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NUMBERS 13-05-703-CR AND 13-05-704-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ESEQUIEL OCHOA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 263rd District Court
of Harris County, Texas.
MEMORANDUM OPINION[1]
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Rodriguez
Appellant, Esequiel Ochoa, was charged with two counts of indecency with a child. See Tex. Pen. Code Ann. ' 20.04 (Vernon 2003). A jury found appellant guilty on both counts. The trial court assessed punishment at forty years' confinement on each count, with the sentences to run concurrently. Through his sole point of error, appellant complains of the admission of testimony from the outcry witness. We affirm.
I. Outcry Testimony
By his sole point of error, appellant contends that (1) the trial court abused its discretion in admitting hearsay testimony from an outcry witness because it did not meet the statutory requirements for outcry statements, and (2) such error was harmful.
A. Applicable Law and Standard of Review
Article 38.072 of the Texas Code of Criminal Procedure identifies requirements that must be satisfied in order for testimony, that would otherwise be inadmissable as hearsay, to be admissible as outcry testimony in child abuse cases. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The statute provides as follows, in relevant part:
Sec. 1. This article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code, if committed against a child 12 years of age or younger:
(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);
(2) Section 25.02 (Prohibited Sexual Conduct); or
(3) Section 43.25 (Sexual Performance by a Child).
Sec. 2. (a) This article applies only to statements that describe the alleged offense that:
(1) were made by the child against whom the offense was allegedly committed; and
(2) were made to 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 '' 1-2(a)(2) (Vernon 2005).
Once a hearsay objection has been raised to such testimony, the burden shifts to the State as the proponent of the hearsay evidence to establish compliance with article 38.072. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990); Mosley v. State, 960 S.W.2d 200, 203 (Tex. App.CCorpus Christi 1997, no pet.). The outcry testimony is properly admitted if it describes the alleged offense in some discernable manner and is more than a general allegation of sexual abuse. See Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) (en banc); see also Reed v. State, 974 S.W.2d 838, 841 (Tex. App.CSan Antonio 1998, pet. ref'd) (citing Schuster v. State, 852 S.W.2d 766, 767 (Tex. App.CFort Worth 1993, pet. ref'd)).
The trial court has broad discretion in determining the admissibility of evidence, and a trial court's findings with respect to the admissibility of outcry testimony will not be disturbed, absent an abuse of discretion established by the record. Garcia, 792 S.W.2d at 92. If an appellate court determines that the trial court abused its discretion in admitting such testimony, the appellate court conducts a rule 44.2(b) harm analysis. See West v. State, 121 S.W.3d 95, 104 (Tex. App.BFort Worth 2003, pet. ref'd) (citing Tex. R. App. P. 44.2; Josey v. State, 97 S.W.3d 687, 698 (Tex. App.BTexarkana 2003, no pet.); Broderick v. State, 35 S.W.3d 67, 73-74 (Tex. App.BTexarkana 2000, pet. ref'd)). We must deem the error harmless if, after reviewing the record, we are reasonably assured the error did not influence the jury's verdict or had but a slight effect. Id. (citing Josey, 97 S.W.3d at 698). If the same or similar evidence is admitted without objection at another point during the trial, the improper admission of the evidence will not constitute reversible error. Id. at 104-05.
B. Analysis
By his sole point of error, appellant asserts that the outcry testimony failed to meet the requirement that the outcry statement pertain to an offense that was committed against a child twelve years of age or younger.[2] See Tex. Code Crim. Proc. Ann. art. 38.072(1) (Vernon 2005). More specifically, appellant contends that (1) the State failed to establish that the victim was twelve years of age or younger the first time appellant inappropriately touched her breasts, while (2) the evidence did establish that the victim was fourteen years old the second time appellant inappropriately touched her breasts, an event which falls outside the outcry statute.[3] See id.
At trial, K.O., the victim, testified that appellant had touched her breasts on two separate occasions. She testified that she was twelve years old when the first incident occurred, and that she was fourteen years old when the second incident occurred. Her testimony relating to the two instances includes the following, in pertinent part:
Prosecution: Okay. Now, when you were 12 the defendant touched you again, you said?
K.O.: Yes.
* * *
Prosecution: Okay. What happened next?
K.O.: 'Em, he just started asking me how is school and how are your grades doing. And, 'em, I replied good and doing good. And then made B he used to do this thing, like just rub my head a little bit and make me feel, like, comfortable. And he started doing it and I felt comfortable and I just started watching TV. And then his hands moved from my head to my shoulder, and then he started touching my breasts. And that's when I felt really, really uncomfortable.
* * *
Prosecution: Did he touch you again later on?
K.O.: When I was 14.
* * *
Prosecution: You say he touched you. How did he touch you?
K.O.: He came behind me, like, to give me a hug and he touched my breasts. And that made me feel uncomfortable so I pulled away from him and I left.
In addition, Maria Campos (Campos), the State's designated outcry witness, testified regarding outcry statements made by K.O. to her. Campos testified that K.O. came to Campos's residence one morning crying and "saying that she had a whole lot of problems." Campos's testimony relating to the outcry included the following, in relevant part:
Campos: She [K.O.] said her dad used to hit her and touched her. And I asked her, and she would just cry.
Prosecution: When she [K.O.] mentioned touching, did she indicate to you in any way that it was sexual type of touching?
Campos: Well, she just touched her chest, that's it. But I said if you don't want to tell me, that's okay, don't worry.
Prosecution: She was touching her breasts when she mentioned the touching?
Campos: Uh-huh
* * *
Defense (during cross-examination): And he [appellant] had touched her; correct? And she -- touched her breasts?
Campos: Uh-huh.
Defense: But she didn't go into any more details?
Campos: She didn't want to, she was crying.
Although Campos, herself, did not specify whether she was referring to the first or second time that appellant touched the victim's breasts in her testimony pertaining to the outcry statement, article 38.072 does not require that the outcry witness, herself, establish the age of the victim at the time of the complained of offense. See Tex. Code Crim. Proc. Ann. art 38.072 (Vernon 2005). Rather, the burden is on the State to demonstrate that the outcry testimony meets the requirements of article 38.072, and more specifically, that the victim was twelve years of age or younger at the time of the offense described in the outcry statement.[4] See Long, 800 S.W.2d at 547; Mosley, 960 S.W.2d at 203. To the extent that Campos, in her testimony, was referring to the first time that appellant touched the victim's breasts, we conclude that the State established that the victim was twelve years of age or younger at the time of that offense, satisfying the age requirement set out in article 38.072. See Tex. Code Crim. Proc. Ann. art. 38.072(1) (Vernon 2005). Thus, the trial court did not abuse its discretion in this regard.
To the extent that Campos, in her testimony, was referring to the second time that appellant touched the victim's breasts, we conclude that the testimony failed to satisfy the age requirement of article 38.072 because (1) the statute permits outcry testimony only when the outcry statement relates to an offense that occurred when the victim was age twelve or younger, see id., and (2) the record established that the victim was age fourteen at the time of that offense. Therefore, to the extent that Campos's testimony referred to the second time appellant touched the victim's breasts, we conclude that the trial court abused its discretion in permitting the outcry testimony. Nevertheless, because K.O. provided detailed testimony regarding the second time appellant touched her breasts, we conclude that such error was harmless. See West, 121 S.W.3d at 105 (holding that error in admitting outcry testimony did not influence the jury's verdict or had but a slight effect because the victim provided detailed testimony relating to the complained of offense at trial) (citing Tex. R. App. P. 44.2(b); Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (holding that "if the fact to which the hearsay relates is sufficiently proved by other competent and unobjected to evidence, the admission of the hearsay is properly deemed harmless and does not constitute reversible error.")).
Therefore, we overrule appellant's sole point of error.
II. Conclusion
Accordingly, we affirm the judgments of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this 13th day of July, 2006.
[1]Cause number 13-05-703-CR is an appeal from trial cause number 983043. Cause number 13-05-704-CR is an appeal from trial cause number 1026778. Because the parties and the legal issues raised in the appeals are the same, we address them in a single opinion.
[2]The State contends that appellant failed to preserve this issue for appellate review because he did not make a sufficiently specific objection at trial. See Tex. R. App. P. 33.1. In order to preserve a complaint for appellate review, rule 33.1 requires that the complaint be made to the trial court by a timely request, objection, or motion that states the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See id. at rule 33.1(a)(1)(A). Although appellant made only a general hearsay objection to the testimony of the outcry witness, we conclude the specific grounds of the objection were apparent from the context. See id.; see also Lankston v. State, 827 S.W.2d 907, 910-11 (Tex. Crim. App. 1992); Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990); Mosley v. State, 960 S.W.2d 200, 203 (Tex. App.CCorpus Christi 1997, no pet.). Therefore, we conclude appellant's hearsay objection was sufficient to preserve this issue for appellate review.
[3]To the extent that appellant also asserts that the trial court abused its discretion by permitting the outcry witness to testify regarding the victim's statements "even though many of those assertions were not specifically pertaining to sexual abuse," the briefing is inadequate. See Tex. R. App. P. 38.1(h) (providing that appellant=s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Therefore, such a contention is not before us.
[4]Appellant suggests that the phrase "12 years of age or younger" found in article 38.072, see Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005), refers only to a child who has not yet reached the age of twelve. However, we conclude that appellant's assertion is without merit. The Texas Court of Criminal Appeals has held that a statute using the phrase "14 years of age or younger" referred to a child who had not yet reached the age of fifteen. See Phillips v. State, 588 S.W.2d 378, 380 (Tex. Crim. App. 1979) (en banc). Therefore, we read the phrase "12 years of age or younger" found in article 38.072 to refer to a child who has not yet reached the age of thirteen. See id.; see also Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005).