Indecency with Child

Hearsay Statements Admitted in Child Sexual Assault Trial. Affirmed on Appeal by Fort Worth Court.

Gonzales v. State - 2nd Court of Appeals (Fort Worth) 2015

Pablo Gonzales, Jr. was convicted on one count of aggravated sexual assault of a child and three counts of indecency with a child. He was sentenced to life in prison by the jury for the sexual assault case and twenty years imprisonment in each of the indecency cases.

The defendant lived in a house where drug use was rampant and people would come in, often leaving their children for him to watch.  One of the witnesses against him, given the pseudonym T.P., was the mother of two of the girls that claimed to be sexually abused by defendant. Generally, hearsay testimony, testimony from one person about what another person says, cannot be admitted into evidence against a defendant. Here, the trial court applied an exception to the hearsay rule for an "outcry witness." An outcry witness is the first person a child tells about abuse that the child received and this testimony by the outcry witness can be admitted.

The defendant in this case argued that the outcry witness testimony should not be allowed into court because T.P. admitted that her memory was fuzzy as a result of her drug use. Defendant also argued that T.P.’s testimony satisfied few, if any, of the nonexclusive factors the court considers in determining the reliability of an outcry.

When Can an Outcry Witness Statement by Admitted Over Defense Objection?

Article 38.072 of the code of criminal procedure provides a mechanism that requires the trial court to determine on a case-by-case basis if outcry witness testimony reaches the level of reliability required to be admissible as an exception to the hearsay rule.

Indicia of reliability that the trial court may consider [under article 38.072] include (1) whether the child victim testifies at trial and admits making the out-of-court statement, (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate, (3) whether other evidence corroborates the statement, (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults, (5) whether the child’s statement is clear and unambiguous and rises to the needed level of certainty, (6) whether the statement is consistent with other evidence, (7) whether the statement describes an event that a child of the victim’s age could not be expected to fabricate, (8) whether the child behaves abnormally after the contact, (9) whether the child has a motive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whether the accused had the opportunity to commit the offense.

The defendant claimed that the outcry lacked reliability, specifically because of T.P.’s drug use and generally because it was short, lacked detail, and was uncorroborated. The 2nd Court of Appeals (Fort Worth) agreed that the statement was short, but pointed out that it was also very clear, specific, and unequivocal. A trial court’s decision to admit evidence will not be disturbed on appeal absent a clear abuse of discretion. A trial court has only abused its discretion if its decision falls outside the zone of reasonable disagreement.

The 2nd Court of Appeals went on explain that even if they concluded that the trial court abused its discretion in admitting the testimony, such error would not rise to the level of constitutional error and should only be reversed if the error affected the Defendant’s substantial rights. The Court noted the victim testified at trial, and her testimony both corroborated T.P.’s testimony regarding the outcry and provided greater detail.  For this reason, the Court held that even if the trial court abused its discretion by admitting the outcry witness testimony, the error would be harmless.

Even if someone admits to their memory not being completely accurate due to prominent drug use, their outcry testimony can still be brought into court if the person who made the statements to them originally, corroborates them. This may make it extremely hard to overturn a conviction with the Court of Appeals because even if outcry testimony may be weak or lacks reliability, the Court will likely not overrule the case so long as others corroborate the testimony. This may also make it extremely hard to keep out any outcry statements.

12 Persons Required to Serve on Texas Felony Jury Trial - Fort Worth Trial Lawyers

A felony jury trial in Texas requires 12 jurors (with limited exceptions). The defense can waive that requirement under certain circumstances, and jurors can be excused under certain circumstances. But generally, a felony jury panel must have 12. Below, we discuss a case in Denton County where the jury started with 12 and then went to 11 because a juror could not understand the English language well enough to serve.

Stillwell v. State - Opinion issued by the 2nd District Court of Appeals (Fort Worth) on May 28, 2015

Appellant, Eben Stilwell was convicted in the 367th District Court in Denton County by an 11-person jury of indecency with a child and sentenced to 12 years in prison. A jury of 12 was originally empaneled but after three days of testimony, one of the jurors came forward and informed the court that he was having difficulty understanding the proceedings. The juror primarily spoke Spanish and was having difficulty following the proceedings because they were in English.

During the conversation between the judge and the juror, the juror repeatedly said "I understand a little bit" or "I don't understand." Both the defense and state agreed that the juror did not adequately understand the English language and was not completely following what was going on in the courtroom.

The prosecution and defense disagreed, however, as to the legal basis for the juror's removal. The state urged that juror be deemed "disabled" under Tex.Code Crim. Proc. Ann. art. 36.29(a), which would allow the trial to proceed with 11 jurors over defense objection. The defense argued that because the juror was never able to serve, he was disqualified and a trial using 11 jurors could only proceed with the defendant's consent. The defendant did not consent to continuing the trial with only 11 jurors. The trial court followed that state's recommendation and dismissed the juror as disabled, continuing the trial with only 11 jurors.

The 2nd District Court of Appeals (Fort Worth), Justice Sudderth writing the opinion for the court, held that the court could have allowed the juror to remain on the jury because the right to have him excluded due to his inability to understand English had been forfeited. It is always the attorneys' duty to determine that capability and fitness of the jurors during voir dire. Neither party inquired as to ability to understand the English language.

But, once the court determined that the juror should be dismissed, consent of the defendant was required to proceed with 11 jurors. Because appellant did not agree to proceed with 11 jurors, a mistrial was required. The lower court was reversed.

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If a person commits indecency with a child by exposure, and there were three children present during the act, can he be convicted for three offenses?  In other words, is the allowable unit of prosecution the identity of the child or the act itself?

The 13th District Court of Appeals (Corpus Christie), as it explained in its unpublished opinion in Harris v. State, No. 13-08-537-CR (April 15, 2010), believes that an offense is committed for every child that is present at the time of the exposure – three children equals three counts.  Hence, double jeopardy does not bar multiple prosecutions for the same act.

Appellant (Harris) challenged this holding to the Texas Court of Criminal Appeals, contending that the offense of indecency by exposure is a “non-victim-based crime for which double jeopardy bars multiple prosecutions.” The CCA agreed, holding that

the offense of indecency with a child by exposure is complete once the defendant unlawfully exposes himself in the required circumstances…[T]he child does not even have to be aware of the exposure…The offense is based on the defendant’s actions and mental state, not the other person’s comprehension.

Reversing the court of appeals, the CCA explained, “the act of exposure is the gravamen of the indecent exposure.” Appellant’s conviction for three offenses violated double jeopardy. “Appellant committed only one offense under Section 21.11(a)(2)(A) when he exposed himself to three children at the same time.”

See Judge Hervey's majority opinion in Harris v. State.

Presiding Judge Keller Dissented. She “would hold that each victim of indecency with a child is a separate unit of prosecution.”