Opinion issued October 17, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00664-CR
NO. 01-12-00665-CR
———————————
JUNIOR GARVEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case Nos. 1332795 & 1332796
MEMORANDUM OPINION
A jury convicted appellant, Junior Garvey, of aggravated sexual assault of a
child 1 and indecency with a child 2 and assessed his punishment at fifty years’ and
1
See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2012).
five years’ confinement, respectively. 3 In his sole point of error on appeal,
appellant argues that the trial court erred in admitting the testimony of an outcry
witness.
We affirm.
BACKGROUND
The complainant, M.F., attended the Diamond A-Cat-A-Me daycare for
approximately ten years, beginning when she was a toddler and ending when she
was twelve years old. The daycare’s director, Melbra Garvey, was a friend of
M.F.’s mother and was married to appellant, who also worked at the daycare. M.F.
viewed the Garveys as parental figures and would sometimes spend the night at
their home.
At trial, M.F. testified that in 2005, when she was ten years old, appellant
began rubbing her breasts outside and underneath her clothing. In 2006, appellant
progressed to touching her vagina outside her clothing while in his office at the
daycare. Appellant escalated the abuse by touching M.F.’s vagina underneath her
clothing in 2007 while in the daycare’s kitchen. In 2009, the abuse culminated in
appellant’s digital penetration of her vagina while at the daycare.
2
See id. § 21.11 (Vernon 2011).
3
Appellant was charged with the offense of aggravated sexual assault in trial court
cause number 1332795, resulting in appellate cause number 01-12-00664-CR.
Appellant was charged with indecency with a child in trial court cause number
1332796, resulting in appellate cause number 01-12-00665-CR.
2
M.F.’s mother, D.F., testified at trial regarding the outcry of abuse that M.F.
made to her in 2009 and subsequent events. Appellant objected to D.F.’s
testimony, arguing that it was hearsay and that the State had failed to comply with
the provisions of Code of Criminal Procedure article 38.072, governing the
admissibility of testimony from outcry witnesses. Specifically, appellant argued
that the State’s notice of its intent to use outcry-witness testimony was
“misleading” and did not properly identify D.F. as an outcry witness.
The notice provided to appellant had a space designated for naming the
outcry witnesses, but it was left blank. Below that section, the notice stated,
The summary of the statements are as follows: Cilya Broadnax, [sic]
On or about June 27, 2011, [M.F.] told Officer C. Brown and
Officer C. Kimbrough that he [sic] had been molested for
approximately 5 years . . . and that he (meaning the Defendant) would
take her to his room at Diamond Academy and touch her breasts and
body. . . . [H]e touched her private areas, including putting his finger
in her private area. [M.F.] also stated that she stayed the night at his
home and he put his finger in her private parts when she was in the
family room.
On or about June 23, 2011, after a presentation on child abuse
by a police officer, [M.F.] told her teacher, Ms. Stanfield . . . that “that
had just happened to her and had been happening to her for a long
time and it had just stopped happening.”
On or about June 27, 2011, [M.F.] told her assistant principal,
Cilya Broadnax, that she had been abused by a family friend who
owns a daycare (meaning the Defendant). [M.F.] stated that he had
been touching her, and had almost penetrated her with his finger.
[M.F.] stated the touching began in the third grade and continued until
December of her 8th grade year.
On or about July 1, 2010, [M.F.] told her mother, [D.F.], that
the Defendant, Junior Garvey, had touched her on her breasts and
private place. [M.F.] described the incident when she sat on his knees
3
to use a computer and he touched her private place. M.F. also
described an incident that occurred when she spent the night at the
Defendant’s house and he touched her when she had fallen asleep in
the living room.
The trial court overruled appellant’s objections, stating that it would allow
D.F. to testify regarding the statements that were included in the State’s notice as
being made to her by M.F..
D.F. testified that one evening while they were preparing to attend a party at
the Garveys’ home, M.F. became visibly upset and told her repeatedly that she did
not want to attend. M.F. revealed for the first time that she had been sexually
abused by appellant beginning in 2005. M.F. told D.F. that appellant touched her
breasts and private area while she sat on appellant’s lap. D.F. also testified that
M.F. told her that appellant put his finger in her vagina while they were in his
office and had done it before and that M.F. recounted another incident in which she
was on the couch in appellant’s home and appellant touched her body.
M.F. thought of the daycare as a second home, and she did not want the
police to become involved for fear the daycare or the Garveys would get in trouble.
D.F. testified that both she and M.F. confronted Melbra Garvey with the
allegations. The next day, appellant denied the allegations and claimed that M.F.
had a motive to fabricate the allegations; he claimed that she was lying because he
had yelled at her for unauthorized computer use the day before. Because M.F. did
not want the daycare to get in trouble, D.F. did not report the abuse to the police.
4
However, M.F. had no further contact with the Garveys and did not return to the
daycare.
Two years after her initial outcry, while attending summer school, M.F.
spoke again about the alleged abuse. A police officer spoke to her middle school
class, and after the presentation, M.F. told the officer and the teacher, Camula
Stanfield, about her ordeal. They reported the abuse to Cilya Broadnax, the middle
school’s associate principal, and Broadnax had a conversation with M.F. about the
abuse. They also reported the abuse to the police, who subsequently conducted an
investigation. Stanfield testified at trial regarding the outcry of abuse that M.F.
made to her. The State also presented the testimony of the officers involved in the
investigation.
After learning the alleged abuse had been reported to the police, the Garveys
apologized to M.F. in her home. M.F. testified that appellant apologized for the
abuse she had suffered. She also testified that she got the impression from
appellant’s apology that he wanted her to tell the police that nothing bad had
happened. However, at trial, appellant again denied abusing M.F., and he testified
that he apologized to her for shouting at her about her computer use. Appellant’s
wife also testified on his behalf.
A jury convicted appellant of both aggravated sexual assault and indecency
with a child. This appeal followed.
5
Testimony of Outcry Witness
In his sole point of error on appeal, appellant argues that the trial court erred
in admitting D.F.’s testimony.
A. Standard of Review
We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
We will uphold the trial court’s ruling if it was within the zone of reasonable
disagreement. Id. In addition, we must review the trial court’s ruling in light of
the evidence before the trial court at the time the ruling was made. Id.
Hearsay is a statement, other than one made by the declarant while testifying
at trial, that a party offers to prove the truth of the matter asserted. TEX. R. EVID.
801(d); Baldree v. State, 248 S.W.3d 224, 230–31 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d). Hearsay statements are inadmissible, except as provided by
statute or other rule. TEX. R. EVID. 802. The Code of Criminal Procedure provides
a statutory exception to this general rule: when a defendant is charged with certain
offenses against a child under fourteen, including aggravated sexual assault of a
child and indecency with a child, article 38.072 permits the first person over the
age of eighteen to whom the child makes a statement describing the offense to
testify as to the child’s statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072
(Vernon Supp. 2012); Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App.
6
2011). To invoke the statutory exception, the party intending to offer the statement
must meet certain procedural requirements, including timely notifying the
defendant of the outcry witness’s name and a summary of the testimony. TEX.
CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1); see Lopez v. State, 343 S.W.3d 137,
140 (Tex. Crim. App. 2011). We review the trial court’s determination of the
proper outcry witness for an abuse of discretion. See Garcia v. State, 792 S.W.2d
88, 92 (Tex. Crim. App. 1990).
B. Admission of D.F.’s Testimony
Appellant specifically argues on appeal that: (1) D.F.’s testimony regarding
M.F.’s outcry was “unreliable because [it was] not consistent with other evidence
or corroborated in any way”; (2) D.F. “was permitted to testify about collateral and
extraneous offenses”; (3) the State’s written notice “did not identify [D.F.] as the
outcry witness”; (4) the State’s written notice “did not provide a sufficiently
detailed recitation of the proposed outcry testimony, in particular it did not
describe a penetration of the complainant’s vagina which constituted the offense of
aggravated sexual assault versus the indecency with a child allegations in the
summary”; (5) D.F.’s testimony “exceeded the scope of the summary given to
appellant by including an allegation that he penetrated [M.F.’s] vagina with his
finger, a crime not suggested by the summary which only alleged indecency with a
child by contact”; and (6) D.F. “was permitted to repeat statements made by the
7
complainant which were ambiguous, did not describe a criminal offense in any
discernible manner, and which constituted general allusions to abuse.”
1. Preservation
The State argues that appellant failed to preserve his complaint that D.F.’s
testimony regarding M.F.’s outcry was “unreliable because [it was] not consistent
with other evidence or corroborated in any way.” It also argues that he failed to
preserve his complaints that the trial court erred in admitting D.F.’s testimony
because she “was permitted to testify about collateral and extraneous offenses” and
because her testimony “exceeded the scope of the summary” in the State’s written
notice. The State further asserts that appellant failed to preserve his complaint that
D.F. “was permitted to repeat statements made by the complainant which were
ambiguous, did not describe a criminal offense in any discernible manner, and
which constituted general allusions to abuse.”
To preserve a complaint for review on appeal, a party must make a timely,
specific request, objection, or motion to the trial court that states the grounds for
the ruling sought, and the trial court must rule on the request, objection, or motion.
TEX. R. APP. P. 33.1(a); Gutierrez v. State, 36 S.W.3d 509, 510 (Tex. Crim. App.
2001). Furthermore, the complaint raised on appeal must comport with the
objection made in the trial court. See Swain v. State, 181 S.W.3d 359, 367 (Tex.
8
Crim. App. 2005) (holding that appellant failed to preserve complaint for review
when trial objection did not comport with issue raised on appeal).
Here, appellant objected to D.F.’s testimony at trial on the ground that it
constituted hearsay, and he argued that the State’s written notice was misleading
and did not properly identify D.F. as an outcry witness. He did not object on the
basis that the statement was unreliable or otherwise raise that issue in the trial
court. See id. Thus, this argument is not preserved.
Regarding his complaints that D.F.’s testimony exceeded the scope of the
summary contained in the State’s written notice, that D.F. erroneously testified
about “collateral and extraneous offenses,” and that D.F. repeated ambiguous
statements relating general allegations of abuse, appellant fails to identify the
specific statements at issue or cite any authority supporting his contentions of
inadmissibility. See TEX. R. APP. P. 38.1(i) (providing that appellate brief must
contain clear and concise argument for contentions made, with appropriate
citations to authority and to record); see also Mims v. State, 238 S.W.3d 867, 874
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding, where appellant failed to
specifically identify complained-of statement that allegedly constituted hearsay or
cite any authority, that appellant waived his complaint). Furthermore, appellant
did not object to any of D.F.’s testimony in a way that would have put the trial
9
court on notice of these complaints. See TEX. R. APP. P. 33.1(a); Swain, 181
S.W.3d at 367; Gutierrez, 36 S.W.3d at 510.
We conclude that appellant failed to preserve these complaints for our
review, and, thus, they are overruled. However, appellant did object at trial that
the State’s written notice was “misleading” and that it failed to properly identify
D.F. as an outcry witness. Thus, we consider appellant’s remaining contentions on
appeal.
2. Notice and identification of the outcry witness
Appellant argues that the trial court erred in admitting D.F.’s testimony
because the State’s written notice “did not identify [D.F.] as the outcry witness”
and because it “did not provide a sufficiently detailed recitation of the proposed
outcry testimony” due to its failure to “describe a penetration of the complainant’s
vagina which constituted the offense of aggravated sexual assault versus the
indecency with a child allegations in the summary.” For the outcry statement to be
admissible, the State was required to provide timely notice of its intention to
introduce such testimony, including notifying the defendant of the name of the
witness through whom it intends to offer the statement and providing a written
summary of the statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072,
§ 2(b)(1).
10
Appellant claims that the trial court erred in admitting D.F.’s testimony
because the State failed to provide proper notice identifying her as the outcry
witness. Appellant complained at trial that the notice erroneously listed
Broadnax’s name immediately following the part of the notice providing “[t]he
summary of the statements are as follows” and that this error led him to believe
that Broadnax was the only witness who would testify regarding M.F.’s outcry of
abuse. However, Broadnax would not have been able to testify as to the outcry
statements that M.F. made to others. See id. § 2(a)(3) (defining outcry witness as
first person over age eighteen to whom child made statement concerning offense),
§ 2(b)(1)(B) (requiring State to provide notice of name of outcry witness). The
notice, when read in its entirety, indicated that the witnesses listed in the individual
paragraphs, including D.F., would be testifying as to the outcry statements made to
them and summarized the outcry statements that M.F. made to each of them. We
conclude that the trial court did not abuse its discretion in concluding that appellant
had sufficient notice of the State’s intention to call D.F. as an outcry witness. See
Garcia, 792 S.W.2d at 92.
Appellant also argues that the summary of D.F.’s statement was not
sufficiently detailed. However, the summary stated that M.F. told D.F. that
appellant “touched her on her breasts and private place,” that M.F. “described the
incident when she sat on his knees to use a computer and he touched her private
11
place,” and that appellant “touched her when she had fallen asleep in [his] living
room.” This summary describes the alleged offense of indecency with a child in a
discernible manner by describing contact of a sexual nature between appellant and
M.F., and it provides more than just a general allusion that abuse had occurred. It
describes the specific type of touching M.F. reported—i.e. touching her breasts and
“private place” and described two specific instances of such touching—an instance
at the daycare while M.F. sat on appellant’s lap and an instance at appellant’s
home. See Garcia, 792 S.W.2d at 91 (stating that outcry witness is “the first
person, 18 years old or older, to whom the child makes a statement that in some
discernible manner describes the alleged offense” and that “the statement must be
more than words which give a general allusion that something in the area of child
abuse was going on”).
Furthermore, the summary largely comports with D.F.’s testimony at trial.
D.F. testified that M.F. revealed that she had been sexually abused by appellant
beginning in 2005, that appellant touched her breasts and private area while she sat
on appellant’s lap, that appellant put his finger in her vagina while they were in his
office and had done it before, and that appellant touched her body while she was
lying on the couch at appellant’s home. Thus, we conclude that the summary
provided adequate notice of the testimony that would be offered by D.F.
12
Appellant’s complaint that D.F.’s testimony at trial included allegations of
digital penetration that were not made clear in the summary is essentially a
complaint that D.F.’s testimony exceeded the scope of the statements related in the
summary. We have already concluded that appellant waived this complaint for
failure to object on this basis in the trial court. Following appellant’s objection that
the notice was misleading and did not properly identify D.F., the trial court ruled
that it would allow D.F. to testify as to the statements contained in the State’s
written notice. However, when D.F. subsequently testified regarding M.F.’s outcry
of digital penetration, appellant failed to object. Thus, he did not preserve his
complaint that D.F.’s testimony exceeded the scope of the summary of her
statement. See TEX. R. APP. P. 33.1(a); Swain, 181 S.W.3d at 367; Gutierrez, 36
S.W.3d at 510.
CONCLUSION
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
13
Junior Garvey v. State
Combined Opinion