Joeric Francisco Dority v. the State of Texas ( 2021 )

Opinion filed July 22, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00236-CR
__________
JOERIC FRANCISCO DORITY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR52302
OPINION
Appellant, Joeric Francisco Dority, was indicted for the felony offense of
aggravated sexual assault of a child under six years of age. See TEX. PENAL CODE
ANN. § 22.021(a), (f)(1) (West 2019). The indictment alleged that Appellant
intentionally and knowingly caused the contact and penetration of the female sexual
organ of T.R. by the sexual organ of Appellant and that T.R. was a child younger
than six years of age. See id.
A trial occurred in June 2019 and ended with a mistrial. Appellant was retried
and the jury convicted him as charged in the indictment. The jury assessed
Appellant’s punishment at confinement for twenty-five years in the Institutional
Division of the Texas Department of Criminal Justice. The trial court sentenced
Appellant accordingly. We modify and affirm.
Appellant asserts four issues on appeal. First, he contends that the trial court
erred in excluding testimony about Troy Dority’s prior bad acts, thereby infringing
on Appellant’s constitutional right to present a defense. Second, he argues that the
State failed to prove beyond a reasonable doubt that T.R. was under the age of six at
the time of the offense, and that the evidence was insufficient to support Appellant’s
conviction of this offense. Third, he contends that the trial court erred in allowing
Leanna R. to serve as the outcry witness. Lastly, Appellant argues that it was error
for the district clerk to add court-appointed attorney’s fees, expert fees, and court
reporter’s fees against Appellant in the bill of costs.
Background Facts
Appellant and his niece, T.R., resided in the same home at the time of the
alleged incident. T.R. and Appellant had a good familial relationship, but that
changed when Appellant allegedly sexually assaulted T.R. prior to moving out in
April of 2016.
T.R. testified that Appellant called her into his room and told her to take her
clothes off and to climb onto the bed. T.R. stated that Appellant removed his pants
and “put his private in [hers].” T.R. was in physical pain and felt “bad” and
“embarrassed.”
T.R. testified that, although she was around her two “mothers,” Holli and
Leanna R., immediately following the incident, she did not tell either of them what
happened at that time. The date of the incident is unclear, and T.R. gave
contradictory testimony regarding her age at the time of the incident.
In June of 2017, while staying at her grandparents’ home, T.R. claimed to
have told her grandmother what Appellant did to her. The next day, when Leanna
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was picking her up, T.R.’s grandmother had T.R. tell Leanna about Appellant’s
inappropriate sexual contact. Later that evening, T.R. also told Holli what had
happened, stating that Appellant instructed her to take her clothes off and that
Appellant had touched her “no no” area. Child Protective Services was informed
after Leanna met with a doctor, and T.R. underwent a Sexual Assault Nurse
Examiner’s exam at the Children’s Advocacy Center on July 18, 2017.
Dana Taylor, the Sexual Assault Nurse Examiner who evaluated T.R.,
testified that T.R. was calm, cooperative, and talkative during the exam. The exam
revealed a healed cut, beginning in the posterior fourchette and ending in the fossa
navicularis, indicating penetration. T.R., in speaking with Taylor, reiterated the
same version of events that she had described to Leanna, Holli, and her grandmother.
T.R. stated during the exam that the assault occurred when she was four years old.
The exam findings were that T.R. had been sexually assaulted.
T.R. and Paula, who is T.R.’s biological mother and Appellant’s sister, moved
into the family home when T.R. was about three months old. Appellant testified that
his brother, Troy Dority, lived in the same home on occasion. Appellant stated that
he and Troy were approximately the same size, wore similar clothes, and looked
similar in some ways. Although Troy did not continually live in the same home as
T.R., he was allegedly present and had access to T.R. while she was growing up.
Appellant claims to have treated T.R. like a sister, and he denied any allegation of
inappropriate conduct.
Dr. Perry Marchioni, a licensed psychologist and expert witness for Appellant,
testified as to a child’s ability to recall and describe events. Dr. Marchioni stated
that a child’s ability to discuss events that occur at the age of three and four years
old is limited by their verbal capabilities. According to Dr. Marchioni’s testimony,
when a child who is age four or five is describing an event that took place at the age
of three, “a lot of the information that they are sharing has been prompted where
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they have been assisted in how to give the narrative [by an adult].” Dr. Marchioni
also stated that it is possible for a young child, when recounting a traumatic event,
to confuse two individuals who look similar.
We first address Appellant’s second issue as it involves and overlaps into the
evidence relevant to Appellant’s further issues.
Issue Two
In his second issue, Appellant contends that the evidence presented in this
case was insufficient to support his conviction for aggravated assault of a child under
the age of six. Specifically, Appellant argues that the evidence does not prove that
T.R. was under the age of six at the time of the alleged offense.
Standard of Review
We review a challenge to the sufficiency of the evidence, regardless of
whether it is framed as a legal or factual sufficiency challenge, under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d
729, 732 (Tex. Crim. App. 2018); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we defer to the
factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
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Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is
deferential and accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from the facts.
Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778.
We may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). Therefore, if the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516,
525–26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
Analysis
As relevant to this case, a person commits the first-degree felony offense of
aggravated sexual assault of a child if he intentionally or knowingly “causes the
penetration of the anus or sexual organ of a child by any means” or “causes the
sexual organ of a child to contact” the sexual organ of another person and if the
victim is younger than fourteen years of age. PENAL § 22.021(a)(1)(B)(i),
(a)(1)(B)(iii), (a)(2)(B). If the victim “is younger than six years of age at the time
the offense is committed,” then the “minimum term of imprisonment . . . is increased
to 25 years.” Id. § 22.021(f)(1).
The indictment charged Appellant with intentionally and knowingly causing
contact and penetration of the female sexual organ of a child younger than six years
of age with Appellant’s sexual organ. See PENAL § 22.021(a)(1)(B)(i), (a)(1)(B)(iii),
(a)(2)(B), (f)(1). The jury convicted Appellant of the offense as alleged in the
indictment. Thus, the jury did not determine the exact age of T.R. at the time that
the sexual assault occurred, other than to determine that T.R. was younger than six
as specified in Section 22.021(f)(1). See Bledsoe v. State, 479 S.W.3d 491, 497–98
(Tex. App.—Fort Worth 2015, pet. ref’d). The indictment alleged that the offense
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occurred on or about the 1st day of November, 2015. However, the evidence offered
at trial does not clearly establish specifically when the sexual assault occurred, nor
does it clearly establish T.R.’s exact age at the time of the assault.
T.R. was born in February 2011. T.R. made her outcry of sexual abuse to
Leanna on Father’s Day weekend in June of 2017, four months after her sixth
birthday. However, the jury was entitled to believe that the date of the sexual assault
was prior to her sixth birthday based on the testimony and evidence presented at
trial. See Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899.
Appellant asserts that the evidence was insufficient to support the jury’s
verdict that the offense occurred against a child younger than six years of age
because T.R. could not remember how old she was when the offense occurred. T.R.
gave conflicting testimony, stating that the offense happened prior to Appellant
moving out of the home but also that it may have happened after he moved out. T.R.
testified that she thought she was six years old when it happened and that she turned
six while in kindergarten, but she contradicted this testimony by stating that this may
have occurred after kindergarten. Appellant asserts that no rational jury could have
determined the child’s age based on this conflicting evidence.
We believe that, based on the testimony of both T.R. and Leanna, the jury
could have reasonably concluded that T.R. was under the age of six at the time the
offense occurred. T.R. testified that she was living in “the big house” when she was
assaulted. Leanna testified that Appellant moved out of “the big house” in April of
2016, meaning that T.R. was no older than five years old when Appellant assaulted
her. The jury is entitled to consider the tender age of the child and the trauma of
testifying in the courtroom when considering the quality of T.R.’s testimony. See
Martinez v. State, 178 S.W.3d 806, 810–11 (Tex. Crim. App. 2005) (discussing the
policy behind Article 38.072 of the Texas Code of Criminal Procedure). The jury
was entitled to believe this testimony, resolving conflicts in the testimony as the sole
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judge of the witnesses’ credibility and the weight their testimony was to be afforded.
See Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. Accordingly, we
overrule Appellant’s second issue.
Issue One
Having first ruled upon Appellant’s second issue, we now address his
remaining issues. In his first issue, Appellant asserts that the trial court erred in
excluding testimony concerning Troy Dority’s prior bad acts. Specifically,
Appellant argues that the exclusion of testimony regarding Troy’s sexual assault of
Appellant deprived Appellant of his constitutional right to present a defense.
Standard of Review
As a prerequisite to presenting a complaint for appellate review, the record
must show that a complaint was made to the trial court by an objection that “stated
the grounds for the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint.” TEX. R.
APP. P. 33.1(a)(1)(A). The trial court must have “(A) ruled on the request, objection,
or motion, either expressly or implicitly; or (B) refused to rule on the
request, objection or motion, and the complaining party objected to the refusal.”
Id. R. 33.1(a)(2).
The rationale for preservation being a prerequisite to further analysis is the
same as that which supports preservation of error generally: a trial court should not
be reversed on a matter that was not brought to the trial court’s attention.
Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). “Arguments which
are not supported by a trial objection are deemed overruled.” Burks v. State, 876
S.W.2d 877, 899 (Tex. Crim. App. 1994). We review the trial court’s decision to
admit or exclude evidence under an abuse of discretion standard. Rhomer v. State,
569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Martinez v. State, 327 S.W.3d 727,
736 (Tex. Crim. App. 2010); Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App.
7
2010). We will not reverse a trial court’s decision to admit or exclude evidence, and
there is no abuse of discretion, unless that decision lies outside the zone of
reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App.
2018); De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009); Martin
v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). Furthermore, we will uphold
a trial court’s evidentiary ruling if it is correct on any theory of law that finds support
in the record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex.
Crim. App. 2016); Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex. Crim. App.
2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.).
Furthermore, “[e]rroneous evidentiary rulings rarely rise to the level of
denying the fundamental constitutional rights to present a meaningful defense.”
Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) (alteration in original)
(quoting Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002)). There are
two distinct scenarios in which rulings excluding evidence might rise to the level of
a constitutional violation: (1) a state evidentiary rule that categorically and arbitrarily
prohibits the defendant from offering otherwise relevant, reliable evidence vital to
his defense and (2) a trial court’s clearly erroneous ruling excluding otherwise
relevant, reliable evidence that “forms such a vital portion of the case that exclusion
effectively precludes the defendant from presenting a defense.” Id. (quoting Potier,
68 S.W.3d at 665). Evidence that an “alternative perpetrator” committed the charged
offense falls into the second category. See id. at 405–06. “In weighing probative
value against Rule 403 counterfactors, courts must be sensitive to the special
problems presented by ‘alternative perpetrator’ evidence.” Id. at 406; see TEX. R.
EVID. 403. “Although a defendant obviously has a right to attempt to establish his
innocence by showing that someone else committed the crime, he still must show
that his proffered evidence regarding the alleged alternative perpetrator is sufficient,
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on its own or in combination with other evidence in the record, to show a nexus
between the crime charged and the alleged ‘alternative perpetrator.’” Wiley, 74
S.W.3d at 406.
“Although it is unclear exactly how much evidence is necessary to sufficiently
prove a nexus between the offense and allegedly guilty third party, Texas
jurisprudence is clear that evidence of third party guilt is inadmissible if it is mere
speculation that another person may have committed the offense.” Roderick v. State,
494 S.W.3d 868, 875 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (quoting
Dickson v. State, 246 S.W.3d 733, 739 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d)). “In order for a court to conclude there is a nexus between an alleged
alternative perpetrator and the offense-at-issue; there must be something more than
evidence that a person other than the criminal defendant was committing similar
crimes around the time of the offense-at-issue[;] the evidence must connect the
alleged alternative perpetrator to the specific offense.” Caldwell v. State, 356
S.W.3d 42, 47 (Tex. App.—Texarkana 2011, no pet.) (quoting Dickson, 246 S.W.3d
at 741).
Moreover, the admission of alternative-perpetrator evidence is subject to the
Rule 403 balancing test, according to which the trial court must weigh its probative
value against its tendency to confuse issues or mislead the jury, among other
potential harms. See TEX. R. EVID. 403; Wiley, 74 S.W.3d at 406–07; Roderick, 494
S.W.3d at 875. Excluding such evidence is not constitutional error unless the
evidence “goes to the heart of the defense.” Wiley, 74 S.W.3d at 405.
Analysis
In the first trial, testimony was elicited concerning Troy’s sexual assault of
Appellant when they were children. Troy attended rehab after the incident, returned
home, and was later incarcerated for reoffending.
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In closing argument of the first trial, Appellant’s defense counsel asserted that
Troy was the one who sexually assaulted T.R. and that he had a propensity for sexual
assault. Accordingly, the State filed “State’s Amended Motion In Limine” prior to
the retrial in this case requesting the exclusion of any mention of the prior bad acts
of Troy. The motion requested that Appellant be prevented from presenting any
evidence of Troy’s past sexual assault of Appellant or other bad acts. Prior to any
testimony in the retrial, Appellant’s trial counsel requested a ruling on the State’s
motion, and the trial court conducted a hearing outside the jury’s presence. After
Appellant’s trial counsel detailed the evidence presented during the first trial, the
trial court responded by stating: “Y’all be back here at ten minutes ‘til 1:00, I’ll let
you know then.” After the scheduled recess ended, the trial proceeded with no
mention of or ruling on the motion.
Later during the trial, the State requested a ruling from the trial court regarding
the motion and any evidence of Troy’s prior bad acts. Appellant’s trial counsel
responded to the State’s inquiry by saying: “[W]e have no intent to get into any
history. We’ll talk about who Troy is as regards his brother, but we’re not going to
get into any history of [Appellant’s] brother being a registered sex offender or having
assaulted [Appellant] or anything like that.” The trial court granted the State’s
motion, and Appellant’s counsel did not object.
We find it important, for practical purposes, to determine whether the State’s
objection to the evidence of Troy’s past conduct was actually a motion in limine, as
stated and referred to on the record by the parties and trial court, or a motion to
exclude evidence. See TEX. R. EVID. 103(b). Regardless of the label used by the
trial judge and the parties, we look to the substance of the objection or motion to
determine its effect. Hernandez v. State, 767 S.W.2d 902, 904 (Tex. App.—Corpus
Christi–Edinburg 1989), aff’d, 800 S.W.2d 523 (Tex. Crim. App. 1990).
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A true motion in limine is a request that the opposing party not be permitted
to mention evidence, as specified in the motion, to the jury until a hearing has been
held outside the presence of the jury to determine the admissibility of the evidence.
Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim. App. 2003). “A true motion in
limine does not usually seek an immediate ruling from the trial court.” Rawlings v.
State, 874 S.W.2d 740, 743 (Tex. App.—Fort Worth 1994, no pet.). “Rather, it seeks
a ruling from the court ordering the holding of a hearing outside the jury’s presence
before any mention is made of the evidence.” Id. (citing Nunfio v. State, 808 S.W.2d
482, 484 n.1 (Tex. Crim. App. 1991)). A trial judge’s grant or denial of a motion in
limine is a preliminary ruling only, and an objection thereto normally preserves
nothing for appellate review. Geuder, 115 S.W.3d at 14–15. A ruling on a motion
in limine is merely preliminary because, in most cases, a trial judge is not in a
position to rule on the admissibility of evidence before trial begins. Gonzales v.
State, 685 S.W.2d 47, 51 (Tex. Crim. App. 1985); Carlisle v. State, 818 S.W.2d 156,
158 (Tex. App.—Houston [1st Dist.] 1991, no pet.); Hernandez, 767 S.W.2d at 904.
In discussing the proper, practical purpose of a motion in limine, the Court of
Criminal Appeals stated in Norman v. State:
The purpose of a motion in limine is to prevent particular matters
from coming before the jury. It is, in practice, a method of raising
objection to an area of inquiry prior to the matter reaching the ears of
the jury through a posed question, jury argument, or other means. As
such, it is wider in scope than the sustaining of an objection made after
the objectionable matter has been expressed. However, it is also, by its
nature, subject to reconsideration by the court throughout the course of
the trial. This is because it may not be enforced to exclude properly
admissible evidence.
523 S.W.2d 669, 671 (Tex. Crim. App. 1975).
A motion in limine is generally broad in scope, rather than specific. Rawlings,
874 S.W.2d at 743. “This type of motion seeks no definitive, final ruling on the
admissibility of specific evidence.” Id. (citing Nunfio, 808 S.W.2d at 483–84, 484
11
n.1 (specific ruling on specific question that was narrower than subject matter of
State’s motion in limine preserved complaint for review); Hart v. State, 818 S.W.2d
430, 435 (Tex. App.—Corpus Christi–Edinburg 1991, no pet.) (motion to exclude
specific, illegally seized evidence is motion to suppress); Hernandez, 767 S.W.2d at
903–04 (request to exclude specific reputation testimony from certain witnesses is
not a motion in limine)).
Accordingly, if Appellant objected merely to what was truly the State’s
motion in limine, then there was no preservation of error. Appellant would have
been required to tender the evidence in court and obtain a ruling that excluded the
evidence before error would be properly preserved. See TEX. R. APP. P. 33.1. For
that reason, reference to a motion to exclude (or suppress) as a “motion in limine” is
a practice fraught with potential legal peril that may lull parties and courts into a
misunderstanding about what is required to preserve error for appeal. After
examining the record and the case law on this issue, we conclude that the State’s
motion to exclude Troy’s past conduct was more akin to a motion to exclude rather
than a motion in limine.
The State’s request—made outside the presence of the jury immediately
before Appellant testified—sought a definitive final ruling on a timely and specific
motion to exclude evidence. See Geuder, 115 S.W.3d at 15 (citing Ethington v.
State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (stating that “[w]hen the court,
out of the jury’s presence, hears and overrules objections to evidence, those
objections need not again be made before the jury when the evidence actually is
presented to the jury”)). The ultimate and determinative issue is whether the trial
court’s ruling is “definitive [and] final,” according to the court in Geuder. See id. at
15.
What was initially styled as a motion in limine was not ruled on prior to trial.
In the midst of the presentation of Appellant’s defense during trial, Appellant was
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on the brink of affirmatively introducing specific evidence of Troy as an alternate
perpetrator, and at that point, functionally, the State was asserting a motion to
exclude. Therefore, we are of the opinion that the State’s motion on this particular
issue, although entitled “State’s Amended Motion in Limine,” was, in fact, not a
motion in limine but, rather, a motion to exclude.
The State asserts that Appellant waived his right to assert this issue on appeal
by informing the trial judge that he had “no intent” to go into Troy’s history as a
registered sex offender and his prior assault of Appellant.
To complain on appeal about the trial court’s exclusion of evidence, the
proponent “must have told the judge why the evidence was admissible” and must
have brought to the trial court’s attention the same complaint that is being made on
appeal. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (discussing
TEX. R. APP. P. 33.1). Appellant does not provide, nor can we find, any record of
Appellant’s objections to the trial court’s granting of the amended motion during
trial excluding evidence of Troy’s past misconduct. Additionally, Appellant did not
object or advise the trial court that Appellant’s constitutional right to present a
complete defense had been violated, nor did he object at any time during trial that
the trial court’s rulings deprived him of his constitutional right to present a complete
defense. See TEX. R. APP. P. 33.1.
Appellant announced to the trial court, prior to any ruling, that he had decided
to forgo presentation of this evidence. Appellant intentionally chose to abandon his
prior trial strategy of attempting to introduce evidence of Troy’s prior bad acts.
Because Appellant did not pursue his argument at trial and chose to forgo any
attempt at eliciting this line of testimony before the jury, Appellant did not preserve
the issue for our review. See, e.g., Anderson v. State, 301 S.W.3d 276, 280 (Tex.
Crim. App. 2009) (recognizing that deprivation of a meaningful opportunity to
present a complete defense is a right subject to forfeiture).
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The State also contends that, even if Appellant properly preserved this issue
for appellate review, the trial court did not abuse its discretion in granting the State’s
amended motion. The State cites Figueroa v. State for the proposition that in order
for a defendant to properly present an “alternative perpetrator” defense, there must
be a “nexus” or connection between the charged offenses and the alleged alternative
perpetrator. No. 05-15-00387-CR, 2017 WL 2289031, at *1 (Tex. App.—Dallas
May 25, 2017, no pet.) (mem. op., not designated for publication).
In Figueroa, the trial court held, and the court of appeals affirmed that,
although there was evidence that another individual was also sexually abusing E.E.
at the same time as Figueroa, there was no evidence connecting the alleged
alternative perpetrator to the abuse Figueroa allegedly committed. Figueroa, 2017
WL 2289031, at *3. Because there was no evidence connecting the alternative
perpetrator to the offenses with which Figueroa was charged, the evidence regarding
abuse by another individual was not sufficient to show a nexus between the crime
charged and the alleged alternative perpetrator. Id. (citing Wiley, 74 S.W.3d at 405–
06).
Furthermore, the court in Figueroa held that the proffered evidence would not
survive the balancing test under Rule 403 even if it was found to be relevant. Id.(citing Wiley, 74 S.W.3d at 407). The probative value of the testimony was
considered slight because of its highly speculative nature. Figueroa, 2017 WL
2289031, at *3. The court held that the testimony did, however, present a great threat
of “confusion of the issues” because it would have forced the State to disprove
nebulous allegations, thereby creating a “side trial” that could lead the jury astray,
turning the focus away from whether Figueroa—the only person whose actions were
on trial—abused E.E. Id. The evidence also presented a threat of “unfair prejudice,”
as it would invite the jury to blame an absent, unavailable, unrepresented person for
the sexual abuse for which Figueroa was charged. Id. “Such speculative blaming
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intensifies the grave risk of jury confusion, and it invites the jury to render its
findings based on emotion or prejudice.” Id. (quoting United States v. McVeigh, 153
F.3d 1166, 1191 (10th Cir. 1998)).
Similarly, here, evidence that Troy sexually assaulted Appellant would have
had no relevance or bearing on the issue of whether Appellant sexually assaulted
T.R. The evidence does not tend to prove or disprove whether Appellant is guilty of
the crime. Furthermore, even if this evidence had some relevance, as seen in
Figueroa, the evidence would not survive the Rule 403 balancing test as the low
probative value is severely outweighed by the danger of confusing the issues and
unfair prejudice as seen above. Figueroa, 2017 WL 2289031, at *3. Therefore, the
trial court did not abuse its discretion in denying the admission of this evidence.
We overrule Appellant’s first issue.
Issue Three
In his third issue, Appellant asserts that the trial court erred in allowing Leanna
to serve as the outcry witness.
Standard of Review
We review a trial court’s ruling on admissibility of evidence for an abuse of
discretion. Martinez, 327 S.W.3d at 736; Coble, 330 S.W.3d at 272. We will uphold
the trial court’s decision unless it lies outside the zone of reasonable disagreement.
Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001). We will uphold a
trial court’s evidentiary ruling on appeal if it is correct on any theory of law that
finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex. Crim.
App. 2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no
pet.).
Analysis
Appellant asserts that the trial court erred by allowing Leanna to serve as the
outcry witness in this case. An “outcry statement” under Article 38.072 of the Texas
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Code of Criminal Procedure is a statutory exception to the hearsay rule in
prosecutions for sex-related offenses committed against a child younger than
fourteen years of age. CRIM. PROC. art. 38.072 (West Supp. 2020).
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 outcry testimony from the first person,
eighteen years of age or older, other than the defendant, to whom the child makes a
statement describing the alleged offense will not be inadmissible because of hearsay,
subject to certain procedural requirements. CRIM. PROC. art. 38.072, § 2(a)–(b).
The outcry exception applies “only to statements that . . . describe . . . the
alleged offense.” Id. § 2(a)(1)(A). The statement “must be more than words [that]
give a general allusion that something in the area of child abuse was going on.”
Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); see Michell v. State,
381 S.W.3d 554, 558 (Tex. App.—Eastland 2012, no pet.). To be admissible, the
statement must describe the offense in some discernible manner. Garcia, 792
S.W.2d at 91; Michell, 381 S.W.3d at 558.
For the outcry exception to apply, Article 38.072 requires that (1) on or before
the fourteenth day before proceedings begin, the party intending to offer the
statement (a) notifies the adverse party of its intent to offer the outcry statement,
(b) provides the name of the outcry witness through whom it intends to offer the
statement, and (c) provides a written summary of the statement; (2) the trial court
holds a hearing outside the presence of the jury to determine whether the statement
is reliable; and (3) the child testifies or is available to testify at the proceeding. See
CRIM. PROC. art 38.072, § 2(b).
16
Prior to trial, the State designated Leanna as an outcry witness. However,
Appellant asserts that T.R. first told her grandmother “Mimi” (Cara) about the sexual
assault. Therefore, Appellant contends that it was error for the trial court to allow
Leanna to serve as the outcry witness. We disagree.
In accordance with Article 38.072, the trial court conducted a hearing outside
the presence of the jury to determine whether Leanna was authorized to testify
regarding T.R.’s outcry. See CRIM. PROC. art 38.072, § 2(a)(2). T.R. testified that
she told “Mimi and Pops” what Appellant did to her. Cara testified that she did not
remember what T.R. told her, and Leon testified that T.R. never told him what
happened. On the other hand, Leanna testified that T.R. told her that Appellant had
called T.R. into his room and “touched his no-no area to her no-no area.” Later, in
the presence of Holli, T.R. described Appellant’s “no-no area” as “round like a
baseball bat and long.” The trial court ruled that Leanna was the proper outcry
witness.
The Austin Court of Appeals has held that an outcry witness is the first person
who can remember and relate at trial the child’s statement that in some discernible
manner describes the alleged offense. See Foreman v. State, 995 S.W.2d 854, 859
(Tex. App.—Austin 1999, pet. ref’d); see also Molina v. State, 971 S.W.2d 676, 683
(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). Based on the testimony during
the outcry hearing, the trial court could reasonably have determined that T.R.’s
grandmother and grandfather were not told of the incident, did not recall the outcry,
or were never told any statement by T.R. in some discernible manner that they
recognized as describing a sexual offense. In any of these possible scenarios, the
trial court could have properly found that T.R.’s grandparents would not qualify as
the “first person” under Article 38.072 since neither of them could remember or
relate at trial T.R.’s outcry.
17
The Court of Criminal Appeals laid the foundation for the holding in Foreman
in Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990). When interpreting the
“first person” portion of Article 38.072, the court stated:
This Court interprets the [“first person”] portion of the statute 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. In picking the particular wording of
the “first person” requirement, the legislature was obviously striking a
balance between the general prohibition against hearsay and the
specific societal desire to curb the sexual abuse of children. See
generally Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d
98 (1990). That balance is the focal point of our analysis. The portion
of the statute catering to the hearsay prohibition demands that only the
“first person” is allowed to testify. But 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 an 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.
....
. . . . In order to be designated as the outcry witness by the trial
court, one element that must be clearly shown by the evidence is that
the victim described the offense to that witness.
Garcia, 792 S.W.2d at 91 (footnote omitted).
“On the same basis, the societal interest in curbing child abuse would not be
served if we interpreted the statute to require that the statutory ‘first person’ could
only be the person to whom the child made an outcry even though that person did
not hear, did not remember, or did not understand what the child was saying.”
Foreman, 995 S.W.2d at 859. We agree with the Austin Court of Appeals that the
statutory “first person” refers to the first adult who can remember and relate at trial
18
the child’s statement that in some discernible manner describes the alleged offense.
Accordingly, we hold that the trial court did not abuse its discretion in determining
that Leanna was the proper outcry witness. Appellant’s third issue is overruled.
Issue Four
In his fourth issue, Appellant contends that it was error for the district clerk to
require him to pay court-appointed attorney’s fees, expert witness fees, and fees
associated with the filing of the reporter’s record. Appellant asserts that it was
improper to assess these fees against him because he remains indigent. We agree.
Standard of Review
An indigent defendant cannot be taxed the cost of his or her court-appointed
lawyer unless the trial court finds that the defendant has the financial resources to
repay those costs in whole or in part. CRIM. PROC. art. 26.05(g); Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010). A defendant’s financial resources and
ability to pay are explicit critical elements in the trial court’s determination of the
propriety of ordering reimbursement of costs and fees. Cates v. State, 402 S.W.3d
250, 251 (Tex. Crim. App. 2013). We must presume that a defendant who is
determined by the trial court to be indigent remains indigent for the remainder of the
proceedings in the case unless a material change in the defendant’s financial
resources occurs and that material change is reflected in the record. CRIM. PROC. art
26.04; Cates, 402 S.W.3d at 251.
Analysis
It is well settled that it is improper for a trial court to assess court-appointed
attorney’s fees against an indigent defendant. Cates, 402 S.W.3d at 251–52.
Additionally, when necessary, the State must appoint an expert to aid an indigent
defendant; though the State need not “purchase for the indigent defendant all the
assistance that his wealthier counterparts might buy,” it must provide “the basic
tools” to present the defense. Ex parte Briggs, 187 S.W.3d 458, 468 n.26 (Tex.
19
Crim. App. 2005) (quoting Ake v. Oklahoma, 470 U.S. 68 (1985)). This does not
mean, though, that some court costs cannot be recovered. The Texas Code of
Criminal Procedure requires a convicted defendant to pay court costs as they are
“pre-determined, legislatively mandated obligations resulting from a conviction.”
Osuna v. State, No. 03-18-00239-CR, 2018 WL 3233733, at *10 (Tex. App.—
Austin July 3, 2018, no pet.) (mem. op. not designated for publication); see CRIM.
PROC. art. 42.15 (West Supp. 2020), art. 42.16 (West 2018).
The district clerk submitted an amended bill of costs charging Appellant
$10,820 as a fee for his court-appointed attorney, $2,500 for expert witness fees, and
$5,074 for the court reporter’s record fee. Appellant had previously filed an affidavit
of indigency certifying that he did not have the money to hire an attorney. Appellant
also filed a motion for a free reporter’s record supported by an affidavit, which the
trial court granted. Appellant was determined to be indigent, and there is nothing in
the record to indicate that he is no longer indigent or that the trial court made any
determination that Appellant had financial resources to pay for the costs of his court-
appointed attorney. See CRIM. PROC. art. 26.05(g).
Because the record does not demonstrate that the trial court found a material
change in Appellant’s financial circumstances, court-appointed attorney’s fees may
not be assessed against him. See CRIM. PROC. arts. 26.04(p), 26.05(g). The State
concedes error as to the attorney’s fees assessed, stating that “Appellant should not
have had attorney’s fees assessed against him, since he was found indigent and there
was no subsequent determination that he was no longer indigent.” In finding that
Appellant should not be charged for his court-appointed attorney, we also find that
the cost of the court-appointed expert witness should not be charged to Appellant.
See Martin v. State, 405 S.W.3d 944, 948 (Tex. App.—Texarkana 2013, no pet.)
(“Like the fees of a court-appointed expert or attorney, an appointed investigator is
‘a basic tool’ an indigent defendant can use to present a defense.”).
20
However, the State contends that the cost of the court reporter’s fee was a cost
properly assessed against Appellant because a trial court can order an indigent
defendant to pay court costs. We disagree. Appellant was determined to be indigent,
and there is nothing in the record to indicate that he is no longer so. See CRIM. PROC.
art. 26.05(g). Additionally, the trial court issued an order granting Appellant’s
motion for a free reporter’s record.
When the trial court clerk erroneously includes fees as court costs, we should
modify the bill of costs to remove the improperly assessed fees. See Cates, 402
S.W.3d at 252. Accordingly, Appellant’s fourth issue is sustained. We modify the
bill of costs to delete any requirement that Appellant pay $10,820 for court-
appointed attorney’s fees, $2,500 for expert witness fees, and $5,074 for the court
reporter’s record fee.
This Court’s Ruling
We modify the judgment of the trial court and the bill of costs to delete any
requirement that Appellant pay court-appointed attorney’s, expert witness, or
reporter’s record fees. As modified, we affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
July 22, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
21