Opinion
No. 10-07-00017-CR
Opinion delivered and filed January 2, 2008. DO NOT PUBLISH
Appeal from the 40th District Court Ellis County, Texas, Trial Court No. 30513CR/A. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Olivas appeals his conviction for aggravated sexual assault of a child, M. F., by "penetration of the sexual organ of M[.] F[.] . . . by [Olivas]'s finger." (1 C.R. at 45); see TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2007). We affirm. Objection. In Olivas's first issue, he contends that the trial court erred in overruling Olivas's objection to the State's outcry witness. The outcry-witness statute, Texas Code of Criminal Procedure Article 38.072, provides:
(a) 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.
(b) A statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2 (Vernon 2005); see TEX. R. EVID. 802. "When reviewing a trial court's ruling on the admission of evidence, an appellate court applies an abuse of discretion standard of review." Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007); accord Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). "A trial court's determination that an outcry statement is admissible under article 38.072 is reviewed for an abuse of discretion." Nino v. State, 223 S.W.3d 749, 752 (Tex.App.-Houston [14th Dist.] 2007, no pet.); see Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990). "`[A] trial court has broad discretion in determining' the proper outcry witness." Villanueva v. State, 209 S.W.3d 239, 247 (Tex.App.-Waco 2006, no pet.) (quoting Garcia at 92) (alteration in Villanueva). Moreover, "article 38.072, section 2(a) provides that the hearsay exception provided by the outcry statute applies only to statements that describe the alleged offense," that is, the charged offense. Beckley v. State, 827 S.W.2d 74, 78 (Tex.App.-Fort Worth 1992, no pet.); see TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a). "[T]he outcry statute exception to hearsay testimony [does not] extend to an outcry of a child respecting a collateral matter or an extraneous offense. . . ." Beckley at 78. Olivas argues that the trial court erred in admitting the testimony of Teresa Evans, a forensic interviewer, as outcry testimony rather than that of M. F.'s mother, Danielle Keys. Keys testified that M. F. told her that Olivas had "touched her on the outside of her panties." (7 R.R. at 130.) The trial court ruled that M. F.'s statement to Keys did not describe an offense, and thus that Keys was not the proper outcry witness. The trial court did not abuse its discretion in ruling that only M. F.'s statement to Evans described the alleged offense, and thus allowing Evans to testify as the outcry witness. We overrule Olivas's first issue. Hearing. In Olivas's second issue, he contends that the trial court did not hold a hearing on the reliability of the State's outcry witness, and thus erred. Texas Rule of Appellate Procedure 33.1(a) provides:
As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion that . . . 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. . . .TEX. R. APP. P. 33.1(a). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Neal v. State, 150 S.W.3d 169, 175 (Tex.Crim.App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004)) (alteration in Neal). In particular, "a failure to object to the absence of a hearing provided for under article 38.072, § 2(b)(2) waives error, if any, in failing to hold a hearing." Rodriguez v. State, 762 S.W.2d 727, 731 (Tex.App.-San Antonio 1988), pet. dism'd, 815 S.W.2d 666 (Tex.Crim.App. 1991) (per curiam); accord Garcia v. State, 228 S.W.3d 703, 707 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); Naranjo v. State, No. 06-03-00056-CR, 2004 Tex. App. LEXIS 2189, at *3 (Tex.App.-Texarkana Mar. 9, 2004, no pet.); Cates v. State, 72 S.W.3d 681, 698 (Tex.App.-Tyler 2001, no pet.). Olivas did not object that the trial court did not hold a hearing, and Olivas did not request a hearing. Olivas argues that his written motions to exclude Evans's testimony and his requests to take her on voir-dire examination specifically requested a hearing. They did not. Olivas forfeited his complaint. We overrule Olivas's second issue. Sufficiency of the Evidence. In Olivas's third issue, he contends that the evidence was factually insufficient. "There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?" Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006) (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), overruled in part on other grounds, Watson at 405); accord Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App. 2005). "We set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met." Prible at 731; accord Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003); see also Watson at 414-15. "A clearly wrong and unjust verdict occurs where the jury's finding is `manifestly unjust,' `shocks the conscience,' or `clearly demonstrates bias.'" Prible at 731 (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997)). "The jury was in the best position to evaluate the credibility of the witnesses, and . . . factual-sufficiency jurisprudence . . . requires an appellate court to afford `due deference' to the jury's determinations" of credibility. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007); see Johnson, 23 S.W.3d at 9; Watson, 204 S.W.3d at 416-17; Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). "The reviewing court should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Ortiz v. State, 93 S.W.3d 79, 88 (Tex.Crim.App. 2002); see TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2006); Santellan, 939 S.W.2d at 164. Olivas argues that M. F.'s testimony was not credible. Olivas points primarily to the following. M. F. at first thought that the assault had been a dream. M. F. "first told Teresa Evans that the Defendant kept coming into her room repeatedly, then she told Ms. Evans that the Defendant followed her from room to room." (Olivas Br. at 21.) M. F. also made inconsistent statements about whether she had first reported the assault to her sister or to her mother. But M. F., nine years of age at the time of trial, testified clearly to Olivas's assault. The jury could reasonably have believed M. F.'s testimony. Affording due deference to the jury's credibility determinations, and considering the evidence in a neutral light, we hold that the jury was rationally justified in finding Olivas guilty beyond a reasonable doubt. The evidence was factually sufficient. We overrule Olivas's third issue.