ACCEPTED
08-20-00139-CR
EIGHTH COURT OF APPEALS
08-20-00139-CR EL PASO, TEXAS
3/11/2021 4:16 PM
ELIZABETH G. FLORES
CLERK
No. 08-20-00139-CR
In the Court of Appeals for the Eighth District FILED IN
El Paso, Texas 8th COURT OF APPEALS
EL PASO, TEXAS
3/11/2021 4:16:56 PM
Omar Calderon, ELIZABETH G. FLORES
Appellant Clerk
v.
The State of Texas,
Appellee
Appeal from the 450th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-20-904007
Honorable Judge Brad Urrutia, Presiding
STATE’S BRIEF
JOSÉ P. GARZA
District Attorney
Travis County, Texas
/s/ Nancy Nicolas
Nancy Nicolas
Assistant District Attorney
State Bar No. 24057883
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax No. (512) 854-4206
Nancy.Nicolas@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is not requested
TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................ ii
STATEMENT REGARDING ORAL ARGUMENT ............................. iii
STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR ........ 1
The Standard of Review is Abuse of Discretion. .................................. 2
The Statements Made by A.C. to her Therapist Did Not Describe
Sufficiently Discernable Allegations of Sexual Abuse to Qualify the
Therapist as an Outcry Witness. .......................................................... 3
If the Designation of Detective Dunn as the Outcry Witnesses Was
Error, Such Error Was Harmless. ....................................................... 9
CONCLUSION .................................................................................. 12
PRAYER ............................................................................................ 13
CERTIFICATE OF COMPLIANCE AND SERVICE .......................... 14
i
INDEX OF AUTHORITIES
Cases
Carty v. State, 178 S.W.3d 297 (Tex. App.—Houston [1st Dist.] 2005) ........................... 11
Creech v. State, 2011 Tex. App. LEXIS 3340 (Tex. App.—Dallas May 4, 2011) ................ 11
Foreman v. State, 995 S.W.2d 854 (Tex. App. -- Austin [3rd dist.] 1999) ......................... 6
Garcia v. State, 792 S.W.88, at 92 (Tex. Crim. App. 1990). .......................................6,7,15
Gibson v. State, 595 S.W.3d 321, 327 (Tex. App. – Austin [3d dist.] 2020) .................... 13
Hernandez v. State, 973 S.W.2d 787 (Tex. App. -- Austin [3rd dist.] 1998) ...................... 6
Salinas v. State, 2020 Tex. App. LEXIS 1130, *3-4 (Tex. App. El Paso February 10,
2020) (not designated for publication) ........................................................................ 6,8
State v. Akteyarlee, 2006 Tex. App. LEXIS 12930 (Tex. App. – Austin [3rd dist.] 2016)
(not designated for publication) ................................................................................ 14,15
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008) ........................................ 13
Torres v. State, 2000 Tex. App. LEXIS 4927 (Tex. App.—Austin July 27, 2000) ............ 8
White v. State, 2008 Tex. App. LEXIS 3977 (Tex. App.—Fort Worth May 29, 2008) ..... 11
Statutes
Tex. Code Crim. Pro. Art. 38.072 ...............................................................................passim
Rules
Tex. R. App. P. 44.2(a) ........................................................................................................ 8
Tex. R. App. P. 44.2(b) ..................................................................................................... 8,9
Tex. R. Evid. 103(a) ............................................................................................................. 3
ii
STATEMENT REGARDING ORAL ARGUMENT
The State believes that oral argument is unnecessary because the facts
and legal arguments are adequately presented in the briefs filed by the
parties. Therefore, the State is not requesting oral argument.
iii
No. 08-20-00139-CR
In the Court of Appeals for the Eighth District
El Paso, Texas
Omar Calderon,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 450th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-20-904007
Honorable Judge Brad Urrutia, Presiding
STATE’S BRIEF
To the Honorable Eighth Court of Appeals:
Now comes the State of Texas and files this brief in response to that of
Appellant.
STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR
Appellant argues that the trial court erred when it held that Detective
Dunn was a proper outcry witnesses with respect to allegations made by A.C.
against Appellant. App. Brief at 3. The State contends that the trial court
did not abuse its discretion, and in the alternative, any error in the ruling was
harmless.
1
The Standard of Review is Abuse of Discretion.
A trial court’s admission of hearsay testimony that is admissible
pursuant to Tex. Code of Crim. Pro. Art. 38.072 is reviewed for abuse of
discretion. Hernandez v. State, 973 S.W.2d 787, at 789 (Tex. App. – Austin
[3d dist.] 1998). The abuse of discretion standard “applies with equal force
to the trial court's determination of who is a proper outcry witness.” Salinas
v. State, 2020 Tex. App. LEXIS 1130, *3-4 (Tex. App. El Paso February 10,
2020) (not designated for publication).
A trial court's findings concerning the designation of an outcry witness
will be upheld when the findings are supported by evidence in the record.
Garcia v. State, 792 S.W.2d 88, at 92 (Tex. Crim. App. 1990). The trial court
is afforded broad discretion in that determination, and “[t]he exercise of that
discretion will not be disturbed unless a clear abuse of that discretion is
established by the record.” Id. A ruling that falls within the “zone of
reasonable disagreement” will not be reversed. Foreman v. State, 995
S.W.2d 854, at 856 (Tex. App. – Austin [3d. dist.] 1999).
2
The Statements Made by A.C. to her Therapist Did Not Describe
Sufficiently Discernable Allegations of Sexual Abuse to Qualify
the Therapist as an Outcry Witness.
To make determinations under Article 38.072, including who was the
“first person” who was given a “statement about the offense,” the trial court
must conduct a fact-specific inquiry that demands close scrutiny. Garcia v.
State, 792 S.W.2d at 92 (Tex. Crim. App. 1990). The statutory text has been
interpreted to mean “that the outcry witness must be the first person, 18
years old or older, to whom the child makes a statement that in some
discernible manner describes the alleged offense. We believe that the
statement must be more than words which give a general allusion that
something in the area of child abuse was going on.” Id. at 91. The Texas
Court of Criminal Appeals articulated, “the societal interest in curbing child
abuse would hardly be served if all that "first person" had to testify to was a
general allegation from the child that something in the area of child abuse
was going on at home. Thus we decline to read the statute as meaning that
any statement that arguably relates to what later evolves into a allegation of
child abuse against a particular person will satisfy the requisites of Sec. 2
(a)(2). The statute demands more than a general allusion of sexual abuse.”
Id.
3
It is not uncommon for a child to make a general statement to one adult
generally alluding to sexual abuse, and make a subsequent statement to
another listener that explicitly sets forth how, when, and where the alleged
sexual abuse took place, thereby describing the sexual abuse in a discernable
manner in the latter statement. See Torres v. State, NO. 03-99-00485-CR,
2000 Tex. App. LEXIS 4927 (Tex. App.—Austin July 27, 2000).
“Consequently, the proper outcry witness is not the first adult to whom the
child made any mention of the offense, but the first adult to whom the child
related specific details concerning the offense.”
Salinas v. State, 2020 Tex. App. LEXIS 1130, *14 (Tex. App. El Paso February
10, 2020).
Here, the dispute centered around whether Detective Dunn, who had
been designated by the State in a pretrial notice, was an outcry witness based
on his interview of A.C. which took place on August 23, 2017. 5 RR 195-6.
Appellant’s attorneys contended that Detective Dunn was not the first person
to whom A.C. made a statement about allegations of sexual abuse by
Appellant, and asserted that A.C.’s therapist, Barbara Ritchie, had in fact
heard an outcry statement as to the same events during her therapy sessions
which began in 2015. 5 RR 241. Both Detective Dunn and Ms. Ritchie
testified in the outcry hearing conducted outside the presence of the jury.
4
Ritchie testified that A.C. first came to see her in December of 2015, to
address concerns about her self-harming behavior and depressive
symptoms. 5 RR 214. According to Ritchie, A.C. did communicate to her
that sexual abuse had taken place and that A.C.’s father was the perpetrator,
but that Ritchie did not ask for specifics about what sexual acts had taken
place because that was not the focus of the therapeutic sessions. 5 RR 214.
Ritchie stated that she understands her role to be helping the client deal with
the emotions they feel based on their experiences, and she would refer a child
who wished to make an outcry statement to a forensic interviewer. 5 RR 214.
Ritchie did learn that there were two separate times the abuse took place, but
she had no knowledge of which body parts were involved. 5 RR 217.
Ritchie testified that in her trauma narrative process, A.C. probably
included some of the specific sexual acts which constituted the abuse, but
Ritchie had no recollection of whether A.C. included those details in her
narrative. 5 RR 215. Ritchie remembered giving A.C. paper to work on her
trauma narrative, and testified that for adolescents it is typical for them to
write out their narrative, but stated that the narrative can be in another form
of expression and is kept by the child to be destroyed as an act of
empowerment. 5 RR 215. When asked if A.C. told Ms. Ritchie the “who,
5
what, where, [and] when” of the abuse, Ms. Ritchie responded, “Yeah. Pieces
of it.” 5 RR 220.
Based on this testimony, it was reasonable for the trial court to
conclude that A.C. had told her therapist an incomplete account of the abuse,
such that it constituted a general allusion to sexual abuse but did not convey
sufficient detail to be a statement of the abuse within the meaning of article
38.072. While Appellant contends that the trial court’s ruling hinged on Ms.
Ritchie’s inability to recall what had been a discernable outcry statement, the
trial court’s ruling does not reflect that Ms. Ritchie was ever deemed a
recipient of a discernable outcry statement based on her testimony of what
was discussed during the therapy sessions:
COURT: So the other thing we have, though, is the part with
Ms. Ritchie. She clearly cannot remember. She clearly stated
her job was to treat -- her job with the child or what she was
attempting to do with the child --the reason she was seeing the
child, I should say more clearly, was based on the trauma she
received from sexual abuse and that was the focus, dealing with
the trauma, not with the actual act itself or anything to do with
the act itself, and that she wouldn't have. It's clear to me that
the testimony she gave was she would be careful not to deal
with that because that wasn't the purpose of her work with the
child, that if there was an indication that she had been sexually
abused or something, knew she would have sent her out for an
outcry -- to do an outcry with a CAC interviewer. I think that's
actually what she said. And that she had her doing these
trauma narratives in 2016. And she can't recall whether any
specifics were in that trauma narrative and the reason she
6
couldn't is because those trauma narratives were given to the
child. It was the child's. And it was clear the way she described
it. I'm not going to describe it articulately at 4:30 in the
afternoon after a long day of voir dire, but it was clear. The way
she described it was it's apparently a therapy tool by which the
child would then destroy the trauma narrative. So it sounds to
me like it was a way to get the child in touch with feelings. I
can't -- I'm not making a ruling on that. So she clearly does not
know anything about the specifics of the case. So the Court's
ruling is Detective Dunn is the proper outcry witness.
5 RR 227-8.
Therefore, Appellant’s discussion of Foreman is inapposite to the
circumstances of this case.1
By contrast, Detective Dunn testified that A.C. told him that the first
instance of sexual abuse occurred over Spring Break 2014, on the living room
couch of the apartment where her father, Appellant, lived. 5 RR 199-200.
A.C. described that Appellant touched her breasts, and that he used his hand
to touch outside her vagina and put his finger inside her vagina. 5 RR 201.
A.C. also informed Detective Dunn that in April 2014, around the time of her
1
Even if the trial court relied on Foreman’s interpretation of article 38.072 and considered Ritchie’s inability
to testify as to the specific details of what A.C. told her because the trauma narrative had been retained by the child
and not made part of her file, that reliance would not be an abuse of discretion because several appellate courts have
found Foreman to be persuasive. See Carty v. State, 178 S.W.3d 297 (Tex. App.—Houston [1st Dist.] 2005)
(finding Foreman instructive where the record did not show the child had given one adult details of the charged
offense, and the adult was uncooperative and unavailable); White v. State, Nos. 2-07-089-CR, 2-07-090-CR, 2008
Tex. App. LEXIS 3977 (Tex. App.—Fort Worth May 29, 2008) (not an abuse of discretion where adult who denied
child had told her any details of abuse was found not to be an outcry witness), and Creech v. State, Nos. 05-09-
00762-CR, 05-09-00763-CR, 2011 Tex. App. LEXIS 3340 (Tex. App.—Dallas May 4, 2011) (not an abuse of
discretion to find that a child psychiatrist who had no recollection or documentation of specific allegations of sexual
assault was not an outcry witness).
7
father’s birthday, the second instance of sexual abuse occurred. 5 RR 202.
The specific location provided was the bedroom of the same apartment, while
A.C. was lying in a bed. 5 RR 202. Detective Dunn testified that A.C. told
him that she was awoken by Appellant touching her breasts. 5 RR 202.
During that same visit but at a different time of day, Appellant and A.C. were
in the bedroom and Appellant exposed himself, rubbed her vagina, and
placed her hand on his penis. 5 RR 204. The detail provided to Detective
Dunn was sufficient to set forth particular sexual acts and identifiable
offenses, unlike the information relayed to Ms. Ritchie which did not
mention which specific body parts were involved.
Based on this testimony by the potential outcry witnesses, it was
rational for the trial court to find that Detective Dunn was the proper outcry
witness for what A.C. reported to him, and that Ms. Ritchie had not been
made an outcry witness within the meaning of Article 38.072. Particularly
in light of the broad discretion afforded to the trial court in this
determination, Appellant has failed to substantiate his claim that this ruling
was an abuse of that discretion based on the testimony provided.
8
If the Designation of Detective Dunn as the Outcry Witnesses
Was Error, Such Error Was Harmless.
Under the Texas Rules of Appellate Procedure, an error that does not
affect the substantial rights of the accused must be disregarded. Tex. R. App.
Pro. 44.2(b). However, if constitutional error that is subject to harmless
error review has occurred, then the reviewing court must reverse the
conviction unless the court determines beyond a reasonable doubt that the
error did not contribute to the conviction. Tex. R. App. Pro. 44.2(a).
Additionally, “error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected.” Id.,
citing Tex. R. Evid. 103(a).
The erroneous admission of hearsay testimony by operation of a
mistaken outcry witness designation is non-constitutional error. Gibson v.
State, 595 S.W.3d 321, 327 (Tex. App. – Austin [3d dist.] 2020). Thus, if the
trial court’s ruling was in error, the error is reversible only if it had a
substantial and injurious effect or influence on the verdict. Id., citing Taylor
v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). "If we have a fair
assurance from an examination of the record as a whole that the error did
not influence the jury, or had but a slight effect, we will not overturn the
conviction." Taylor v. State, 268 S.W.3d at 592 (Tex. Crim. App. 2008).
9
“In cases involving the improper admission of outcry testimony, the
error is harmless when the victim testifies in court to the same or similar
statements that were improperly admitted or other evidence setting forth the
same facts is admitted without objection.” Gibson v. State, 595 S.W.3d at
327 (Tex. App. – Austin [3d dist.] 2020). In Gibson, the court found no harm
from the admission of hearsay where the child complainant testified to the
same evidence, where a diagram and the forensic interview were also
admitted without objection, and where the accused made a statement that
was arguably an admission to the allegations. Id. By contrast, if the
improperly admitted hearsay is the only evidence offered to establish the
elements of the sexual abuse, then the error will not be found harmless. State
v. Akteyarlee, 2016 Tex. App. LEXIS 12930 (Tex. App. – Austin [3d dist.]
2016).
Here, A.C. testified before the jury to the same events she recounted to
Detective Dunn, with some discrepancies but substantially similarly to the
statements he conveyed to the jury. 7 RR 71-80. Notably, A.C. testified that
in addition to touching her breasts and touching inside and outside of her
vagina, Appellant also used his tongue to touch inside and outside of her
vagina, during the first instance of sexual abuse. 7 RR 77. The description
of the second instance of sexual abuse was likewise substantially similar. 7
10
RR 89, 98. Additionally, certain details were permitted into testimony as
statements made for purposes of medical treatment to the SANE examiner,
specifically that A.C. was touched on the inside and outside of her vagina,
and touched with a tongue to her vagina, and that she had to put her hand
on the offender’s penis. 8 RR 183. Whatever influence Detective Dunn’s
testimony had on the jury was likely far less impactful than the influence of
the testimony of A.C. herself, and therefore any error in permitting Detective
Dunn’s hearsay testimony before the jury was harmless.
Unlike in State v. Akteyarlee, in which the complainant’s testimony
contained no evidence of sexual abuse and the State relied entirely on the
erroneously admitted testimony of an outcry witness to prove the charged
conduct, Appellant had full opportunity to test the strength and credibility of
A.C.’s account that gave rise to the allegations against him. 2016 Tex. App.
LEXIS 12930 (Tex. App. – Austin [3d dist.] 2016). Appellant has not
demonstrated that he was deprived of a substantial right, and therefore any
error must be disregarded. Tex. R. App. Pro. 44.2(b).
11
CONCLUSION
Texas courts have repeatedly declined to find that an underdeveloped
or nonspecific narrative of abuse constitutes “a statement about the offense”
for purposes of Article 28.072. Garcia v. State, 792 S.W.2d at 92 (Tex. Crim.
App. 1990). As such, the listener of a vague statement that later evolves into
a discernable allegation of child abuse is not a proper outcry witness. Here,
the trial court found that the statements made by A.C. to her therapist were
not sufficiently specific or detailed to constitute a statement about the
offense within the meaning of Article 28.072. In contrast, the trial court
found that the statement to Detective Dunn was adequately specific and
designated him as the outcry witness for the offenses described to him.
Based on the evidence presented to the trial court at the outcry hearing, these
conclusions are supported by the record and were within the court’s
reasonable exercise of discretion.
12
PRAYER
The State requests that the Court overrule Appellant’s point of error
and affirm the trial court’s judgment.
Respectfully submitted,
JOSÉ P. GARZA
District Attorney
Travis County, Texas
/s/ Nancy Nicolas
Nancy Nicolas
Assistant District Attorney
State Bar No. 24057883
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax No. (512) 854-4206
Nancy.Nicolas@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
13
CERTIFICATE OF COMPLIANCE AND SERVICE
I certify that this brief contains 2,732 words, based upon the computer
program used to generate this brief and excluding words contained in those
parts of the brief that Texas Rule of Appellate Procedure 9.4(i) exempts from
inclusion in the word count, and that this brief is printed in a conventional,
14-point typeface.
I further certify that, on the 11th day of March, 2021, a true and correct
copy of this brief was served, by U.S. mail, electronic mail, telephonic
document transmission, or electronically through the electronic filing
manager, to Appellant’s attorney, Keith S. Hampton, Attorney at Law, P.O.
Box 66488, Austin, Texas 78766, keithshampton@gmail.com.
/s/ Nancy L. Nicolas
Nancy L. Nicolas
Assistant District Attorney
14
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
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Vicki Butcher on behalf of Nancy Nicolas
Bar No. 24057883
Vicki.Butcher@traviscountytx.gov
Envelope ID: 51404207
Status as of 3/11/2021 4:32 PM MST
Associated Case Party: State of Texas
Name BarNumber Email TimestampSubmitted Status
Nancy Nicolas 24057883 nancy.nicolas@traviscountytx.gov 3/11/2021 4:16:56 PM SENT
Associated Case Party: Omar Calderon
Name BarNumber Email TimestampSubmitted Status
Keith Stewart Hampton 8873230 keithshampton@gmail.com 3/11/2021 4:16:56 PM SENT