Antonio Trevino v. the State of Texas ( 2021 )

NUMBER 13-19-00385-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANTONIO TREVINO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Benavides
By a single issue, appellant Antonio Trevino appeals a conviction for continuous
sexual abuse of a child, a first-degree felony, and the trial court assessed punishment at
forty-eight years’ imprisonment. See TEX. PENAL CODE ANN. §§ 12.32, 21.02. Trevino
alleges that the trial court abused its discretion by allowing hearsay statements by the
child’s mother under the outcry exception. See TEX. CODE CRIM. PROC. ANN. art. 38.072.
We affirm.
I. BACKGROUND
Trevino was indicted for continuous sexual abuse of S.G.1 See TEX. PENAL CODE
ANN § 21.02. Trevino was a close friend of S.G.’s family. Prior to opening statements, an
outcry hearing was held regarding whether J.G., S.G.’s mother, could testify about S.G.’s
outcry to her. The trial court allowed J.G. to testify over Trevino’s objection as the State’s
designated outcry witness. During her testimony, J.G. recalled a conversation with her
daughter on January 29, 2018, 2 and Trevino objected that J.G.’s testimony was
inadmissible hearsay.
J.G. testified that she and S.G. were discussing the “Me-Too Movement” and the
gymnasts who had been sexually abused. After J.G. expressed her disbelief that the
gymnasts had not said anything to a parent or friend, S.G. revealed that she had been
molested by Trevino while J.G. was in prison.3 She specifically told J.G. that she had
been touched inappropriately in her “private areas” and her “breast.” J.G. explained that
she knew that S.G. meant her vagina when she said “private areas.” J.G. and S.G.’s
father contacted police later that day.
Detective Michael Ramos, an investigator with the Corpus Christi Police
Department, testified that Trevino provided a statement to him. In his statement, Trevino
1
We use initials to protect the identities of the complainant and her family. See TEX. R. APP. P. 9.8
cmt.; Salazar v. State, 562 S.W.3d 61, 63 n.1 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.).
2
The State sufficiently notified Trevino of its intent to use the hearsay statement and provided
Trevino with the name of the witness and a written summary of the statement. See TEX. CODE CRIM. PRO.
ANN. art. 38.072 §2(b).
3
J.G. was incarcerated for health care fraud from May of 2010 to December of 2014.
2
admitted that he touched S.G.’s breasts and pubic area, digitally penetrated her vagina,
and orally penetrated her vagina. Trevino conceded to doing these acts on multiple
occasions at his place of work and his house. Additionally, Trevino stated he placed S.G.’s
hand on his penis. He also admitted that on numerous occasions he had her take
photographs of her vagina and showed her pornography.
S.G., seventeen years old at the time of trial, testified next. She recalled the
discussion with J.G. about the “Me Too Movement,” and how after J.G. struggled to
understand the gymnasts’ silence, she informed J.G. that she had also been sexually
assaulted. S.G. stated that Trevino sexually assaulted her at his place of work, her aunt
and uncle’s home, and his home since she was eight years old up until she was twelve
years old. Trevino worked for and lived in a house owned by S.G.’s aunt and uncle. S.G.
knew Trevino very well, stating “he was like a father figure to me.”
S.G. recalled Trevino first touched her vagina when she was eight years old. He
gave S.G. his phone and asked for pictures of her vagina almost every time she saw him,
and she “kind of lost count” how many times he touched her vagina. Around this same
time, he also started showing her pornography on his phone, and when she was nine
years old, he started licking her vagina. She next recalled touching Trevino’s penis when
she was ten years old, and a few times he rubbed his penis against her vagina. The last
incident she remembered was stroking Trevino’s penis for ten minutes until he ejaculated.
When S.G. was twelve years old, Trevino asked her for more pictures at a party, and S.G.
told him she would no longer comply with his requests.
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The jury found Trevino guilty of continuous sexual abuse of a child under fourteen
years of age. See id. This appeal followed.
II. ANALYSIS
By his sole issue, Trevino argues that the trial court erred in admitting S.G.’s outcry
testimony through J.G. because the outcry was too vague and thus falls outside the article
38.072 exception. See TEX. CODE CRIM. PROC. ANN. art. 38.072.
A. Standard of Review
We apply an abuse of discretion standard when we review a trial court’s
designation of an outcry witness. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003). A trial court abuses its discretion when its ruling is outside the zone of reasonable
disagreement. Id. A trial court has broad discretion in determining the admissibility of
outcry evidence, and we will uphold the trial court’s findings when they are supported by
the evidence. Sanchez v. State, 354 S.W.3d 476, 488 (Tex. Crim. App. 2011).
B. Error Preservation
To preserve error for appellate review, a party must make an objection with
“sufficient specificity” to make the trial court aware of the complaint and its basis and
obtain a ruling on the objection. Cordero, 444 S.W.3d at 818; see also TEX. R. APP. P.
33.1; TEX. R. EVID. 103(a)(1). An objection must be specific to inform the trial judge of the
basis of the objection and to afford counsel the opportunity to remove the objection or
supply other testimony. See Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.
2009). Therefore, a “general ‘hearsay’ objection can be sufficient” to inform the trial court
of the defendant's complaint regarding testimony disclosing an outcry statement.
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Cordero, 444 S.W.3d at 818.
Although the State argues that Trevino did not preserve his article 38.072 issue on
appeal based on his objection at trial, we find that the objection made was sufficient to
put the trial court on notice regarding Trevino’s complaint. In Lankston, the Texas Court
of Criminal Appeals held that defense counsel sufficiently objected by saying “[y]our
Honor, once again I'm going to have to object that this is hearsay.” 827 S.W.2d 907, 910
(Tex. Crim. App. 1992). When the State responded that it had filed its motion to designate
the outcry witness, the objection was clearly understood to refer to the testimony not
falling within the outcry exception. Id. at 911. Here, Trevino objected and stated, “Your
Honor . . . I’m objecting that it is hearsay,” and the State immediately responded with,
“Your Honor, this witness has already been identified and ruled as a credible witness. So,
the outcry is no longer hearsay.” Like in Lankston, the objection was clearly understood
to refer to the testimony not falling within the outcry hearsay exception. See id. We
conclude that Trevino made it clear that he did not believe that the State met the
requirements of article 38.072 and the issue raised here was sufficiently preserved for
appeal.
C. Admissibility of Hearsay Statement
Hearsay is an out-of-court statement “offered in evidence to prove the truth of the
matter asserted.” TEX. R. EVID. 801(d). Hearsay is inadmissible unless it is allowed “by
other rules prescribed pursuant to statutory authority.” TEX. R. EVID. 802. Under article
38.072, a child’s out-of-court statement is admissible so long as the statement is made
by the first person who is eighteen years or older “to whom the child makes a statement
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that in some discernible manner describes the alleged offense.” TEX. CRIM. PROC. ANN.
art. 38.072. This statement is known as an “outcry,” and it must be “more than words
which give a general allusion that something in the area of child abuse was going on.”
Garcia, 792 S.W.2d at 91; see also Sanchez v. State, No. 13-16-00681-CR, 2019 WL
5076508, at *8–9 (Tex. App.—Corpus Christi–Edinburg Oct. 10, 2019, no pet.) (mem.
op., not designated for publication) (finding that the child’s sister was not a proper outcry
witness because child’s statement that defendant “hurt her, made her feel dirty, and
touched her” did not relay specific details of abuse). An outcry statement is sufficient if a
child tells someone “how, when, and where” an offense occurred. Eldred v. State, 431
S.W.3d 177, 183–84 (Tex. App.—Texarkana 2014, pet. ref’d); Brown v. State, 189
S.W.3d 382, 386 (Tex. App.—Texarkana 2006, pet. ref’d). see, e.g., Castelan v. State,
54 S.W.3d 469, 475–76 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.) (finding that
the child's grandmother was not a proper outcry witness because child's statement that
defendant “put his thing in through the back” did not relay specific details of abuse).
Here, S.G. related to J.G. a sufficiently discernible statement regarding the alleged
offense. When S.G. was asked “what did you tell your mom happened as far as being
sexually assaulted,” S.G. testified “she asked me who, where, when, why. And I told
answered.” See Brown, 189 S.W.3d at 386 (noting that an outcry statement is sufficient
if a child tells someone “how, when, and where” an offense occurred). Moreover, in
Brown, because the child’s statement to her father “closely track[ed] the language of the
statute defining” the charged offense, the statement was sufficiently discernable. Id. at
386–88. Here, S.G. described to J.G. that Trevino sexually abused her by specifically
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touching her “private areas” and “breast” over a period of years; therefore, the outcry
statement, like the proper outcry statement in Brown, closely tracks the language of the
statute defining the offense for which Trevino was convicted. Id.; see TEX. PENAL CODE
ANN §§ 21.02, 21.11. We hold that the trial court did not err in admitting the hearsay
statement under the outcry exception.
D. Harm Analysis
Even if the trial court erroneously admitted the hearsay testimony, the error was
harmless. The erroneous admission of evidence is generally considered non-
constitutional error subject to harm review under Texas Rule of Appellate Procedure
44.2(b). See TEX. R. APP. P. 44.2(b). Under this rule, an error is not harmful unless it
affects the defendant's substantial rights. Id.; see Walters v. State, 247 S.W.3d 204, 218–
19 (Tex. Crim. App. 2007). If “substantially the same evidence” is admitted elsewhere
without objection, the improper admission of evidence is not considered harmful.
Petriciolet v. State, 442 S.W.3d 643, 654 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d);
see also Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting any
error was harmless in light of “very similar” evidence admitted without objection).
S.G. testified without objection following the outcry testimony, detailing both the
outcry statement to her mother and the history of Trevino’s sexual abuse towards her.
Because S.G.’s testimony was substantially similar to J.G.’s testimony, we conclude that
the admission of the outcry testimony was harmless error. Estrada, 313 S.W.3d at 302,
n.29.
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Moreover, the jury watched the video-taped statement where Trevino admitted to
Detective Ramos that he sexually abused S.G. on numerous occasions. We are assured
that any error in admitting J.G.’s outcry testimony did not influence the jury’s verdict. See
Coble, 330 S.W.3d at 287–88. We overrule Trevino’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
17th day of June, 2021.
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