X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Jerry Ray Divine appeals from his convictions by a jury for aggravated sexual assault of a child and indecency with a child by sexual contact. The jury assessed his punishment at five years’ imprisonment for the aggravated sexual assault conviction and two years’ imprisonment for the indecency with a child conviction, but also recommended community supervision for the latter offense. HOLDING:Affirmed. The trial court admitted testimony by two outcry witnesses about what was apparently the same event: Katherine Brown (the child’s grandmother and the first person with whom the victim discussed the relevant events), and Martha Dykes (a Child Advocacy Center advocate who interviewed the child). To qualify as a proper outcry statement, the child must have described the alleged offense in some discernible way and must have more than generally insinuated that sexual abuse occurred. This court has recently addressed this issue in Josey v. State, 97 S.W.3d 687 (Tex. App.-Texarkana 2003, no pet.). It is possible to have more than one outcry witness in a case, so long as the outcry is about different matters. The grandmother testified she asked the child if, during the bathroom incident, Divine had put his finger inside her. The child told her he had not. However, in the interview, the testimony was that, during the bathroom incident, he had put his finger inside her. Counsel uses this as his point of demarcation between this case and others. His point is not that this involves the same incident, but is a more finely-honed argument that the child had already stated an act did not occur during an encounter, but then later said it had. Thus, counsel argues, it is not even an outcry about some different offense, but something the child had already denied had occurred during the specific encounter at bar. He takes the position that this distinction should cause the second outcry witness’ testimony to be inadmissible. Although the court acknowledges that this case is, for that reason, different from cases cited by counsel, the court sees no reason for this distinction to have any effect. The result of the child’s inconsistency would affect the believability of the outcry statements and thus affect the weight given by the fact-finder to her testimony. At the simplest level, the child did not make an outcry about penetration to the grandmother, but did make such an outcry to the interviewer. The fact the child denied penetration had occurred in her statement to the grandmother does not make the later outcry inadmissible, or change its nature. It may affect its believability, but not its admissibility. The trial court has broad discretion to determine whether the child’s statement falls within the hearsay exception. The exercise of that discretion will not be disturbed unless the record shows a clear abuse of discretion. The court will not reverse on appeal unless the trial court’s decision is outside the zone of reasonable disagreement. The court concludes the court’s ruling in this instance was not outside that zone. The contention of error is overruled. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.