Gregorio Cruzsalgado v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-24-00072-CR
___________________________
GREGORIO CRUZSALGADO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 432nd District Court
Tarrant County, Texas
Trial Court No. 1811254
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Gregorio Cruzsalgado faced a seven-count indictment.1 A jury
found him guilty of count four, aggravated sexual assault of a child, see Tex. Penal
Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B), and count five, indecency with a child by
contact, see id. § 21.11(a)(1). The jury acquitted him of the five other counts.2
The jury then assessed a punishment of twenty-five years’ confinement for the
aggravated-sexual-assault-of-a-child offense and eight years’ confinement for the
indecency-with-a-child-by-contact offense. The trial court sentenced Cruzsalgado
accordingly and ordered the sentences to run consecutively.
The record contains separate judgments of conviction for counts four and five
and separate judgments of acquittals for counts one, two, three, six, and seven.
On appeal, in two points, Cruzsalgado argues that (1) Article 38.072 of the
Texas Code of Criminal Procedure is facially unconstitutional because it violates his
right to confront the witnesses against him and (2) the trial court designated the
1
We spell the appellant’s name as it appears in the indictment and in the seven
judgments. We note, however, that the appellant signed his notice of appeal
“Gregorio Salgado.” In other documents, appellant is identified as “Gregorio Cruz-
Salgado.”
2
The jury found Cruzsalgado not guilty of count one (continuous sexual abuse
of a child), id. § 21.02; count two (aggravated sexual assault of a child), id.
§ 22.021(a)(1)(B)(iii), (a)(2)(B); count three (aggravated sexual assault of a child), id.;
count six (indecency with a child by contact), id. § 21.11(a)(1); and count seven
(indecency with a child by contact), id.
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wrong person to testify as the outcry witness. Because existing case law disposes of
Cruzsalgado’s first point, we overrule it. And because the trial court’s outcry-witness
designation does not constitute an abuse of discretion, we overrule Cruzsalgado’s
second point. We affirm the trial court’s judgments for counts four and five.
II. BACKGROUND
The evidence showed that Cruzsalgado lived in the same household as the child
and committed sexual offenses against her. Cruzsalgado does not contest the
sufficiency of the evidence. Because the evidence is immaterial to Cruzsalgado’s first
point, we develop the evidence as necessary to address his second point.
III. DISCUSSION
A. Constitutionality of Article 38.072
In Cruzsalgado’s first point, he argues that Article 38.072 of the Texas Code of
Criminal Procedure is facially unconstitutional because it violates his right to confront
the witnesses against him. Within his brief, he acknowledges that the Texas Court of
Criminal Appeals has already ruled against him on this issue. See Buckley v. State,
786 S.W.2d 357, 357–58 (Tex. Crim. App. 1990). Cruzsalgado asserts that he presents
this complaint to preserve it for further review.
Based on Buckley, we overrule Cruzsalgado’s first point. See id.; see also Sanchez v.
State, 354 S.W.3d 476, 486 n.26 (Tex. Crim. App. 2011); Bell v. State, No. 02-22-00289-
CR, 2023 WL 3878416, at *1 (Tex. App.—Fort Worth June 8, 2023, pet. ref’d) (mem.
op., not designated for publication).
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B. Designation of Outcry Witness
In Cruzsalgado’s second point, he contends that the trial court designated the
wrong person to testify as the outcry witness. Cruzsalgado maintains that the trial
court should have designated Kimberly Cox, the person to whom the child made her
first outcry, as the outcry witness under Article 38.072. Instead, the trial court
designated Jolie Marchand, the forensic interviewer.
1. Legal Principles
Hearsay is inadmissible unless a statute or rule provides otherwise. Tex. R.
Evid. 802. Article 38.072 of the Texas Code of Criminal Procedure provides, in
relevant part, that a statement is not inadmissible on the basis that it is hearsay if
(1) the statement describes an offense under Chapter 21 or 22 of the Penal Code3 that
a defendant committed against a child younger than fourteen years of age; (2) the
statement was made by the child to the first person who was eighteen years old or
older, other than the defendant, to whom the child spoke about the offense; (3) the
trial court finds, in a hearing conducted outside the presence of the jury, that the
statement is reliable; and (4) the child is available to testify in court or in any other
manner provided by law. Tex. Code Crim. Proc. Ann. art. 38.072, §§ 1(1), 2; Lumsden
v. State, 564 S.W.3d 858, 881 (Tex. App.—Fort Worth 2018, pet. ref’d).
3
All of the counts alleged against Cruzsalgado fell under Chapters 21 and 22 of
the Penal Code.
4
The Texas Court of Criminal Appeals has held that, under the statute, the
outcry witness must be the first person, eighteen years old or older, to whom the child
makes a statement that in some discernible manner describes the alleged offense.
Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). “The statute demands more
than a general allusion of sexual abuse.” Id.; see Espinoza v. State, 571 S.W.3d 427, 431
(Tex. App.—Fort Worth 2019, pet. ref’d) (discussing Garcia); see also Kappes v. State,
No. 08-22-00095-CR, 2023 WL 1972015, at *5 (Tex. App.—El Paso Feb. 13, 2023,
pet. ref’d) (stating that the proper outcry witness is generally the first person to whom
the child described the “how, when, and where” of the abuse); Rivera v. State, No. 08-
19-00136-CR, 2021 WL 3129261, at *4 (Tex. App.—El Paso July 23, 2021, no pet.)
(not designated for publication) (same).
2. Standard of Review
When determining who qualifies as a proper outcry witness, a trial court has
broad discretion. See Garcia, 792 S.W.2d at 92; Rodgers v. State, 442 S.W.3d 547, 552
(Tex. App.—Dallas 2014, pet. ref’d). Appellate courts thus apply an abuse-of-
discretion standard. Polk v. State, 367 S.W.3d 449, 452 (Tex. App.—Houston [14th
Dist.] 2012, pet. ref’d). Appellate courts will uphold a trial court’s ruling if it is
reasonably supported by the record and within the zone of reasonable disagreement.
Id.5
3. Cox
At a hearing outside the jury’s presence, Cox testified that she was a clinical
therapist in the psychiatry department of Cook Children’s Medical Center. Cox
explained that in March 2020, she had seen the child because the child had attempted
suicide. The child asserted that she had attempted suicide because she was being
touched and because she did not have anyone she could tell or trust.
The child related that someone else had previously abused her, but when she
went to family members for help, they did not believe her. The other family
members, she said, made her feel like she was crazy.
Regarding the specificity of what the child had said, Cox related that the child
had said that “her cousin had touched her when she had on Hello Kitty pajamas in
the past.” Cox added, “But in terms of specific types of touching, I don’t recall.”
Cox did not know which parts of the child’s body were touched.
Cox’s understanding was that sexual abuse occurred on multiple occasions.
But other than there being repeated abuse, Cox did not know anything more specific.
Nor did she know whether the abuse occurred more than thirty days apart.
Cox lacked a lot of information. She did not know how old the child was when
the abuse occurred; all she knew was that the child was twelve or thirteen years old
when she spoke to her. She did not know the name of the perpetrator; she just knew
that the child identified the perpetrator as her cousin. And although she was aware
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that the child was staying with the perpetrator when the abuse occurred, she did not
know if the child and the perpetrator lived in Tarrant or Dallas County.
4. Marchand
The second witness during the hearing was Marchand. Marchand said that in
April 2020, while she had been a forensic interviewer with Alliance for Children in
Tarrant County, she had conducted a forensic interview with the child. The child said
that she and her father lived in Fort Worth with her paternal aunt, her paternal aunt’s
husband, and her paternal aunt’s two sons, one of whom was named “Gregorio” and
was identified by the child as the perpetrator.
The child provided Marchand with three specific examples of sexual abuse:
• The child related that on one occasion, while she was watching cartoons
one morning in the living room, “Gregorio” put his hands on the top part
of her dress and rubbed her breasts on her skin from side to side.
• The child stated that on another occasion while she was watching television
in the morning in the living room, “Gregorio” touched her chest with his
hand and then, using his fingers, touched and rubbed all over “the part that
she pee[d] from,” after which, he pulled down his underwear and put the
“part that he pee[d] from into the part she pee[d] from.”
• A third incident involved “Gregorio” telling the child that he wanted to give
her something, so she went into his bedroom. The child explained that at
the time, her aunt and uncle were at work, her other cousin was not at
home, and her father was in a back bedroom. The child related that once in
the bedroom, “Gregorio” threw her down on the bed, and when she tried
to get up, he threw her back down. While the child’s feet were dangling off
the mattress’s side, “Gregorio” stood by the bed and covered her mouth so
that she could not scream. The child said that at that point, “Gregorio”
pulled down his clothing, “put his part to pee into the part [that] she pee[d]
from,” and moved back and forth. She described “Gregorio” as making
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noises like he was lifting weights, and she remembered the color of
“Gregorio’s” clothing—a black shirt and blue shorts—as well as what she
was wearing—a pink Hello Kitty dress. The child said that she experienced
pain and cried.
Beyond these three specific examples, the child provided other information as
well. She stated that the abuse happened about every other week while she was in the
third and fourth grades at Forest Hill Elementary School and that the abuse spanned
over a year. She maintained that “Gregorio” told her not to tell anyone. Marchand
summarized the child’s statements as encompassing genitalia-to-genitalia contact three
to four times, hand-to-her-genitalia contact more than five times, and hand-to-her-
breast contact one time.
On cross-examination, when asked if she was aware that the child had
previously talked to someone else about these allegations, Marchand responded, “For
a forensic interview to even be scheduled, typically a child has made an outcry to
someone.”
5. The Trial
During the trial, Marchand testified. The child testified.4 Cox did not.
6. Application
The child’s statement to Cox was a general outcry of sexual abuse and was
insufficient to describe an offense under Chapters 21 or 22 of the Penal Code. See
4
When testifying at trial in February 2024, the child was seventeen years old.
She no longer remembered the bedroom incident that Marchand described. She did
not even remember talking to Marchand.
8
Garcia, 792 S.W.2d at 91. For example, the child said that she was touched, but the
child did not specify where she was touched. Whether the touching constituted an
offense depended on where she was touched. To constitute an offense, the State has
to prove where the child was touched or penetrated. See, e.g., Tex. Penal Code Ann.
§§ 21.01(2)(defining “sexual contact”); 21.11(a)(1) (requiring sexual contact);
22.021(a)(1) (specifying body parts). Contextually, the child’s outcry was sufficient to
alert Cox that sexual abuse of some sort was occurring, but it was insufficient to alert
Cox to any particular offense. While we agree that the child made an outcry to Cox,
we disagree that Cox qualified as an outcry witness under Article 38.072. See Garcia,
792 S.W.2d at 91.
In contrast, the child’s statements to Marchand were detailed enough to
identify specific offenses. Additionally, the child pointed out the perpetrator and the
offenses’ location.
On this record, the trial court’s designation fell well within the zone of
reasonable disagreement. See Polk, 367 S.W.3d at 452. We hold that the trial court did
not abuse its discretion by designating Marchand as the outcry witness. See Garcia,
792 S.W.2d at 92.
We overrule Cruzsalgado’s second point.
IV. CONCLUSION
Having overruled both of Cruzsalgado’s points, we affirm the trial court’s
counts four and five judgments.
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Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 17, 2024
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