Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.

Appellant Robert Wayne Lamper appeals the trial court's judgments memorializing his three convictions for continuous sexual abuse of a child. Through six issues, he challenges the sufficiency of the evidence underlying the convictions and the decision of the trial court to admit his second confession and various drawings created by one of his victims during therapy. We affirm.

Sufficiency of the Evidence

Appellant was convicted of the continuous sexual abuse of his stepdaughter, Taylor, and his two daughters, Casey and Morgan. Through three issues, he challenges the sufficiency of the evidence as to several aspects of each count. He also believes that there was a fatal variance between the dates alleged and the dates established by the evidence which rendered the evidence insufficient. We overrule the issues.

We employ the pseudonyms used at trial for the child victims.

First, appellant seems to be suggesting that the victim must personally testify at trial about the events before the State can obtain a lawful conviction. To the extent that is his argument, we note his failure to cite us to legal authority supporting the proposition. Nor did we find any. Indeed, the contrary is true given that the outcry testimony of a child under the age of seventeen alone is enough to prove the allegations in the indictment. See Griffith v. State, No. 10-14-00245-CR, 2018 Tex. App. LEXIS 2407, at *5 (Tex. App.—Waco Apr. 4, 2018, no pet.) (mem. op., not designated for publication). And, we all know that, while outcry testimony is that of the victim, it is not relayed to the fact-finder by the victim but by a third party who was the first person to whom the victim described the assault in a discernible way. See Barker v. State, No. 07-17-00024-CR, 2018 Tex. App. LEXIS 5930, at *6-7 (Tex. App.—Amarillo July 31, 2018, no pet. h.) (mem. op., not designated for publication) (defining the outcry witness as the first person to whom a child describes an offense in some discernible manner).

Second, to the extent he argues that the remaining evidence of record fails to satisfy the elements of the offense, we say as follows. A person commits the offense of continuous sexual abuse of a child if, during a period that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the time of the commission of each act, he is 17 years of age or older and the victim is a child younger than 14 years of age. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2017); Garner v. State, 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.).

Section 21.02(c) of the Penal Code defines an "act of sexual abuse" to include eight separate criminal offenses: (1) aggravated kidnapping, (2) indecency with a child, (3) sexual assault, (4) aggravated sexual assault, (5) burglary—under certain circumstances, (6) sexual performance by a child, (7) trafficking of persons, and (8) compelling prostitution. See TEX. PENAL CODE ANN. § 21.02(c); Kreger v. State, No. 11-16-00257-CR, 2017 Tex. App. LEXIS 10963, at *7 (Tex. App.—Eastland Nov. 22, 2017, no pet.) (mem. op., not designated for publication). In the instant case, we are concerned with aggravated sexual assault specifically. See id. § 22.02.

In the context of the crime at bar, aggravated sexual assault is not an element of the offense but, rather, serves as a manner and means of committing an "act of sexual abuse." See Pfeifer v. State, No. 07-14-00277-CR, 2016 Tex. App. LEXIS 7825, at *11-12 (Tex. App.—Amarillo July 21, 2016, pet. ref'd) (mem. op., not designated for publication) (citing Fulmer v. State, 401 S.W.3d 305, 310-13 (Tex. App.—San Antonio, pet. ref'd)); accord Navarro v. State, 535 S.W.3d 162, 166 (Tex. App.—Waco 2017, pet. ref'd) (when reviewing the constitutionality of section 21.02, agreeing that "the individual acts of sexual abuse are the manner and means by which the element of 'two or more acts of sexual abuse' is committed, and not elements in and of themselves"). So, the jury need not agree on the manner and means by which the aggravated sexual assault occurred. See Pfeifer, 2016 Tex. App. LEXIS 7825, at *11-12 (citing Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006)). Nor must the State prove the exact dates of the abuse, only that "there were two or more acts of sexual abuse that occurred during a period that was thirty or more days in duration." Griffith, 2018 Tex. App. LEXIS 2407, at *4 (quoting Brown v. State, 381 S.W.3d 565, 574 (Tex. App.—Eastland 2012, no pet.)).

As previously mentioned outcry testimony alone is sufficient to prove the allegations in the indictment. Nor must it be corroborated or substantiated by the victim or by some independent evidence. See id. at *5 (citing Rodriguez v. State, 819 S.W.2d 871, 874 (Tex. Crim. App. 1991)) (en banc). Regarding the assaults upon Morgan, her therapist and nurse apparently reiterated outcry imparted to them by the child. Through them the jury was told that 1) Morgan reported that appellant engaged in oral and anal sex with her, 2) the first incident occurred in the shower when appellant forced Morgan to perform oral sex on him, 3) Morgan described the process by which appellant would direct her to sit on the toilet and empty semen out of her anus following anal sex, and 4) appellant engaged in various acts of abuse, including anal and oral sex and forcing Morgan to masturbate him. To that, we add appellant's own testimony. He admitted to having anal sex with Morgan.

Regarding the assaults upon Casey and Taylor, we say the following. Their own testimony described the repeated and much more than two acts of anal, vaginal, or oral sex appellant performed on them.

Regarding the purported variance between the indictment and proof at trial, appellant simply alleges that the State failed to prove the acts he committed occurred within the time frames mentioned in the indictment. That is, the State failed to prove 1) that his sexual abuse of Morgan began on or about September 5, 2013, and continued through January 7, 2016; 2) that his sexual abuse of Casey began on or about June 1, 2013, and continued through January 10, 2016; and 3) that his abuse of Taylor began on or about April 20, 2012, and continued through January 10, 2016. In making these contentions, though, appellant did nothing more that generally mention the law of variance and simply conclude that no evidence illustrated that the assaults occurred within the time frame alleged. No effort was made to analyze the record and explain why the plethora of evidence on the matter and before the jury constituted a supposed fatal variance. No effort was made to explain why the following evidence was insufficient to satisfy the alleged time frame: 1) Taylor's abuse began in 2012 when she was ten years old and continued until December 2015; 2) appellant's admission that he engaged in anal sex with Taylor between 2015 and 2016; 3) Casey's abuse began when she was eight, back in 2014; 4) Morgan's abuse began when she was seven back in 2014 and lasted until January 7, 2016, and 5) appellant's own admission that he had sex with Casey and Morgan in January of 2015. The absence of such explanation not only makes appellant's briefing on the issue inadequate, see Hamilton v. State, No. 05-02-00451-CR, 2003 Tex. App. LEXIS 2818, at *12-13 (Tex. App.—Dallas Apr. 2, 2003, no pet.) (not designated for publication) (holding that an appellant's briefing inadequate when he fails to analyze the facts and apply them to the law), but also makes the issue rather disingenuous.

In short, the record contains more than ample evidence to satisfy the standard of review imposed by Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). That evidence permitted a rational jury to conclude beyond reasonable doubt that appellant committed the offenses with which he was charged.

Suppression and Admission of Appellant's Recorded Statement

In his fourth and fifth issues, appellant contends that the trial court erred by failing to suppress the second statement he gave to police. Allegedly, it was a product of a deliberate two-step or midstream Miranda procedure and otherwise involuntary. We overrule the issues.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

When officers arrived at appellant's house to execute the arrest warrant, Officer Clifford Krieger attempted to Mirandize appellant at the scene by relying on his memory to recall the pertinent admonishments. He omitted from the recitation, though, reference to the right to end the interview at any time. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)(5) (West 2018). After appellant arrived at the police station Krieger reminded appellant that he had been given his warnings, and appellant gave a statement in which he admitted to abusing the girls. Thereafter, the officer realized he had omitted the one admonishment from his earlier warnings and contacted the district attorney for guidance on how to proceed. Such advice was imparted to Krieger. That led to appellant meeting with Krieger some 17 hours after the initial interview, being afforded his complete Miranda and article 38.22 admonishments, being asked to give another statement, and actually executing a written waiver of his rights. At that point, appellant again inculpated himself.

Miranda warnings include a statement informing the individual that he has the right to remain silent, that any statement made may be used as evidence against him, that he has the right to have an attorney present during questioning, and that, if he is unable to hire an attorney, he has the right to have an attorney appointed if he cannot afford one. See Miranda, 384 U.S. at 444. Article 38.22 adds that an officer must inform a suspect that he has the right to terminate the questioning at any time. See id. art. 38.22, § 2(a)(5). Again, this was the right that Krieger omitted upon his first warning to appellant, and the statement appellant made after that imperfect warning was not offered as evidence. The warning that Krieger gave to appellant some 17 hours later included all the mandatory warnings, and no one contends otherwise.

Appellant argues that his second statement to police should be suppressed. This is purportedly so because the midstream or second set of warnings were ineffective to rid the second statement of taint. Under the circumstances before us, we disagree.

In support of his contention, appellant cites to Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004). In Seibert, the interviewing officer acted under express orders to refrain from giving Miranda warnings to Seibert, who was charged with murder. Id. at 604. An officer questioned the unwarned Seibert for 30 to 40 minutes at the police station while squeezing her arm and repeating incriminating statements in an attempt to have her confess. Id. at 604-605. Seibert did confess. Only after her obtaining that confession and taking a 20-minute break did the officer give her Miranda warnings and ask her to repeat her earlier, unwarned confession. Id. at 605. The officer testified that he made the conscious decision to withhold Miranda warnings, per an interrogation technique he had been taught: question first, warn later. See id. at 605-606. The trial court in Seibert suppressed the statements preceding the Miranda warnings, but admitted the post-Miranda warning statements. Id. at 606.

In concluding that the second statement was also inadmissible, the plurality in Seibert outlined an objective analysis of the totality of the circumstances to determine the effectiveness of midstream Miranda warnings and focused on the perspective of a reasonable person. See id. at 615. However, Texas did not adopt the plurality opinion of the high court. Instead, it selected the concurrence of Justice Kennedy as the controlling authority in situations framed as a two-step, midstream, or "question first, warn later" scenario. See Carter v. State, 309 S.W.3d 31, 38 (Tex. Crim. App. 2010).

In Carter's express adoption of Justice Kennedy's approach, the subjective intent of the officer is the beginning point of the analysis. See id. (observing that under Justice Kennedy's narrower approach, "the question is whether the evidence shows that [the officer] deliberately employed a two-step 'question first, warn later' interrogation technique to circumvent appellant's Miranda protections"); see also Seibert, 542 U. S. at 622 (Kennedy, J., concurring) ("If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made."). With that, only if a court determines that there was a deliberate attempt to withhold or circumvent Miranda's protections will further inquiry into the presence or use of curative measures be required. See Carter, 309 S.W.3d at 37.

For purposes of this appeal, we assume arguendo that the Siebert/Carter analysis applies when the accused was afforded the full Miranda admonishments but not all those encompassed within article 38.22, § 2(a). And in so assuming, we next conclude that the circumstances surrounding the omission warranted a finding that Krieger's default was not deliberate. He merely omitted one of the many admonishments while attempting to recite them from memory. After realizing the omission, he sought guidance from appropriate legal authorities on how to proceed and complied with the advice given him. This chronology of events permits a trial court to reasonably infer that Krieger's default was not deliberate but, rather, a mere mistake. Because such a factual inference finds support in the evidence, we must defer to it. See id. at 41 (stating that the applicable standard does not permit a reviewing court to reverse a trial court's finding of fact simply because it would have decided the question differently). And, finding the lack of deliberateness on the part of Krieger, our consideration of the Siebert/Carter analysis ends.

To the extent that appellant also suggests that his confession was involuntary, he again provided us with inadequate analysis to support the point. Aside from generally discussing various authorities, alluding to the omission of one the aforementioned warnings, telling us that he objected to the second confession on the same grounds as the first, and opining that Krieger admitted to attempting to deceive him when Krieger made no such admission, he failed to explain why or how he felt coerced in admitting his guilt a second time. Nonetheless, our review of the record encountered evidence from which the trial court could have reasonably inferred that appellant's second confession was uttered quite voluntarily and knowingly. Again, there was a 17-hour delay between the first and second statement. He had twice been admonished of his right to remain silent and obtain legal counsel. He observed that he had not been asked to sign a written waiver of his rights before confessing the first time but was asked to before inculpating himself the second time (which tends to evince an awareness of what was occurring). So too was he articulate when engaging in his discussion of the events and his past with Krieger. This and other evidence depicted by the recording of his second confession belies appellant's complaint regarding involuntariness.

Admission of Victim's Drawings

During the testimony of Morgan's counselor (Frederickson), the State offered into evidence State's Exhibits 18 through 24. They consisted of drawings the girl made to depict appellant's sexual abuse of her. Morgan created the drawings spontaneously during the course of her counseling sessions with Frederickson. Through his sixth issue, appellant maintains that the drawings were inadmissible because the State failed to establish the elements of Rule 803(4) and thereby remove the situation from the scope of the hearsay rule. More specifically, he maintains that the State failed to establish that the drawings were pertinent to Morgan's medical treatment or diagnosis. We overrule the issue.

Though appellant seems to have also invoked Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), at trial by raising issues concerning whether the drawings were testimonial in nature and/or prepared in anticipation of litigation, that issue was not briefed on appeal and we treat it as abandoned.

First, one preserves a complaint about the admission of evidence by objecting each time the evidence is mentioned, by requesting and receiving a running objection, or by requesting the court to hear and rule on the objection outside the jury's presence. Crum v. State, No. 07-16-00161-CR, 2016 Tex. App. LEXIS 10147, at *1-2 (Tex. App.—Amarillo Sept. 14, 2016, pet. ref'd) (mem. op., not designated for publication). Appellant objected to the exhibits, which objection the trial court overruled. However, he did not request a running objection prior to the rather thorough ensuing discussion of each exhibit before the jury. Nor did appellant object each time an exhibit was mentioned. Thus, his complaint was not preserved.

Second, and assuming arguendo the issue was preserved, the sponsoring witness testified that 1) the drawings were made by the child on her own initiative during therapy sessions and 2) drawing can be beneficial during treatment of such a young child. Given this, we conclude that the trial court did not abuse its discretion by admitting the evidence as an exception to hearsay found in Rule 803(4). See TEX. R. EVID. 803(4) (exceptions to the hearsay rule include "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment").

Having overruled appellant's six issues, we affirm the trial court's judgment of conviction.

Brian Quinn

Chief Justice Do not publish.

Lamper v. State

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Lamper v. State

Lamper v. State

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Lamper v. State

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MEMORANDUM OPINION

Lamper v. State

Lamper v. State

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