Melton Ray Kennedy v. State ( 2014 )

Opinion filed August 14, 2014
In The
Eleventh Court of Appeals
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No. 11-13-00164-CR
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MELTON RAY KENNEDY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 90th District Court
Stephens County, Texas
Trial Court Cause No. F33649
MEMORANDUM OPINION
At his jury trial, Melton Ray Kennedy pleaded guilty to the charge of
aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B)
(West Supp. 2013). Based on the trial court’s instruction, the jury then found
Appellant guilty of the charged offense. The jury assessed Appellant’s punishment
at confinement for a term of seventy-five years in the Institutional Division of the
Texas Department of Criminal Justice. The trial court sentenced Appellant
accordingly. Appellant now challenges the trial court’s pretrial determination that
the outcry statement made by the victim was reliable. We affirm.
I. Evidence at Trial
The grand jury indicted Appellant for aggravated sexual assault of a child.
The indictment alleged that on or about June 15, 2011, Appellant “intentionally or
knowingly cause[d] the penetration of the sexual organ of Jane Doe [a
pseudonym], a child who was then and there younger than 14 years of age,” by
Appellant’s sexual organ.
On May 9, 2013, a pretrial hearing was conducted to determine if the outcry
statement made by L.M., the complainant, to her junior high school principal was
reliable. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2) (West Supp.
2013). At the hearing, J.S., the principal at the junior high school, testified that
L.M. made an outcry of sexual abuse to her on September 23, 2011. J.S. noted that
L.M. was thirteen years old at the time of the outcry.
J.S. recalled that L.M. was visibly upset during the outcry and that L.M.
cried throughout the conversation. Based on her training, J.S. purposefully did not
ask L.M. a lot of questions so that L.M. could freely tell her story.
J.S. stated that L.M. told her that L.M. had a sexual relationship with
Appellant, an adult over the age of eighteen, 1 who was the stepfather of a boy that
also attended the junior high school. L.M. noted that the sexual relationship began
in the middle of July after Appellant sent her text messages.
L.M. explained that she had sexual intercourse with Appellant and that they
performed oral sex on one another. L.M. noted that the sexual encounters
happened numerous times at various locations, including Appellant’s house and
car. L.M. stated that her last sexual encounter with Appellant occurred on
September 9, 2011.
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When J.S. asked L.M. how old she thought Appellant was, L.M. stated, “Around thirty.”
Appellant was actually thirty-three years old at the time the alleged sexual abuse took place.
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The trial court found L.M.’s outcry statement to J.S. to be reliable and,
therefore, admissible. Appellant did not object to the trial court’s finding.
II. Issue Presented
Appellant argues in a single issue that the trial court erred when it
determined that L.M.’s outcry statement to J.S. was reliable.
III. Standard of Review
A trial court’s determination that a person is an appropriate outcry witness is
reviewable under an abuse-of-discretion standard. Garcia v. State, 792 S.W.2d 88,
92 (Tex. Crim. App. 1990); Michell v. State, 381 S.W.3d 554, 558 (Tex. App.—
Eastland 2012, no pet.). In Garcia, the Texas Court of Criminal Appeals held that
a trial court’s decision that an outcry statement is admissible under Article 38.072
of the Texas Code of Criminal Procedure will not be disturbed unless a clear abuse
of discretion is established by the record. Garcia, 792 S.W.2d at 92; see also
Smith v. State, 131 S.W.3d 928, 931 (Tex. App.—Eastland 2004, pet. ref’d)
(holding that a trial court has broad discretion in determining the admissibility of
outcry evidence and that the trial court’s determination would not be disturbed
absent a showing in the record that the trial court clearly abused its discretion). An
abuse of discretion will not be found unless the trial court’s decision is outside the
zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000).
IV. Analysis
Appellant contends that the trial court erred when it determined that the
outcry statement L.M. made to J.S. was reliable. In support of his argument,
Appellant claims that almost none of the factors listed in Buckley v. State were
used to determine the reliability of the outcry statement. See Buckley v. State, 758
S.W.2d 339, 343–44 (Tex. App.—Texarkana 1988), aff’d, 786 S.W.2d 357, 358
(Tex. Crim. App. 1990) (listing several indicia of an outcry statement’s reliability).
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Because Appellant did not object to the trial court’s determination that the
outcry statement was reliable, he has waived this issue on appeal. See TEX. R.
APP. P. 33.1(a)(1) (stating that, in order to preserve a complaint for appellate
review, the record must show that the complaint was made to the trial court by a
timely request, objection, or motion); Duran v. State, 163 S.W.3d 253, 256 (Tex.
App.—Fort Worth 2005, no pet.) (finding that, because the defendant did not
object to the outcry statement on the basis of reliability at trial, he did not preserve
that complaint for appeal).
Even if we assumed, without deciding, that Appellant had not waived his
claim, we would conclude that the trial court did not abuse its discretion when it
found the outcry statement to be reliable. When a defendant is charged with
certain offenses against a child under the age of fourteen, Article 38.072 of the
Texas Code of Criminal Procedure allows the complainant’s out-of-court statement
into evidence, so long as that statement is reliable, contains a description of the
offense, and is offered into evidence through the first person eighteen years of age
or older to whom the complainant made a statement about the offense. See CRIM.
PROC. art. 38.072. Though the terms do not appear in the statute, the victim’s out-
of-court statement is commonly known as an “outcry,” and an adult who testifies
about the outcry is commonly known as an “outcry witness.” Sanchez v. State, 354
S.W.3d 476, 484 (Tex. Crim. App. 2011).
Article 38.072 has several requirements that must be met before an outcry
witness may testify. See CRIM. PROC. art. 38.072. At least fourteen days before
trial, the State must notify the defendant of its intention to call an outcry witness
and must provide the name of that witness. Id. art. 38.072, § 2(b)(1)(A)–(B). The
State must also provide a summary of the outcry statement that will be offered into
evidence. Id. art. 38.072, § 2(b)(1)(C). The victim must either testify or be
available to testify at the proceeding in court or in any other manner provided by
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law. Id. art. 38,072, § 2(b)(3). And finally, outside the presence of the jury, the
trial court must hold a hearing to determine whether the victim’s out-of-court
statement is “reliable” based on the “time, content, and circumstances of the
statement.” Id. art. 38.072, § 2(b)(2).
In this case, J.S. testified that L.M. made an outcry of sexual abuse on
September 23, 2011, and that L.M. stated that she had been sexually abused by
Appellant just two weeks before the outcry. L.M. gave J.S. a detailed account of
the sexual abuse she sustained at the hands of Appellant, including how the abuse
began, the nature and frequency of the abuse, and the locations where the abuse
occurred. Based on her training, J.S. explained that she did not pressure L.M. to
provide details of the abuse and noted that she immediately contacted the police
after she spoke with L.M.
The trial court ultimately found that L.M.’s outcry statement to J.S. was
reliable “[b]ased on the testimony of the age of the child and the circumstances
around [J.S.’s] testimony about the child coming in and not having heavy questions
being put forth to the child, the understanding of the knowledge of the child and
the defendant and the time frame . . . between the allegations of the last offense and
the outcry, and the specificity of what she testified to.” Given this lengthy and
detailed explanation, we find that the trial court properly considered the factors in
Section 2(b)(2) of Article 38.072 before it found L.M.’s outcry statement to J.S. to
be reliable. See CRIM. PROC. art. 38.072, § 2(b)(2).
Appellant argues that the trial court erred when it ruled that the outcry
statement was reliable because it did not exhaust the indicia of reliability listed in
Buckley. Buckley lists the following indicia of reliability:
(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;
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(3) whether other evidence corroborates the statement;
(4) whether the child made the statement spontaneously in her 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;
(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’s statement is against her interest; and
(11) whether the accused had the opportunity to commit the offense.
758 S.W.2d at 343–44.
Appellant is mistaken in his contention that a trial court must look to these
specific indicia of reliability before it decides the reliability of outcry witness
testimony. Unlike the factors listed in Section 2(b)(2) of Article 38.072, the
Buckley indicia of reliability merely provide guidance. See id. at 343 (stating that
the trial court “may look to” the provided indicia of reliability). Therefore, the trial
court was not required to consider every indicia of reliability in Buckley before it
found L.M.’s statement to J.S. to be reliable.
We conclude that the trial court did not abuse its discretion when it
determined that the outcry statement was reliable. Appellant’s single issue is
overruled.
V. This Court’s Ruling
We affirm the judgment of the trial court.
August 14, 2014 MIKE WILLSON
Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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