Appeal from the 177th District Court Harris County, Texas
Trial Court Cause No. 1341402
consists of Justices Christopher, Brown, and Wise.
found appellant James Larry Merrit guilty of aggravated
sexual assault of a child and assessed punishment at 20
years' imprisonment in the Institutional Division of the
Texas Department of Criminal Justice. On appeal, appellant
contends that: (1) Texas Code of Criminal Procedure article
38.072, the criminal statute permitting admission of
out-of-court statements regarding sexual abuse, is
unconstitutional; (2) the trial court reversibly erred by
admitting hearsay statements of the complaining witness
through the forensic interviewer; and (3) the cost bill
charging appellant $140 for summoning witnesses and mileage
is unconstitutional. We affirm.
is the brother of the complainant's maternal grandmother,
making him the great uncle of the complainant,
Barbara. In February 2012, Officer
Monica Carmichael of the Houston Police Department went to
Barbara's school to talk to Barbara because she was
having difficulty contacting Barbara's mother about
another matter. Barbara was then thirteen years old.
their discussion, Barbara reported to Officer Carmichael that
appellant had sexually abused her. Barbara told Officer
Carmichael that one day in early January of that year, she
went to her grandmother's house after school and was
watching television in appellant's bedroom. According to
Barbara, appellant came into the bedroom, locked the door,
and "raped her" by putting his "dick" in
her vagina. Barbara told Officer Carmichael that she had not
told anyone else about the incident because she feared no one
would believe her.
Carmichael began investigating Barbara's allegations. She
spoke with the complainant's mother and grandmother, but
they did not seem concerned. Officer Carmichael also spoke to
appellant, who denied abusing Barbara. As part of the
investigation, Barbara was taken to the Children's
Assessment Center (CAC) for an interview. At the CAC, Barbara
recounted to forensic interviewer Susan Odhiambo how she had
been sexually assaulted.
trial, Barbara testified in detail about the incident and
stated that appellant not only had vaginal sex with her, but
had performed oral sex on her as well. The State also
presented as witnesses Officer Carmichael, Odhiambo, and Dr.
Lawrence Thompson, a licensed psychologist and a director of
testified in his defense, denying Barbara's allegations.
The defense also presented Shelyse Brooks, a family friend,
who testified that Barbara told her that she had made up the
allegations against appellant. Brooks acknowledged, however,
that she never gave that information to police.
first issue, appellant contends that Officer Carmichael's
testimony was inadmissible because Texas Code of Criminal
Procedure article 38.072 is unconstitutional. In his second
issue, appellant contends that the trial court reversibly
erred by admitting hearsay statements of Barbara through the
forensic interviewer, Susan Odhiambo. In his third issue,
appellant contends that even though appellant was found
indigent during trial and on appeal, the cost bill reflects
that he was charged $140 for summoning witnesses and mileage
in violation of the Confrontation Clause and the Right to
The Constitutionality of Out-of-Court Statements of Sexual
first issue, appellant contends that Texas Code of Criminal
Procedure article 38.072 violates his constitutional right to
confront and cross-examine the witnesses against him under
the Confrontation Clause of the United States Constitution
and Article I, Section 10 of the Texas Constitution.
Therefore, appellant argues, the trial court erred in
admitting Officer Carmichael's testimony concerning the
complainant's outcry statement that appellant "raped
her" by putting his penis in her vagina.
review a trial judge's decision on the admissibility of
evidence for abuse of discretion. Johnson v. State,
490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge
abuses his discretion when his decision falls outside the
zone of reasonable disagreement. Id.
Sixth Amendment to the United States Constitution provides
that in all criminal prosecutions, "the accused shall
enjoy the right . . . to be confronted with the witnesses
against him." U.S. Const. amend. VI. The Texas
Constitution provides a similar guarantee that "[i]n all
criminal prosecution the accused . . . shall be confronted by
the witnesses against him." Tex. Const. art I, §
10. This right extends to "pretrial statements that
declarants would reasonably expect to be used
prosecutorially." Crawford v. Washington, 541
U.S. 36, 61 (2004).
38.072 of the Code of Criminal Procedure, which applies to
cases in which the defendant is charged with certain offenses
against a child under the age of 14, provides a statutory
exception to the rules against hearsay. See Tex.
Code Crim. Proc. art. 38.072; Sanchez v. State, 354
S.W.3d 476, 484 (Tex. Crim. App. 2011). The statute allows a
complainant's out-of-court statement to be admitted into
evidence so long as that statement is a description of the
alleged offense and is "offered into evidence by the
first adult the complainant told of the offense."
Sanchez, 354 S.W.3d at 484. A complainant's
out-of-court statement is commonly referred to as an
"outcry" and an adult who testifies about an outcry
is commonly known as an "outcry witness."
trial judge ruled that Officer Carmichael was an outcry
witness for purposes of article 38.072 and permitted her to
testify about the complainant's outcry. As the statute
requires, Barbara also testified at trial. See Tex.
Code Crim. Proc. art. 38.072, § 2(b)(1)(C)(3). Barbara
testified to what she told the officer and the details of
appellant's assault, and she was cross-examined by
acknowledges that the Court of Criminal Appeals has ruled
that article 38.072 does not violate the accused's right
to confrontation under either the federal or state
constitutions. See Buckley v. State, 786 S.W.2d 357,
360 (Tex. Crim. App. 1990); see also Beckham v.
State, 29 S.W.3d 148, 152-53 (Tex. App.- Houston [14th
Dist.] 2005, pet. ref'd) (citing Buckley and
stating that article 38.072 does not violate either the due
process guarantee of the United States Constitution or the
due course of law provision of the Texas Constitution).
Nevertheless, appellant seeks to preserve his argument for
possible further review in light of more recent opinions
which appellant asserts focus on whether the evidence is
testimonial hearsay rather than whether the evidence offered
has an "indicia of reliability." See Davis v.
Washington, 547 U.S. 813, 822 (2006); Crawford,
541 U.S. at 68-69. Appellant argues that the issue should be
revisited and the statute found unconstitutional under
Crawford and its progeny.
the controlling precedent of Buckley, however, we
may not consider appellant's arguments. As an
intermediate appellate court, we lack the authority to
overrule an opinion of the Court of Criminal Appeals.
State v. DeLay, 208 S.W.3d 603, 607 (Tex.
App.-Austin 2006) (citations omitted), aff'd sub.
nom., Colyandro v. State, 233 S.W.3d 870 (Tex.
Crim. App. 2007); see also Mason v. State, 416
S.W.3d 720, 728 n.10 (Tex. App.-Houston [14th Dist.] 2013,
pet. ref'd) ("When the Court of Criminal Appeals has
deliberately and unequivocally interpreted the law in a
criminal matter, we must adhere to its interpretation under
the dictates of vertical stare decisis."). This is true
even when intervening developments arguably undermine
previous holdings. See DeLay, 208 S.W.3d at 605-07.
there not been controlling precedent, we would still overrule
appellant's claim of error because appellant did not
timely and specifically object when the State offered Officer
Carmichael's testimony concerning the complainant's
outcry, either at the article 38.072 hearing or during trial.
Generally, to preserve error for appellate review, a party
must make a timely and specific objection in the trial court.
Tex.R.App.P. 33.1(a); Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012). Preservation of error is a
systemic requirement. Darcy v. State, 488 S.W.3d
325, 328 (Tex. Crim. ...