author: COCHRAN, J.,

text:
    Charles Eugene MARTINEZ, Appellant, v. The STATE of Texas.
    No. PD-1654-04.
    Court of Criminal Appeals of Texas.
    Nov. 2, 2005.

      Stanley G. Schneider, Houston, for Appellant.
    Jeri Yenne, Crim. Dist. Atty, David Bos-serman, Asst. Crim. Dist. Atty., Angleton, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the unanimous Court.

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 we granted review to determine if the testimony was properly admitted under Article 38.07 of the Texas Code of Criminal Procedure. Because the hearsay statements made by complainant’s mother were erroneously admitted, we reverse the judgment of the court of appeals and remand the case for that court to decide whether the admission of that hearsay was harmful error.

I.

Appellant was charged with three counts of indecency with Ashley, a child younger than seventeen years of age. At trial, the State’s evidence showed that appellant ran Mustang Christian Ranch, a work ranch for troubled teens. The State presented two witnesses to prove these indecency charges: Ashley’s mother and Ashley herself. According to the testimony of her mother, Ashley, who was thirteen years old, was sent to the Mustang Christian Ranch for a two-day period in January of 2001. Ashley’s mother testified that after Ashley came home from the ranch, she was “belligerent” and “angry.” The prosecutor then asked Ashley’s mother to repeat what Ashley had told her about appellant’s actions. Appellant promptly objected to the questioning of Ashley’s mother regarding these hearsay statements. While the trial judge allowed the prosecution to continue its line of questioning, he remarked that he would not allow the admission of hearsay statements. However, as the prosecutor continued to question Ashley’s mother regarding Ashley’s statements — and appellant continued to object to the admission of hearsay evidence — the court . began to overrule appellant’s objections and to allow Ashley’s mother to relate the out-of-court statements made by Ashley. Finally, the court instructed the jury that while hearsay testimony was generally inadmissible, it was admissible if the statement was the initial outcry of a victim of sexual molestation. The trial court then allowed Ashley’s mother to testify regarding the content of Ashley’s outcry statement to her. Appellant again objected, stating, “I do not believe it’s permitted under the rules, under the facts of this case, just for the record.” The trial court again ovei'-ruled appellant’s objection, and asked the witness to repeat what Ashley told her verbatim. Ashley’s mother did so:

She had said that he had come in while she was sleeping. I believe that was Saturday night. And had started running his hand up her blouse. She said she started coughing to try to wake somebody or try to get him to move. And that he finally did later on get up and go out of the x’oom. When I asked her if she knew it was him, she told me that there was a mirror that was standing there, and as he got up, she saw his reflection off of it.... She said the next day Mr. Martinez sent people out — the boys out to go to work. He said he wanted to talk to her about her behavior.... She told me that at that point she was asked to sit on the bed. Mr. Martinez sat on the bed with her, and asked her something to the effect of, would you let a boy do this, and he put his hand underneath her blouse.... And then she said that he got on top of her, or forced her to get on top of him. And she said that the whole time she was wanting to get up, but she couldn’t. He was holding her down and rubbing up against her.

Ashley took the stand immediately after her mother. Her in-court rendition of the events was very similar to the version that Ashley had told her mother. On direct examination, Ashley testified that during the first night of her stay, she awoke to find her “hand was rubbing on [appellant’s] leg,” and later that night she “felt him rubbing inside [her] shirt.” She said that, during the following afternoon, appellant again “put his fingers between the buttons” of her shirt, and asked her if she “would let a guy do that to [her].” Appellant then forced Ashley to lie on the bed, and he “got on top” of her and began “rubbing his genitalia against [her] genitalia.” She stated that appellant then left the room to answer the telephone, but returned and “grabbed [her] and put [her] on top of him.” Ashley stated that appellant continued to hold her on top of him and “move up and down” until he heard his wife walk in the door.

Based upon this evidence, the jury convicted appellant and sentenced him to ten years’ imprisonment. Appellant ai'gued on appeal that the trial court’s admission of Ashley’s hearsay statements made to her mother was improper under Article 38.072 of the Texas Code of Criminal Procedure because at the time of the events Ashley was thirteen years old, and Article 38.072 applies only to children twelve years of age or younger. The court of appeals held that, while appellant was coirect that the statements were inadmissible under Article 38.072, they were admissible under Ar-tide 38.07. Conducting that the trial court came to the right conclusion for the wrong reason, the court of appeals affirmed the trial court’s judgment.

In a dissent, Justice Vance stated that these hearsay statements were not admissible under either Article 38.072 or Article 38.07. He argued that Article 38.07 allows otherwise inadmissible hearsay testimony only when corroboration is required. Because Ashley was thirteen at the time of the offense, corroboration was not required, and therefore her mother’s hearsay statements were inadmissible. In a footnote, the dissent also pointed out that:

Even if corroboration were required [under Article 38.07], only the fact of the crime, and not its details, may be admitted under this exception. When properly admitted, the statement is not hearsay at all, since it is admitted not for the truth of the matter asserted, but only for the fact of its utterance. See Brown v. State, 649 S.W.2d 160, 162 (Tex.App.Austin 1983, no pet.).

Because of the confusion concerning the appropriate scope and application of Articles 38.072 and 38.07, we granted review.

II.

Article 38.072 is a rule of admissibility of hearsay evidence. Article 38.07 is a rule concerning sufficiency of the evidence. These statutes serve related but entirely distinct purposes. They are not interchangeable. Indeed, never the twain shall meet.

A. Article 38.072: Hearsay Statement of a Child Abuse Victim.

Hearsay statements, while generally inadmissible, may be admitted under specific conditions when public policy supports their use, and the circumstances surrounding the making of those statements pedigree their reliability. The enactment of Article 38.072 is a legislative determination that one such specific situation is the outcry statement of a child victim of sexual or physical abuse. Because it is often traumatic for children to testify in a courtroom setting, especially about sexual offenses committed against them, the Legislature enacted Article 38.072 to admit the testimony of the first adult a child confides in regarding the abuse. This witness may recite the child’s out-of-court statements concerning the offense, and that testimony is substantive evidence of the crime.

However, the use of such out-of-court statements is carefully limited. Only those statements made to a person eighteen years of age or older qualify, and then only if the child was twelve or younger when the abuse occurred. The State must provide adequate pretrial notice to the defendant of its intent to introduce the child outcry statement, and it must provide the name of the outcry witness and a summary of the hearsay statement. Furthermore, the trial court must first determine, outside the presence of the jury, that the statement is reliable “based on the time, content, and circumstances of the statement.” And the child must testify at trial or be available to testify.

Thus, Article 38.072 is a rule of evidence admissibility, allowing trial courts to admit some hearsay statements in the prosecution of certain offenses against children when those statements are made under the specified conditions. This statute serves the societal interests of promoting the fair prosecution of child abuse cases and of protecting children in court by allowing the admission of their casual “street corner” confidences to an adult as a supplement to (or sometimes even a substitute for) what may be halting, incoherent, or traumatic in-court testimony.

B. Article 38.07: Testimony in Corroboration of Victim of Sexual Offenses.

Article 38.07 differs from Article 38.072 in several essential respects. While Article 38.072 assists the prosecution by making certain hearsay outcry statements admissible, Article 38.07 protects the accused by creating a statutory corroboration requirement. Its purpose is almost exactly opposite to that of Article 38.072: this is a defendant-protecting statute, rather than a child-victim-protecting statute. It limits the circumstances in which the State may obtain a conviction for sexual offenses based on the testimony of a competent adult to situations in which: (1) the victim made an outcry within one year of the criminal act; or (2) there is other evidence that corroborates the victim’s testimony.

This statute may well be the vestigial tail of an outmoded era, but it had its genesis in early opinions from this Court. As long ago as 1896, this Court stated that, in rape cases,

All of the authorities teach that, where a case of this character rests solely upon the testimony of the prosecutrix, it is the duty of the jury to scrutinize and weigh her testimony very carefully; and in every case it is considered important as corroborative of her evidence that, soon after the alleged rape, she made complaint of the outrage.

By 1936, this judicial and societal scepti-cism — perhaps based on the old adage that “Hell hath no fury like a woman scorned” — had evolved into a real “rule”:

a conviction for rape by force will not be sustained on the uncorroborated testimony of a woman who waits too long before announcing her decision that she has been raped, unless the delay is supported by ... cogent reasons[.]

This rule apparently evolved as a reflection of “judicial concern that the victim had actually consented and thus was in some sense an accomplice or akin to one.”

In 1975, the Texas Legislature set out to abolish the judicially created corroboration requirement, but instead ended up enshrining it in Article 38.07. Nonetheless, the general legislative purpose, both in 1975 and in later amendments, was to make conviction in rape cases easier to obtain by reducing the impact of the traditional, judicially created corroboration requirement.

Thus, Article 38.07 requires the State to offer some corroborative evidence, such as eyewitness testimony, a defendant’s admissions, medical testimony, or other circumstantial proof, if the competent adult complainant in a sexual assault prosecution has not informed any adult, other than the defendant, of the alleged offense within a year of its commission. Of course, if the victim’s statements to that witness are otherwise admissible under the hearsay rule, then the witness may recount the victim’s outcry. But Article 38.07 is not itself an exception to the hearsay rule.

In sum, 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.

III.

In the present case, the trial court found that the testimony of Ashley’s mother reciting Ashley’s outcry statement was admissible under Article 38.072. There is no dispute that Ashiey was thirteen years old when the offense occurred and that Article 38.072 applies only if the victim is twelve 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 Ashley’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. First, because Ashley fits into one of the Article 38.07(b) exceptions—she was under seventeen at the time of the offense—the State was not required to prove that Ashley made any outcry statement. Therefore, Ashley’s mother’s statement was neither necessary nor admissible under Article 38.07. However, as the dissent noted, even if Article 38.07 did apply, this testimony went well beyond establishing that Ashley had in fact made an outcry statement to her mother regarding appellant’s criminal acts. Ashley’s mother recounted exactly what Ashley said to her.

The State argues that even if the testimony were inadmissible under Article 38.07, Ashley’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. Ashley’s mother testified that Ashley 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 Ashley “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 over 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 Ashley had no time or opportunity to calm herself and reflect upon the two-day-old events, we cannot conclude that her statements to her mother fit the excited utterance exception to the hearsay rule.

The State also argues that even if the statements should not have been admitted under Article 38.07, the appellant did not make the appropriate objection, and therefore waived his right to complain on appeal. However, the record reflects that appellant made numerous objections to the introduction of the outcry evidence. While it is true that appellant never stated the actual rule the judge was apparently using to allow the statements into evidence, his objections were certainly sufficient. Appellant objected to the testimony as hearsay; it was hearsay, and thus his objection was both proper and sufficient. If the testimony fit some exception or exemption to the hearsay rule (or if the evidence was not being offered for the truth of the matter asserted) the State, as the proponent of the evidence, had the burden of demonstrating the applicability of that exemption or exception.

Finally, the State argues that even if the testimony was improperly admitted, it was harmless error. Because the court of appeals found that the admission of the testimony was not error, it did not conduct a harm analysis. Despite the fact that both the appellant and the State discuss the issue of harm at length, that issue is not. before us. We will therefore defer to the court of appeals to determine whether the admission of the outcry statement was harmless error.

In sum,'the trial judge erred in admitting Ashley’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. Therefore, we reverse the judgment of the court of appeals, and remand the case to that court to conduct a harm analysis.

      . Martinez v. State, 10-03-00052-CR, 2004 WL 2066760, 2004 Tex.App. LEXIS 8359 (Tex.App.-Waco 2004) (not designated for publication).

      . Specifically, this Court granted review to resolve the following issues:
      1) Whether the court of appeals erred in holding that there is no error when an outcry statement admitted pursuant to Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp.2004), is admitted for the truth of the matter asserted in the statement; and 2) Whether "outcry” testimony is admissible pursuant to Tex.Code Crim. Proc. Ann. art. 38.07 (Vernon Supp.2004), when the State is not relying on the uncorroborated testimony of a person whose testimony is subject to Article 38.07.

      . Appellant was also charged with indecency with a child and injury to a child involving a second complainant. A majority of the evidence in the State's case related to the charges involving the second child, but the jury acquitted appellant of those charges; thus, we need not detail any of that evidence.

      . The trial court stated:
      Let me make sure the jury does understand this. You have commonsense. I have mentioned that, folks. You can't draw any implications from anything. You can listen to what the witness said. If there’s a conversation that’s related, you can consider that if I allow it. But you can’t presume something was said if you haven’t heard what was said unless there’s credible evidence before you indicating that. The reason I’m telling you this is the fact that this witness contacted her father, you can’t presume Ashley said anything specifically to this witness and make that presumption just because she contacted her father. If counsel wants to ask this witness what Ashley told her, and I let that come in, then you can consider that and give it whatever weight, if any, you choose. But don’t get caught up in trying to evaluate innuendos and implications.

      . Specifically, the trial court told the jury, Let me solve this problem. So the jury will understand this, ladies and gentlemen, and again, I'm trying to give you these instructions so you will understand that your job is to judge the credibility of the evidence. Under the law what a person says as related by another person is never admissible as a general rule because it’s hearsay because the other person is not present to be cross-examined to determine what their source of information was. So you can’t have one witness tell what another witness said. But in a molestation allegation, the law provides that the alleged victim, that the first person that alleged victim makes a statement to, qualifies as to what is called an ''outcry.” And the witness is allowed to relate what she was told by the purported victim. But they can't draw opinions or conclusions as to what that victim meant. They can only tell us what was said. So, Counsel, you can ask this witness what was said. But, ma’am, you can't give us opinions as to whether she was molested or whether she wasn’t or what happened. You can tell exactly what Ashley told you. Then this jury can judge the credibility of that. But you can’t give your opinions on what she told you because that's improper.

      . Section 2(a) of this provision states:
      This article applies only to statements that describe the alleged offense that:
      (1) were made by the child against whom the offense was allegedly committed; and
      (2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.
      Under Subsection (b), "[a] statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if” certain notice and procedural requirements are fulfilled and the child testifies or is available to testify at the proceeding.

      . Id., art. 38.072, § 1 ("This article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code, if committed against a child 12 years of age or younger: (1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses) ...”). Appellant also argued that the trial court improperly commented on the weight of the evidence. However, this issue is not before the court, and therefore not discussed.

      . Tex.Code Crim. Proc. art 38.07 is titled "Testimony in Corroboration of Victim of Sexual Offense,” and it reads:
      (a) A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred.
      (b) The requirement that the victim inform another person of an alleged offense does not apply if at the time of the alleged offense the victim was a person:
      (1) 17 years of age or younger;
      (2) 65 years of age or older; or
      (3) 18 years of age or older who by reason of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person's need for food, shelter, medical care, or protection from harm.

      . Martinez, 2004 WL 2066760 at *1, 2004 Tex.App. LEXIS 8359, at *2-3.

      . Id. at *1-2, 2004 Tex.App. LEXIS 8359, at *4 — 5 (Vance, L, dissenting).

      . Id. at *1 n. 2, 2004 Tex.App. LEXIS 8359, *5 n. 2.

      . See Carmell v. Texas, 529 U.S. 513, 518 n. 2, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (noting that "Texas courts treat Article 38.07 as a sufficiency of the evidence rule, rather than as a rule concerning the competency or admissibility of evidence”).

      . See House Committee on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 579, 69th Leg., R.S. (1985) (noting that "[generally, out-of-court statements offered at trial as proof of the matter asserted are inadmissible hearsay. Various exceptions to the hearsay rule exist when circumstances make the out-of-court statements reliable.”). House Bill 579 was enacted as TexCode Crim. Proc. art. 38.072.

      . See Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990) (noting that by enacting the "child outcry” hearsay exception in arti-ele 38.072, the Legislature "was obviously striking a balance between the general prohibition against hearsay and the specific societal desire to curb the sexual abuse of children”); see also Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991). In Rodriguez, this Court referred to HB 579 and its legislative history and stated,
      Under Art. 38.072, by both the terms of the statute and by the legislative history, outcry testimony admitted in compliance with Art. 38.072 is admitted as an exception to the hearsay rule, meaning it is considered substantive evidence, admissible for the truth of the matter asserted in the testimony. See generally HB 579 bill analysis, including "Background Information” and “Purpose” for Acts 1985, 69th Legislature; HB 579, Second Reading, May 9, 1985; HB 579, Third Reading, May 13, 1985.

      . See Floor Notes on Hearing by Criminal Jurisprudence Committee on House Bill 579 (69th Legislature, May 9, 1985). The bill analysis notes that supporters of the bill argued:
      It is often difficult for young children to repeat, in courtroom settings in front of total strangers, what they have previously told someone about an offense committed against them, especially in cases where they have been sexually abused. Because they usually make poor witnesses, their assailants are often freed. Under current law, the people whom these children trust and in whom they have confided in are barred from repeating what they have been told because it is considered hearsay. This bill would protect these young children from the trauma of having to describe and relive the offenses in trial testimony.

      . See Rodriguez, 819 S.W.2d at 873.

      . Tex.Code Crim. Proc. art. 38.072, §§ 1 & 2(a).

      . Id., § 2(b)(1).

      . Id., § 2(b)(2).

      . Id., § 2(b)(3).

      . The Confrontation Clause may act as a brake upon the admission of "testimonial” child outcry statements unless the child actually testifies or is presently unavailable but has been subject to cross-examination in a prior proceeding. See generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . Tex.Code Crim. Proc. art. 38.07.-

      . The statute specifically exempts any need to corroborate the testimony of (1) a child seventeen or under, (2) a person sixty-five or older, and (3) an adult "who by reason of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care, or protection from harm.” TexCode Crim. Proc. art. 38.07(b).

      . Price v. State, 36 Tex.Crim. 143, 145, 35 S.W. 988, 988 (1896); see also Pefferling v. State, 40 Tex. 486 (1874). In Pefferling, the Texas Supreme Court stated that, in rape prosecutions,
      the proof of the offense depends very frequently upon the testimony of the party charged to have been outraged, and in most cases, to a very great extent, upon the truth and credibility of her evidence, and unquestionably every reasonable test should be applied to her integrity, for the safety of the accused. Hence, the failure to make outcry, or call for aid when it might have been readily obtained, or within reasonable time to discover the offense after an opportunity to do so, are circumstances tending to discredit her testimony. But if the absence of these circumstances tend to raise the presumption that her testimony is false or feigned, proof of them repels the suspicion which their absence raises. It has, therefore, been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence ...

        Id. at 492.

      . Gray v. State, 130 Tex.Crim. 289, 293, 93 S.W.2d 1146, 1148 (1936).

      . 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.351 at 226 (2d ed.2001) (collecting cases). But as Professors Dix and Dawson note,
      The Texas case law does not, however, reflect careful and critical consideration of whether this [later, in-court testimony by a rape victim] is in fact so extraordinarily unreliable or of whether juries are so extraordinarily unable or disinclined to recognize this unreliability as to warrant the safeguards provided by the corroboration rule.

        Id. at 227.

      . See id. (noting that the proposal to abolish the corroboration requirement “was met with concern that such action would eviscerate the rights of those accused oí sexual offenses”).

      . Id.

      . In Nemecek v. State, 621 S.W.2d 404, 406-07 (Tex.Crim.App.1980) (panel op.), we adopted the same sufficiency standard to corroboration of rape victim testimony — evidence that tends to connect the defendant with the offense — that was already applied to the corroboration of accomplice-witness testimony. See Tex.Code Crim. Proc. art. 38.14. Professors Dix and Dawson, however, suggest that this standard is poorly tailored to the original judicial concern of corroborating the rape victim on the issue of consent. See Dix & Dawson, supra, § 31.353 at 232.

      . Unfortunately, Article 38.07 provides no explicit guidance as to what evidence should be admitted to prove that the victim made an outcry. As a result, there has been some inconsistency among the courts of appeals regarding exactly what testimony is admissible. Still, most courts agree that Article 38.07 may be used only to prove that an outcry was made. In fact, in Rodriguez v. State, 819 S.W.2d at 873, we stated as much while describing how outcry evidence should be used under Article 38.072: "the court of appeals treated the outcry testimony as proof only that [the] outciy had been made and not as evidence of the truth of the testimony, as though it was admitted pursuant to Article 38.07.” However, some courts allow admission of a verbatim recital of the victim’s entire outcry statement, followed by a limiting instruction, if so requested. See Heckathorne v. State, 697 S.W.2d 8 (Tex.App.-Houston [14th Dist.] 1985, pet. ref’d). The Heckathome court stated
      an outciy should not be admitted for its truth, but merely as evidence that the victim informed someone of the offense. The juiy was entitled to hear the complainant's statements alleging an offense, because these statements formed the basis upon which the charge was initiated. Had appellant requested a limiting instruction to the juiy to consider this testimony only for the narrow puipose that a statement was made and not for the statement’s truth, the trial judge would have been obliged to grant it.

        Id., at 12; see also Grogan v. State, 713 S.W.2d 705, 709-10 (Tex.App.-Dallas 1986, no pet). Other courts of appeals have been more circumspect concerning the nature and extent of the testimony admissible under the statute.' See Brown v. State, 649 S.W.2d 160, 162 (Tex.App.-Austin 1983, no pet.) (“The witness’ testimony is admissible to show that the complaint was made and the basic nature of the complaint. It is not admissible to prove the actual details of the sexual attack or even that the sexual attack actually occurred”).
      Further, some courts of appeals have held that, even when evidence of outcry is not required by Article 38.07, an outciy statement is admissible under the statute as otherwise relevant evidence. See Heckathorne, 697 S.W.2d at 13 (finding that although outciy evidence was not a "prerequisite to the prosecution” because victim was a child as defined by Article 38.07, evidence of outciy was still admissible under the statute). Other courts have held that such evidence is inadmissible under the statute. See Brown, 649 S.W.2d at 162 (“We believe in light of the fact that the State did not seek a conviction on the ‘uncorroborated testimony of the victim of the sexual offense’ ... [Article 38.07] is inapplicable. Accordingly, the [witness’s] testimony was improperly admitted.”).
      If the Legislature did intend Article 38.07 to allow the admission of detailed outcry statements, the statute would have a much more far-reaching effect than Article 38.072, because it would allow any outcry statement to come into evidence when the Article 38.07 criteria are met. Such a rule would be inconsistent with the evident purpose and history of Article 38.07.

      . While neither the trial judge nor the attorneys explicitly mentioned Article 38.072 during the trial, and it is unclear from the trial record whether the judge was referring to Article 38.072 or 38.07, both parties, as well as the court of appeals, concluded that the trial judge was referring to Article 38.072 to support his ruling admitting Ashley’s mother’s recital of her daughter’s outcry. We therefore accept this conclusion.

      . Martinez, 2004 WL 2066760 at *1, 2004 Tex.App. Lexis 8359 at *2.

      . Id. at *1, 2004 Tex.App. Lexis 8359 at at *3.

      . Id. at *1 n. 2, 2004 Tex.App. Lexis 8359 at at *5 n. 2.

      . TexR. Evid. 803(2).

      . See Zuliani v. State, 97 S.W.3d 589, 596 (Tex.Crim.App.2003).

      . While the State argues in its brief that Ashley’s “statement to her mother was approximately one day after she returned home from the Appellant’s ranch,” the trial record reflects that she did not make any outcry statement until the Wednesday morning following her return from the ranch on Sunday evening. Although the time lapse between the event and the statement is not dispositive of whether the statement fits within the excited utterance exception, it is a piece of evidence which may be considered. Zuliani, 97 S.W.3d at 595-96.

      . Zuliani, 97 S.W.3d at 595. The record does indicate that Ashley was "very upset,” but nothing more was stated regarding her state of mind when she told her mother about the incidents.

      . By our count, appellant objected to Ashley’s mother's testimony regarding the outcry statement five times before the trial court finally gave him a running objection to the testimony.

      . Again, we note that it is not completely clear to us what rule the judge was using to admit the statements. It could have been either article 38.07 or 38.072. However, none of the parties involved made any direct reference to any statutory provision on the record. Obviously the opponent of evidence cannot object on the basis that certain evidence is not admissible under a specific rule if the offering party and the trial court never state that the evidence is being admitted under a specific rule.

      . See Tex.R.App. P. 33.1(a). An objection is sufficient if it was timely made and "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context."

      . See Lankston v. State, 827 S.W.2d 907, 910 (Tex.Crim.App.1992) ("Identifying challenged evidence as hearsay or as calling for hearsay should be regarded by courts at all levels as a sufficiently specific objection, except under the most unusual circumstances.”) (citations omitted).

      . Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n. 5 (Tex.2004) ("The proponent of hearsay has the burden of showing that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evidence.”).


source: Caselaw Access Project

author: HERVEY, J., HOLCOMB, J.,

license: Public Domain

text:
    Ex parte Rodney Keith CASH, Applicant.
    No. AP-75108.
    Court of Criminal Appeals of Texas.
    Nov. 16, 2005.
    Dionne S. Press, Houston, for appellant.
    Baldwin Chin, Asst. D.A., Houston, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, PJ., MEYERS, KEASLER and COCHRAN, JJ., joined.

The issue in this case is whether applicant’s trial counsel was ineffective for filing an unsworn motion for probation at applicant’s murder trial. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (generally requiring a defendant to prove deficient attorney performance and prejudice in establishing an ineffective assistance of counsel claim); but see Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Cr.App.1999) (questioning whether Strickland even applies to attorney performance at the punishment phase of a noncapital sentencing proceeding). We decide that applicant has not proved his ineffective assistance of counsel claim.

Applicant was certified to stand trial as an adult for a murder that he committed when he was 15 years old. A jury convicted applicant of this offense and sentenced him as a first-degree felon to 40 years in prison after rejecting his claim that he murdered the victim under the immediate influence of sudden passion, a second-degree felony. See Tex. Pen.Code, § 19.02(d).

Before trial, applicant’s trial counsel timely filed an unsworn motion for community supervision (probation). This un-sworn motion stated that applicant was not a convicted felon. Applicant’s trial counsel also requested a jury instruction on probation at the punishment phase of applicant’s murder trial. The trial court denied this requested jury instruction, not because appellant’s motion for probation was unsworn, but because applicant had a previous juvenile delinquency adjudication for an unauthorized use of a vehicle which the trial court believed made applicant ineligible for probation. Applicant complained of this ruling on direct appeal, but the Court of Appeals declined to review the merits of this ruling because applicant’s motion for probation was unsworn. See Cash v. State, No. 14-00-00308-CR slip op. at 3-4, 2001 WL 491061 (Tex.App.Houston [14th Dist.], May 10, 2001, pet. ref d) (not designated for publication) (applicant’s unsworn motion for probation faded to preserve for appellate review the trial court’s ruling that applicant was ineligible for probation).

In this proceeding, the convicting court found that applicant’s trial counsel performed deficiently by filing an unsworn motion for probation which resulted in the Court of Appeals not reviewing the merits of the trial court’s ruling that applicant was ineligible for probation. The convicting court also found that, had the Court of Appeals reviewed the merits of this ruling, there is a reasonable probability that it would have reversed applicant’s sentence and remanded the case for a new punishment hearing. We filed and set this case to decide “whether counsel was ineffective for failing to properly file a motion for probation prior to trial, and whether Applicant was entitled to consideration for probation had the motion been filed.”

We decide only that applicant has failed to establish prejudice from any deficient performance by his trial counsel making it unnecessary to decide the latter question of whether applicant was entitled to consideration for probation had the motion been properly filed. See Footnote 4. The familiar Strickland standard for establishing prejudice requires applicant to prove that there is a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would have been different. See Strickland 466 U.S. at 694, 104 S.Ct. 2052. Applicant alleges that he was prejudiced in two ways from trial counsel’s filing an unsworn motion for probation. He alleges that his sentencing jury was prevented from considering probation during its deliberations. He also alleges that the Court of Appeals did not review the merits of the trial court’s ruling that applicant was ineligible for probation because of his prior juvenile delinquency adjudication for the unauthorized use of a motor vehicle offense.

Applicant’s allegations of prejudice in this case do not address the central issue of prejudice under Strickland, which is whether there is a reasonable probability that applicant’s sentencing jury would have recommended probation had the issue been submitted to it. See Woodford v. Visciotti, 537 U.S. 19, 22-23, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (when it is alleged that counsel performed deficiently at the punishment phase of trial, defendant must prove that there is a reasonable probability that, but for counsel’s errors, the sentencing jury would have reached a more favorable penalty-phase verdict). Such a finding in this case would be based on pure conjecture and speculation. See Strick land, 466 U.S. at 693, 104 S.Ct. 2052 (not enough for a defendant to show that counsel’s errors had some conceivable effect on the outcome of the proceeding). This is especially true when the record reflects that the jury sentenced applicant to 40 years in prison, which is considerably more than 10 years in prison. See Article 42.12, § 4(d)(1) (defendant not eligible for probation if jury sentences him to more than 10 years in prison); Mercado, 615 S.W.2d at 228 (rejecting defendant’s ineffective assistance of counsel claim based on counsel’s failure to file probation motion because jury would not have considered this motion in light of its sentence of 17 years).

Habeas corpus relief is denied.

HOLCOMB, J., filed a dissenting opinion, in which PRICE, WOMACK, and JOHNSON J.J., joined.

HOLCOMB, J.,

filed a dissenting opinion in which PRICE, WOMACK and JOHNSON, JJ., joined.

I respectfully dissent. The majority denies habeas relief because applicant did not show that he was prejudiced under the second prong of Strickland. I would hold that applicant met the first prong of Strickland (that trial counsel was deficient) and also its second prong, i.e., “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052.

I. Deficient Performance

Because the majority does not hold whether' counsel was deficient, i.e., whether “counsel’s representation fell below an objective standard of reasonableness,” id. at 688-89,104 S.Ct. 2052,1 find it unnecessary to discuss it at great length, other than to say that we have held, in a variety of contexts, that failing to follow clear procedural rules will usually be considered objectively unreasonable representation. See e.g., Ex parte Coy, 909 S.W.2d 927, 928 (Tex.Crim.App.1995); Ex parte Dietzman, 790 S.W.2d 305 (Tex.Crim.App.1990); cf. Hernandez v. State, 726 S.W.2d 53, 58 (Tex.Crim.App.1986) (rejecting applicant’s claim that his lawyer was unfamiliar with the rules of evidence).

I would add, however, that in my view, the motion for community supervision was adequately verified. The “defect” in the motion, according to the majority is that the signature line where applicant’s name should appear is blank on the affidavit attached to the motion; however, applicant’s signature appears on the face of the motion. But more importantly, the affidavit is subscribed' by the trial court clerk, and he or she avers that applicant appeared and swore to the facts contained in the motion. This is and should be sufficient; otherwise, we are elevating form over content.

II. Prejudice

When evaluating whether an applicant was prejudiced by the unprofessional errors of his attorney, a habeas court may not apply an outcome determinative test. Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052. That is, we must not place a burden on the applicant to show that he was more likely to have prevailed than not if his lawyer had not committed the unprofessional errors. See id. This standard is inappropriate because the defendant suffers from “the absence of one of the crucial assurances that the result of the proceeding is reliable.” Id.

After a careful review of the appellate and habeas records, it appears to me that the majority placed a burden of proof upon the applicant to show that the evidence preponderates in his favor; namely, that applicant did not demonstrate that he would have received probation or a lesser sentence had the jury had the option of granting community supervision. Specifically, the majority concludes that “the central issue of prejudice under Strickland, is whether there is a reasonable probability that applicant’s sentencing jury would have recommended probation had the issue been submitted to it.” (citing Woodford v. Visciotti 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)). Setting aside for the moment that Visciotti is plainly distinguishable, it is also plain that, according to the majority’s holding today, applicant would have to demonstrate that there was a reasonable probability that the jury would have recommended probation or a lesser sentence in order to be entitled to relief. This is, in the plain words of Strickland, inappropriate — the holding here is nothing more than an application of the outcome determinative standard prohibited by Strickland.

Now, back to Woodford v. Visciotti. Without more than a parenthetical summary of Visciotti, the majority denies relief because applicant must show (but did not show) that the jury would have recommended a more favorable sentence. However, Visciotti does not set forth, as a substantive rule, that second-prong Strickland error during sentencing must be such that the jury would have given the defendant a lesser sentence. Rather, the Supreme Court in Visciotti simply concluded, as it has many times, that federal habeas review of state-court habeas proceedings must focus on whether the state court’s judgment was an unreasonable — not just incorrect — application of federal law. Deciding that the Ninth Circuit had substituted its judgment for the state habeas court, the Supreme Court reversed, noting it may have agreed with either the state or the federal court’s interpretation of whether Visciotti was prejudiced by his lawyer’s failure to introduce mitigating evidence, but further held that the federal court’s duty is not to consider whether the state-court decision is incorrect, but rather, if it involved an unreasonable application of Strickland. As such, Visciotti is not precedent as substantive law to be applied by the state habeas court; instead, it is a decision which limits, pursuant to statute, the federal court’s right to reverse a state court’s ruling on habeas corpus relief.

After explaining that relief in this case would be based on “pure conjecture and speculation,” the majority cites this Court’s “highly questionable” pre-Strickland holding in Mercado v. State, 615 S.W.2d at 228, to deny relief. See GeoRGE E. Dix & RobeRT 0. Dawson, 43A Texas Practice and PROCEDURE § 89.22 (2001) [hereinafter Dix & Dawson]. Mercado was charged with possession of heroin, a jury found him guilty, and assessed punishment at 17 years imprisonment. 615 S.W.2d at 226. In a motion for new trial, Mercado complained that he received ineffective assistance of counsel because his lawyer never told him that he was eligible for an instruction on probation and his lawyer did not file a motion for probation. At the hearing on the motion for new trial, trial counsel testified that he indeed failed to file the motion or inform Mercado that he was entitled to the instruction on probation. Importantly, however, trial counsel testified (unlike trial counsel here; see Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052) that his decision not to submit the issue of probation to the jury was one of trial strategy; i.e., that such a request could be viewed by the jury as a partial admission of guilt. 615 S.W.2d at 227.

As a pre-Strickland case, the Mercado panel devoted most of the opinion to hashing out the proper standard of review, and concluded in two sentences (the latter of which is an alternative holding) that Mercado was not entitled to relief because (1) there was no evidence admitted at the motion for new trial or in the record to show that Mercado was eligible for probation, and (2) “[fjurther, under the penalty assessed by the jury under the facts of the case, the jury would not have reached the consideration of any motion for probation, even if one had been filed.” Id. at 228.

Thus, the “rule” in Mercado is most certainly dicta, as it was clearly an alternative holding to the conclusion that Mercado had not shown he was entitled to probation in the first place. But the dicta in Mercado has, sadly, morphed into some sort of “rule” which has become to be known as such — when a jury assesses punishment at more than ten years, the improper failure to submit probation as a punishment option cannot be reversible error because the jury would not have reached the consideration of a motion for probation. See Resendez v. State, 2005 WL 1025375 *1, 2005 TexApp. Lexis 3340 *3-1 (Tex.App.-San Antonio 2005, no pet.) (not designated for publication); Dix & Dawson, 43 Texas PRACTICE and PROCEDURE § 36.58. Indeed, this “rule” is no less speculative or based on conjecture than a conclusion that the lack of a probation instruction did not prejudice applicant. Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.1992) (per curiam).

Simply put, there is not a sufficiently strong logical connection between the majority’s conclusion (that the jury would not have given a more lenient sentence had it had the probation option before it) and the premise (the jury assessed a 40-year sentence). See Dix & Dawson, 43A Texas PRACTICE AND PROCEDURE § 39.22 (2001) (if defendant was entitled to have issue of probation submitted to the jury, but it was not, that would surely affect the jury’s punishment deliberations because it would not be considering the full range of punishment applicable to the case).

Alas, my belief that Mercado’s dicta is unsound because it is based on pure conjecture and speculation, has not swayed a majority of the judges of this Court to overrule this mischievous precedent, but my voice is not without strong allies. Namely, Professors Dix and Dawson have decried the “rule” in Mercado, and more eloquently than I, explain its fallacy as follows:

[The analysis in Mercado ] seems incomplete because failure to charge on probation may well affect the length of the sentence the jury ultimately gives because failure to charge on probation gives a false picture of the seriousness of the offense. Further, the jury is instructed that it must assess a punishment of 10 years or less for the defendant to be eligible for probation. [Tex.Code CRIm. Proc. Ann. art. 42.12 § 4(d)(1) ]. It would not be unusual for a jury to assess 10 years and give probation, when that is an option, but to assess more than 10 years in the absence of the option of probation. , In other words, the fact that without a probation option the jury assessed more than 10 years does not mean that it would have rejected probation had that option been made available to it.

Dix & Dawson, 43 Texas Practice and Procedure § 36.58 (citing Snow v. State, 697 S.W.2d 663, 665 (Tex.App.-Houston [1st Dist.] 1985)).

In Snow, the court of appeals explained the “gravitational influence” that the probation option may have had on a jury’s ultimate verdict:

[TJhere is a reasonable probability that a jury instruction concerning probation would have altered the outcome of the punishment by influencing the jury to seriously consider lower sentence that 10 years imprisonment. The right to be considered for probation is valuable, even if probation is not given, because the jury instruction concerning probation forcefully directs the jury’s attention to the lowest punishment allowed by law.

I would “overrule” Mercado and follow Snow. See 697 S.W.2d at 665.

The majority cannot say with any assurance that the result of the proceeding was reliable when admitting that the jury did not have before it the proper range of punishment. See Strickland, 466 U.S. at 668, 104 S.Ct. 2052. Nor does the majority dispute that the proper range of punishment in this case would have included the option of community supervision. See Maj. Op. at 817 & n. 4. Applicant was fifteen years old at the time of the present offense, and the record reflects that he had one prior offense for unauthorized use of a vehicle, committed when he was fourteen years old. This prior offense would not prevent the trial court from granting a jury charge on community supervision. See Tex. Fam.Code Ann. § 51.13(d). Therefore, there was no legal bar to submitting the question of probation to the jury, and the trial court should have done so.

We have repeatedly held that any punishment selected by the jury must fit within the statutory range of punishment. Cartwright v. State, 833 S.W.2d 134, 135 (Tex.Crim.App.1992); Stein v. State, 515 S.W.2d 104, 108 (Tex.Crim.App.1974); see also Gonzales v. State, 672 S.W.2d 618, 620 (Tex.App.-Amarillo 1984); Dix & Dawson, 43 Texas PRACTICE and PROCeduee § 36.53. As Professors Dix and Dawson opined, “it seems abundantly clear that the mere fact that the jury selected a punishment within the correct range does not mean automatically that the defendant was not harmed by the mistaken instruction.” Drx & Dawson, 43 Texas Practioe and Prooedure § 36.53. A jury is likely to attempt to assess the culpability of the defendant’s offense within a continuum of severity as reflected in the range of punishment it was erroneously given by the trial court. Id. Therefore, if the range of punishment is overstated, that would tend to cause the jury to select a more severe sentence than it might have selected had it been correctly instructed. Id. (citing Uribe v. State, 688 S.W.2d 534, 538 (Tex.Crim.App.1985), overruled on other grounds by Cartwright, 833 S.W.2d at 135).

We discussed an analogous problem in Uribe v. State, saying that when the jury is given a punishment greater than what the law allows, “[t]he court’s misdirection thus harms the defendant because the jury is instructed to consider his offense as more serious than the law grades it.” 688 S.W.2d at 538. Similarly, since applicant’s jury did not receive a charge with the proper range of punishment, and instead received one that erroneously failed to show that the law would have allowed for probation, applicant was surely harmed because it likely caused the jury to consider his crime far more serious than the law graded it. See id. In sum, the fact that applicant suffered from the absence of the minimum punishment allowed by law, applicant sufficiently showed that the outcome of the case was undermined. See Strickland, 466 U.S. at 696, 104 S.Ct. 2052.

III. Conclusion

We must always be mindful that when reviewing claims of ineffective assistance of counsel, our ultimate duty is to insure the “fundamental fairness of the proceeding.” See id. The process here has not been fair as contemplated by Strickland. See id. Moreover, the record reflects an unreliable result due to a breakdown in the adversarial process, which had more than a mere conceivable affect on the outcome of the proceeding. See id. at 693, 104 S.Ct. 2052. Because I do not believe that the proceedings produced a “just result” in this case, I respectfully dissent. See id. at 696, 104 S.Ct. 2052; Vasquez v. State, 830 S.W.2d at 951.

      . As a first-degree felon, applicant faced a punishment range of five to 99 years or life in prison with a possible fine not to exceed $10,000. See Tex. Pen.Code, § 12.32. The punishment range for a second degree felony is two to twenty years in prison with a possible fine not to exceed $10,000. See Tex. Pen.Code, § 12.33.

      . Applicant’s brief accurately describes this motion as follows:
      More specifically, trial counsel failed to file a sworn motion for probation with the trial court prior to proceeding to trial. Defense counsel filed a pre-trial motion for community supervision, but did not have Applicant swear to its contents. The "Application for Community Supervision from the Jury” consisted of three pages. The affidavit was attached as the third page of the three-page document (C.R.-51-53). Applicant’s signature appears nowhere on the affidavit page of the motion, but rather appears only on the first page of the motion next to an "X” (C.R.-51). Moreover, a mark was made above the line designated for the notary’s signature, but it does not bear the notary’s seal. Additionally the term "Notary Public” has been stricken and the document was dated January 18, 1999, eight months prior to Applicant’s indictment date of September 13, 1999 (C.R.-53).
      (Emphasis in Original).

      . Article 42.12, § 4(e), TexCode Crim. Proc., provides that:
      A defendant is eligible for community supervision under this section only if before the trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.

      . But see Tex Fam.Code, § 51.13(d) (providing, in relevant part, that a juvenile adjudication for delinquent conduct that constitutes a felony offense is a final felony conviction only for habitual offender sentencing purposes).

      . The Court of Appeals also decided that applicant suffered no harm from the trial court’s failure to submit a jury instruction on probation because the jury sentenced applicant to more than 10 years in prison. See Cash, slip op. at 4 — 5 n. 7; see also Article 42.12, § 4(d)(1), Tex.Code Crim. Proc., (defendant not eligible for probation if jury sentences him to more than 10 years in prison); Mercado v. State, 615 S.W.2d 225, 228 (Tex.Cr.App.1981) (rejecting defendant’s ineffective assistance of counsel claim based on counsel’s failure to file probation motion because jury would not have considered this motion in light of its sentence of 17 years).

      . See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies, and, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed).

      . We note that the trial court would not have submitted trial counsel's requested jury instruction on probation even had trial counsel filed a sworn motion for probation.

      . Applicant apparently agrees with the convicting court’s finding that the result of the proceeding in the Court of Appeals would have been different had applicant’s counsel filed a sworn motion for probation.

      . If no such probability exists, we do not see the point under Strickland of addressing whether the Court of Appeals would have reversed applicant's sentence and remanded the case for a new punishment hearing. In any event, applicant has not established that there is a reasonable probability that, had trial counsel filed a sworn motion for probation thereby requiring the Court of Appeals to address the merits of the issue of applicant's eligibility for probation, the result of the proceeding in the Court of Appeals would have been different. The Court of Appeals also decided that applicant suffered no harm from the trial court's failure to submit a jury instruction on probation. See Cash, slip op. at 4-5 n. 7 (deciding that "even if it were error for the trial court to deny [applicant's] request for community supervision, no harm occurred as a result thereof").

      . Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . The State acted inconsistently by complaining on direct appeal that the motion was not properly verified, and then shifted positions on habeas review (where such an argument would be grounds for relief) and argued that the motion was indeed properly verified. Obviously then, the State took the mutually exclusive positions when it would be favorable to itself. This created a fundamentally unfair situation for both applicant and his lawyer. See e.g., New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) ("Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position....”); Tex.Code Crim. Proc. Ann. art. 2.01 (It shall be the primary duty of all prosecuting attorneys not to convict but to see that justice is done).

      . But even though I believe that trial counsel should not be found deficient for failing to insure that the motion for community supervision was verified properly, applicant’s argument that trial counsel was deficient for failing to put on any evidence to show that applicant was indeed entitled to probation is a more compelling argument. See Tex.Code Crim. Proc. Ann. art 42.12 § 4(e); see e.g., Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App. [Panel Op.] 1981).

      . While it is hard to imagine how applicant could ever meet such a burden as set forth by the majority today, see Tex.R. Evid. 606(b), Strickland clearly states that the applicant need not do so to be entitled to habeas relief. Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.”).

      . The majority concludes that the basis for granting relief in this case would amount to “conjecture and speculation.” Webster defines "conjecture” as "a conclusion deduced by surmise or guesswork." Webster's Ninth New Collegiate Dictionary 277 (1983). "Speculate” means "to take to be true on the basis of insufficient evidence.” Id. at 1133. Would it not though be equally true that the majority’s holding today, and the reasoning in Mercado, are also based on pure conjecture and speculation?

      . The "Modus Ponens” reasoning of Mercado goes something like this:
      If "P” then "Q”.
      "P"; Therefore "Q”
      Assign "the jury gave a forty-year sentence in this case without the probation option” to P; Assign "the jury would not have considered a lighter sentence even with probation option” to Q. The equation we end up with is this:
      If the applicant received a forty-year sentence, then the jury would not have considered probation or a lighter sentence. Applicant received a forty-year sentence; therefore, the jury would not have considered probation or a lighter sentence.
      This reasoning merely affirms the consequence, which is a non-sequitur (“it does not follow”) and faulty logic. See A.R. Lacey. A Dictionary of Philosophy (3d ed.1996). By plugging other facts into the model, the faulty logic is easier to see:
      If the streets are wet, then it’s raining. The streets are wet; therefore, it's raining.
      I would solidly renounce Mercado.

      . "[A] a court should presume ... that the judge or jury acted according to law.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. I find footnote 6 of the majority opinion worthy of comment. Strickland instructs that we must presume the judge and the jury acted in accordance with the law. As the majority has nearly conceded, applicant was entitled to the probation instruction. Accordingly, whether the trial court would have committed error anyway is not a proper consideration and should not be a factor in this Court's reasoning upon applicant’s ineffective assistance of counsel claim. This improper consideration further indicates a fundamentally unfair result in this case. See id. at 696, 104 S.Ct. 2052.

      . Errors that undermine confidence in the fundamental fairness of the proceeding justify habeas relief. See, e.g., Teague v. Lane, 489 U.S. 288, 311-314, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).


author: MEYERS, J.,

text:
    Jamie Lee BLEDSOE, Appellant v. The STATE of Texas.
    No. PD-300-04.
    Court of Criminal Appeals of Texas.
    Nov. 16, 2005.
    Jeffrey D. Adams, Center, for appellant.
    Patrice Savage, Special Prosecutor, Carthage, Matthew Paul, State’s Attorney, Austin, for state.
   MEYERS, J.,

delivered the opinion for a unanimous Court.

Appellant was charged with and convicted of the offense of escape. A jury sentenced him to fifteen years’ imprisonment in the Texas Department of Criminal Justice-institutional division, and assessed a $5,000.00 fine. Appellant’s counsel filed an Anders brief with the court of appeals and moved to withdraw from the case. Appellant also filed a brief with the court of appeals in response to the Anders brief. In a memorandum opinion, the court of appeals stated that no reversible error existed and affirmed the conviction. We affirm the decision of the court of appeals.

I. Appellate History and Grounds for Review

Appellant was formally sentenced on July 27, 2000, and timely filed his notice of appeal. Appellant’s counsel subsequently filed an Anders brief on December 4, 2000. The Twelfth Court of Appeals handed down its opinion on May 8, 2002, in which it considered the ineffective assistance of counsel claims listed in Appellant’s counsel’s Anders brief and determined that the record did not support the argument that Appellant received ineffective assistance of counsel. Appellant’s pro se response was not considered because it was not based on the record. The court affirmed Appellant’s conviction and granted the motion of Appellant’s counsel to withdraw. Appellant then filed a motion for rehearing, which the court of appeals granted upon finding that Appellant did not receive a copy of counsel’s Anders brief or the trial record, and therefore was unable to prepare a satisfactory pro se response. Appellant’s newly appointed counsel then filed an Anders brief, to which Appellant filed a pro se response.

The court of appeals issued a memorandum opinion on November 19, 2003, which we reproduce in its entirety as follows:

MEMORANDUM OPINION
Jamie Lee Bledsoe (“Appellant”) was convicted of escape and was sentenced to fifteen years of imprisonment and fined $5,000.00. Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant also filed a brief pro se, asserting legal and factual insufficiency of the evidence, ineffective assistance of counsel, charge error, and denial of his right to confront witnesses as grounds for reversing his conviction. We affirm.
BACKGROUND
Appellant was charged by indictment with the offense of escape. On June 26, 2000, his case was tried to a jury and a guilty verdict was rendered on June 27. Appellant elected to have the jury assess punishment and was sentenced to fifteen years of imprisonment and a $5,000.00 fine. Appellant timely filed his notice of appeal on July 27.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v. State, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. He further relates that he is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, Appellant’s brief presents a chronological summation of the procedural history of the case, and further states that Appellant’s counsel is unable to raise any arguable issues for appeal. We have likewise reviewed the record for reversible error and have found none.
As required by Stafford v. State, Appellant’s counsel has moved for leave to withdraw. We carried the motion for consideration with the merits of the appeal. Having done so and finding no reversible error, Appellant counsel’s motion for leave to withdraw is hereby granted and the trial court’s judgment is affirmed.

Bledsoe v. State, No. 12-00-00271-CR, 2003 WL 22724627, 2003 Tex.App. LEXIS 9860 (Tex.App.-Tyler November 19, 2003) (not designated for publication) (citations omitted).

We granted review on two grounds. First, did the court of appeals err in handing down a memorandum opinion that fails to address any of Appellant’s appellate issues for final disposition? And second, did the court of appeals err in declining to review the sufficiency of evidence claim raised by Appellant?

Appellant argues that the memorandum opinion of the court of appeals is in violation of Texas Rule of Appellate Procedure 47.1, which requires that a memorandum opinion address every issue raised and necessary to the final disposition of the case. He further asserts that without an explanation for the court’s affirmation of his conviction, he is prevented from filing a proper petition for discretionary review with this Court on the merits of his appeal.

The State contends that the court of appeals did not err in failing to address the Appellant’s arguments because in Texas, defendants are not entitled to “dual” or “hybrid” representation.

II. Analysis

Texas Rule of Appellate Procedure 47.1 sets out the requirements for appellate court opinions. It states that a court of appeals “must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.” If the issues are settled, the court may issue a memorandum opinion, which rule 47.1 states should be “no longer than necessary to advise the parties of the court’s decision and the basic reasons for it.”

In this case, Appellant’s counsel submitted an Anders brief, pursuant to the United States Supreme Court’s decision in Anders v. California. Appellant’s counsel requested to withdraw from the case because he believed that after a thorough review of the record, he could find no error to raise any arguable issues for appeal. Appellant also submitted a pro se brief to the court. In it, he raised several points of error, including legal and factual insufficiency of the evidence, charge error, denial of the right to confront witnesses, and ineffective assistance of counsel. The court of appeals mentioned the claims Appellant brought forth in his pro se brief and stated that it reviewed the record and found no reversible error. Appellant argues that this falls short of the requirements of Texas Rule of Appellate Procedure 47.1, which states that even a memorandum opinion must advise the respective parties not only of the court’s decision, but also the basic reasons for it. Due to the nature of Anders briefs, we disagree with Appellant that the court of appeals should have addressed the merits of the issues raised.

When faced with an Anders brief and if a later pro se brief is filed, the court of appeals has two choices. It may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Anders, 386 U.S. at 744, 87 S.Ct. 1396. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Stafford, 813 S.W.2d at 511. Only after the issues have been briefed by new counsel may the court of appeals address the merits of the issues raised. Id. at 509-10 (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). If the court of appeals were to review the case and issue an opinion which addressed and rejected the merits raised in a pro se response to an Anders brief, then Appellant would be deprived of the meaningful assistance of counsel. Furthermore, this does not deprive Appellant of his right to file a petition for discretionary review. Appellant is free to file a petition for discretionary review with this Court claiming that the court of appeals erred in holding that there were no arguable grounds for review.

The State argues that the court of appeals was not required to consider or address any of Appellant’s arguments, because Appellant’s counsel had already filed a brief, and in the State of Texas, Appellants are not entitled to “hybrid”- or “dual” representation. For the reasons stated above, we agree that the court of appeals was not required to address Appellant’s claims. We disagree with the State’s argument that Appellant’s pro se response to the Anders brief constituted hybrid or dual representation. The State cites two cases for this proposition, Rudd v. State, 616 5.W.2d 623 (Tex.Crim.App. [Panel op.] 1981), and Landers v. State, 550 S.W.2d 272 (Tex.Crim.App.1977). The State’s reliance on these cases, however, is misplaced.

Landers involved a trial in which the defendant wanted to represent himself some of the time, and wanted to have counsel represent him for the remainder of the time. We held that an accused does not have the right to be both represented by counsel and also propound his own questions to witnesses and make jury argument on his own behalf. In Rudd, the appellant’s counsel filed a brief and, in addition to counsel’s brief, appellant wanted the court to consider a pro se brief he had written. Both of these cases are distinguishable from the present situation. Under Anders, an appellant has a right to review the Anders brief that counsel submitted and to respond to it on his own. In the case before us, the pro se brief that Appellant filed in response to his counsel’s filing of an Anders brief is not dual representation as seen in the Rudd and Landers cases. In Rudd, the appellant wished to have two separate briefs; his counsel had already filed a brief raising arguable issues to the court, and he wished to file an additional pro se brief. In this case, Appellant’s brief is a response to his counsel attempting to withdraw from his case.

In his second ground for review, Appellant asserts that the court of appeals erred in declining to review his sufficiency of the evidence claims. As stated above, the court of appeals is not required to review the merits of each claim raised in an An-ders brief or a pro se response. The court’s duty is to determine whether there are any arguable grounds and if there are, to remand to the trial court so that new counsel may be appointed to brief the issues.

III. Conclusion

Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1. The decision of the court of appeals is affirmed.

      . Tex. Pen.Code section 38.06.

        . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Bledsoe v. State, No. 12-00-00271-CR, 2002 WL 962251, 2002 Tex.App. LEXIS 3287 (Tex. App.-Tyler May 8, 2002) (not designated for publication).

      . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App.1991) (quoting Anders v. California: "A copy of counsel’s brief should be furnished the indigent and time allowed for him to raise any points that he chooses; the court, not counsel, then proceeds, after a full examination of the proceedings, to decide whether the case is wholly frivolous.”).

      . Bledsoe v. State, No. 12-00-00271-CR, 2003 WL 22724627, 2003 Tex.App. LEXIS 9860 (Tex.App.-Tyler November 19, 2003) (not designated for publication).

      . While an appellant has a right to file a petition for discretionary review with this Court, review is not a matter of right. See Texas Rule of Appellate Procedure 66.2; Texas Constitution Article V, § 5(b).


author: KELLER, P.J.,

text:
    Ex parte Charles Edward WRIGLEY, Applicant.
    No. AP-75,169.
    Court of Criminal Appeals of Texas.
    Nov. 16, 2005.

      Charles Edward Wrigley, Teague, pro se.
    Melinda Mayo, Amarillo, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KELLER, P.J.,

delivered the opinion of the Court

in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

This case presents the novel issue of whether an original sentence is completed and a stacked sentence begins to run at the time the defendant makes parole on the original offense, if his parole is revoked before the trial court sentences the defendant for the stacked offense. We hold that it does not.

I. FACTS

Applicant was sentenced to a twenty-year term in the Institutional Division of the Texas Department of Criminal Justice (TDCJ) for possession of a controlled substance, committed in 1991. On August 11, 1992, while in the custody of TDCJ, applicant assaulted a prisoner. On November 12, 1993, while awaiting trial on the aggravated assault, applicant was paroled on the possession offense. While he was on parole, he was arrested on June 22,1994, for possession of a controlled substance and pleaded guilty to the offense, for which he was sentenced to twenty-five years in TDCJ. His parole on the first possession offense was subsequently revoked.

On May 23, 1996, applicant pleaded guilty to the aggravated assault offense pursuant to a plea bargain for a term of seven years confinement in TDCJ. The trial court ordered the seven-year sentence to run consecutive to the initial twenty-year sentence applicant had received for the first possession offense. The judgment indicates applicant was to receive pre-sentence time credit from November 12,1993, on the seven-year sentence.

Applicant alleges that the seven-year sentence was to run from November 12, 1993, the same date on which he was paroled for the first possession offense, so that he would have discharged the seven-year sentence on November 12, 2000. By applicant’s calculation, he was entitled to mandatory release on November 12, 2000, on the twenty-year sentence .and to mandatory release on July 18, 2004, on the twenty-five year sentence. Applicant contends that he has been detained past his mandatory release date because TDCJ improperly stacked the seven-year sentence on the twenty-five year sentence in violation of the plea agreement.

The State agrees that applicant’s seven-year sentence is to run consecutive only to the twenty-year sentence for the first possession offense. In its response, the State claims that TDCJ’s records correctly reflect the trial court’s order to stack the seven-year sentence on the twenty-year sentence. Thus, TDCJ did not improperly cumulate the seven-year and twenty-five year sentences, and applicant’s plea agreement has not been violated.

We begin by analyzing the applicable law.

II. ANALYSIS

A. Article 42.08(b)

Applicant contends that a stacked sentence begins to run on the date an inmate makes parole on the original offense, even if his parole is revoked before the court sentences him for the stacked offense. If applicant is correct, his seven-year stacked sentence began to run on November 12, 1993, the date he made parole on the original possession offense. The trial court ordered applicant’s seven-year sentence for aggravated assault, committed while in TDCJ, to run consecutive to his twenty-year sentence for the original possession offense. The court was required to stack these sentences under Article 42.08(b), which provides:

If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the .offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.

In Ex Parte Kuester, this Court held that “completion of the sentence” in Article 42.08(b) has the same meaning as' “ceases to operate” in Article 42.08(a). Government Code § 508.150(b) defines “ceases to operate” for purposes of Article 42.08 as the date on which the original sentence is served out in actual calendar time or the date on which a parole panel approves the inmate for parole release. Serving a sentence out in “actual calendar time” means serving the sentence in full, day-for-day, until discharge. So the date a sentence is completed is the date it is served out in full, day-for-day, until discharge, or the date the defendant makes parole on the original offense.

Moreover, Article 42.08(b) requires a stacked sentence for the offense the defendant committed in TDCJ while serving his sentence for the original offense, if he has not completed the original sentence at the time of sentencing for the stacked offense. The phrase, “has not completed,” is in the present perfect tense, the tense used to describe actions that began in the past and continue in the present. The statute requires the sentencing court to stack the subsequent offense, committed in TDCJ, if the defendant did not complete the original sentence in the past and has not completed it in the present. The present time for purposes of Article 42.08(b) is the time of sentencing for the stacked offense.

The defendant has not completed the original sentence under Article 42.08(b), if at the time of sentencing for the stacked offense, the defendant has not served the original sentence in full, day-for-day, until discharge, or he has not made parole on the original offense. And, the defendant has not “made parole” on the original offense, if his parole is revoked prior to being sentenced for the stacked offense, because his original sentence is still in operation, as he is serving his remaining sentence.

We therefore hold that, under Article 42.08(b), a stacked sentence does not begin to run on the date the defendant makes parole on the original offense if his parole is revoked before the trial court sentences the defendant for the stacked offense. Consequently, applicant’s seven-year, stacked sentence for the aggravated assault did not begin to run on November 12, 1993, the date he made parole on the original possession offense, because his parole was revoked before the trial court sentenced him for the stacked offense.

B. Voluntariness of the Plea

Applicant alleges that he agreed to a seven-year sentence for the aggravated assault offense, to begin to run on November 12,1993, and thus it violates his plea agreement for the seven-year sentence to begin to run after November 12, 1993. Yet nothing in the record supports his allegation that the seven-year sentence must run from November 12, 1993, as part of the plea agreement. The judgment for the aggravated assault reflects that the plea bargain was confinement for seven years in TDCJ. The court also ordered pre-sentence time credit from November 12, 1993, on the seven-year sentence. But pre-sentence time credit has nothing to do with the stacking order. A person who is arrested will get credit for time he spends in jail prior to bonding out, but that does not mean that the date of his arrest is the date his sentence begins. Here, since the plea agreement does not include a provision relating to stacking or specify that his sentence begins to run on a specific date, applicant has failed to establish that his plea was involuntary. We reject applicant’s involuntary plea claim.

C. Cumulation of the Sentences

Applicant also alleges that TDCJ violated his plea agreement by improperly cu-mulating applicant’s seven-year and twenty-five year sentences, and, as a result, he is being held past his mandatory supervision date. TDCJ’s records, however, reflect that TDCJ properly cumulated the twenty-year and seven-year sentences, per the trial court’s stacking order. We therefore reject applicant’s claim that TDCJ violated his plea agreement.

Relief is denied.

WOMACK, J., concurred in the result.

      . For purposes of this opinion, "stacked offense” is the offense committed while the defendant was an inmate in TDCJ, serving his sentence for the original offense. See Tex. Code Crim. Proc. Art. 42.08(b). Under Article 42.08(b), the judge must stack the sentence for the subsequent offense, committed while in TDCJ, on the sentence for the original offense. See id.

      . Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure.

      . 21 S.W.3d 264, 271 (Tex.Crim.App.2000).

      . Tex. Gov't Code § 508.150(b). This provision reads, "For the purposes of Article 42.08, Code of Criminal Procedure, the judgment and sentence of an inmate sentenced for a felony, other than the last sentence in a series of consecutive sentences, cease to operate: (1) when the actual calendar time served by the inmate equals the sentence imposed by the court; or (2) on the date a parole panel designates as the date the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.” Id. This current definition of "ceases to operate” is essentially the same as it was at the time of applicant’s offense. See id., formerly Article 42.18, § 8(d)(2).

      . See Kuester, 21 S.W.3d at 271.

        . Id.

      . See Bryan A. Gamer, A Dictionary of Modem American Usage 645 (Oxford University Press 1998).

      . See Tex. Gov’t Code § 508.283(b) ("If the parole ... of a person described by § 508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released.”).

      . See Tex.Code Crim. Proc. Art. 42.03, § 2(a).


author: PER CURIAM.

text:
    Shannon James WHEAT, Appellant v. The STATE of Texas.
    No. PD-0474-05.
    Court of Criminal Appeals of Texas.
    Nov. 16, 2005.
    Richard E. Wetzel, Austin, for appellant.
    Douglas Howell, III, Asst. D.A., Bryan, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

PER CURIAM.

Appellant was convicted in a single trial of two counts of indecency with a child and one count of sexual assault. His punishment was assessed at seven and eight years on the indecency charges and fifteen years on the sexual assault charge. The Court of Appeals reversed and remanded. Wheat v. State, 160 S.W.3d 631 (Tex.App.-Waco, 2005). Appellant and the State have filed petitions for discretionary review.

On appeal, Appellant contended that the trial court erred by failing to grant his motion to sever the indecency with a child counts, to which Appellant pled guilty, from the sexual assault count, to which Appellant pled not guilty. The court of appeals held that the trial court abused its discretion by not granting the severance, because joining the cases for trial was unfairly prejudicial to Appellant. See Penal Code § 3.04(c). The court of appeals held:

Having sustained ground two, we need not ... perform a harm analysis for the errors admitted by the State in issues one and five. We reverse the three convictions, sever [the sexual assault count from indecency with a child counts] and remand the cause for a new trial on [the sexual assault count] and a new punishment hearing on the guilty pleas to [the indecency with a child counts].

Appellant’s petition contends the court of appeals erred by not conducting a harm analysis of his first point of error dealing with the trial court’s failure to admonish him before accepting his guilty pleas, as required by Tex.Code Crim. Pro. Art. 26.13. Appellant contends that the failure to admonish him rendered his plea involuntary, and the proper remedy for an involuntary plea is a new trial, not merely a new punishment hearing. Ground two of the State’s petition argues that the court of appeals erred by not conducting a harm analysis of the error it found in the trial court’s failure to sever the offenses. In Cain v. State, 947 S.W.2d 262 (1997), this court held that except for certain federal constitutional errors deemed structural by the United States Supreme Court, no error is categorically immune from a harm analysis.

Accordingly, we grant Appellant’s petition for discretionary review and ground two of the State’s petition for discretionary review, vacate the judgment of the court of appeals, and remand to that court for reconsideration consistent with this opinion.