Opinion
No. 05-18-01096-CR
02-25-2020
DIONICIO MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1575240-M
MEMORANDUM OPINION
Before Justices Bridges, Molberg, and Partida-Kipness
Opinion by Justice Molberg
Dionicio Martinez appeals his conviction by a jury for indecency with a child by sexual contact. The trial court assessed punishment at two years' imprisonment. In three issues, Martinez complains the trial court erred in designating Jesse Gonzales, the forensic interviewer, as the outcry witness because: the child (MM) made her initial outcry to her mother; the State did not give the requisite statutory notice of its intent to use Gonzales as an outcry witness; and MM's outcry statement to Gonzales was unreliable based on time, content, and circumstances. In a fourth issue, Martinez contends the judgment should be reformed to reflect the trial court, and not the jury, assessed punishment.
We modify the judgment to reflect the trial court assessed punishment. As modified, we affirm the trial court's judgment.
BACKGROUND
Martinez is MM's grandfather. On October 12, 2013, after spending the previous day at Martinez's house with Martinez and his wife, MM told her mother (EM) Martinez "touched her cookie" and instructed her "if you [tell] your mom, they're not gonna let you come over here anymore." At that time, EM and MM used the word "cookie" to refer to the vagina and EM understood MM's statement to mean Martinez had touched her vagina. MM was three years old at the time of the offense. EM and MM's father reported the offense to the police, took MM to the hospital, and notified child protective services. MM received counseling at the Dallas Children's Advocacy Center from November 2013 until October 2014. Several times during counseling, MM pointed to her vagina and told her counselor, "My Grandpa touched me here." In October 2017, MM was interviewed six times by Kim Skidmore, a forensic interviewer at the Children's Advocacy Center. MM did not "outcry to [Skidmore] about the sexual abuse," but she "made some concerning statements, such as her Grandfather [Martinez], that he had done something to her; but she refused to talk about what it was."
According to MM's mother, Martinez's wife at the time of the offense was his third wife and not MM's natural grandmother.
On February 13, 2015, Gonzales, a forensic interviewer at the Children's Advocacy Center, interviewed MM. During that interview, MM made an outcry statement. She told Gonzales that Martinez took her into the bathroom at his house and made her touch his "privacy" with her hand while he was naked. To identify what she meant by "privacy," MM pointed to the penis on an anatomical drawing of a male. In her outcry to Gonzales, MM also "grabbed her vagina over her clothing" and said Martinez touched her "vagina" with his hand while she was naked in the bathroom. Afterward, Martinez gave MM chocolate milk and told her not to tell anyone what happened. Based on MM's outcry statement, Martinez was arrested and charged with indecency with a child by sexual contact. Martinez pleaded not guilty and elected to have a jury trial.
On December 12, 2017, the State filed a notice of intent to offer Gonzales as an outcry witness. On May 11, 2018, Martinez filed a motion to suppress MM's outcry statement to Gonzales. Trial commenced on July 23, 2018. After voir dire, the trial court conducted an outcry hearing pursuant to article 38.072 of the Texas Code of Criminal Procedure, to designate the outcry witness who could testify at trial as to MM's outcry statements as an exception to the hearsay rule. See TEX. CODE CRIM. PROC. art. 38.072. The State argued Gonzales should be the outcry witness, while Martinez wanted EM to be the outcry witness. Both Gonzales and EM testified at the outcry hearing. The trial court ruled "the outcry witness is Ms. Gonzales, as the child went into further detail with Ms. Gonzalez, even though the mother was the first person the child made comments to."
The witnesses at trial included MM, EM, Gonzales, and Skidmore. The jury returned a guilty verdict. Martinez elected to have his punishment assessed by the trial court. After conducting a sentencing hearing, the trial court assessed punishment at two years' imprisonment and ordered Martinez to register as a sex offender pursuant to chapter 62 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 62. This appeal followed.
ANALYSIS
The Trial Court Properly Designated Gonzales
As the Outcry Witness
In his first issue, Martinez complains the trial court improperly designated Gonzales as the outcry witness because EM was the first person to whom MM made an outcry statement describing Martinez's sexual abuse.
Article 38.072 of the Texas Code of Criminal Procedure allows the admission of a hearsay statement describing sexual abuse made by a child abuse victim to an outcry witness. TEX. CODE CRIM. PROC. art. 38.072. For the outcry statement to be admissible, the witness must be the first person over the age of eighteen to whom the child made a statement about the offense. Id. § 2(a)(3); Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013). The statement must describe the alleged offense "in some discernible manner" and must be more than "a general allusion that something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88, 90-91 (Tex. Crim. App. 1990). In general, the proper outcry witness is the first adult to whom the child abuse victim describes "how, when, and where" the abuse occurred. Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008, pet. ref'd). If the child makes only a general allusion to the first adult and gives a more detailed account to a second adult, the second adult may be the proper outcry witness. See Garcia, 792 S.W.2d at 91.
The trial court has broad discretion to determine which of several witnesses is an outcry witness. Chapman v. State, 150 S.W.3d 809, 812-13 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd). We review a trial court's designation of an outcry witness under an abuse of discretion standard. Garcia, 792 S.W.2d at 92. A trial court abuses its discretion when its ruling is outside the zone of reasonable disagreement. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We will not disturb a trial court's designation of an outcry witness if it is supported by the evidence. Garcia, 792 S.W.2d at 92.
Martinez argues EM was the proper outcry witness because "the child described all the elements of the offense to her mother in her initial outcry, and no additional important details came out to the forensic interviewer." The State responds that MM's statements to EM were no more than a general allusion, and Gonzales was the first person to whom MM made discernable allegations of the sexual abuse described in the indictment. We agree with the State.
In this case, the record from the outcry hearing supports the trial court's designation of Gonzales as the outcry witness. At the outcry hearing, Gonzales testified that in 2013, Skidmore conducted a forensic interview of MM at the Children's Advocacy Center. MM "made some concerning statements" and she told Skidmore that Martinez had "done something to her" but "she refused to talk about what it was." Gonzales testified, "[MM] did not make a full disclosure with Skidmore. That did not occur until she met with me in February of 2015."
When MM met with Gonzales in February 2015, she "made a disclosure of sexual abuse" in which she identified Martinez as the "person who touched her inappropriately" and described "what the abuse entailed." Gonzales testified that MM told him Martinez "made her touch on his privacy" with her hand while he was naked in the bathroom. MM "pointed to the penis" on an anatomical drawing to identify what she meant by "privacy." While "gestur[ing] towards her vagina" and "grabb[ing] on her vagina over her clothing," MM also told Gonzales that Martinez touched her "vagina" with his hand while they were in the bathroom. Afterward, Martinez "told her not to tell anybody."
Gonzales testified that MM used both "vagina" and "privacy" to describe where Martiez touched her with his hand.
Conversely, MM's initial outcry to EM in October of 2013 was more general. An October 2013 police report generated when EM notified the police of the offense reflected that MM told EM that Martinez touched her "cookie." Gonzales testified the police report did not "indicat[e] or clarif[y] that 'cookie' meant vagina." EM testified that she "taught [MM] the term[s] cookie" and "private" to refer to her vagina, and she understood MM's disclosure that Martinez had touched her "cookie" to mean "[t]hat he touched her vagina." MM did not identify to EM what Martinez touched her with, and she did not use the terms "private area" or "vagina." Nor did MM tell EM where the sexual abuse happened, but "[EM] assumed it was at their house because that's where [she] dropped her off that day." EM did not ask MM "how, why, when and where" the sexual abuse occurred:
I'm a teacher and so every year, we have to do certification training to uphold my certificate. And in those classes, they tell you that if a kid ever makes an outcry, it's not your job to interrogate a kid and try to get them to tell you how, why, when and where. That's not your job. That's another person's job. And that you're supposed to believe them and make them feel safe.EM did not "know exactly what happened between [Martinez] and [MM]." She "just kn[e]w that he touched her vaginal area, her 'cookie'." EM testified:
[MM] had nightmares for about six months out until about to April of the following year. So constantly, at night when—we would have scenes in her room, with her coming out, crying, saying she dreamt of [Martinez] asking about why her father wasn't there to protect her and all the terrors that tormented her.According to EM, MM made another statement alluding to sexual abuse by Martinez in 2015, in which "she got teary-eyed" and simply told EM "that [Martinez] made her do things she didn't want to do."
And so throughout that time, I remember hearing I would try to ask a question hear [sic] and there. But I would never sit and talk to her because I knew that wasn't what was good for her. But I remember saying, "Who was there? What do you remember?" And she was like, "It was in the restroom?" And I was like, "Where was Rosie" because that's who I had left her with, his wife. She said, "She wasn't there." I said, "Were you alone?" She said, "yes." And again, that's like—she said that much and started crying and whatnot. And then I left it alone. I wasn't on her, on her, to like keep telling me more details or keep telling me more things. I know that later on that day, they went shopping and that he told his wife to buy her whatever she wanted. And she knew that. She said, "I could get whatever I wanted."
At the outcry hearing, the State argued Gonzales' testimony showed MM provided him with unique and specific information about Martinez's sexual abuse, while EM's testimony demonstrated that MM's statement to her lacked details as to the manner and means of the sexual abuse:
[MM told EM] that the defendant touched her "cookie." Although [EM] understood that to be the vagina, the State of Texas cannot file [a] case [using] "cookie" in the Indictment. We have to allege a specific act, specific body parts, specific objects that were used, the manner and means. The manner was not communicated in any type of specificity to [EM]. Also, it wasn't communicated [to EM] that [Martinez's] hand was used[,] as well as [MM
did not] tell [EM] what had happened. [EM] only assumed that it happened the day before, because [MM] was in the household at that time.
In this case, Martinez was charged with touching MM's genitals with his hand. MM's statements to EM are not detailed statements that described the offense in a discernable way. The record reflects that Gonzales was the first adult to whom MM made an outcry statement detailing the conduct charged in the indictment—"contact between the hand of the defendant and the genitals of the complainant." It was to Gonzales that MM first described Martinez taking her into the bathroom when she was three years old and, while in the bathroom, touching her "vagina" with his hand when she was naked and making her touch his penis with her hand when he was naked. The details provided by MM to Gonzales included what happened after the offense: Martinez told her not to tell anyone what happened and he gave her chocolate milk.
On this record, it would not be outside the zone of reasonable disagreement for the trial court to find that Gonzales, rather than EM, was the first adult to whom MM described Martinez's sexual abuse in a discernable manner. Therefore, we cannot conclude the trial court abused its discretion by designating Gonzales as the outcry witness under article 38.072 and admitting his testimony at trial. See Rogers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref'd) (trial court did not err by designating forensic interviewer and not mother as outcry witness when "[child victim] made general allusions of abuse to his mother but it was not until he spoke to the forensic interviewer that he made all of his allegations and it became clear the sexual abuse involved multiple incidents"); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref'd) (trial court reasonably could have determined child victim's statement to her mother that defendant "had touched her private parts" was insufficient to designate mother as outcry witness because the 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"); Gutierrez v. State, No. 05-17-00772-CR, WL 2001614, at *5 (Tex. App.—Dallas Apr. 30, 2018, no pet.) (mem. op., not designated for publication) (child victim's statement that defendant had done "bad things" to her and she thought she was pregnant was only a general allusion that sexual abuse was occurring); see also Garcia, 792 S.W.2d at 91 (child victim's statement that "something had happened at home, and that it had to do with child abus[e]" was a "general allusion" insufficient to designate the first adult as outcry witness); Smith v. State, 131 S.W.3d 928, 931 (Tex. App.—Eastland 2004, pet. ref'd) (concluding trial court reasonably could have determined child victim's statement that defendant had been performing oral sex on him for about a year was "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") (quoting Sims, 12 S.W.3d at 500); Josey v. State, 97 S.W.3d 687 692-93 (Tex. App.—Texarkana 2003, no pet.) (child victim's statement that defendant "fingered" him only alluded to digital penetration when child victim did not explain what "fingered" meant or give further details of the sexual assault).
We resolve Martinez's first issue against him.
The State Gave Proper Notice
Identifying Gonzales As the Outcry Witness
In his second issue, Martinez complains the State did not identify Gonzales as the outcry witness as required by article 38.072 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 38.072. The State responds that it filed a written "Notice of Outcry Statement" identifying "Jesse Gonzales" as the outcry witness on December 12, 2017 (Notice), more than seven months before trial, as indicated in the sealed clerk's record. The Notice informed Martinez of the essential facts relayed in MM's outcry statement to Gonzales, as it related to the indictment:
The complainant indicated that the Defendant touched the complainant's "privacy" with the Defendant's hand. The complainant indicated that the complainant's clothes were not on when the Defendant touched her "privacy." The complainant identified the complainant's "privacy" as the complainant's vagina. The complainant indicated that the criminal offense occurred in the bathroom. The complainant indicated that Defendant
instructed the complainant not to tell anybody else about the offense. The complainant identifies [Martinez] as the Defendant."After reviewing the record, we conclude the State filed the Notice on December 12, 2017, and the Notice reasonably informed Martinez of the essential facts of MM's outcry statement to Gonzales so as to prevent any surprise as to the substance of Gonzales' testimony. See Owens v. State, 381 S.W.3d 696, 703 (Tex. App.—Texarkana 2012, no pet.); Alvarado v. State, 817 S.W.2d 738, 740 (Tex. App.—San Antonio 1991, pet. ref'd). We conclude the State complied with article 38.072's notice requirement.
We resolve Martinez's second issue against him.
MM's Outcry Statement to Gonzales Was Reliable
Based on Time, Content, and Circumstances
In his third issue, Martinez complains the trial court erred by allowing Gonzales to testify because MM's outcry statement to him was unreliable based on time, content, and circumstances. Without citing to the record or to authority, Martinez argues the statements were "vague," "made eighteen months after her initial 'outcry[']," and were "only given after months of prompting and coaxing from most of the adults in her life."
Before a designated outcry witness may testify about a child's disclosure, the trial court must conduct a hearing outside of the jury's presence and find the statement is "reliable based on the time, content, and circumstances of the statement." TEX. CODE CRIM. PROC. art. 38.072(2)(b)(2). The phrase "time, content, and circumstances" refers to the time the child made the statement to the proffered outcry witness, the content of the statement, and the circumstances surrounding the making of the statement. Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). The only relevant question at an article 38.072 hearing is whether the child's outcry statement is reliable, not whether the outcry witness is credible. Sanchez v. State, 354 S.W.3d 476, 487-89 (Tex. Crim. App. 2011). The reliability of an outcry statement is determined on a case-by-case basis. Buentello v. State, 512 S.W.3d 508, 518 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd).
Martinez contends MM's outcry statement to Gonzales is unreliable because it occurred only after "months of prompting and coaxing by most of the adults in her life." However, nothing in the record indicates—and Martinez does not identify—any adult, much less "most" of the adults in MM's life, that manipulated MM into making a false or fabricated statement about Martinez's sexual abuse. To the contrary, the evidence reflects MM disclosed Martinez's sexual abuse to Gonzales spontaneously, without prompting or manipulation by an adult. See Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.—Fort Worth 2015, pet. ref'd). At the outcry hearing, EM testified she purposefully avoided inquiring into the details of Martinez's sexual abuse of MM. EM told the trial court, "I know I didn't interrogate my daughter. I know they [sic] let her express herself." EM testified that as a teacher, she was trained not to "interrogate a kid and try to get them to tell you how, why, when and where" when a child makes an outcry of sexual abuse. At trial, Gonzales testified that on the day of her outcry statement MM acknowledged she knew the difference between the truth and a lie. Finally, MM's statements to Gonzales were consistent with statements she previously made to EM, Skidmore, and her counselor. The trial court reasonably could have concluded MM was not manipulated or coaxed into making her outcry statement to Gonzales.
In no way should this opinion be interpreted to require the lack of inquiry demonstrated by EM in order to show an outcry statement by a child is not the result of prompting or manipulation by an adult.
Martinez also contends MM's outcry statement to Gonzales was vague. First, we note a child's outcry statement may be reliable even if it includes vague statements about the details of the sexual abuse. Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). In this case, however, the record shows MM's outcry statement to Gonzales was detailed and deliberate. MM specified that Martinez made her touch his "privacy" with her hand in the bathroom with his clothes off. To identify what she meant by "privacy," MM "pointed to the penis" on an anatomical drawing of a man. MM told Gonzales that Martinez's penis "felt like dirt." MM specified that Martinez touched her "vagina" with his hand when they were in the bathroom with her clothes off. MM "point[ed] down" and "grab[bed] on her own vaginal area" over her clothing when she described where Martinez touched her. MM told Gonzales "it made her feel nervous" when Martinez touched her vagina. MM "said for both acts, it [happened] one time." At trial, MM circled the vagina on an anatomical drawing of a girl when describing where Martinez touched her while they were in the bathroom. We cannot say the trial court abused its discretion in determining that MM's outcry to Gonzales was sufficiently detailed to be reliable.
Finally, Martinez contends the eighteen-month delay between the offense and MM's outcry to Gonzales calls into question the reliability of her statements. However, a "delay in the report of sexual abuse is to be expected" when, as in this case, "there is a close personal relationship between the victim and the perpetrator and ought not to be seen as a reason to question the veracity of the report." Madrid v. State, No. 08-15-00195-CR, 2016 WL 3092575, at *5 (Tex. App.—El Paso June 1, 2016, no pet.) (not designated for publication); see also Buentello, 512 S.W.3d at 519. Eighteen months between an act of sexual abuse and a child's outcry is not an unreasonable length of time. See Buentello, 512 S.W.3d at 519-20 (holding three year delay in disclosing sexual abuse by relative "does not, by itself, demonstrate unreliability to the extent that would require a conclusion that the trial court was outside the zone of reasonable disagreement in admitting the statement"). There is nothing in the record to suggest MM had any difficulty recalling the events in question when she made her outcry to Gonzales. Rather, the outcry contained specific details, was consistent with the statements she previously made to EM, Skidmore, and her counselor, and ultimately was consistent with her trial testimony. A trial court reasonably could have concluded the timing of MM's outcry to Gonzales did not cast doubt on its reliability.
We conclude the trial court did not abuse its discretion in determining MM's outcry statement to Gonzales was reliable based on the time, content, and circumstances of the statement. We resolve Martinez's third issue against him.
Reformation of the Judgment
In his fourth issue, Martinez notes the judgment incorrectly reflects the jury assessed punishment and he asks this Court to reform the judgment to reflect the trial court assessed punishment. The State agrees.
We may modify a trial court's judgment to correct a clerical error when we have the necessary information before us to do so. TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). Our review of the record confirms the judge assessed punishment. Accordingly, we modify the judgment to correctly reflect the trial court assessed punishment. We resolve Martinez's fourth issue in his favor.
As modified, we affirm the trial court's judgment.
/Ken Molberg//
KEN MOLBERG
JUSTICE Do Not Publish
TEX. R. APP. P. 47 181096f.u05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1575240-M. Opinion delivered by Justice Molberg. Justices Bridges and Partida-Kipness participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED, as modified. Judgment entered this 25th day of February, 2020.