Opinion
No. 04-15-00232-CR
05-04-2016
David Diaz DIAZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR3519
Honorable Lori I. Valenzuela, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice AFFIRM
David Diaz was indicted on seven counts of continuous sexual abuse, aggravated sexual assault, sexual abuse, and indecency by sexual contact with two children. The two children named as complainants are Diaz's step-daughters, R.B. and C.B. Diaz was found guilty on all seven counts. During trial, the trial court allowed Nadene Long, whom the State called as an outcry witness, to testify about statements made to her by C.B. On appeal, Diaz raises a single issue: that the trial court erred by admitting Long's testimony into evidence because Long was not the first person over the age of eighteen to whom C.B. made her outcry. We affirm.
APPLICABLE LAW AND STANDARD OF REVIEW
In cases involving certain sex crimes against children, Texas Code of Criminal Procedure article 38.072 provides an exception to the hearsay rule for testimony by "outcry witnesses" when specific requirements are met. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2015). An outcry witness is the first person, eighteen years of age or older, other than the defendant, to whom the child victim made a statement about the offense. Id. art. 38.072, § 2(a)(2).
The Texas Court of Criminal Appeals has interpreted "a statement about the offense" to mean "a statement that in some discernible manner describes the alleged offense. [T]he statement must be more than words which give a general allusion that something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). "In order to be designated as the outcry witness by the trial court, one element that must be clearly shown by the evidence is that the victim described the offense to that witness." Id. In Garcia, the court concluded the trial court did not err in determining the complainant's teacher, Betty Ramirez, was not the proper outcry witness:
. . . From numerous examples in the record, we see that the complainant told her teacher that something had happened at home, and that it had to do with child abuse. However, the record is void as to any specific details of the statements made to Ramirez and as to any description of the alleged offenses made to Ramirez by the complainant. Thus we conclude that the general phrases in evidence used by Ramirez and complainant, (i.e. in response to the prosecutor's question "Did she further relay information to you about the topic you discussed?", Ramirez answered "Yes, she just wanted to talk about it practically all day", and in response to prosecutor's question "What did you tell your teacher there in the classroom?", complainant answered "Well, I told her what happened"), apparently did not, in context, and in the trial court's view, amount to more than the general allusion heretofore condemned.Id.
A trial court has broad discretion to determine the admissibility of outcry evidence, and we will not disturb its determination absent a showing in the record that the trial court clearly abused its discretion. Garcia, 792 S.W.2d at 92; Reed v. State, 974 S.W.2d 838, 841 (Tex. App.—San Antonio 1998, pet. ref'd). In this appeal, we must determine whether the trial court erred in allowing Nadene Long, the CPS worker who interviewed C.B., as the outcry witness. On appeal, Diaz asserts C.B. told her sister, R.B., in specific detail about what Diaz did long before C.B. told Long. Therefore, according to Diaz, R.B., and not Long, was the proper outcry witness.
BACKGROUND
Diaz married the girls' mother in 1998. From 1998 until 2006, the couple lived either together or apart at various residences. In 2006, when R.B. was thirteen years old and C.B. was eleven years old, the girls and their mother moved into a house with Diaz located on Happiness Street. About four years later, Diaz went to prison, and upon his release in 2011, he returned to the Happiness Street house. Shortly thereafter, when the girls were nineteen and seventeen respectively, the two girls moved out of the house due to conflicts with Diaz.
At the time of trial, C.B. testified Diaz first sexually abused her when she was eight years old and the family was living with C.B.'s grandparents. She said he sometimes would "take turns" with her and her sister, R.B. C.B. testified the abuse continued when the family moved to the Happiness Street house. She said the abuse stopped when she moved out of the house to live with her friend, Shaylese. At about the same time, R.B. also left the Happiness Street house and moved in with a friend of hers.
C.B. testified the first person she told about the abuse was Shaylese. C.B. said she told Shaylese in 2011, while Diaz was in prison. C.B. said she and Shaylese were about sixteen years old at the time, and she told Shaylese that Diaz "makes me and my sister give him oral sex." C.B. said she did not tell an adult about the abuse at this time. However, Shaylese told her own mother who later called C.B. and told C.B. she should tell her mother. C.B. stated she did not tell Shaylese's mother about the abuse. According to C.B., she did not tell her own mother about the abuse; instead, she asked Shaylese's mother to tell her mother. When C.B.'s mother later asked C.B. about the abuse, C.B. told her mother that she [C.B.] lied because she was embarrassed and scared. C.B. later told R.B. that Shaylese's mother had called their mother and that C.B. had lied to their mother. C.B. asked her sister to also "say nothing like that ever happened."
R.B., who was twenty-one at the time of trial, testified C.B. asked her to deny the abuse, which she agreed to do. --------
C.B. and Shaylese lived together at Shaylese's house for a few months. Eventually, however, the two girls began to fight, and C.B. moved into her aunt's house. When this happened, Shaylese's mother called the police and CPS. On the day C.B. moved into her aunt's house, a CPS worker—later identified as Nadene Long—came to the aunt's house to interview C.B. C.B. testified that she told Long "[a]bout everything that we had to do when we were younger." C.B. testified that the next person she told about the abuse, after Shaylese, was Long.
The State intended to call Long to testify about C.B.'s outcry. However, defense counsel objected that Long was not the first adult to whom C.B. made her outcry, and instead, the first adult to whom C.B. spoke was R.B. Accordingly, the trial court conducted the following hearing outside the jury's presence.
C.B. was questioned, on both direct and cross-examination, as follows:
Q. When you — when you spoke to [R.B.] about lying to your mom, did you — did you tell her what you told Shaylese, did you tell her what you were asking her to lie about?
A. No. I just told her that mom — my mom asked me about everything that [Diaz] would do, and that I told mom that nothing ever happened.
. . .
Q. . . . Do you recall recounting what [Diaz] did to you to her [R.B.]?
A. I'm sorry, I don't understand what you're asking.
Q. Did you recall telling her about the things — did you guys talk about the things he was doing to you guys?
A. No. We never talked [about] it because we already knew.
Q. Okay. So when you talked — when you spoke to her about lying to your mom, you never said specifically what to lie about?
A. No. I just said tell her that nothing ever happened.
Q. Okay. Did you know why you were being recalled here today?
A. No.
Q. No one told you what [the] purpose of you coming back was?
A. No.
. . .
Q. Was the first person that you talked about what [Diaz] did to you here in Court your sister, [R.B.]?
A. Yes.
Q. And when was that? Is that before you talked to Shaylese?
A. Well I mean, yes.
Q. Right before you talked to Shaylese?
A. No. Me and my sister knew what was going on already. He made us do it at the exact same time.
Q. Right. But my specific question was: Was she the first person you told about it and you said yes. I want to know about when that was, or did you talk about it on a continuing basis?
A. Yes, on a continuing basis.
Q. Okay. Before you talked to Shaylese and after you talked to Shaylese?
A. Yes.
. . .
Q. Did you and your sister ever discuss the specific sexual abuse acts the defendant, David Diaz, did to you?
A. No, not really.
Q. Did you ever tell her in full detail what [Diaz] what doing to you?
A. Not really, no.
Q. Not ever?
A. Huh-uh. No.
Q. Who is the first person that you told that was over the age of 18 about the specific acts of sexual abuse that were happening to you.
A. That's the CPS lady.
. . .
Q. When I asked you about talking to [R.B.] about the things — the things you talked about [Diaz] doing to you in the courtroom, and asked you whether to [sic] talk about it with her, you said, yes. Was that a true statement?
A. Yes.
Q. Okay. So you did speak to her about the sexual acts he was doing to you and to her, correct?
A. Yes.
Q. And you did that before Shaylese and after Shaylese, correct?
A. Yes.
Q. And the things you told Nadene Long were those same things we're talking about that happened to you, correct?
A. Yes.
. . .
Q. So she — she was the first person who really knew because you trusted her, correct?
A. I'm sorry, who is her?
Q. Oh, [R.B.].
A. Yes.
. . .
Q. Did you ever have a conversation with [R.B.] after [R.B.] turned 18 years old that was like the one that you had with Nadene?
A. No.
Q. Did you ever have a conversation with — do you know when [R.B.] turned 18?
A. Yes.
Q. And when was that?
. . .
A. I think it was 2012. I'm not sure.
Q Okay. Did you ever sit down with [R.B.] after she turned 18 and talk to her about specific acts of sexual abuse?
A. No.
. . .
Q. But your testimony was correct that you had a continuing conversation about the acts I detailed with your sister, [R.B.], because you trusted her?
A. I mean we wouldn't really talk like specifics. We would just be like, He made me do it again, and stuff like that.
Q. And you know what each other was talking about, correct?
A. Yes.
Q. And are these the same things you talked about right before you lied to your mother?
A. Yes.
Q. And right before you talked to Nadene Long?
A. Yes.
Q. And the thing you talked to Nadene Long, were the things you talked to [R.B.] about, correct?
A. I don't know what you're talking about.
Q. The acts that he made you do?
A. No. Me and [R.B.] never really said — like told each other exactly what he made us do.
Q. When you told her, He made me do it again, she knew what you were talking about, correct?
A. Yes.
Q. How old was your sister when you told Shaylese?
A. 18.
The trial court also heard Long's testimony. Long stated she was twenty-eight years old and C.B. was sixteen years old when C.B. told her about the sexual abuse that occurred when C.B. was under the age of fourteen. Long said she believed she was the first adult to whom C.B. spoke about the sexual abuse in detail. Long testified C.B. told her the abuse began when she was eight years old, and she was made to perform oral sex on several different occasions, she was made to touch Diaz's penis, and he fondled her breasts. Long said C.B. was able to tell her that oral sex meant "putting the penis in her mouth." According to Long, the oral sex occurred so often that C.B. was unable to tell her how many times it occurred. Long stated the acts of abuse occurred in various places. Long also said C.B. gave her details about whether Diaz ejaculated and that he touched her over her clothing on her vagina.
On cross-examination, Long testified as follows:
Q. You don't — you don't know whether you were the first person that [C.B.] told, correct?
A. She reported that I was the first adult she told.
Q. She — she told you that?
A. Uh-huh.
Q. Did you ask her that?
A. I asked her if she told anybody else.
Q. And did she say no?
A. She reported that she told a friend.
Q. Okay. Did she report to you that she spoke to her sister [R.B.]?
A. Yes.
Q. And wasn't [R.B.] over the age of 18 at that point?
A. She was either 18 or 19. I'm not sure.
Q. So, in fact, you were not the first person that she told who was over 18, correct?
A. Correct.
Long later clarified she did not ask C.B. about the details of C.B.'s conversation with her sister. When asked if she was aware that C.B. spoke to R.B. "about the abuse," Long responded that she did not. She said she knew only that R.B. had also been sexually abused by Diaz.
ANALYSIS
There is no dispute that C.B. made a statement to her sister about the abuse before she spoke to Long. However, the statutory requirement that the outcry statement be "about the offense" means the outcry statement must be more than a general allusion to sexual abuse. Garcia, 792 S.W.2d at 91. Also, we do not determine the proper outcry witness by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense. Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref'd); see Reed, 974 S.W.2d at 841. Instead, as discussed above, article 38.072 contemplates allowing the first person to whom the child described the offense in some discernible manner to testify about the statements the child made. Garcia, 792 S.W.2d at 91; Broderick, 35 S.W.3d at 73.
In this case, the trial court could have determined C.B. did not tell R.B. any sufficient details about Diaz's conduct and C.B.'s statement to her sister amounted to no more than a general allusion to sexual abuse. We conclude the record supports the trial court's finding that Long was the first adult to whom C.B. described, in some discernible manner, the alleged offense.
CONCLUSION
We overrule Diaz's issue on appeal and affirm the trial court's judgment.
Rebeca C. Martinez, Justice Do not publish