                                MEMORANDUM OPINION
                                       No. 04-07-00471-CR

                                        Miguel MONTIEL,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 406th Judicial District Court, Webb County, Texas
                               Trial Court No. 2006-CRS-001029-D4
                              Honorable O.J. Hale, Jr., Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 17, 2008

AFFIRMED

           Appellant Miguel Montiel was convicted by a jury for the felony offense of aggravated

sexual assault. On appeal, Montiel argues that the trial court erred by: (1) admitting outcry

witness testimony, (2) admitting the testimony of the State’s medical expert, and (3) concluding

that there was factually insufficient evidence to support the jury’s verdict. We affirm the

judgment of the trial court.
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                                          FACTUAL BACKGROUND

        In February of 2004, Montiel and his wife were visiting three-year-old Rosa’s 1 family

when Montiel and Rosa went to Rosa’s bedroom to watch a movie. Approximately twenty

minutes after they started the movie, Erika, Rosa’s mother, walked past the bedroom and saw

Rosa on the bed, covered up in a blanket and Montiel taking his hands out from underneath the

blanket.

        Erika testified that Rosa’s underwear was misarranged and that she immediately took

Rosa outside and asked her what happened. When Rosa did not say anything, Erika left the

house with Rosa and her other child, Chato, and drove them around the community for

approximately two hours. When asked what happened, Rosa began to shake and cry but did not

talk. When they returned home, Erika gave both children a bath. While bathing Rosa, Erika

noticed that Rosa started to cry when the soap touched her vaginal area. After Erika reassured

her, Rosa told her mother that Montiel had touched her “part.” 2 Erika testified that she did not

immediately call the police because of concern for Montiel’s health, as well as wanting to wait

for her husband to return home from work. Around 12:15 a.m., Rosa’s parents took her to the

emergency room for a medical examination and reported the incident to the police. The jury

found Montiel guilty of aggravated sexual assault.

                                              OUTCRY WITNESS

        In his first appellate issue, Montiel argues that the trial court abused its discretion in

admitting the outcry statement because it was not reliable based on the time, content, and

circumstances of the statement. We disagree.



1
  For purposes of this opinion, we follow the State’s use of the pseudonym “Rosa” for the complainant, as was done
in the indictment and throughout trial.
2
  Erika testified that Rosa referred to her vagina as her “part.”

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A.     Standard of Review

       The determination of whether outcry testimony is reliable must be made on a case-by-

case basis, and is reviewed for abuse of discretion. Marquez v. State, 165 S.W.3d 741, 747 (Tex.

App.—San Antonio 2006, pet ref’d). “The exercise of that discretion will not be disturbed

unless a clear abuse of that discretion is established by the record.” Garcia v. State, 792 S.W.2d

88, 92 (Tex. Crim. App. 1990); see also Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1990) (stating that a trial court abuses its discretion when its ruling is outside the “zone of

reasonable disagreement”).

B.     Admissibility of Outcry Statement

       The State provided both timely notice to Montiel identifying Erika as the outcry witness

and a summary of the outcry statement. TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(b)(1-3)

(Vernon 2005) (requiring (1) the State to provide timely notice; (2) the trial court to conduct a

hearing outside the presence of the jury; and (3) the child to testify or be available to testify).

       Article 38.072 allows for the admission of otherwise inadmissible hearsay in the

prosecution of offenses committed against children twelve years and younger. See TEX. CODE

CRIM. PROC. ANN. art. 38.072 (Vernon 2005). The statute requires the statements be made: (1)

by the child against whom the offense was allegedly committed; and (2) to the first person,

eighteen years of age or older, to whom the child made a statement about the offense. Id. § 2(a).

To qualify as an outcry statement under article 38.072, the statement must be more than a general

allusion of sexual abuse and the child must have described the alleged offense in some

discernible way, that being “more than words which give a general allusion that something in the

area of child abuse was going on.” Garcia, 792 S.W.2d at 91. Simply put, the outcry witness is




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the first adult to whom the child tells the “how, when, and where” of the assault. See Hanson v.

State, 180 S.W.3d 726, 730 (Tex. App.—Waco 2005, no pet.).

       In addition, Article 38.072 requires the trial court to determine if the testimony reaches

the level of reliability required to be admissible as an exception to the hearsay rule. Norris v.

State, 788 S.W.2d 65, 71 (Tex. App.—Dallas 1990, pet. ref’d). To determine the trustworthiness

of a hearsay statement, the trial court must conclude that the particular record is of such

reliability as to guarantee the same protection provided by the constitutional right of

confrontation. Id. The different factors that the trial court may consider 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.

Id. (citing Buckley v. State, 758 S.W.2d 339, 343-44 (Tex. App.—Texarkana 1988, aff’d, 786

S.W.2d 357 (Tex. Crim. App. 1990))).       Importantly, however, these factors are not exclusive,

and “courts have considerable leeway in their consideration of appropriate factors.” Smith v.

State, 61 S.W.3d 409, 412-13 (Tex. Crim. App. 2001) (quoting Idaho v. Wright, 497 U.S. 805,

822 (1990)).

C.     Erika’s Testimony

       Erika testified that Rosa told her Montiel had touched her “part.” Rosa articulated where

she was touched and how she was touched. These details are more than a general allusion, but

rather specify who, where, and how the assault occurred. Hanson, 180 S.W.3d at 730. Montiel

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contends that Rosa’s outcry statement to Erika lacked spontaneity and argues that it is unreliable

on this basis. Norris, 788 S.W.2d at 71. Pointing out that Rosa spent two hours in a car with

Erika, who continually asked Rosa if anything occurred, before Rosa described the assault,

Montiel argues that Rosa was improperly prompted by Erika to describe the incident. However,

spontaneity is only one factor to be considered by the trial court. Id. Moreover, we note that the

record does not indicate that Erika manipulated Rosa’s responses or suggested what she should

say. See Wilson v. State, Nos. 12-02-00042-CR, 12-02-00043-CR, 2003 WL 21771766, at *3-4

(Tex. App.—Tyler July 31, 2003, no pet.) (mem. op., not designated for publication).

Additionally, Rosa testified at trial and admitted to making the out-of-court statement to her

mother. She even testified that Montiel told her they were going to play a game before the

assault occurred.

       The outcry was made just hours after the incident occurred. The record adequately

suggests that Rosa was able to observe, recollect, and narrate the details of the event.

Furthermore, Rosa acted abnormally after the incident—crying and shaking—which in part

prompted Erika to suspect something occurred. Lastly, Montiel had the opportunity to commit

the offense while Rosa and he were on the bed watching the movie. Based on the indicia of

reliability, we conclude that Rosa’s outcry statement was sufficiently reliable to be admissible.

Accordingly, we find that the trial court did not abuse its discretion in admitting the statement,

and we overrule Montiel’s first issue.




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                                            EXPERT TESTIMONY

        Montiel next argues that the trial court abused its discretion in allowing the expert

testimony of Dr. Gregorio Piña because his testimony was inadmissible hearsay, cumulative, and

amounted to improper bolstering of Erika’s testimony. 3 We disagree.

A.      Standard of Review

        We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). As previously noted, if the

trial court’s ruling was within the zone of reasonable disagreement, we must affirm.

Montgomery, 810 S.W.2d at 391.

B.      Admissibility of Dr. Piña’s Testimony

        Texas Rule of Evidence 803(4) provides that “statements made for purposes of medical

diagnosis or treatment” are admissible as an exception to the hearsay rule. TEX. R. EVID. 803(4).

Additionally, “[s]tatements . . . describing medical history, or past or present symptoms, pain, or

sensations, or the inception or general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment” fall under this exception. Id. (emphasis added).

“Statements regarding abuse made to a psychologist or therapist are made for the purpose of

medical diagnosis and treatment.” Bargas v. State, 252 S.W.3d 876, 896 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) 225 S.W.3d 896 (citing Macias v. State, 776 S.W.2d 255, 259 (Tex.

App.—San Antonio 1989, pet. ref’d)).

        After defense counsel took Dr. Piña on voir dire, the trial court determined that Dr. Piña’s

testimony would assist the trier of fact and was not cumulative. Dr. Piña testified regarding his

assessment of Rosa’s mental status and mood and his attempt to determine what, if anything, was

3
  Montiel acknowledges this court’s recent rejection of bolstering as a proper ground for objection. See Rivas v.
State, No. 04-06-00375-CR, 2007 WL 1608550, at *3 (Tex. App.—San Antonio June 6, 2007, pet. granted) (mem.
op., not designated for publication). While the law is not yet settled, we are bound by our previous ruling.

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                                                                                No. 04-07-00471-CR


causing Rosa to feel ashamed. Montiel argues that allowing Dr. Piña to repeat the statements

made by the child amounted to Dr. Piña testifying as a second outcry witness and, thus, the

statements constituted inadmissible hearsay. However, the statements were made for “purposes

of treatment and diagnosis.” Dr. Piña’s testimony provided the appropriate background for his

assessment of Rosa’s mental status. Dr. Piña was able to opine that in his expert opinion, Rosa’s

symptoms were consistent with those of other child victims of sexual abuse.

                               FACTUAL SUFFICIENCY OF THE EVIDENCE

       Finally, Montiel argues that the evidence was factually insufficient to support the jury’s

verdict. We disagree.

A.     Standard of Review

       When evaluating a challenge to the factual sufficiency of the evidence, the reviewing

court views all the evidence in a neutral light. Only if there is an objective basis in the record

that a conviction is “clearly wrong” or “manifestly unjust” because the great weight and

preponderance of the evidence contradicts the jury’s verdict, should the court declare a factual

insufficiency. Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006).

B.     Sufficiency of the Evidence

       Montiel argues that the evidence presented at trial was factually insufficient to support

the jury’s verdict. While Rosa may have had some difficulties answering the prosecutor’s

questions, her ability to articulate the events was age appropriate for a six-year old. The jury is

the sole judge of a witness’s credibility and the weight to be given the testimony. By their

verdict, the jury clearly believed Rosa over the defense. Montiel additionally claims that the lack

of physical evidence from the hospital emergency room medical examination should have been

indicative of Montiel’s innocence.      However, physical evidence is not required to prove



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aggravated sexual assault. Tinker v. State, 148 S.W.3d 666, 669 (Tex. App.—Houston [14th

Dist.] 2004, no pet.). Further both Dr. Garza and Dr. Piña testified as to her physical and mental

status after the incident. Accordingly, because we cannot say that the verdict was not manifestly

unjust so as to overturn the conviction, we overrule this issue.

                                               CONCLUSION

       The trial court properly allowed Erika to testify as the outcry witness in accordance with

article 38.072 of the Code of Criminal Procedure and Dr. Piña to testify as to his professional

opinion that Rosa’s mood and mental status was consistent with that of other children who have

been sexually abused. Additionally, the evidence is factually sufficient to support the jury’s

finding of aggravated sexual assault. Accordingly, we affirm the judgment of the trial court.


                                                  Rebecca Simmons, Justice


DO NOT PUBLISH




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