Opinion
01-22-00248-CR
08-31-2023
DALE LEE BERG, JR., Appellant v. STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1554689
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
VERONICA RIVAS-MOLLOY, JUSTICE
A jury convicted Appellant Dale Lee Berg, Jr. of the first-degree felony offense of aggravated sexual assault of a child under the age of fourteen and assessed his punishment at twenty years in prison. In three issues, Berg argues (1) the trial court abused its discretion in designating one of two outcry witnesses, (2) the trial court abused its discretion in allowing extraneous-offense testimony, and (3) there was insufficient evidence to support the jury's verdict.
We affirm the trial court's judgment.
Background
Appellant Dale Lee Berg, Jr. was charged by indictment with sexually abusing his granddaughter, Jane, when she was between four and six years old.The indictment alleged that on or about March 1, 2016, Berg "unlawfully, intentionally and knowingly cause[d] the sexual organ of [Jane], hereinafter called the complainant, a person younger than fourteen years of age, to contact the mouth of the Defendant." Following a jury trial, the jury convicted Berg of the offense of aggravated sexual assault of a child less than fourteen. See Tex. Penal Code §§ 22.021(a)(1)(B)(iii), (a)(2)(B).
To protect the identity of the complainant we use pseudonyms. We refer to the complainant as Jane and to her parents as "Mother" and "Father."
Pretrial Rulings
The trial court conducted two hearings to determine the admissibility of certain challenged evidence. One hearing pertained to the admissibility of evidence concerning the alleged sexual abuse of another minor complainant by Berg, an extraneous offense. See Tex. Code Crim. Proc. art. 38.37, § 2(b). After the trial court ruled evidence of the extraneous offenses was admissible, the court granted defense counsel's motion for a limiting instruction. The limiting instruction, which the trial court read to the jury, stated:
Trial began on March 21, 2023. The Article 38.37 hearing on extraneous offenses was conducted on March 22, 2023. The outcry hearing was conducted on March 21, 2023.
Article 38.37, section 2(b) of the Code of Criminal Procedure states that notwithstanding Rules 404 and 405 of the Texas Rules of Evidence, when the defendant is on trial for certain offenses including aggravated sexual assault of a child, "evidence that the defendant has committed a separate offense" described in the statute "may be admitted in the trial of an alleged offense . . . for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant." Tex. Code Crim. Proc. art. 38.37, § 2(b).
You may hear evidence regarding allegations of the defendant committing other crimes, wrongs, or acts against the child who is the victim - who is not the victim of the alleged offense in the indictment in this case. You cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against that other child, if any. If you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against that child, you may then and only then consider the same in determining its bearing on relevant matters.
The trial court also conducted an outcry hearing under Article 38.072 of the Texas Code of Criminal Procedure to determine whether Jane's out-of-court statements to certain witnesses were admissible under the outcry statute. After the hearing, the trial court designated Jane's mother ("Mother") and Sarah DiStefano, a forensic evaluation clinician who interviewed Jane about the alleged abuse, as outcry witnesses. Mother was designated to testify about Jane's disclosure of the event that led to the charge in the indictment against Berg, and DiStefano was designated to testify about other details of that disclosure, and other alleged incidents of sexual abuse involving Berg and Jane. Berg was granted a running objection with respect to DiStefano's testimony as to the extraneous offenses allegedly committed against Jane, and the court also agreed to issue the following limiting instruction:
"When a defendant is charged with certain offenses against a child under the age of 14 . . . Article 38.072 [of the Texas Code of Criminal Procedure] allows into evidence [a] complainant's out-of-court statement so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. Though the terms do not appear in the statute, the victim's out-of-court statement is commonly known as an 'outcry,' and an adult who testifies about the outcry is commonly known as an 'outcry witness.'" See Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). The trial court must hold a hearing outside the presence of the jury to determine whether the victim's out-of-court statement is reliable, and thus admissible. Id. at 484-85.
Ladies and gentlemen, at this time you may hear evidence regarding allegations of the defendant committing other crimes, wrongs, or acts against the child who is the victim of the alleged offense in the indictment in this case. You cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against the child, if any. If you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against the child, you may then and only then consider the same in determining its bearing on relevant matters, including the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child.
The Trial
A. Mother
Mother testified at trial. She and Jane's father ("Father") are married and have six children. Jane is the second oldest. In the evening of March 9 or 10, 2017, Mother was making dinner. The kids were playing upstairs, and Mother was downstairs in the kitchen. Jane walked into the kitchen to talk to Mother. Jane "seemed really timid and she had . . . her hands up to her mouth[.] So I was wondering if something was wrong." Mother knew it was important because Jane said, '"Mom, I want to tell you something but it's really gross.'" Mother stated, "So I sat her down, had her sit on me. I said, 'Okay, what's wrong?'" Jane then said, '"When Grandpa Berg was here, he licked my bottom," or "When Grandpa Berg was visiting, he licked my bottom."'
Mother did not ask Jane any questions "in that moment." Rather, "I just let her share what she wanted to share and when she obviously felt like she was done, I let her go back and play. She obviously felt light again, just kind of let her go. I didn't want to hammer her." That night, Mother told Father about the abuse after putting the children to bed.
Mother testified that she "definitely believed" Jane about the abuse. They had been "taking precautions to keep this from happening" because they had seen "concerning behaviors" involving Berg "but we thought we had done a good job of trying to make sure there was distance and trying to teach her proper behaviors to . . . keep something like this from happening. . . . It didn't occur to me that something had already happened."
Before Jane's outcry, Mother and Father had been "concerned about [Jane's] behavior and didn't know if this was just a phase in her life. But she had exhibited more angry behaviors and . . . outbursts and overexaggerations from something little going on in her life that we had kind of started talking about. My husband would ask, does she need to go to therapy for anger management or is this normal for girls?" Before Jane's outcry, "just any little thing would just set her off. She would explode. 'Everyone hates me, no one understands me, you don't love me.' She would be, like, yelling at us just because we didn't want to give her something at dinner. It was like anything - it was like an above-normal reaction."
Mother testified that after Jane told her about the abuse, they "noticed a difference" in Jane's conduct. It was like a "weight just lifted off of her" after she told Mother. After telling Mother about the abuse, Jane "just . . . skipped away. And I thought, okay, she's apparently done and she's feeling fine, so I'll talk to her later." After Jane's disclosure, Mother noticed an improvement in Jane's moods. "She's laughing, she's having fun a little more. . . . [W]e just noticed she wasn't so . . . seeming upset . . . it's like we had remembered her being before."
Jane attended therapy in Houston on and off for a year after telling Mother about the abuse. Jane, who still occasionally gets upset about the abuse, does not like discussing it. When she gets upset about it now, Jane refers to the abuse as "the thing." She does not describe details of the abuse to Mother, who "only learned about more details from what someone else told [her] during the interview or what [she] heard [Jane] talk about or write down during therapy."
B. Father
Father is Berg's son. Father testified that Berg was a mechanical engineer at a nuclear power plant until he retired. In addition, Berg was a church youth leader, a scoutmaster, and an active father. Berg visited Father, Mother, and their children at various times in their home in Spring, Texas. Berg usually visited with his wife, Jane's grandmother. Father testified that Berg and Jane had a "wonderful relationship as far as [he] could tell. [Berg] would pay her a lot of attention, carry her around a lot. You know, everywhere we went . . . he would carry her around a lot and always be with her and it - you would never expect there's anything - like, she didn't have ill feelings at all." Jane always appeared to be happy around Berg. During his visits, Berg devoted the majority of his attention to Jane but also visited with his other grandchildren, which they enjoyed. Father trusted Berg to be around Jane. "I didn't think there was any big deal. I just figured . . . a lot of grandparents have their favorite grandkid and we figured that was the case and that's about it."
Father testified that Jane made an allegation of sexual abuse to Mother in March 2017. Mother told Father about it. He stated, "it was a shock that that happened." They called the police the following day. Jane also talked to Father regarding the allegations. She told Father that Berg put his mouth on her vagina.
At the time Jane told her parents of the abuse, Berg had not visited for several months; his previous visit had been in July 2016 and before that, in March 2016. Father testified that from his perspective, Berg's March 2016 visit "was just like any other visit." Berg did not visit again after Jane's disclosure of the abuse.
Jane did not recall the exact date of the abuse, but Berg visited Jane's family in Spring, Texas in March 2016 and the indictment reflects an abuse date of "on or around March 1, 2016."
Berg called Father about the allegations when he found out the police had been called. Berg wanted to know what Jane said, so Father told him: It involved an allegation of Berg putting his mouth on Jane's vagina. Father testified that Berg told him, "I'm not saying that she's lying but I don't recall that ever happening."
Before Jane's disclosure, "she used to grind her teeth really bad, especially when she was asleep. . . . [I]t sounded like she was chewing on walnut shells. And she would have a lot of really angry outbursts for we couldn't really tell for what reason, trouble sleeping, things like that. And then afterwards, it started to die down as - through the course of therapy, it really died down a lot."
C. Jane
Jane was born in March 2010. At the time of trial, she was in sixth grade. She testified the day before her twelfth birthday.
Jane testified that her Grandpa Berg touched her on one of her private parts, which "are used for going to the bathroom." She testified that Berg touched her in her bedroom when he got into her bed. She could not recall seeing Berg get into her bed or whether he was there when she woke up, but she "just remember[ed] him being there." She testified Berg "was laying down" and "had his head at the end of h[er] bed.... His head was - was licking my private parts." She said, "I was awake at the time and his head was on top of the sheets." She testified she does not recall what it felt like or whether it felt uncomfortable, but she saw him touch her private parts with his mouth.
Jane first testified during direct examination that she did not recall whether Berg's head was under the sheets but she later testified that Berg's head was on top of the sheets. Jane testified during cross-examination that Berg's head was out of the sheets, and she never saw his head under the sheets.
Jane testified that she told Mother and Father and "some police officers" what Berg did to her. She also talked with someone at the Children's Assessment Center ("CAC"). Before trial, Jane watched a video of her forensic interview at the CAC. She testified that everything she said in the interview was true, even though at trial she could not recall all the details of what she said during the CAC interview. The only incident of abuse Jane recalled at trial was the one in her bed.
D. Sarah DiStefano
DiStefano is a forensic evaluation clinician at the CAC in Houston. She testified that the CAC "is a facility that uses a multidisciplinary approach in the prevention, assessment, intervention, and treatment of child sexual abuse." The purpose of forensic interviews is to gather information in a neutral manner regarding allegations of abuse or violence. DiStefano testified that the majority of cases she sees involve delayed disclosures, often involving allegations of abuse made long after the abuse occurred. She stated there are many reasons for delayed disclosures, including age, fear of consequences, and threats by the perpetrator. DiStefano testified that it is not unusual for a child to tell one person about an act of abuse and later provide more detail about the abuse to another person.
DiStefano interviewed Jane on April 3, 2017. The interview was recorded. Jane was calm and quiet throughout the interview. During the interview, Jane made a disclosure of sexual abuse by Berg. Jane testified the abuse started when she was four, five, or six years old. DiStefano said it was not surprising Jane could not recall her exact age when the abuse began because time is a difficult concept for a child, especially if the abuse happened more than once.
According to DiStefano, Jane told her that the abuse happened at her home in the bathroom and also in her bedroom. Jane told DiStefano that "while she was laying in her bed in the bedroom, her grandfather was laying next to her and was licking her bottom." Jane talked during the interview "about how [Berg] took down her underwear and she was wearing a nightgown and that she could feel him licking her bottom." Jane told DiStefano she believed it was the front part of her bottom. The incident happened at night when everyone was asleep.
DiStefano testified that Jane provided sensory details consistent with someone who was sexually abused. For example, Jane's recollection of the clothes she was wearing and that everyone was sleeping during the event are sensory details. DiStefano testified that Jane told her she was five or six when this particular incident happened, and it happened the last time her grandfather visited. Jane told DiStefano the abuse happened two or three times in the bedroom and bathroom. With respect to one of the bathroom episodes, Jane talked about Berg "pulling out the tube that boys pee from . . . and then [he] made her touch it." She also talked about him "licking her bottom in the bathroom." Jane said Berg "grabbed her by the arm and took her into the bathroom and that he put down all of her fingers except for her index finger and made her touch on the tube where pee comes from." Jane told DiStefano she was five or six when that happened. There also was another bathroom incident where Jane "talked about the licking of the bottom again." With respect to her touching Berg's penis, she "talked about how it felt like skin but harder." DiStefano testified that such sensory details were consistent with a child who is making an outcry of sexual abuse. According to DiStefano, sensory details are difficult to make up unless it is something that actually happened to the child.
In all, Jane told DiStefano about two or three different acts of sexual abuse. DiStefano testified that it is normal for a younger child to be unclear on the frequency of sexual acts because typically children try not to remember these things. DiStefano testified that it is unlikely Jane would remember all the details that she disclosed when she was seven, given that she was almost twelve at the time of trial. She said when bad things happen, "typically kids like to or try to not remember those things. They push it back into their memories, especially if she disclosed when she was 7 and now she's almost 12. . . . it's likely that she wouldn't remember all the details that she had said during the time that she was 7."
DiStefano said most children talk about abuse in a matter-of-fact manner.
E. Carlos Huerta
Deputy Carlos Huerta works for the Constable Precinct 4 Office in Spring, Texas. He was called to Jane's house on March 10, 2017, where he met with Mother and Father. He did not interview Jane. A female sergeant on duty at that time also went to the house but Deputy Huerta did not observe any interviews the sergeant conducted, and the female sergeant did not testify at trial or during the outcry hearing. Deputy Huerta did not testify at the outcry hearing.
During trial, neither party called any law enforcement authorities to whom Jane spoke directly about the abuse.
F. Sharon Record
Sharon Record is a pediatric nurse practitioner at Texas Children's Hospital. She explained that medical personnel from Texas Children's Hospital care for children in the CAC's medical clinic.
Record testified that the CAC provides numerous services including social workers, child advocates, Children's Protective Services, law enforcement, and the medical clinic.
Record testified that she met with Jane on April 4, 2017. Jane had turned seven the previous month and was in first grade during the interview. Record testified that the referral report for Jane stated Jane "disclosed [that] when her grandfather was visiting, he kissed her on the lips and licked her bottom when they were in the restroom together." Record conducted an evaluation of Jane's physical and mental health and took a family history. The questionnaire that Jane's mother completed for the visit indicated Jane suffered from "sadness" and "anger" and "clenching teeth during the night." On the day of the exam, Mother told Record that Jane's emotions had been "up and down, crying for unknown reasons, and she had been urinating in her closet." Mother also told Record that she was "concerned when she found [Jane] had taken her underwear off with other children in the room." Mother told Record these behaviors "dramatically improved" after Jane disclosed the abuse, about three weeks earlier. Record testified these behaviors could be consistent with someone who was sexually abused, and they could be indicative of trauma or anxiety.
Medical records from Record's examination were admitted without objection during trial. Record read from the medical records at times during her direct examination.
Record testified that Mother told her she noticed Jane's "paternal grandfather was too 'close to her.' . . . His interactions seemed 'too familiar.' The other children felt he didn't pay them any attention, just [Jane]."
Record stated that when she spoke with Jane, she was cooperative and made eye contact but had some anxiety. According to Record, Jane said her grandfather "forced [her] to touch one of [his] private parts." Jane identified Berg by name. She told Record that Berg "forced [her] to touch the part where pee comes out." According to Record, Jane said Berg forced her to touch his private part with her finger and Berg did not have his clothes on at the time. Record testified Jane told her Berg touched the "front or back of [her] bottom." Record stated that when Jane referred to her bottom, she could have been referring to her vagina or her anus. Record testified that Jane told her Berg touched her bottom with his tongue. Jane told Record the abuse happened at Jane's house, but she did not know when. According to Record, Jane said the abuse occurred "two or three" times.
Record testified that she physically examined Jane head-to-toe. The exam was normal. Record stated a normal exam does not rule out or confirm the possibility of sexual abuse. Record explained that normal exams are common in abuse victims because the body heals quickly, children do not always disclose the abuse right away, and hormonal changes in puberty can change or make the appearance of the anogenital exam.
She testified that children disclose sexual abuse late for many reasons, such as embarrassment, developmental age, or fear of getting in trouble. It is more common for children to talk about abuse later than it is for them to talk about it when it happens. Record testified that it is not uncommon for a child to forget details about sexual abuse as the child gets older. As time goes on, details lose their vividness. Record testified that it is not unusual for a seven-year-old to not know how many times the abuse happened or when.
To protect her identity, we use "Natalie" as a pseudonym for this witness.
Natalie was sixteen years old when she testified at trial. She testified she presently lived in South Carolina but used to live in Arizona. She testified that she met Berg, who Natalie calls "Brother Berg," at church. He was her Sunday school teacher. Natalie and her siblings would go to Berg's house to wash his truck or go to the park or on a hike. Their interactions were "all generally really nice." Sometimes they planted things in his backyard or watched movies and played board game or dominoes. During the winter, they went to his house and watched the Nutcracker and had hot chocolate.
According to Natalie, Berg drove with her family from Arizona to South Carolina to help them move in 2014. On the last day of the move, when Natalie was eight years old, the families stayed in a hotel. Natalie testified she stayed in a room with Berg and three of her siblings. She shared a bed with her sister and Berg was in the other bed. Her other two siblings were on a pullout couch. Natalie testified that Berg "woke me up to tell me that I was kicking my older sister off the bed in my sleep and I should get in his bed with him." She stated she got into his bed and he was "sitting at the foot of the bed." Natalie was trying to lay down on the left side with her head on the pillow and trying to pull the blankets over her but she was not able to do so because "something was keeping me from pulling the blankets over me." Natalie testified that Berg "straddled me with both of his legs on either side of my body and then he asked me to take off my shirt and my pants and []then he started . . . to kiss me." She took off her shirt but not her pants. After Natalie took off her shirt, he started to kiss her. She testified when Berg kissed her, "He started at my face and then he went down in a line down my body . . . by the time he stopped kissing me, he was kissing me - kissing me on my vagina." He had pulled her pants down by that time. She "kept asking him to stop" but he did not. She testified that it made her "really confused" and uncomfortable. Eventually Berg stopped kissing her. He got ready to leave and she put her clothes back on. Natalie stated that Berg "asked her to walk him out to his car and to not tell anyone about what happened." At the car, Berg told Natalie he would miss her and that they would keep in touch. Then he left. She testified that she went back up to her hotel room and did not tell anyone for several years what had happened.
Berg's trial in connection with the alleged abuse against Jane was in 2022.
Natalie testified that she had contact with Berg between the last time she saw him in South Carolina and the time she told someone what he had done. Berg gave her an iPhone and they exchanged letters and emails and communicated via FaceTime, but they did not discuss what happened in the hotel room. Natalie testified that when she was fifteen, she told her best friend what happened with Berg, right after she realized "it wasn't a good thing." When she got home from school that day, Natalie told her older sister, and they told their mom. According to Natalie, her mom told her dad, and they reported it to the police. Natalie did a forensic interview, and a police report was prepared. Natalie testified that she told the police she received emails and text messages and "other traffic" from Berg and they took her phone. She stated that she knows Berg was not charged in connection with the alleged assault. The fact that nothing ever happened with the case "was a little bit disappointing."
Natalie testified that she does not know Jane.
H. Dr. Nicole Dorsey
Dr. Nicole Dorsey is the CAC's clinical director and oversees the CAC's therapy and psychological services department. She is a licensed psychologist. She does not know Jane and did not interview her.
Dr. Dorsey testified that while children react differently to traumatic events, including sexual abuse, there are some symptoms they see frequently in child abuse victims, such as erratic emotions, teeth clenching, nightmares, and crying. She stated there are different ways for children to disclose what happened, and it depends a lot on the relationship the child had with the abuser, and whether the child believes she will be believed and protected.
Dr. Dorsey testified that delayed outcries happen when there has been an extended period of time between the event and the child disclosing to someone what happened. She stated that abusers are often people the victims trust and who tell the victim not to tell anyone about the abuse because it is a secret. Those things could play a part in a delayed disclosure. According to Dr. Dorsey, a delayed disclosure could occur depending on what a child believes the consequences of the disclosure will be. Also, children might think they will not be believed or protected. Younger children may also not know the abuse is wrong, making it less likely they will tell someone about it and more likely they will go along with people they see as authority figures. If the child is told the abuse is fine, the child may believe the abuser.
Dr. Dorsey stated that partial disclosures occur when children are not sure someone will believe them. The child will disclose a little of what happened and gauge the reaction. It could be that the child makes a partial disclosure and gives a full disclosure later. Dr. Dorsey testified that younger children who disclose abuse may not use the correct terminology or have all of the details or may have difficulty recalling what happened. Dr. Dorsey also testified that children under age six or seven may not have stable memories of abuse. They may remember something for a short period of time but later have trouble remembering it. Often the most salient details are what the brain determines is the most important, which it remembers later, or sensory details. Early childhood memories fade over time. Young children's memories can thus change as time goes on and they may have trouble remembering the abuse later.
Dr. Dorsey testified that forensic interviews focus on sensory details to help the child recall more specific information. The interviewers are trained to ask questions that are not leading, and to focus on what actually happened and what the children remember. Reliability factors for disclosures involve multiple disclosures of the same general facts to multiple people, but each disclosure does not have to be exactly the same. She stated that as people tell stories, they forget certain things or remember new details, and just because details have been omitted or added does not mean the abuse did not happen. Sometimes children may get confused about the specific order of events or details related to it. That tends to occur with trauma where the order of events is not salient.
As children age and realize the abuse was wrong, they might be more willing to disclose it or they might be embarrassed, finding it difficult to talk about. Some abuse victims try to block out the memories or they may say they have spoken about the abuse so much they do not want to talk about it anymore. Dr. Dorsey acknowledged that children may exhibit symptoms such as feeling emotional, sad, angry, or moody for reasons other than sexual abuse, such as for example, knowledge of a parent's illness.
I. Defense witnesses
The defense called two character witnesses during the guilt-innocence phase of trial: Donald Shawn Pobst and Robert Field.
Donald Shawn Pobst of Queen Creek, Arizona testified that he met Berg through church. He also worked and lived near Berg and worked together with him as scoutmasters. He testified he had known Berg for thirty-one years, that he believed Berg was a law-abiding citizen, and that Berg had a reputation in the community for being law-abiding. Pobst testified he was not aware of the specifics of the charge against Berg.
Robert Field of Litchfield Park, Arizona testified he worked with Berg. Field testified that he and other members of the community believed Berg was a law-abiding citizen. He testified he did not know what Berg had been charged with.
J. Verdict and Punishment
The jury found Berg guilty of aggravated sexual assault of a child under fourteen years of age and assessed his punishment at twenty years' confinement in the Correctional Institutions Division of the Texas Department of Criminal Justice.
This appeal ensued.
Discussion
A. Legal Sufficiency
In his third issue, Berg argues the evidence is legally insufficient to sustain the verdict because Jane's testimony and the outcry witness testimony of DiStefano "lacked sufficient specificity and credibility to sustain the verdict."
1. Standard of Review and Applicable Law
We review a challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In evaluating whether the evidence was sufficient to support a conviction, we look at the evidence "in the light most favorable to the verdict and determine whether any rational trier of fact could have found each essential element of the crime beyond a reasonable doubt." Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015) (citing Jackson, 443 U.S. at 319; Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008)). If we ascertain that a rational trier of fact would have a reasonable doubt as to the defendant's guilt, we must reverse the conviction. Id. (citing Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003)). We defer to the determinations made by the finder of fact as to the witnesses' credibility and the weight to be given their testimony. Id. (citing Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)). We defer to the jury "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. The standard of review is the same regardless of whether the evidence is direct or circumstantial. Nowlin, 473 S.W.3d at 317 (citing Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)).
To prove Berg committed aggravated sexual assault of a child under fourteen years old, the State was required to prove beyond a reasonable doubt that (1) Berg intentionally or knowingly caused the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person; and (2) the victim is under fourteen years of age. See Tex. Penal Code §§ 22.021(a)(1)(B)(iii), (a)(2)(B). Outcry testimony alone can be legally sufficient evidence to support a conviction. Eubanks v. State, 326 S.W.3d 231, 241 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)). A child victim's testimony may alone suffice to support a conviction. Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.-Amarillo 2012, no pet.); Bautista v. State, 605 S.W.3d 520, 525 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (observing "well-established principle that a child sexual abuse victim's uncorroborated testimony is sufficient to support a conviction for aggravated sexual assault"). We "liberally construe" the testimony of child sexual abuse victims. Lee v. State, 176 S.W.3d 452, 457 (Tex. App.-Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006).
2. Analysis
Berg does not cite any caselaw in his legal sufficiency argument. He argues that Jane provided the only direct testimony tending to prove Berg's guilt and her testimony "was too vague for a jury to convict." Berg points to alleged contradictions in Jane's testimony as to whether she could see Berg's head when the alleged assault occurred or if his head was under the sheets, and he argues that Jane gave no details "as to how it would be physically possible for this incident to occur as she described."
During her testimony, Jane described an incident of sexual abuse by Berg that occurred six to eight years earlier. Jane testified that Berg "was licking [her] private parts" after getting into her bed. She told her parents, the police, DiStefano, and Record about this particular incident of abuse which led to the charge and indictment against Berg. Jane also told at least some of those individuals about two other alleged incidents of abuse by Berg. Her recounting of the abuse during her forensic interview included sensory details from these alleged assaults. Jane testified during trial that while she could not recall all the details of the abuse, what she stated during her CAC interview was truthful.
Jane's uncorroborated testimony is sufficient to support Berg's conviction. See Perez v. State, 562 S.W.3d 676, 689 (Tex. App.-Fort Worth 2018, pet. ref'd) ("[I]t is well established that the uncorroborated testimony of a child victim alone can be sufficient to support a conviction of aggravated sexual assault of a child.") (citing Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978)); see also Tex. Code Crim. Proc. art. 38.07. "The State has no burden to proffer any physical, medical, or other evidence to corroborate the victim's testimony." Thompson v. State, No. 07-20-00101-CR, 2022 WL 837732, at *5 (Tex. App.- Amarillo Mar. 21, 2022, no pet.) (mem. op., not designated for publication) (citing Garcia, 563 S.W.2d at 928); see also Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd) (holding that despite victim's "unsophisticated terminology and rough time-frame of the events," her detailed account of sexual abuse "even if unsupported by any other evidence, would be sufficient to support appellant's convictions for aggravated sexual assault"). To the extent there may have been contradictions in Jane's testimony, "[w]e presume the jury, when faced with conflicting evidence, resolved conflicts in favor of the prevailing party." Bargas, 252 S.W.3d at 888.
Child complainants are "not expected to testify with the same clarity and ability as is expected of a mature and capable adult." Hiatt v. State, 319 S.W.3d 115, 121 (Tex. App.-San Antonio 2010, pet. ref'd) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)).
In addition to Jane's testimony, testimony from the outcry witnesses provided facts from which a rational jury could have inferred that Berg committed an aggravated sexual assault against Jane. Indeed, Berg concedes that the testimony from the outcry witnesses "could be sufficient to sustain the verdict." He argues, however, that the outcry testimony was even less credible than Jane's because it was less detailed than Jane's testimony.
Mother testified as an outcry witness. She testified that Jane told her about the abuse when Jane was almost seven years old. During the evening of March 9 or 10, 2017, while Mother was preparing dinner in the kitchen, Jane came down to talk to her. Mother testified Jane "seemed really timid and she had . . . her hands up to her mouth[.] So I was wondering if something was wrong." Jane told Mother, "Mom, I want to tell you something but it's really gross." Mother sat Jane with her and asked her was wrong. Jane told her that when "Grandpa Berg was here, he licked my bottom." Mother believed Jane because she and her husband had seen "concerning behaviors" by Berg toward Jane. And they had also observed concerning behavior in Jane. After Jane told Mother about the abuse, it was like a "weight just lifted off of [Jane]." Mother testified that she later learned additional details about the sexual abuse from others and from what she heard in therapy.
The other outcry witness, DiStefano, testified in the greatest detail about the sexual abuse. DiStefano testified that Jane told her Berg sexually abused her and that the abuse started between the ages of four and six. DiStefano testified it was not surprising to have such a big age range in recalling abuse because time is a difficult concept for a child, especially if the abuse happened more than once. DiStefano testified that Jane told her about incidents of sexual abuse that occurred in the bathroom and in her bedroom. Jane told DiStefano said that in her bedroom, while she was lying in her bed, Berg was lying next to her and was licking her "bottom." Jane talked during the interview with DiStefano about how Berg took down her underwear. Jane was wearing a nightgown and she could feel him licking what she recalled being the front part of her bottom.
DiStefano testified that Jane provided sensory details consistent with someone who was sexually abused. For example, Jane said of the abuse that allegedly occurred in the bathroom that Berg "pull[ed] out the tube that boys pee from . . . and then [he] made her touch it." She also talked about Berg "licking her bottom" in the bathroom. Jane also told DiStefano that Berg "grabbed her by the arm and took her into the bathroom and that he put down all of her fingers except for her index finger and made her touch on the tube where pee comes from," which she said, "felt like skin but harder." DiStefano testified that it is unlikely Jane would remember all the details she disclosed when she was seven, given that at trial she was almost twelve.
Testimony from an uncorroborated outcry witness is sufficient to support a conviction for sexual abuse of a child. Eubanks, 326 S.W.3d at 241 ("[T]here is no requirement that outcry testimony admitted as substantive evidence be corroborated or substantiated by the victim or by independent evidence.") (citing Rodriguez, 819 S.W.2d at 874); see also Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.-Corpus Christi 2008, pet. ref'd) (holding outcry witness' testimony was sufficient to support conviction for aggravated sexual assault despite victim's inconsistent testimony at trial); Fernandez v. State, No. 01-21-00541-CR, 2023 WL 3742350, at *7 (Tex. App.-Houston [1st Dist.] June 1, 2023, no pet. h.) (mem. op., not designated for publication) ("Testimony from an outcry witness, standing alone, can [ ] be sufficient to support a conviction for continuous sexual abuse of a child.").
Evidence of the alleged extraneous offenses involving Natalie also supports the verdict. Natalie, who did not know Jane, testified that Berg abused her eight years earlier, when she was eight years old. She testified that Berg, who was traveling with her family and sleeping in her hotel room, "straddled her" in bed one night, "asked [her] to take off [her] shirt and [her] pants . . . and then he started . . . to kiss [her]." She testified that he "started at [her] face and then he went down in a line down [her] body" until he was kissing her vagina.
In support of his sufficiency challenge, Berg also argues the trial court erred in allowing DiStefano to testify about what Jane told her during the forensic interview, and in "allowing evidence of multiple extraneous offenses" involving Jane and Natalie. The State correctly responds that Berg's attempt to exclude evidence of the extraneous offenses and of DiStefano's outcry testimony from our legal sufficiency review is improper. "[I]n analyzing legal sufficiency, we 'determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.' Our review of 'all of the evidence' includes evidence that was properly and improperly admitted." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (internal citations omitted); see also Hernandez v. State, 585 S.W.3d 537, 548 (Tex. App.-San Antonio 2019, pet. ref'd) ("[I]n a legal sufficiency review, we consider all the evidence-even improperly admitted evidence.") (emphasis in original); Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) ("In applying the Jackson sufficiency review, an appellate court must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider.") (emphasis in original) (citations omitted). Thus, even though Berg challenges the admissibility of the outcry witness testimony and the extraneous offense evidence, we must and do consider it in our sufficiency review. Rodriguez, 819 S.W.2d at 873 (explaining that despite holding that outcry testimony was inadmissible, such evidence must be considered in addressing challenge to sufficiency of evidence).
Finally, testimony from Father, Record, and Dr. Dorsey also supported Jane's allegations. Father testified that Berg paid more attention to Jane than to his other grandchildren. Father stated that Jane talked to him about the alleged abuse. He testified that when he told Berg of Jane's allegations, Berg did not deny the abuse. Instead, Berg told him, "I'm not saying that she's lying but I don't recall that ever happening."
Record testified that Jane told her Berg touched her vagina or anus with his tongue. Jane also told her Berg forced her to touch his penis and that Berg was naked at the time. Record testified Jane told her the abuse happened at her house but she did not recall when. Record testified that there are many reasons why a seven-year-old might not know how many times abuse happened or when the abuse occurred. Record told the jury children disclose sexual abuse late for various reasons, including embarrassment, developmental age, and fear of getting in trouble, and that it is more common for children to talk about abuse later than it is for them to talk about it shortly after it happens. She stated it is not uncommon for children to forget details about sexual abuse as they age, because details lose their vividness as time passes. See Adams v. State, 502 S.W.3d 238, 244 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (holding nurse examiner's testimony about child complainant's statements to her regarding performing oral sex on appellant was "sufficient evidence from which the jury reasonably could have concluded" appellant sexually assaulted complainant, even though complainant testified at trial she could not remember performing oral sex on appellant).
Dr. Dorsey testified about delayed outcries and explained that children under age seven may not recall all the details of abuse. She stated that even though the child omits or adds details in subsequent discussions of the abuse, it does not mean the abuse did not occur.
We conclude that, when viewing the evidence in the light most favorable to the verdict, a reasonable jury could have found beyond a reasonable doubt that Berg committed the charged offense of aggravated sexual assault of a child as charged in the indictment. We find the evidence legally sufficient to support Berg's conviction.
We overrule Berg's third issue.
B. Evidence of Extraneous Offenses
In his second issue, Berg complains about the admissibility of certain extraneous offense evidence. He challenges the admissibility of Natalie's testimony concerning her alleged sexual assault by Berg. And Berg also complains about DiStefano's testimony that Jane told her Berg exposed his penis to Jane and made her touch it. Berg argues that the alleged extraneous offenses were not proven beyond a reasonable doubt and that evidence of the alleged extraneous offenses was unduly prejudicial and carried little probative value. The State responded that Berg waived this argument, but that in any event, the testimony is admissible under Article 38.37 of the Texas Code of Criminal Procedure, Texas Rule of Evidence 404(b), and as "same-transaction contextual evidence."
1. Standard of Review and Applicable Law
We review a trial court's ruling on the admission of evidence under an abuse-of-discretion standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). This standard of review applies to a trial court's decision to admit evidence of extraneous offenses. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). "As long as the trial court's ruling is within the 'zone of reasonable disagreement,' there is no abuse of discretion, and the trial court's ruling will be upheld." Id. at 469.
Article 38.37 of the Texas Code of Criminal Procedure provides that when a defendant is tried for sexual assault of a child, the State may, notwithstanding Texas Rules of Evidence 404 and 405, introduce evidence at trial "that the defendant has committed a separate offense[.]" Tex. Code Crim. Proc. art. 38.37, § 2(b). If the decision to admit evidence under Article 38.37 is supported by the record, there can be no abuse of discretion and the trial court's ruling will not be reversed. Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.-Texarkana 2011, pet. ref'd) (citing Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002)). The reviewing court will not substitute its own decision for that of the trial court. Marsh, 343 S.W.3d at 478 (citing Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)).
Rule 404 allows the admission of "Crimes, Wrongs, or Other Acts" of an accused to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Tex. R. Evid. 404(b). Such evidence is not admissible "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Tex. R. Evid. 404(a).
Rule 405 states in pertinent part, "When a person's character or character trait is an essential element of a charge, claim, or defense, the character trait may also be proved by relevant specific instances of the person's conduct." Tex. R. Evid. 405(b).
As noted, Article 38.37 evidence is admissible "for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant." Tex. Code Crim. Proc. art. 38.37, § 2(b); see also Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.-Tyler 2015, no pet.) (noting that in trial of a defendant for certain sexual crimes against children, Article 38.37, section 2(b) allows admission of evidence that defendant previously committed certain offenses against non-victims of charged offense); Buxton v. State, 526 S.W.3d 666, 689 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) (affirming trial court's admission of evidence pursuant to Article 38.37 that defendant committed extraneous bad acts against complainant's sister).
Section 1(b) of Article 38.37 allows the admission of evidence, notwithstanding Texas Rules of Evidence 404 and 405, of other crimes, wrongs, or acts committed by the defendant against the complainant "for its bearing on relevant matters, including (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child." Tex. Code Crim. Proc. art. 38.37, § 1(b); see also Taylor v. State, 509 S.W.3d 468, 476 (Tex. App.-Austin 2015, pet. ref'd) (holding trial court could reasonably have determined evidence of extraneous offense against complainant was admissible under section 1 of Article 38.37).
An extraneous offense is "any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and which was shown to have been committed by the accused." Martinez v. State, 190 S.W.3d 254, 262 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (citation omitted). The evidence of a separate offense against one other than the complainant is admissible "so long as the trial court first determines after a hearing outside the jury's presence that the evidence likely to be admitted will be adequate to support a jury finding that the defendant committed the separate offense beyond a reasonable doubt." Castillo v. State, 573 S.W.3d 869, 880 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd) (citing Tex. Code Crim. Proc. art. 38.37, § 2(b), 2-a). The defendant need not have been charged with, tried for, or convicted of the separate offense for the evidence to be admissible. Id. at 880-81 (noting that "Texas appellate courts have affirmed the admission of or reliance on evidence that the defendant committed a separate sexual offense against another child under article [38.37] despite the dismissal of charges concerning those separate offenses"); see also Wishert v. State, 654 S.W.3d 317, 331 (Tex. App.-Eastland 2022, pet. ref'd) ("For this type of [extraneous] evidence to be admissible under Article 38.37, Section 2(b), the defendant need not have been charged with, tried for, or convicted of the separate offense."). The Article 38.37 hearing requirement does not apply to extraneous offenses committed against the complainant. Tex. Code Crim. Proc. art. 38.37 § 1(b); see also Corporon v. State, 586 S.W.3d 550, 559 n.4 (Tex. App.-Austin 2019, no pet.) ("We note that the requirement of a hearing applies only to evidence relating to extraneous offenses committed against the victim's sister, not to extraneous offenses committed against the victim."); Garcia v. State, No. 13-17-00218-CR, 2019 WL 1388532, at *10 (Tex. App.-Corpus Christi-Edinburg Mar. 28, 2019, pet. ref'd) (mem. op., not designated for publication) (holding that section 1(b) of Article 38.37, which pertains to extraneous offenses committed against victim of charged offense, is not subject to hearing requirement).
Finally, Texas Rule of Evidence 403 states the "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403.
Evidence is relevant if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Tex. R. Evid. 401.
2. Briefing Waiver and Scope of Review
Most of Berg's brief with respect to his second issue jointly addresses the testimony elicited from Natalie and DiStefano regarding extraneous offenses. Berg broadly argues that Article 38.37 and Texas Rule of Evidence 403 preclude both Natalie's and DiStefano's extraneous offense testimony. He argues in his brief that the evidence admitted under Article 38.37 is "extremely inflammatory and highly prejudicial." Berg does not contend that the trial court abused its discretion in admitting Natalie's or DiStefano's testimony pursuant to Article 38.37. Rather, he argues that Natalie's testimony is prejudicial and too far removed to be probative, thus the trial court abused its discretion in admitting the testimony.
See generally Bradshaw v. State, 466 S.W.3d 875, 877 (Tex. App.-Texarkana 2015, pet. ref'd) (affirming trial court judgment involving admission of extraneous offenses on two grounds "because, assessed by our abuse-of-discretion standard of review, (1) under Article 38.37, sufficient evidence supported admission of the evidence of B.P.'s sexual assault and (2) under Evidence Rule 403, the prejudicial effect of the evidence from A.G. and K.M. did not outweigh its probative value.").
We do not address the admissibility of the Article 38.37 testimony under Rule 404 because evidence that is admissible under Article 38.37 is admissible notwithstanding Rule 404. See Tex. Code Crim. Proc. art. 38.37, §§ 1(b), 2(b).
We thus review the admission of Natalie's and DiStefano's testimony under Texas Rule of Evidence 403.
3. Natalie's testimony
Berg argued that Natalie's testimony was unreliable and unfairly prejudicial during the Article 38.37 hearing. On appeal, he argues that admitting Natalie's testimony caused "immense prejudice" and was improperly offered to show Berg's character. He contends the trial court did not conduct a Rule 403 balancing test but, rather, "simply stopped the legal analysis after finding the evidence admissible under 38.37."
The trial court did not refer to Texas Rule of Evidence 403 in its ruling. However, the trial court is not required to "place any findings he makes or conclusions he draws when engaging in this [Rule 403 balancing] test into the record." Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). The trial court is presumed to engage in the balancing test once Rule 403 is invoked. Id. However, the law does not require that the trial court state on the record that it conducted a balancing test. Reyes v. State, 480 S.W.3d 70, 77 (Tex. App.-Fort Worth 2016, pet. ref'd). In any event, Berg did not object in the trial court to the court's purported failure to conduct a Rule 403 test. As discussed below, we assume without deciding that the trial court conducted a Rule 403 balancing test.
We note that the volume of the reporter's record containing the transcript of the Article 38.37 hearing was filed under seal pursuant to an order of the trial court. See Tex. R. Civ. P. 76a . Because of the sealing order, some of our references to the record are deliberately vague. See TMX Fin. Holdings, Inc. v. Wellshire Fin. Servs., LLC, 515 S.W.3d 1, 4 n.1 (Tex. App.-Houston [1st Dist.] 2016, pet. dism'd). We further note, however, that the portion of the reporter's record containing Natalie's trial testimony, which was largely duplicative of her testimony during the Article 38.37 hearing, was not filed under seal.
Natalie was the only witness who testified during the Article 38.37 hearing. Natalie, who was sixteen at the time of the hearing, testified that she lived in South Carolina, having moved there eight years earlier from Arizona. She testified that she met "Brother Berg" through Sunday School at her church. Berg helped Natalie's family move to South Carolina when Natalie was eight years old. When they arrived in South Carolina, Natalie, her older sister and two younger siblings stayed in a hotel room with Berg. Natalie shared a bed with her older sister, the two younger children were on a pullout couch, and Berg was in the other bed.
Natalie testified that she recalled Berg waking her up in the early morning, telling her she "was kicking [her] older sister off the bed and that [Natalie] should get in his bed with him." She testified, "And then I - I got into his bed with him because I thought we were going to sleep." She "got out of [her] own bed and [ ] walked over to his and laid down in his." After getting into his bed, she laid down, put her head on the pillow, and tried to pull a blanket over herself, but something, "like some kind of a force, that was like keeping me from . . . pulling the blankets over me." She testified that Berg was sitting near the foot of the bed. He then "scooted across the bed" and "was next to me and then he kind of straddled over me. . . . he like kind of . . . sat over me like where he had both of his legs on either side of my body." Berg asked her to take off her shirt and pants. She took off her shirt and he started to kiss her. "[H]e started up at my face and then he just kind of went down in a line." He kissed her neck and her sternum. "[W]hen he was done kissing my upper body, he did at one point pull my pants and underwear away." Then, "[h]e just kind of started kissing me down there." She clarified that Berg was kissing her vagina. Natalie stated it was "really uncomfortable" because "he was like touching me in places that I subconsciously knew he shouldn't be touching me." When he put his mouth on her vagina, "I remember I was asking him to stop." He stopped when he said he had to leave and told her not to tell anyone. She pulled her clothes back on and then walked with Berg out to his car. According to Natalie, Berg told her they would keep in touch and that he would miss her. She testified that they exchanged letters and emails and communicated via FaceTime for a couple of years after the alleged assault.
Natalie testified that she told her parents about the alleged assault when she was in seventh grade, after she had a sexual education class and "fully realized" that what had happened with Berg "wasn't okay." According to Natalie, they reported it to the police, but the case did not proceed because there was no proof the abuse happened.
At that point, the trial court considered whether an alleged assault of Natalie by someone other than Berg was admissible. See Tex. R. Evid. 412. The court ruled it was not and Berg does not challenge that ruling on appeal.
Natalie stated that she told her best friend about the alleged abuse. She also told her older sister. Both Natalie and her sister told their mother, who then told their father. Natalie testified that she talked to a forensic interviewer about Berg. She stated she did not give the forensic interviewer the detail of the assault she gave during her testimony because she has been in therapy and has come to terms with what happened. She testified that previously, she had been blocking the incident from her mind because it gave her panic attacks.
In arguing against the admissibility of Natalie's testimony during the hearing, Berg noted that Natalie had waited five years to report Berg's alleged abuse. He argued nothing corroborated her statement, and that if there was anything to her statement, the state of South Carolina would have prosecuted the case against Berg. Berg observed that despite the forensic interview, the police report, and the phone that she gave the police, they did nothing to prosecute the case. He argued the evidence was not reliable and that any probative value evidence of the alleged assault by Berg was substantially outweighed for its potential for unfair prejudice. He thus argued the evidence should be excluded under Rule 403. During the hearing, Berg's counsel stated:
We should not bring in this extraneous evidence. It's not reliable and it was not even reliable enough to have a charge levied and we should not taint this trial by bringing that evidence in. The - whatever probative value that evidence has is substantially outweighed for its potential for unfair prejudice against Mr. Berg so it would be precluded by Texas Rule of Evidence 403 and we argue that it should not be allowed.
The State argued Natalie's testimony was admissible under Article 38.37, section 2 (a) because "she's credible, she's reliable, and she's able to articulate the elements of an offense of aggravated assault under 14" committed by Berg. The State argued Natalie had provided sensory details and had been able to explain what happened. The State argued it did not matter whether Natalie made an immediate or delayed disclosure or that Berg was not charged as a result of her report of the alleged assault. The State argued that evidence of Berg's alleged assault of Natalie was "certainly probative and necessary to show before the jury the defendant's behavior with other children" and "not prejudicial by any stretch and it rebuts a defensive theory[.]"
The court held Natalie's testimony was admissible under Article 38.37. Prior to her testimony during trial, the court gave the following limiting instruction:
You may hear evidence regarding allegations of the defendant committing other crimes, wrongs, or acts against the child who is the victim - who is not the victim of the alleged offense in the indictment in this case. You cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against that other child, if any. If you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against that child, you may then and only then consider the same in determining its bearing on relevant matters.
b. Preservation of Error
The State complains that Berg did not preserve error with respect to Natalie's testimony. However, Berg argued during the Article 38.37 hearing that Natalie's testimony "would be precluded by Texas Rule of Evidence 403 and . . . should not be allowed." We construe Berg's comment as an objection pursuant to Rule 403. Given that the trial court made a specific ruling at the conclusion of the hearing that Natalie's testimony was admissible, we conclude the trial court overruled Berg's objection. See Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997) ("Although appellant asserts that the trial court did not perform the balancing test, the trial court did not explicitly refuse to do the test, it simply overruled appellant's Rule 403 objections. We find nothing in the record to indicate that the trial court did not perform a balancing test, albeit a cursory one."); Yates v. State, 941 S.W.2d 357, 367 (Tex. App.-Waco 1997, pet. ref'd) ("By overruling the Rule 403 objection, the court necessarily conducted the balancing test when it considered the objection."). Thus, we hold Berg preserved error with respect to the admission of Natalie's testimony pursuant to Rule 403. See Tex. R. Evid. 103(b) ("When the court hears a party's objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal."); Geuder v. State, 115 S.W.3d 11, 15 (Tex. Crim. App. 2003) (holding appellant's "timely and sufficiently specific objection which complied with Rule 103(a)(1)," coupled with court's ruling on objection, preserved complaint regarding admissibility of evidence). We further find that the trial court conducted a Rule 403 balancing test in making its ruling. See Yates, 941 S.W.2d at 367.
c. Analysis
Berg argues that Natalie's testimony "was removed by approximately 8 years" and that the police "did not even have probable cause to issue a warrant for [Berg's] arrest." He contends that given that probable cause did not exist for criminal charges to be filed in connection with Natalie's report of the assault, and in light of the remoteness in time of Natalie's allegation against Berg, the allegation of the assault was not proven beyond a reasonable doubt during trial and admission of such evidence was unduly prejudicial in comparison to its marginal probative value.
We are not persuaded that the remoteness is dispositive. "Remoteness does not per se render an extraneous offense irrelevant." Linder v. State, 828 S.W.2d 290, 297 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). "Evidence either has probative value, or it does not. . . . [R]emoteness is of import not when determining whether when extraneous-offense evidence has probative value but when assessing whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice or similar concerns under Rule 403." Newton v. State, 301 S.W.3d 315, 318 (Tex. App.-Waco 2009, pet. ref'd) (internal citation omitted). The Waco Court of Appeals recently addressed the relationship between Article 38.37 and Rule 403:
The admission of evidence pursuant to Article 38.37, Section 2(b) is limited by Rule 403's balancing test, which permits admission of evidence as long as its probative value is not substantially outweighed by its potential for unfair prejudice. Even so, Rule 403 "should be used sparingly to exclude relevant, otherwise admissible evidence that might bear on the credibility of either the defendant or complainant in such 'he said, she said' cases." Because evidence of separate sexual offenses is "probative on the issues of intent and a defendant's character or propensity to commit sexual assaults on children" if sufficient evidence is provided regarding the extraneous offense, the probative value of sexual offenses committed against other children is generally not substantially outweighed by the "danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence."Deggs v. State, 646 S.W.3d 916, 925 (Tex. App.-Waco 2022, pet. ref'd) (internal citations omitted).
As noted, we assume the trial court conducted a Rule 403 balancing test in connection with the Article 38.37 hearing. In conducting a Rule 403 balancing test, the trial court must consider the following non-exclusive factors:
(1) how probative the evidence is, (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence.Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). The factors "may well blend together in practice." Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006). Upon our review, we find the Rule 403 factors support the admission of Natalie's testimony.
Compare with Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) ("[A] trial court, when undertaking a Rule 403 analysis, must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.").
With regard to the first factor, "evidence of a separate sexual offense against a child admitted under Article 38.37, Section 2(b) is probative of a defendant's character or propensity to commit sexual assaults on children." Deggs, 646 S.W.3d at 925-26 (citing Bradshaw v. State, 466 S.W.3d 875, 883 (Tex. App.- Texarkana 2015, pet. ref'd) ("The statute recognizes that evidence of this type is, by definition, propensity, or character evidence. It is admissible notwithstanding those characteristics.")); see also Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) ("[T]he Rule 403 balancing test normally will not favor the exclusion of evidence of the defendant's prior sexual assaults of children.") (citing Belcher, 474 S.W.3d at 848). Natalie's testimony is probative of Berg's character or propensity to commit sexual assaults on children. Accordingly, it favors admission.
The second factor considers whether the testimony has the potential to "irrationally impress" the jury. Ryder v. State, 581 S.W.3d 439, 453 (Tex. App.- Houston [14th Dist.] 2019, no pet.). Given the fact that there was some similarity between the charged offense and the extraneous offense-both involved young girls who knew Berg well, and both alleged Berg had inappropriately touched their genitalia-"there is always a potential that the jury may be unfairly prejudiced by the defendant's character conformity." Id. But the limiting instruction minimized any "impermissible inference of character conformity." See id. (citing Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)). And Berg did not "demonstrate how the extraneous offense evidence was any more heinous than the evidence pertaining to the charged offenses." Id. (citing Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.-Austin 2016, pet. ref'd)). This factor weighs in favor of admission.
See Vega v. State, 255 S.W.3d 87, 105 (Tex. App.-Corpus Christi-Edinburg 2007, pet. ref'd) ("Generally, we presume the jury follows the trial court's instructions and that a limiting instruction cures any harm.") (citing Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994)).
Insofar as the third factor is concerned, Natalie's testimony did not consume an inordinate amount of time or repeat evidence that already had been admitted during trial. Her testimony spanned approximately twenty-one pages of the reporter's record, which comprised more than 250 pages. See Deggs, 646 S.W.3d at 927. This factor weighs in favor of admission.
The fourth factor pertains to the State's need for the evidence. The Legislature has acknowledged that
because of the nature of child sex offenses, there is typically very little evidence to assist prosecutors with proving their cases. Victims, especially children, are many times so scarred by the physical and emotional trauma of the event that there are often long delays in the reporting of the crime, and these delays can lead to the destruction or deterioration of what little physical evidence exists. As a result, the primary piece of evidence in most child sexual abuse cases is a traumatized child.Bradshaw, 466 S.W.3d at 884 (citing Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013)). "In the absence of the extraneous-offense evidence, this becomes a 'he said, she said' case." Id. There was no physical evidence in support of Jane's allegation and there were no eyewitnesses. See Newton, 301 S.W.3d at 320. In addition, Jane did not recall all of the details about the abuse because it had happened years before. Thus, the State required the extraneous offense evidence. We find the fourth factor favors admission.
We conclude the trial court could have reasonably concluded the probative value of Natalie's testimony was not substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; see also Alvarez, 491 S.W.3d at 371 (holding similar evidence of sexual assaults against children other than complainant was admissible over Rule 403 objection). We hold the trial court did not abuse its discretion in admitting Natalie's testimony.
See also Williams v. State, No. 06-19-00272-CR, 2020 WL 7483956, at *6 (Tex. App.-Texarkana Dec. 21, 2020, pet. ref'd) (mem. op., not designated for publication) ("Because evidence of separate sexual offenses is 'probative on the issues of intent and a defendant's character or propensity to commit sexual assaults on children,' existing authority has found that the probative value of sexual offenses committed against nonvictims is not substantially outweighed by the 'danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.'") (internal citations omitted).
4. DiStefano's Testimony Regarding Extraneous Offenses
Berg argues the trial court erred in allowing DiStefano to testify that Berg exposed himself to Jane and made her touch his penis. He argues that the only proof of the extraneous offenses with respect to Jane stemmed from DiStefano's hearsay testimony.
a. Preservation of Error
Here again, the State argues that Berg failed to preserve error regarding testimony as to Berg's alleged extraneous sexual offenses. However, the court drafted a limiting instruction to the jury at Berg's request. The instruction was created in response to "the court's ruling regarding the 38.37 evidence regarding the alleged contact between [Jane] and the defendant's genitals." The limiting instruction stated:
The Article 38.37 hearing only involved Natalie's testimony. There was no testimony during the hearing about other "crimes, wrongs, or acts" committed against Jane. As noted, however, the requirement for an Article 38.37 hearing does not extend to evidence of extraneous acts committed against the complainant; a hearing is only required with respect to evidence of extraneous acts committed against someone other than the complainant. Tex. Code Crim. Proc. art. 38.37 § 1(b); see also Corporon v. State, 586 S.W.3d 550, 559 n.4 (Tex. App.-Austin 2019, no pet).
Ladies and gentlemen, at this time you may hear evidence regarding allegations of the defendant committing other crimes, wrongs, or acts against the child who is the victim of the alleged offense in the indictment in this case. You cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against the child, if any. If you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or acts against the child, you may then and only then consider the same in determining its bearing on relevant matters, including the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child.During DiStefano's trial testimony, Berg objected to "any testimony of any extraneous act." The objection was overruled and the limiting instruction was read to the jury. In addition, the court granted a running objection to Berg in response to a motion that is not identified in the record but based on the court's statement, apparently pertains to DiStefano's extraneous offense testimony. We find Berg preserved error with respect to admission of DiStefano's Article 38.37 testimony, warranting a Rule 403 analysis.
Berg argues the only proof of the allegations of the extraneous offenses committed against Jane was from DiStefano's hearsay testimony. He states it is "outside the zone of reasonable disagreement to think that this weeks-old hearsay statement spoke [sic] to the fourth adult person, and not testified to by [Jane] in the presence of the jury was proven beyond a reasonable doubt." We conclude Berg did not preserve a hearsay objection with respect to DiStefano's extraneous offense testimony. Berg did not assert a hearsay objection prior to DiStefano's testimony during trial, nor did he get a running objection with regard to hearsay. His running objection concerned the subject matter of the limiting instruction-that the jury could not consider DiStefano's testimony regarding extraneous offenses unless it found beyond a reasonable doubt that Berg committed the extraneous crimes. See Schmidt v. State, 612 S.W.3d 359, 365 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd) ("The issue must comport with the objection made at trial.") (citing Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016)); see also Braden v. State, No. 05-17-00499-CR, 2018 WL 3725266, at *3 (Tex. App.-Dallas Aug. 6, 2018, no pet.) (mem. op., not designated for publication) ("We have previously stated that to preserve error on the ground that a witness improperly testified as an outcry witness, a defendant must timely and specifically object and, unless allowed a running objection, must continue to object each time the witness offers the improper outcry testimony.").
Assuming without deciding Berg preserved a hearsay objection to DiStefano's testimony, the analysis would be that of an objection under Article 38.072, the outcry statute, because to the extent Berg made a hearsay objection, it was during the outcry hearing. Berg's appeal of the ruling involving DiStefano as an outcry witness is discussed below in our analysis of his first issue.
Our review of DiStefano's testimony regarding the extraneous offenses is thus limited to whether such evidence should have been excluded under Rule 403.
b. Analysis
The State argues that evidence of the extraneous acts against Jane is admissible under Texas Rule of Evidence 404(b) "to show appellant's intent, opportunity, and absence of mistake or accident." The State also argues evidence of the extraneous offenses involving Jane are admissible under Article 38.37 and as "same-transaction contextual evidence because appellant's action was intermixed with his commission of the charged offense."
"[S]ame transaction contextual evidence is admissible when several offenses are so intermixed or connected as to form a single, indivisible criminal transaction, such that in narrating the one, it is impracticable to avoid describing the other." Taylor v. State, 263 S.W.3d 304, 314 (Tex. App.-Houston [1st Dist] 2007), aff'd, 268 S.W.3d 571 (Tex. Crim. App. 2008). However, "[o]nly if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence, should the same transaction contextual evidence be admitted." Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993) (citation omitted). Given our disposition of this issue, we need not consider whether DiStefano's testimony was admissible as same transaction contextual evidence.
As noted, given the objections and ruling at trial, we analyze this issue under Rule 403. The Rule 403 analysis with regard to DiStefano's extraneous offense testimony mostly mirrors the analysis for Natalie's testimony. That is, the first and fourth elements of the Rule 403 balancing test, described in detail above, are the same for testimony regarding all extraneous offenses, regardless of whether the testimony was elicited from DiStefano or Natalie. Both weigh in favor of admission of DiStefano's testimony.
The second factor also weighs in favor of admission of the testimony. As with Natalie's testimony, DiStefano's extraneous-offense testimony reflected similarities between the charged offense and the extraneous offenses, as all occurred in Jane's house when she four to six years old during visits from Berg, and the abuse itself was similar in nature to that of the charged offense. Here again, a limiting instruction minimized any "impermissible inference of character conformity." See Ryder, 581 S.W.3d at 453; Deggs, 646 S.W.3d at 926-27.Further, Berg did not "demonstrate how the extraneous offense evidence was any more heinous than the evidence pertaining to the charged offenses." Ryder, 581 S.W.3d at 453 .
See supra, note 22.
With regard to the third factor, DiStefano's testimony regarding the extraneous offense did not consume an inordinate amount of time or repeat evidence that already had been admitted. Her testimony about the extraneous offenses spanned approximately twelve pages of the over 250-page reporter's record. See Deggs, 646 S.W.3d at 927; Ryder, 581 S.W.3d at 453. This factor also weighs in favor of admission. Looking at the factors collectively, they weigh in favor of the admissibility of DiStefano's testimony.
We overrule Berg's second issue.
C. The Outcry Witnesses
In his first issue, Berg argues the trial court erred in allowing DiStefano to testify as an outcry witness because she was the fourth adult to whom Jane spoke about the alleged abuse. He argues that Jane's statements to her were no more specific regarding the abuse than the statements Jane previously made to her parents, one of whom, he contends, should have been the sole outcry witness-her Mother.
1. Standard of Review and Applicable Law
We review a trial court's decision to admit testimony from an outcry witness for an abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Walker v. State, 461 S.W.3d 599, 609 (Tex. App.-Houston [1st Dist.] 2015, no pet.). The trial court has "broad discretion" in admitting outcry-witness testimony. Garcia, 792 S.W.2d at 92. We will not reverse the trial court's decision to admit outcry-witness testimony unless it falls outside the zone of reasonable disagreement. Buentello v. State, 512 S.W.3d 508, 516-17 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd); see also Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (stating trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree") (citing Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)).
Texas Rule of Evidence 802 precludes the admission of hearsay statements, which are out-of-court statements "offer[ed] in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d), 802. Hearsay is not admissible unless it falls within an exception listed under the Texas Rules of Evidence or other rule or statute. Id. 802. The admissibility of an out-of-court statement under a hearsay exception is within the trial court's discretion. Kesaria v. State, 148 S.W.3d 634, 641 (Tex. App.-Houston [14th Dist.] 2004), aff'd, 189 S.W.3d 279 (Tex. Crim. App. 2006).
Article 38.072 of the Code of Criminal Procedure, also known as the "Outcry Statute," creates an exception to the hearsay rule in cases involving allegations of sexual assault against a child younger than 14 years of age. Tex. Code Crim. Proc. art. 38.072. The statute allows the admissibility of a child complainant's out-of-court statements describing the alleged offense "so long as those statements were made 'to the first [adult] person . . . to whom the child . . . made a statement about the offense.'" Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013) (citing Tex. Code Crim. Proc. art. 38.072, § 2(a)(1)-(3)); see also Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (discussing Article 38.072). Among other things, the outcry statute requires a trial court to conduct a hearing outside the presence of the jury to determine whether "the statement is reliable based on the time, content, and circumstances of the statement," rendering the statement admissible. Tex. Code Crim. Proc. art. 38.072 § 2 (b)(2). "When no hearing is conducted, the statutory requirements [of Article 38.072] have not been met, the [hearsay] exception is not invoked, and the testimony constitutes inadmissible hearsay." Lopez v. State, 315 S.W.3d 90, 98 (Tex. App.-Houston [1st Dist.] 2010), rev'd on other grounds, 343 S.W.3d 137 (Tex. Crim. App. 2011).
More than one outcry witness may be designated if the child has been the victim of more than one sexual assault and the outcry witnesses are not testifying about the same event. Brown v. State, 189 S.W.3d 382, 387 (Tex. App.- Texarkana 2006, pet. ref'd). Multiple outcry witnesses may testify only if it is determined that "the outcry concerned different events and was not simply a repetition of the same event told to different individuals." Id.
2. The Outcry Hearing
Mother, DiStefano, and Father testified during the outcry hearing. Mother testified that she was the first adult to whom Jane disclosed the alleged abuse. Jane told her she had something to tell her that was "really gross." Jane then told Mother that Berg "licked [her] bottom" when he visited. Mother testified that Jane did not specify whether it was the front or back of her bottom, when the abuse happened, or where it happened. Mother did not inquire further. She did not ask Jane any questions "in that moment." Mother testified she "just let her share what she wanted to share and when she obviously felt like she was done, I let her go back and play. She obviously felt light again, just kind of let her go. I didn't want to hammer her." Mother said she learned more details after Jane's forensic interview several weeks later. She also said Jane gave additional details to the police officer who came to the house the day after the initial outcry.
DiStefano testified that when she interviewed Jane, she was seven years old. DiStefano believes she was the first person to have been told in detail about the alleged abuse. According to DiStefano, Jane told her that Berg touched or licked her bottom two to three times, starting when she was four to six years old. The incidents happened in the bathroom of Jane's house and in her bedroom. DiStefano testified that Jane told her Berg asked her in her bedroom whether she liked it or felt uncomfortable. Once in the bathroom, Berg made her touch "the tube that boys pee from." Jane demonstrated to DiStefano "by folding all of her fingers down with the exception of her index finger" and told DiStefano Berg "made her touch that part on his body." According to DiStefano, Jane identified Berg as the abuser. DiStefano testified that the first incident of abuse was when Berg licked Jane's bottom in the bathroom, and Jane clarified her bottom is "where she pees and/or poops from. And she believes it happened in the front." The next incident occurred when Berg made Jane touch his penis in the bathroom, and the last incident happened in the bedroom. Berg, who was sleeping next to her, licked her "bottom" (vagina) and asked her if she did not like it or if it made her feel uncomfortable. According to DiStefano, Jane told Berg it made her feel uncomfortable.
Father testified that he learned of the abuse from Mother. The following day, he spoke with Jane. He testified that Jane told Mother that Berg put his mouth on Jane's genitals and that he coerced her to touch his penis three times. He stated he believes he learned that first from Mother, although it is possible he learned some details from the forensic interview or from Jane's report to the police. He said Jane did not provide him with new details of the alleged abuse. He testified that he told the police he did not know how many times his father touched Jane. Mother told him that Berg either licked Jane's vagina or put his tongue on her vagina. Father called the police on March 10, the day after Mother told him of the abuse. He testified that he does not recall everything Jane told the police but recalls specifically she talked about Berg having kissed or licked her bottom. Father recalls knowing at that time about her having touched Berg's penis.
Berg argued that while Mother or Father would be proper outcry witnesses, DiStefano would not, as Jane's version of the abuse as told to DiStefano "may have been tainted by talking to all these different people" because children who are six or seven are "vulnerable to suggestion." Berg also argued DiStefano would not be a proper outcry witness because she interviewed Jane three and a half weeks after the initial outcry and may have "suggested] more things" to Jane.
The State argued that Jane's outcry to Mother was a "general allusion" to an act of sexual abuse. Only after the forensic interview did anyone learn that Jane said she was abused two or three times. During the forensic interview, Jane articulated where the abuse happened, how old she was when it occurred, and she provided details about the alleged abuse.
The trial court held that Mother and DiStefano could both testify as outcry witnesses. The court held that Mother's testimony about the statements Jane made to her about Berg licking her bottom was "reliable based on the time, content, and circumstances of that statement." The court held that DiStefano could testify as an outcry witness about the offense at issue because Jane gave her "additional details and facts that she had not disclosed to any other adult prior to Ms. DiStefano's interview regarding the time and place of the allegation regarding 'Grandpa Berg licking [Jane's] bottom.'" In addition, the court held Jane's statement to DiStefano about an incident in the bathroom and one in the bedroom, both involving Berg, was "reliable based on the time, content, and circumstances of the statement[.]" The court further held DiStefano could testify about Jane's contact with Berg's genitals because such statements "are relevant matters regarding the state of mind of the defendant and the child and the previous subsequent relationship between the defendant and the child."
The trial court, in ruling that DiStefano could testify about the extraneous offenses, cited Article 38.37, not the Outcry Statute. Article 38.37 allows evidence of extraneous "crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense" if admitted "for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child." Tex. Code Crim. Proc. art. 38.37 (emphasis added).
3. Preservation of Error
The State argues that Berg waived his objection to the designation of DiStefano as an outcry witness because, although he argued she was not an appropriate outcry witness prior to the court's ruling, he did not object after the outcry ruling. The State relies on Schmidt v. State, 612 S.W.3d 359 (Tex. App.- Houston [1st Dist.] 2019, pet. ref'd), in which a trial court held that an appellant who did not object after an outcry hearing to the court's designation of an outcry witness waived the objection. Id. at 366. Schmidt is distinguishable, as the appellant in that case apparently did not object during the outcry hearing to the designation of the therapist who ultimately was designated as the outcry witness. Rather, appellant "brought to the court's attention that the testimony of [the complainant]'s mother needed to be heard during the 38.072 Outcry Hearing to determine if [a therapist] was, in fact, the first adult over the age of 18 that [the complainant] told about the sexual abuse." Id. Appellant told the court,
With respect to the outcry issue, Judge, maybe I mistakenly understood it, before you make your ruling I was under the impression that we would also, since the therapist if basing this sort of on speculation as to whether she was the first person who was 18 years of [sic] older, I thought we were going to call [the complainant's mother] for that purpose, just to find out whether or not she was, in fact, the first person. So[,] I know you sort of made your ruling, but I would ask that we at least briefly call [the complainant's mother] to ask her that limited [question] to find out if, in fact, she did know or didn't know.Id. at 365.
After the complainant's mother was called to testify, the trial court held the therapist would be the outcry witness. Id. In response to the appellant's appeal of the outcry witness designation, the court of appeals stated, "Appellant received all the relief he requested when he asked the trial court to consider [the complainant's] mother's testimony, which the trial court did." Id. The appellant did not object to the designation of the therapist as the outcry witness or argue the mother was the proper outcry witness. Id. The court held the appellant did not preserve error because he "never objected to the trial court's ruling that [the therapist] was the proper outcry witness." Id. at 366.
In the present case, during the outcry hearing, Berg argued the outcry witness should be "either the father or the mother." He stated, "[Father] would be the logical outcry witness, he or the mother, not the police officer and certainly not the Children's Assessment Center [interviewer] that came back three and a half weeks later, having been briefed by everybody, reading reports, meeting with the little girl, and now suggesting more things[.]" Berg continued:
Your Honor, they're claiming that it happened on different occasions. Those are by definition extraneous acts. You can't prove that with an outcry. Again, the CAC, Ms. DiStefano, she was the fourth person that talked to the little girl, two and a half weeks after the initial reports that were made to Mother, Father, and a police officer. And the outcry witness is either the mother or the father. It's not the police officer, obviously, and it's certainly not somebody two and a half weeks later that is a trained, skilled professional. That's not the outcry witness. That's someone too far down the line.
We construe this argument as an objection to the designation of DiStefano as an outcry witness. Accordingly, we conclude error was preserved with respect to this issue.
4. Analysis
As noted above, there may be more than one proper outcry witness when a child has been victim to more than one instance of sexual assault, provided the outcry witnesses testify about distinct events. "Admissible outcry witness testimony is not person-specific, but event-specific." Brown, 189 S.W.3d at 387; see also Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) ("Hearsay testimony from more than one outcry witness may be admissible under article 38.072 only if the witnesses testify about different events. There may be only one outcry witness per event.") (internal citations omitted); Guzman v. State, 591 S.W.3d 713, 722 (Tex. App.-Houston [1st Dist.] 2019, no pet.) (same).
Mother testified as an outcry witness about the event that resulted in the indicted offense: Berg licking Jane's "bottom" in her bed. It is undisputed that Mother was the first adult Jane told about this episode. During the outcry hearing, Berg argued that Mother or Father was a proper outcry witness, and he does not now complain about the designation of Mother as an outcry witness. Instead, Berg contends that DiStefano was the fourth person with whom Jane discussed her grandfather's abuse, after discussing it with Mother, Father, and a female police officer, and thus DiStefano should not have been designated as an outcry witness. He asserts Jane's statements to DiStefano "were no more detailed regarding the discernible offenses than that to her parents."
We disagree. According to Mother, Jane merely told her that Jane's grandfather "licked [her] bottom." Jane's statements to DiStefano about the offense were significantly more detailed. Jane told DiStefano, for example, that "while she was laying in her bed in the bedroom, her grandfather was laying next to her and was licking her bottom." Jane talked during the interview "about how [Berg] took down her underwear and she was wearing a nightgown and that she could feel him licking her bottom." She told DiStefano she believed it was the front part of her bottom. The incident happened at night when everyone was asleep. DiStefano testified that Jane told her she said she was five or six when this particular incident happened and it took place the last time Berg visited.
DiStefano was a proper outcry witness with respect to the alleged offense. Bargas v. State, 252 S.W.3d 876 (Tex. App.-14th Dist.] 2008, pet. ref'd), a case upon which Berg relies, is instructive. In Bargas, the child complainant ("Tina") told her grandmother her father had touched her "private parts." Id. at 885. The grandmother tried to find out more information, but Tina did not want to discuss it. Id. After the grandmother reported the abuse, Tina was interviewed by a forensic interviewer with the CAC. Id. Tina discussed the sexual abuse in "specific detail" when talking to the interviewer. Id.
The appellant contended the grandmother was the proper outcry witness, but the court of appeals stated the record reflected Tina "did not describe the alleged offense" to her grandmother. Id. at 894. "General allusions," such as the ones made by Tina to her grandmother, "in which the complainant does not describe the abuse in a discernible manner, are not within the purview of article 38.072." Id. The court held the trial court did not abuse its discretion in determining the CAC interviewer was the proper outcry witness. Id. at 895.
Similarly, Mother's testimony contained a "general allusion" to the abuse when compared to the abuse described in detail by DiStefano. We conclude the trial court did not err in allowing DiStefano to testify as an outcry witness about the alleged abuse for which Berg was tried. See Garcia, 792 S.W.2d at 91 (explaining outcry statement must be "more than words which give a general allusion that something in the area of child abuse was going on"); Hanson v. State, 180 S.W.3d 726, 730 (Tex. App.-Waco 2005, no pet.) ("The proper outcry witness is the adult to whom the complainant first tells 'how, when, and where' he was assaulted."); see also Smith v. State, 131 S.W.3d 928, 931 (Tex. App.- Eastland 2004, pet. ref'd) (holding child's statement to mother that "[appellant] had been performing oral sex on him" did not relay "specific details" about charged offense, so trial court could reasonably have determined that statement "was nothing more than a general allusion that something in the area of sexual abuse was occurring and not a clear description of the offense charged as required by article 38.072.") (citation omitted); Castelan v. State, 54 S.W.3d 469, 475-76 (Tex. App.-Corpus Christi-Edinburg 2001, no pet.) (holding victim's grandmother, to whom he stated that appellant "put his thing in through the back," was not proper outcry witness, as victim "did not relay specific details of the abuse"); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.-Dallas 1999, pet. ref'd) (holding child's statement that appellant "had touched her private parts" was "nothing more than a general allusion that something in the area of sexual abuse was occurring and not a clear description of the offense charged"); Thomas v. State, 309 S.W.3d 576, 579 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) (holding mother was improper outcry witness when child only "told her mother about appellant using his hands to touch her," which court reasonably could have determined was "nothing more than a general allusion that something in the area of sexual abuse had occurred and not a clear description of the alleged offense").
We agree that DiStefano was not a proper outcry witness with respect to the other two alleged incidents of abuse involving Jane because the outcry statute applies only to statements that describe the alleged offense and does not extend to outcry of a child respecting an extraneous offense. Tex. Code Crim. Proc. art. 38.072, § 2(a)(1)(A)-(B) (allowing outcry testimony related to extraneous offenses only during the punishment phase of trial); Chapman v. State, 150 S.W.3d 809, 816 n.13 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) ("We note the outcry exception does not ordinarily apply to hearsay statements regarding an extraneous offense. By its own terms, article 38.072 applies 'only to statements that describe the alleged offense.'"). However, the trial court ruled that evidence of the extraneous offenses involving Jane and Berg were admissible under Rule 38.37. The State argued during the outcry hearing that the extraneous offenses involving Jane were "under 38.37 for this complainant. It goes to a child's state of mind." Indeed, the court admonished the jury with a limiting instruction in response to "the court's ruling regarding the 38.37 evidence regarding the alleged contact between [Jane] and the defendant's genitals."
The trial court apparently found DiStefano could testify under Article 38.37 and as an outcry witness about the extraneous offenses. The court stated:
The Court finds that the second outcry witness is Ms. Sarah DiStefano, the interviewer from the Children's Assessment Center. The Court finds that the complainant gave additional details and facts that she had not disclosed to any other adult prior to Ms. DiStefano's interview regarding the time and place of the allegation regarding 'Grandpa Berg licking my bottom.' The Court finds that Ms. DiStefano is able to testify as to an incident in the bathroom and an incident in the bedroom. The Court finds that the statement by the complainant is reliable based on the time, content, and circumstances of the statement to Ms. DiStefano and the Court will allow Ms. DiStefano to testify in front of the jury about that outcry of disclosure.(Emphasis added.) The Outcry Statute refers to the trial court's finding "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." Tex. Code Crim. Proc. art. 38.072 § 2(b)(2) (emphasis added).
To the extent the trial court improperly allowed DiStefano to testify about the extraneous incidents of abuse as an outcry witness, we conclude any error was harmless because the testimony was properly admissible under Article 38.37 and because it was cumulative given that Record, the pediatric nurse practitioner, testified without objection regarding the same offenses. "Any error in admitting evidence is cured where the same evidence comes in elsewhere without objection." Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984)); Chapman, 150 S.W.3d at 814 ("[I]mproper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial.").
Exhibit 14, Jane's CAC medical record, and Record's testimony were admitted without objection. Exhibit 14 states, among other things, "Per referral report, [Jane] disclosed [that] when her grandfather was visiting he kissed her on the lips and licked her bottom when they were in the restroom together." And Record testified Jane told her that her grandpa "forced [her] to touch one of their private parts." Jane told Record that Berg "forced [her] to touch the part where pee comes out." Jane said Berg forced her to touch his private part with her finger and Berg did not have his clothes on at the time. Record testified that Jane told her Berg touched the "front or back of [her] bottom." According to Record, when Jane referred to her bottom, she could have been referring to her vagina or her anus. Jane told her Berg touched her bottom with his tongue. Jane said the abuse occurred "two or three" times.
Because DiStefano's testimony about the extraneous offenses was cumulative of Record's testimony and Jane's admitted medical record about the same incidents, any error in admitting DiStefano's testimony about the extraneous offenses under the outcry statute was harmless.
We overrule Berg's first issue.
Conclusion
We affirm the trial court's judgment.