Travis Wade Frazier v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00115-CR
___________________________
TRAVIS WADE FRAZIER, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1690859R
Before Sudderth, C.J.; Birdwell and Wallach, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
I. Introduction
Appellant Travis Frazier appeals his conviction of continuous sexual assault of
a child younger than fourteen years of age. On appeal, he raises three points. First,
Frazier argues that the trial court erred by denying his motion for new trial after
improperly deeming a juror “disabled” because he was not vaccinated for COVID-19
and therefore was required to remain in quarantine for ten days after another juror
tested positive. Next, Frazier contends that the trial court abused its discretion by
admitting certain expert testimony because it was irrelevant and cumulative and served
only to improperly “bolster” previous testimony. Finally, Frazier asserts that the trial
court improperly allowed two different outcry witnesses to testify regarding the same
outcry statement.
We will affirm.
II. Background
A. Frazier’s Family
Frazier and his wife Pam1 have been married for over thirty-five years. They
have two sons, Zane and Art. In August 2018, Zane and his wife Amy lived just
down the road from his parents with Amy’s daughter Valerie, age seven, Zane’s
daughter Sophia, age five, and their child together Annie, age one.
1
Aliases consistent with those used in the parties’ briefs have been used for the
names of the victims and their family members, other than the defendant. See Tex. R.
App. P. 9.10(a)(3).
2
Zane, Amy, and their girls were very close to Frazier and Pam, whom the girls
called Paw Paw and Nona. Frazier and Pam often hosted family events at their house,
and from 2014 to 2018 they regularly babysat Valerie and Sophia on the weekends.
B. First Indication of Abuse: Sophia’s Accidental Disclosure
In March 2018, during a tickle fight with her other grandmother Martha (Amy’s
step-mother), Sophia pointed to her privates and said, “[T]ickle me there, like Paw
Paw does,” clarifying that by “Paw Paw” she meant Frazier. Martha told Sophia that
no one should ever touch her there except her mother or a doctor. She then asked
Valerie if Frazier had ever tickled her there, and Valerie replied that he had not.
Martha told Amy what Sophia had said, and Zane and Amy decided to contact
Child Protective Services (CPS). In the interview with CPS, Sophia “clammed up”
and did not verify the claim of abuse. As a result, CPS determined that it could not
substantiate the claim. Because the abuse was unsubstantiated, Zane and Amy
continued to allow the girls to visit Frazier and Pam’s house.
C. Valerie’s Outcry
In October 2018, Valerie told her mother Amy that Frazier had been abusing
her. Valerie described how Frazier had “show[n] her his privates and ma[de] her play
with them . . . with her hands and mouth.” Valerie stated that this had been
happening since she was in kindergarten, usually while Pam was asleep on the couch.
Valerie said that Frazier had warned her not to tell anyone because Nona and her
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parents would be mad at her. Amy recorded Valerie’s account on her phone, and the
next day she and Zane reported the abuse to the police.
Alexis Harrison, a forensic interviewer at Alliance for Children, conducted
Valerie’s forensic interview. Valerie told Harrison that Frazier had asked her to play
with his private part and had kept asking until she complied. Valerie told Harrison
about additional acts of abuse not previously disclosed to her mother, including
Frazier touching Valerie’s genitals with his hand, penetrating her vagina with his
finger, and performing oral sex on her. Valerie recounted for Harrison many specific
details of the abuse, including where it occurred—typically in Frazier’s bedroom while
Pam was asleep, the positions of Valerie’s and Frazier’s bodies during the abuse, and
the “frosting” Frazier used as lubricant. Valerie also chronicled the timeline of the
abuse, telling Harrison that it had started when Valerie was six years old and in the
first grade and that the last time it had happened was when she was six years old and
in the second grade.
D. Sophia’s Outcry
In March 2019, Sophia revealed to Zane that Frazier had abused her as well.
After Zane reported this to the police, Harrison conducted a forensic interview.2
During the interview, Sophia described many details of the abuse, including that
Harrison had previously conducted a forensic interview of Sophia in
2
November 2018, but Sophia disclosed no sexual abuse at that time.
4
Frazier had touched her private parts on many occasions in his bathroom, that she
had put her mouth on his private part, and that he had put his private part on hers.
E. Factual and Expert Testimony Concerning Abuse
At trial, Amy and Harrison both testified as outcry witnesses for Valerie. Zane
and Harrison both testified regarding Sophia’s outcry. The sexual assault nurse
examiners (SANEs) who examined the girls also testified.
In addition to testifying as a fact witness, Harrison provided expert testimony
regarding the dynamics involved when children disclose chronic sexual abuse by a
family member. Harrison explained that children who are abused at a young age often
experience confusion and conflicting emotions, which, combined with a tendency to
see everything as their fault, can cause them to delay reporting the abuse. She also
explained that children typically disclose sexual abuse gradually, sometimes engaging
in “toe-dipping” in which they reveal just enough to make the abuse stop and then
wait to see what happens next. Harrison also described the nature of grooming, the
process by which an abuser manipulates not only the victim but also the adults in the
victim’s life to gain unfettered access to the victim. Finally, Harrison described the
nature and goals of a forensic interview, particularly the importance of eliciting
sensory and peripheral details,3 which play a crucial role in evaluating a child’s
credibility.
Sensory details reflect a child’s memory of something she saw, heard, felt,
3
smelled, or tasted. Examples of peripheral details include the temperature of the
5
Lindsey Dula, Director of Program Services at Alliance for Children, who had
never met Valerie, Sophia, or their parents but reviewed the victims’ forensic
interviews, testified as an expert witness in the fields of forensic interviewing and child
sexual abuse and its effects. While Dula explained some of the same concepts as
Harrison such as “toe-dipping” and the importance of sensory and peripheral details,
she also highlighted the significance of particular details—such as Valerie’s
recollection of conversations with Frazier and particular instructions he had given
her—in a way that Harrison’s testimony had not. Moreover, Dula’s testimony also
covered areas that Harrison had not addressed at all, such as the difference between a
true outcry and an accidental disclosure. She also testified regarding the impact that
the three-year delay between the outcries and the trial might have had on these
victims’ testimony, explaining that children’s memories deteriorate over time and that
children learn embarrassment as they get older, which can inhibit their ability to speak
about past abuse.
F. Frazier’s Defense
Frazier’s defense at trial involved attacking the credibility of the victims’
accounts. Pam and Art both testified that they believed that Zane and Amy had
coached the girls into making up the allegations against Frazier. Art stated that Zane
and Amy had gotten into a big argument with his parents shortly before the outcries
room, the whereabouts of other people in the house, or the time of day. As Harrison
explained, children who have been coached typically cannot provide sensory or
peripheral details.
6
and that he believed that they were capable of coaching their girls to lie. The defense
also suggested that the girls’ accounts may have resulted from the girls’ having been
exposed to pornography or overhearing sexual conversations in their home.
G. Dismissal of Juror
On Monday, August 2, 2021, shortly before closing arguments were to begin,
the trial court learned that one juror—Juror No. 31—had been diagnosed with
COVID-19 but was asymptomatic. The trial court contacted the Tarrant County
Public Health Department, and the health department conducted rapid COVID-19
tests on all the jurors. The trial court postponed closing arguments until Thursday,
August 5, 2021, when Juror No. 31’s five-day quarantine period would be complete.
On Thursday, the trial court informed the parties that Juror No. 31 had been
medically cleared to continue and that the remaining eleven jurors had tested negative.
However, because Juror No. 29 was unvaccinated, under the Tarrant County Public
Health Department’s guidelines, he was required to remain in quarantine for ten days.
As a result, the trial court found Juror No. 29 to be “disabled” for purposes of Article
36.29 of the Texas Code of Criminal Procedure and ordered that the trial continue
with the remaining eleven jurors. Frazier objected to proceeding without all twelve
jurors4 and then moved for a mistrial on the grounds that the remaining jurors would
rush through their deliberations out of fear of being in contact with someone who
Frazier provided no grounds for his objection, stating only that “the Defense
4
would object at moving forward at this point without the presence of the full [twelve]
members of the jury.”
7
had tested positive for COVID-19. The trial court overruled Frazier’s objection,
denied his motion for a mistrial, and allowed the trial to continue with the remaining
eleven jurors.
F. Trial Outcome and Appeal
Frazier was convicted of continuous assault of a child younger than fourteen
years of age and sentenced to thirty-five years in prison. Frazier timely filed a motion
for new trial, which was denied after a hearing. This appeal followed.
III. Discussion
On appeal, Frazier raises three points. First, Frazier asserts that the trial court
erred by denying his motion for new trial after improperly deeming a juror “disabled”
because he was not vaccinated for COVID-19. Second, Frazier argues that the trial
court abused its discretion by admitting Dula’s expert testimony because it was
redundant and cumulative of Harrison’s and constituted improper “bolstering.”
Finally, Frazier argues that the trial court erred by allowing the testimony of two
different outcry witnesses on the same outcry statement. We will address each of
these issues in turn.
A. Dismissal of Juror No. 29 as “Disabled”
While the right to a twelve-person jury is not found in the United States
Constitution, both the Texas constitution and the Texas Code of Criminal Procedure
require a verdict rendered by twelve jurors in felony cases. Tex. Const. art. V, § 13;
Tex. Code Crim. Proc. Ann. art. 36.29(a). However, under both the constitution and
8
the statute, if a juror becomes “disabled” from sitting, the judge may remove the juror
and allow the trial to proceed with fewer than twelve jurors. Tex. Const. art. V, § 13;
Tex. Code Crim. Proc. Ann. art. 36.29(a).
“The determination as to whether a juror is disabled is within the discretion of
the trial court. Absent an abuse of that discretion, no reversible error will be found.”
Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999). Our role in reviewing a
finding of disability is not “to substitute [our] own judgment for that of the trial court,
but rather, to assess whether, after viewing the evidence in the light most favorable to
the trial court’s ruling, the ruling was arbitrary or unreasonable.” Scales v. State, 380
S.W.3d 780, 784 (Tex. Crim. App. 2012) (op. on reh’g). Thus, we will reverse a trial
court’s finding of disability only if it is outside the zone of reasonable disagreement.
Id.The State argues that Frazier failed to preserve the specific claim of error that
he makes on appeal—that the trial court abused its discretion by finding Juror No. 29
“disabled” based upon the county health department’s order that he remain in
quarantine due to his unvaccinated status. 5 Thus, as a threshold matter, we must
consider whether Frazier preserved this specific claim of error.
5
In his brief, Frazier notes that the quarantine periods promulgated by the
Tarrant County Public Health Department and the federal Centers for Disease
Control and Prevention are only suggested, not mandated. However, the trial court
stated on the record that Juror No. 29 had been “ordered” to quarantine for ten days.
In the absence of any evidence in the record to the contrary, we must defer to the trial
court’s determination. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009)
9
To preserve a complaint for appellate review, the record must show that a
specific and timely objection was made to the trial judge and that the judge ruled on
the objection. Tex. R. App. P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim.
App. 2009); Smith v. State, 256 S.W.3d 341, 343 (Tex. App.—San Antonio 2007, no
pet.) (mem. op.). “The complaining party must have informed the trial judge what
was wanted and why the party was entitled to it.” Lovill, 319 S.W.3d at 691. A
complaint is not preserved “if the legal basis of the complaint raised on appeal varies
from the complaint made at trial.” Id.After the trial court found Juror No. 29 to be “disabled,” Frazier raised a bare
objection to proceeding with eleven jurors, stating no grounds. He then moved for a
mistrial on the grounds that the jurors would rush through their deliberations out of
fear of COVID-19 exposure. 6 However, at trial Frazier never specifically objected to
(acknowledging that appellate courts must defer to a trial court’s resolution of
historical facts). Moreover, at the time the finding of disability was made, the trial
court was operating under directives contained in an emergency order of the Texas
Supreme Court to, among other things, take reasonable action to avoid exposing
court proceedings and participants to the threat of COVID-19. See Fortieth Emergency
Order Regarding COVID-19 State of Disaster, 629 S.W.3d 911, 912 (Tex. 2021) (order).
Thus, even assuming that the ten-day quarantine period was not mandatory per se,
disregarding the county health department’s quarantine guidelines could certainly be
viewed as a violation of the supreme court’s emergency order.
6
As the State correctly pointed out in its brief, because Frazier’s motion for
mistrial was based on his concern that the entire jury would be unable to deliberate
out of fear of being exposed to the COVID-19 virus, far from being an objection to
the trial court’s finding that Juror No. 29 was “disabled,” the motion was, in essence,
an assertion that all of the jurors were “disabled.” See Reyes v. State, 30 S.W.3d 409,
411 (Tex. Crim. App. 2000) (recognizing that for purposes of Article 36.29(a),
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the trial court’s finding that Juror No. 29 was “disabled.” Rather, the first time he
raised this specific objection was in his motion for new trial. While a motion for new
trial may preserve a claim of error if the appellant did not have the opportunity to
object at trial, where, as here, the appellant had the opportunity to object—and in fact
did so without stating specific grounds—a motion for new trial will not preserve the
error. See Lopez v. State, 96 S.W.3d 406, 414 (Tex. App.—Austin 2002, pet. ref’d)
(“The use of a motion for new trial to preserve error is . . . limited to the rare
circumstances . . . when there is no opportunity to object . . . .”). Because Frazier
failed to specifically object to the finding of disability at trial, this point does not
appear to have been preserved for appellate review.
Even setting aside the preservation issue and assuming without deciding that
the claim of error was preserved, 7 we overrule Frazier’s first point on the merits.
Frazier’s claim that the trial court abused its discretion by finding Juror No. 29 to be
“disabled” is grounded on the fact that Juror No. 29 was not actually sick. However,
“disability” includes “any condition that inhibits a juror from fully and fairly
performing the functions of a juror” (quoting Griffin v. State, 486 S.W.2d 948, 951
(Tex. Crim. App. 1972))). Thus, Frazier’s motion for mistrial did not preserve the
claim of error regarding Juror No. 29’s “disability.”
7
Because we overrule this issue on the merits, we need not decide whether it
was preserved. See, e.g., Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim. App.
2006) (expressly declining to decide whether an objection was required to preserve
error on an issue because it could be overruled on the merits); Dawson v. State, No. 14-
95-01091-CR, 1998 WL 119675, at *1 n.4 (Tex. App.—Houston [14th Dist.] Mar. 19,
1998, pet. ref’d) (not designated for publication) (“Because we overrule this point of
error on the merits, we do not address whether error was preserved.”).
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for purposes of Article 36.29(a), “disability” is not limited to physical illness but
includes “any condition that inhibits a juror from fully and fairly performing the
functions of a juror.” Reyes, 30 S.W.3d at 411 (quoting Griffin, 486 S.W.2d at 951); see
also Edwards v. State, 981 S.W.2d 359, 366–67 (Tex. App.—Texarkana 1998, no pet.)
(affirming trial court’s determination that juror’s inability to find childcare made her
“disabled”); Freeman v. State, 838 S.W.2d 772, 774 (Tex. App.—Corpus Christi–
Edinburg 1992, pet. ref’d) (affirming trial court’s ruling that juror who was so
concerned about missing work that he could not be attentive during trial was
“disabled”). Indeed, incarceration has been held to be a “disability” for purposes of
Article 36.29(a). See Griffin, 486 S.W.2d at 951 (affirming the trial court’s
determination that a juror who had been arrested for driving while intoxicated during
noon recess of trial was disabled because he was “in jail, the jury was reassembled
after noon recess, and court was about to reconvene”); Foyt v. State, 602 S.W.3d 23, 47
(Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (holding the trial court did not
abuse its discretion in finding jailed juror “disabled”). With regard to their ability to
perform their jury functions, an incarcerated juror is no different from a juror under a
quarantine order—in both cases, while the juror may be willing and physically able to
serve, his inability to be present in the courtroom prevents him from “fully and fairly
performing the functions of a juror.” Reyes, 30 S.W.3d at 411. Because Juror No. 29
was unable to be physically present in the courtroom without violating the Tarrant
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County Public Health Department’s directives, the trial court did not abuse its
discretion by declaring him “disabled.”
We overrule Frazier’s first point.
B. Dula’s Expert Testimony
In his second point, Frazier asserts that the trial court erred by admitting Dula’s
expert testimony. According to Frazier, Dula’s testimony was irrelevant because it
was cumulative and redundant of Harrison’s and constituted improper “bolstering.”
We review a trial court’s decision to admit or exclude expert opinion testimony
under an abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim.
App. 2007). We review the trial court’s ruling in light of the evidence before the trial
court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000). We must uphold the trial court’s ruling if it was within the zone of
reasonable disagreement. Id.Pursuant to Rule 401 of the Texas Rules of Evidence, relevant evidence is that
which has any tendency to make a fact of consequence to the determination of the
case more or less probable than it would be without the evidence. Tex. R. Evid.
401(a)–(b). “In a case involving the sexual abuse of a child, a fact of consequence to
the determination of the action includes whether the child was actually abused.” Shaw
v. State, 329 S.W.3d 645, 651 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)
(citing Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993)). Expert testimony
explaining that a child exhibits behavioral characteristics consistent with those
13
commonly observed among sexually abused children is relevant and admissible. See
Cohn, 849 S.W.2d at 818; Shaw, 329 S.W.3d at 651. However, such testimony would
cross the line into improper “bolstering” if the expert directly opined on the child’s
truthfulness. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993); Flores v. State,
513 S.W.3d 146, 162 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
Insofar as it survived the codification of the rules of evidence,8 “bolstering” is
any evidence the sole purpose of which is to convince the factfinder that
a particular witness or source of evidence is worthy of credit, without
substantively contributing “to make the existence of [a] fact that is of
consequence to the determination of the action more or less probable
than it would be without the evidence.”
Cohn, 849 S.W.2d at 819–20. Thus, evidence is not “bolstering” if it “corroborates
another witness’[s] story or enhances inferences to be drawn from another source of
evidence, in the sense that it has an incrementally further tendency to establish a fact of
consequence.” Id. at 820.
Here, Frazier does not assert that Dula improperly “bolstered” Harrison’s or
the victims’ testimony by directly opining on their truthfulness. Instead, he grounds
his “bolstering” claim on his assertion that Dula’s testimony was redundant and
cumulative of Harrison’s. However, while Dula’s and Harrison’s testimony
See Cohn, 849 S.W.2d at 821–22 (Campbell, J., concurring) (discussing the
8
history of the “bolstering” objection and expressing the view “that a ‘bolstering’
objection is no longer adequate to preserve error for review concerning the admission
of evidence because no such ground survived the Texas Rules of Criminal
Evidence”); Prestiano v. State, 581 S.W.3d 935, 945 (Tex. App.—Houston [1st Dist.]
2019, pet. ref’d) (op. on reh’g) (“Whether ‘bolstering’ remains a valid objection is in
doubt.”).
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overlapped to an extent, Dula also addressed topics that Harrison did not, including
the difference between a true outcry and an accidental disclosure and the common
pattern of behavior in which a child denies abuse during an initial forensic interview
following an accidental disclosure and then is later prepared to make a more
intentional disclosure. Thus, Dula’s testimony was not redundant or cumulative. The
mere fact that portions of Dula’s testimony corroborated Harrison’s or the victims’
does not make it inadmissible. See id. at 820.
In arguing that Dula’s testimony constituted improper “bolstering,” Frazier
makes much of the fact that Harrison’s credibility had not been attacked. However,
the Texas Court of Criminal Appeals has made clear that expert testimony concerning
common behavior among sexually abused children need not serve a rehabilitative
function to be admissible. See id. at 819. Moreover, even if this were a requirement,
Dula’s testimony did in fact serve a rehabilitative function. Frazier’s entire defense
was predicated on attacking the credibility of the victims’ accounts. The defense
suggested that the girls had been coached by Zane and Amy to lie or that they had
been exposed to pornography or other sexual materials as a result of Zane’s
pornography addiction or Amy’s work as an unlicensed massage therapist. Thus,
Dula’s testimony explaining that she saw no signs of coaching and highlighting the
significance of sensory and peripheral details to specifically refute the defense theory
that the girls’ accounts were the result of being exposed to pornography helped the
jury to better understand the victims’ testimony and aided its assessment of their
15
credibility. See Tex. R. Evid. 702; Weatherred, 15 S.W.3d at 542 (stating that under Rule
702 expert testimony is admissible if it “is sufficiently relevant and reliable to assist the
jury in accurately understanding other evidence or in determining a fact in issue”); cf.
Roberts v. State, No. 08-19-00029-CR, 2019 WL 7046756, at *6 (Tex. App.—El Paso
Dec. 23, 2019, pet. ref’d) (not designated for publication) (finding expert testimony
regarding common behavioral traits of child sexual abuse victims “relevant and
helpful to assist the jury in determining the credibility of [the victim’s] outcry”).
In sum, Dula’s testimony did not directly opine on the truthfulness of any
other witness, was not redundant of Harrison’s, and helped the jury to better
understand the victims’ testimony and to assess their credibility. Accordingly, the trial
court did not abuse its discretion in admitting her testimony.
We overrule Frazier’s second point.
C. Harrison’s Testimony as an Outcry Witness
In his third point, Frazier argues that the trial court erred by allowing Harrison
to testify as an outcry witness regarding events about which Amy had already testified.
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not reverse a
trial court’s decision to admit or exclude evidence unless the record shows a clear
abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only
16
when the trial court’s decision was so clearly wrong as to lie outside that zone within
which reasonable persons might disagree. Id.Article 38.072 of the Texas Code of Criminal Procedure creates a statutory
exception to the general rule excluding hearsay. Tex. Code Crim. Proc. Ann. art.
38.072, § 2(b).
Because it is often traumatic for children to testify in a courtroom
setting, especially about sexual offenses committed against them, the
Legislature enacted Article 38.072 to admit the testimony of the first
adult a child confides in regarding the abuse. This witness may recite the
child’s out-of-court statements concerning the offense, and that
testimony is substantive evidence of the crime.
Martinez v. State, 178 S.W.3d 806, 810–11 (Tex. Crim. App. 2005) (footnote omitted).
The proper outcry witness is the “first person, 18 years of age or older, other than the
defendant, to whom the child or person with a disability made a statement about the
offense or extraneous crime, wrong, or act.” Tex. Code Crim. Proc. Ann. art. 38.072,
§ 2(a)(3). The court of criminal appeals has construed the phrase “about the offense”
to mean a statement that “in some discernible manner describes the alleged offense.”
Garcia v. State, 792 S.W.2d 88, 91(Tex. Crim. App. 1990). “[T]he statement must be
more than . . . a general allusion” of sexual abuse. Id. Thus, the proper outcry witness
is not necessarily the first adult to whom the child revealed the abuse but, rather, the
first adult to whom the child revealed specific details concerning the offense. Id.;
Thomas v. State, 309 S.W.3d 576, 579 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d) (affirming trial court’s determination that stepmother was proper outcry witness
17
despite victim’s prior report of abuse to mother because initial report to mother
lacked specificity).
As the statute is event-specific, there may be more than one outcry witness
provided that each testifies about different events. See Brown v. State, 381 S.W.3d 565,
571 (Tex. App.—Eastland 2012, no pet.); Hernandez v. State, No. 02-08-00478-CR,
2010 WL 1854150, at *3 (Tex. App.—Fort Worth May 6, 2010, no pet.) (mem. op.,
not designated for publication). For example, in Josey v. State, the court of appeals held
that the trial court did not abuse its discretion by admitting the testimony of a second
outcry witness. 97 S.W.3d 687, 693 (Tex. App.—Texarkana 2003, no pet.). The
victim first told his mother about being made to have oral contact with the
defendant’s genitals and about being “fingered.” Id. While the victim went into
explicit detail with his mother about the act of oral contact, he gave no details about
being “fingered.” Id. Two days later, however, the victim provided, for the first time,
details about being “fingered” during an interview with a forensic interviewer. Id.The court of appeals concluded the victim’s first outcry regarding digital penetration
did not occur until the interview. Id.; cf. Schuster v. State, 852 S.W.2d 766, 768 (Tex.
App.—Fort Worth 1993, pet. ref’d) (holding psychologist was proper outcry witness
even though complainant told mother first because no details were provided to
mother).
Here, Frazier asserts that Valerie’s outcries to Amy and Harrison covered the
same events. However, Valerie’s statements to Harrison described separate instances
18
of abuse not previously disclosed to Amy. In her initial statement to Amy, Valerie
stated that Frazier showed her his private parts on purpose and had her play with
them using her hands and mouth and that this had happened continuously since
kindergarten. Later, in her forensic interview with Harrison, Valerie described
numerous additional acts of abuse, including Frazier touching her genitals with his
hand, penetrating her vagina with his finger, and performing oral sex on her.
Therefore, as in Josey, because Amy and Harrison testified regarding different acts of
abuse, the trial court did not abuse its discretion by allowing them both to serve as
outcry witnesses. Josey, 97 S.W.3d at 693; see also Hernandez, 2010 WL 1854150, at *3
(affirming trial court’s decision to allow two outcry witnesses to testify where victim’s
outcry to second witness alleged additional instances of abuse).
We overrule Frazier’s third point.
IV. Conclusion
Having overruled all of Frazier’s points, we affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 6, 2022
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