                                                                                    PD-1662-15
                                                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                         Transmitted 12/22/2015 10:32:26 AM
                                                           Accepted 12/22/2015 10:40:57 AM
             PDR NO.    ____________________________________                 ABEL ACOSTA
                                                                                     CLERK
                  COURT APPEAL NO. 02-14-00377-CR

                             IN THE TEXAS
                       COURT OF CRIMINAL APPEALS
                           AT AUSTIN, TEXAS

                            RAFAEL RODRIGUEZ                        December 22, 2015
                                 Petitioner

                                       VS.

                        THE STATE OF TEXAS
                              Respondent
       _______________________________________________________

               PETITION FOR DISCRETIONARY REVIEW
                       OF THE OPINION OF THE
                   SECOND COURT OF APPEALS OF
                        THE STATE OF TEXAS
       _______________________________________________________


                               BLAKE R. BURNS
                           115 North Henderson Street
                         Fort Worth, Texas 76102-1940
                         (817) 870-1544 FAX 870-1589
                         State Bar No. 24066989



TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

      COMES NOW, RAFAEL RODRIGUEZ, Petitioner and files this her

Petition for Discretionary Review of the decision of the Second Court of Appeals.


                                        i
LIST OF INTERESTED PARTIES

JUDGES:
The Honorable Judge Louis Sterns
District Court No. 213 of Tarrant County, Texas

TRIAL COUNSEL:

The Honorable Kasey Fickes, Counsel for the State
Tarrant County Criminal District Attorney’s Office
401 W. Belknap St.
Fort Worth, Texas 76196

The Honorable Eloy Sepulveda, Trial Counsel for Appellant
603 E. Belknap St.
Fort Worth, Texas 76102

APPELLATE COUNSEL:

Blake R. Burns, Appellate Counsel for Petitioner
115 North Henderson Street
Fort Worth, Texas 76102

             STATEMENT REGARDING ORAL ARGUMENT

      Petitioner requests oral argument.




                                           ii
                                      TABLE OF CONTENTS

LIST OF INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

POINTS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASON FOR REVIEW NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

                THE COURT OF APPEALS DECISION DEPARTED
                SO FAR FROM ACCEPTED AND USUAL COURSE OF
                JUDICIAL PROCEEDINGS, OR SANCTIONED
                SUCH DEPARTURE BY THE LOWER COURT, AS TO
                CALL FOR THE EXERCISE OF THE COURT OF
                CRIMINAL APPEALS’ POWER OF SUPERVISION
                WHEN IT HELD THAT APPELLANT ACCUSATIONS
                OF ILLEGAL SEXUAL CONTACT MADE BY THE ALLEGED
                WHICH SHE LATER RECANTED, DID NOT RENDER
                THEM FALSE.

REASON FOR REVIEW NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

                THE COURT OF APPEALS DECISION DEPARTED
                SO FAR FROM ACCEPTED AND USUAL COURSE OF
                JUDICIAL PROCEEDINGS, OR SANCTIONED
                SUCH DEPARTURE BY THE LOWER COURT, AS TO
                CALL FOR THE EXERCISE OF THE COURT OF
                CRIMINAL APPEALS’ POWER OF SUPERVISION
                WHEN IT HELD THAT THE OFFENSE OF INDECENCY
                WITH A CHILD BY TOUCHING OF THE VAGINA
                                                    iii
                  IS NOT SUBSUMED WITHIN THE OFFENSE OF
                  SEXUAL ASSAULT OF A CHILD ALLEGED TO
                  HAVE OCCURRED ON THE SAME DATE.


CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8




                                                          iv
                         TABLE OF CASES AND AUTHORITIES

Cases:                                                                                       Page

Hughes v. State, 850 S.W.2d 260 (Tex. App.—Fort Worth 1993, pet. ref’d)) . . . . 2

Tex.Cod.Crim.Pro Art. 37.07(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Texas Constitution, Article 1, Section 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States Constitution. Fifth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States Constitution. Fourteenth Amendments . . . . . . . . . . . . . . . . . . . . . . . 5




                                                      v
                          STATEMENT OF THE CASE

      Appellant, Rafael Rodriguez, was the defendant in the present case.

Appellant was indicted for Aggravated Sexual Assault of a Child in count one of

the indictment and two counts of Indecency with a Child in counts two and three

on April 15, 2013. (C.R. p. 7).

      On August 25, 2014, Appellant entered a plea of “not guilty” to all counts

and the trial court proceeded with a jury trial. (C.R. p. 10). After a trial, Appellant

was found guilty all three counts. (R.R. Vol. 6, p. 33). Appellant received a

sentence of 13 years confinement in TDC on count one, four years on count two,

and and five years on count three to be served concurrently. (C.R. p. 167); (C.R. p.

170); (C.R. p. 173).



                            PROCEDURAL HISTORY

      On November 25, 2015, the Second Court of Appeals affirmed the judgment

of the trial court. Rodriguez v. State, 02-14-00377. Appellant did not file a motion

for rehearing.




                                           1
                            REASONS FOR REVIEW

REASON FOR REVIEW NUMBER ONE.                       THE COURT OF APPEALS

DECISION DEPARTED SO FAR FROM ACCEPTED AND USUAL COURSE

OF JUDICIAL PROCEEDINGS, OR SANCTIONED SUCH DEPARTURE BY

THE LOWER COURT, AS TO CALL FOR THE EXERCISE OF THE COURT OF

CRIMINAL APPEALS’ POWER OF SUPERVISION WHEN IT HELD THAT

APPELLANT ACCUSATIONS OF ILLEGAL SEXUAL CONTACT MADE BY

THE ALLEGED WHICH SHE LATER RECANTED, DID NOT RENDER

THEM FALSE.




THE OPINION

      The Second Court of Appeals affirmed the trial court’s judgment, holding that

the outcry made against a third party was inadmissible at trial because it had not

been proven false. Opinion, p. 8.

                        REASON TO GRANT REVIEW

      Evidence that a child has accused someone other than the defendant of sexual

abuse is not relevant or admissible absent evidence that such accusations were false.

Hughes v. State, 850 S.W.2d 260, 262–63 (Tex. App.—Fort Worth 1993, pet. ref’d).

      At trial, Petitioner was allowed to question the mother of the complainant
                                         2
about the false allegations outside the presence of the jury as part of a bill of

exception. The mother testified that complainant originally made allegations of

sexual abuse against J.G., a former boyfriend of the mother, but that complainant

was not sure if the sexual abuse from J.G. had happened or if it was a dream.

Mother further testified that complainant also made allegations of sexual abuse

against her current husband, O.G., but said the complainant soon realized after

awakening that the touching did not happen.

      The Second Court of Appeals held that when an allegation is made by a

complainant, then later the same complainant admits the conduct alleged did not in

fact occur, the allegation is not false. If the conduct alleged did not occur, then the

allegation was not true. An allegation that is not true, is false. The Second Court of

Appeals has redefined the phrase “not true” to mean “false, unless a witness can

provide a spurious excuse for what would otherwise be considered a falsehood.”

      Had Petitioner been allowed to cross examine witnesses in front of a jury

about other false accusations the complainant had made, it would have likely

resulted in his acquittal due to the “he said, she said,” nature of the State’s

evidence. The only defense available to the Petitioner was an attack on the

complainant’s credibility which he was unlawfully prohibited from pursuing.




                                           3
REASON FOR REVIEW NUMBER TWO.                         THE COURT OF APPEALS

DECISION DEPARTED SO FAR FROM ACCEPTED AND USUAL COURSE

OF JUDICIAL PROCEEDINGS, OR SANCTIONED SUCH DEPARTURE BY

THE LOWER COURT, AS TO CALL FOR THE EXERCISE OF THE COURT OF

CRIMINAL APPEALS’ POWER OF SUPERVISION WHEN IT HELD THAT

THE OFFENSE OF INDECENCY WITH A CHILD BY TOUCHING OF THE

VAGINA IS NOT SUBSUMED WITHIN THE OFFENSE OF

SEXUAL ASSAULT OF A CHILD ALLEGED TO HAVE OCCURRED ON THE

SAME DATE.



THE OPINION

      The Second Court of Appeals affirmed the trial court’s judgment, holding that

the act of touching the complainant’s vagina is not necessarily subsumed within the

offense of penetrating the complainant’s vagina with a penis. Opinion, p. 4.

      The Court reasoned that there was evidence presented that, if believed,

suggested the contact occurred on many occasions. It held that even though these

allegations all involved conducted alleged to have occurred on January 1, 2005, that

did not preclude the jury from convicting Petitioner for conduct occurring on other

occasions because the “on or about” language of an indictment allows the State to

prove any date within the statute of limitations. Opinion, p. 4.
                                          4
                         REASON TO GRANT REVIEW

       The reasoning given by the Court of Appeals permits future defendants to

be convicted on less than a unanimous verdict. If the charging instrument contains

consolidated offenses, the jury shall be instructed to return a finding of guilty or

not guilty in a separate verdict as to each count and offenses submitted to them.

Tex.Cod.Crim.Pro Art. 37.07(c).

      All criminal defendants are entitled to notice under Article 1, Section 10 of

the Texas Constitution, and the Fifth and Fourteenth Amendments of the United

States Constitution.

      The fact that no separate jury instructions were given suggests the State was

attempting to prove facts relating to the January 1, 2005 incident. It is anatomically

unfeasible to penetrate a vagina without touching it in the course of one event,

therefore touching a vagina should be considered subsumed within the act of

penetrating a vagina. Permitting conviction because the jury may have thought a

defendant committed multiple acts on dates not alleged in the indictment is a

violation of defendants’ right to notice and a unanimous verdict.




                                           5
                         CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, Petitioner prays this

Honorable Court to grant this petition for discretionary review and after a full review

hereon that the Court enter an order setting aside the conviction and to remand the

case for a new trial so that Petitioner may present his defense to the jury, for the

indecency charge to be barred by Double Jeopardy if a sexual assault conviction is

sought for the same alleged transaction, and for such other and further relief to which

he may be justly entitled.

                                 Respectfully submitted,



                                 _/s/___________________________
                                 BLAKE R. BURNS
                                 115 North Henderson St.
                                 Fort Worth, Texas 76102
                                 (817) 870-1544 FAX 870-1589
                                 State Bar No. 24066989
                                 bburnslaw@gmail.com




                                          6
                          CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Petition For

Discretionary Review was mailed postage prepaid to the State Prosecuting Attorney,

P.O. Box 12405, Austin, Texas 78711, and to Charles “Chuck” Mallin, with the

Appellate Section of the Tarrant County District Attorney’s Office, 4th Floor, 401

W. Weatherford Street, Fort Worth, Texas 87196 on this the 21st day of December,

2015.




                                             __/s/_______________________
                                             BLAKE R. BURNS
                                             bburnslaw@gmail.com




                       CERTIFICATE OF COMPLIANCE

        I hereby certify this document contains 2135 words.



                                             __/s/_______________________
                                             BLAKE R. BURNS
                                             bburnslaw@gmail.com




                                         7
                                   APPENDIX

Rafael Rodriguez v. State, 02-14-00377-CR, Memorandum Opinion . . . . . . . . . . . 9




                                         8
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00377-CR


RAFAEL RODRIGUEZ                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1313858D

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

      A jury convicted Appellant Rafael Rodriguez of one count of aggravated

sexual assault of a child (Count 1) and two counts of indecency with a child by

contact (Counts 2 and 3) and assessed his punishment at thirteen years’

confinement for Count 1, four years’ confinement for Count 2, and five years’

confinement for Count 3.     The trial court sentenced Appellant accordingly,

      1
      See Tex. R. App. P. 47.4.
ordering that the three sentences be served concurrently.             In three issues,

Appellant contends that his conviction for indecency by contact under Count 3

violates the Double Jeopardy Clause and that the trial court reversibly erred by

preventing defense counsel from cross-examining witnesses regarding the

complainant’s prior allegations against third parties and by allowing multiple

outcry witnesses to testify. Because we hold that no violation of the Double

Jeopardy Clause is clearly apparent from the face of the record regarding

Appellant’s conviction for indecency by contact under Count 3 and that the trial

court did not reversibly err, we affirm the trial court’s judgment.

Brief Facts

      The complainant reported that she had been sexually abused several

years earlier by her grandmother’s former live-in boyfriend, Appellant, known to

the complainant as Rafa, repeatedly and over a long period of time. Evidence

showed that sexual contact and penetration occurred multiple times and in

various ways.     The complainant testified that Appellant touched her breasts

under her shirt. He also touched her “private part,” meaning where she “go[es]

pee,” with his hand. Finally, he touched her “private part” with his “private part”

that he used “[t]o go pee.” The sexual abuse occurred during fifteen to twenty

sleepovers the complainant had with her grandmother.

      The complainant also reported that her mother’s (Mother’s) ex-boyfriend

had likewise sexually abused her. After the complainant reported the sexual

abuse of Appellant and Mother’s ex-boyfriend, she dreamed that Mother’s current


                                           2
husband had also touched her inappropriately but realized upon awakening that

the touching had been only in her dream.

      The three live counts of the indictment charged Appellant with causing the

complainant’s female sexual organ to contact his male sexual organ, engaging in

sexual contact by touching her breast, and engaging in contact by touching her

female sexual organ.

No Double Jeopardy

      In his third issue, Appellant contends that his conviction under count three

for indecency by contact violates the Double Jeopardy Clause because of his

conviction under Count 1 for aggravated sexual assault of a child. Appellant did

not raise this issue at trial. Any double jeopardy violation must therefore be

“clearly apparent from the face of the record,” and enforcement of the usual

forfeiture rules must “serve[] no legitimate state interest.” 2 That a jury verdict

“could have relied on a theory that would violate the Double Jeopardy Clause”

does not amount to error on the face of the record. 3 Appellant argues that a

“conviction for a completed sexual assault bars conviction for conduct that is

demonstrably part of the commission of th[e] offense.” 4 He contends that the


      2
       Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006) (citation and
internal quotation marks omitted).
      3
       Id.
      4
       Barnes v. State, 165 S.W.3d 75, 89 (Tex. App.—Austin 2005, no pet.).



                                        3
sexual contact of touching the complainant’s female sexual organ that is alleged

in Count 3 is necessarily subsumed by the conduct of intentionally or knowingly

causing the complainant’s female sexual organ to contact his sexual organ that is

alleged in Count 1, relying in part on the fact that both counts were alleged to

have occurred on or about January 1, 2005. But Appellant ignores the evidence

that his sexual misconduct against the complainant, including both penile and

digital contact, occurred on many occasions as well as the law that provides that

the “on or about” language of an indictment allows the State to prove any date

within the statute of limitations, as long as it is anterior to the presentment of the

indictment. 5 Because there is evidence from which the jury could conclude that

Appellant touched the complainant’s female sexual organ with his penis but also

touched her female sexual organ on a separate occasion with his finger or hand,

error is not clearly apparent from the face of the record. 6 We therefore hold that

Appellant has forfeited his double jeopardy complaint, 7 and we overrule his third

issue.




         5
        See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); Sikes
v. State, No. 02-10-00029-CR, 2011 WL 4711998, at *4 (Tex. App.—Fort Worth
Oct. 6, 2011, pet. ref’d) (mem. op., not designated for publication).
         6
         See Sikes, 2011 WL 4711998, at *4.
         7
         See id.



                                          4
Confrontation of Complainant

      In his first issue, Appellant contends that the trial court erred by preventing

defense counsel from cross-examining witnesses about the complainant’s prior,

allegedly false allegations, violating his constitutional right of confrontation.

Appellant sought to question the complainant or other witnesses about “a

previous outcry that turned out to be false.”      In a hearing outside the jury’s

presence, defense counsel stated,

             It—it’s my information that this child had a dream previously—
      early and that—of a sexual assault taking place against her. And
      after waking up, she told someone about it, and then she realized it
      was impossible because she was in another city altogether. I would
      submit that it is an outcry of a sexual assault that is false.

      THE COURT:                Okay. I mean, she didn’t make an
                                allegation to someone, did she? She had a
                                dream?

      [DEFENSE COUNSEL]: Yes. Yes. There is . . . an allegation that
                         was made against another family member
                         of this family.

      THE COURT:                Okay. Wait a minute. I thought you—okay.
                                Let me make sure I’m clear what you’re
                                saying.

      [DEFENSE COUNSEL]: Sure.

      THE COURT:                I thought you just said that she had a
                                dream,—

      [DEFENSE COUNSEL]: Yes.

      THE COURT:                —and then she awakened and realized it
                                was a dream, and therefore, she realized
                                that it didn’t happen. Is that—

      [DEFENSE COUNSEL]: Well, no.


                                         5
      THE COURT:                —what you just said?

      [DEFENSE COUNSEL]: I—I’m—I’m not sure of the process, but it—
                         she told someone about it and said, “This
                         happened to me.”

      THE COURT:                Okay.

      [DEFENSE COUNSEL]: And they—they told her, “No, it was a
                         dream because that person’s not here.”
                         We’re—I think it happened in—in another
                         city. And the alleged victim—the alleged
                         defendant was somewhere else. After they
                         explained that to her, she realized, “Okay,
                         yes, I agree, it must have been a dream.”

      The trial court sustained an objection by the State and ruled that Appellant

could put on a bill of exceptions after the complainant’s testimony before the jury.

In Appellant’s bill of exceptions, he asked the complainant about O.G., Mother’s

husband at the time of trial. The complainant denied recalling that she had “ever

ha[d] a thought that he perhaps also touched [her] inappropriately” and denied

telling Mother that he had touched her inappropriately. She also denied that

O.G. had ever touched her. She further denied any discussion with Mother in

which Mother explained that the alleged touching had been a dream because the

complainant had been staying with her father (Father), not O.G. Appellant did

not ask the complainant about any other potential perpetrator.

      Appellant next called Mother to support his bill of exceptions.       Mother

likewise denied that the complainant had accused O.G. of inappropriate touching.

Mother explained that the accusation of inappropriate touching had been against

J.G., a different, former boyfriend, and that the event had happened in “maybe


                                         6
2005” but that the complainant had not told her “the right thing” until 2012. The

complainant originally told Mother that she was not sure if the sexual abuse from

J.G. had happened or if it was a dream. Mother’s talk with the complainant about

that allegation was interrupted before Mother could get more information.

According to Mother, the complainant later told both her counselor and Mother

that the sexual abuse with J.G. had in fact happened.

      Mother admitted that the complainant had also dreamed the year before

trial that O.G. was touching her but stated that the complainant realized soon

after awakening that the touching did not happen. No investigation ensued after

the dream. Mother did report it to CPS because she was scared.

      Stacy Lloyd, a caseworker for Child Protective Services, testified that in

December 2012, Mother

      was worried that [the complainant might] make an outcry against her
      boyfriend that was living in the home [(O.G.)] because she had said
      she had had a dream about—that he inappropriately touched her but
      that she knows it was just a dream because when she woke up, she
      wasn’t even at her mother’s house.

Lloyd testified that the complainant realized that the inappropriate touching had

been in a dream because she woke up somewhere else, and O.G. was not at

that place.

      State’s Exhibit 8 is the complainant’s written statement to Father about

sexual abuse she claimed to have suffered at the hands of Appellant and a

former boyfriend of Mother’s, a statement written by the complainant before she

dreamed of O.G. State’s Exhibit 8 was not admitted before the jury. Instead, the


                                        7
portion about the ex-boyfriend was redacted, and the remaining portion of the

statement was admitted before the jury as State’s Exhibit 8A. The prosecutor

published State’s Exhibit 8A by reading it to the jury:

      Rafa, he touched me in my private parts, and he tried pulling my
      pants off of—but I tried not to let him. But then he did, and he put
      his question mark in my private part, but I keep moving, so then he
      stopped. And I laid—and he laid down next to me and put his hands
      in my pants and was squeezing me against him and tried to kiss me.
      But I was moving my head around, so then he got on top of me.

      In the redacted portion of State’s Exhibit 8, which follows the portion

published to the jury, the complainant told Father about the sexual abuse she

had allegedly suffered at the hands of Mother’s unnamed ex-boyfriend:

      [I]t was the same with my moms xBoyfriend but when he took of my
      pants he leked me down there in my prives part[.] But i moves
      around but he stil got . . . to leak me.

There is no evidence that O.G. was ever Mother’s ex-boyfriend.

      After Appellant put on his bill of exceptions, the trial court denied it and

prohibited Appellant from delving into the issues raised in the bill.    Defense

counsel then explained,

             Your Honor, I would just reiterate the reasons that I previously
      put on the record that I believe this evidence is important. It’s a
      confrontation issue. It’s the ability for the Defense to present their
      case. And not allowing this testimony, which I believe we would
      contend has more probative value than any prejudicial value, I
      believe that the testimony has shown that this is not your typical
      outcry and found to be an untrue situation. But it’s an outcry that the
      child tells his (sic) mom subsequently, it must not be true because it
      must have been a dream. And because of that, I believe it has
      plenty of probative value, and I believe it should have—it should be
      allowed.



                                          8
      Evidence that a child has accused someone other than the defendant of

sexual abuse is not relevant or admissible absent evidence that such

accusations were false. 8 Appellant does not complain about the exclusion of the

evidence concerning J.G.’s alleged conduct. That outcry has not been proven

false. The trial court therefore did not err by excluding that evidence or barring

questioning about that evidence. 9

      Regarding the evidence that after making outcries about both J.G. and

Appellant, the complainant dreamed that O.G. inappropriately touched her but

realized upon awakening that it was a dream, we cannot conclude that the

reported dream rises to an admissible false accusation. 10

      Finally, Appellant points us to nowhere in the record where he sought to

have the redacted portion of Exhibit 8 admitted or complained about its

exclusion. He has therefore failed to preserve his contention that the trial court




      8
        Hughes v. State, 850 S.W.2d 260, 262–63 (Tex. App.—Fort Worth 1993,
pet. ref’d).
      9
       See id.
      10
        See id. (reasoning that without a showing of falsity, evidence of a prior
accusation does not show an interest, bias, or motive to be untruthful and is not a
proper subject for cross-examination or impeachment).



                                        9
erred by limiting his questioning about the redacted portion. 11     We overrule

Appellant’s first issue.

Other Evidence

      In his second issue, Appellant contends that the trial court abused its

discretion by allowing multiple witnesses—Rebecca Sullivan, Father, and Carrie

Paschall—to testify to inadmissible hearsay as outcry witnesses when the State

chose not to call the only witness designated as the proper outcry witness, O.P.,

Father’s girlfriend. Appellant points to no place where he raised his complaint

about multiple outcry witnesses or his complaints about Sullivan and Father

testifying improperly as outcry witnesses.        We therefore overrule those

complaints as unpreserved. 12      Appellant did challenge the admission of

Paschall’s testimony as outcry evidence, but the testimony was admitted as a

prior consistent statement offered to rebut the defensive theory of fabrication.

Appellant did not challenge this ground below and does not challenge it on

appeal. 13 Similarly, to the extent that Appellant complains about the admission of

State’s Exhibit 8A within this issue, the objection at trial to the redacted

      11
        See Tex. R. App. P. 33.1(a); Everitt v. State, 407 S.W.3d 259, 262–63
(Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort
Worth 2013, pet. ref’d).
      12
       See Tex. R. App. P. 33.1(a); Everitt, 407 S.W.3d at 262–63; Sanchez,
418 S.W.3d at 306.
      13
       See Tex. R. App. P. 33.1(a); Everitt, 407 S.W.3d at 262–63; Sanchez,
418 S.W.3d at 306.



                                        10
statement’s being admitted as the complainant’s prior consistent statement

because the proper predicate had not been laid and because Father was not the

proper sponsoring witness does not match Appellant’s outcry complaint on

appeal. 14 We therefore also overrule those complaints.

      Regarding Sullivan, Appellant also complains that the trial court violated

his rights under the Confrontation Clause and abused its discretion by overruling

his hearsay objection and admitting her testimony as statements made for

diagnosis and treatment under the exception found in rule of evidence 803(4). 15

The following colloquy occurred before the testimony:

      [PROSECUTOR]:            Ms. Sullivan, how old was [the complainant]
                               when you conducted the exam on her?

      A.                       She was 13.

      Q.                       And when you conducted the exam on her,
                               you went through the same procedure.
                               You first sat down with her—was it her
                               mother?

      A.                       Yes.

      Q.                       And got her medical history?

      A.                       Yes.

      Q.                       And then after that, did you get a history of
                               what happened from [the complainant]?

      14
       See Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A
complaint will not be preserved if the legal basis of the complaint raised on
appeal varies from the complaint made at trial.”).
      15
       Tex. R. Evid. 803(4).



                                       11
      A.                        Yes.

      Q.                        What did [the complainant] say happened?

      [DEFENSE COUNSEL]: Your Honor, I’m going to object to hearsay
                         by this witness testifying to what the child
                         said. . . . I don’t believe it’s going to be for
                         purpose of any diagnosis. There’s been no
                         predicate laid that that’s where they’re . . .
                         heading.       It would be hearsay upon
                         hearsay. It would be testimonial. And we
                         have a confrontation issue.

      THE COURT:                Go ahead, [Prosecutor].

       [PROSECUTOR]:            Your Honor, it’s an exception to hearsay
                                under Section 803.4, statements made for
                                medical purposes or medical diagnosis.

       THE COURT:               All right. I’ll overrule the objection.

                                Go ahead.

Sullivan then continued her testimony without objection,

             I wrote down in her own words when I asked her why she
      came to the clinic that day. She said: “My grandma’s boyfriend
      when my grandma was asleep, he—I would sleep on the floor. He
      would get on top of me. He would unbuckle my pants. He would put
      his private part in my private part.”

             When I asked her when that had started, she said, “I think I
      was like seven.”

            And when I asked her when the last time that happened was,
      she said, “like eight or nine,” referring to she was eight or nine years
      old.

           When I asked her where that happened, she said, “At my
      grandma’s house.”

            And then she goes on explaining things that would happen
      before she was age seven. She said, “He would always try to touch
      me when we would go somewhere in the car since I was really little.”


                                         12
            When I asked her his name, she said, “Rafael Rodriguez.”

             And I also asked her if she knew his age, but she said she
      didn’t know his age. I asked her about any symptoms with the
      contact, penile/vaginal contact. She said that it was uncomfortable
      but said there was no bleeding. And then at this point I went down a
      checklist with her.

Sullivan continued repeating information that the complainant had told her and

also discussed other aspects of the examination with no further objection by

Appellant. On cross-examination, the following dialogue occurred:

      [DEFENSE COUNSEL]: Ms. Sullivan, if there’s no reason for
                         obtaining any evidence, there’s really no
                         purpose in this exam except to have her
                         repeat that information to a medical
                         personnel; isn’t that right?

      A.                      No, I don’t agree.

      Q.                      What—what’s the purpose of that exam,
                              you know, seven years later, six years
                              later?

      A.                      Physically to make sure she’s okay. We
                              need to make sure she does not have
                              infections, like HIV or syphilis, that she
                              does     not    have    sexually-transmitted
                              infections. And it’s very helpful to the child
                              to know that physically they’re okay before
                              they can even think about going to
                              counseling or healing from the trauma of
                              sexual abuse. If you do not know that
                              physically you’re okay, that’s—that’s very
                              hard to do.

      Q.                      The medical protocol that you have before
                              you, I’m sure, that the parents sign, says
                              they’re asking for a medical examination for
                              evidence of sexual abuse. Now, clearly,
                              you’re not going to be able to find evidence



                                      13
                               of sexual abuse six years later; isn’t that
                               right?

      A.                       That—I would not expect to have any
                               physical findings or evidence of sexual
                               abuse, no.

The complainant testified. As this court has previously pointed out, “Although the

erroneous admission of hearsay evidence can implicate the [C]onfrontation

[C]lause of the Sixth Amendment, we have no [C]onfrontation [C]lause issue here

because the out-of-court declarant testified and was available for cross-

examination.” 16 As to the hearsay objection, Appellant failed to get a running

objection and therefore failed to preserve his complaint. 17        We overrule

Appellant’s second issue.

Conclusion

      Having overruled Appellant’s three issues, we affirm the trial court’s

judgment.




      16
        Dunbar v. State, No. 02-03-00489-CR, 2005 WL 1120080, at *10 (Tex.
App.—Fort Worth May 12, 2005, pet. ref’d) (mem. op., not designated for
publication).
      17
       See Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim. App. 1998);
Preston v. State, No. 02-13-00068-CR, 2014 WL 2619377, at *1 (Tex. App.—Fort
Worth June 12, 2014, no pet.) (mem. op., not designated for publication).



                                       14
                                        /s/ Lee Ann Dauphinot
                                        LEE ANN DAUPHINOT
                                        JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 25, 2015




                               15
