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concluding that defendant failed to preserve complaint about failure to conduct reliability hearing by not raising objection at trial
Summary of this case from Whitley v. StateOpinion
No. 03-10-00039-CR
Filed: September 30, 2010. DO NOT PUBLISH.
Appealed from the District Court of Caldwell County, 421st Judicial District, No. 2009-081, Honorable Todd A. Blomerth, Judge Presiding. Affirmed.
Before Chief Justice JONES, Justices PATTERSON and HENSON.
MEMORANDUM OPINION
A jury convicted Jeremy Wayne Dorsey of one count of aggravated sexual assault of a child (count one), one count of indecency with a child by contact (count two), and one count of indecency with a child by exposure (count three). See Tex. Penal Code Ann. §§ 21.11, 22.021 (West Supp. 2009). Dorsey pled true to four enhancement allegations, and the jury assessed punishment at fifty years' imprisonment and a $10,000 fine for count one, fifty years' imprisonment and a $10,000 fine for count two, and twenty years' imprisonment and a $10,000 fine for count three. Dorsey raises two issues on appeal, arguing that the trial court erred in: (1) allowing a family friend of the victim to testify as an outcry witness, and (2) allowing a forensic interviewer to testify as an outcry witness. Because we conclude that the trial court did not abuse its discretion in admitting the witnesses' testimony, we affirm the trial court's judgments.
BACKGROUND
The record shows that in 2006 and 2007, the victim in this case, S.M., lived in an apartment in Luling with her mother and her mother's boyfriend, Dorsey. During that time, S.M. was approximately eleven and twelve years' old. In September 2008, Detective Michael Collie of the Luling Police Department received information that S.M. may have been the victim of sexual assault. Collie interviewed S.M. at her mother's apartment, and S.M. denied that she had been sexually abused. A caseworker at Child Protective Services ("CPS"), Laurie Tapia, interviewed S.M. at S.M.'s school. S.M. again denied that Dorsey had sexually abused her. In approximately November 2008, Collie learned of another allegation of sexual abuse involving S.M. when a dispatcher contacted him and informed him that someone had called the dispatch office to report the alleged abuse. The allegation originated with Rebekah Young, a woman about ten years older than S.M. who was a friend of S.M.'s family and who sometimes babysat for S.M. Young testified that she was talking to S.M. one day when S.M. told her that Dorsey had sexually abused her. Young testified that S.M. told her that Dorsey had told S.M. to change into short shorts and low-cut shirts, that he had slapped or pinched her buttocks, and that he had "fingered" her. Upon learning of the allegations, Young notified the counselor at S.M.'s junior-high school. Young testified that she also moved S.M. into her home to get her away from Dorsey. After learning of the second allegation of abuse, Caseworker Laurie Tapia conducted another interview of S.M. at S.M.'s school. S.M. again denied the allegations. When Detective Collie learned of the second allegation of abuse, he went to S.M.'s school to speak with the school counselor. The counselor told Collie that S.M. was no longer living with her mother and Dorsey in Luling and that she had moved in with Young in Prairie Lea. Collie contacted Young and asked her to take S.M. to be interviewed at a child-advocacy center in San Marcos. Young took S.M. to the child-advocacy center a short time later. There, Melissa Rodriguez, a forensic interviewer, conducted an interview of S.M. Rodriguez testified that during the interview, S.M. told her about a time when Dorsey had pulled down his basketball shorts and shown her his penis. At trial, S.M. testified about the instances of sexual abuse committed by Dorsey while S.M. lived with her mother and Dorsey. Specifically, S.M. testified about occasions when her mother was gone, usually at work, and S.M. and Dorsey would be "wrestling around." S.M. testified that while they were wrestling, Dorsey would start biting her neck and telling her that he was sucking her blood. She testified that he would then try to put his fingers on or in her vagina. She testified that he put his hand on her vagina about ten times at "different periods of time" and that he also put his fingers inside her vagina. She testified that whenever this happened, she would tell Dorsey to stop and then she would "get away from the situation" by going into the bathroom until her mother got home from work. She also testified about an occasion when Dorsey showed her his penis. Specifically, she testified that while she and Dorsey were wrestling on a bed, he started biting her neck, and she stood up. She testified that Dorsey was holding her hand and that she said, "I don't want to do this." She testified that he said, "It'll be okay," and that he then pulled out his penis and showed it to her. She described his penis as white and hairy. She testified that after Dorsey exposed his penis, she went into the bathroom for thirty to forty minutes. S.M. also testified that Dorsey had told her to wear short shorts, which she testified were tight and similar to underwear. S.M. testified that at some point after the abuse began, she told her mother, her friend M.G., and M.G.'s grandmother about the abuse. S.M. testified that her mother told S.M.'s grandmother that she did not believe S.M.'s allegations. S.M. further testified that her mother did not do anything about the abuse but rather told her not to tell anyone else about it because her mother did not want CPS to get involved in the situation. S.M. testified that her mother also threatened to overdose on cocaine if S.M. told anyone else about the abuse. S.M. explained that she denied the allegations when she was initially interviewed by Collie and Tapia because she was afraid her mother would hurt herself. S.M. testified that she also spoke of the abuse to a male friend of her mother's, who was the person who initially reported the abuse to CPS. In addition, S.M. testified that she told her school counselor and Young "the basic stuff" about what Dorsey did to her. Finally, she testified that she told Rodriguez, the forensic interviewer, about the abuse. After S.M. told Rodriguez about the abuse, Detective Collie met with Dorsey and S.M.'s mother at their apartment, where he interviewed Dorsey. During the interview, Dorsey denied sexually abusing S.M. Dorsey was interviewed again at the Luling Police Department. The interviewer, Officer Don Clendennen, testified that when he asked Dorsey if Dorsey put his finger in S.M.'s vagina, Dorsey answered with statements like, "I didn't hurt that girl," or "I wouldn't hurt that girl." Clendennen also testified that Dorsey never referred to S.M. by her name but referred to her only as "the girl" or "that girl" when talking about her in reference to the time before she made the allegations and only as "the bitch" or "that bitch" when talking about her in reference to the time after she made the allegations. Clendennen further testified that Dorsey's demeanor fluctuated throughout the interview, including times when he was slumped over in the chair with his shoulders drooping, times when he paced back and forth or stood in the corner silently, and times when he was crying or "crying uncontrollably." Clendennen testified that at one point, when Dorsey was "emotionally out of control," Dorsey said, "I went to check on that girl all the time, and it wasn't always a bootie call." Clendennen also testified that during the occasions when Dorsey was crying, he stated several times that he was going to kill himself. Specifically, he made statements to the effect that he would kill himself before he went to jail and that he would kill himself before he would admit that he hurt S.M. At trial, S.M.'s mother testified for the defense. During cross-examination, she testified that S.M. told her on at least one occasion that Dorsey was sexually abusing her. She testified that the first time S.M. told her of the abuse was in 2008. She testified that she could not remember if or when S.M. told her about the abuse a second time, but she testified that S.M. "never told [her] anything" after S.M. moved out of her and Dorsey's apartment. S.M.'s mother also testified that she was involved in a pending CPS case in which the issue was the termination of her parental rights to S.M. and that one of CPS's criticisms of her was her refusal to discontinue contact with Dorsey. After hearing all of the evidence, the jury found Dorsey guilty of all three counts alleged in the indictment: aggravated sexual assault of a child (count one), indecency with a child by contact (count two), and indecency with a child by exposure (count three). At a punishment hearing, Dorsey pled true to four enhancement allegations: burglary of a building, aggravated assault with a deadly weapon, and two convictions for burglary of a habitation. The jury assessed punishment at fifty years' imprisonment and a $10,000 fine for the first count, fifty years' imprisonment and a $10,000 fine for the second count, and twenty years' imprisonment and a $10,000 fine for the third count. This appeal followed.DISCUSSION
Dorsey raises two issues on appeal, arguing that the trial court erred in: (1) allowing Rebekah Young to testify as an outcry witness, and (2) allowing Melissa Rodriguez to testify as an outcry witness. Out-of-court hearsay testimony like that offered by Young and Rodriguez is admissible from the first adult to whom a child makes a discernible outcry regarding sexual or physical abuse. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2009); In re Z.L.B., 102 S.W.3d 120, 121 (Tex. 2003); Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.-Austin 1998, pet. ref'd). Because outcry witnesses are event-specific, the hearsay exception permits testimony of multiple outcries if they regard "discrete occurrences" or "discrete events" of abuse and are not merely a repetition of the same event told to different individuals. See Brown v. State, 189 S.W.3d 382, 387 (Tex. App.-Texarkana 2006, pet. ref'd); Hernandez, 973 S.W.2d at 789. We review the admission of outcry-witness testimony under an abuse-of-discretion standard. Garcia v. State, 792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990); Hernandez, 973 S.W.2d at 789. If the trial court improperly admitted the testimony of Young or Rodriguez, we must decide whether the error was reversible error in the context of all the evidence presented. Tex. R. App. P. 44.2(b); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).First Outcry Witness: Young
Dorsey contends that the trial court erred in allowing Young to testify as an outcry witness because: (1) the State did not show that Young was the first person, eighteen years of age or older, to whom S.M. made a statement describing the alleged abuse; (2) the State failed to provide Dorsey with notice that Young was to be an outcry witness; and (3) the trial court failed to conduct a reliability hearing before admitting the testimony. We address each argument separately.A. Whether Proper Outcry Witness
Dorsey asserts that the trial court should not have allowed Young to testify as an outcry witness because M.G., a friend of S.M., was the first person S.M. spoke to about the abuse. The State contends that M.G. was not a proper outcry witness because she was a minor. In support of Dorsey's argument, he cites Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990), and argues that the State, as the proponent of the evidence, bore the burden of showing that Young was the first adult to whom S.M. described the abuse. Dorsey further argues that the State did not carry its burden because it did not rule out the possibility that M.G. was an adult and that she was the first adult to whom S.M. described the abuse. However, Long is distinguishable from this case. In Long, the prosecutor called the victim's mother to testify regarding statements the victim made to the mother about sexual abuse. See id. at 546. The defense objected to the mother's testimony on the basis that it was hearsay. Id. The court of criminal appeals held that once the defendant objected on hearsay grounds, the State then bore the burden of showing that the testimony was admissible pursuant to article 38.072 or some other exception to the hearsay rule. Id. at 548. Here, Dorsey did not object to Young's testimony. Although Dorsey contends in his brief that he "disputed that Young was a proper outcry witness," he points only to his objection to the testimony of Rodriguez, not the testimony of Young. The objection that Dorsey references in his brief is contained in the record in the following exchange among the parties and the trial court:Defense: Well, first, I am going to object to [Rodriguez] testifying as an outcry witness because she's not the first outcry witness. She's not even the second outcry witness.
Court: Well, who's the first outcry witness?
Defense: Well, that's a good question. Maybe it's [M.G.] that nobody can find.
Court: Well, that's a child, so that's irrelevant.
State: Exactly.
Court: That doesn't have anything to do with this.
Defense: And then Rebekah Young.Dorsey's failure to object to Young's testimony as hearsay distinguishes this case from Long, which placed the burden on the State to show the applicability of a hearsay exception only after the defendant had objected that the testimony was hearsay. Accordingly, Long, and the burden that Long places on the State, do not apply to this case. Further, once the State laid the proper predicate that Young was the outcry witness, Dorsey bore the burden to rebut the predicate by introducing evidence showing that S.M. had made a sufficient outcry to M.G. and that M.G. was more than eighteen years old at the time the statement was made. See Z.L.B., 102 S.W.3d at 122 (citing Garcia, 792 S.W.2d at 93). Although there is evidence in the record showing that M.G. may have been one of the first people who S.M. told about the sexual abuse — specifically, S.M. testified that she told her mother, M.G., and M.G.'s grandmother about the abuse but did not specify an order in which she told them or the dates on which she told them — there is no evidence in the record describing the contents of S.M.'s statement to M.G. In order for M.G. to be the proper outcry witness, there must be evidence of the specific details of the statement that S.M. made to M.G. showing that the statement was more than a general allusion or allegation that something in the area of child abuse was occurring. See Garcia, 792 S.W.2d at 91. There are no such details in this case. Dorsey did not call M.G. to testify as to the details and timing of S.M.'s statement, nor did he elicit testimony from S.M. regarding the specifics of her statement to M.G. See id. at 91-92. There is also no evidence in the record that M.G. was more than eighteen years old at the time that S.M. told her about the abuse. To the contrary, the record contains several references implying that M.G. was a minor at the time S.M. made the statement, including the portion of the record quoted above in which the trial court stated that M.G. was not a proper outcry witness because she was a child, and Dorsey's attorney did not disagree with the court's statement. Thus, the record does not support Dorsey's argument.