004
nd are not error. See Campos v. State, 589 S.W.2d 424, 426 (Tex. Crim. App. 1979); Silva v. State, 989 S.W.2d 64, 67 (Tex. App.-San Antonio 1998, pet. ref'd). Additionally, appellant's counsel questioned potential jurors about their views on whether appellant should testify and implications if he did not testify. In fact, there are twelve pages of dialogue in the record during which the defense reminded the venire that appellant had a constitutional right not to testify and discussed how appellant's possible decision not to testify would affect their views of the case. See Beltran v. State, 99 S.W.3d 807, 812 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (defense counsel's immediate response stating his own opinion negated any harm to appellant).
Second, appellant complains that comments made by several veniremen encouraged bias against appellant. Some of the comments of which appellant complains are to the effect that a potential juror could not be fair to appellant, he would find appellant guilty on the basis that he had been charged with sexual assault and/or because he had been indicted, he wanted to hear testimony from appellant and/or believed that he should testify if he is not guilty, he had been a victim of sexual assault himself, or he was close to someone who had been a victim of sexual assault. The very purpose of voir dire is to determine whether the prospective jurors have any biases or prejudices that would prevent them from applying the law to the facts of the case. See Stallings v. State, 47 S.W.3d 170, 174 (Tex. App.-Houston [1st Dist.] 2001, no pet.). In fact, appellant's lawyer asked the jurors whether they could be fair and impartial and follow the court's instructions despite their personal feelings. The persons who made the complained-of comments were struck. As a result, the voir dire process allowed the parties to determine who of the venirepersons were not able to be fair and impartial. Appellant's argument speculates that the comments had an effect on the remaining jurors' ability to act in accordance with the law, but appellant cites no cases in which similar voir dire questions or comments by prospective jurors were held to be fundamental error. We have carefully reviewed the record in this case and do not find error, much less fundamental error. Because no objection was made to these alleged non-fundamental errors, appellant has waived this issue. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002).
IMPROPER OUTCRY WITNESS
In his sixth issue, appellant complains that Officer Moore was not the proper person to designate as an outcry witness because L.C. spoke to both of his parents about the alleged sexual abuse before he spoke to Officer Moore. The out-of-court statement of a child sexual assault victim is hearsay when it is offered for the truth of the matter asserted, unless an exception applies. Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992). Article 38.072 of the Code of Criminal Procedure creates an exception to the hearsay rule when a statement is made by a child victim under the age of thirteen. Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a) (Vernon Supp. 2002). This exception only applies, however, to the first person to whom the child victim makes his outcry statement who is over the age of seventeen. Id. To qualify as a proper outcry statement, the child must have described the alleged offense in some discernible way and must have more than generally insinuated that sexual abuse occurred. Sims v. State, 12 S.W.3d 499, 500 (Tex. App.-Dallas 1999, pet. ref'd). A trial judge has broad discretion in determining the proper outcry witness. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). An appellate court will not rev
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