                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00211-CR

MELVIN LEE SANDERS, III,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 18th District Court
                             Johnson County, Texas
                              Trial Court No. F47748


                          MEMORANDUM OPINION


      Melvin Lee Sanders, III was convicted of aggravated sexual assault and

sentenced to life in prison. See TEX. PENAL CODE ANN. § 22.021 (West 2011). The victim

of the sexual assault, C.T., was a child under the age of 14 and had been renting a room

with her mother from Sanders’ mother. One evening, Sanders followed C.T. to a pond

at the back of his mother’s property. When C.T. tried to return to the house, Sanders

forced C.T. into a dump truck and sexually assaulted her. Because there is no longer a

“factual sufficiency” review of the evidence, and because the trial court did not err in
admitting the outcry statement and did not err in denying Sanders’ requests for a

mistrial, the trial court’s judgment is affirmed.

        In his first issue, Sanders contends that the evidence is “factually insufficient” to

support his conviction because “it is so weak as to be clearly wrong and manifestly

unjust” and the finding of guilt by the jury “is against the great weight and

preponderance of the available evidence.” He asks for a remand from this Court for a

new trial.

        The “factual sufficiency” review enunciated by Clewis v. State, 922, S.W.2d 126

(Tex. Crim. App. 1996) and its progeny was overruled as the standard of review for a

sufficiency of the evidence challenge over four years ago. See Brooks v. State, 323 S.W.3d

893 (Tex. Crim. App. 2010). The appropriate standard of review for a challenge to the

sufficiency of the evidence is the Jackson v. Virginia standard. See Jackson v. Virginia, 443

U.S. 307, 318-19 (1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011) (the

reviewing court must consider all of the evidence in the light most favorable to the

verdict and determine whether, based on that evidence and reasonable inferences

therefrom, a rational fact finder could have found the essential elements of the crime

beyond a reasonable doubt). By asking this Court to only review the factual sufficiency

of the evidence, Sanders concedes the evidence is sufficient under the Jackson standard

of review. Sanders’ first issue is overruled.

        In his second issue, Sanders asserts the trial court erred in admitting parts of


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C.T.’s outcry statement that Sanders alleges exceeded the scope of the State's pre-trial

notice summary provided to Sanders pursuant to Article 38.072 of the Texas Code of

Criminal Procedure. Article 38.072 provides an exception to the hearsay rule for certain

offenses if a statement describing the alleged offense is made by a child to the first

person 18 years of age or older and, on or before the 14th day before the date the

proceeding begins, the party intending to offer the statement:

        (A) notifies the adverse party of its intention to do so;

        (B) provides the adverse party with the name of the witness through whom it

intends to offer the statement; and

        (C) provides the adverse party with a written summary of the statement.

TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(1), (2), (3) and (b) (West 2005). The

provisions of the statute are mandatory and must be complied with in order for an

outcry statement to be admissible over a hearsay objection. Long v. State, 800 S.W.2d

545, 547 (Tex. Crim. App. 1990).

        Sanders does not contest that the State timely provided a notice or that Nancy

was a proper outcry witness. His complaint is that Nancy was allowed to testify as to

additional statements by C.T. that were not included in the State’s summary and were,

therefore, hearsay.     The summary provided by the State included the following

statements by C.T. as relayed by Nancy: 1) C.T. had been by the pond; 2) Sanders came

out to C.T.; 3) C.T. went walking back to the house; 4) Sanders followed her; 5) when


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they arrived at a dump truck, Sanders stopped C.T. and forced her into the dump truck;

6) Sanders held C.T. down, took off C.T.’s shorts, covered C.T.’s mouth, and forced C.T.

to have sex with him. The additional statements by C.T. to which Nancy testified were

that C.T. had tried to run away because Sanders said something1 to C.T. that gave C.T.

chills and that C.T. only went about two feet before being caught.

           A trial court does not err in admitting hearsay statements not contained in the

outcry notice summary if those statements describe "the circumstances leading up to the

outcry statement and its details." Gottlich v. State, 822 S.W.2d 734, 737 (Tex. App.—Fort

Worth 1992, pet. ref'd), disapproved of on other grounds by Curry v. State, 861 S.W.2d 479

(Tex. App.—Fort Worth 1993, pet. ref'd) (no error in admitting statement that victim did

not want to go swimming with defendant or that described length of time of abuse).

Nancy’s testimony of C.T.’s statements not included in the summary do not describe

any act of abuse in particular; instead, they are contextual statements that describe the

circumstances surrounding the charged conduct.                         Accordingly, we conclude the

objected-to statements describe "the circumstances leading up to the outcry statement

and its details," and therefore, the trial court did not err by admitting Nancy’s testimony

as to those statements. See Gottlich, 822 S.W.2d at 737. See also Campos v. State, Nos. 01-

13-00415-CR, 01-13-00416-CR, 01-13-00417-CR, 2015 Tex. App. LEXIS 230, 33 (Tex.

App.—Houston [1st Dist.] Jan. 13, 2015, no pet.) (not designated for publication)


1   At this juncture in the record, it is not known what Sanders said to C.T.

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(statement about location of assault was contextual which described circumstances

surrounding charged conduct); Lackland v. State, No. 06-99-00070-CR, 2000 Tex. App.

LEXIS 2409, 2-3 (Tex. App.—Texarkana Apr. 13, 2000, no pet.) (not designated for

publication) (no error when summary did not include location of assault or that witness

also talked to victim’s older sister; such statements are events surrounding the outcry).

         Near the end of this issue, Sanders adds an additional argument that the State

failed to comply with Article 38.072, Section 2(b)(3) by not offering any evidence or

making any assertion at the hearing assessing the reliability of the outcry statements

that C.T. would testify at the trial or be available to testify at the trial. TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(b)(3) (West 2005). The provision does not require such

evidence or assertion at the hearing. Id. (b)(2). Furthermore, the record indicates that

C.T. did testify and that Sanders was provided notice of C.T.’s intent to testify prior to

trial.

         Sanders’ second issue is overruled.

         In his third, fourth and fifth issues, Sanders contends the trial court erred in

denying Sanders’ motions for mistrial after two separate State’s witnesses testified that

Sanders had warrants out for his arrest and a third State’s witness testified that Sanders

had a criminal history.

         A trial court's denial of a motion for mistrial is reviewed under an abuse of

discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003); Wood


Sanders v. State                                                                       Page 5
v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A prompt instruction to disregard

will ordinarily cure any prejudice associated with improper testimony regarding

extraneous offenses. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).

Accord Marshall v. State, 210 S.W.3d 618, 628-629 (Tex. Crim. App. 2006). The trial court

is required to grant a motion for a mistrial only when the improper testimony is "clearly

prejudicial to the defendant and is of such character as to suggest the impossibility of

withdrawing the impression produced on the minds of the jurors." Wood v. State, 18

S.W.3d 642, 648 (Tex. Crim. App. 2000).

        This was a five day trial.      Three days were dedicated to testimony on

guilt/innocence. Sixteen different witnesses testified over the course of the three days.

Some testified more than once. On the first day of testimony, the State’s second and

third witnesses mentioned Sanders had warrants. On the second day of testimony, the

State’s second witness mentioned Sanders had a criminal history. Each of the responses

by the witness were not prompted by the State’s questions; they were non-responsive

answers to questions not designed to elicit the responses given. The objectionable

testimony was brief and immediately cut off by an objection by Sanders. The trial court

promptly instructed the jury to disregard each response given.

        Sanders mentions in his brief that at least one juror did not adhere to the trial

court’s instruction to disregard. In his motion for new trial, he attached an affidavit

from Juror Mona Grant who stated that at least one juror said during deliberations that


Sanders v. State                                                                   Page 6
Sanders was going to prison anyway because of the warrants. Grant did not name this

juror. Further, there is no indication in the record that the motion for new trial was ever

presented to the trial court and no hearing was ever set or held to adduce facts not in

the record and to expand upon Juror Grant’s affidavit. Thus, based on the record as

presented, there is nothing to indicate the trial court’s instruction did not cure any

prejudice associated with the witnesses’ non-responsive answers. See Colburn v. State,

966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (presumption that jury followed instruction

is rebuttable, but appellant did not file a motion for new trial alleging juror misconduct

or obtain a hearing to adduce facts not in the record.)

        Sanders’ third, fourth, and fifth issues are overruled.

        Having overruled each of Sanders’ issues on appeal, we affirm the trial court’s

judgment.

                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 7, 2015
Do not publish
[CRPM]




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