                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00106-CR

KEITH ALLEN JONES,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee




                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2011-1299-C2


                           MEMORANDUM OPINION


      Keith Allen Jones was charged with two counts of aggravated sexual assault of a

child and two counts of indecency with a child. See TEX. PENAL CODE ANN. §§ 22.021,

21.11 (West 2011 & Supp. 2013). After a jury trial, Jones was acquitted on the first count

of aggravated sexual assault and found guilty of the second count of aggravated sexual

assault and the two counts of indecency with a child. He was sentenced to 29 years for
the aggravated sexual assault conviction and to 9 years in each conviction for indecency

with a child. The sentences were ordered to run consecutively. Because the trial court

did not err in allowing outcry testimony and because Jones’s second issue presented

nothing for review, the trial court’s judgments are affirmed.

BACKGROUND

        Jones and his extended family were vacationing at a beach house in South Padre

Island. After C.J.’s mother, Wendi, walked in while Jones was otherwise alone with C.J.

and while still at South Padre, C.J. made a statement to her mother that Jones, a.k.a.

“Pops,” “messed with” C.J.’s vagina. That night, Wendi, her husband, and C.J. packed

up and left South Padre and returned home.

OUTCRY STATEMENTS

        In his first issue, Jones argues the trial court erred in admitting hearsay testimony

not excepted by the outcry statutes.1 Specifically, he contends the trial court abused its

discretion in admitting C.J.’s outcry statements through her mother, Wendi, because

C.J.’s first statement was too ambiguous and her next two statements were unreliable.

        Article 38.072 of the Texas Code of Criminal Procedure permits outcry

statements by certain victims of child abuse to be admitted during trial, despite the

hearsay rule, if the provisions of that article are met. See TEX. CODE CRIM. PROC. ANN.

1 The State argues that this issue is not preserved because Jones did not object to the admission of the
testimony in front of the jury. We disagree with the State. Because there was a hearing outside the
presence of the jury during which Jones objected to the trial court’s decision to admit the testimony, Jones
was not required to again object to the testimony in front of the jury. See Geuder v. State, 115 S.W.3d 11, 13
(Tex. Crim. App. 2003).

Jones v. State                                                                                         Page 2
art. 38.072 (West Supp. 2013). Before testimony in the trial began, the trial court held a

hearing pursuant to article 38.072 to determine the reliability of C.J.’s initial or “outcry”

statements to her mother. See id. A trial court has broad discretion to determine the

admissibility of outcry evidence, and we will not disturb its determination absent a

showing in the record that the trial court clearly abused its discretion. See Garcia v.

State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Smith v. State, 131 S.W.3d 928, 931 (Tex.

App.—Eastland 2004, pet. ref'd).

Statement about the Offense

        The statute defines an outcry statement as a statement “made by a child…against

whom the offense was allegedly committed” and “to the first person, 18 years of age or

older, to whom the child…made a statement about the offense.” TEX. CODE CRIM. PROC.

ANN. art. 38.072, Sec. 2(a)(1), (2) (West Supp. 2013). The phrase, "statement about the

offense" means "a statement that in some discernible manner describes the alleged

offense." Garcia, 792 S.W.2d at 91. It must be “more than words which give a general

allusion that something in the area of child abuse was going on.” Id.

        Jones contends that C.J.’s first statement to Wendi, that Jones “messed with”

C.J.’s vagina, was too ambiguous to qualify as a statement about the offense. Jones cites

to Garcia v. State and Bargas v. State as examples to show C.J.’s statement was merely a

“general allusion” to sexual abuse. See id.; Bargas v. State, 252 S.W.3d 876 (Tex. App.—

Houston [14th Dist.] 2008, no pet.).


Jones v. State                                                                         Page 3
        In Garcia, the appellant complained that a witness was improperly designated as

the outcry witness and thus, the witness’s testimony regarding statements made by the

child were inadmissible. Garcia, 792 S.W.2d at 89. Garcia contended that the child’s

teacher was the proper outcry witness. Id. The record showed "that the [child] told her

teacher that something happened at home, and that it had to do with child abuse." Id. at

91. The child testified that she told her teacher "what happened." Id. at 90. However,

the record did not contain evidence as to any specific details of the statements that the

child made to her teacher or as to any description of the alleged offenses that the child

told her teacher. Id. at 91. This was due in part to the defense objecting to the teacher

narrating what was said. Id.

        In analyzing who would be a proper outcry witness, the Court of Criminal

Appeals explained that the statement made by the child must be more than words

which give a general allusion that something in the area of child abuse was going on.

Id. In Garcia, the child's general statements about abuse to her teacher "apparently did

not, in context, and in the trial court's view, amount to more than the general allusion"

that something in the area of child abuse happened. Id. Therefore, the Court held that

the trial court had not abused its discretion when it determined that a Department

employee, rather than the child’s teacher, was properly designated as the outcry

witness. Id. at 92.




Jones v. State                                                                     Page 4
        As was in Garcia, the issue on appeal in Bargas was whether the trial court erred

in determining who the proper outcry witness was. There, the defendant complained

that the victim’s mother, rather than the forensic interviewer, was the proper outcry

witness. Bargas, 252 S.W.3d at 894. The victim told her mother that the defendant had

touched her private parts. Id. at 885. The victim did not want to talk about it any

further with her mother, and her mother only found out what happened through the

victim’s therapist. Id. The victim did, however, describe the incidents in specific detail

to the forensic interviewer. Id. Because the mother could not provide information

about any abuse beyond a general allegation, the trial court did not abuse its discretion

in determining the forensic interviewer was the properly designated outcry witness.

See id. at 895.

        This case is distinguishable from Garcia and Bargas. First, the issue on appeal in

this case is not about who was the proper outcry witness; rather, it is about whether

C.J.’s first statement was too general to be considered a “statement about the offense.”

Second, the statements made in this case are different from those made in Garcia and

Bargas. Here, because of something she had seen the day before, Wendi talked to C.J.

and confirmed that C.J. knew her “bottom” and her vagina were her “private parts.”

Wendi then asked C.J. if anyone had touched or “messed with” her private parts.

Initially, C.J. said no and looked away. When Wendi asked if C.J. was sure, C.J. said

“Pops” does. When asked what Pops did, C.J. replied, “He messes with my vagina.”


Jones v. State                                                                      Page 5
Wendi also learned that it happened at the beach house and at Jones’s house. C.J.’s

statement is more specific than the general statements of “what happened” and “it had

to do with child abuse” reviewed in Garcia.

        Although C.J.’s statement is much like the statement made in Bargas, the court of

appeals determined that the sole statement made to the mother, that the defendant

touched the victim’s private parts, was too general to qualify the mother as the outcry

witness. Here, Wendi was designated as the outcry witness. Jones has no complaint

about that designation. No other witness testified as to the outcry statements made by

C.J. to Wendi.2 Unlike in Bargas where the victim made only one general statement to

the mother, Wendi testified at the hearing outside the presence of the jury that C.J. later

explained to Wendi that Jones had used his tongue on C.J.’s vagina and had C.J. put her

hands around his penis and moved them up and down until his penis “got big.”

Accordingly, because more than just the one statement was made to Wendi, and

because Jones did not contest Wendi being designated as the outcry witness, the trial

court did not abuse its discretion in admitting the first statement from C.J.

Reliability

        Article 38.072 further requires: (1) notice of the intent to offer the statement,

along with the identity of the outcry witness and a written summary of the outcry



2 The doctor who performed the forensic exam did testify, over objection, that C.J. stated Jones put his
finger in the “hole” of C.J.’s vagina. This statement was not part of the outcry statements made to Wendi.
Jones does not complain about this testimony on appeal.

Jones v. State                                                                                     Page 6
witness' testimony, must be given before trial; (2) the trial court must find, in a hearing

conducted outside the presence of the jury, that the statement is reliable based on the

time, content, and circumstances of the statement; and (3) the child testify or be

available to testify. TEX. CODE CRIM. PROC. ANN. art. 38.072, Sec. 2(b) (West Supp. 2013).

The statute charges the trial court with determining the reliability based on "the time,

content, and circumstances of the statement;" however, it does not charge the trial court

with determining the reliability of the statement based on the credibility of the outcry

witness. Sanchez v. State, 354 S.W.3d 476, 487-488 (Tex. Crim. App. 2011). Further, the

phrase, "time, content, and circumstances" refers to the time the child's statement was

made to the outcry witness, the content of the child's statement, and the circumstances

surrounding the making of that statement. Broderick v. State, 89 S.W.3d 696, 699 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d).

          Jones contends C.J.’s next two statements, that Jones had used his tongue to

touch her vagina and that Jones had C.J. touch his penis, were unreliable because a

majority of factors he labels “the Buckley factors” weigh against reliability. See Buckley v.

State, 758 S.W.2d 339, 343-344 (Tex. App.—Texarkana, 1988), aff’d on other grounds, 786

S.W.2d 357 (Tex. Crim. App. 1990).3 In Buckley, the issue on appeal was not reliability of

the outcry statements but rather whether article 38.072 was unconstitutional. Id. at 340.

Further, citing no authority, the court of appeals in Buckley listed factors it determined


3   The Court of Criminal Appeals did not address the factors enumerated by the appellate court.

Jones v. State                                                                                     Page 7
supported the indicia of reliability of a child’s outcry statement; it did not mechanically

apply those factors. Id. at 343-344.

          We have not used and specifically decline to use the “Buckley” factors when

reviewing a trial court’s determination of the reliability of a child’s outcry statement.

Instead, we agree with the Houston Court of Appeals’ approach in Broderick which

stated:

          Although courts have enumerated factors that may assist in ascertaining
          the reliability of an outcry statement, the focus of the inquiry must remain
          upon the outcry statement, not the abuse itself. Norris v. State, 788 S.W.2d
          65 (Tex. App.—Dallas 1990, pet. ref'd) (holding admission of outcry
          statement did not violate appellant's right of confrontation when outcry
          testimony contained indicia of reliability satisfying requirements for
          exception to hearsay rule). The indicia of reliability enumerated in Norris
          and similar cases, while useful to determine whether the outcry statement
          is admissible as an exception to the hearsay rule, should not be expanded
          into a requirement that the court examine the circumstances of the alleged
          abuse.

Broderick, 89 S.W.3d at 699.4

          In a review of the evidence presented at the hearing, the record shows that these

two statements were made three months after C.J.’s initial outcry, and after forensic

interviews, exams, and therapy, but that Wendi had not yet learned of the specific acts

committed against C.J.5 Additionally, although C.J.’s statements were in response to



4In Norris, like Buckley, reliability was not an issue and the court merely enumerated the factors but did
not apply them.

5The forensic interviewer did not testify at the hearing or at trial and the therapist, who testified at trial
only, stated that C.J. did not reveal any specific instances of sexual abuse by Jones. The doctor who
conducted the forensic exam testified at the trial only that C.J. revealed a specific act committed against

Jones v. State                                                                                         Page 8
questions by Wendi, the questions were in direct response to something else C.J.

spontaneously said to Wendi. For example, while in the bathroom at a local restaurant,

C.J. volunteered that sometimes she “tickles [her] tee-tee” before she goes to bed and

sometimes uses toys to assist her in doing so. Wendi explained to C.J. that she could

hurt herself doing that and then asked what Jones used. C.J. responded by sticking out

her tongue and pointing at it and then saying that he used his tongue.

         Thus, in reviewing the evidence in relation to time C.J.’s statements were made

to her mother, the content of C.J.’s statements, and the circumstances surrounding the

making of those statements, we find the trial court did not abuse its discretion in

determining these statements to be reliable.

         Jones’s first issue is overruled.

OPINION TESTIMONY

         In his second issue, Jones argues that the trial court erred in permitting opinion

testimony as to Wendi’s credibility. McLennan County Sheriff’s Deputy, William O.

Griffin testified about the initial report he took from Wendi and her husband, Kris,

regarding the offense. Toward the end of his testimony, the following exchange took

place:

         STATE: Did you have any concerns that either of them (Kris or Wendi)
         had some motive to make something up or they were vindictive?



her by Jones, but that the doctor did not tell Wendi about the act. Further, the act revealed to the doctor
was not one of the acts revealed to Wendi by C.J.

Jones v. State                                                                                      Page 9
        DEFENSE: Objection, Judge. That would call for pure speculation on the part
        of this witness.

        COURT: If he knows, I'll allow him to answer it, if he has any information
        on which to base that.

        WITNESS: No, Your Honor.

(Emphasis added).

        Jones’s issue and argument on appeal do not comport with the objection made at

trial. A complaint will not be preserved if the legal basis of the complaint raised on

appeal varies from the complaint made at trial. See TEX. R. APP. P. 33.1; Lovill v. State,

319 S.W.3d 687, 691-692 (Tex. Crim. App. 2009). Accordingly, because Jones’s issue

does not comport with the objection made at trial, the issue presents nothing for review

and is overruled.

CONCLUSION

        Having overruled each issue on appeal, we affirm the trial court’s judgments.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 3, 2014
Do not publish
[CRPM]



Jones v. State                                                                        Page 10
