Manuel F. Carrillo Junior v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed April 25, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00058-CR
NO. 14-22-00059-CR
MANUEL F. CARRILLO JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause Nos. 1653138 and 1653139
MEMORANDUM OPINION
A jury found appellant guilty of two counts of continuous sexual abuse of a
child. The trial court assessed punishment at thirty-five years’ confinement for
each count to run concurrently. In two issues, appellant complains about the
admission of testimony from outcry witnesses. We affirm.
I. OUTCRY WITNESS: EXTRANEOUS OFFENSES
In his first issue, appellant contends that the trial court erred by allowing a
witness to testify about outcry statements from a child, L.C., who was not a
complainant. The State agrees that the outcry statute, Article 38.072 of the Code
of Criminal Procedure, does not provide a hearsay exception for outcry testimony
related to an extraneous offense committed against a child who is not the
complainant. See Tex. Code Crim. Proc. art. 38.072, § 2(a)(1) (providing for the
admissibility of hearsay by a child who describes (A) “the alleged offense,” or (B)
during the punishment phase, a crime, wrong, or act other than the alleged
offense). But the State contends that appellant failed to preserve error and that any
error was harmless. Assuming without deciding that error was preserved,1 we
agree with the State that it was harmless.
A. Background
Appellant was charged with the continuous sexual abuse of two sisters—his
girlfriend’s daughters—occurring over the summer of 2018 when the children, A.O
and L.O., were ten and six years’ old, respectively. Regarding the abuse of these
children, the jury heard testimony from their grandmother (an outcry witness), their
mother, their therapist, the children themselves, appellant, and a police
1
See Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (hearsay objection
preserved complaint regarding State’s failure to show admissibility under outcry-witness statute;
“The burden then became the State’s to show the evidence was admissible pursuant to either the
provisions of Art. 38.072 or to some other exception to the hearsay rule.”); see also Beckley v.
State, 827 S.W.2d 74, 78 (Tex. App.—Fort Worth 1992, no pet.) (hearsay objection preserved
complaint that outcry witness’s testimony described an extraneous offense). But see Momon v.
State, No. 14-00-00260-CR, 2001 WL 930848, at *2 (Tex. App.—Houston [14th Dist.] Aug. 16,
2001, pet. ref’d) (not designated for publication) (hearsay objection did not preserve complaint
that the outcry witness’s testimony described an extraneous offense (citing Gallegos v. State, 918
S.W.2d 50, 56 (Tex. App.—Corpus Christi–Edinburg 1996, pet. ref’d))). See generally Zarco v.
State, 201 S.W.3d 816, 828–30 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (noting the
courts of appeals’ “mixed history” in applying Long; following Long as binding precedent).
2
investigator, among others. The jury also heard testimony from appellant’s half-
sister, L.C., and her mother concerning extraneous sexual offenses committed
against L.C. The State designated L.C.’s mother as an outcry witness, and the trial
court allowed her to testify about L.C.’s out-of-court statements.
The police investigator testified about appellant’s statements while he was
being interviewed. Appellant admitted to touching A.O.’s vagina and L.O.’s anus.
He admitted to touching his penis to the girls’ feet. He would touch the girls three
to five times per week over a period of four months. He confirmed that he had a
“foot fetish.” He said the girls were “coming on” to him, would kiss him, get “too
touchy” with him, and were “open for more.”
The girls’ grandmother testified about A.O.’s outcry. A.O. reported to the
grandmother that appellant would have the girls go into the bedroom and lie on
their sides while he lied up against their backs and rubbed his penis on their
bottoms. A.O. reported appellant would fondle them on their front parts and butts.
She reported that appellant would rub his penis on their feet.
A.O., who was thirteen years old at the time of trial, testified in detail about
the abuse. She testified that appellant would touch her feet with his penis and
touch her private parts and “bottom” while her clothes were on. She described
several specific incidents, such as when appellant had her lie down next to him
while on their sides and she felt his round and hard bump on her bottom. She also
observed appellant rubbing his penis on L.O.’s feet. A.O. testified that while she
was in therapy in the fall of 2018, she recanted the abuse. She recanted because
she felt like her mother did not believe her. Her mother would ask her every week,
“Are you sure this is what happened?” L.O. testified that she did not remember
anything that happened between her and appellant or what she had said to an
interviewer at the Children’s Assessment Center.
3
The girls’ therapist testified about what they said appellant had done to
them, including the frequent touching of their private parts and bottoms and how
he had them lie on their sides while he “humped” their bottoms. L.O. reported that
appellant would suck on their toes and heels. When the girls ultimately recanted
about a month into therapy, L.O. nonetheless maintained that appellant had sucked
on their feet. The therapist explained that recanting usually occurs because of
someone coaching or sharing their opinion that it couldn’t have happened or asking
“are you sure this happened” until the child starts to understand that maybe
somebody doesn’t want them telling. Based on the therapist’s dealings with the
mother, the therapist felt the mother was not supportive.
A child abuse pediatrician at the Children’s Assessment Center testified
about statements that the girls made during medical examinations. A.O. reported
that appellant would hump her bottom and do the same to L.O. Appellant would
touch their private parts and bottom with his hands over their clothes. L.O. was
not able to provide the pediatrician with a lot of information but said she had
“already told the other lady,” which the pediatrician understood to mean a forensic
interviewer at the Children’s Assessment Center.
The girls’ mother testified that after the girls recanted their allegations, she
allowed appellant back into their home around January 2019. In February, she
walked in on him standing too close to L.O. while he was massaging L.O.’s
shoulders. The mother felt his penis and thought it was slightly hard. That night,
appellant kept telling the mother that he “wasn’t thinking clearly.” After the
mother kicked him out of the house, he said in text messages that L.O. was
“getting too close” to him and that he “wasn’t doing anything that she didn’t want
him to do.” The mother also testified that, in her sex life with appellant, he had a
4
predilection with feet—appellant would ask her to stroke his penis with her feet,
and he would rub his penis on her feet.
The State also introduced evidence of extraneous sexual abuse that appellant
committed against his half-sister, L.C. In the fall of 2019, appellant began living
off and on with his father and L.C., who was thirteen years old at the time. L.C.’s
mother testified as an outcry witness about statements that L.C. made to her. L.C.
told her mother about an incident when L.C. was in the kitchen washing dishes and
appellant came up from behind her and rubbed his penis on her bottom. L.C. told
her mother about another incident when L.C. was washing her clothes and
appellant came up behind her and rubbed his penis on her bottom. L.C. told her
mother about an incident in which L.C. was lying in bed and appellant came into
her room and rubbed his penis on her feet.
L.C. also testified in detail about appellant’s sexual abuse. She did not
testify about any incidents involving washing dishes or clothes. But she did testify
about incidents that occurred in her room and appellant’s room. She testified that
appellant started kissing her feet, and he put her toes inside his mouth. She saw his
hands go down his front side and then felt something like skin against her feet that
was hard and a cylinder. She testified about another incident when he “did the
whole feet thing again” and then laid his body weight on top of her, and she felt
him rubbing his cylinder between her thighs. During another incident, he pulled
her onto his bed and put his cylinder between the top of her thighs. During another
incident in her room, he had her lie on her bed with them on their sides while he
put his hands around her. One of his hands was in her shorts, over her underwear,
rubbing her private parts. When he tried to forcefully kiss her, she started crying,
and he stopped. She testified that, all in all, he had touched her feet with his
5
private part more than five times and had touched his private part to her backside
less than five times.
Appellant testified that the girls were lying. He testified that he admitted
things to the police investigator that he didn’t do because he loves A.O. and L.O.
so much that he was willing to make himself look bad instead of them. He testified
that A.O. and L.O. liked to be close to him a lot and always wanted to come into
the bedroom with him. He testified that he didn’t allow it because he felt it was
inappropriate for the kids to be alone with him in the bedroom. He told the girls he
was going to tell their mother about their behavior, but they made him promise not
to say anything. He told them if they started behaving inappropriately again, then
he would say something.
Appellant testified that it felt to him like all three of the girls were sexually
attracted to him and sexually coming on to him. He testified that L.C. was being
sexually aggressive toward him and her motive for outcrying against him was, “I
guess she thought that I was going to say something first because I had a talk with
her, too, about what was going on.” He testified that all three girls were lying
because they wanted to get back at him for telling them to stop being inappropriate
with him. According to appellant, although A.O. and L.O. had met L.C. at some
point and they had phones, they didn’t talk to each other on the phone.
The jury found appellant guilty of both counts of continuous sexual abuse of
a child. The court assessed punishment at thirty-five years’ confinement on each
count.
B. Legal Principles
Generally, the erroneous admission of hearsay under the outcry-witness
statute is non-constitutional error. See Rosales v. State, 548 S.W.3d 796, 808 (Tex.
6
App.—Houston [14th Dist.] 2018, pet. ref’d). Non-constitutional error regarding
the admission of evidence requires reversal, i.e., is harmful, only if the error affects
the defendant’s substantial rights. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex.
Crim. App. 2018); see also Tex. R. App. P. 44.2(b); Tex. R. Evid. 103(a). Error
affects substantial rights if the error had a substantial and injurious effect or
influence in determining the jury’s verdict. Gonzalez, 544 S.W.3d at 373. If we
have a fair assurance from examining the record as a whole that the error did not
influence the jury, or had but a slight effect, we will not overturn the conviction.
Id. Often the erroneous admission of evidence is harmless if similar evidence is
admitted without objection. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex.
Crim. App. 2010); see also Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App.
1998) (“It is well established that the improper admission of evidence does not
constitute reversible error if the same facts are shown by other evidence which is
not challenged.” (quotation omitted)).
C. Analysis
Here, the alleged error was the admission of L.C.’s hearsay statements
through her mother’s testimony concerning extraneous sexual offenses against L.C.
But, the jury heard substantial evidence concerning the charged offenses against
the complainants through the testimonies of A.O., her grandmother, her therapist, a
pediatrician, and a police officer. A.O.’s testimony and statements to other
witnesses were largely consistent in describing the abuse. Although she recanted
at one point because she felt pressured by her mother, she explained her reason for
doing so and testified at trial about the abuse. Moreover, appellant confessed to
acts amounting to the offenses.
Importantly, L.C. also testified about the extraneous offenses committed
against her. Although she did not testify about several instances of abuse that she
7
disclosed to her mother—i.e., the dishwashing or clothes-washing incidents—her
testimony about the abuse was detailed and consistent with the type of abuse
perpetrated against A.O. and L.O.—touching of her feet with his penis, lying down
next to her with his penis against her butt, and touching her private parts over
clothing.
In light of the substantial evidence of appellant’s guilt and the detailed
testimony from L.C. herself describing the extraneous offenses, we have a fair
assurance that the admission of the hearsay statements did not influence the jury or
had but a slight effect. See Rosales, 548 S.W.3d at 808–09 (harmless error from
admission of testimony of outcry witnesses because the same or similar evidence
was admitted through testimony of a doctor and the complainant); Chapman v.
State, 150 S.W.3d 809, 814–15 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)
(harmless error from admission of hearsay from incorrect outcry witness because
testimony was cumulative of other evidence, including the complainant’s
testimony); see also Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (harmless error from improper designation of outcry
witness because the child and mother provided substantially the same account of
the offense); West v. State, 121 S.W.3d 95, 105 (Tex. App.—Fort Worth 2003, pet.
ref’d) (harmless error to admit hearsay from mother who was not designated as
outcry witness because the child gave detailed testimony about the assault); Poole
v. State, 974 S.W.2d 892, 899 (Tex. App.—Austin 1998, pet. ref’d) (harmless error
to admit hearsay from mother who was not properly designated as outcry witness
because the children gave substantially the same testimony).
The cases upon which appellant relies are materially different. In Beckley v.
State, the child’s testimony was not cumulative of the purported outcry witness’s
testimony because the child denied that the defendant sexually assaulted her. See
8
827 S.W.2d 74, 78 (Tex. App.—Fort Worth 1992, no pet.).2 Similarly, in
Chapman v. State, a child who was the subject of an alleged extraneous offense did
not testify, and the inadmissible testimony from the purported outcry witness was
not cumulative of other evidence. See 150 S.W.3d at 817–18.
Appellant’s first issue is overruled.
II. OUTCRY WITNESS: RELIABILITY
In his second issue, appellant contends that the trial court erred by admitting
the grandmother’s testimony about A.O.’s outcry statement because it was not
reliable.
A. Legal Principles
As a prerequisite to admitting outcry-witness testimony describing a child’s
out-of-court statement, the trial court must find that “the statement is reliable based
on the time, content, and circumstances of the statement.” Tex. Code Crim. Proc.
art. 38.072, § 2(b)(2). This inquiry focuses on the reliability of the statement, not
the credibility of the outcry witness. Sanchez v. State, 354 S.W.3d 476, 487–88
(Tex. Crim. App. 2011). We review a trial court’s determination that the statement
was reliable under an abuse-of-discretion standard. Torres v. State, 424 S.W.3d
245, 257 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). We will reverse the
trial court’s decision only if it falls outside the zone of reasonable disagreement.
Id.B. Background
The grandmother testified during a hearing outside the jury’s presence about
A.O.’s outcry statement. In August 2018, the mother left A.O. and L.O. at the
2
Moreover, the Beckley court applied an outdated harm analysis. See 827 S.W.2d at 79
(citing former Tex. R. App. P. 81(b)(2))
9
grandmother’s house. The grandmother, A.O., and L.O. were watching television
together when A.O. “just burst out crying.” When the grandmother asked why
A.O. was crying, A.O. told the grandmother about what appellant had been doing.
A.O. said that appellant would invite them into the bedroom and have them lie on
the bed and be close to him, and he would fondle the girls on their front parts and
their butts. A.O. told the grandmother that appellant would make them turn to their
sides so he could be up against their back part and “rub himself down there on their
bottoms.” He would make the girls turn around with their head toward the foot of
the bed with their feet up above so he could rub “his thing” on their feet. The
grandmother understood “his thing” to mean appellant’s penis. A.O.’s demeanor
at the time of reporting the abuse was “very upset and crying” and she “couldn’t
hardly breathe while trying to talk.” When the grandmother asked L.O. about what
happened, L.O. “just downturned her head and just bursted out crying.”
On cross-examination, appellant elicited testimony that A.O. did not disclose
the times or dates of the abuse, including whether it was recent or not. Nor did
A.O. tell the grandmother “the number of those acts.” A.O. did, however, talk
about the nature of the specific acts and give details about those acts; A.O.
described “[p]robably about three” different acts. The grandmother also
acknowledge that A.O. sometimes doesn’t tell the truth, lies a lot, and has lied to
the grandmother.
The trial court found A.O.’s statement reliable, and the grandmother
ultimately testified in front of the jury about A.O.’s outcry statement.
C. Analysis
Appellant contends that the trial court abused its discretion in finding A.O.’s
statement to the grandmother reliable because A.O. was a “known liar.” Appellant
also contends that there was no evidence to corroborate the statement other than
10
A.O.’s own statement; the statement was not clear and unambiguous; and A.O.
could provide no details, including even a loose timeline of the allegations.
Appellant cites no case holding that a trial court abused its discretion in finding
outcry statements reliable.
The grandmother’s opinion that A.O. had lied “a lot,” in particular without
any testimony indicating that those lies concerned false allegations of sexual abuse,
does not undermine the reliability of A.O.’s outcry statement based on the “time,
content, and circumstances of the statement.” See Tex. Code Crim. Proc. art.
38.072, § 2(b)(2); see also Madrid v. State, No. 08-15-00195-CR, 2016 WL
3092575, at *5 (Tex. App.—El Paso June 1, 2016, no pet.) (not designated for
publication) (“And evidence that the girls lie to avoid getting into trouble . . . is not
remotely determinative of the outcry’s reliability.”). We disagree with appellant’s
contention that the statement was “not clear and unambiguous.” A.O. told the
grandmother about specific sexual acts that appellant performed on her and L.O.,
including how appellant would position their bodies and rub his “thing” on their
feet.
Neither the failure of A.O. to disclose to the grandmother a specific time
frame of the abuse, nor the lack of corroborating evidence adduced at the hearing,
requires a reversal of the trial court’s finding that the statement was reliable. See
Buentello v. State, 512 S.W.3d 508, 519 (Tex. App.—Houston [1st Dist.] 2016,
pet. ref’d) (“But neither corroboration nor physical evidence is required for an
outcry to be determined reliable.”); MacGilfrey v. State, 52 S.W.3d 918, 921 (Tex.
App.—Beaumont 2001, no pet.) (“The child is not required, as appellant appears to
urge, to give an actual date or the time frame of the occurrence described in the
outcry statement.”). Regardless, nothing from the grandmother’s testimony
indicates that A.O. was unable to provide a timeline of the allegations—only that
11
A.O. did not provide the information to the grandmother during the outcry. A.O.
provided the timeline at trial, and her outcry statement was corroborated by plenty
of evidence at trial, including appellant’s inculpatory statements and L.C.’s
testimony about similar extraneous offenses.
The time, content, and circumstances of the statement support the trial
court’s finding of reliability. A.O. made the statement in August 2018 while the
abuse had been perpetrated continuously throughout the summer of that year. A.O.
detailed the abuse in age-appropriate terms and described specific sexual acts. She
made the statements after she just “burst out crying,” and her demeanor while
relaying the abuse was appropriate for the circumstances. Nothing from the
hearing undermines the reliability of the outcry statement such that the trial court’s
ruling would be outside the zone of reasonable disagreement. See Madrid, 2016
WL 3092575, at *5 (upholding reliability determination when girls made the
outcry on their own volition, exhibited an emotional response consistent with the
substance of the statement, and provided detailed descriptions of events consistent
with a depiction of sexual abuse from a child’s viewpoint; the content of the outcry
indicated it was believable; and there was no evidence that the outcry was the
product of duress, coercion, or manipulation).
Appellant’s second issue is overruled.
12
III. CONCLUSION
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b)
13