Opinion
NO. 03-14-00269-CR
04-22-2016
Edward Daniel Garcia, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-13-0715, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDINGMEMORANDUM OPINION
A jury convicted appellant Edward Daniel Garcia of continuous sexual abuse of a child, aggravated sexual assault of a child, and two counts of indecency with a child. See Tex. Penal Code §§ 21.02, 21.11, 22.021. The jury assessed punishment at twenty-eight years' imprisonment and a $2,500 fine for continuous sexual abuse of a child, ten years' imprisonment for aggravated sexual assault of a child, five years' imprisonment for the first count of indecency with a child, and ten years' imprisonment for the second count of indecency with a child, with the sentences to run concurrently. See id. §§ 12.32, 12.33. In two issues, appellant contends that the trial court erred in admitting the testimony of two outcry witnesses. We will affirm the trial court's judgments of conviction.
BACKGROUND
The jury heard evidence that appellant's daughter, E.G., told her mother in April 2010 that appellant had been sexually abusing her. E.G. was thirteen years old at the time, and E.G.'s parents had been separated and living apart for approximately three years. E.G.'s parents' custody arrangement provided that E.G. and her brother would stay with appellant from Wednesday to Sunday every other week and from Wednesday to Friday on the alternate weeks. Upon hearing E.G.'s report of abuse, E.G.'s mother called the police. An investigator interviewed E.G. and testified about the interview at trial. While investigating the case, law-enforcement officials referred E.G. to a counselor at a local children's advocacy center, who then conducted counseling sessions with E.G. on a weekly basis for about two years. The counselor also testified at trial regarding E.G.'s reports of sexual abuse.
The background of this case and the evidence adduced at trial are well known to the parties, and we therefore limit recitation of the facts. --------
At the conclusion of trial, the jury found appellant guilty of continuous sexual abuse of a young child, aggravated sexual assault of a child, and two counts of indecency with a child. The jury then assessed punishment at twenty-eight years' imprisonment and a $2,500 fine; ten-years' imprisonment; five-years' imprisonment; and ten-years' imprisonment, respectively, with the sentences to run concurrently. This appeal followed.
DISCUSSION
In two issues, appellant argues that the trial court erred in allowing E.G.'s mother and E.G.'s counselor to testify as outcry witnesses when the investigator had already testified as an outcry witness. Appellant acknowledges that multiple outcry witnesses are permitted under certain circumstances but contends that those circumstances are not present here.
Article 38.072 of the Texas Code of Criminal Procedure, also known as the outcry statute, creates a hearsay exception for a child's first outcry of sexual abuse to an adult. See Bays v. State, 396 S.W.3d 580, 581 n.1 (Tex. Crim. App. 2013) (citing Tex. Code Crim. Proc. art. 38.072). The statute applies only to statements that (1) describe the alleged offense; (2) are made by the child; and (3) are "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." Tex. Code Crim. Proc. art. 38.072, § 2(a). When interpreting this language, the court of criminal appeals has explained that the provision refers to the first adult "to whom the child makes a statement that in some discernible manner describes the alleged offense." Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). In other words, "the statement must be more than words [that] give a general allusion that something in the area of child abuse was going on." Id. "If the initial statement to an adult conveyed nothing more than a 'general allusion' of abuse, then the recipient of a subsequent, detailed statement should be designated as the outcry witness, even though that person technically was not the first adult to whom the child revealed the offense." Mims v. State, No. 03-13-00266-CR, 2015 WL 7166026, at *3 (Tex. App.—Austin Nov. 10, 2015, pet. filed) (mem. op., not designated for publication) (citing Garcia, 792 S.W.2d at 91). In general, the proper outcry witness is the first adult to whom the alleged victim relates "how, when, and where" the abuse occurred. See Mata v. State, No. 03-15-00220-CR, 2016 WL 859037, at *2 (Tex. App.—Austin Mar. 4, 2016, no pet. h.) (mem. op., not designated for publication); Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008, pet. ref'd). But see Broderickv. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref'd) ("[T]he proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense").
A trial court has "broad discretion" in determining who qualifies as a proper outcry witness, and we review a trial court's designation of an outcry witness under an abuse-of-discretion standard. See Garcia, 792 S.W.2d at 92; Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref'd). As with other evidentiary rulings, we will uphold the trial court's ruling if it is reasonably supported by the record and within the zone of reasonable disagreement. See Garcia, 792 S.W.2d at 92; Polk v. State, 367 S.W.3d 449, 452 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd); see also Martinez v. State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005) ("Article 38.072 is a rule of admissibility of hearsay evidence."). We will find an abuse of discretion only when the trial court's ruling is outside the zone of reasonable disagreement. See McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008); Polk, 367 S.W.3d at 452.
Admissible outcry-witness testimony is event-specific, not person-specific. Villalobos v. State, No. 03-13-00687-CR, 2015 WL 5118369, at *3 (Tex. App.—Austin Aug. 26, 2015, pet. ref'd) (mem. op., not designated for publication); Eldred v. State, 431 S.W.3d 177, 181-82 (Tex. App.—Texarkana 2014, pet. struck); Polk, 367 S.W.3d at 453. Thus, in cases where a child has been victim to more than one instance of sexual assault, multiple outcry witnesses may testify about separate acts of abuse committed by the defendant against the child. See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Villalobos, 2015 WL 5118369, at *3; Cruz-Romero v. State, No. 12-14-00090-CR, 2015 WL 1823582, at *2 (Tex. App.—Tyler Apr. 22, 2015, no pet.) (mem. op., not designated for publication); Hernandez v. State, No. 05-12-01118-CR, 2014 WL 1178303, at *3 (Tex. App.—Dallas Mar. 21, 2014, no pet.) (mem. op., not designated for publication); Brown v. State, 189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref'd); Tear v. State, 74 S.W.3d 555, 559 (Tex. App.—Dallas 2002, pet. ref'd).
Here, we will assume without deciding that the trial court erred in admitting the challenged testimony because a review of the record shows that appellant did not suffer harm from the admission of the testimony of E.G.'s mother or E.G.'s counselor. The erroneous admission of outcry testimony is non-constitutional error. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Pursuant to Texas Rule of Appellate Procedure 44.2(b), a non-constitutional error must be disregarded unless it affected the defendant's substantial rights. See Tex. R. App. P. 44.2(b). An error affects the defendant's substantial rights when it has a substantial and injurious effect or influence in determining the jury's verdict. See Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not overturn a criminal conviction for non-constitutional error if we, after examining the record as a whole, have fair assurance that the error did not influence the jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93.
In assessing the likelihood that the jury's decision was affected by the error, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the jury instructions, the State's theory and any defensive theories, and voir dire, if applicable. Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014); Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). Important factors include the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, whether the State emphasized the error, and whether overwhelming evidence of guilt is present. Schmutz, 440 S.W.3d at 39; Motilla, 78 S.W.3d at 355-56. Any such error is harmless if the same or similar evidence is admitted without objection at another point in the trial. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).
In this case, the first outcry witness to testify was an investigator who interviewed E.G. after E.G.'s mother learned of the alleged abuse and called the police. The investigator testified that E.G. described a detailed account of the most recent occurrence of abuse, which occurred approximately three days before the interview, and a more general account of the first time that E.G. could remember abuse occurring, which was when she was approximately five years old. In E.G.'s account of the most recent event, E.G. told the investigator that appellant touched her on her breasts and genitals and kissed her. In E.G.'s account of her earliest memory of the abuse, she told the investigator that appellant touched her on her breasts and genitals. The investigator further testified that E.G. explained that after the first event, the abuse progressed in that appellant would take off both of their clothes, lie on top of her, and "hump" her. E.G. told the investigator that appellant would also make contact with her genitals with his mouth and penis, causing pain, and that he would put his penis in her mouth. The investigator testified that E.G. described the abuse "as occurring every time she was around her father and they were alone." The investigator further testified that E.G. "described multiple events occurring . . . [s]o they all tended to blur together for her when she was describing these to me." The investigator testified that E.G. did not necessarily provide exact addresses but described the abuse occurring at approximately four different residences over the course of her childhood.
The next outcry witness to testify was E.G.'s mother. She testified that E.G. told her that appellant "would take off his shirt and get on top of her and he would do things like that." She testified that E.G. also said that appellant "had been raping her." E.G.'s mother further stated, "I asked her if she knew what that meant. And she said 'Yes.'" E.G.'s mother testified that E.G. told her that the most recent occurrence of abuse was about two days prior to their conversation. She testified that she asked E.G. when the abuse began, and E.G. said it started when the family "lived on Mitchell Street" and that E.G. told her it was "just a continuous time since then."
The final outcry witness was E.G.'s counselor. The counselor testified about several instances of sexual abuse reported by E.G. during counseling sessions. Specifically, the counselor testified that E.G. recounted the most recent occurrence of abuse, which involved appellant "remov[ing] his shirt and then remov[ing] her shirt and bra placing his hands and mouth on her breasts, back, stomach, touching and kissing her. And in her words, 'humping her.'" The counselor testified that E.G. also stated that appellant "had penetrated her vagina with his penis approximately five or more times in the past." The counselor testified about at least three detailed accounts E.G. gave of specific occurrences of penetration and also testified about other detailed accounts E.G. gave of sexual abuse involving what E.G. described as "humping." The counselor also testified that E.G. described the first time that she remembered being sexually abused by appellant. E.G. told the counselor that the first occurrence of abuse was when she was approximately three years old, and her father took off her clothes and "hump[ed]" her.
Even assuming, without deciding, that any portion of the testimony of E.G.'s mother or counselor was erroneously admitted, the testimony was harmless given the entire record. To begin with, E.G. provided detailed testimony at trial regarding several instances of sexual abuse, including instances where appellant penetrated her vagina with his penis, made contact between his mouth and her "private area," and put his penis in her mouth. Further, a sexual-assault nurse examiner who examined E.G. also testified about E.G.'s reports of abuse. The nurse testified that she gathered information from E.G. for the purposes of medical diagnosis and treatment and that E.G. told her that appellant would take off his clothes and her clothes, "hump" her, and put his penis inside her vagina. The nurse further testified that E.G. told the nurse that she did not remember much about the first time appellant sexually abused her, but she remembered that the final time was when she was about eleven or twelve years old. The nurse testified that E.G. also told her that appellant put his penis in E.G.'s mouth, licked her breasts, and licked her vagina.
Moreover, appellant does not challenge the propriety of the admission of the testimony of the investigator, who was the first person to testify about E.G.'s account of sexual abuse, and the investigator testified about E.G.'s accounts of appellant touching her on her breasts and genitals, kissing her, "humping" her, making contact between his mouth and her genitals, making contact between his penis and her genitals in a way that caused pain, and putting his penis in her mouth. Improper outcry-witness testimony is harmless when other properly admitted witness testimony sets forth the same facts. See Allen v. State, 436 S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref'd) (error in admitting improper outcry witness testimony was harmless where the child complainant testified to the same facts contained in the outcry statement and was subject to cross examination); Nino, 223 S.W.3d at 754 (erroneous designation of outcry witness under article 38.072 was harmless because similar testimony was admitted through complainant and complainant's mother); Zarco v. State, 210 S.W.3d 816, 833 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (erroneous admission of detective's testimony regarding child's outcry of sexual abuse was harmless because child "testified in detail about the abuse" and "detailed the same testimony [the detective] gave regarding the abuse"); Duncan, 95 S.W.3d at 672 (concluding that improper admission of outcry testimony was harmless because similar testimony was admitted through complainant, pediatrician, and medical records); Martinez v. State, No. 04-99-00051-CR, 2000 WL 84484, at *3 (Tex. App.—San Antonio Jan. 26, 2000, no pet.) (not designated for publication) (concluding that even if trial court designated wrong person as outcry witness, error was harmless because child complainant testified to same facts as outcry witness).
Further, to the extent that the counselor testified to additional specific instances of sexual abuse that were not set forth in the testimony of E.G., the nurse examiner, or the investigator, the counselor's testimony would have been proper as an additional outcry witness, as multiple outcry witnesses may testify about separate acts of abuse committed by a defendant against a child. See Lopez, 343 S.W.3d at 140; Villalobos, 2015 WL 5118369, at *3; Cruz-Romero, 2015 WL 1823582, at *2; Hernandez, 2014 WL 1178303, at *3; Eldred, 431 S.W.3d at 181-82; Polk, 367 S.W.3d at 453; Brown, 189 S.W.3d at 387; Tear, 74 S.W.3d at 559.
In addition, E.G.'s mother's testimony was only a brief and general description of the alleged abuse. E.G.'s mother did not testify as to any specific occurrences of abuse but rather stated only that E.G. told her that appellant "would take off his shirt and get on top of her and he would do things like that," that appellant "had been raping her," and that the abuse began when the family "lived on Mitchell Street" and was "a continuous time since then."
We also note that the testimony of E.G., the nurse examiner, and the investigator was not the only evidence of appellant's guilt other than the challenged testimony. In addition to the evidence already set forth above, the nurse examiner further testified that her examination of E.G. revealed three "clefts" in E.G.'s hymen. The nurse testified that the location of two of the clefts was consistent with E.G.'s reported history and with the occurrence of penetration. E.G.'s brother also testified and corroborated part of E.G.'s account of events. Specifically, E.G. testified that her brother was often home when the abuse occurred, and that the abuse occurred in her bedroom with the door locked at those times. E.G.'s brother's testified that appellant went into E.G.'s bedroom "frequently" and that the door was closed and locked when he was in there. According to his testimony, E.G.'s brother knew the door was locked because he sometimes tried to open it when appellant and E.G. were inside, and appellant would say things like, "Not right now" or "Go outside." E.G.'s brother testified that he once tried to look under the door when appellant and E.G. were in the bedroom, and his father noticed, came to the door with his shirt off, and said something like "get out." E.G.'s brother asked appellant why his shirt was off, and E.G. said it was because they were playing a game. Taken together, and disregarding the challenged testimony, the testimony of E.G., the investigator, the nurse examiner, and E.G.'s brother was substantial evidence of appellant's guilt.
Regarding closing arguments, appellant contends that the State emphasized the testimony of the multiple outcry witnesses during its closing arguments, but the record shows that the State mentioned the multiple witnesses only in response to defense counsel's arguments and only in a general way without going into details. Specifically, appellant's theme throughout trial and during closing arguments was that E.G. fabricated the story of abuse because she was upset with appellant for disciplining her. As part of propounding that theory, defense counsel stated in closing arguments that "[t]his [case] comes down to the statement of [E.G.], the daughter. That is the sole evidence." Defense counsel argued that appellant had been angry with E.G. and disciplining her shortly before her outcry, and defense counsel then went on to use the challenged testimony to attempt to discredit E.G. by pointing out discrepancies and perceived weaknesses in the various accounts of abuse. It was only in response to this argument that the State then argued that this case was not a "he said, she said" case as alleged by defense counsel but rather a case of multiple witnesses testifying about E.G.'s accounts of sexual abuse. The State did not reiterate details of the accounts but instead moved on to counter appellant's argument about the weaknesses and discrepancies in the accounts.
Given our review of the entire record—including the witness testimony, the parties' theories, and closing arguments, which together include extensive properly admitted evidence of appellant's criminal conduct toward E.G. over many years—we conclude that, assuming without deciding that the admission of the testimony of E.G.'s mother and E.G.'s counselor was error, the error did not affect appellant's substantial rights and was therefore harmless. See Tex. R. App. P. 44.2(b); Barshaw, 342 S.W.3d at 93; Schmutz, 440 S.W.3d at 39; Motilla, 78 S.W.3d at 355-56. Because we find no harm from the admission of the challenged testimony, we overrule both of appellant's issues.
CONCLUSION
Having overruled appellant's two issues, we affirm the trial court's judgments of conviction.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: April 22, 2016 Do Not Publish