                     PD-1231-15                                        PD-1231-15
                                                     COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                     Transmitted 9/17/2015 8:06:42 PM
                                                      Accepted 9/22/2015 11:44:58 AM
                                                                       ABEL ACOSTA
                     NO. _____________ PD                                      CLERK

                           IN THE

                     COURT OF CRIMINAL

                          APPEALS

                        OF TEXAS
       ___________________________________________

                        JACOY NIXON

                          Petitioner,

                             VS.

                     THE STATE OF TEXAS

                        Respondent
_________________________________________________________

         Petition in Cause No. 12-05-05609-CR from the
        TH
       9 District Court of Montgomery County, Texas and
                    the Court of Appeals for the
                       14TH District of Texas
_________________________________________________________

        PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________

                                   TOM ABBATE
                                   440 LOUISIANA ST, STE 200
                                   HOUSTON, TX 77002
                                   T: 713.223.0404
                                   F: 800.501.3088
                                   tom@tomabbatelaw.com
September 22, 2015                 SBOT # 24072501

                                   ATTORNEY FOR PETITIONER
              IDENTITIES OF PARTIES AND COUNSEL

PETITIONER:                 JACOY NIXON

PRESIDING JUDGE:            HON. KELLY CASE
                            9th District Court
                            Montgomery County Courthouse
                            207 West Phillips, Suite 306
                            Conroe, Texas 77301
                            (936) 539-7866

PROSECUTORS:                MS. ROCHELLE L. GUITON
                            MS. NANCY HEBERT
                            Assistant District Attorney
                            Montgomery Co. District Attorney’s Office
                            207 West Phillips, 2nd floor
                            Conroe, Texas 77301
                            (936) 539-7800

TRIAL COUNSEL:              MR. JARROD L. WALKER
                            300 West Davis St, Ste. 450
                            Conroe, Texas 77301
                            (936) 539-3335

APPELLATE COUNSEL:          MR. TOM ABBATE
                            440 Louisiana, Ste 200
                            Houston, Texas 77002
                            (713)-223-0404

APPELLEE COUNSEL:           MR. WILLIAM J. DELMORE III
                            Assistant District Attorney
                            Montgomery Co. District Attorney’s Office
                            207 West Phillips, 2nd floor
                            Conroe, Texas 77301
                            (936) 539-7800




                              2
                                                TABLE OF CONTENTS


IDENTITIES OF PARTIES AND COUNSEL .............................................................................. 2
INDEX OF AUTHORITIES........................................................................................................... 4
STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 6
STATEMENT OF THE CASE....................................................................................................... 6
STATEMENT OF PROCEDURAL HISTORY ............................................................................. 6
QUESTIONS PRESENTED FOR REVIEW ................................................................................. 7
REASON FOR REVIEW ............................................................................................................... 7
REASON FOR REVIEW ............................................................................................................. 10
PRAYER FOR RELIEF ............................................................................................................... 16
CERTIFICATE OF SERVICE ..................................................................................................... 17
CERTIFICATE OF COMPLIANCE ............................................................................................ 17
APPENDIX ................................................................................................................................... 18




                                                                      3
                                             INDEX OF AUTHORITIES
Cases
Berotte v. State, 992 S.W.2d 13 (Tex. App.--Houston [1st Dist.] 1997) ........................................ 9
Broderick v. State, 89 S.W.3d 696 (Tex. App.—Houston [1st Dist.] 2002) ................................ 12
Castelan v. State, 54 S.W.3d 469 (Tex. App.—Corpus Christi 2001) ......................................... 12
Clark v. State, 659 S.W.2d 53 (Tex. App.--Houston [14th Dist.] 1983) .................................. 8, 10
De Los Santos v. State, 219 S.W.3d 71 (Tex. App.--San Antonio 2006) ....................................... 9
Dufrene v. State, 853 S.W.2d 86 (Tex.App. —Houston [14 Dist.] 1993) .............................. 7, 8, 9
Duran v. State, 163 S.W.3d 253 (Tex. App.—Fort Worth 2005)........................................... 13, 16
Fields v. State, 500 S.W.2d 500 (Tex. Crim. App. 1973) ............................................................... 7
Fox v. State, 175 S.W.3d 475 (Tex. App.—Texarkana 2005) ........................................................ 8
Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) ....................................................... 12, 13
Hanson v. State, 180 S.W.3d 726 (Tex. App.—Waco 2005) ....................................................... 12
Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004) ..................................................... 16
Hogan v. State, __ S.W.3d __, 2013 WL 5728159 (Tex. App.--Houston [14th Dist.] 2013) .... 7, 9
Johnson v. State, 967 S.W.2d 410 (Tex.Crim.App. 1998) ..................................................... 13, 15
King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997) ........................................................... 13, 15
Long v. State, 770 S.W.2d 27 (Tex. App.--Houston [14th Dist.] 1989) ......................................... 9
Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990)............................................................... 12
Michell v. State, 381 S.W.3d 554 (Tex. App.— Eastland 2012) .................................................. 13
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .............................................. 8, 10
Moore v. State, 233 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2007) ...................................... 11
Nino v. State, 223 S.W.3d 749 (Tex. App.—Houston [14th Dist.] 2007) .................................... 13
Nixon v. State, 14-14-00534-CR (Tex. App.--Houston [14th Dist.] 2014) ...................... 10, 15, 16
Norris v. State, 788 S.W.2d 65 (Tex. App.—Dallas 1990) .................................................... 12, 15
Prince v. State, 192 S.W.3d 49 (Tex. App.--Houston [14th Dist.] 2006)....................................... 8
Sanchez v. State, 354 S.W.3d 476 (Tex. Crim. App. 2011) ........................................ 11, 12, 14, 15
Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) ...................................................... 13, 15
Statutes
Tex. Code Crim. Proc. art. 38.072 .................................................................................... 10, 11, 13
Rules
Tex. R. App. P. 33.1...................................................................................................................... 13
Tex. R. App. P. 44.2................................................................................................................ 13, 15
Tex. R. Evid. 601 ............................................................................................................................ 7
Tex. R. Evid. 802 .......................................................................................................................... 10
Tex. R. Evid. 803 .......................................................................................................................... 10




                                                                       4
                       NO. _____________ PD

                               IN THE

                       COURT OF CRIMINAL

                              APPEALS

                          OF TEXAS
         ___________________________________________

                           JACOY NIXON

                              Petitioner,

                                  VS.

                      THE STATE OF TEXAS

                         Respondent
 _________________________________________________________

          Petition in Cause No. 12-05-05609-CR from the
          TH
        9 District Court of Montgomery County, Texas and
                     the Court of Appeals for the
                        14TH District of Texas
__________________________________________________________

        PETITION OF DISCRETIONARY REIVEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
                APPEALS OF TEXAS

   Jacoy Nixon, petitions the Court to review the judgment affirming
    his conviction for aggravated sexual assault of a child under six
                     in Cause No. 12-05-05609-CR




                                   5
              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would assist to resolve whether the trial court abused its

discretion by finding the complainant competent to testify and in admitting the

outcry statement under Article 38.072 of the Texas Code of Criminal Procedure.

                          STATEMENT OF THE CASE

      This is an appeal from the Trial Court’s JUDGMENT OF CONVICTION

BY JURY finding JACOY NIXON (hereinafter, “Appellant,”), GUILTY of the

charge AGGRAVATED SEXUAL ASSAULT OF A CHILD UNDER AGE 6 and

sentencing him to 41 YEARS TDCJ in Cause No. 12-05-05609-CR. (CLRK. REC.

- 220). On May 22, 2012, a grand jury indicted Appellant for the felony offense of

“intentionally or knowingly cause the penetration of the mouth of L.H., a child who

was then and there younger than 14 years of age, by the defendant’s sexual organ.”

(CLRK. REC. – 10). Appellant filed a NOTICE OF APPEAL on June 25, 2014.

(CLRK. REC. – 235).

                 STATEMENT OF PROCEDURAL HISTORY

      The court of appeals rendered its decision affirming the petitioner’s

conviction on AUGUST 18, 2015. The Petitioner did not file a motion for rehearing.

This petition was then filed with the clerk of the court of appeals within 30 days after

the ruling.




                                           6
                     QUESTIONS PRESENTED FOR REVIEW

      Did the Trial Court abuse its discretion in finding that the
      complainant was competent to testify in this case?

                             REASON FOR REVIEW

      As a general rule, a witness is presumed to be competent to testify. Tex. R.

Evid. 601. A child is not competent to testify when, after an examination by the trial

court, the child does not appear "to possess sufficient intellect to relate transactions

with respect to which [the child is] interrogated." Tex. R. Evid. 601(a)(2); Hogan v.

State, __ S.W.3d __, 2013 WL 5728159, at *1 (Tex. App.--Houston [14th Dist.]

2013, pet. filed).

      When a party challenges the competency of a child witness, the trial court will

consider whether the child witness possesses (1) the ability to intelligently observe

the events in question at the time of the occurrence, (2) the capacity to recollect the

events, and (3) the capacity to narrate the events. See Hogan, __ S.W.3d at __, 2013

WL 5728159, at *1. The third element involves the ability to understand the moral

responsibility to tell the truth, to understand the questions posed, and to frame

intelligent answers. See Id. Although the child need not understand the "obligation

of the oath," the trial court must impress the child with the duty to be truthful. See

Dufrene v. State, 853 S.W.2d 86, 88 (Tex.App. —Houston [14 Dist.] 1993). There

is no precise age under which a child is deemed incompetent to testify. See Fields v.

State, 500 S.W.2d 500, 502-03 (Tex. Crim. App. 1973); Clark v. State, 659 S.W.2d
                                           7
53, 55 (Tex. App.--Houston [14th Dist.] 1983, no pet.).

            To preserve error on Confrontation Clause grounds, an objection must

be made at trial as soon as the basis for the objection becomes apparent. Prince v.

State, 192 S.W.3d 49, 58 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd). A trial

court's determination of whether a child witness is competent to testify will not be

disturbed on appeal absent an abuse of discretion. Dufrene, 853 S.W.2d at 88. An

appellate court must review the child's responses to qualification questions as well

as the child's entire testimony to determine whether the trial court's ruling on

competency constituted an abuse of discretion. Fox v. State, 175 S.W.3d 475, 481

(Tex. App.—Texarkana 2005, pet. ref'd). A trial court does not abuse its discretion

if its ruling was within the zone of reasonable disagreement. See Montgomery v.

State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

      Appellant preserved the issue of competency on several occasions by filing a

motion in limine, obtaining a ruling thereon, objecting to L.H.’s testimony on

confrontational grounds during the 601 review, and finally, reurging the objection

in his motion for a directed verdict. The error was therefore properly preserved.

Prince, 192 S.W.3d at 58.

      The complainant’s answers and testimony in this case showed extreme

conflict and confusion, and overall her testimony indicated insufficient accuracy in

her recollection. See Berotte v. State, 992 S.W.2d 13, 17 (Tex. App.--Houston [1st


                                         8
Dist.] 1997, pet. ref'd); Long v. State, 770 S.W.2d 27, 29 (Tex. App.--Houston [14th

Dist.] 1989), rev'd on other grounds, 800 S.W.2d 545 (Tex. Crim. App. 1990).

Appellant argues that the level of inconsistency in the complainant’s responses and

testimony about the events goes to her competency as opposed to her credibility. See

De Los Santos v. State, 219 S.W.3d 71, 80-81 (Tex. App.--San Antonio 2006, no

pet.).

         Appellant points out that L.H. had difficulty remembering him and his step-

mother, Chitra Johnson. When asked about the alleged offense during the

examination and her testimony, she repeatedly stated that she did not remember, and

gave conflicting answers when asked about the events in question. Finally, Appellant

points out that the complaining witness had difficulty describing even recent events,

as she initially answered in the negative when asked if she remembered discussing

the events with the judge, which had occurred twice within the previous twenty-four

hour period. (RR.IV – 55-56).

         In light of the complainant's answers to the qualification questions and her

testimony as a whole during the proceedings, the record demonstrates that she did

not possess the ability to intelligently observe the events in question at the time of

the occurrence, was not capable of recollecting the events, and was not capable of

narrating the events. See Hogan, __ S.W.3d at __, 2013 WL 5728159, at *1-5;

Dufrene, 853 S.W.2d at 88-89; Long, 770 S.W.2d at 29; Clark, 659 S.W.2d at 54-


                                           9
55. Finally, because the record demonstrates that the complainant did not possess

the requisite capacity to be competent to testify, the trial court’s decision to admit

that testimony is outside the zone of reasonable disagreement and is therefore an

abuse of its discretion. See Montgomery, 810 S.W.2d at 391.

      The Court of Appeals, however, held that the record as a whole reflected that

the complainant knew the difference between a truth and a lie, understood questions,

and responded intelligently. Nixon v. State, 14-14-00534-CR, at *6 (Tex. App.--

Houston [14th Dist.] 2014). Further, the court opined that “[a]lthough some of the

complainant’s responses were inconsistent, overall she responded sufficiently and

was able to convey to the jury the details of what occurred.” Id. Therefore, the court

held that the trial court did not abuse its discretion by finding that the complainant

was competent to testify. Id.

      Did the Trial Court abuse its discretion under Article 38.072 of the
      Texas Code of Criminal Procedure?

                            REASON FOR REVIEW

      Hearsay statements are generally inadmissible unless permitted by statute or

evidentiary rule. See Tex. R. Evid. 802, 803. Article 38.072 provides an exception

to the hearsay rule by allowing evidence of an "outcry statement" by a child

complainant younger than fourteen years old. See Tex. Code Crim. Proc. art. 38.072,

§ 2(a). When a defendant is charged with certain offenses against a child under the

age of fourteen, article 38.072 allows into evidence the complainant's out-of-court
                                         10
statement so long as that statement, is reliable, describes the alleged offense, and is

offered into evidence by the first adult to whom the child made a statement about

the offense. Id; Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).

      Article 38.072 has several requirements that must be met before an outcry

witness may testify. See Tex. Crim. Proc. art. 38.072. At least fourteen days before

trial, the State must notify the defendant of its intention to call an outcry witness and

must provide the name of that witness. Id. The State must also provide a summary

of the outcry statement that will be offered into evidence. Id. art.          38.072, §

2(b)(1)(C). The victim must either testify or be available to testify at the proceeding

in court or in any other manner provided by law. Id. art. 38, 072, § 2(b)(3). And

finally, outside the presence of the jury, the trial court must hold a hearing to

determine whether the victim's out-of-court statement is "reliable" based on the

"time, content, and circumstances of the statement." Id. art. 38.072, § 2(b)(2). The

statute is mandatory, and the trial court commits error if it overrules a hearsay

objection without first conducting the hearing. Moore v. State, 233 S.W.3d 32, 35

(Tex. App.—Houston [1st Dist.] 2007, no pet).

      “To whom the child made a statement about the offense." Has been construed

to mean that the proper outcry witness is the first adult person "to whom the child

makes a statement that in some discernible manner describes the alleged offense …

[T]he statement must be more than words which give a general allusion that


                                           11
something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88,

92 (Tex. Crim. App. 1990); see Castelan v. State, 54 S.W.3d 469, 475 (Tex. App.—

Corpus Christi 2001, no pet.). In other words, the proper outcry witness is the first

adult, other than the accused, to whom the complainant told the "how, when, and

where" of the offense. Hanson v. State, 180 S.W.3d 726, 729 (Tex. App.—Waco

2005, no pet.).

      Further, 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, 354 S.W.3d at 487-488. 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). 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).

      A general hearsay objection is sufficient to preserve a claim under article

38.072. See Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990). However,

an appellant must also object on the basis of reliability to preserve a claim that the


                                           12
statement fails that portion of the test under 38.072. See Tex. R. App. P. 33.1(a)(1);

Duran v. State, 163 S.W.3d 253, 256 (Tex. App.—Fort Worth 2005, no pet.).

      Once such an objection is made, a trial court's determination that an outcry

statement is admissible under article 38.072 will not be overturned absent an abuse

of discretion. Nino v. State, 223 S.W.3d 749, 752 (Tex. App.—Houston [14th Dist.]

2007, no pet.) (citing Garcia, 792 S.W.2d at 92); Michell v. State, 381 S.W.3d 554,

558 (Tex. App.— Eastland 2012, no pet.).

      Finally, reversal of a conviction due to the erroneous admission of hearsay

testimony must follow if it is determined that the admission affected an appellant's

substantial rights. See Tex. R. App. P. 44.2(b); Taylor v. State, 268 S.W.3d 571, 592

(Tex. Crim. App. 2008). A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). A conviction should not be

overturned for such error if this Court, after examining the record as a whole, has

fair assurance that the error did not influence the jury, or had but a slight effect.

Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).

      As demonstrated above, the complainant in this case was not competent to

testify due to her inability to intelligently observe the events in question, to recollect

the events, and to narrate the events. She was therefore not available to testify. See

Tex. Crim. Proc. art. 38.072, § 2(b)(3). Because the requirements of 38.072 are


                                           13
mandatory, it was clearly an abuse of discretion for the trial court to admit the outcry

statement through the testimony of the complainant’s mother. Appellant properly

preserved this issue by pointing out that to the trial court that the statute required that

the complainant be available to testify before the outcry statement could be

admissible. (RR.III – 108).

       Further, even if the complainant was competent to testify, the trial court erred

in finding that the statement was reliable based on the “time, content, and

circumstances.” As stated above, it is reliability of the statement itself that is in

question, and not the credibility of the outcry witness. Sanchez, 354 S.W.3d at 487-

488. This issue was also properly preserved as defense counsel objected to the

admissibility of the outcry statements during the multiple bench hearings.

       In this case, the trial court heard the testimony of the outcry witness herself,

as well as the complainant, outside the presence of the jury for the purposes of ruling

on the admissibility thereof. However, the trial court did not examine the

complainant regarding the circumstances of the outcry statement itself during either

38.072 examination before finding her credible and reliable. (RR.III – 108-109).

Because the focus of the inquiry must remain upon the outcry statement, and not the

abuse itself, the trial court abused its discretion by finding the statement to be reliable

as it had not examined the complainant regarding the statement itself. Norris, 788




                                            14
S.W.2d 65. Instead, the trial court determined the reliability of the statement based

on the credibility of the outcry witness. Sanchez, 354 S.W.3d at 487-488.

      Finally, reversal of this conviction due to the erroneous admission of hearsay

testimony must follow as it is clear that the admission affected the Appellant's

substantial rights. See Tex. R. App. P. 44.2(b); Taylor, 268 S.W.3d at 592. The error

in this case had a substantial and injurious effect or influence in determining the

jury's verdict, due to the fact that if the outcry statement had been excluded because

to the complainant was not available to testify, or because the statement itself was

unreliable, the evidence in this case would have been legally insufficient to support

the conviction. King, 953 S.W.2d at 271. Because a review of the record as a whole

clearly demonstrates that the error did in fact heavily influence the jury, reversal

should follow. Johnson, 967 S.W.2d at 417.

      The Court of Appeals, however, held that the appellant had failed to object to

the outcry statement’s reliability based on the circumstances, and therefore did not

properly preserve the error for review. Nixon, 14-14-00534-CR, at *10. According

to the court of appeals, appellant had an opportunity to request that the trial court

question the complainant regarding the circumstances in which she first outcried to

her mother, but instead chose to object to the hearing based on the complainant’s

competency under Rule 601. Id. at 9.

      Moreover, the court of appeals did not find an objection, from appellant, to


                                         15
the reliability of the outcry statement based on the circumstances surrounding the

statement, nor did it believe that the appellant’s grounds for objection were so

obvious that the court would be put on notice. Id. Finally, the court of appeals noted

that the trial court gave both parties an opportunity to suggest questions to determine

the reliability of the outcry statement during the hearing, and that “Appellant’s only

proffered questions related to the complainant’s ability to recollect, which is an

element of Rule 601.” Id. (citing Duran, 163 S.W.3d at 256; Heidelberg v. State,

144 S.W.3d 535, 542–43 (Tex. Crim. App. 2004)).

                             PRAYER FOR RELIEF

      ACCORDINGLY, this Court should GRANT this PETITION FOR

DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the

question of whether the evidence against the Petitioner was legally sufficient to

support his conviction.

      Petitioner further prays for all relief to which he may be entitled.

                                               Respectfully submitted,

                                               ___________________________
                                               TOM ABBATE
                                               440 LOUISIANA ST, STE 200
                                               HOUSTON, TX 77002
                                               T: 713.223.0404
                                               F: 800.501.3088
                                               tom@tomabbatelaw.com
                                               SBOT # 24072501

                                               ATTORNEY FOR PETITIONER
                                          16
                       CERTIFICATE OF SERVICE


     I hereby certify that a true and correct copy of the foregoing PETITION FOR

DISCRETIONARY REVIEW was delivered to the MONTGOMERY County

District Attorney’s Office by CERTIFIED MAIL on SEPTEMBER 18, 2015



                                            ___________________________
                                            TOM ABBATE

                    CERTIFICATE OF COMPLIANCE

     I hereby certify that there are 3,399 words contained in this document.


                                            ___________________________
                                            TOM ABBATE




                                       17
APPENDIX




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