Opinion issued June 14, 2018




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-17-00116-CR
                             ———————————
                       BRUCE WAYNE SUZA, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee


                On Appeal from the 412th Judicial District Court
                            Brazoria County, Texas
                       Trial Court Case No. 77839-CR


                           MEMORANDUM OPINION

      Appellant Bruce Wayne Suza appeals his conviction for aggravated sexual

assault of a child under 14 years old. In three issues, Suza argues (1) the evidence

was insufficient to support his conviction; (2) the trial court abused its discretion in

admitting evidence of an extraneous offense; and (3) the trial court abused its
discretion in allowing the complainant’s mother to testify as the outcry witness

because she was not the first adult to whom the complainant reported the sexual

assault. We reject each of Suza’s arguments and affirm.

                                     Background

      Suza was charged with aggravated sexual assault of L.S., a child under 14

years old, and the case proceeded to trial.

      L.S., who was six years old at the time of trial, testified that about a year before

trial, when he lived with his father and his grandfather (Suza), Suza touched his

private part with Suza’s hand and mouth.1 According to L.S., this happened “a lot.”

When asked what his private part was, L.S. responded “[m]y wee.”

      Wade Nichols, an Investigator with the Brazoria County Sheriff’s Office, also

testified. He explained that, in November 2015, Christian Suza reported the sexual

assault of her son, L.S. Nichols obtained a written statement from Christian, which

the State submitted into evidence. Nichols also made an appointment at the

Children’s Advocacy Center for L.S. and his siblings. Nichols reached out to Suza

and asked to meet with him. Suza initially agreed but later changed his mind. At

trial, the State introduced a voicemail Suza left for Nichols. In it, he denied touching




1
      Before L.S. testified, the trial judge met with L.S. in his chambers. The trial judge
      asked L.S. the difference between a truth and a lie and he asked L.S. to promise to
      tell the truth in the courtroom. L.S. agreed.
                                            2
L.S., but noted that he put L.S. under a blanket, naked, while he washed L.S.’s

clothes.

      Kristi Belloumini, the Director of the Brazoria County Alliance for Children,

testified that she met with L.S. and conducted a forensic interview. Belloumini

testified that L.S. became visibly uncomfortable during the “disclosure” portion of

the interview, he avoided eye contact, started looking around the room, and tried to

change the subject.

      Dr. Angela Bachim, a pediatrician with a specialization in child abuse

pediatrics, testified that she examined L.S. in November 2015. Dr. Bachim noted

that L.S. exhibited symptoms that showed he was under a lot of stress. Those

included decreased appetite, diarrhea and constipation, nausea, and, according to his

mother, weight loss. He also developed secondary enuresis—he began urinating in

his bed despite being potty-trained.2

      After reviewing her notes (which were admitted into evidence), Dr. Bachim

testified that she asked L.S. if he knew why he was there that day, and L.S. responded

“My grandpa sucked my wee wee. My grandpa told me to take off all my clothes

and that’s all.” When she asked L.S. how many times this had occurred, L.S.

responded “Six. I know because I counted every day.” Dr. Bachim testified that L.S.



2
      Dr. Bachim testified that it was not unusual for children who were victims of sexual
      abuse to “have accidents.”
                                           3
became withdrawn at that point. L.S. also told her that his grandfather touched his

bottom. Dr. Bachim examined L.S. and there were no injuries to L.S.’s genitals or

his anus. She noted, however, that the findings from the exam were not inconsistent

with the reported abuse because both anal and penile injuries were rare, particularly

with regard to the reported abuse. Dr. Bachim confirmed that L.S. told her directly

about the abuse and the information he provided was clear and consistent.

A.    Outcry Witness

      The State designated L.S.’s mother Christian as an outcry witness, and the

trial court held a hearing outside of the jury’s presence to determine the admissibility

of Christian’s testimony. In that hearing, Christian testified that, in October 2015,

her children—L.S. and his two sisters—moved back in with her after living with

their father, Troy, and paternal grandfather, Suza. In November 2015, Christian

obtained a restraining order to keep Troy away from her and her residence. Christian

testified that because she was unable to obtain a restraining order with regard to the

children, but had one for herself and her home, she decided to pull the children out

of school and homeschool them to keep their father away from them.

      As to the abuse, Christian testified that when she told L.S. that she was going

to keep him home, he said that he did not “want to go back to Dad’s house.” When

Christian asked him why, L.S. said that he did not “want to see Grandpa and Dad”

and that he did not “like being over there.” L.S. then told her: “Grandpa likes to suck


                                           4
on [my] wee wee.” Christian testified that she asked him whether he was sure and

understood what he was saying, and L.S. responded that he knew what he was saying

and that it had happened. He stated that Grandpa (Suza) would also touch him on his

bottom and make L.S. sleep naked with him. L.S. stated generally that he had told

his father, but his father “patted him on the head and smiled at him and walked

away.” Christian testified that she was the “first adult that . . . he shared the entire

story with.” Christian then went to the police, reported Suza, and completed a written

statement that the State offered into evidence.

      Following Christian’s testimony outside of the jury’s presence, the State

moved to have her declared an outcry witness under section 38.072. Suza’s counsel

did not object and stated that he had no response. The trial court permitted Christian

to testify as an outcry witness and she offered similar testimony before the jury.

B.    Extraneous Offense

      The trial court also held a hearing outside of the jury’s presence to determine

the admissibility, under article 38.37 of the Texas Code of Criminal Procedure, of

evidence of sexual assault of another child. This evidence concerned an allegation

by a minor, D.C., that Suza had abused him.

      At the hearing, Scott Eldridge, a former criminal investigator with the

Chambers County Sheriff’s Office, testified that, in 2010, he was assigned to an

investigation focused on a complaint by a minor child, D.C., against Suza. Suza lived


                                           5
with D.C.’s mother for a period of time and watched D.C. when his mother was

away.

        Eldridge stated that in the course of his investigation, he contacted Suza. Suza

denied touching D.C. in a sexual way and initially told Eldridge that he only touched

D.C. to make sure D.C. did not urinate in the bed. Elridrge obtained two statements

from Suza, and the State offered these statements into evidence and read them on

the record. In his first statement, Suza stated that D.C. slept with him at times and

sometimes D.C. wanted Suza to rub his stomach or his back. Suza stated, “if I

touched him I didn’t know. I was sleeping hard.” In his second statement, Suza

stated that D.C. pulled down his own pants exposing himself, saying it hurts. Suza

stated that the next night, D.C. touched Suza’s genitals. Suza further averred that he

“would never touch any kid like this sexually.” Eldridge testified that the case

eventually got dismissed. He did not know why.

        D.C., who was 16 years old at the time, also testified at the hearing. He averred

that Suza lived with his family in 2010, when D.C. was nine years old, and Suza

slept in a bed in his room. D.C. stated that Suza would rub his stomach and make

him rub Suza’s, which made D.C. uncomfortable. One day, Suza began touching

D.C.’s genitals in a rubbing motion underneath his clothes. D.C. testified that this

occurred more than once, but he could not remember the exact number of times.




                                            6
      Suza’s counsel objected to the admission of evidence of these extraneous acts

on the ground that the State had not presented sufficient evidence to establish the

offense beyond a reasonable doubt. Counsel argued that the State had not met its

burden of establishing that the alleged contact was done “with intent to arouse and

gratify sexual desire,” an element of indecency with a child.

      Overruling the objection, the trial court concluded that evidence of the

extraneous offense was admissible. The judge stated on the record that “the evidence

likely to be admitted will be adequate to support a finding by the jury that he

committed the separate offense beyond a reasonable doubt.” Suza’s counsel also

objected to the presentation of the evidence on due process grounds, but the trial

court overruled his objection.

      The trial court gave the following limiting instruction to the jury:

             You are instructed that if there is any evidence before you
             concerning alleged offenses against a child under 17 years
             of age other than the Complainant alleged in the
             indictment, such offense or offenses, if any, may only be
             considered if you believe beyond a reasonable doubt that
             the Defendant committed such other offense or offenses,
             if any, and then you may consider said evidence for any
             bearing the evidence has on relevant matters, including the
             character of the Defendant and acts performed in
             conformity with the character of the evidence.

D.C. and Eldridge then reiterated their testimony before the jury. On cross-

examination before the jury, D.C. testified that charges against Suza concerning his

allegation were dropped after D.C. told his mother that the abuse did not happen.

                                          7
      The jury convicted Suza of aggravated sexual assault of a child and assessed

punishment at 45 years’ imprisonment and a $10,000 fine. Suza appeals, raising

three issues.

                                     Discussion

      Suza offers three arguments on appeal: (1) the evidence was insufficient to

support his conviction; (2) the trial court abused its discretion in admitting evidence

of an extraneous offense; and (3) the trial court abused its discretion in allowing the

L.S.’s mother Christian to testify as the outcry witness because she was not the first

adult to whom the complainant reported the sexual assault. We address each in turn.

A.    Sufficiency of the Evidence

      In his first issue, Suza asserts that insufficient evidence supports his

conviction. We disagree.

      1.        Standard of Review

      We review the sufficiency of the evidence in the light most favorable to the

verdict and then determine whether a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Acosta v. State, 429 S.W.

3d 621, 624–25 (Tex. Crim. App. 2014). This standard of review allows a jury to

resolve fact issues and to draw reasonable inferences from the evidence. Thomas v.

State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). The jury is the sole judge of witness

credibility and weight to be attached to witness testimony, and when the record


                                          8
supports conflicting inferences, we presume that the jury resolved the conflicts in

favor of the verdict and we defer to that determination. Id.

       In a sufficiency inquiry, direct and circumstantial evidence are equally

probative. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Not every

fact presented must directly indicate the defendant is guilty, so long as the

cumulative force of the evidence is sufficient to support a finding of guilt. Nowlin v.

State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).

       2.     Applicable Law

       A person commits aggravated sexual assault of a child if, among other things,

he intentionally or knowingly causes the sexual organ of a child to contact or

penetrate the mouth, anus, or sexual organ of another person, including the actor.

TEX. PENAL CODE § 22.021(a)(1)(B)(iii).

       The testimony of a child victim alone is sufficient to support a conviction for

sexual abuse. TEX. CODE CRIM. PROC. art. 38.07(a). Uncorroborated outcry

testimony regarding the child’s disclosure of the sexual assault also suffices to

support a conviction. Eubanks v. State, 326 S.W.3d 231, 241 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d).

       3.     Analysis

       Suza contends that a rational trier of fact would not have found, beyond a

reasonable doubt, the essential elements of aggravated sexual assault of a child.


                                          9
Specifically, he contends that the following evidence overwhelmingly outweighs

any evidence of abuse: (1) Suza denied the molestation to Deputy Nichols, (2) L.S’s

mother was engaged in a custody battle that, he argues, “compromised L.S.’s

testimony,” and (3) because the charge concerning D.C.’s allegation was dismissed,

D.C.’s testimony was unreliable.

      We disagree and conclude that sufficient evidence supported the conviction.

The jury, as the trier of fact, was the sole judge of the credibility of the witnesses

and was free to accept or reject all or part of the witnesses’ testimony. See Diaz v.

State, 125 S.W.3d 739, 743–44 (Tex. App.—Houston [1st Dist.] 2003 pet. ref’d).

      As explained above, the complainant, six-year-old L.S., testified that Suza

repeatedly touched his private part with Suza’s hand and mouth. This testimony

alone could have been sufficient to support Suza’s conviction. See TEX. CODE CRIM.

PROC. art. 38.07(a); Gonzales v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st

Dist.] 2017, no pet.) (uncorroborated testimony of child victim alone was sufficient

to support conviction of aggravated sexual assault of child); Johnson v. State, 419

S.W.3d 665, 671–72 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (same).

      And this case included other evidence as well. For instance, L.S.’s mother

Christian, who was designated as the outcry witness, testified that L.S. informed her

of the abuse, including “Grandpa likes to suck on his wee wee.” Her testimony also




                                         10
supports the conviction. See Eubanks, 326 S.W.3d at 241 (outcry testimony

regarding child’s disclosure of the sexual assault suffices to support a conviction).

      Moreover, Dr. Bachim testified that L.S. told her about the abuse (“My

grandpa sucked my wee wee” six times). She stated that the symptoms L.S. suffered

showed he was under a lot of stress, and she noted that the details L.S. provided were

clear and consistent. Evidence also came in on which the jury could have concluded

that Suza committed a similar offense against nine-year-old D.C.

      Based on the evidence presented and viewing the evidence in the light most

favorable to the jury’s verdict, as we must, we conclude that a rational jury could

have found beyond a reasonable doubt that Suza committed the offense with which

he was charged. See, e.g., Gonzales, 522 S.W.3d at 57; Eubanks, 326 S.W.3d at 241.

      We overrule Suza’s first issue.

B.    Admissibility of Evidence of Extraneous Offense

      In his second issue, Suza argues that the trial court abused its discretion in

admitting D.C.’s testimony regarding Suza’s extraneous offense because, Suza

argues, the evidence was insufficient to establish beyond a reasonable doubt that the

offense had occurred. We find no abuse of discretion.

      1.     Standard of Review and Applicable Law

      We review a trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).


                                          11
A trial court’s ruling will not be reversed unless it falls outside the zone of reasonable

disagreement. Id.

      An extraneous offense is “any act of misconduct, whether resulting in

prosecution or not, that is not shown in the charging papers.” Rankin v. State, 953

S.W.2d 740, 741 (Tex. Crim. App. 1996) (emphasis omitted). In general, extraneous

offense evidence may not be admitted “to prove a person’s character in order to show

that on a particular occasion the person acted in accordance with the character.” See

TEX. R. EVID. 404(b)(1); Batiste v. State, 217 S.W.3d 74, 84 (Tex. App.—Houston

[1st Dist.] 2006, no pet.).

      The Legislature has specifically carved out an exception to this general rule,

however, for certain crimes against children. Article 38.37 of the Texas Code of

Criminal Procedure provides:

      [n]otwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject
      to Section 2-a, evidence that the defendant has committed a separate offense
      described by subsection (a)(1) or (2) may be admitted in the trial of an alleged
      offense described by subsection (a)(1) or (2) for any bearing the evidence has
      on relevant matters, including the character of the defendant and acts
      performed in conformity with the character of the defendant.

TEX. CODE CRIM. PROC. art. 38.37, § 2(b) (emphasis added). We interpret statutes

according to their plain language, and this provision expressly permits the

introduction of evidence—including the type of evidence at issue here—for any

bearing the evidence has on relevant matters, including to show that the defendant

acted in conformity with his character.
                                           12
      The statute also provides that, “[b]efore [such] evidence . . . may be

introduced, the trial judge must (1) determine that the evidence likely to be admitted

at trial will be adequate to support a finding by the jury that the defendant committed

the separate offense beyond a reasonable doubt, and (2) conduct a hearing out of the

presence of the jury for that purpose.” TEX. CODE CRIM. PROC. art. 38.37, § 2-a.

      2.     Analysis

      Suza does not dispute that the trial judge held a hearing outside of the jury’s

presence and determined that the evidence was adequate to support a finding by the

jury, beyond a reasonable doubt, that Suza committed the separate offense against

D.C. See TEX. CODE CRIM. PROC. art. 38.37, § 2-a. Suza instead argues that the

evidence was insufficient to support the trial judge’s determination. In particular,

Suza contends that because D.C. at one point recanted his accusation against Suza,

the jury could not find beyond a reasonable doubt that Suza committed the

extraneous offense.3 We disagree.


3
      To the extent that Suza argues that evidence of the extraneous offense against D.C.
      should not have been admitted because it was overly prejudicial, he does not provide
      any reasoning or authority in support of this argument. The court may exclude
      otherwise relevant and admissible evidence under Texas Rule of Evidence 403 if its
      probative value is substantially outweighed by the danger of unfair prejudice,
      confusing the issues, misleading the jury, undue delay, or needless presentation of
      cumulative evidence. TEX. R. EVID. 403; Alvarez v. State, 491 S.W.3d 362, 370
      (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). A trial court is afforded discretion
      in determining whether evidence is admissible under Rule 403, Alvarez, 491 S.W.3d
      at 370; Burke v. State, 371 S.W.3d 252, 257 (Tex. App.—Houston [1st Dist.] 2011,
      pet. dism’d), and we presume that the probative value of this evidence outweighs
      any prejudicial effect. Burke, 371 S.W.3d at 257. On this record and in light of
                                            13
      The testimony of a child victim—here, D.C.—is alone sufficient to support a

finding, beyond a reasonable doubt, that a person committed sexual abuse. TEX.

CODE CRIM. PROC. art. 38.07(a); see also Gonzales, 522 S.W.3d at 57; Johnson, 419

S.W.3d at 671–72. As detailed above, before the judge (and then jury), D.C. testified

that, when he was nine years old and living with Suza, Suza touched his genitals in

a rubbing motion underneath his clothes. D.C. affirmed that he had sworn under oath

to tell the truth, and he reiterated that Suza touched him inappropriately.

      In addition to D.C.’s testimony about the extraneous offense, Scott Eldridge,

a former criminal investigator with the Chambers County Sheriff’s Office, testified

about his investigation. The judge (and then jury) were shown Suza’s statements, in

which Suza denied touching D.C. “sexually,” but asserted that D.C. exposed his

genitals to Suza and that D.C. touched Suza’s genitals.

      Despite this evidence, Suza argues that a fact finder could not have concluded,

beyond a reasonable doubt, that he committed the offense because D.C. at one point

in the past offered a conflicting story of what happened (recanting his accusation).

But the judge and jury were presented with all facts, including D.C.’s current

testimony about the offense and the fact that he had previously recanted. They were



      article 38.37, we cannot conclude that Suza has overcome this presumption. See
      Alvarez, 491 S.W.3d at 370 (noting Rule 403 does not allow “a trial court to exclude
      otherwise relevant evidence when that evidence is merely prejudicial” and rule
      “should be used sparingly,” only when prejudicial effects substantially outweigh
      probative nature of evidence).
                                           14
free to judge credibility and determine whether—taken in sum—adequate evidence

supported a finding, beyond a reasonable doubt, that Suza committed the separate

offense against D.C. See, e.g., Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim.

App. 1991) (child complainant’s recantation of earlier testimony that appellant had

sexually abused her did not destroy probative value of her earlier testimony; trier of

fact could choose to believe all, some, or none of the testimony presented by

parties).4

       We overrule Suza’s second issue.

C.     Designation of Outcry Witness

       In his third issue, Suza contends that the trial court improperly designated

L.S’s mother Christian as the outcry witness because she was not the first person to




4
       See also Flores v. State, No. 05–16–00576–CR, 2017 WL 3033414, at *10 (Tex.
       App.—Dallas Jul. 18, 2017, no pet.) (mem. op., not designated for publication)
       (rejecting sufficiency challenge to conviction for aggravated sexual assault of a
       child because “[t]o the extent [the victim’s] testimony was inconsistent and/or vague
       regarding the details surrounding the offense, this concerned her credibility as a
       witness, which was a matter for the jury in its role as the sole judge of the weight
       and credibility of the evidence”); Gregg v. State, No. 05–16–00557–CR, 2017 WL
       2334239, at *3 (Tex. App.—Dallas May 26, 2017, pet. ref’d) (mem. op., not
       designated for publication) (Jury’s decision to believe child sexual assault victim
       who recanted and then reasserted accusations during trial was not
       unreasonable); Moody v. State, 545 S.W.3d 309, 314 (Tex. App.—Eastland 2017,
       pet. ref’d) (“[I]nconsistencies” in testimony of child sexual assault victim “do not
       automatically lower evidence below the required standard”); Eubanks, 326 S.W.3d
       at 241 (“[W]hen a witness recants prior testimony, it is up to the fact finder to
       determine whether to believe the original statement or the recantation”).
                                            15
whom L.S. reported the sexual assault. Because Suza did not object below, he did

not preserve this issue for our review.

      Texas Code of Criminal Procedure 38.072, the outcry statute, provides that a

child abuse victim’s statement to another is not inadmissible hearsay if the statement

describes the alleged offense and the person to whom the statement is made is at

least 18 years old and is the first person the child informed about the offense. TEX.

CODE CRIM. PROC. art. 38.072; see also Garcia v. State, 792 S.W.2d 88, 91 (Tex.

Crim. App. 1990) (en banc); Carty v. State, 178 S.W.3d 297, 305 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d). In general, the proper outcry witness is the first

adult to whom the alleged victim relates the “how, when, and where” the abuse took

place. See Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008, pet.

ref’d). There can be only one outcry witness per event. Lopez v. State, 343 S.W.3d

137, 140 (Tex. Crim. App. 2011) (citing Broderick v. State, 35 S.W.3d 67, 73–74

(Tex. App.—Texarkana 2000, pet. ref’d)). But the Court of Criminal Appeals has

held that if the child offers only a “general allusion” of sexual abuse to a first person,

and he offers a more detailed account to a second person, the second person may be

the proper outcry witness. Garcia, 792 S.W.2d at 91 (“The statute demands more

than a general allusion of sexual abuse” so trial court did not abuse its discretion in

designating child protective specialist as outcry witness where record was devoid of

specific details of statement previously made to child’s teacher).


                                           16
      “When the State offers an out-of-court statement pursuant to article 38.072 of

the Texas Code of Criminal Procedure, a defendant must object to the statement to

preserve error for appellate review.” Rosas v. State, 76 S.W.3d 771, 776–77 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (citing Holland v. State, 802 S.W.2d 696,

699–700 (Tex. Crim. App. 1991)). Failure to object waives the complaint on appeal.

Id. at 777.

      Because Suza did not object to the designation of Christian as the outcry

witness, he has not preserved this issue for appeal. See TEX. R. APP. P. 33.1; Rojas,

76 S.W.3d at 776–77; see also Davis v. State, No. 14-08-00985-CR, 2010 WL

2573813, at *2–3 (Tex. App.—Houston [14th Dist.] June 29, 2010, pet. ref’d) (mem.

op., not designated for publication) (appellant’s reliability objection to witness’s

outcry testimony did not preserve error regarding whether witness was first adult to

whom outcry was made); Martinez v. State, 822 S.W.2d 276, 278 (Tex. App.—

Corpus Christi 1991, no pet.) (where appellant failed to complain at trial that outcry

witness was not first person over 18 to whom the child described the incident, issue

was not preserved for appeal).

      Accordingly, we overrule Suza’s third issue.




                                         17
                                   Conclusion

      We affirm the judgment of the trial court.




                                                Jennifer Caughey
                                                Justice

Panel consists of Justices Bland, Lloyd, and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).




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