Javier Solis v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00529-CR
JAVIER SOLIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Javier Solis appeals his conviction for indecency with a child by
contact. In two points, Solis argues that the trial court abused its discretion by
allowing two witnesses to testify as to what Daughter, the complainant in this
1
See Tex. R. App. P. 47.4.
case and Solis’s biological child, told them about Solis’s alleged inappropriate
conduct toward her. We will affirm.
II. BACKGROUND
After being urged by her niece to do so, Mother questioned Daughter
about whether Solis had ever been inappropriate in a sexual manner toward her.
Daughter began to cry and told Mother that Solis had “raped” and “molested” her.
Daughter also said that Solis had touched her “private areas.” According to
Mother, Daughter generally did not want to discuss the topic outside of these
comments, other than to confirm that Daughter would need to discuss the matter
with law enforcement.
Eventually, a child forensic interviewer for the Alliance for Children Child
Advocacy Center of Tarrant County interviewed Daughter. In the interview,
Daughter revealed in detail how Solis had molested her over a period of years,
between the ages of nine and thirteen. Daughter told Interviewer that Solis
would come to her bedroom and retrieve her on nights when Mother worked.
Solis would take her into his bedroom and perform varying indecent acts. By
Daughter’s account, sometimes Solis only put his hands under her nightshirt and
sometimes touched her breasts. Daughter said that at other times, Solis would
cause his penis to touch her vagina without penetrating her, but on other
occasions Solis “actually put his private part in [Daughter].”
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The State charged Solis with aggravated sexual assault of a child under
the age of fourteen and with indecency with a child by contact.2 Specifically to
the assault charge, the indictment alleged that Solis had knowingly and
intentionally “caused the sexual organ of [Daughter], a child younger than 14
years of age . . . to contact the sexual organ of [Solis].” As to the indecency
charge, the indictment alleged that Solis had intentionally and knowingly “with the
intent to arouse or gratify [his sexual desire] . . . engage[d] in sexual contact by
touching the breast of [Daughter], a child younger than 17 years.”
Prior to trial, the State notified Solis that it intended to introduce the
“outcry” testimonies of both Mother and Interviewer. In its notice concerning
Mother, the State informed Solis that, in summary, it intended to introduce
evidence that Daughter had told Mother that Solis had “raped her since she was
nine years old.” The State attached Mother’s handwritten statement to the
notice, wherein Mother stated that when she inquired about the abuse, Daughter
“began to cry and yell that her father had raped her since she was 9 years old.”
The written statement states that Daughter generally did not want to talk about
the abuse but that Daughter ultimately agreed that she would have to “tell
someone” like “the police.”
2
The State originally charged Solis with three counts of aggravated sexual
assault and one count of indecency. For reasons not discernable from the
record, the State waived two of the aggravated sexual assault charges.
3
In the State’s notice pertaining to Interviewer, the State informed Solis that
it intended to introduce Interviewer’s testimony concerning what Daughter told
her during the interview. The State wrote, “In summary, [Daughter] told
[Interviewer] that on several occasions [Solis] touched [her] on her female sexual
organ and breasts with his hand. In addition, [Solis] inserted both his finger and
his male sexual organ into the female sexual organ of [Daughter].”
Prior to either Mother’s or Interviewer’s testimony at trial, the trial court
conducted hearings to determine whether either witness fell within the statutory
mandates of the outcry-witness exception to hearsay. See Tex. Code Crim.
Proc. Ann. art. 38.072 (West Supp. 2013). At the hearing pertaining to Mother,
she testified that after being prompted by her niece, she had asked Daughter
about whether Solis had ever touched her inappropriately. Much like her written
statement, Mother testified that through tears and emotion, Daughter alleged that
Solis had “raped” her and “molested” her since she was nine. Daughter also said
that Solis “touched her in her private areas when [Mother] would go to work.”
Mother testified that Daughter did not reveal to her any details. The trial court
ruled that Mother’s testimony fell within the outcry-witness exception to hearsay
and that Mother would be allowed to testify. In the jury’s presence, Mother
testified that when Daughter revealed to her Solis’s behavior, Daughter was very
uncomfortable and upset and not forthcoming of any specific details. Mother
averred that Daughter only revealed to Mother that Solis had “raped,” “molested,”
and “touched” her.
4
Later during the trial, the trial court again held a hearing outside the jury’s
presence to determine whether Interviewer would be allowed to testify.
Interviewer stated that Daughter revealed in detail how Solis would take
Daughter from her bedroom at night when Mother was working. In the interview,
Daughter described how Solis removed some of her clothing at times, how he
would touch both her vagina and breasts, how he would cause his penis to push
up against her “front part,” and how, on more than one occasion, he tried to put
his penis “in [her] private part.” Daughter explained to Interviewer that as she
would resist, Solis would pull her toward him, “hug[ging] her real tight.” Solis
would also pin her to his bed by getting “on top of her and hold[ing] her hands.”
Citing hearsay and bolstering, Solis objected that Interviewer’s testimony
was a duplicate of Mother’s testimony, with the “possible exception of touching
the chest,” and that she should not be allowed to testify. The State argued that
Daughter’s statements made to both Mother and Interviewer formed a “rolling
outcry” whereby Daughter had simply revealed to Mother that she had been
raped, but revealed to Interviewer in “a lot more detail, [and with] a lot more
allegations as to what” happened. The trial court ruled that Interviewer could
testify. In the presence of the jury, Interviewer testified to the same facts she
testified to during the outcry-witness hearing.
Daughter testified at trial as well. Daughter averred that when she was
nine, Solis began to retrieve her from a bedroom after Mother had gone to work.
Daughter said that Solis would “carry” her to her parents’ bedroom and lay her
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down next to him on his bed. He would remove some of her clothing and begin
to touch her “breast” and “vagina.” Daughter said that she was scared to tell
anyone what was occurring, even though it happened frequently, “like once or
twice a month.” According to Daughter, as she got older, the molestation
progressed. By Daughter’s account, Solis would routinely begin by touching
either her vagina or her breasts, but the abuse progressed to where he would
digitally penetrate her vagina, and eventually he persistently attempted to
penetrate her vagina with his penis. Daughter testified that Solis did in fact
eventually penetrate her “once” and that she pushed him away because it “hurt.”
Solis also took the stand at trial and testified that he believed that Daughter
made up these accusations because she did not like his current wife. He said
that he loved Daughter and that she had visited him in the hospital and had been
loving toward him.
The jury returned a verdict of guilty as to the indecency charge but a
verdict of not guilty to the aggravated sexual assault charge. The jury assessed
punishment at ten years’ incarceration and a $3,600 fine. The trial court
sentenced Solis accordingly and this appeal followed.
III. DISCUSSION
A. Mother’s Testimony
In his first point, Solis argues that the trial court abused its discretion by
allowing Mother to testify to what Daughter had told her when Mother inquired of
Daughter whether Solis had been inappropriate to her. Specifically, Solis argues
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that because Mother’s niece was over the age of eighteen at the time the niece
encouraged Mother to question Daughter, the niece was the proper outcry
witness. Alternatively, Solis argues that the information that Mother testified to
lacked the necessary specificity to satisfy the edicts of article 38.072 and that
Interviewer is “the proper outcry witness in this case.”
The State counters that there is no evidence in the record to support that
Daughter revealed any information to the niece about Solis. The State further
argues that Mother specifically testified to the elements of the indecency charge,
that Interviewer testified specifically to the aggravated sexual assault charge, and
that thus, the trial court did not abuse its discretion by allowing both outcry
witnesses to testify. We conclude that the trial court abused its discretion by
allowing Mother to testify because by Mother’s testimony, Daughter did not
reveal to her any specificity regarding either of the State’s charges.
We review a trial court’s decision to admit an outcry statement under an
abuse of discretion standard. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.
App. 1990); see Martinez v. State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005)
(referring to article 38.072 as “a rule of admissibility of hearsay evidence” and
describing its purpose). We will uphold the trial court’s ruling if it is within the
zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542
(Tex. Crim. App. 2000); Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref’d). But because the trial court has no
discretion in determining the applicable law, the trial court abuses its discretion
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when it fails to analyze the law correctly and apply it to the facts of the case.
State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).
Hearsay is not admissible except as provided by statute or by the rules of
evidence. See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).
Article 38.072 establishes an exception to the hearsay rule, applicable in
proceedings for prosecution of certain listed offenses, for statements made by a
child or disabled victim “to the first person, 18 years of age or older, other than
the defendant, to whom the [victim] . . . made a statement about the offense.”
Tex. Code Crim. Proc. Ann. art. 38.072 § 2(a)(3) (West Supp. 2013). To be
admissible under article 38.072, outcry testimony must be elicited from the first
adult to whom the outcry is made. Lopez v. State, 343 S.W.3d 137, 140 (Tex.
Crim. App. 2011). Admissible outcry witness testimony is not person-specific,
but event-specific. Id.; West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort
Worth 2003, pet. ref’d). And article 38.072 requires more than “a general allusion
that something in the area of child abuse was going on.” Garcia, 792 S.W.2d at
91.
To be a proper outcry statement, the child’s statement to the witness must
describe the alleged offense, or an element of the offense, in some discernible
manner and must be more than a general allusion to sexual abuse. See id. It
has been written that in order to describe the alleged offense, the statement must
contain the “how,” “when,” or “where” the offense allegedly transpired. See
Brown v. State, 381 S.W.3d 565, 572 (Tex. App.—Eastland 2012, no pet.) (citing
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Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet ref’d)) (“On the
other hand, the child’s statements to Burkett regarding how, when, and where
appellant touched her clearly satisfied the statutory requirements.”); see also
Sledge v. State, No. 03-03-00092-CR, 2004 WL 438958, at *1, 3 (Tex. App.—
Austin Mar. 11, 2004, no pet.) (mem. op., not designated for publication)
(“[T]estimony was relevant to the element of penetration required to be proved in
a charge of aggravated sexual assault.”).
In cases where a child has been victim to more than one instance of
sexual assault, it is possible to have more than one proper outcry witness.
Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d).
But before more than one outcry witness may testify, it must be determined that
each outcry concerned different events or offenses and was not simply a
repetition of the same event told to different individuals. Id.
An illumination of the type of detail necessary to describe an offense in a
discernable manner can be gleaned from Brown. 381 S.W.3d at 572. In Brown,
the court held that a child’s statements made to a 9-1-1 operator that “her mom
made her put her hands up in her” and that “her dad put his middle part up in her”
were no more than general allusions to sexual abuse. Id. at 572–73. The court
also held in Brown that statements made by the same child to a police officer that
her parents “touched her in her private areas” and that her “dad puts his male
parts inside of her” were no more than general allusions to sexual abuse. The
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court reasoned that these statements lacked the proper “how, when, and where”
details necessary to describe a charged offense.3 Id.
In this case, the State argues that Mother and Interviewer testified to
different events. Specifically, the State argues that Mother’s testimony went to
the indecency charge, whereas Interviewer’s testimony went to the aggravated
sexual assault charge. But the record belies this position. Mother’s testimony
does not contain any specific details at all that could form the “how,” “when,” or
“where” to a single element of either the indecency charge or the assault charge.
Rather, it was the statements by Daughter to Interviewer that described the
touching of Daughter’s breast, a detail necessary to describe the indictment’s
indecency charge. Daughter’s statement to Interviewer that Solis would cause
his penis to touch her vagina without his penis penetrating her was also
necessary to describe an element of the indictment’s aggravated sexual assault
charge. We hold that Daughter’s statements to Mother that Solis had “raped”
and “molested” her, as well as her statement that he touched her “private areas”
fail to describe either the offense of indecency or aggravated sexual assault, as
they are charged in the indictment, in any discernible manner, and the
statements were no more than general allusions to sexual abuse. See id.
3
The Brown court went on to hold that the forensic interviewer in that case
was the proper outcry witness, but the court did not describe the testimony in its
opinion, only revealing that the complainant in that case had described the
events “in graphic detail” to the interviewer. Brown, 381 S.W.3d at 572.
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Therefore, the trial court abused its discretion by allowing Mother to testify to
what Daughter told her. We sustain Solis’s first point.
B. Interviewer’s Testimony
In his second point, Solis argues that the trial court abused its discretion by
allowing Interviewer to testify to what Daughter told her in the forensic interview.
In short, Solis argues that “[Mother] was held to be the proper outcry witness and
she testified first, therefore the testimony of [Interviewer] was permitted in
violation of Article 38.072.” As discussed above, and as Solis concedes in his
first point, Interviewer, not Mother, was the proper outcry witness in this case
because Interviewer’s testimony described specific elements of each charged
offense. Sledge, No. 03-03-00092-CR, 2004 WL 438958, at *1, 3. Thus, the trial
court did not abuse its discretion by allowing Interviewer to testify. See Brown,
381 S.W.3d at 571–72 (holding that forensic interviewer who complainant
described events in detail to was proper outcry witness and not investigating
officer who complainant told that defendant had “touched her in her private
areas”). We overrule Solis’s second point.
C. Harmless Error
Having held that Interviewer was the proper outcry witness but that the trial
court erred by allowing Mother to testify, we must now determine whether the
erroneous admission of Mother’s hearsay testimony harmed Solis. See
Davidson v. State, 80 S.W.3d 132, 138 (Tex. App.—Texarkana 2002, pet. ref’d)
(conducting harm analysis after determining that trial court both erroneously
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admitted outcry-witness testimony and also properly admitted outcry-witness
testimony).
The erroneous admission of a hearsay statement constitutes non-
constitutional error that is subject to a harm analysis. See Tex. R. App. P.
44.2(b); see also Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998)).
Under rule 44.2(b), we disregard the error if it did not affect Solis’s
substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249,
259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). A
substantial right is affected when the error had a substantial and injurious effect
or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66
S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial
right if we have “fair assurance that the error did not influence the jury, or had but
a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);
Johnson, 967 S.W.2d at 417.
In making this determination, we review the record as a whole, including
any testimony or physical evidence admitted for the jury’s consideration, the
nature of the evidence supporting the verdict, and the character of the alleged
error and how it might be considered in connection with other evidence in the
case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also
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consider the jury instructions, the State’s theory and any defensive theories,
whether the State emphasized the error, closing arguments, and even voir dire, if
applicable. Id. at 355–56.
Here, Mother’s hearsay testimony was that Daughter stated that Solis had
“raped” and “molested” her and also that Solis had touched her “private areas.”
Daughter herself, however, gave detailed testimony concerning Solis’s indecency
and alleged sexual assault. She testified that Solis had continually carried her
from her and her sibling’s room when Mother was at work, removed portions of
her clothing, and touched her “vagina” and “breast.” Daughter testified that when
she resisted, Solis would restrain her. She also described in detail how Solis had
pressed his penis against her vagina, had attempted to penetrate her vagina with
his penis, had on one occasion penetrated her, and that it hurt. This testimony
was corroborated by Interviewer’s properly admitted outcry testimony.
We conclude that in the context of the entire case against Solis, the trial
court’s error in admitting Mother’s hearsay testimony did not have a substantial
or injurious effect on the jury’s verdict and did not affect Solis’s substantial rights.
See Chapman, 150 S.W.3d at 814–15 (holding improper admission of outcry
testimony was harmless where similar testimony was admitted through
complainant and pediatrician); see also West, 121 S.W.3d at 105 (holding that
error in admitting outcry testimony did not influence jury’s verdict or had but a
slight effect because complainant provided detailed testimony relating to
offense); Davidson, 80 S.W.3d at 138 (holding that erroneous admission of
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outcry witness testimony was harmless error where complainant’s testimony was
otherwise corroborated by properly admitted outcry testimony). Thus, we
disregard the error. See Tex. R. App. P. 44.2(b); see also King, 953 S.W.2d at
271.
IV. CONCLUSION
Having sustained Solis’s first point but found the trial court’s error
harmless, and having overruled his second point, we affirm the trial court’s
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 24, 2014
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