Charles Franklin Woodruff v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00337-CR
NO. 02-11-00338-CR
NO. 02-11-00339-CR
NO. 02-11-00340-CR
NO. 02-11-00341-CR
NO. 02-11-00342-CR
NO. 02-11-00343-CR

CHARLES FRANKLIN WOODRUFF APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

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MEMORANDUM OPINION1

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In five issues, appellant Charles Franklin Woodruff appeals his convictions

for three counts of indecency with a child by contact, two counts of sexual

1
See Tex. R. App. P. 47.4.
assault, one count of aggravated assault with a deadly weapon, and one count of

aggravated sexual assault of a child.2 We affirm.

Background Facts

Rebekah Woodruff and Paul N. are the parents of C.N. (Courtney), who

was born in December 1989, and B.N. (Brandy), who was born in September

1992.3 Rebekah and appellant are the parents of W.W. (Whitney), who was born

in July 2004. When Rebekah and Paul divorced, Courtney and Brandy lived with

Rebekah, and they eventually also lived with appellant and Whitney. Paul

married another woman, Mindy N.

Courtney, who was twenty-one years old at the time of the trial in July

2011, is autistic and is mildly mentally retarded. Rena Fore, who worked with

special needs students for Graham ISD, developed a relationship with Courtney

when Courtney became a freshman in high school. Fore knew that Courtney

was autistic, but Fore did not believe that Courtney had trouble separating

fantasy from reality. Michelle McGee also worked with special needs students in

Graham, and she had known Courtney since Courtney was in elementary school.

According to McGee, Courtney was a “high-functioning autistic child.”

2
See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.011(a)(1)(A), (2)(B),
22.02(a)(2) (West 2011), § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2012).
3
To protect the victims’ anonymity, we will use initials and aliases to refer
to some of the individuals associated with appellant’s crimes. See Daggett v.
State, 187 S.W.3d 444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643
S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).

2
 On April 17, 2008, when Courtney was eighteen years old and was a

junior in high school, she acted poorly at school. Fore and McGee talked to

Courtney about her behavior. Courtney told them that she had been sexually

abused by appellant. McGee called Rebekah. Rebekah came to the school, and

Courtney told her, in much more detail, what she had said to McGee and to Fore.

Rebekah asked Courtney questions, and during those questions, according to

Fore, Courtney pointed to “[h]er breast area and her bottom.” To Fore, Rebekah

appeared to be startled and disturbed. Rebekah eventually left the school, and

McGee called a law enforcement hotline.

The next day, Adult Protective Services (APS) contacted Jeff Smith, an

investigator with the Graham Police Department, about Courtney’s outcry of

sexual abuse. Officer Smith learned that Rebekah was not being cooperative

with APS’s investigation into the abuse and that Rebekah did not believe that

Courtney’s allegations were true. In fact, on April 18, 2008, Rebekah and

Courtney both signed a document stating that Courtney did not want to be

questioned by authorities without Rebekah’s consent and without Rebekah’s

presence.

Between April 17 and April 22, 2008, Courtney left the house where

Rebekah and appellant lived and moved in with her biological father, Paul, and

her stepmother, Mindy. Shortly after Courtney moved in with Paul and Mindy,

Mindy took Courtney back to Graham so that Courtney could attend a prom. On

the way to Graham, Courtney talked to Mindy about appellant’s putting his penis

3
in Courtney’s “hole.” After the prom, Mindy took Courtney to a Domino’s Pizza

restaurant to meet appellant because appellant had said that he wanted to take a

picture of Courtney. At the store, Mindy heard appellant asking Courtney about

“her body parts” and about whether she wanted to talk to the police.

Mindy brought Courtney to an interview about her allegations of sexual

abuse. Upon the request of APS, Dr. Brandon Bates, a licensed clinical

psychologist, performed a psychological evaluation of Courtney in June 2008.

Dr. Bates explained that prior to his evaluation of Courtney, he knew, based on

records that he had received from another doctor and from Courtney’s school,

that she was autistic,4 that she was mildly mentally retarded, and that she had

been enrolled in special education programs throughout her school years.

Based on his evaluation, Dr. Bates concluded that Courtney’s “adaptive

functioning age” was seven years and three months, although Courtney was

actually eighteen years old at the time of the evaluation. Nonetheless, Dr. Bates

opined that Courtney was able to speak in a logical and coherent manner, that

she responded to questions appropriately, that she had the capacity to remember

4
At trial, Dr. Bates described autism as

stereotype behaviors such as twirling or rocking or hand clapping.
That’s one of the criteria. Another one is failure to make eye contact
. . . . [Autistic people] have a really hard time understanding how
other people may feel, can’t read facial gestures, [and have a] really
difficult time intermingling with other people and just relating to them
on a general level. And then there has to be some delay in spoken
language as well.

4
events and narrate facts, and that she was capable of knowing the difference

between the truth and a lie. Dr. Bates opined that Courtney’s autism and mental

retardation rendered her incapable of consenting to a sexual encounter.

At trial, Courtney testified that appellant, who she called “Charlie,” had

touched her with his penis on her “boobs,” vagina, and “butt.” Specifically, she

testified that appellant had put his penis in her “butt,” which hurt her badly.

For years, Brandy denied, on several occasions, that appellant had

sexually abused her or Courtney. But Brandy eventually told her fiancé, Dalton,

about being sexually abused by appellant. Dalton committed suicide in March

2010 after he and Brandy broke up. It was Dalton’s last wish for Brandy to tell

someone about the abuse, so Brandy called Matt Pruitt, a deputy with the Young

County Sheriff’s Office.5 Deputy Pruitt and his wife, Tracy, went to a park to meet

with Brandy. Brandy told them that appellant had sexually abused her, and she

revealed details about an incident that had occurred with appellant and “Mack,”

her boyfriend before she was engaged to Dalton.

At trial, Brandy said that she had initially denied appellant’s sexual abuse

of her because she was scared of appellant,6 she thought that she was the only

one being abused, and she believed that she was protecting her sisters.

5
Brandy knew Deputy Pruitt because his daughter was one of Brandy’s
friends.
6
Brandy said that appellant had threatened to kill her if she told anyone
about the abuse.

5
Brandy testified that over the course of several years while she lived with

appellant, he had touched her vagina and her breasts with his hands, had put his

penis in her vagina on more than one occasion, and had also put his penis in her

mouth. Brandy also said that appellant had forced her to watch pornography with

him.

Brandy and Mack each testified about a night in 2008 when they met

appellant at Brandy’s stepgrandmother’s empty house. At the time, Brandy and

Mack were fifteen years old. Appellant let them drink alcohol.7 Appellant told

them to exchange the alcohol between each other’s mouths as they were kissing.

Later, appellant told Mack to take off his shirt so that appellant could perform an

Indian healing ritual.8 After appellant started chanting over Mack and Mack

pushed appellant off of him, appellant pulled out a gun and asked Mack if he was

scared. At that time, Mack said that he was not scared (although Mack testified

at trial that he was scared). Appellant rubbed the gun around Mack’s head, face,

and shoulder.

Later that night, appellant and Mack went outside and sat in a pickup,

where appellant again pointed the gun at Mack. Appellant told Mack that he

wanted Mack and Brandy to have sex while appellant watched. Mack initially

7
Brandy testified that appellant started giving her vodka when she was ten
years old.
8
Mack had cancer. He testified, “[Appellant] was rubbing parts of my chest
and chanting in Indian and asked me if that had helped my chest pains. . . .
[T]he answer was no, and it seemed to upset him just a little bit.”

6
resisted. But because Brandy was in the house, because Mack was scared for

her well-being, and because appellant had said that he would go get her only if

Mack got “hard,” Mack took off his shorts and tried to arouse himself. When

Mack could not do so, however, appellant “reached over and put his hand on the

base of [Mack’s] penis and moved his fingers around kind of in a stroking

motion.” Mack still could not become aroused, and appellant asked Mack

whether appellant needed to “use [his] mouth,” which angered Mack. Mack

shoved appellant, and Mack and appellant began yelling at each other.

Appellant went back into the house and told Mack that if he got out of the truck, a

“banshee” would attack him. Appellant “let two or three rounds off in the air and

disappeared into the house.” Eventually, Mack went back into the house, and he

and Brandy stayed in a locked bedroom the rest of the night. Mack later told

Deputy Pruitt what had happened.

Whitney eventually left appellant and Rebekah’s home, and she began

living with Donna Dragoo, a foster parent, in April 2010. While living in Dragoo’s

home, Whitney told Dragoo that appellant had sexually abused her.

Grand juries indicted appellant for three counts of indecency with a child by

contact (for touching Whitney’s genitals, Mack’s genitals, and Brandy’s genitals

while intending to arouse or gratify a person’s sexual desire), two counts of

sexual assault (for penetrating Courtney’s anus by his sexual organ without her

consent when she was an adult and for penetrating Brandy’s mouth with his

sexual organ when she was under seventeen years old), one count of

7
aggravated assault with a deadly weapon (for intentionally or knowingly

threatening Mack with imminent bodily injury while using a gun), and one count of

aggravated sexual assault of a child (for penetrating Brandy’s sexual organ with

his own sexual organ when she was younger than fourteen years old). Before

appellant’s trial began, he agreed to allow the cases arising from his acts in

Stephens County to be tried in Young County together with the cases that arose

there.

Appellant pled not guilty to each charge. At his trial, after the jury heard

evidence and arguments from the parties, it deliberated for less than an hour

before convicting him of each offense. In the punishment phase of the trial,

appellant pled true to a repeat offender paragraph that six of his indictments

contained; he therefore admitted that he had been previously convicted of

indecency with a child. The jury assessed twenty years’ confinement for

appellant’s sexual assault of Courtney and confinement for life for each of the six

other offenses. The trial court sentenced appellant in accordance with the jury’s

verdicts, and it ordered all of the sentences, except for the sentence for

aggravated assault with a deadly weapon, to run consecutively. Appellant

brought these appeals.

Evidentiary Sufficiency

In his second and fourth issues, appellant argues that the evidence is

insufficient to sustain two of his seven convictions. Specifically, he contends that

the evidence is insufficient to support his conviction for indecency with a child

8
regarding sexual contact with Whitney and to support his conviction for

aggravated assault with a deadly weapon.

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.

The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009). Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007). Instead, we Adetermine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.@ Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

9
resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at

638.

Indecency with a child

To obtain appellant’s conviction for indecency with a child concerning his

sexual contact with Whitney, the State had to prove that Whitney was younger

than seventeen years old when appellant, with the intent to arouse or gratify the

sexual desire of any person, touched any part of her genitals. See Tex. Penal

Code Ann. § 21.11(a)(1), (c)(1). Appellant contends that neither Whitney’s outcry

statements nor her testimony at trial establish that he touched her genitals.

The evidence showed that in April 2010, Whitney talked to another child in

Dragoo’s foster home about the “love game,” which Whitney, who was five years

old at the time, later nervously described to Dragoo as pretending to be naked in

bed while kissing and touching private parts. Dragoo asked Whitney where she

had learned of the love game, and Whitney said, “I see it in movies my daddy

tells me to watch with him.”

A couple of weeks later, Whitney and Dragoo were playing outside when a

neighbor came outside without a shirt on. Whitney said that she wished that the

man “was naked and had no underwear on and his wife had no bra on and they

were kissing and touching people.” Whitney also told Dragoo that appellant had

told her that love meant being “naked in bed and kissing and touching each

other.”

10
 Later in 2010, Whitney talked in Dragoo’s home about her “tickle spot,”

which Whitney said was her “private spot.” Whitney said that she learned about

the “tickle spot” from appellant. Whitney told Dragoo that appellant “would pull

[Whitney’s] pants down and touch [her] there,” that this usually happened when

Whitney kissed appellant goodnight, and that Rebekah would see appellant

touching Whitney and say, “Honey[,] please stop doing that to her. Don’t touch

her there.” Whitney testified at trial that appellant had touched her on the “[f]ront”

of her “private part.”

Viewing this evidence in the light most favorable to the jury’s verdict of

conviction, and allowing for the fact that the jury could have drawn reasonable

inferences from the evidence, we conclude that the evidence is sufficient to

establish that appellant touched Whitney’s genitals. Although Whitney spoke in

imprecise terms in her outcries and in her testimony, she was only five and six

years old, respectively, at the time of her April and September 2010 outcries, and

she was only seven years old at the time of the trial. Thus, she could not have

been expected to use exacting anatomic detail. See Villalon v. State, 791

S.W.2d 130, 134 (Tex. Crim. App. 1990) (stating that children are not expected to

testify with the “same clarity and ability as is expected of mature and capable

adults”); Wallace v. State, 52 S.W.3d 231, 235 (Tex. App.—El Paso 2001, no

pet.) (“As a matter of public policy, the appellate courts of this state do not

expect child victims of crime to testify with the same clarity and ability as is

expected of mature and capable adults.”).

11
 Despite the imprecision in Whitney’s language, a rational jury could have

determined beyond a reasonable doubt that appellant touched her genitals

because there was direct evidence that he touched the front of her “private part”

after pulling her pants down. See Mounce v. State, 432 S.W.2d 104, 107 (Tex.

Crim. App. 1968) (holding that the “testimony that the [defendant] placed his

hands on the sexual private parts” of the victim was sufficient to prove that he

touched her vulva); Thomas v. State, 399 S.W.2d 555, 556 (Tex. Crim. App.

1966) (holding that a seven-year-old girl’s testimony that the defendant touched

her “privates” after taking her panties off was sufficient to establish that the

defendant touched the girl’s vulva); Mallet v. State, 9 S.W.3d 856, 863–64 (Tex.

App.—Fort Worth 2000, no pet.) (concluding that the victim’s testimony that the

defendant’s penis went inside her “butt” or “backside” was sufficient to prove that

it penetrated her anus); Bryant v. State, 685 S.W.2d 472, 474–75 (Tex. App.—

Fort Worth 1985, pet. ref’d) (holding that the evidence was sufficient to establish

that the defendant touched the victim’s vagina when the victim testified that the

defendant had put his hands underneath her underpants and had touched her

between her legs).

Also, the jury heard other evidence, including facts from Whitney’s

outcries, that substantiated appellant’s sexual interest in children. The jury could

have considered this evidence when determining what Whitney meant when she

testified that appellant had touched the front of her “private part.” See Wise v.

State, 364 S.W.3d 900, 907 (Tex. Crim. App. 2012) (holding that a jury could

12
consider the defendant’s history of sexually assaulting children when deciding

whether he knowingly possessed child pornography on his computer).

For these reasons, we hold that the evidence is sufficient to sustain

appellant’s conviction for indecency with a child by sexual contact of Whitney’s

genitals, and we overrule his second issue. See Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Isassi, 330 S.W.3d at 638.

Aggravated assault with a deadly weapon

To obtain appellant’s conviction for aggravated assault with a deadly

weapon against Mack, the State had to prove that appellant intentionally or

knowingly threatened Mack with imminent bodily injury and used or exhibited a

deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a)(2), .02(a)(2) (West

2011). Appellant argues that there is “no evidence that [he] threatened [Mack]

with imminent bodily injury and that a gun was exhibited as part of that threat.”

We disagree.

As summarized above, Mack testified that at Brandy’s stepgrandmother’s

home, in an apparent effort to alleviate Mack’s chest pains, appellant had Mack

lie on a bed with his shirt off, and appellant then put a pistol on Mack’s shoulder,

head, and face. Appellant asked Mack, “Are you scared,” and when Mack said

that he was not scared, appellant “got angry.” Appellant then repeated his

question, and when Mack said again that he was not scared, appellant left the

13
room.9 Later, outside in a pickup truck, appellant again pointed the pistol at

Mack. After appellant touched Mack’s genitals and appellant and Mack both

became angry, appellant “let two or three rounds off in the air.” Toward the end

of Mack’s testimony on direct examination by the State, the following exchange

occurred:

Q. And your testimony was that he used that gun and he
threatened you?

A. Yes, ma’am.

Q. Do you believe that gun was a deadly weapon?

A. Yes, ma’am.

Q. Were you -- the threat, were you in fear of imminent bodily
injury?

A. Yes, ma’am, I was.

The implication from appellant’s argument is that he intended to do

something other than threaten Mack with imminent bodily injury when he pointed

the pistol at Mack on more than one occasion. But even if the record raised that

conflicting inference, in determining the sufficiency of the evidence to show a

defendant’s intent, we Amust presume—even if it does not affirmatively appear in

the record—that the trier of fact resolved any such conflict in favor of the

prosecution, and [we] must defer to that resolution.@ Matson v. State, 819

S.W.2d 839, 846 (Tex. Crim. App. 1991).

9
Mack confirmed at trial that he was scared when he was “looking down
the barrel of [the] gun.”

14
 Viewing the evidence in the light most favorable to the jury’s guilty verdict,

we conclude that a rational jury could have discerned from Mack’s testimony,

beyond a reasonable doubt, that appellant intended to threaten Mack with

imminent bodily injury by pointing the gun at him. See Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. Specifically, along with other

evidence, the jury could have inferred this intent from the fact that appellant

became angry when Mack said that he was not scared. The jury could have also

inferred appellant’s intent from his acts with the pistol. See Ward v. State, 113

S.W.3d 518, 521 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“Aiming a

deadly weapon at a supposed victim is sufficient evidence of a threat to sustain

an aggravated assault conviction.”); De Leon v. State, 865 S.W.2d 139, 142

(Tex. App.—Corpus Christi 1993, no pet.) (“The mere presence of a deadly

weapon, under proper circumstances, can be enough to instill fear and threaten a

person with bodily injury.”); Gaston v. State, 672 S.W.2d 819, 821 (Tex. App.—

Dallas 1983, no pet.) (op. on reh’g) (“It was the presence of the gun in appellant’s

hand that instilled fear in complainant and made her feel threatened with bodily

injury.”); see also Danko v. State, No. 02-09-00386-CR, 2011 WL 167071, at *3

(Tex. App.—Fort Worth Jan. 20, 2011, pet. ref’d) (mem. op., not designated for

publication) (“Danko’s display of a gun was sufficient to establish the required

threat of imminent bodily harm.”). We overrule appellant’s fourth issue.

15
 Admission of Evidence

In his first issue, appellant asserts that the trial court erred by admitting

evidence about “extraneous offenses” that he committed when he sexually

abused Courtney.10 He asserts that this alleged error requires reversal of all of

his convictions. He admits, however, that he did not object to the admission of

such alleged extraneous evidence.

To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687,

691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A

reviewing court should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.

2010) (op. on reh’g). Preservation of error is a systemic requirement. Id. at 473–

74; Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009).

10
Appellant asserts that the trial court allowed extraneous evidence
because although the State charged appellant only with penetrating Courtney’s
anus with his sexual organ, the jury also heard evidence that he touched her
breasts and vagina with his penis.

16
 Appellant recognizes these principles of error preservation and

acknowledges that normally, a party forfeits error in the admission of evidence by

failing to object at the time the evidence is offered. See Saldano v. State, 70

S.W.3d 873, 889 (Tex. Crim. App. 2002) (“We have consistently held that the

failure to object in a timely and specific manner during trial forfeits complaints

about the admissibility of evidence. This is true even though the error may

concern a constitutional right of the defendant.”) (footnote omitted); Reyes v.

State, 361 S.W.3d 222, 229 (Tex. App.—Fort Worth 2012, pet. ref’d).

Nonetheless, citing Almanza v. State, a case concerning error in a jury charge,

appellant contends that despite his lack of an objection, we should review

whether egregious error has occurred. See 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh=g).

Appellant has not directed us to any decision adopting the Almanza jury-

charge standard to a complaint about the admission of evidence. To the

contrary, we have located decisions that refused to apply Almanza to

unpreserved evidentiary complaints. See Tapps v. State, 257 S.W.3d 438, 448

(Tex. App.—Austin 2008) (op. on reh’g) (“We see no legal basis for extending the

egregious error theory relating to unobjected-to jury charge error to the

admission of unobjected-to evidence.”), aff’d, 294 S.W.3d 175 (Tex. Crim. App.

2009); Love v. State, No. 13-01-00342-CR, 2002 WL 34230836, at *1 (Tex.

App.—Corpus Christi July 3, 2002, pet. ref’d) (mem. op., not designated for

17
publication) (explaining that “Almanza . . . dealt with jury charge error, not error in

the admission of evidence, and [is] inapplicable to” evidentiary complaints).

We hold that appellant forfeited his complaint about the admission of

allegedly extraneous evidence by failing to object at trial. See Devoe v. State,

354 S.W.3d 457, 475 (Tex. Crim. App. 2011) (“Appellant did not object at trial to

the admission of the complained-of evidence on constitutional or other grounds.

Therefore, he presents nothing for our review.”). We overrule appellant’s first

issue.

In his third issue, appellant argues that his conviction for indecency with a

child regarding sexual contact with Whitney should be reversed because the trial

court erred by failing to “suppress the hearsay [outcry] statement” that Whitney

made to Dragoo. In a hearing outside of the presence of the jury, Dragoo

testified that soon after Whitney came to live in Dragoo’s foster home, Whitney

played games that indicated to Dragoo that Whitney “knew too much about sex

for her age.” Specifically, Whitney played the love game, which Whitney

described as pretending to be naked in bed while kissing and touching “private

parts and stuff.” Almost two weeks after that, Dragoo was outside playing with

Whitney when a male neighbor came outside without a shirt on. Whitney said

that she wished the man was “naked and had no underwear on and his wife had

no bra on and they were kissing and touching people.” Dragoo asked Whitney

how she had learned about such behavior, and Whitney said that she had

learned it from watching movies with appellant.

18
 A few months later, one of the children in Dragoo’s home told Dragoo’s

sister, “I can show you where your tickle spot is.” The child described the “tickle

spot” as the “private spot.” The child said that Whitney had told her about the

tickle spot. When Dragoo asked Whitney about what she had told the other

child, Whitney said that appellant had shown her the tickle spot because he

would pull her pants down and “touch [her] there.”

At the end of Dragoo’s testimony outside of the jury’s presence, the State

urged the trial court to find Whitney’s outcries to Dragoo to be reliable and

admissible under article 38.072 of the code of criminal procedure. See Tex.

Code Crim. Proc. Ann. art. 38.072 (West Supp. 2011). The trial court found that

the outcries were reliable.

During the hearing outside of the jury’s presence, appellant did not

explicitly object to Dragoo’s testimony or contest the State’s request for the trial

court to allow it. When Dragoo testified in front of the jury, appellant objected

that the testimony about Whitney’s outcries was hearsay, and the trial court

overruled the objection.

Hearsay is generally inadmissible. See Tex. R. Evid. 802. But article

38.072 provides that a statement is not inadmissible on the basis that it is

hearsay if, in relevant part, (1) the statement describes an offense under chapter

twenty-one of the penal code that a defendant committed against a child younger

than fourteen years of age; (2) the statement was made by the child to the first

person who was eighteen years old or older, other than the defendant, that the

19
child spoke to about the offense; and (3) the “trial court finds, in a hearing

conducted outside the presence of the jury, that the statement is reliable based

on the time, content, and circumstances of the statement.” Tex. Code Crim.

Proc. Ann. art. 38.072, §§ 1(1), 2; see West v. State, 121 S.W.3d 95, 104 (Tex.

App.—Fort Worth 2003, pet. ref’d). Outcry testimony admitted in compliance with

article 38.072 is considered substantive evidence, admissible for the truth of the

matter asserted in the testimony. Duran v. State, 163 S.W.3d 253, 257 (Tex.

App.—Fort Worth 2005, no pet.)

“A court’s decision that the outcry statement is reliable and admissible

under article 38.072 will not be disturbed absent a clear abuse of discretion.” Id.;

see Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). A trial court

abuses its discretion by admitting a statement under article 38.072 only when the

court’s decision falls outside of the zone of reasonable disagreement. Bautista v.

State, 189 S.W.3d 365, 367 (Tex. App.—Fort Worth 2006, pet. ref’d).

Appellant contends that it is “clear that there were insufficient indices of

reliability . . . of the child’s statements to be admissible through Dragoo.” 11 When

reviewing the trial court’s determination that an outcry statement was reliable, we

consider “the time the child’s statement was made to the outcry witness, the

content of the child’s statement, and the circumstances surrounding the making

of that statement.” Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.—Houston

11
Appellant does not contend that Whitney’s statements to Dragoo were
inadmissible under any requirement of article 38.072 other than reliability.

20
[1st Dist.] 2002, pet. ref’d). Indicia of reliability that a trial court may consider

include

(1) whether the child victim testifies at trial and admits making the
out-of-court statement, (2) whether the child understands the need
to tell the truth and has the ability to observe, recollect, and narrate,
(3) whether other evidence corroborates the statement, (4) whether
the child made the statement spontaneously in his own terminology
or whether evidence exists of prior prompting or manipulation by
adults, (5) whether the child’s statement is clear and unambiguous
and rises to the needed level of certainty, (6) whether the statement
is consistent with other evidence, (7) whether the statement
describes an event that a child of the victim’s age could not be
expected to fabricate, (8) whether the child behaves abnormally after
the contact, (9) whether the child has a motive to fabricate the
statement, (10) whether the child expects punishment because of
reporting the conduct, and (11) whether the accused had the
opportunity to commit the offense.

Norris v. State, 788 S.W.2d 65, 71 (Tex. App.—Dallas 1990, pet. ref’d) (citing

Buckley v. State, 758 S.W.2d 339, 343–44 (Tex. App.—Texarkana 1988), aff’d,

786 S.W.2d 357 (Tex. Crim. App. 1990)); see In re M.R., 243 S.W.3d 807, 813

(Tex. App.—Fort Worth 2007, no pet.).

Whitney testified at trial (albeit after the trial court had admitted the

outcries), and Whitney’s testimony demonstrates that she had been told to tell

the truth and that she had the ability to recollect facts that had occurred in the

past. Although Whitney did not testify about the outcries, she did testify that

appellant had touched her on her private part, and she therefore confirmed, in

part, her statements in the outcries.

Dragoo’s testimony and her written reports indicated that Whitney had

made the outcries spontaneously and in her own terminology; Whitney had

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initially made statements to other children in Dragoo’s home while using child-like

terms such as Whitney’s description of the “love game.” Dragoo testified in the

hearing outside of the jury’s presence that as a foster parent, she had been

trained in how to communicate with children regarding outcry statements.

Whitney’s outcry about appellant’s pulling her pants down and touching her

private part was unambiguous, and we have not located evidence that is

inconsistent with this outcry. The trial court could have reasonably determined

that a child of Whitney’s age would not have normally imagined things such as a

parent’s touching her private area or naked people kissing and touching each

other.

The record does not disclose a motive that Whitney would have had to

fabricate the outcries. Appellant had the opportunity to sexually abuse Whitney

because he lived with her. Finally, the evidence establishes that Whitney was

nervous when making the outcries, that she asked Dragoo whether Dragoo was

going to tell appellant and Rebekah about one of the outcries, and that she did

not want to testify at the trial.

Appellant notes, among other facts, that during Whitney’s testimony,

neither side particularly asked her about the statements that she had made to

Dragoo. Appellant also contends that Whitney’s outcries were not reliable

because the State did not present medical evidence to corroborate them.12 But

12
There was plentiful evidence, however, corroborating appellant’s sexual
interest in children.

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considering the evidence under all of the factors listed above, we conclude that

the trial court did not depart from the zone of reasonable disagreement by

determining that the outcries were reliable, and we therefore hold that the court

did not abuse its discretion by admitting the outcries. See Tex. Code Crim. Proc.

Ann. art. 38.072, § 2(b)(2). We overrule appellant’s third issue.

Venue

In his fifth issue, appellant contends that his convictions in which Mack was

the victim (aggravated assault with a deadly weapon and one of the indecency

with a child by contact counts) should be reversed because the State failed to

present sufficient evidence to support venue in Stephens County. Appellant’s

argument focuses on testimony by Tim Bay, a captain with the Young County

Sheriff’s Office. Captain Bay testified that he was “pretty sure” that appellant’s

crimes toward Mack occurred in Stephens County, although the county line

“jog[s] back and forth.” Appellant did not cross-examine Captain Bay on this

testimony.

“To sustain the allegation of venue, it shall only be necessary to prove by

the preponderance of the evidence that by reason of the facts in the case, the

county where such prosecution is carried on has venue.” Tex. Code Crim. Proc.

Ann. art. 13.17 (West 2005); Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim.

App. 1964) (explaining that a venue determination will be upheld “if from the

evidence the jury may reasonably conclude that the offense was committed in

the county alleged”). When venue was not disputed in the trial court, as it was

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not disputed here, we must presume, unless the record shows to the contrary,

that venue was proved. See Tex. R. App. P. 44.2(c)(1); Couchman v. State,

3 S.W.3d 155, 161 (Tex. App.—Fort Worth 1999, pet. ref’d).

Even if the combination of the presumption under rule 44.2(c)(1) and

Captain Bay’s testimony was not sufficient to establish venue, Mack testified on

more than one occasion, without equivocation, that the crimes against him

occurred in Stephens County. Brandy also testified that her stepgrandmother’s

house, where appellant committed the crimes against Mack, was in Stephens

County. Thus, we hold that the State sufficiently proved venue, and we overrule

appellant’s fifth issue.

Conclusion

Having overruled each of appellant’s issues, we affirm all of the trial court’s

judgments.

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 26, 2012

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