Paul Anthony Ojeda v. State ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00303-CR
NO. 03-17-00304-CR
Paul Anthony Ojeda, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 450TH JUDICIAL DISTRICT
NOS. D-1-DC-15-301771 & D-1-DC-15-301772
HONORABLE BRAD URRUTIA, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Paul Anthony Ojeda of one count of continuous sexual abuse of a
child under the age of fourteen, three counts of indecency with a child by sexual contact, and three
counts of aggravated sexual assault of a child arising from the sexual abuse of his two stepdaughters,
N.M. and N.M.M.A.1 See Tex. Penal Code §§ 21.02, 21.11(a)(1), 22.021(a)(2)(b). The jury
assessed sentences of 45 years’ imprisonment for the offense of continuous sexual abuse of a child,
20 years’ imprisonment for each of the offenses of indecency with a child, and 45 years’
imprisonment for each of the offenses of aggravated sexual assault of a child. The district court
rendered judgments of conviction consistent with the jury’s verdicts.
1
We refer to the child victims of these offenses by their initials. See Tex. R. App. P. 9.10(3).
On appeal, Ojeda contends that the court erred by admitting outcry testimony from
three witnesses, over his hearsay objection, allowing them to testify about statements that N.M. and
N.M.M.A. made to them about the offenses. See Tex. Code Crim. Proc. art. 38.072. We will affirm
the judgments of conviction.
BACKGROUND2
Paul Ojeda was convicted of seven felony offenses arising from his sexual abuse of
his two stepdaughters, N.M. and N.M.M.A., during the time that he was married to their mother.
Among other witnesses at trial, the jury heard testimony from three outcry witnesses: the victims’
mother and two forensic interviewers with the Center for Child Protection, Silvia Sanchez and
Jesena Magellan.
The district court held a hearing to determine whether these witnesses would be
permitted to testify as outcry witnesses at trial. During the hearing, Mother testified that one evening
in late April, her older daughter N.M.M.A. told her that on various occasions while Mother had been
working at night, Ojeda had touched N.M.M.A.’s and N.M.’s vaginas with his mouth, his private
part, and his fingers or hands. N.M.M.A. also told Mother that Ojeda had “touched her all over her
body.” N.M.M.A.’s allegations, according to Mother, involved only touching; N.M.M.A. did not
allege that Ojeda had penetrated her. Mother then spoke with her younger daughter N.M., who told
her “the same thing that [N.M.M.A.]” had reported. Mother denied asking N.M. if Ojeda had done
a specific thing to her. She testified that her daughters supplied the details.
2
The testimony of Mother, Silvia Sanchez, and Jesena Magallan is summarized from the
pretrial “outcry hearing.”
2
Silvia Sanchez testified that she was a bilingual forensic interviewer at the Center for
Child Protection. In an interview, N.M.M.A. told Sanchez—in addition to the allegations that Ojeda
had touched her vagina and performed oral sex on her—that when she was seven years old, Ojeda
had placed his finger inside her vagina and moved it from side to side. Sanchez also stated that
N.M.M.A. told her that on her eighth birthday, Ojeda put his male part inside of her vagina. Sanchez
also recalled N.M.M.A. telling her that when she was nine years old, right before her mother kicked
Ojeda out of the house permanently, Ojeda kissed and sucked on her breast, and he placed his finger
inside her vagina and moved it from side to side. Sanchez acknowledged that besides these specific
instances, N.M.M.A. told her that there were times when Ojeda performed oral sex on her “often,
like every day.”
Jesena Magallan testified that she was a senior forensic interviewer at the Center for
Child Protection. In an interview, N.M. told her that when she was eight years old, Ojeda sucked
on her vagina and that Ojeda put his “weewee”—which N.M. identified as the penis area using an
anatomically correct doll—inside her vagina and in her butt.
At the conclusion of the “outcry hearing,” the district court ruled that Mother was a
proper outcry witness as to the allegations that Ojeda put his mouth and his hands on the vaginas of
N.M.M.A. and N.M. The court ruled that Sanchez was the proper outcry witness as to the allegation
that Ojeda allegedly placed his finger in N.M.M.A.’s vagina and moved it around, that Ojeda
penetrated N.M.M.A. with his penis, and that Ojeda kissed and sucked her breast. The court further
ruled that Magallan was the proper outcry witness as to the allegation that Ojeda penetrated
N.M.’s anus.
3
The cases involving N.M.M.A. and N.M. were consolidated for trial. After trial, the
jury convicted Ojeda of continuous sexual abuse of a child under fourteen committed against
N.M.M.A., as well as three counts of indecency with a child by sexual contact and three counts of
aggravated sexual assault of a child committed against N.M. The jury assessed Ojeda’s sentences,
and the district court rendered judgment on the jury’s verdicts. Ojeda filed a motion for new trial,
which he later amended, and the amended motion for new trial was denied by operation of law. This
appeal followed.
DISCUSSION
No abuse of discretion in court’s admission of testimony from outcry witnesses
On appeal, Ojeda contends that the district court erred by admitting testimony from
the three outcry witnesses: Mother and the two forensic interviewers, Magallan and Sanchez. See
Tex. Code Crim. Proc. art. 38.072. Specifically, Ojeda contends that Mother, the initial outcry
witness, identified discernible offenses against N.M.M.A. and N.M.; thus, admission of Magallan’s
and Sanchez’s testimony about statements that his stepdaughters made to them about the sexual
abuse was unnecessary. We disagree.
Outcry statements are considered substantive evidence of the crime. Bays v. State,
396 S.W.3d 580, 581 n.1 (Tex. Crim. App. 2013) (citing Martinez v. State, 178 S.W.3d 806, 811
(Tex. Crim. App. 2005)). In the prosecution of certain sexual offenses against children, the outcry
statute provides a hearsay exception allowing evidence of a child’s first outcry of sexual abuse to an
adult. See Tex. Code Crim. Proc. art. 38.072; Bays, 396 S.W.3d at 581 n.1. The Texas Court of
Criminal Appeals has held that the outcry statute applies only to out-of-court statements that describe
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the alleged offense, made by the child to the first person who is 18 years of age or older—other
than the defendant—that in some discernible manner describe the alleged offense. Garcia v. State,
792 S.W.2d 88, 91 (Tex. Crim. App. 1990); see Tex. Code Crim. Proc. art. 38.072 § 2(a). Generally,
the proper outcry witness is the first adult to whom the alleged victim reports “how, when, and
where” the abuse occurred. Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008,
pet. ref’d); see also Garcia v. State, No. 03-14-00269-CR, 2016 Tex. App. LEXIS 4219, at *4 (Tex.
App.—Austin Apr. 22, 2016, pet. ref’d) (mem. op., not designated for publication).
The admissibility of outcry witness testimony is not person-specific, but
event-specific. Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d); see Garcia, 2016 Tex. App. LEXIS 4219, at *5. Accordingly, hearsay testimony from more
than one outcry witness may be admissible under article 38.072 if the witnesses testify about
different events. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Hernandez v. State,
973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref’d) (noting that if child described one type
of abuse to one witness and different type of abuse to second witness, second witness could testify
about that distinct offense); see also Garcia, 2016 Tex. App. LEXIS 4219, at *5 (noting that when
child has been victim of more than one instance of sexual assault, multiple outcry witnesses may
testify about separate acts of abuse committed by defendant against child).
We review a trial court’s admission of testimony from an outcry witness under an
abuse-of-discretion standard. See Garcia, 792 S.W.2d at 92; Rodgers v. State, 442 S.W.3d 547, 552
(Tex. App.—Dallas 2014, pet. ref’d). A trial court has broad discretion in determining who qualifies
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as a proper outcry witness, and we will uphold the trial court’s ruling if it is reasonably supported
by the record and within the zone of reasonable disagreement. See Garcia, 792 S.W.2d at 92.
Here, the record from the “outcry hearing” reflects that Mother was the first person
at least 18 years old, other than the defendant, whom N.M.M.A. told about Ojeda’s alleged abuse
of her involving oral sex and putting his hands on her vagina. Sanchez was the first person at least
18 years old, other than the defendant, whom N.M.M.A. told about the alleged abuse involving
Ojeda placing his finger in N.M.M.A.’s vagina and moving it around, Ojeda penetrating N.M.M.A.
with his penis, and Ojeda kissing and sucking on her breast. Further, N.M.M.A. told Sanchez about
the timeframe for Ojeda’s three specific acts of abuse. N.M. told Mother that she agreed with
N.M.M.A. that Ojeda touched N.M.’s vagina with his mouth and put his hands on her vagina.
Magallan was the first person at least 18 years old, other than the defendant, whom N.M. told about
the alleged abuse involving Ojeda penetrating N.M.’s anus. Each of these three adult women were
outcry witnesses to whom the hearsay exception in article 38.072 would apply because they received
reports about the “how, where, and when” of separate, discernible offenses reported to them by
N.M.M.A. and N.M. See Tex. Code Crim. Proc. art. 38.072 § 2(a); Hernandez, 973 S.W.2d at 789;
see also Garcia, 2016 Tex. App. LEXIS 4219, at *4; Mata v. State, No. 03-15-00220-CR, 2016 Tex.
App. LEXIS 2289, at *10–11 (Tex. App.—Austin Mar. 4, 2016, no pet.) (mem. op., not designated
for publication) (noting that victim’s statements to forensic interviewer, unlike victim’s statements
to her mother, provided time element for alleged abuse).
On this record, we cannot conclude that the district court abused its discretion by
admitting testimony from the forensic interviewers Magallan and Sanchez, in addition to Mother’s
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testimony, as outcry witnesses under article 38.072 of the Code of Criminal Procedure. See Tex.
Code Crim. Proc. art. 38.072; Rodgers, 442 S.W.3d at 552 (rejecting defendant’s contention that
victim’s mother was only proper outcry witness and concluding that trial court did not abuse its
discretion by allowing forensic interviewer to testify as outcry witness); see also Mata, 2016 Tex.
App. LEXIS 2289, at *10–11 (same); Hernandez, 973 S.W.2d at 789 (concluding that trial court did
not abuse its discretion by allowing both victim’s mother and Child Protective Services worker to
testify as outcry witnesses). Accordingly, we overrule Ojeda’s issue on appeal.
CONCLUSION
We affirm the district court’s judgments of conviction.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: August 9, 2018
Do Not Publish
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