Affirmed and Opinion Filed January 7, 2014




                                           S  In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00202-CR

                             ROBERTO HERNANDEZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 204th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1155623-Q

                             MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Lewis
                                   Opinion by Justice Francis
       After a jury found Roberto Hernandez guilty of continuous sexual abuse of his eight-

year-old stepdaughter, C.R., he agreed to a plea-bargained sentence of thirty-five years in prison.

In two issues, he contends the trial court erred by designating the forensic interviewer as the

“outcry” witness and by refusing to allow a defense witness to testify that appellant “was not the

kind of person who would molest a child.” We affirm.

       In his first issue, appellant contends the trial court abused its discretion by allowing

Patricia Guardiola, the forensic interviewer, to testify as the outcry witness. Appellant argues

C.R. first told the school nurse that he was “touching her private parts with his private parts,” so

the nurse was the proper outcry witness.
       In a hearing outside the jury’s presence, C.R. testified the first person she told that

“something had happened” was Adrian Villegas, the school counselor.            She said she told

Villegas appellant had “touched” her but did not say where. She then told the school nurse that

appellant was “touching” her “private things” with his “private part.” She could not remember if

she told the nurse how many times it occurred. She did not tell the nurse how old she was when

the abuse was occurring nor did she tell the nurse what grade she was in at the time of the abuse.

She did not tell the nurse how long it had been going on; instead, she told that information to

Guardiola.

       Guardiola testified she is a forensic interviewer at the Dallas Children’s Advocacy

Center. In May 2011, she interviewed C.R., who through drawings, said appellant’s penis

touched her vagina and “made it bleed multiple times.” Guardiola said C.R. said the abuse had

been going on “a long time, a lot of times” but could not “put a specific number on the amount of

time.” She recounted a specific incident that occurred right before she came to the DCAC when

she woke up to find appellant touching her. C.R. said her stomach and “private area” began

hurting, so she went to the bathroom and saw she was bleeding. She told appellant she was

bleeding, and he responded, “Yeah, that was me.” Guardiola said C.R. told her the same type of

abuse, “penis to her vagina,” occurred before she turned eight. C.R. was eight at the time of the

interview and her birthday was in December. Because instances of abuse occurred before C.R.

was eight and also occurred right before her interview at the DCAC, Guardiola agreed the abuse

occurred for more than thirty days. At the conclusion of the hearing, the prosecutor told the trial

court she did not intend to call the school nurse and had not been able to identify her. After

hearing arguments of counsel, the trial court overruled appellant’s objection to Guardiola

testifying as the outcry witness.




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       Article 38.072 of the Texas Code of Criminal Procedure describes the proper outcry

witness as “the first person, 18 years of age or older, other than the defendant, to whom the child

. . . made a statement about the offense. . . .” TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3)

(West Supp. 2013). The court of criminal appeals has construed this to mean the first adult “to

whom the child makes a statement that in some discernible manner describes the alleged offense.

[This] statement must be more than words which give a general allusion that something in the

area of child abuse is going on.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990);

Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref’d). A trial court has broad

discretion in determining the proper outcry witness. Garcia, 792 S.W.2d at 92. Absent a clear

abuse of discretion established by the record, the trial court’s decision should not be disturbed.

Id.

       Appellant argues the school nurse was the first person over the age of eighteen that C.R.

made a statement that “described the offense.” He contends the fact that Guardiola was the only

witness who could testify to the specific element requiring the abuse continue for a period of

thirty days or more is not dispositive because there is “no requirement” that the outcry witness

must be able to establish all elements of the offense.

       Appellant was charged with the offense of continuous sexual abuse. A person commits

an offense if during a period of thirty or more days, he commits two or more acts of sexual abuse

and the victim is a child younger than fourteen years of age. TEX. PENAL CODE ANN. § 21.01(b).

Here, the record shows Guardiola was the first person C.R. described, in a discernable manner,

two or more acts of sexual abuse over a period of thirty or more days. In particular, she told

Guardiola that appellant’s penis touched her vagina and made it bleed “multiple times,” that the

abuse had been happening for a long time, and started before she was eight years old. In

contrast, C.R.’s statement to the nurse was more general, saying only that appellant was

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“touching” her “private things” with his “private part.” In addition, C.R. did not address any

particular time frame and could not remember whether she indicated to the school nurse how

many times the abuse occurred. Under these circumstances, we cannot conclude the trial court

erred in determining Guardiola was the proper outcry witness. See Sims, 12 S.W.3d at 500 (in

indecency with child prosecution, trial court could have reasonably concluded counselor was

proper outcry witness and that child’s statement to mother that defendant “had touched her

private parts” was nothing more than a “general allusion that something in the area of sexual

abuse was occurring and not a clear description of offense); Smith v. State, 131 S.W.3d 928, 931

(Tex. App.—Eastland 2004, pet. ref’d) (in aggravated sexual assault prosecution, trial court

could have reasonably concluded counselor was proper outcry witness and that child statement to

mother that defendant “had been performing oral sex on him” did not relay specific details of

charged offense and was nothing more than general allusion in area of sexual abuse). We

overrule the first issue.

        In his second issue, appellant argues the trial court erred in not allowing his uncle to

testify that appellant “was not the kind of person who would molest a child.”

        At trial, Benigo Hernandez testified he was appellant’s uncle and had raised him from the

ages of four to fourteen. Since then, he said he has maintained contact with appellant. He said

appellant was a “good person” who was “very responsible” and supported his family. When the

defense asked whether Hernandez had “an opinion about whether or not he’s the kind of person

that would molest children,” the State objected that the question was improper. The trial court

sustained the objection.

        Generally, character evidence is not admissible to show that a person acted in conformity

with a character trait on a particular occasion. TEX. R. EVID. 404(a). But an accused in a

criminal case is permitted to introduce evidence of a specific good character trait to show it is

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improbable that he committed the charged offense when that character trait is relevant to the

offense. Id.; Melgar v. State, 236 S.W.3d 302, 306–07 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d); Valdez v. State, 2 S.W.3d 518, 519 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d). A pertinent trait is “one that relates to a trait involved in the offense charged or a defense

raised.” Melgar, 236 S.W.3d at 307. If evidence of a person’s character or character trait is

admissible, proof may be made through reputation or opinion testimony. Valdez, 2 S.W.3d at

519; see TEX. R. EVID. 405(a). However, specific instances of conduct are inadmissible to show

an inference that the accused did or did not commit the offense. Valdez, 2 S.W.3d at 519.

          For example, in a prosecution for a crime of violence, the defendant’s character for being

peaceful is pertinent because evidence of peaceful character makes it less likely that the

defendant committed the crime. Melgar, 236 S.W.3d at 307. Thus, in a murder case, the

appropriate inquiry is the accused’s reputation for peacefulness, or non-aggressive behavior.

Wheeler v. State, 67 S.W.3d 879, 882 n.2 (Tex. Crim. App. 2002). Similarly, a defendant

charged with sexually assaulting a child is entitled to offer evidence of his good character for

“moral and safe relations with small children or young girls” under rule 404(a)(1)(A). Wheeler,

67 S.W.3d at 882. But the status of being a murderer or a pedophile is not a “character trait.” Id.

at n.2.

          In Valdez, the appellant was convicted on three counts of aggravated sexual assault of a

child involving three young boys. At trial, the trial court refused to allow the appellant’s brother

and neighbor to testify that appellant had a good reputation in the community for being “a non-

pedophile.” Valdez, 2 S.W.3d at 519. The court concluded the proffered question was improper

because “unlike a person’s reputation for the moral treatment of children, being a ‘non-

pedophile’ is not evidence of a person’s character or character trait.” Id. at 520.




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       Initially, we note appellant did not make an offer of proof specifying how his uncle

would have answered the question.         But assuming he would have answered favorably to

appellant, the evidence was not admissible. The question of whether appellant was the “kind of

person” who would molest children is substantively no different from one asking whether a

defendant is a non-pedophile. By its question, the defense was not seeking to establish evidence

of a good character trait; it was attempting to show that appellant “was not known to have

committed the type of crime for which he was charged in the past.” See Valdez, 2 S.W.3d at 520.

This was an impermissible attempt to put on evidence of specific instances of conduct “to

support the inference that it is unlikely the accused would have engaged in the criminal conduct

charged.” See id. We conclude the trial court did not abuse its discretion in excluding the

evidence. We overrule the second issue.

       We affirm the trial court’s judgment.




                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
130202F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ROBERTO HERNANDEZ, Appellant                       On Appeal from the 204th Judicial District
                                                   Court, Dallas County, Texas
No. 05-13-00202-CR        V.                       Trial Court Cause No. F-1155623-Q.
                                                   Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                       Justices Lang-Miers and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered January 7, 2014




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




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