Francisco Xavier Lopez v. State

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00751-CR
Francisco Xavier LOPEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR5271
Honorable Mary D. Roman, Judge Presiding 1
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: December 12, 2018
AFFIRMED AS MODIFIED
A jury convicted appellant Francisco Xavier Lopez of continuous sexual abuse of a child
and indecency with a child. On appeal, Lopez raises two issues: (1) the trial court erred by allowing
Mary Eileen McCourt to testify as an outcry witness; and (2) the judgment must be modified to
accurately reflect a punishment of twelve years’ confinement for the offense of indecency with a
child. We affirm the trial court’s judgment as modified.
1
The Honorable Catherine Torres-Stahl is the presiding judge of the 175th Judicial District Court, Bexar County,
Texas. However, the Honorable Mary D. Roman, retired and sitting by assignment, signed the judgment that is the
subject of this appeal.
04-17-00751-CR
BACKGROUND
The victim, A.L., who was fifteen at the time of trial, testified that Lopez, her step-
grandfather, sexually abused her when she lived with her grandmother. According to the
grandmother, A.L. resided with her from the age of two to the age of five, but there was testimony
that the abuse continued up to age seven. A.L. testified Lopez put his hands on her chest and her
“middle part,” which she said meant her vagina. She said he roughly rubbed her chest and “middle
part” with his hands. A.L. testified Lopez did this over her clothes and “one time without [her]
clothes on.” On another occasion, he took his pants off and began to touch her while he touched
“his own private part.” A.L. also stated Lopez touched her “front” with his private part, putting it
inside of her “[a] little bit,” which she said “hurt bad.” Lopez always told her not to tell her
grandmother.
With regard to disclosure of the abuse, A.L. testified the first people she told about the
abuse were her half-sister, C.G. and her cousin, V.S. Both girls were younger than eighteen.
School counselor, Graciela Gil, testified A.L. came to her office and told her that when she was
younger, Lopez hit her. Gil stated that after this disclosure, she called A.L.’s mother. When A.L.’s
mother arrived, A.L. told her mother about the sexual abuse; Gil was present when A.L. made the
disclosure to her mother. The record does not provide specifics as to exactly what A.L. told her
mother or the counselor; rather, the record suggests A.L. spoke in generalities about inappropriate
touching. Additionally, A.L. also reported the sexual abuse to her grandmother and father. But
like the disclosure to her mother and school counselor, it appears her disclosures were of a general
nature, i.e., “touching.”
The record shows that approximately ten days after A.L. met with the school counselor and
her mother, C.G. informed her aunt, an SAPD detective, about A.L.’s disclosure. The aunt
contacted SAPD and Officer Ramiro Martinez was dispatched to the school. The officer testified
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that when he arrived, A.L. and a school staff member were in the library. Officer Martinez spoke
with A.L., who he testified was eleven years old. According to his testimony, A.L. did not name
the perpetrator, but described him. A.L. was more specific about the abuse when she spoke to the
officer. The officer stated A.L. reported digital-genital penetration, but no genital-genital
penetration or anal penetration. Officer Martinez reported the matter to Child Protective Services.
It appears A.L. spoke to someone at CPS, but the record does not establish what A.L. said with
regard to the sexual abuse.
Testimony showed that the month after her general disclosures to her mother and Gil, A.L.
was interviewed by Mary Eileen McCourt, who at the time was a Bexar County forensic
interviewer. McCourt testified that during the interview, A.L. provided a detailed description of
the sexual abuse committed by Lopez. Unlike her prior disclosures, A.L. described: (1) genital-
anal penetration (Lopez placing his penis in A.L.’s anus); and genital-genital penetration (Lopez
placing his penis in A.L.’s vagina). A.L. told McCourt that Lopez removed her clothing below
the waist and removed his clothing as well. She described how Lopez climbed on top of her, as
well as the “movement with the penis on her genitalia.” A.L. told McCourt about the pain she felt
when Lopez placed his penis inside her vagina. A.L. also told McCourt her belief that Lopez
began penetrating her anally because she told her grandmother she was experiencing vaginal pain.
Although she apparently told her grandmother about her pain, she did not tell her what had caused
it.
Lopez was arrested and charged with continuous sexual abuse of a child and indecency
with a child. After considering the evidence, arguments of counsel, and the court’s charge, the
jury found Lopez guilty of both offenses. When pronouncing sentence in open court, the trial court
stated it was assessing forty years’ confinement for the offense of continuous sexual abuse of a
child and twelve years’ confinement for the offense of indecency with a child. However, in its
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written judgments, the trial court sentenced Lopez to forty years’ confinement for each offense.
After rendition of judgment, Lopez perfected this appeal.
ANALYSIS
As set out above, Lopez raises two issues on appeal. First, he contends the trial court erred
by allowing McCourt to testify as an outcry witness. Second, Lopez asserts the judgment must be
modified to accurately reflect the sentence imposed in open court with regard to the conviction for
indecency with a child.
Propriety of McCourt as Outcry Witness
Lopez first challenges the trial court’s decision to allow McCourt to testify as an outcry
witness. Within this contention, Lopez argues the trial court should not have permitted McCourt
to testify as an outcry witness because: (1) she was not the first person to whom A.L. disclosed the
sexual abuse perpetrated by Lopez; rather, A.L.’s statements to Gil — who was also listed by the
State as an outcry witness — and A.L.’s mother preceded those made to McCourt; and (2) the
statements made by A.L. to McCourt were not reliable based on time, content, and circumstances
as required by article 38.072 of the Texas Code of Criminal Procedure.
Standard of Review
A trial court has broad discretion in determining the admissibility of outcry statements.
Marquez v. State, 165 S.W.3d 741, 746 (Tex. App.—San Antonio 2005, pet. ref’d) (citing Garcia
v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)). Thus, we review a trial court’s decision
regarding the admissibility of outcry statements for an abuse of discretion. Mireles v. State, 413
S.W.3d 98, 103 (Tex. App.—San Antonio 2013, pet. ref’d), abrogated on other grounds, Meadows
v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015); Marquez, 165 S.W.3d at 746; see generally
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (holding appellate court
reviewing trial court ruling on admissibility of evidence must use abuse-of-discretion standard of
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review). We will uphold a trial court ruling on the admissibility of evidence if it is within the zone
of reasonable disagreement. Weatherred, 15 S.W.3d at 542.
Application
As noted above, Lopez first argues the trial court erred in allowing McCourt to testify as
an outcry witness because she was not the first person to whom A.L. disclosed the sexual abuse.
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 children under the age of
fourteen who are victims of a sexual offense. TEX. CODE CRIM. PROC. ANN. art. 38.072; Lopez v.
State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). Article 38.072, also known as the “outcry
statute,” applies only to statements made: (1) by the child against whom the offense was allegedly
committed, and as is pertinent here, (2) to the first person, eighteen years of age or older, to whom
the child made a statement about the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(a)
(emphasis added); Mireles, 413 S.W.3d at 103. The statement must be “more than words which
give a general allusion that something in the area of child abuse is going on[.]” Lopez, 343 S.W.3d
at 140 (quoting Garcia, 792 S.W.2d at 91); see Mireles, 413 S.W.3d at 103. The statement “must
be made in some discernable manner and is event-specific rather than person-specific.” Lopez,
343 S.W.3d at 140. Testimony from more than one outcry witness may be admissible if the
witnesses testify about different events. Lopez, 343 S.W.3d at 140; Mireles, 413 S.W.3d at 103.
To invoke the hearsay exception in article 38.072, the State must notify the defendant of the names
of the outcry witnesses and provide a summary of their proposed testimony. Lopez, 343 S.W.3d
at 140.
Based on A.L.’s disclosures, the State filed two separate notices of intent to present outcry
statements made by A.L. See id. The first notice named school counselor Gil. Based on the
attachment to the first notice, it was expected Gil would testify that A.L. told her and A.L.’s mother
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that Lopez touched her “in her private area” and “would touch it.” The second notice of intent
named McCourt as the outcry witness. The attachment to the notice naming McCourt stated it was
expected that McCourt would testify that A.L. told her that Lopez “would touch her,” “would put
his private part in her butt,” and “would put his penis and fingers inside of her vagina.” When the
State called McCourt to testify, Lopez’s trial counsel objected, stating McCourt was “the fifth or
sixth person [A.L.] made a statement to about these alleged incidences. And so as the fifth person
that the child has spoken to, I don’t believe that she qualifies as the outcry witness because it
wasn’t the outcry.”
As set out above, the record does not include specifics with regard A.L.’s initial disclosures
to her counselor, mother, father, and grandmother. Rather, the record suggested her statements to
these individuals consisted of general statements about “touching.” However, in her disclosure to
McCourt, A.L. described sexual abuse other than inappropriate touching. She described sexual
abuse never previously disclosed including genital-anal penetration and genital-genital
penetration. A.L. also told McCourt — contrary to her other general “touching” disclosures —
that Lopez removed her clothing below the waist and removed his clothing as well. She described
how Lopez climbed on top of her, as well as the “movement with the penis on her genitalia.” A.L.
told McCourt about the pain she felt when Lopez placed his penis inside her vagina. Thus, A.L.’s
disclosure to McCourt included different specific events of sexual abuse by Lopez. See Lopez,
343 S.W.3d at 140.
Based on the evidence in the record regarding events disclosed by A.L. to Gil and others
and those disclosed to McCourt, the trial court could have, in its discretion, concluded Gil and
McCourt testified about different events — general touching versus specific acts of sexual abuse
including penetration. See Lopez, 343 S.W.3d at 140; Mireles, 413 S.W.3d at 103. Accordingly,
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we cannot say the trial court abused its discretion by allowing both Gil and McCourt to testify as
outcry witnesses. See Lopez, 343 S.W.3d at 140; Mireles, 413 S.W.3d at 103.
Lopez also argues the statements made by A.L. to McCourt should not have been admitted
because they were not reliable based on time, content, and circumstances. See TEX. CODE CRIM.
PROC. ANN. art. 38.072 § 2(b)(2). However, we hold Lopez has not preserved this complaint for
our review.
When the State called McCourt to testify, Lopez’s trial counsel made the following
objection:
… I believe that there can only be one outcry witness and not multiple outcry
witnesses. And so I believe that [McCourt] would have been the fifth or sixth
person that the child made a statement to about these alleged incidences. And so
as the fifth person that the child has spoken to, I don’t believe that she qualifies as
the outcry witness because it wasn’t the outcry.
All other statements by Lopez’s trial counsel with regard to McCourt’s testimony also concerned
her identity, i.e., whether she was a proper outcry witness based on A.L.’s prior disclosures to
others.
To preserve a complaint for appellate review, a party must have presented to the trial court
a timely request, objection, or motion that states the specific grounds for the desired ruling if they
are not apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1);
Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim. App. 2017); Gauna v. State, 534 S.W.3d 7, 10
(Tex. App.—San Antonio 2017, no pet.). In other words, the complaining party must advise the
trial court of what he wants and why, and he must do it in a way so that the trial court can
understand it. Gauna, 534 S.W.3d at 10 (citing Bekendam v. State, 441 S.W.3d 295, 300 (Tex.
Crim. App. 2014)). Moreover, the complaint made on appeal must comport with the complaint
made in the trial court, or the error is forfeited. Gibson, 541 S.W.3d at 166; Heidelberg v. State,
144 S.W.3d 535, 537 (Tex. Crim. App. 2004).
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Although the trial court held a hearing outside the presence of the jury, the only testimony
and argument presented at the hearing concerned whether McCourt was the first person to whom
A.L. made a disclosure about certain aspects of the sexual abuse allegations pursuant to article
38.072 § 2(a) so as to qualify as an outcry witness. There was no objection and no discussion
about the reliability of A.L.’s statement to McCourt pursuant to article 38.072 § 2(b)(2). Rather,
with regard to McCourt’s testimony as the outcry witness, the only objection lodged by Lopez
concerned her identity, i.e., whether she was the proper outcry witness. He made no objection
based on the reliability of the statements made by A.L. to McCourt, and thus, his complaint is
waived for failure to object. See TEX. R. APP. P. 33.1(a)(1); Gibson, 541 S.W.3d at 166; Gauna,
534 S.W.3d at 10. Furthermore, the trial objection concerned the identity of the actual outcry
witness, but this portion of Lopez’s appellate argument pertains to the reliability of the outcry
statements made by A.L., which are separate issues. Compare TEX. CODE CRIM. PROC. ANN. art.
38.072 § 2(a), with id. art. 38.072 § 2(b)(2). Because the trial objection does not comport with
Lopez’s argument on appeal, it is waived for this reason as well. 2 See Gibson, 541 S.W.3d at 166.
Finally, even if error had been preserved, any error by the trial court in admitting
McCourt’s testimony based on an absence of reliability of A.L.’s statements was cured. “‘An
error, [if any] in the admission of evidence is cured where the same evidence comes in elsewhere
without objection.’” Gauna, 534 S.W.3d at 10 (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex.
Crim. App. 2003)); see TEX. R. APP. P. 44.02(b) (stating nonconstitutional error is reversible only
2
See Herrera v. State, Nos. 07-17-00166, 07-17-00167, & 07-17-00168, 2018 WL 1868124, at *2 (Tex. App.—
Amarillo Apr. 18, 2018, no pet.) (mem. op., not designated for publication) (holding error not preserved where
objection at trial related to identity of outcry witness and complaint on appeal pertained to reliability of outcry
statement made by victim); see also Creech v. State, No. 05-09-00762-CR & 05-09-00763-CR, 2011 WL 1663040, at
*3–*5 (Tex. App.—Dallas May 4, 2011, pet. ref’d) (holding that although defendant preserved complaint as to identify
of proper outcry witness, he failed to object to outcry on basis of reliability, and therefore failed to preserve such issue
for review).
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if after examining record as whole, court concludes error had substantial influence on outcome). 3
In other words, if the same evidence previously objected to is admitted elsewhere without
objection, any error is harmless. See Lamerand, 540 S.W.3d at 259 (holding erroneous admission
of outcry testimony was harmless where same or similar evidence admitted without objection);
Zarco v. State, 210 S.W.3d 816, 833 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (same).
A.L. testified without objection that Lopez touched her “front” with his private part, putting
it inside of her “[a] little bit.” Moreover, the report of the sexual assault nurse examiner was
admitted without objection. Therein, the SANE reported that A.L. told her Lopez was “sticking
himself inside of me.” The report states A.L. told the SANE that Lopez put his “front private, in
my behind.” The foregoing testimony, which was admitted without objection, is essentially the
same as that provided by McCourt. Thus, even if the alleged reliability error was preserved for
appellate review, any error was harmless. See Lamerand, 540 S.W.3d at; Zarco, 210 S.W.3d at
833. Accordingly, we overrule Lopez’s first issue.
Modification of Judgment as to Punishment
In his second issue, Lopez contends this court must modify the judgment to reflect the
proper sentence with regard to his conviction for indecency with a child. The State concedes this
issue, and we agree the judgment with regard to the indecency with a child offense must be
modified.
The jury recommended a sentence of twelve years based on its finding of guilt with regard
to the offense of indecency with a child. When orally pronouncing sentence for this offense, the
trial judge stated: “I assess punishment at 40 years confinement in [sic] Count 1 and 12 years
confinement in [sic] Count 2.” The indictment shows Count I charged Lopez with continuous
3
The improper admission of hearsay testimony under article 38.072 is non-constitutional error. Lamerand v. State,
540 S.W.3d 252, 259 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).
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sexual abuse of a child; Count II charged Lopez with indecency with a child. Thus, the trial court
orally pronounced that Lopez was to serve twelve years for the offense of indecency with a child.
The judgment, including the sentence, is merely the written embodiment of the trial court’s
oral pronouncement. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there
is a conflict between the oral pronouncement and the written judgment, the oral pronouncement
controls. Id. When this situation arises, as it has here, the proper resolution is to reform or modify
the written judgment to conform with the oral pronouncement. See id. Accordingly, we sustain
Lopez’s second issue and order the judgment relating to Count II of the indictment — the offense
of indecency with a child — modified to reflect a sentence of twelve years. See id.CONCLUSION
Based on the foregoing, we affirm in its entirety the trial court’s judgment with regard to
the offense of continuous sexual abuse of a child. As to the trial court’s judgment relating to the
offense of indecency with a child, we order that judgment modified to reflect the imposition of a
sentence of twelve years. As modified, we affirm the trial court’s judgment.
Marialyn Barnard, Justice
Do Not Publish
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