Cesar Carlos Urbina v. the State of Texas

Affirmed and Memorandum Opinion filed June 8, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00323-CR
CESAR CARLOS URBINA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Cause No. 2018R-0157
MEMORANDUM OPINION
Appellant challenges his conviction for indecency with a child by sexual
contact, contending in a sole issue that because a witness was not the first person to
whom the complainant reported the sexual abuse, the trial court erred in
designating that witness as the outcry witness under article 38.072 of the Code of
Criminal Procedure. Concluding that appellant failed to preserve error in the trial
court and that even if appellant had preserved error, we would conclude that the
trial court did not err as alleged by appellant in his sole issue, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant has not challenged the sufficiency of the evidence, and we limit
our discussion to facts relating to appellant’s sole appellate issue. Appellant was
charged by indictment with the offense of indecency with a child by sexual
contact. Appellant pleaded not guilty.
At a pretrial hearing conducted by the trial court under article 38.072,
section (2)(b)(2) of the Code of Criminal Procedure, the State’s proposed outcry
witness, Jane Roe, 1 testified as follows:
0F
• She is the sister of the complainant Rachel Roe. 2 1F
• Jane’s husband is John Doe. 3 2F
• After the charged offense but before the trial in this case, John Doe was
deported to another country, and John Doe cannot come back into the United
States.
• On May 12, 2018, when Rachel was 11 years old, Jane learned that
something had happened to Rachel. On that day, Jane, Rachel, John, and
other family members attended a birthday party at a friend’s house.
• Appellant was at the party with Jane’s mother. At the time, appellant and
Jane’s mother were in an “on and off” dating relationship.
• Jane, John, their children and Rachel left the party together and returned to
the house in which they were living at the time.
• On the way home, Jane noticed that Rachel was “out of it,” “not talking to
us,” and “not there.” Jane would talk to Rachel, but Rachel would not pay
attention to Jane.
• When they arrived home, everyone went to the kitchen.
1
To protect the privacy of the complainant and other members of her family who testified at
trial, we use pseudonyms when referring to them in this opinion.
2
See footnote 1, supra.
3
See footnote 1, supra.
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• John talked to Rachel while Jane was just a few feet away and could hear
what Rachel said.
• Rachel started crying and said that something had happened at the party.
John told Jane that “somebody did this to [Rachel].”
• Then, they “got closer” and “just started talking about what had happened.”
• Rachel told Jane that when they were back at the party, Rachel was in the
back of the house, and appellant approached Rachel and touched her. Rachel
said that then appellant heard kids coming, so he let go of Rachel. After that,
Rachel went to the front of the house and sat with Jane. Rachel said that
appellant touched her breasts and “private parts,” and when she talked about
private parts, she motioned to her genitals.
• At the time of this conversation, Rachel was 11 years old, and Jane was 23
years old.
• Jane and John were the first people that Rachel told about what appellant did
to Rachel that night.
Three days later, the jury trial in this case began. Jane testified during trial,
including testimony as to Rachel’s outcry. The jury found appellant guilty as
charged and assessed punishment. Appellant has timely appealed the trial court’s
judgment.
II. ISSUE AND ANALYSIS
In his sole appellate issue, appellant asserts that because article 38.072,
section 2(a)(3) 4 of the Code of Criminal Procedure is limited to the first person to
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whom the child reported the sexual abuse, the trial court erred by designating Jane
as the outcry witness. Appellant contends that John was the first person to whom
Rachel reported the sexual abuse and that Jane was the second person to whom
Rachel reported this abuse.
Article 38.072 of the Code of Criminal Procedure provides a statutory
4
In his brief appellant asserts that “Article 38.072 §2(a)(2) of the Texas Code of Criminal
Procedure is limited to the first person to whom the child reports the abuse.” We presume that
appellant meant to refer to article 38.072, section 2(a)(3) of the Code of Criminal Procedure.
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exception to the rule against hearsay for certain statements in proceedings
involving the prosecution of certain crimes, including indecency with a child by
sexual contact. See Tex. Code Crim. Proc. Ann. art. 38.072, §§ 1, 2 (West,
Westlaw through 2021 C.S.); Rosales v. State, 548 S.W.3d 796, 806 (Tex. App.—
Houston [14th Dist.] 2018, pet. ref’d). Article 38.072 applies to statements that (1)
describe the alleged offense, (2) were made by the complainant, and (3) were made
to the first person, 18 years of age or older, other than the defendant, to whom the
complainant made a statement about the offense. See Tex. Code Crim. Proc. Ann.
art. 38.072, § 2(a). We review the trial court’s ruling to admit outcry testimony for
an abuse of discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App.
1990).
A. Did Appellant Preserve Error in the Trial Court on His Sole Issue?
To succeed on his sole issue, appellant must have preserved error on this
complaint in the trial court. See Laredo v. State, 194 S.W.3d 637, 639–40 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d). Thus, we first address preservation
of error. At no point during the pre-trial hearing or during trial did appellant assert
that Jane was not the first person to whom Rachel made a statement about the
charged offense. Neither in the pre-trial hearing nor at trial did appellant object that
Jane was not the first person to whom Rachel made a statement about the charged
offense and therefore Jane should not be testifying as an outcry witness, or the trial
court should not be designating Jane as an outcry witness.
The following exchange during Jane’s testimony contains the only trial
objection appellant cites on appeal:
[State’s counsel]: What did [Rachel] talk to you about? What did she
say?
[Jane]: She said at the party [appellant] had touched her.
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[State’s counsel]: How and where did she say that happened?
[Jane]: At the party.
[Appellant’s counsel]: Objection.
[State’s counsel]: Your Honor, she is an outcry witness so an
exception to the hearsay rule.
[trial court]: Objection overruled.
To preserve an issue for appeal, a timely objection must be made that states
the specific ground of objection, if the specific ground was not apparent from the
context. Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015). Rule of
Appellate Procedure 33.1(a) provides that, “[a]s a prerequisite to presenting a
complaint for appellate review, the record must show that . . . the complaint was
made to the trial court by a timely request, objection, or motion” stating the
grounds for the ruling sought “with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the
context.” Tex. R. App. P. 33.1(a)(1)(A). The purpose for requiring a timely,
specific objection is twofold: (1) it informs the trial court of the basis of the
objection and affords the trial court an opportunity to rule on it, and (2) it affords
opposing counsel an opportunity to respond to the complaint. Douds, 472 S.W.3d
at 674. As to the specificity requirement, all the defendant has to do to avoid the
forfeiture of a complaint on appeal is to let the trial court know what the defendant
wants and why the defendant thinks the defendant is entitled to it, and to do so
clearly enough for the trial court to understand the defendant at a time when the
trial court is in a proper position to do something about it. Id. An appellate
contention must comport with a timely objection appellant made at trial. See
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). A general objection
does not let the trial court know the basis on which the defendant thinks he is
entitled to the relief sought unless the legal basis is obvious to the trial court and
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opposing counsel. Gonzalez v. State, 616 S.W.3d 585, 591 (Tex. Crim. App. 2020).
A complaint is obvious if there are “‘statements or actions on the record that
clearly indicate what the judge and opposing counsel understood the argument to
be.’” Id. (quoting Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)).
After Jane began to testify about what Rachel told Jane appellant had done
to her, the State’s lawyer asked Jane, “How and where did [Rachel] say that
happened?” After Jane said, “At the party,” appellant’s counsel stated “Objection.”
without stating any ground for the objection. Appellant could have been objecting
to the compound nature of the State’s last question, that the last question called for
a narrative answer, that Jane’s answer was inadmissible hearsay or some other
objection. Though the State indicated that it thought that appellant was objecting
that the last answer was hearsay, no statement or action on the record clearly
indicates what the trial court understood appellant’s argument to be. See Gonzalez,
616 S.W.3d at 591. The legal basis of appellant’s general objection was not
obvious to the trial court. See id. at 591–92; Laredo, 194 S.W.3d at 639–41.
Appellant did not let the trial court know what he wanted. Did appellant want the
trial court to strike the witness’s last statement? Did appellant want his objection
sustained as to the witness’s last statement? Did appellant want the trial court to
rule that Jane would not be permitted to testify at trial to any outcry statements by
Rachel? Appellant did not clearly communicate to the trial court the basis of his
objection. Appellant did not state he was objecting that the witness’s statement was
inadmissible hearsay. Even if the trial court understood appellant to be asserting a
hearsay objection, appellant never complained to the trial court that Jane was not
the first person that Rachel told about the alleged offense such that Jane could not
qualify as an outcry witness pursuant to article 38.072, section 2(a)(3) of the Code
of Criminal Procedure. Appellant never made that argument either during trial or
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pre-trial.
Today’s case is similar to Reyes v. State, No. 14-16-00711-CR, 2017 WL
5196212, at *7–9 (Tex. App.—Houston [14th Dist.] Nov. 9, 2017, pet. ref’d) (not
designated for publication). There, appellant complained at trial that he had not
been given notice of an outcry witness. On appeal, however, appellant argued for
the first time that the outcry witness was not the first person to hear about the
alleged abuse. The Reyes court stated:
To preserve an issue for appeal, a party must assert a timely
objection on specific grounds, unless the specific grounds are apparent
from the context. See Tex. R. App. P. 33.1. “As regards specificity, all
a party has to do to avoid the forfeiture of a complaint on appeal is to
let the trial judge know what he wants, why he thinks himself entitled
to it, and to do so clearly enough for the judge to understand him at a
time when the trial court is in a proper position to do something about
it.” Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App.
2015) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.
App. 1992)).
Id. Although unpublished and not binding on this court, see Tex. R. App. P.
47.7(a), the rationale expressed in Reyes applies equally well to this case.
Because appellant did not adequately apprise the trial court of an objection
to Jane’s testimony based on his sole issue, appellant did not preserve this
complaint for appellate review. See Douds, 472 S.W.3d at 674–77; Gonzalez, 616
S.W.3d at 591–92; Laredo, 194 S.W.3d at 639–41.
B. Did appellant commit the error alleged by appellant in his sole issue?
Even if appellant had preserved error in the trial court, we would conclude
that the trial court did not commit the error alleged by appellant in his sole issue.
The trial court did not abuse its discretion by determining that Rachel’s statements
describing the alleged offense were made to the first person, 18 years of age or
older, other than the defendant, to whom Rachel made a statement about the
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offense or by allowing Jane to testify to these statements. See Tex. Code Crim.
Proc. Ann. art. 38.072, § 2(a); Bargas v. State, 252 S.W.3d 876, 894–95 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref’d).
Rachel first told John that “something had happened at the party” without
giving any specific information. However, something more than “words which
give a general allusion that something in the area of child abuse was going on”
must be said in order to qualify as the first person to whom the child made a
statement about the offense. See Garcia, 792 S.W.2d at 91. It wasn’t until both
John and Jane were together that Rachel said what happened at the party. A trial
court has “broad discretion” to determine admissibility of outcry evidence and such
discretion will not be disturbed absent a clear abuse of discretion. Id. at 92.
For the reasons stated above, we overrule appellant’s sole issue and affirm
the trial court’s judgment.
/s/ Randy Wilson
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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