Carlos Manuel Hernandez v. State ( 2020 )

Opinion filed September 11, 2020
In The
Eleventh Court of Appeals
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No. 11-18-00232-CR
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CARLOS MANUEL HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 27231-A
MEMORANDAM OPINION
The jury convicted Carlos Manuel Hernandez of two counts of aggravated
sexual assault of a child younger than six years old. See TEX. PENAL CODE ANN.
§ 22.021(a)(1)(B), (f)(1) (West 2019). The trial court assessed his punishment at
confinement for a period of thirty years in the Institutional Division of the Texas
Department of Criminal Justice on each count with the sentences to run concurrently.
In his sole issue on appeal, Appellant contends that the outcry witness should not
have testified because the “outcry” was unreliable. We affirm.
Background Facts
The indictment charged Appellant with two counts of aggravated sexual
assault of a child younger than six committed against PSEUIH, Appellant’s four-
year-old daughter. The State called Appellant’s nineteen-year-old daughter, F.H.,
as an outcry witness. F.H. typically cared for PSEUIH in F.H.’s home. On
February 6, 2016, PSEUIH became irritable and jumpy while F.H. bathed her. F.H.
noticed that PSEUIH’s vaginal area and anus were red and swollen. F.H. took
PSEUIH from the bath and asked who touched her. After asking three or four more
times, PSEUIH told F.H., “Daddy touched me.” F.H. denied coercing PSEUIH to
suggest that Appellant was involved in the incident. F.H. subsequently took
PSEUIH to the hospital, and a Sexual Assault Nurse Examiner (SANE) examined
PSEUIH.
The State notified the defense that it intended to use F.H. as an “outcry”
witness. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1) (West Supp. 2019).
At the hearing, defense counsel objected to the outcry statement based on the
contention that PSEUIH could not discern a truth from a lie during an interview at
the Child Advocacy Center. See id. § 2(b)(2). At the end of the hearing, the trial
court determined that PSEUIH’s outcry statement to F.H. was reliable. During trial,
defense counsel later made a “hearsay” objection to F.H. testifying about what
PSEUIH had said during the outcry. The trial court overruled the hearsay objection.
Analysis
In his sole issue, Appellant contends that the trial court erred when it
determined that PSEUIH’s outcry statement to F.H. was reliable. In support of his
argument, Appellant asserts that the trial court did not use the “[i]ndicia of
reliability” listed in Torres v. State to determine the reliability of the outcry
statement. See Torres v. State, 424 S.W.3d 245, 257 (Tex. App.—Houston [14th
2
Dist.] 2014, pet. ref’d) (listing several discretionary factors that a trial court may
consider to determine whether an outcry statement is reliable).
We review a trial court’s decision to admit or exclude a hearsay statement that
may fall within the outcry exception under an abuse of discretion standard.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991); Garcia v. State,
792 S.W.2d 88, 91 (Tex. Crim. App. 1990). We will reverse a trial court’s ruling
only if it is outside the “zone of reasonable disagreement.” Montgomery, 810
S.W.2d at 391.
Hearsay is an out-of-court statement offered in evidence to prove the truth of
the matter asserted. TEX. R. EVID. 801(d). Unless a statutory exception exists,
hearsay is not admissible evidence. TEX. R. EVID. 802. One exception is the “outcry
statement” as codified in Article 38.072 of the Texas Code of Criminal Procedure.
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).
Article 38.072 provides that a child’s outcry statement is not inadmissible if
(1) the State gives the defendant proper notice; (2) 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; and (3) the child testifies. CRIM.
PROC. art. 38.072, § 2(b). The phrase “time, content, and circumstances” refers to
“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 [1st Dist.] 2002, pet.
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ref’d) (quoting MacGilfrey v. State, 52 S.W.3d 918, 921 (Tex. App.—Beaumont
2001, no pet.)).
In an Article 38.072 hearing, the trial court’s focus is whether the child’s
outcry statement is reliable, not whether the outcry witness is credible. Sanchez v.
State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Outcry reliability is determined
on a case-by-case basis. Buentello v. State, 512 S.W.3d 508, 518 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d); Davidson v. State, 80 S.W.3d 132, 139 (Tex.
App.—Texarkana 2002, pet. ref’d). The trial court considers the circumstances of
the outcry, not the abuse itself. See Sanchez, 354 S.W.3d at 487. Indicia of
reliability that the 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 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 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. Buentello, 512 S.W.3d at 518 n.4; Torres, 424 S.W.3d at 257; Norris v.
State, 788 S.W.2d 65, 71 (Tex. App.—Dallas 1990, pet. ref’d); 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).
Although these factors are useful, they are not mandatory. See, e.g., Buckley,
758 S.W.2d at 343 (establishing eleven “[i]ndicia of reliability” that the trial court
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“may look to”); Norris, 788 S.W.2d at 71 (noting that the trial court “may” consider
the indicia of reliability). Thus, the trial court need not consider every factor to find
the child’s statement reliable. Cf. Norris, 788 S.W.2d at 71 (concluding that the trial
court did not need to consider every indicia of reliability before finding the statement
reliable). Moreover, courts have noted that a child’s outcry statement may be
reliable even if it is vague or inconsistent about the details. Broderick, 89 S.W.3d at
699; In re J.G., 195 S.W.3d 161, 171 (Tex. App.—San Antonio 2006, no pet.).
The trial court was vested with discretion to determine whether PSEUIH’s
outcry statements were sufficiently reliable based on the time, content, and
circumstances of the statements. See Buentello, 512 S.W.3d at 518–20. Appellant
challenged F.H.’s outcry testimony on the basis that PSEUIH’s report to F.H. was
not reliable because it was not spontaneous and because PSEUIH did not know the
difference between the truth or a lie.
F.H. was the only witness that testified at the Article 38.072 hearing. F.H.
testified that PSEUIH knew the difference between the truth and a lie despite the
fact that she was only four years old. F.H. also denied coaching PSEUIH to say that
Appellant touched her. F.H. testified that PSEUIH made the outcry after F.H.
observed redness on PSEUIH’s vaginal area and witnessed her reluctance to take a
bath due to the pain. Thus, the evidence offered during the Article 38.072 hearing
supported the trial court’s determination that PSEUIH’s outcry to F.H. was reliable.
We conclude that the trial court did not abuse its discretion in finding that the outcry
statement was reliable.
Moreover, PSEUIH later testified at trial that Appellant touched her privates
and that it hurt. The child colored a diagram to show where Appellant had touched
her. The child confirmed that F.H. was the first person that she told about the
touching. Additionally, PSEUIH conveyed the same information during the CAC
interview and the SANE examination. See Lane v. State, 151 S.W.3d 188, 192–93
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(Tex. Crim. App. 2004) (finding no harm in a victim’s hearsay statement when
hospital records and individual testimonies conveyed the same information).
During the CAC interview, PSEUIH said, “[M]y daddy touched me in the
butt, and it’s hurting.” Tiffany Fullerton, a sexual assault nurse examiner, testified
that PSEUIH told her, “I hear something and then my dad came and touched me on
the butt,” and that PSEUIH indicated “butt” to mean both her sexual organ and anus
on the diagrams. Thus, even if the trial court erred when it found that the outcry
statement was reliable and allowed F.H. to testify, the error was harmless. See
Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (When properly
admitted evidence proves the same facts as the improperly admitted evidence, the
error is harmless.); Long v. State, 821 S.W.2d 216, 217 (Tex. App.—Houston [14th
Dist.] 1991, no pet.) (noting that an error was harmless when the victim testified to
the same information that she told to the outcry witness).
We overrule Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgments of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
September 11, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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