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Waldrep v. State

Court of Appeals of Texas, Eighth District, El Paso

December 17, 2019

William Shawn Waldrep, Appellant,
v.
The State of Texas, Appellee.

          Appeal from the 90th Judicial District Court, of Young County, Texas (TC#11080).

          Before Alley, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          Jeff Alley, Chief Justice.

         Appellant William Shawn Waldrep was found guilty by a jury on one count of continuous sexual abuse of a child under 14 years of age and sentenced to 99 years in prison. In his sole issue on appeal, he contends that the trial court erred by allowing into evidence the victim's outcry statement to her mother. Finding no error in that ruling, we affirm the trial court's judgment.[1]

         I. Procedural and Factual Background

         Appellant was charged with the continuous sexual abuse of a child under age 14 by causing the penetration of the mouth of the victim by his sexual organ over a two-and-a-half-year period.[2] The victim in the case, L.M., was the daughter of Appellant's then-girlfriend (hereinafter "Mother"). Appellant had been living with Mother since 2014. L.M. made her first outcry when she was seven years old to her then nine-year-old brother, telling him that Appellant had put his penis in her mouth. Her brother, however, did not believe L.M. and did not tell anyone about her allegation. About a year later, L.M. made a second statement to her brother, again telling him that Appellant had put his penis, or his "thing", in her mouth. This time, the brother reported that statement to Mother. She then questioned L.M. and asked her what had occurred, encouraging her to be truthful in her response. As discussed in more detail below, L.M. then made an outcry statement that caused Mother to believe that Appellant had sexually abused her daughter. Mother, however, did not immediately confront Appellant about the allegation, nor did she report her concerns to law enforcement.[3]

         In February of 2017, L.M.'s school made a report to Child Protective Services ("CPS") after it discovered that L.M. had used inappropriate search terms and may have watched pornography on a school issued computer. During an ensuing CPS investigation, Mother told the CPS investigators about the prior outcries of sexual abuse that L.M. had made to her and her brother. L.M. was then questioned by forensic interviewer Tivoli Williams. During the interview, L.M. was initially talkative, but withdrew and would not respond when asked questions about "parts of [her] body" and "touching," and she did not make an outcry to Williams. However, that same day, Williams also interviewed L.M.'s brother who confirmed L.M.'s first and second report of the matter to him. In both reports, L.M. had described to her brother what could only be oral sex.

         During this same time period, L.M. received counseling, but refused to speak to her therapist about the incident. However, in late March of 2017 L.M. gave her therapist a journal entry that she had written, which was introduced into evidence at trial, stating that "[Appellant] made me suck his dick[.]" Shortly thereafter, Mother also learned that L.M. had disclosed the abuse to several of her classmates, who in turn reported it to their teacher. In addition, both L.M.'s therapist and Mother testified that they noticed changes in L.M.'s behavior during this same time period. L.M. became clingy, she was upset when left alone with Appellant, and she began to have frequent stomach aches. The therapist explained that these characteristics are common in child victims of sexual abuse.

         On May 2, 2017, L.M. was interviewed by Melissa Beard, a second forensic interviewer. The night before the interview, at Mother's suggestion, L.M. wrote in her journal what had happened to her. The journal entry, which was admitted into evidence, graphically described how Appellant had L.M. perform oral sex on him. At the forensic interview, L.M. described three to four specific incidents involving the same act, at different locations and times.

         That same day, L.M. underwent a Sexual Assault Nurse Exam ("SANE exam"). L.M. initially stated that she did not want to speak about the incident but agreed to write down what had occurred. L.M. circled the image of the male penis on an anatomical picture and wrote the words "[p]rivate part in my mouth." L.M. thereafter informed the SANE examiner that Appellant had committed this act four times at her mother's house, all while her mother was either asleep or not at the house. In addition, L.M. stated that "[s]tuff came out of his privates when he put it in my mouth." L.M. also told the SANE examiner that she had been reluctant to make an outcry against Appellant, as she feared she would get in trouble for doing so. The SANE examiner testified that this is a common fear expressed by child victims of sexual abuse. And finally, L.M. testified at trial that Appellant had committed the acts that she had described in her journal entries over the course of at least a year, verifying that she had made the journal entries herself. L.M. recalled that she told her brother on two occasions what Appellant had done, including approximately when and where she made the outcries. Her testimony corroborated two other events that the jury had heard about: that L.M.'s mother talked to her after the second outcry to her brother, and that L.M. told two of her friends at school. L.M. further explained that she did not initially disclose the abuse to the first forensic interviewer because at the time she was still having a hard time talking about it.

         Appellant defended against the charge through cross examination of the State's witnesses, and by calling his own friends who testified that his interactions with L.M. all appeared appropriate, or that Appellant is not the type of person to commit this act. Appellant also developed testimony that at one time Mother had denied to others that L.M. had ever been sexually assaulted.

         The jury found Appellant guilty of one count of continuous sexual abuse of a child under 14 years of age and sentenced him to 99 years in prison. This appeal followed.

         II. Discussion

         In his sole issue on appeal, Appellant argues that the trial court erred in allowing Mother to testify about L.M.'s outcry to her, arguing that it constituted inadmissible hearsay. In particular, Appellant contends that the outcry testimony was neither sufficiently specific nor reliable to satisfy the outcry exception to the hearsay rule found in Article 38.072 of the Texas Code of Criminal Procedure. He further argues that the admission of the testimony was harmful to his case.

         A. Applicable Law and Standard of Review

         Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." Sanchez v. State, 354 S.W.3d 476, 484 (Tex.Crim.App. 2011), citing Tex.R.Evid. 801(d). Hearsay is inadmissible unless it falls into one of the exceptions in Rules of Evidence 803 or 804, or it is allowed by "other rules prescribed under statutory authority." Id. citing Tex.R.Evid. 802. One of the "other rules" is found in Article 38.072 of the Code of Criminal Procedure, which provides for the admission of certain out-of-court "outcry" statements. Relevant here, that Article applies to statements that (1) describe the alleged offense, (2) were made by a child victim who is younger than 14 years of age, and (3) the defendant is charged with certain enumerated offenses. Tex.Code Crim.Proc. art. 38.072, § 2(a)(1), (2). Continuous sexual abuse of a child is one of those enumerated offenses. Id. at 38.072, § 1(1). Further, Article 38.072 specifically provides that the statement must be one made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense. Id. at 38.072, § 2(a)(3). Procedurally, the State cannot introduce the statement until the trial court holds a hearing outside the presence of the jury to determine whether the statement is "reliable based on the time, content, and circumstances of the statement." Id. at 38.072, § 2(b)(2). In addition, the child must testify at trial or be available to testify at the trial. Id. at 38.072, § 2(b)(3). Outcry testimony admitted in compliance with Article 38.072 is considered substantive evidence, admissible for the truth of the matter asserted in the testimony. Duran v. State, 163 S.W.3d 253, 257 (Tex.App.--Fort Worth 2005, no pet.).

         We review a trial court's determination whether an outcry statement is admissible under Article 38.072 for an abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App. 1990) (en banc). A trial court only abuses its discretion in admitting outcry testimony if its decision falls outside the zone of reasonable disagreement. Gonzales v. State, 477 S.W.3d 475, 479 (Tex.App.--Fort Worth 2015, pet. ref'd), citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (en banc) (op. on reh'g).

         B. ...


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