Opinion
Nos. 05-07-01250-CR, 05-07-01251-CR
Opinion Filed June 12, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47
On Appeal from the 59th Judicial District Court Grayson County, Texas, Trial Court Cause Nos. 048428 and 048429.
Before Justices MOSELEY, FRANCIS, and LANG.
MEMORANDUM OPINION
A jury convicted Billy Don Mask of indecency with a child and aggravated sexual assault of a child for the sexual abuse of his stepdaughter, J.C. Punishment was assessed at twenty years in prison and a $5000 fine on the indecency charge and seventy years in prison for aggravated sexual assault. In a single issue, appellant challenges the trial court's determination of the outcry witnesses. We affirm. The trial court conducted a hearing outside the jury's presence on the admissibility of the outcry statements. Two witnesses testified: Terry Dunn and Vickie Thompson. Dunn testified that in January 2001 he was a family services investigator for the Sherman Police Department. He testified he investigated J.C.'s allegations and was the first person that J.C. told of the sexual abuse by appellant in any detail. Dunn said J.C. reported that appellant had been abusing her for about a year. According to Dunn, J.C. said appellant would come into her bedroom at night, "would fondle her breasts, would also use his hands to her vagina area, and on at least five occasions in that time period had penetrated her vagina with his fingers." On cross-examination, Dunn said he was summoned to the Crisis Center, where J.C. and her mother initially went to report the abuse. When he arrived, he said J.C. had spoken with a counselor and her mother but had only told them appellant had touched her. Thompson is J.C.'s aunt. In August 2001, she and her husband took custody of J.C. and her brother after J.C.'s mother allowed appellant to move back into the home. About one month after J.C. moved in, she and J.C. talked about "the incident and how it led it up to it." Thompson asked J.C. if there had been any actual penetration, and J.C. told her appellant inserted his penis into her. J.C. told Thompson that she was bleeding the next morning, but it stopped later in the day. Thompson testified she believed she was the first person that J.C. told about this particular abuse. The trial court determined that Dunn could testify as to the digital penetration and Thompson could testify to the penile penetration. In his sole issue, appellant argues that neither witness was the "first" person that J.C. spoke to about the allegations. He argues that J.C. had already spoken to her mother and a counselor at the crisis center before speaking to Dunn or Thompson. Article 38.072 of the Texas Code of Criminal Procedure describes the proper outcry witness as "the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense." Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2) (Vernon 2005). The Texas Court of Criminal Appeals has construed this to mean the first adult "to whom the child makes a statement that in some discernible manner describes the alleged offense. [This] 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). Two individuals may be proper outcry witnesses if they each testify about different events, but only one outcry witness may testify to the victim's statement about a single event. Reynolds v. State, 227 S.W.3d 355, 368 (Tex.App.-Texarkana 2007, no pet.) (citing Broderick v. State, 35 S.W.3d 67, 73 (Tex.App.-Texarkana 2000, pet. ref'd)). A trial court has broad discretion in determining the proper outcry witness. Garcia, 792 S.W.2d at 92. Absent a clear abuse of discretion established by the record, the trial court's decision should not be disturbed. Id. Initially, we note that the record reflects that J.C.'s mother would have invoked her Fifth Amendment rights against testifying had she been called as a witness because she had a child endangerment charge pending for allegedly allowing appellant to move back in to the home. Consequently, she was not available as a witness. Regardless, the evidence showed that J.C. made only a general allusion to abuse by telling her mother and the counselor that appellant touched her. In her statement to Dunn, she reported digital penetration as well as details of when and how the abuse occurred. Similarly, Thompson was the first person J.C. told about an instance of penile penetration. Under these circumstances, we conclude that the trial court's determination that both Dunn and Thompson were proper outcry witnesses was within the zone of reasonable disagreement. See Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd) (in indecency with a child prosecution, trial court could have reasonably concluded counselor was proper outcry witness and that child's statement to mother that defendant "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); Smith v. State, 131 S.W.3d 928, 931 (Tex.App.-Eastland 2004, pet. ref'd) (in aggravated sexual assault prosecution, trial court could have reasonably concluded counselor was proper outcry witness and that child's statement to mother that defendant "had been performing oral sex on him" did not relay specific details of charged offense and was nothing more than general allusion in area of sexual abuse); Castelan v. State, 54 S.W.3d 469, 475 (Tex.App.-Corpus Christi 2001, no pet.) (in aggravated sexual assault prosecution, trial court did not abuse discretion in concluding that school counselor was proper outcry even though child told grandmother defendant "put his thing in through the back" but did not provide more specific details of abuse). We overrule appellant's issue. We affirm the trial court's judgments.
Appellant also asserts that J.C. had told another officer that appellant fondled her breasts and vaginal area; however, that officer testified at trial that he saw J.C. at the Crisis Center but had no discussions with her regarding the allegations.