Peter Edward Dolan v. State ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00191-CR
NO. 09-17-00192-CR
NO. 09-17-00193-CR
____________________
PETER EDWARD DOLAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause Nos. 15-12-13417-CR, 16-07-07767-CR & 17-03-03063-CR
MEMORANDUM OPINION
A jury found Peter Edward Dolan (Dolan or Appellant) guilty on three counts
of aggravated sexual assault of a child, including two counts as to his niece, A.S.,
and one count as to his niece, N.G.1 See Tex. Penal Code Ann. § 22.021(a)(1)(B),
1
We identify the victims and certain witnesses by using initials. See Tex.
Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with dignity
and privacy throughout the criminal justice process”).
1
(2)(B), (f)(1) (West Supp. 2017).2 The jury assessed punishment, and the trial court
sentenced Dolan to life imprisonment for each count, with the sentences to run
concurrently. Dolan appeals. We affirm the judgments of conviction.
The Indictment
In cause number 15-12-13417-CR, a grand jury indicted Dolan for aggravated
sexual assault of a child and alleged that
. . . Peter Edward Dolan, on or about December 25, 2014, . . . did then
and there intentionally or knowingly cause the penetration of the sexual
organ of A.[]S., a child who was then and there younger than 14 years
of age[.]
In cause number 16-07-07767-CR, a grand jury indicted Dolan for aggravated
sexual assault of a child and alleged that
. . . Peter Edward Dolan, on or about December 30, 2014, . . . did then
and there intentionally or knowingly cause the penetration of the sexual
organ of A.S., a child who was then and there younger than 14 years of
age[.]
In cause number 17-03-03063-CR, a grand jury indicted Dolan for aggravated
sexual assault of a child and alleged that
. . . . Peter Edward Dolan, on or about December 30, 2014, . . . did then
and there intentionally or knowingly cause defendant’s hand and/or
finger to penetrate the sexual organ of N.G., a child who was then and
there younger than 6 years of age[.]
2
In this Memorandum Opinion, we cite to the current versions of statutes if
the subsequent amendments do not affect the outcome of this appeal.
2
The Evidence3
Testimony of Director at Children’s Safe Harbor
Kari Prihoda, the client services director at Children’s Safe Harbor and
designated by the trial court as an outcry witness for A.S., testified that she
conducted the forensic interviews with A.S. and N.G. on October 2, 2015. Prihoda
testified that at the time of A.S.’s interview, A.S. was eight years old. According to
Prihoda, she established a rapport with A.S., A.S. promised to tell the truth, and
Prihoda determined that A.S. knew the difference between the truth and a lie.
Prihoda testified that A.S. told her that A.S.’s “Tio Peter[,]” whom she called “Peter,
Jr.” and who used to live with her grandmother, on more than one occasion had
“pok[ed] [A.S.] in her middle part[,]” and that A.S.’s “mom calls that the vagina.”
According to the trial record, A.S. identified what she meant by “middle” on a
drawing of a female child by circling the female sexual organ.
Prihoda testified that A.S. told her that one of the occasions was “last
Christmas[]” when A.S. and her uncle were watching television on the couch in the
living room of her grandmother’s house, and her uncle or “Tio Peter” grabbed a
green and white polka-dot blanket from the couch and covered himself and A.S.
3
We have limited our summary to testimony and evidence from the guilt-
innocence phase of the trial.
3
According to Prihoda, A.S. explained that the only people in the room were Peter,
A.S., and A.S.’s cousin, N.G., and that A.S. told Prihoda that she was wearing a My
Little Pony shirt, black pants, and underwear with pandas on them that day. A.S.
stated that Peter “poked her” with his finger and “went in there . . . through [her]
underwear[]” and it hurt.
A.S. also told Prihoda about another incident that happened at Walmart when
A.S. and N.G. went into the restroom and Peter waited outside. A.S. reported that
when they left the restroom, Peter directed them back into the restroom, pulled their
pants down, “poked [them,]” that he had poked A.S. “in a little hole . . . it hurt a
lot[,]” and that he had poked them with his finger. A.S. told Prihoda that A.S.
watched Peter “poke” N.G. in her middle, that N.G. made a mean face and said
“Ouch, it hurt[]” and “Stop.” According to Prihoda, A.S. stated she was wearing
shorts with flowers on them and underwear with stars, and that N.G. was wearing
black pants, a shirt with a panda on it, and underwear with rainbows.
A.S. told Prihoda about another incident that happened in the car as A.S.,
A.S.’s cousin, P.J., A.S.’s grandmother, Peter and “Tia Della” were leaving A.S.’s
grandmother’s house. A.S.’s grandmother and “Tia Della” were in the front seat, and
A.S. and P.J., who was asleep, were in the back seat with Peter. A.S. described her
clothing that day as shorts with sparkles on them and a shirt with a cat and a little
4
boy on it. A.S. told Prihoda that Peter touched her, poked her with his finger on top
of her skin, and then took his hand out of her shorts. A.S. told her that Peter was the
only person she felt unsafe around and that Peter on one occasion told A.S. that only
he could touch her there.
Testimony of A.S.
A.S., who was nine years old at the time of trial, testified4 that her Uncle Peter,
“touched [her] somewhere he wasn’t supposed to[]” on three occasions, but she
could not remember the order in which they occurred. A.S. testified that one of the
instances happened when she was on her way home from her grandmother’s house
during the daytime and her aunt was driving, A.S.’s grandmother was in the front
seat, and A.S. was in the back seat of the car and sitting between Dolan and her two-
year-old cousin. According to A.S., Dolan put his hand under her shorts but over her
underwear and was “feeling around[]” her “ka-ka.” When asked at trial what her
“ka-ka” was, A.S. said her mother taught her that word and A.S. identified that it
was the part of her body that she circled on a drawing of a girl on one of the State’s
4
The trial court held a hearing to evaluate A.S. for competency pursuant to
Rule 601 of the Texas Rules of Civil Evidence, and the court and both parties
participated in the examination. The trial court determined that A.S. was competent
to testify.
5
exhibits, and the trial court took judicial notice that A.S. identified the female
genitalia on the exhibit.
A.S. testified that, on another occasion, she went to Walmart with Dolan and
her cousin, N.G., to get ice cream. According to A.S., Dolan was driving his red
truck and she and N.G. were sitting in the back seat. A.S. testified that after they
picked out ice cream, she and N.G. went into the Walmart girls’ restroom while
Dolan stayed outside. After they used the restroom, washed their hands, and exited
the restroom, Dolan told A.S. and N.G. to go back inside the restroom and the girls
went back in. According to A.S., no one else was in the restroom and Dolan, A.S.,
and N.G. went into the “big stall” in the back of the restroom and he pulled A.S.’s
and N.G.’s shorts down and “poked” A.S.’s “ka-ka” outside of her underwear. A.S.
testified that she did not know if anything happened to N.G. because A.S. was
pulling up her shorts, but she explained that N.G. looked mad “[b]ecause probably
he touched her, and she didn’t like it.” On cross-examination, A.S. agreed that she
was not sure at which Walmart the touching occurred, and she testified “it may have
happened somewhere else, but I don’t know.”
A.S. testified that on a third occasion, she was spending the week at her
grandmother’s house around Christmas, and she was on the couch in the living room
watching television and Dolan “touched [her] on [her] ka-ka” and “poked it and then
6
he slid [his index finger] out[.]” According to A.S., her cousin P.J. was in the room,
her grandmother was in the kitchen, and lots of people were outside because they
were having a party outside. A.S. testified that it hurt and she moved to another
couch.
A.S. explained at trial that at first she did not tell anyone about the instances
because she thought they would be mad at her. A.S. testified that Dolan told her that
what he was doing was “a secret.” A.S. testified that one day “[b]ecause [N.G.]
told[,]” A.S. decided to tell her mother that Dolan had touched her and she told her
about the three instances. A.S. was unable to identify Dolan in the courtroom.
Testimony of Victim Assistant Coordinator
Ilda Rupert, a victim assistant coordinator with the Montgomery County
District Attorney’s Office and a proper outcry witness for N.G. as designated by the
trial court,5 testified that she, along with a prosecutor and an investigator, met with
N.G. on January 30, 2017, as a trial date was approaching. According to Rupert,
N.G. would have been about four years old at the time of the meeting, and due to
N.G.’s speech impairment, they showed N.G. an anatomical drawing because it
“seemed easier” to communicate with N.G. using the drawing. N.G. told them that
5
The trial court also found Kari Prihoda was a proper outcry witness for N.G.,
but Prihoda did not testify regarding N.G.’s outcry.
7
“Uncle Peter touched me right here[,]” and she pointed to the female sexual organ
on the drawing of the little girl. Rupert testified that when N.G. was asked what Peter
touched her private part with, N.G. answered “[w]ith his hand[,]” and said “[h]e did
like this” while indicating that he had moved four fingers to the front and back of
her female sexual organ multiple times. According to Rupert, N.G. told them that
this happened at “Mo-Mo’s house in the green room[]” with the lights off. N.G. drew
a picture for them of where it happened and explained the picture as showing her
and her younger cousin P.J. lying in bed with Peter lying next to N.G.
Rupert testified that she met with N.G. again on March 28, 2017, and N.G.
reiterated clearly that at Mo-Mo’s house Dolan touched her under her clothes and
inside her “private part[.]” According to Rupert, she met another time with N.G. for
about fifteen minutes on May 12, 2017, when N.G. was five years old. Rupert
testified that, at all three meetings, N.G. was consistent in describing the abuse that
occurred in the green room at Mo-Mo’s house.
Testimony of N.G.
N.G. testified6 that she is five years old. At trial, she circled two areas on a
drawing of a little girl without clothes and identified those two areas of her body as
6
On the defense’s motion, the trial court evaluated N.G. for competency. The
trial court held a hearing pursuant to Rule 601 of the Texas Rules of Evidence, and
8
areas that no one should be allowed to touch, which she referred to as her “ka-ka”
and her “butt.” Although she initially testified that no one had touched her “ka-ka”
she subsequently testified that she remembered telling the prosecutor that her Uncle
Peter touched her “ka-ka.” N.G. testified that when Dolan put his hands in her “ka-
ka[,]” Dolan, N.G. and P.J. were in the green room. According to N.G., Dolan put
his finger in her “ka-ka[,]” moved his finger, and took it out. However, when asked
if anyone had ever touched her body where she did not want to be touched or if
anyone had ever touched her “ka-ka” against her wishes, she answered, “No.” N.G.
was unable to identify Dolan in the courtroom at trial.
Testimony of A.S.’s Mother
J.L., A.S.’s mother, testified that M.L. and N.G. came over and M.L.
expressed something to J.L. that caused her concern. According to J.L., N.G. then
pointed to her “private part,” and then A.S. looked nervous and said something. J.L.
waited for her husband to come home, told him what had happened, texted her sister
(Peter’s wife, Della) and told her to meet them at their mother’s house. After J.L.
and M.L. talked to Della, Della sat down, called Peter, and began crying. According
to J.L., someone called the police, and J.L. gave the police a statement when they
the court and both parties participated in the examination. The trial court determined
that N.G. was competent to testify.
9
arrived. Although the police did not talk to the children, a detective later contacted
J.L. and asked her to bring A.S. in for a forensic interview. A.S. also had a medical
exam.
Testimony of M.L.
N.G.’s mother, M.L., testified that Dolan is the husband of one of her sisters
and that J.L., A.S.’s mother, was her other sister. M.L. explained that N.G. was five
years old at the time of trial and that A.S. is her niece. M.L. testified that from 2013
to 2015 that Dolan and her sister lived with M.L.’s parents and that N.G. would go
to M.L.’s parents often and that N.G. would have been around Dolan “[t]oo many
times to count.”
M.L. testified that about two weeks before the Walmart incident she was
giving N.G., who was three years old at the time, a bath at M.L.’s house and N.G.
told her something that made her concerned. She waited a couple of nights, talked
to J.L. about what M.L. learned from N.G., and then M.L. arranged a meeting at her
mother’s house and called the police. M.L. testified she gave the police her written
statement. According to M.L., within the month before N.G.’s outcry, Dolan had
asked to take N.G. and A.S. to the zoo, and M.L. was concerned and did not let him
take N.G. M.L. remembered an evening Christmas party in 2014 at M.L.’s parents
house that lasted until the early hours of the next day, and the adults and children
10
were going inside and outside during the party. M.L. also testified that before N.G.’s
outcry, they discovered N.G. had been acting out sexually with her best friend who
was about N.G.’s age.
Testimony of Detective Acosta
Shannon Acosta, a detective with the Montgomery County Sheriff’s Office
who investigates crimes against children and who was assigned to the case, testified
that a patrol report was called in on September 24, 2015 regarding the case. Acosta
testified that she contacted N.G.’s mother and Acosta scheduled forensic interviews
for A.S. and N.G. on October 2, 2015. According to Acosta, after she observed the
forensic interviews she began investigating Dolan on the charge of aggravated
sexual assault of a child in regards to A.S. and on charges of “[i]ndecency with a
child and possibly aggravated sexual assault of a child[]” in regards to N.G.
According to Acosta, the girls had sexual assault nurse examiner (SANE) exams on
October 6, 2015, and the SANE charts that Acosta reviewed corroborated what was
said during the forensic interviews. Acosta requested a list of specific clothing in an
attempt to corroborate details she learned from the forensic interview, and although
she was unable to collect the clothing she did receive pictures from around Christmas
time of 2015 of A.S. wearing the specific clothing that she described she was
wearing during one of the offenses. Acosta also met with the girls’ grandmother.
11
Ultimately Acosta presented the case to the District Attorney’s Office and filed a
warrant for Dolan’s arrest for aggravated sexual assault of a child. According to
Acosta, in her experience investigating crimes against children, children are “not
very good with dates[,]” and adults are “[n]ot the best with them either.” Acosta also
explained that “[d]isclosure is a process, so it can take more than one time for
[children] to remember different things or more details or be able to describe more
details.”
Testimony of SANE
The SANE testified that she examined N.G. and A.S. at Children’s Safe
Harbor on October 6, 2015. The SANE testified that her notes for the history
provided by N.G. state that N.G. reported that “Uncle Bear, he touches down
there[,]” but the SANE also clarified in her notes that N.G. had difficulty with
pronunciation and pronounced the letter “P” as the letter “B[.]” According to the
SANE, N.G. indicated that there had been touching to her genitalia. The SANE
concluded that because N.G. was unable to clarify the type of touching, the SANE
could not determine whether there had been penetration. According to the SANE,
no genital exam was conducted because N.G. would not remove her clothing, and
no evidence would have been collected because the reported touching was outside
the 96-hour window prior to the date she examined N.G.
12
As to the SANE’s examination of A.S., the SANE testified that her notes
stated that A.S. reported to her that “My Uncle Peter, he pokes me in my middle part
with his finger . . . He did it when I was in the car, he did it when I was at my
grandmother’s living room. She was washing dishes. It hurt when he did it. He did
it three times. One time I was at Walmart in the bathroom. He just pulled down my
pants, and he just poked me[.]” The SANE testified that A.S. was unable to give her
a date of the assault, but that no evidence was collected because it had been more
than 96 hours since the assault had occurred. According to the SANE, during her
genital assessment of A.S. she found no injuries, which is common and consistent
with the type of touching reported by A.S. The SANE testified that she determined
that penetration to the female sexual organ had occurred with A.S., and that the
SANE based that determination on A.S.’s choice of words and where A.S. identified
on her genitalia touching occurred when the SANE was doing the genital
assessment.
Testimony of Children’s Safe Harbor Therapist
Teresa Swain, a bilingual staff therapist for Children’s Safe Harbor testified
that N.G. and A.S. began counseling sessions at Children’s Safe Harbor in October
of 2015. According to Swain, N.G. did not graduate from the counseling program at
Children’s Safe Harbor because N.G. was unable to attend due to family
13
transportation issues, but A.S. graduated and was discharged. Swain testified that,
according to treatment notes, N.G. reported the touching by Peter at a counseling
session to her initial therapist, and at another subsequent session with Swain.
According to Swain, in her treatment of A.S., she helped A.S. with symptoms such
as difficulty in school, extreme sadness, trouble sleeping, heightened anxiety, and
stomachaches, and that these are symptoms that are associated or heightened in cases
of children who have experienced trauma. Swain testified that A.S. indicated to her
that she was in fear of Dolan but had mixed emotions because she was angry at
Dolan about the touching but still loved him. Swain testified that A.S. felt a lot of
shame and guilt and reported to Swain that she had difficulty sleeping and would
wake up thinking about the alleged abuse. Swain testified that A.S. did not want to
talk about the alleged abuse because she was embarrassed and Swain believed A.S.
felt she was betraying Dolan. According to Swain, at one counseling session A.S.
explained that she did not feel safe because she had been tricked by Dolan and she
was frightened that he might have access to her again. A.S. also reported to Swain
that Dolan told her not to tell about the touching and that it was their secret. Swain
testified that her treatment notes indicated that A.S. identified as one of the scariest
moments of the alleged sexual abuse the instance when she was sitting in the back
14
seat of a car with Dolan and he put a blanket over them and digitally penetrated her
vagina while two female relatives were in the front seat.
Defense Motion for Directed Verdict
After the State rested, the defense made a motion for directed verdict which
was overruled by the trial court. The defense called no witnesses.
Appellate Issues
In his first appellate issue, Dolan challenges the sufficiency of the evidence
supporting his convictions. In issue two, he argues the trial court erred in designating
Prihoda as the proper outcry witness for A.S. and Rupert as the proper outcry witness
for N.G. In issue three, Dolan contends the trial court committed harmful error by
allowing leading questions and prejudicial testimony over trial counsel’s objections.
Sufficiency of the Evidence
In his first issue, Dolan challenges the legal and factual sufficiency of the
evidence supporting his convictions and asserts that the trial court should have
granted Dolan’s motion for directed verdict. Specifically, Dolan argues that the State
failed to establish (1) when the alleged Walmart offense involving A.S. occurred,
(2) that N.G. was at Mo-Mo’s house on or about December 30, 2014, and (3) a time
frame or location for the extraneous offense against A.S. that allegedly occurred in
the back seat of a vehicle. Additionally, Dolan asserts that A.S.’s and N.G.’s
15
testimony and allegations are “quite simply too fantastical for a reasonable juror to
believe.” According to Dolan, the State also failed to prove that the touch and
penetration was by Dolan and not by N.G.’s three-year-old playmate or N.G. herself.
A person commits the offense of aggravated sexual assault of a child younger
than fourteen years old if he intentionally or knowingly causes the penetration of the
sexual organ of the child by any means. See Tex. Penal Code Ann. § 22.021(a)(1)(B),
(2)(B).7 In reviewing the sufficiency of the evidence to determine whether the State
proved the elements of the offense beyond a reasonable doubt, we apply the Jackson
v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App.
2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under that standard, a
reviewing court must consider all the evidence in the light most favorable to the
verdict and in doing so determine whether a rational justification exists for the jury’s
finding of guilt beyond a reasonable doubt. Id. at 902; see also Jackson, 443 U.S. at
319. As the trier of fact, the jury is the sole judge of the weight and credibility of the
witnesses’ testimony and on appeal we must give deference to the jury’s
determinations. Brooks, 323 S.W.3d at 899, 905-06. If the record contains
conflicting inferences, we must presume the jury resolved such facts in favor of the
7
Additional acts constitute aggravated sexual assault, but for brevity, we only
refer to the statutory act charged in this case.
16
verdict and defer to that resolution. Id. at 899 n.13 (citing Jackson, 443 U.S. at 319).
On appeal, we serve only to ensure the jury reached a rational verdict, and we may
not substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556,
562 (Tex. Crim. App. 2000). In our review, we consider both direct and
circumstantial evidence and all reasonable inferences that may be drawn from the
evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
We first address Dolan’s arguments that the State presented no evidence as to
when the Walmart offense occurred, and offered no evidence “that N.G. was visiting
or staying at Mo-Mo’s house” around December 30, 2014 when the offense in the
“green room” allegedly occurred. The indictments for such offenses alleged that the
incidents occurred “on or about” two specific dates in December 2014, occurring
prior to the presentment of the indictment. “It is well settled that the ‘on or about’
language of an indictment allows the State to prove a date other than the one alleged
in the indictment as long as the date is anterior to the presentment of the indictment
and within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256
(Tex. Crim. App. 1997). In this case, the testimony established that the incidents of
abuse at the Walmart and in the “green room” occurred anterior to the indictment,
and there is no statute of limitations for the offense of aggravated sexual assault of
17
a child. See Tex. Code Crim. Proc. Ann. art. 12.01 (West Supp. 2017). As for
Dolan’s argument that the State failed to prove the time frame for the extraneous
offense in the car, Dolan was not being tried for that offense and the jury could
decide whether the testimony regarding the extraneous offense was credible.
The jury heard Kari Prihoda, an outcry witness for A.S., testify that when she
interviewed A.S., A.S. reported that Dolan on three different occasions had poked
her “in a little hole” in her “middle part[,]” which her mother called the vagina, and
that it hurt. The jury heard Prihoda’s testimony regarding the details of the offenses
(such as location, time frame, who was nearby, what A.S. was wearing, and Dolan’s
actions) as reported to her by A.S., and the jury heard the details regarding the
offenses against N.G. during N.G.’s own testimony at trial.
The jury also heard Ilda Rupert, an outcry witness for N.G., testify that when
she met with N.G., N.G. reported to her that Dolan had touched her under her clothes
and inside her private part when they were at “Mo-Mo’s house in the green room.”
The jury heard Rupert’s testimony regarding the details of the offense against N.G.
(such as location, time frame, who was nearby, what N.G. was wearing, and Dolan’s
actions) as stated by N.G., and the jury heard the details regarding the offense against
A.S. during A.S.’s own testimony at trial. The jury also heard the testimony of the
18
therapist who treated the girls after the offenses, the testimony of the SANE assigned
to the case, and the testimony of the girls’ mothers.
The testimony of a child victim, standing alone and without corroboration, is
sufficient to support a conviction for aggravated sexual assault of a child. See Tex.
Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (West Supp. 2017) (a child’s testimony
alone is sufficient to support a conviction for aggravated assault when the child is
under the age of seventeen at the time of the alleged offense); Tear v. State, 74
S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d).
The jury, as the judge of the facts and credibility of the witnesses, could
choose to believe or not believe the witnesses, or any portion of their testimony,
despite contradictory evidence. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.
App. 1986) (citing Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974)).
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that a rational jury could find, beyond a reasonable doubt, that Dolan committed the
aggravated sexual assaults of A.S. and N.G. as alleged in the indictments. We
conclude that the evidence is legally and factually sufficient to support the jury’s
verdict, and we overrule Dolan’s first issue.
19
Outcry Witnesses
In his second issue, Dolan argues that the trial court’s designation of Prihoda
as the proper outcry witness for A.S. and Rupert as the proper outcry witness for
N.G. violated the “first person” provisions of Article 38.072 of the Texas Code of
Criminal Procedure. Dolan contends that Article 38.072 “requires that the proffered
outcry testimony describe the offense ‘in a discernible manner[,]’” and that the
description of the girls’ outcries to their parents were “detailed and discernible
enough for them to call law enforcement and not only report but describe the nature
of the alleged sexual abuse.” According to Dolan, “the ‘first person’ provision
trumps the ‘best witness’ practice.”
Article 38.072 of the Texas Code of Criminal Procedure allows the admission
of a hearsay statement made to an outcry witness by certain abuse victims, including
child victims of sexual abuse younger than fourteen years of age. See Tex. Code
Crim. Proc. Ann. art. 38.072 (West Supp. 2017). In child sexual abuse cases,
designation of a person as an outcry witness allows the person to testify concerning
the child’s otherwise inadmissible hearsay or out-of-court statements describing the
abuse. See id. For the outcry statement to be admissible, the witness must be the first
adult to whom the child made a statement about the offense. See id., § 2; see Bays v.
State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013) (“outcry statute” contained in
20
article 38.072 “creates a hearsay exception for a child-complainant’s out-of-court
‘statements’ that ‘describe the alleged offense,’ so long as those statements were
made ‘to the first [adult] person . . . to whom the child . . . made a statement about
the offense’”) (quoting Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)-(3)); Lopez
v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (outcry witness is first person
over age of eighteen, other than defendant, to whom child spoke about the offense).
Although the outcry statute provides that the proper outcry witness is the
“first” adult to whom a child made a statement about the offense, the Court of
Criminal Appeals has interpreted that provision to mean the first adult “to whom the
child makes a statement that in some discernible manner describes the alleged
offense.” See Garcia v. State, 792 S.W.2d 88, 90-91 (Tex. Crim. App. 1990); see
also Michell v. State, 381 S.W.3d 554, 558 (Tex. App.—Eastland 2012, no pet.).
“[T]he statement 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
Michell, 381 S.W.3d at 558. If the initial statement to an adult conveyed nothing
more than a “general allusion” of abuse, then the recipient of a subsequent detailed
statement should be designated as the outcry witness, even though that person
technically was not the first adult to whom the child revealed the offense. See
Garcia, 792 S.W.2d at 91 (initial statement that “something had happened at home,
21
and that it had to do with child abuse[]” was “general allusion,” insufficient to
designate first adult as outcry witness); Thomas v. State, 309 S.W.3d 576, 579 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d) (trial court reasonably concluded that
child victim’s statements to her mother that only included statement that appellant
used his hands to touch her was insufficient to designate mother as outcry witness
because it did not include any specific details of the offense and was a “general
allusion” that failed to describe the alleged offense in a discernible manner for article
38.072 purposes); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet.
ref’d) (trial court could have reasonably determined that the child victim’s statement
to her mother that appellant “had touched her private parts” was insufficient to
designate the mother as outcry witness because the statement “was nothing more
than a general allusion that something in the area of sexual abuse was occurring and
not a clear description of the offense charged as required by article 38.072.”).
The trial court’s outcry witness determination and resulting admission of
hearsay testimony are reviewed under an abuse of discretion standard. Rodgers v.
State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref’d); Robinett v. State,
383 S.W.3d 758, 761 (Tex. App.—Amarillo 2012, no pet.) A trial court has broad
discretion in determining the admissibility of the outcry evidence, and its
determination as to the proper outcry witness will not be disturbed on appeal absent
22
a showing in the record that the trial court clearly abused its discretion. Garcia, 792
S.W.2d at 92. A trial court does not abuse its discretion if its decision is within the
zone of reasonable disagreement. See Walters v. State, 247 S.W.3d 204, 217 (Tex.
Crim. App. 2007).
Dolan cites generally to Reed v. State, 974 S.W.2d 838, 841 (Tex. App.—San
Antonio 1998, pet. ref’d), in support of his argument that courts generally favor the
parent as the first person to whom the child outcries about sexual abuse over post-
arrest child abuse experts who use procedures to elicit details not made in the original
outcry to the parents. Dolan’s reliance on Reed is misplaced. In Reed, the trial court
allowed the father of one of the child-victims to testify as the outcry witness. 974
S.W.2d at 839, 841-42. On appeal, the appellant argued that, although the outcry
was first made to the father, the child victims’ statements to the father were not
detailed enough and that the CPS worker who interviewed the child victims was the
proper outcry witness. Id. at 841. The San Antonio Court of Appeals concluded the
trial court did not abuse its discretion in allowing the father to testify as the outcry
witness pursuant to article 38.072. Id. at 842. In so reasoning, the San Antonio Court
of Appeals explained that because the father, who was the first adult the children
told about the abuse, was told by the victims how, when, and where appellant had
touched them, the statements were more than general allegations of abuse and the
23
father was a proper outcry witness. Id. Reed does not support Dolan’s contention
that courts generally favor the parent as the first person to whom the child outcries
about sexual abuse over post-arrest child abuse experts who use procedures to elicit
details not made in the original outcry to the parents. In fact, the San Antonio Court
of Appeals reiterated that the proper outcry witness under article 38.072,
“[a]ccording to the court of criminal appeals, . . . is the first adult to whom the child
makes a statement that ‘in some discernible manner describes the alleged offense.’”
Id. at 841 (quoting Garcia, 792 S.W.2d at 91).
In the present case, the trial court held a hearing outside the presence of the
jury to determine proper outcry witnesses for A.S. and N.G. See Tex. Code Crim.
Proc. Ann. art. 38.072, § 2(b)(2). We first address Dolan’s argument that the trial
court erred in designating Kari Prihoda, and not J.L. (A.S.’s mother), as the outcry
witness for A.S. At the hearing, J.L. testified that when A.S. was about seven years
old, J.L.’s sister (M.L.) messaged her saying that she had given her daughter, N.G.,
a bath and that N.G. told M.L. that her Uncle Peter had “touched her down there[.]”
According to J.L., M.L. came over to talk about it and A.S. overheard M.L. tell J.L.
what N.G. had told her. N.G. walked into the room and heard the conversation and
she said that Uncle Peter touches her down there, pointed to her vagina, but gave no
details. J.L. testified that then A.S. “turned and she looked at [J.L.] and said, yes, it’s
24
true that her Uncle Peter ‘touches us down there.’” According to J.L., A.S. said it
happened three times and A.S. only discussed the three times generally. J.L. testified
that A.S. told her that one of the times was on Christmas at her grandmother’s house
in the living room, she was sitting down with her Uncle Peter on a couch with a
blanket over them, everyone was outside drinking, and Peter touched her vagina over
her pants. According to J.L., A.S. did not describe who else was in the living room
or what she was wearing. J.L. testified that A.S. said there was another time when
Peter took A.S. and N.G. to get ice cream at Walmart, they all went into the family
restroom together, N.G.’s pants were down to use the restroom, Peter touched N.G.
on her vagina in front of A.S., N.G. said, “Ouch[,]” and Peter touched A.S.
According to J.L., A.S. told her about a third time when she was being dropped off
back at home from being with her grandmother, Peter was sitting next to her in the
back seat of a car, P.J. was also in the back seat, and Peter touched A.S. in her private
part. J.L. testified she did not talk to A.S. again of other details about what happened
because J.L. was told to let A.S. tell the detective everything. According to J.L., A.S.
told her about the three occasions in one discussion, the conversation lasted a few
minutes, J.L. stopped asking A.S. questions because J.L. “didn’t want to go into too
much[,]” and J.L. did not feel like A.S. told her everything that had happened. J.L.
testified that, in regards to the Walmart incident, A.S. did not describe how Peter
25
touched her in the restroom, did not describe what either girl was wearing, did not
describe what time of day it was, and did not mention whether the girls had left the
restroom before they went back in with Peter. According to J.L., out of the three
instances, the only one in which A.S. mentioned what Peter touched her with was
the Christmas incident when she said he touched her with his hand, but she did not
say whether or not it was one finger or more, and did not talk about penetration.
Kari Prihoda testified that she met with A.S. and A.S. gave her a very detailed
account of what happened. According to Prihoda, A.S. said her “Tio Peter” had been
poking her in her “middle part[,]” which A.S.’s mom calls a vagina, and that it
happened multiple times. A.S. told Prihoda that the last time he had touched her was
“last Christmas” when they were sitting on the couch watching the television show
“Good Luck Charlie[]” at her grandmother’s house and Peter used a green and white
polka-dot blanket to cover them. A.S. told Prihoda that Peter poked her through her
underwear with his finger in her “middle part” and was touching skin and “went all
the way in there[,]” and A.S. demonstrated with her index finger how he poked her,
indicated that he poked her in a hole, and told Prihoda that it hurt. A.S. told Prihoda
that Peter did not say anything. A.S. told Prihoda she was wearing a My Little Pony
shirt, black pants, and underwear that had a panda on them. A.S. told her that Peter
then went into the room where Aunt Della sleeps. As for the Walmart incident, A.S.
26
told Prihoda that they had gone to get ice cream and that the touching happened not
in a family restroom but a girl’s restroom with stalls. A.S. reported to Prihoda that
after A.S. and N.G. used the restroom, Peter instructed them to go back inside the
restroom, he and A.S. were standing, he first pulled down A.S.’s shorts and
underwear and then N.G.’s pants and underwear, and then he poked them. A.S. told
Prihoda that A.S. was wearing shorts with flowers on them and underwear with stars
on them, that N.G. was wearing black pants, a panda shirt, and underwear with
rainbows on them, and that Peter was wearing a grey jacket and black pants. A.S.
explained to Prihoda that Peter poked her in a hole with his finger. According to
Prihoda, A.S. said that N.G. had been smiling before he poked N.G. but after she
saw Peter poke N.G., N.G. made a “mean face[]” and said “ouch[]” and “stop.” As
to the incident in the car, A.S. told Prihoda that A.S. was leaving her grandmother’s
house and was sitting in the back seat with Peter and P.J. A.S. told Prihoda that
A.S.’s grandmother and Aunt Della were sitting in the front. A.S. said that P.J. was
sleeping, and that while the car was in motion, Peter poked A.S. with his finger on
top of the skin “in there again[,]” and then he said “done.” A.S. told Prihoda that on
the day of the car incident A.S. was wearing shorts with sparkles and a shirt with a
cat and a little boy on it. A.S. told Prihoda that no one else besides Peter had touched
her and that on one occasion, when she was in the room with him and she was
27
drawing a ladybug, he told her that he was the only one that could touch her. Prihoda
testified that when she asked A.S. if there was anyone she did not feel safe around,
A.S. answered, “just him.”
On this record, we cannot say that the trial court abused its discretion in
concluding that Prihoda, rather than J.L., was the first adult to whom A.S. described
the offenses in a discernible manner. Although A.S. told J.L. that Peter had touched
her vagina on three occasions, J.L. testified at the hearing that A.S. only told her
what Peter touched her with for one of the occasions, A.S. did not give details about
that touching, and that A.S. did not talk about penetration. The charges against Dolan
as to A.S. alleged penetration and the statements made by A.S. to Prihoda indicated
penetration for the charged offenses. Also, J.L. acknowledged at the hearing that she
intentionally did not ask A.S. questions about the details because she was told to let
A.S. tell the detective everything. Therefore, it would not be outside the zone of
reasonable disagreement for the trial court to find A.S.’s statements to J.L. were
merely general allusions that something in the area of child abuse was going on. See
Garcia, 792 S.W.2d at 91. The trial court could have reasonably concluded that
Prihoda was a proper outcry witness as to A.S. for the charged offense because
A.S.’s statements to Prihoda described the details of how, when, and where the abuse
occurred. See, e.g., Michell, 381 S.W.3d at 559-60 (child’s statements to police that
28
her “mom made her put her hands up in her,” “her dad put his middle part up in
her[,]” her parents “touched her in her private areas” and that her “dad put[] his male
parts inside of her[]” were general allusions to sexual abuses whereas child’s
statement to forensic interviewer provided the “how, when, and where” of the abuse;
thus, the trial court did not abuse its discretion designating forensic interviewer as
outcry witness); Sims, 12 S.W.3d at 500 (counselor proper outcry witness where
complainant told mother that defendant “had touched her private parts[]” but later
told counselor how, when, and where appellant had touched her).
We next address Dolan’s argument that the trial court erred in designating Ilda
Rupert, and not M.L. (N.G.’s mother), as the outcry witness for N.G. At the hearing
M.L. testified that she was giving N.G. a bath and “washing her body down there,
and [N.G.] was saying that it tickled or that it seemed like it tickled.” M.L. testified
she asked N.G., “Does anybody play with you down there?” and N.G. responded,
“Yes.” According to M.L. when she asked “Who?[,]” N.G. said, “Pear[,]” which is
how N.G. refers to Peter. M.L. testified she was shocked and asked, “Uncle Peter?”
and N.G. responded, “Yes.” According to M.L., N.G. told her that Peter “plays with
her down there,” and pointed to her private area, which she calls her “[k]a-ka.” M.L.
testified that she intentionally did not ask N.G. any more questions because M.L.
29
“wanted someone else to take over that[,]” and that N.G. did not ever indicate where
N.G. was when the touching occurred.
Ilda Rupert testified at the hearing that she met with N.G. on January 30, 2017,
when N.G. was four years old. N.G. told Rupert that Dolan touched N.G. with his
hand, N.G. pointed to her vaginal area to show where he touched her, N.G. indicated
with her right hand with a back-and-forth motion how Dolan touched N.G., N.G.
explained it happened at Mo-Mo’s house in the green room, and stated that she was
in the bed with Dolan and P.J. and that the lights were off. N.G. drew how they were
situated on the bed and the drawing was admitted into evidence. Rupert testified that,
to her knowledge, the discussion she had with N.G. was the first time N.G. had ever
gone into that much detail about what had happened and Rupert was the first person
to whom N.G. made a detailed outcry statement.
Considering the testimony at the hearing, we cannot say that the trial court
abused its discretion in finding that Rupert, rather than M.L., was the first adult to
whom N.G. described the offenses in a discernible manner. Additionally, it would
not be outside the zone of reasonable disagreement for the trial court to find N.G.’s
statements to M.L. were merely general allusion[s] that something in the area of
child abuse was going on. See Garcia, 792 S.W.2d at 91. The trial court could have
reasonably concluded that Rupert was a proper outcry witness as to N.G. for the
30
charged offense because N.G.’s statements to Rupert described in sufficient detail
how, when, and where the abuse occurred. See, e.g., Michell, 381 S.W.3d at 559-60;
Sims, 12 S.W.3d at 500. Issue two is overruled.
Alleged Impermissible Evidence
In his third issue, Dolan argues that “[b]y allowing the State to continuously
ask the same question, or to ask additional leading questions, the trial court
improperly allowed the State to question N.G. until it got the answer it wanted.”
According to Dolan, he was harmed by the trial court’s refusal to sustain Dolan’s
objection to the impermissible questioning. Dolan argues that “No reasonable jury
should have convicted appellant on the testimony and evidence presented in court;
had the trial court properly sustained the repeated objections to this testimony, a
reasonable jury would have had an even harder time finding appellant guilty.”
The line of questioning and testimony on direct examination of N.G. that
Dolan complains of is as follows:
[Prosecutor:] All right. Now, [N.G.] - -
[N.G.:] What?
[Prosecutor:] - - has anyone ever done anything to your ka-ka
that you didn’t like?
[N.G.:] No.
31
[Prosecutor:] Okay. Has anyone ever touched you somewhere on
your body where you didn’t want them to touch you?
[N.G.:] No.
[Prosecutor:] If I show you State’s 64 - -
[N.G.:] Yeah.
[Prosecutor:] - - and that’s that picture we just looked at - -
[N.G.:] Uh-huh.
[Prosecutor:] - - and ask you has anyone ever touched your ka-
ka?
[N.G.:] No.
[Prosecutor:] Okay. Let’s talk a little bit about your family.
....
[Prosecutor:] All right. So do you remember if anyone has
touched your ka-ka and you did not want them to?
[N.G.:] No.
[Defense counsel:] Objection, Your Honor, it’s been asked and
answered several times.
THE COURT: Overruled at this point.
[Defense counsel:] And it’s leading, Your Honor. I’m sorry.
THE COURT: Overruled. You may answer the question.
[Prosecutor:] Do you remember coming to my office?
32
[N.G.:] Yeah.
[Prosecutor:] And do you remember talking to me about some
stuff?
[N.G.:] Uh-huh.
[Prosecutor:] Is that a “yes”?
[N.G.:] Yeah.
[Prosecutor:] What did we talk about?
[N.G.:] [Inaudible.]
[Prosecutor:] I’m sorry?
[N.G.:] [Inaudible.]
[Prosecutor:] Can I come closer, Judge?
THE COURT: Yes.
[Prosecutor:] What did you say?
[N.G.:] I just didn’t remember.
[Prosecutor:] “I just didn’t remember” or “I just remembered”?
[N.G.:] I don’t remember.
[Prosecutor:] You don’t remember. Okay. You didn’t remember.
All right. Did you ever tell me - - do you ever remember telling
me - -
[Defense counsel:] Objection, Your Honor, this is leading.
[Prosecutor:] Your Honor, I would ask - -
33
THE COURT: Overruled at this time. Finish the question.
[Prosecutor:] Do you remember telling me that someone had
touched your ka-ka?
[Defense counsel:] Objection - -
[N.G.:] Yes.
[Defense counsel:] - - Your Honor, it’s leading.
THE COURT: Overruled, Counsel.
[Prosecutor:] What was your answer?
[N.G.:] Yes.
[Prosecutor:] And who did you tell me had touched your ka-ka?
[N.G.:] My Uncle Peter.
N.G. further testified that Dolan was in the same room with N.G. and her cousin P.J.
when he touched the “[i]nside” of N.G.’s “ka-ka” with his finger in the green room
at her grandmother’s house, and N.G. demonstrated for the jury by making a back-
and-forth motion with her hand how Dolan had touched her.
“A leading question is one which suggests the desired answer or puts words
into the witness’s mouth to be echoed back.” Mega Child Care, Inc. v. Tex. Dep’t of
Protective & Regulatory Servs., 29 S.W.3d 303, 307 (Tex. App.—Houston [14th
Dist.] 2000, no pet.). “A question which calls for the answer yes or no is not therefore
necessarily leading; it must go further and suggest which of said answers is desired
34
or what answer is expected.” Hodges v. State, 299 S.W. 907, 908 (Tex. Crim. App.
1927); accord Newsome v. State, 829 S.W.2d 260, 269 (Tex. App.—Dallas 1992, no
pet.) (“The mere fact that a question may be answered by a simple ‘yes’ or ‘no’ will
not render it an impermissibly leading question.”).
The Rules of Evidence discourage, but do not forbid, the use of leading
questions. See Tex. R. Evid. 611(c). Leading questions “should not be used on direct
examination except as necessary to develop the witness’s testimony.” Id.
Nevertheless, a trial court may exercise its “sound discretion” to permit leading
questions. See Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000) (explaining
that the evidentiary rule “clearly contemplates that some leading questions are
acceptable at the trial court’s discretion”); Padilla v. State, 278 S.W.3d 98, 106 (Tex.
App.—Texarkana 2009, pet. ref’d). “Our evidentiary rules also bestow the trial court
with wide latitude in controlling the manner and mode of interrogating witnesses so
as to (1) make the interrogation and presentation effective for the ascertainment of
the truth, (2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.” Padilla, 278 S.W.3d at 106 (citing Tex. R.
Evid. 611(a)). “In cases dealing with child witnesses, the rule against leading
questions is somewhat relaxed.” Clark v. State, 952 S.W.2d 882, 886 (Tex. App.—
Beaumont 1997, no pet.) (citing Moon v. State, 856 S.W.2d 276, 279 (Tex. App.—
35
Fort Worth 1993, pet. ref’d)); see also Padilla, 278 S.W.3d at 106. “The asking of
leading questions is seldom a ground for reversal (especially where a child is
testifying).” Uhl v. State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972).
N.G. was five years old at the time of her testimony and was testifying to an
event that she had witnessed when she was younger. According to the prosecutor’s
statement on the record, N.G. was to begin her testimony earlier that morning but
the State had to call a different witness instead because N.G. “would not come in the
courtroom.” During her testimony, the prosecutor asked N.G. what was wrong and
N.G. answered “I want my Tia.” The trial court then offered N.G. water and asked
her to take deep breaths. Defense counsel offered that “a short break would be good
for [N.G.]” before starting cross-examination and the prosecutor disagreed, stating
that if N.G. left the courtroom “she may not come in the courtroom . . . I know she’s
upset[,] but I would ask that we persevere since we actually have her strong enough
to come in the courtroom at this moment.”
Even assuming without deciding that the questions by the prosecutor were
leading, the trial court here could have reasonably allowed the questioning after
considering the young age of the witness, her reluctance in testifying, her age at the
time of the alleged offense, and her difficulty in remembering the events to which
she was testifying. See Padilla, 278 S.W.3d at 106 (no abuse of discretion by trial
36
court in allowing leading questions where record reflected child victim was reluctant
to testify, was having trouble remembering events that had occurred over a year
before trial, and was overcome with emotion); Clark, 952 S.W.2d at 886 (no abuse
of discretion when State asked the “troubled” and “young” victim leading questions).
In regards to her inconsistent testimony, contradictions in the evidence are
reconciled by the jury and will not result in reversal so long as there is enough
credible testimony to support the verdict. See Bowden v. State, 628 S.W.2d 782, 784
(Tex. Crim. App. 1982). On this record, we cannot say the trial court abused its
discretion or acted outside the zone of reasonable disagreement by overruling
defense counsel’s objections and in allowing the prosecutor’s questioning of the
young witness. Issue three is overruled.
Having overruled all of Appellant’s issues, we affirm the trial court’s
judgments.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on March 21, 2018
Opinion Delivered July 25, 2018
Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
37