Smith, Skie Jordan ( 2015 )


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  •                                                                        PD-0325-15
    PD-0325-15                           COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 3/25/2015 1:51:31 PM
    Accepted 3/26/2015 1:22:42 PM
    ABEL ACOSTA
    CLERK
    NO. ___________
    TO THE COURT OF CRIMINAL APPEALS OF TEXAS
    SKIE JORDAN SMITH Appellant
    VS.
    THE STATE OF TEXAS, Appellee
    ***************
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    **************
    FROM THE COURT OF APPEALS
    SIXTH APPELLATE DISTRICT OF TEXAS
    AT TEXARKANA
    NO. 06-14-00071-CR
    MARION COUNTY
    TRIAL COURT NO. F14369
    Tim Cone
    P.O. Box 413
    Gilmer, Texas 75644
    State Bar #04660350
    March 26, 2015
    ATTORNEY FOR APPELLANT
    2
    TABLE OF CONTENTS
    Page
    Table of Contents…………………………………………                                       2
    Name of All Parties………………………………………                                       3
    Index of Authorities………………………………………                                      4
    Statement of the Case…………………………………….                                     5
    Statement of the Procedural History……………………..                            7
    Statement Declining Oral Argument…………………….                               7
    Questions for Review……………………………………                                        7
    Question One:
    Did the Court of Appeals err in finding Appellant’s
    trial attorney failed to preserve error regarding the proper outcry
    witness?................................................................. 7,8
    Question Two:
    Did the Court of Appeals err in finding Appellant’s
    trial attorney failed to preserve error regarding the
    admission of an inadmissible tape recorded statement
    of the complaining witness?.............................................. 7,9
    Reasons for Review………………………………………                                        8
    Argument and Authorities………………………………..                                   8
    Prayer and Relief…………………………………………                                        11
    Certificate of Compliance………………………………..                                  12
    Certificate of Service……………………………………..                                   12
    Appendix – Court of Appeals Opinion
    3
    NAMES OF ALL PARTIES
    The parties to the trial court’s judgment are the State of Texas and
    Appellant, Skie Jordon Smith, TDCJ.
    The trial court judge was the Honorable Lauren Parish, 115th Judicial
    District Court, Marion County, Texas.
    At trial and on appeal, the State was represented by Marion County
    Attorney Angela Smoak, Marion County, Texas.
    Appellant was represented at trial by Matthew R. Patton, III, 316 Titus
    Street, Gilmer, Texas, and on appeal by Tim Cone, Gilmer, Texas.
    4
    INDEX OF AUTHORITIES
    PAGE
    STATUTES:
    Texas Code of Criminal Procedure, Art. 38.072…………….....   8
    Texas Code of Criminal Procedure, Art. 38.071……………….      9
    RULES:
    Texas Rule of Appellate Procedure, 66.3(f)…………………….       8
    5
    SKIE JORDAN SMITH                                   Appellant
    V.
    THE STATE OF TEXAS                                  Appellee
    **********
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    **********
    TO THE HONORABLE COURT OF APPEALS:
    Comes now Skie Jordan Smith, Appellant, and respectfully urges this
    Court to grant discretionary review in this case.
    STATEMENT OF THE CASE
    SKIE JORDAN SMITH appeals the conviction and sentence for
    Aggravated Sexual Assault of a Child. The Appellant was indicted in Cause
    Number F14369 by the Marion County Grand Jury on September 28, 2012,
    6
    for the offense of Aggravated Sexual Assault of a Child. CR8. The sole
    allegation set out in the indictment accused the Appellant of oral penetration
    of the child by his sexual organ. CR8. On November 12, 2013, a hearing on
    Appellant’s motion to suppress evidence was held. Supp.1RR. The
    Appellant’s motion was denied. Supp.1RR41. A jury was selected on March
    17, 2014. 2RR. On the same day, before jury selection began, the trial court
    held a hearing on the Appellant’s objection to the testimony of the outcry
    witness, the mother of the child (Tereena Woods). 2RR4-20. Trial began on
    March 18, 2014. 3RR. The jury convicted the Appellant of Aggravated
    Sexual Assault of a Child on March 19, 2014, and assessed his punishment
    at forty years confinement in the Institutional Division of the Texas
    Department of Criminal Justice. 4RR97, 108. On February 25, 2015, the
    Sixth Court of Appeals affirmed the conviction in a published opinion. The
    Appellant now files this Petition for Discretionary Review.
    For clarity, THE STATE OF TEXAS will be referred to as “The
    State”, and SKIE JORDAN SMITH, will be referred to as “Defendant” or
    “Appellant.”
    7
    STATEMENT OF PROCEDURAL HISTORY
    The case was appealed to the Court of Appeals, Sixth Appellate
    District of Texas at Texarkana. On February 25, 2015, that Court affirmed
    the conviction in an opinion that was published. There was no motion for
    rehearing filed.
    STATEMENT DECLINING ORAL ARGUMENT
    Oral argument of this case is not requested on behalf of Appellant.
    QUESTIONS FOR REVIEW
    Question No.1
    Did the Court of Appeals err in finding the Appellant’s trial attorney
    failed to preserve error regarding the proper outcry witness?
    Question No. 2
    Did the Court of Appeals err in finding the Appellant’s trial attorney
    failed to preserve error regarding the admission of an inadmissible tape
    recorded statement of the complaining witness?
    8
    REASONS FOR REVIEW
    Texas Rule of Appellate Procedure 66.3(f): A Court of Appeals has
    so far departed from the accepted and usual course of proceedings as to call
    for an exercise of the Court of Criminal Appeals power of supervision.
    Further, this matter should be addressed by the Court of Criminal Appeals in
    the best interest of justice.
    ARGUMENT AND AUTHORITIES
    Question No. 1
    Prior to trial beginning, Appellant’s trial attorney objected to the
    mother of the complaining witness (pseudonym “Jane Doe”, a child) being
    allowed to testify as the proper outcry witness. At the end of the hearing, the
    trial court overruled the objection and ruled that the mother of the child
    could testify at trial as the outcry witness, which she did. The Texas Code of
    Criminal Procedure, Art. 38.072 allows for the admission of the testimony of
    an outcry witness from the first person over eighteen years of age the child
    tells of the alleged abuse. During the first (of two) CAC interviews-both of
    which were published to the jury at trial, the child (Jane) clearly tells the
    9
    CAC interviewer the first person she told of the alleged abuse was
    “Memaw” (State’s exhibit no. 4). While the record is not a model of clarity
    regarding the identity of “Memaw”, it does appear fairly clear that
    “Memaw” is the maternal grandmother of the child-who would be an adult
    over the age of eighteen years. The Court of Appeals held that the
    Appellant’s trial counsel failed to preserve the error in this regard. However,
    it was based on the request of the Appellant’s trial attorney that the pretrial
    hearing was held-based on the objection to the child’s mother as the proper
    outcry witness. The Court of Appeals should have held that the issue was
    preserved and a fair review of the record shows the child’s mother was not
    shown to have been the proper outcry witness. As such, the mother’s
    testimony should not have been admitted as to the outcry statements from
    the child, which were very harmful to the Appellant.
    Question No. 2
    At trial, the child testified. Therefore, no CAC recorded interview was
    admissible. Texas Code of Criminal Procedure, Art. 38.071. In the case at
    bar, the child gave two CAC recorded interviews. In the first interview, the
    child denied any act on the part of the Appellant that would substantiate the
    10
    allegations set out in the indictment. (State’s exhibit No. 4). In the second
    CAC interview, the child did make statements that would support the
    allegations in the indictment. Appellant’s trial attorney did not object to the
    admission of the first interview. This would seem to be sound trial strategy
    since the statements made by the child essentially denied the allegation set
    forth in the indictment. However, when the State offered the second CAC
    recorded interview (State’s exhibit No.5), the Appellant’s trial attorney did
    object. The objection made at trial was that the recording was improper
    redirect examination. The Court of Appeals held the trial objection and the
    point of appeal were not the same; therefore, error was not preserved. The
    argument made on appeal was that the recording was inadmissible under the
    statute and lent credibility to the testimony of the child. Appellant’s trial
    attorney made an objection that the recording was improper redirect
    examination. The reason the recording was not admissible was that it was
    improper redirect examination in that it was not admissible under the statute
    and it lent credibility to the child’s testimony. The same exact words may
    not have been used at trial and on appeal but the objection and the point of
    error refer to the same erroneous admission of the recording. The Court of
    Appeals should have found that the admission of the second CAC interview
    was error and clearly harmful to the Appellant.
    11
    PRAYER AND RELIEF
    Appellant prays that this Petition for Discretionary Review be
    granted; that this case be submitted to the Court after full briefing; that the
    Court of Appeals’ decision be set aside, the case remanded to the Court of
    Appeals for further review or that the Appellant receive a new trial.
    Respectfully submitted,
    /s/ Tim Cone
    ________________________
    TIM CONE
    State Bar #04660350
    Attorney for Appellant
    P.O. Box 413
    Gilmer, Texas 75644
    903-725-6270
    903-725-5494 (Fax)
    12
    CERTIFICATE OF COMPLIANCE
    I certify that the foregoing document complies with Texas Rules of
    Appellate Procedure, Rule 9 regarding length of documents, in that
    exclusive of caption, identify of parties and counsel, statement regarding
    oral argument, table of contents, index of authorities, statement of the case,
    statement of issues presented, statement of jurisdiction, statement of
    procedural history, signature, proof of service, certification, certificate of
    compliance, and appendix, it consist of 571 words.
    /s/Tim Cone
    _________________________
    TIM CONE
    CERTIFICATE OF SERVICE
    On the 25th day of March, 2015, copies of the foregoing Appellant’s
    Petition for Discretionary Review were delivered to the Office of Honorable
    Angela Smoak, Marion County Attorney, 102 West Jefferson, Jefferson,
    Texas 75657, and the State Prosecuting Attorney, at P.O. Box 13046,
    Capitol Station, Austin, Texas 78711, by United States mail postage
    prepaid.
    /s/Tim Cone
    _________________________
    TIM CONE
    Counsel for Appellant
    13
    In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-14-00071-CR
    SKIE JORDAN SMITH, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 115th District Court
    Marion County, Texas
    Trial Court No. F14369
    Before Morriss, C.J., Moseley and Burgess, JJ.
    Opinion by Justice Moseley
    OPINION
    Skie Jordan Smith was convicted by a Marion County jury for the aggravated sexual
    assault of Jane Doe, 1 a child younger than fourteen years of age, and sentenced to forty years’
    incarceration. On appeal, Smith raises three complaints: (1) he maintains that the person
    allowed to testify as an outcry witness did not properly qualify as an outcry witness under the
    relevant Texas Code of Criminal Procedure provision, (2) Smith takes the position that the
    evidence against him was insufficient to support a finding of guilt, and (3) he complains that the
    trial court erred in allowing the admission into evidence of an audio/video-recorded interview
    with the child complainant. Upon review of the record and applicable law, we overrule Smith’s
    points of error and affirm the trial court’s judgment and sentence.
    I.          The Evidence Was Sufficient
    In order to avoid redundancy in stating the evidence presented, we first examine the
    sufficiency of the evidence to support Smith’s conviction.
    In evaluating the legal sufficiency of the evidence, we review all the evidence in the light
    most favorable to the trial court’s judgment to determine whether any rational jury could have
    found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 
    323 S.W.3d 893
    , 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979));
    Hartsfield v. State, 
    305 S.W.3d 859
    , 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine
    legal sufficiency under the direction of Brooks, while giving deference to the responsibility of
    the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
    1
    This is a pseudonym employed in this opinion to protect the identity of the child victim.
    2
    inferences from basic facts to ultimate facts.” Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim.
    App. 2007) (citing 
    Jackson, 443 U.S. at 318
    –19).
    Sufficiency of the evidence is measured by the elements of the offense as defined by a
    hypothetically correct jury charge. Malik v. State, 
    953 S.W.2d 234
    , 240 (Tex. Crim. App. 1997).
    The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not
    unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
    liability, and adequately describes the particular offense for which the defendant was tried.” 
    Id. Under the
    hypothetically correct jury charge standard, in order to sustain the charges
    made against Smith, the State was required to prove that Smith intentionally or knowingly
    caused the penetration of Jane’s mouth with his sexual organ and that this act occurred in Marion
    County. See TEX. PENAL CODE Ann. § 22.021(a)(1)(B)(ii) (West Supp. 2014).
    Jane is the daughter of Smith’s former girlfriend. Nine years old at the time of trial, Jane
    testified that during a span of time when she and her mother lived with Smith in Oklahoma and,
    later, in an apartment in Jefferson, Texas, Smith engaged in regular touching of Jane’s “private”
    and bottom. 2 The child also said that while the parties lived in the Jefferson apartment, on more
    than one occasion, Smith made her put his private into her mouth and that “white stuff came out”
    2
    It is understood that child sexual assault victims may well describe their relevant body parts without the
    sophistication, specificity, or anatomical accuracy employed by adults or, for that matter, by the criminal statutes
    being enforced. “Where the child has sufficiently communicated to the trier of fact that the touching occurred to a
    part of the body within” the Penal Code’s definitions, “the evidence will be sufficient to support a conviction
    regardless of the unsophisticated language that the child uses.” Clark v. State, 
    558 S.W.2d 887
    , 889 (Tex. Crim.
    App. 1977); see also Guia v. State, 
    723 S.W.2d 763
    , 765 (Tex. App.—Dallas 1986, pet. ref’d) (touching where one
    “‘went to the bathroom’” or “‘tee-teed’” sufficient for sexual contact); Bryant v. State, 
    685 S.W.2d 472
    , 474–75
    (Tex. App.—Fort Worth 1985, pet. ref’d) (being touched “between her legs” sufficient for sexual contact). Jane
    testified sufficiently to identify her terms for her and Smith’s body parts as corresponding with their respective
    sexual organs, and Smith does not challenge this aspect of her testimony.
    3
    of it. 3 Jane said this happened more than ten times, and she also described the various rooms in
    the apartment where these abuses took place and the clothing she and Smith wore on many of
    those occasions. She testified about an incident that took place in Oklahoma when Smith and his
    brother were present. On that occasion, she was made to take Smith’s brother’s “pee-pee” in her
    mouth.
    Based on Jane’s testimony, the evidence was sufficient to support a finding that Smith
    knowingly or intentionally caused the penetration of Jane’s mouth with his sexual organ, that
    Jane was a child under the age of fourteen at the time, and that the act occurred in Marion
    County. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii) (West Supp. 2014). The testimony of
    a child complainant, standing alone, “is sufficient to support a conviction for aggravated sexual
    assault.” Allen v. State, 
    436 S.W.3d 815
    , 820 (Tex. App.—Texarkana 2014, pet. ref’d); see also
    TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014).
    In addition to the above, Jane’s mother testified that one evening, she smelled a “vaginal
    smell” emanating from Jane’s fingers; concerned that Jane had been masturbating, she
    questioned her. Jane related to her mother that Smith had taught her to touch her vaginal area
    and also revealed that Smith had made the child take his sexual organ in her mouth. The State
    introduced two audio/video recordings of interviews Jane gave at the local Children’s Advocacy
    Center (CAC) into evidence. In those interviews, Jane described the above sexual assaults as
    well as other inappropriate activity (such as Smith masturbating on the bathroom floor while
    3
    Jane said that on at least one occasion, Smith told her, “Don’t swallow it.”
    4
    Jane and Smith’s son took a bath together at Smith’s insistence and Smith showing Jane
    pornographic material). 4 The evidence was sufficient to support the jury’s finding of guilt.
    II.      Identity of Proper Outcry Witness
    Smith complains in his appellate brief that the trial court erred in allowing Jane’s mother
    to testify as an outcry witness. 5 Smith argues that a relative or friend of Jane, to whom Jane
    referred as “Memaw,” was the proper outcry witness, not Jane’s mother.
    On appeal, Smith points to Jane’s statement in one of the recorded interviews wherein
    she related that she told Memaw about Smith’s abuse before she told her mother. 6 There was a
    hearing held regarding the admissibility of Jane’s mother’s testimony as an outcry witness. In
    the pretrial hearing regarding this issue, Smith never raised any issue pertaining to Memaw, what
    might have been said by Jane to Memaw, at what time it might have been said, or whether
    Memaw would have been a proper outcry witness. He never asked about Jane’s statement in the
    recording that she had told Memaw something about Smith’s conduct before she told her
    4
    Some of this evidence—the mother’s testimony of Jane’s outcry statement and one of the recorded interviews—is
    the subject of other points of error. Jane’s testimony was sufficient to support the conviction.
    5
    See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2014). “The outcry statute creates a hearsay exception
    for a child’s first outcry of sexual abuse to an adult.” Bays v. State, 
    396 S.W.3d 580
    , 581 n.1 (Tex. Crim. App.
    2013). This exception is allowed if the child makes a statement describing the alleged offenses, and it allows the
    first person over the age of eighteen to relate the child’s statement at trial. 
    Id. 6 Jane
    gave two audio/video-recorded interviews at the local CAC. The recordings were admitted into evidence,
    even though Jane testified at trial. We address these interviews in our analysis of Smith’s third point of error, infra.
    Even if the recordings were not admissible, Smith failed to lodge an objection to them at trial. As a result, the
    evidence still has probative value in our review of the sufficiency of the evidence. See TEX. R. EVID. 802;
    Poindexter v. State, 
    153 S.W.3d 402
    , 406 (Tex. Crim. App. 2005) (hearsay evidence admitted without objection still
    given probative value).
    5
    mother. 7 The only witness at that hearing was Jane’s mother, who described what Jane told her
    about Smith’s abuses and the chronology of those disclosures. Smith’s cross-examination of the
    mother focused on which acts Smith had performed on or with Jane, the time frame of when Jane
    had told her mother of Smith’s actions, and whether Jane related other acts subsequent to the first
    time she told her mother about Smith’s improprieties. In other words, Smith only inquired into
    what Jane had told her mother and when she had told her those things. For example, Jane’s
    mother said that during the initial outcry, Jane told her that Smith had taught her to touch her
    private area and that Smith had made her put his “pee-pee” in her mouth. Jane’s mother went on
    to say that on subsequent occasions, the child disclosed more of Smith’s activities (such as an
    occasion where Smith made Jane and Smith’s son take a bath together while Smith “pulled his
    pee-pee out and moved it back and forth real fast”). Smith never argued at that time that Jane
    had made other prior comments which would qualify as outcry statements to another person over
    the age of eighteen. In explaining his objection to the trial court, Smith stated that he wanted the
    mother’s testimony limited to Jane’s initial outcry. Smith argued,
    But she later, the girl talked [to] several other people and more stuff came out and
    what she [Jane’s mother] testified yesterday I’ve got no objection to, but if she
    wants to expound on it, well, she later told me this and this and this, I do have a
    problem because that wasn’t the initial outcry.
    Smith indicated he would lodge objections during trial if the mother testified to incidents other
    than those told her during Jane’s initial outcry.
    7
    As a matter of fact, neither audio/video recorded interview was offered, admitted, or even discussed at the hearing
    on the admissibility of Jane’s mother’s testimony as an outcry witness. Also, in her trial testimony, Jane said she
    told her mother before she told Memaw. Just as a child is not expected to testify with the anatomical specificity
    expected of an adult, generalities and imprecisions in reciting chronological order can be understood. See, e.g.,
    Bargas v. State, 
    252 S.W.3d 876
    , 888 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (considering child’s “rough
    time-frame of the events” in relating sexual abuses).
    6
    Nothing in Smith’s trial objections alerted the trial court that Smith believed Jane’s
    mother was not the proper outcry witness. An appellate point of error must have been raised by
    a motion or objection at trial, and the complaint raised on appeal must be the same as that urged
    at trial. Otherwise, the appellant has not preserved the matter for appellate review. TEX. R. APP.
    P. 33.1(a); Ibarra v. State, 
    11 S.W.3d 189
    , 197 (Tex. Crim. App. 1999) (nothing preserved for
    review if issue on appeal does not comport with objection at trial). Because his trial objection
    does not comport with this point of error raised on appeal, Smith failed to preserve the issue for
    our review.
    Even if Smith had objected at trial on the ground that Jane’s mother was not the proper
    outcry witness, he presented no evidence to the trial court establishing that any other person
    would have qualified in that capacity. His statement to the trial court that Jane had spoken to
    other people “and more stuff came out” was neither explained by him nor supported by evidence
    at the pretrial hearing. Further, even had Jane told other people about different conduct or acts
    Smith had done to her, such a revelation (if the other statutory requirements were met) would not
    necessarily preclude those persons from testifying under the outcry statement’s authorization.
    As we have noted previously,
    [A]n outcry witness is not person-specific, but event-specific. Before more than
    one outcry witness may testify, however, the outcry must be about different
    events, and not simply a repetition of the same event as related by the victim to
    different individuals. . . . [T]here may be two proper outcry witnesses if they each
    testify about different events, but there may be only one outcry witness to the
    victim’s statement about a single event. The proper outcry witness to a single
    event is the first adult person other than the defendant to whom the victim made a
    statement describing the incident.
    7
    Broderick v. State, 
    35 S.W.3d 67
    , 73–74 (Tex. App.—Texarkana 2000, pet. ref’d). There was
    nothing before the trial court suggesting that Jane made event-specific outcries to any person
    other than her mother. Had this matter been preserved for our review, we could not find that the
    trial court abused its discretion in overruling Smith’s challenge to Jane’s mother testifying as the
    outcry witness. 8
    III.    Admission of Audio/Video Recorded Interviews
    In his third point of error, Smith complains of the admission into evidence of the second
    audio/video-recorded interview which Jane gave at the CAC.                      In certain circumstances, an
    audio/video recording of a statement given by a child sexual-assault complainant may be
    admissible in a criminal prosecution, but the statutory authority for such admission is limited to
    situations where the child complainant is “unavailable to testify in the presence of the defendant .
    . . .” TEX. CODE CRIM. PROC. ANN. art. 38.071 (West Supp. 2014). Smith is correct in arguing
    that Jane was available to testify (not only was she available to testify, she actually did testify)
    and, thus, the recording was not admissible under Article 38.071.
    Article 38.071’s requirements are numerous and clear; those requirements are not
    satisfied where the child is available to testify at trial. Bays v. State, 
    396 S.W.3d 580
    , 590 (Tex.
    Crim. App. 2013). In Bays, the child complainant testified at trial, but the State also was allowed
    to introduce an audio/video-recorded interview of the child.                   This Court overturned Bays’
    conviction after finding that the trial court committed reversible error in the admission of the
    8
    We review a trial court’s ruling on a challenge to the outcry witness under an abuse of discretion standard. Eldred
    v. State, 
    431 S.W.3d 177
    , 182 (Tex. App.—Texarkana 2014, no pet.).
    8
    video interview, despite the argument of the State that the recording was admissible under the
    outcry statute, Article 38.072. 9 On appeal, the Texas Court of Criminal Appeals rejected that
    argument, ruling that “[t]o permit admission of a complainant’s videotaped statement under the
    more lenient outcry statute would undermine [Article 38.071’s] rigid unavailability requirement
    and its requirements aimed at guaranteeing the expertise and neutrality of the interviewer.” 
    Id. Because Jane
    testified at trial, neither of her recorded interviews was admissible at trial. 10
    Smith did not object to admission of the first audio/video-recorded interview. Smith argues that
    this was a reasonable strategy, as Jane did not, during that interview, allege conduct amounting
    to the indicted offense.      It was only in the second interview that Jane described Smith’s
    penetration of Jane’s mouth with his sexual organ. When the State offered this interview, Smith
    couched his objection to its introduction in this fashion: “(S)ubject to my prior objection I would
    object, it’s not proper redirect.” Unless he was referring to the pretrial hearing concerning the
    outcry witness, we locate no “prior objection” to which Smith may have been referring in that
    statement. As discussed above, the focus of the pretrial hearing was on Jane’s outcry statements
    to her mother; there was no mention of the admissibility of either of the recorded interviews or of
    the State’s compliance with Article 38.071. An argument that the second audio/video-recorded
    interview was not proper redirect examination is not the same objection as one claiming that the
    video recording is not admissible pursuant to Article 38.071. Although there may have been a
    valid argument for the exclusion of the audio/video recorded interview, that argument was not
    9
    Bays v. State, No. 06-10-00115-CR, 
    2011 WL 6091773
    , at *6 (Tex. App.—Texarkana Dec. 7, 2011) (mem. op., not
    designated for publication), aff’d, 
    396 S.W.3d 580
    (Tex. Crim. App. 2013).
    10
    But see TEX. R. EVID. 801(e)(1)(D) (statement not hearsay when (1) declarant testifies at trial or hearing,
    (2) declarant is subject to cross-examination, and (3) statement offered in accordance with Article 38.071).
    9
    presented to the trial court. As we have stated previously both in this opinion and elsewhere, an
    appellant’s point of error on appeal must be the same as the objection lodged in the trial court,
    lest the complaint not be preserved for our review. We overrule this point of error.
    We affirm the judgment of the trial court.
    Bailey C. Moseley
    Justice
    Date Submitted:       January 7, 2015
    Date Decided:         February 25, 2015
    Publish
    10