Casimiro Amador v. State ( 2020 )

Affirmed and Memorandum Opinion filed May 7, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00684-CR
CASIMIRO AMADOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 27th District Court
Bell County, Texas
Trial Court Cause No. 70199
MEMORANDUM OPINION
Appellant Casimiro Amador challenges his conviction for aggravated sexual
assault of a child in two issues.1 See Tex. Penal Code Ann. § 22.021. Appellant
argues in his first issue that the trial court abused its discretion when it allowed the
1
The Texas Supreme Court ordered the Third Court of Appeals to transfer this case to
our court. Under the Texas Rules of Appellate Procedure, “the court of appeals to which the
case is transferred must decide the case in accordance with the precedent of the transferor court
under principles of stare decisis if the transferee court’s decision otherwise would have been
inconsistent with the precedent of the transferor court.” Tex. R. App. P. 41.3.
wrong person to testify as the outcry witness. We overrule this issue because the
record establishes that the outcry witness who testified was the first adult to whom
the complainant revealed the details of the sexual assaults. In his second issue
appellant asserts that the trial court once again abused its discretion when it
allowed the outcry witness to testify that the complainant’s statements were
reliable and that she had no motivation to lie. We overrule this issue because
appellant failed to preserve it for appellate review. Having overruled appellant’s
issues on appeal, we affirm the trial court’s judgment.
BACKGROUND2
The complainant was eight years old when she was brought to the Child
Advocacy Center in Belton regarding a different investigation. While forensic
interviewer Tammy Bracewell was interviewing the complainant about the
unrelated case, the complainant spontaneously told Bracewell that appellant
sexually assaulted her numerous times starting when she was six years old. Along
with recounting in detail the various sexual assaults, the complainant told
Bracewell that the most recent incident had taken place about a week before the
interview, which occurred on June 6, 2012.
Appellant was charged with aggravated sexual assault of a child younger
than fourteen years of age that occurred on or about May 31, 2012. See Tex. Penal
Code § 22.021. The complainant testified during appellant’s trial and she gave
detailed testimony regarding appellant sexually assaulting her. Among other
things, she testified that the last incident occurred about a week before her
interview at the Child Advocacy Center.
Once the complainant’s testimony was completed, the trial court conducted
2
Because appellant has not challenged the sufficiency of the evidence supporting his
conviction, we include only those facts necessary to provide background for his issues on appeal.
2
an outcry witness hearing outside the presence of the jury. See Tex. Code Crim.
Proc. art. 38.072. Bracewell was the only witness who testified during the
hearing. At the end of Bracewell’s hearing testimony, appellant objected that there
was not “enough evidence to corroborate the statement that was known to her at
the time she took the statement” and also because “the statement wasn’t consistent
with any other evidence.” The trial court then found on the record that Bracewell
was the outcry witness and her testimony would be admitted as such. At that point,
appellant announced “concern” regarding the possibility that Bracewell would
testify that the complainant’s testimony was reliable or credible. Appellant
specifically told the court that he would not “want [Bracewell] to say that this child
is to be believed because the expert can’t testify to the ultimate issue.” The trial
judge responded that Bracewell was not going to testify to an ultimate issue, that
she was instead going to testify that the complainant’s “actions are consistent with
an eight year old in that same time and place in their lives.” Appellant made no
further argument at that point regarding Bracewell testifying as the outcry witness.
Bracewell then testified describing the complainant’s outcry regarding
appellant sexually assaulting her multiple times beginning when the complainant
was six years old. The following testimony then occurred:
Prosecutor: You had a lot of experience interviewing children of her
age?
Bracewell: Yes.
Prosecutor: And did you feel that her demeanor and behavior during
the interview was consistent with an eight year old in that
situation?
Bracewell: Yes.
Prosecutor: And consistent with a child who was making an outcry of
sexual abuse that had happened to her?
Bracewell: Yes.
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....
Prosecutor: Did she use child verbiage to describe the body parts or
what a more mature young person or adult might use?
Bracewell: She used what most would probably consider normal for
an eight year old.
....
Prosecutor: And you said those are consistent with an eight year old’s
typically - - vocabulary for those?
Bracewell: That’s not taught the correct - - for an eight year old
that’s not taught the correct verbiage, yes, that’s normal,
pretty typical.
Prosecutor: All right. Did she seem to have any kind of a motivation
for telling you these things?
Defense: Objection; calls for speculation, Judge.
The Court: I’ll allow the question.
Bracewell: Just that she had - - she had promised to tell me the truth.
And she - - we do that in the very beginning of the
interview where we establish that a child knows the
difference between the truth and a lie. And then they
promise to tell me the truth and I promise, in turn, to tell
them the truth with any questions that they ask. And that
is frequently a motivator. And studies have shown that
that increases the child’s internal willingness to want to
talk or to want to tell the truth. There’s the reason that
there’s an oath in the beginning of the statement. But
there was no apparent motivation other than I asked the
question, so she answered it.
Prosecutor: And you stated that you - - do you feel the statements are
reliable?
Bracewell: Yes.
At the conclusion of the evidence, the jury found appellant guilty of the
charged offense. The trial court ordered a presentence report to be completed.
Once the report was completed the trial court conducted the punishment phase of
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the trial where both the State and appellant presented witness testimony. Once the
testimony was complete, the trial court sentenced appellant to serve thirty years in
prison. This appeal followed.
ANALYSIS
I. The trial court did not abuse its discretion when it allowed Bracewell to
testify as the outcry witness in appellant’s trial.
Appellant argues in his first issue that the trial court abused its discretion
when it allowed Bracewell to testify as the outcry witness because, in appellant’s
view, Bracewell was not the first person eighteen years old or older to whom the
complainant made a statement “that in some discernible manner describes the
alleged offense.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). In
support of his argument, appellant points out the State’s notices of hearsay
statement of child abuse victim found in the Clerk’s Record. In those notices, the
State identified two other people, the complainant’s mother and grandmother, as
persons the complainant told about appellant sexually assaulting her about a year
before she made her outcry to Bracewell. Appellant also points out the State’s
comment during the pretrial motions hearing that the complainant “actually made
an outcry a year prior to her mother, then to her grandmother, but the full outcry
with the details where she wasn’t being judged and was being listened to openly
was to Ms. Tammy Bracewell at the CAC.”
The State responds that appellant did not make this objection to Bracewell
testifying as the outcry witness in the trial court, that he instead sought to prevent
the State from using the mother and grandmother as outcry witnesses.3 See Vennus
3
The State refers to the following objection by appellant’s attorney when the State asked
the complainant about mentioning appellant sexually assaulting her to her mother and
grandmother: “Objection, Judge. Now [the prosecutor is] trying to make these other two outcry
witnesses, and I object.”
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v. State, 282 S.W.3d 70, 73–74 (Tex. Crim. App. 2009) (holding appellant was
barred by invited-error doctrine, a form of estoppel, from raising complaint
concerning court’s denial of motion to suppress); Arroyo v. State, 117 S.W.3d 795,
798 (Tex. Crim. App. 2003) (stating that a party may be estopped from asserting a
claim inconsistent with that party’s prior conduct). In addition, the State argues
substantively that the trial court did not abuse its discretion because Bracewell was
the proper outcry witness. Assuming for purposes of appeal that appellant is not
estopped from making this argument on appeal, we agree with the State that the
trial court did not abuse its discretion when it allowed Bracewell to testify as the
outcry witness.
A. Standard of review and applicable law
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 Court of Criminal Appeals has
held that the outcry statute applies only to out-of-court statements made by the
child to the first person who is eighteen years of age or older—other than the
defendant—that in some discernible manner describes the alleged offense. Garcia,
792 S.W.2d at 91; see Tex. Code Crim. Proc. art. 38.072. 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
WL 1691218, at *1 (Tex. App.—Austin Apr. 22, 2016, pet. ref’d) (mem. op., not
designated for publication).
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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 WL 1691218, at *2. 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 as outcry witness about that distinct offense); see also Garcia, 2016
WL 1691218, at *2 (stating 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 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.
B. The trial court did not abuse its discretion because the record
supports the trial court’s decision to admit Bracewell’s testimony
as the outcry witness for the charged offense.
Appellant argues on appeal that Bracewell could not serve as the outcry
witness in this case because it was undisputed that the complainant told her mother
and grandmother about the sexual assaults about a year before she met with
Bracewell. The State responds that Bracewell was the proper outcry witness
because Bracewell was the first adult the complainant told the details of the sexual
assaults. While it is undisputed that the complainant mentioned the sexual assaults
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to her mother and grandmother, the record does not reveal what exactly the
complainant told them. Further, the complainant confirmed during her trial
testimony that Bracewell was the first person over the age of eighteen that she told
the details about appellant sexually assaulting her. Because the proper outcry
witness is the first adult to whom the alleged victim reports the how, when, and
where details of the abuse, we cannot conclude that, on this record, the trial court
abused its discretion when it allowed Bracewell to testify as the outcry witness.
Garcia, 792 S.W.2d at 92; see Ojeda v. State, Nos. 03-17-00303-CR, 03-17-
00304-CR, 2018 WL 3764231, at *3 (Tex. App.—Austin Aug. 9, 2018, no pet.)
(mem. op., not designated for publication) (affirming trial court’s decision to allow
three witnesses to testify as outcry witnesses because each was the first adult the
victims told the details “of separate, discernible offenses”).
In addition, the disclosure to the mother and grandmother occurred about a
year before the complainant’s meeting with Bracewell. According to the
complainant’s trial testimony, multiple sexual assaults occurred after that initial,
disregarded disclosure. Because the admissibility of outcry witness testimony is
not person-specific, but event-specific, we conclude that the trial court could also
have reasonably determined that Bracewell was the proper outcry witness on that
basis. Polk, 367 S.W.3d at 453; see Garcia, 2016 WL 1691218, at *2. We
overrule appellant’s first issue.
II. Appellant did not preserve his second issue for appellate review.
Appellant argues in his second issue that the trial court abused its discretion
when it overruled his objection to Bracewell’s testimony which, in his view,
improperly bolstered the complainant’s credibility. The State responds appellant
did not preserve this issue because he did not object on that basis in the trial court.
We agree with the State.
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Preservation of error is a systemic requirement on appeal and a reviewing
court should not address the merits of an issue that has not been preserved for
appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). To preserve
error for appellate review, the record must show that the complaint was made to
the trial court by a timely objection, and the issue on appeal must correspond to the
objection made at trial. Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002).
Bracewell had opined during the outcry witness hearing that she found the
complainant’s statements during her interview age appropriate, reliable, and
credible. At the end of the hearing, after the trial court had determined that
Bracewell would be allowed to testify as the outcry witness, appellant initially
objected that Bracewell was not qualified to render an opinion that the
complainant’s actions were consistent. Appellant’s attorney then stated that he
would not want Bracewell “to say that this child is to be believed because the
expert can’t testify to the ultimate issue, Judge. But even that, I’d ask her not to
even go as far as she said.” While the trial court responded Bracewell would not
testify to an ultimate issue, and that she would testify only that the complainant’s
actions were consistent with those of an eight-year old child, it did not rule on
appellant’s initial qualification objection, or on appellant’s expressed concern.
Appellant did not make any further objection or object to the trial court’s failure to
rule. See State v. Kaiser, 822 S.W.2d 697, 702 (Tex. App.—Fort Worth 1991, pet.
ref’d) (“[A] preliminary ruling on the admissibility of evidence pursuant to article
38.072 will not preserve error for appeal—there must be a timely, specific
objection proffered at trial.”).
When Bracewell testified during the trial that the complainant understood
the obligation to tell the truth and that Bracewell considered the complainant’s
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answers to her questions to be reliable, appellant objected only on the basis that the
question called for speculation by Bracewell. That is not however, the argument
appellant now makes in his second issue on appeal. Because appellant’s complaint
on appeal does not comport with his objection at trial, we conclude that he has not
preserved error. As a result, we overrule appellant’s second issue.
CONCLUSION
Having overruled appellant’s issues on appeal, we affirm the trial court’s
final judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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