Court of Appeals of Texas, Eighth District, El Paso
from the 90th Judicial District Court, of Young
County, Texas (TC#11080).
Alley, C.J., Rodriguez, and Palafox, JJ.
Alley, Chief Justice.
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
Procedural and Factual Background
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. 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.
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.
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.
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.
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
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
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.
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.
Applicable Law and Standard of Review
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,
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).