                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00205-CR
        ______________________________


    HAROLD DONNIE HALBROOK, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 196th Judicial District Court
                Hunt County, Texas
               Trial Court No. 24883




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                                   OPINION

         Six-year-old M.L. was made to suffer sexual abuse at the hand of her stepfather, Harold

Donnie Halbrook. Indictments returned against Halbrook alleged that on or about July 7 and 18,

2007, he ―cause[d] his sexual organ to contact and/or penetrate the mouth of [M.L.].‖ Trial to a

jury led to convictions upon two counts of aggravated sexual assault of a child and a punishment

assessment of life imprisonment. Halbrook appeals his convictions on the grounds that the

evidence is legally and factually insufficient to support them and that the trial court erred in

admitting police officer‘s testimony and video. We will affirm the trial court‘s judgments.1

I.       Sufficient Evidence Supports Halbrook’s Convictions

         A.       Standard of Review

         We review the legal and factual sufficiency of the evidence supporting Halbrook‘s

convictions under well-established standards. In conducting a legal sufficiency review, we

consider the evidence in the light most favorable to the verdict to determine whether any rational

jury could have found the essential elements of the crime beyond a reasonable doubt. Sanders v.

State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We must give deference to the responsibility

of the jury ―to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.


1
 Halbrook was also convicted of two counts of aggravated sexual assault and four counts of indecency with his then
eight-year-old daughter, M.B. Although Halbrook filed a single brief addressing points of error presented in this case
and companion cause number 06-09-00204-CR, which were tried together, we address each case separately since
certain points of error apply only to one case or the other.

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App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We are not required to

determine whether we believe that the evidence at trial established guilt beyond a reasonable

doubt; rather, when faced with conflicting evidence, we must presume that the jury resolved any

such conflict in favor of the prosecution, and we must defer to that resolution. State v. Turro, 867

S.W.2d 43, 47 (Tex. Crim. App. 1993).

       In conducting a factual sufficiency review, we consider the evidence in a neutral light.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). The verdict will be set aside only

if (1) it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and

manifestly unjust, or (2) it is against the great weight and preponderance of the evidence. Id. at

414–15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Both legal and factual

sufficiency are measured by the elements of the offense as defined by a hypothetically correct jury

charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273

S.W.3d 273, 280 (Tex. Crim. App. 2008).

       Under a hypothetically correct jury charge, Halbrook committed the offense of aggravated

sexual assault of a child if he intentionally or knowingly caused the penetration of the mouth of

M.L. by his sexual organ, and M.L. was younger than fourteen years of age at the time. TEX.

PENAL CODE ANN. § 22.021(a)(1)(B)(ii), (2)(B) (Vernon Supp. 2009).                  A person acts

intentionally with respect to the nature of his or her conduct or to a result of his or her conduct

when it is their conscious objective or desire to engage in the conduct or cause the result; a person



                                                 3
acts knowingly with respect to a nature of his or her conduct or the circumstances surrounding

their conduct when he or she is aware of the nature of their conduct or that the circumstances exist.

A person acts knowingly with respect to a result of his or her conduct when they are aware that the

conduct is reasonably certain to cause the result. TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon

2003).

         B.     Time of Offense

         Halbrook first complains that the evidence is insufficient to establish that the offenses

occurred within the time frame alleged by the State. The State is not required to allege a specific

date in an indictment. Mitchell v. State, 168 Tex. Crim. 606, 330 S.W.2d 459, 462 (1959). ―It is

well settled the ―on or about‖ language of an indictment allows the State to prove a date other than

the one alleged in the indictment as long as the date is anterior to the presentment of the indictment

and within the statutory limitation period.‖ Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim.

App. 1997) (citing TEX. CODE CRIM. PROC. ANN. art. 21.02(6) (Vernon 2009); Scoggan v. State,

799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990)) (―[T]he State is not bound by the date alleged in

the indictment . . . so long as the date proved is a date anterior to the presentment of indictment and

the crime‘s occurrence is not so remote as to be barred by limitation.‖); Thomas v. State, 753

S.W.2d 688, 692 (Tex. Crim. App. 1988) (―[W]here an indictment alleges that some relevant event

transpired ‗on or about‘ a particular date, the accused is put on notice to prepare for proof that the

event happened at any time within the statutory period of limitations.‖). The indictments alleged



                                                  4
a date after which M.L. spoke with the police. Aggravated sexual assault of a child under Section

22.021(a)(1)(B) of the Texas Penal Code is an offense for which there is no limitation by statute.

See TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(B) (Vernon Supp. 2009).

Thus, the State proved that the offense occurred more than once prior to the date alleged in the

indictment.

         C.       The Evidence

         Deputy Nathan Ehrhart was led to Halbrook‘s home after receiving a tip from a concerned

parent. M.L. was taken to the Crisis Center of Northeast Texas, where she was interviewed by

executive director Kacy Flanagan. The video recording of M.L.‘s interview was played for the

jury, in which she told Flanagan that Halbrook ―made me suck on his winkie‖ ―lots of times.‖

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

aggravated sexual assault.‖ Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi

2006, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005); Garcia v. State, 563

S.W.2d 925, 928 (Tex. Crim. App. 1978)). M.L. testified in front of the jury that her stepfather,

―Donny‖ touched the inside of her mouth with the ―front part‖ used for ―[g]oing to the restroom‖ a

―lot of times.‖2 M.L. illustrated this act for the jury through stick figure drawings.

         Looking at this evidence in the light most favorable to the verdict, we determine that a

rational jury could have found the following beyond a reasonable doubt: that Halbrook, a.k.a


2
 Halbrook argues that M.L. failed to identify him during trial. It is clear that M.L. looked at a picture of Halbrook and
identified him as ―Donny.‖

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―Donny,‖ intentionally or knowingly caused the penetration of the mouth of M.L. by his sexual

organ, more than one time, and that M.L. was younger than fourteen years of age at the time.

TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (2)(B) (Vernon Supp. 2009); Watson, 204 S.W.3d at

414–15. Even examined under a neutral light, we find that the verdict was not clearly wrong,

manifestly unjust, or against the great weight and preponderance of the evidence. Id. at 415

(citing Johnson, 23 S.W.3d at 11).    Thus, the evidence was both legally and factually sufficient.

II.    Admission of Ehrhart’s Testimony as Outcry Statements Was Not Error

       Ehrhart stated that M.L. ―simply told me that her father was making her put his penis in her

mouth.‖ A video of Ehrhart‘s initial visit and interview with the children was played for the jury,

in which M.L. implicated Halbrook. Halbrook‘s counsel objected to Ehrhart‘s testimony and

police car video of the interview, alleging that they were hearsay and that ―M.L. testified the first

adult she told was her uncle.‖

       If a ―statement about the offense‖ alleged is made by a victim under fourteen years of age,

―the first person, 18 years of age or older,‖ to whom the statement was made may testify about the

victim‘s statements at trial. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2 (Vernon Supp. 2009).

Testimony of such an outcry witness is an exception to the hearsay rule. Padilla v. State, 278

S.W.3d 98, 107 (Tex. App.—Texarkana 2009, pet. ref‘d).

       In this case, direct examination of M.L. produced the following:

       Q.      Did you ever talk to anyone like your mom or a police officer or the judge?



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       A.     I told the police officer . . . .

       Q.     Had you ever told your mama before you told the policeman?

       A.     Yeah.

       Q.     You told her.

       A.     She was there.

       Q.     She was there and heard you tell the policeman. But before that night had
       you ever told your mama what Donny was doing to you?

       A.     No.

       Q.     Before you told the policeman, did you tell any other adults?

       A.     My uncle.

       Q.     You told your uncle. Was he there with the policeman too?

       A.     I‘m not really sure. I forgot.

The following exchange occurred during cross-examination:

       A.     . . . That was my uncle that I told.

       Q.     Oh, your Uncle John.

       A.     No. He‘s out in the hall.

       Q.      Okay. And you told him something before, right? Before you told the
       officer?

              (Shakes head in the affirmative).
.




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       The evidence establishes that some statement by M.L. was made to the uncle before the

statements made to Ehrhart. However, the Texas Court of Criminal Appeals has interpreted

Article 38.072 of the Texas Code of Criminal Procedure to require that the previous statement be

one which ―in some discernible manner describes the alleged offense.‖ Garcia v. State, 792

S.W.2d 88, 91 (Tex. Crim. App. 1990). It must be ―more than words which give a general

allusion that something in the area of child abuse was going on . . . . The statute demands more

than a general allusion of sexual abuse.‖ Id.; see also Thomas v. State, 1 S.W.3d 138, 140–41

(Tex. App.—Texarkana 1999, pet. ref‘d).

       ―Trial courts are afforded broad discretion in determining the admissibility of outcry

statements, and the decision to admit such evidence will not be disturbed absent a clear abuse of

that discretion.‖ Harvey v. State, 123 S.W.3d 623, 627 (Tex. App.—Texarkana 2003, pet. ref‘d)

(citing Garcia, 792 S.W.2d at 92). We will not substitute our judgment for that of the trial court

unless it acted in an arbitrary or unreasonable manner, without reference to any guiding rules or

principles. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).

       From M.L.‘s testimony, while it appears that Ehrhart was not the first person over eighteen

whom she told about ―what Donny was doing‖ to her, there is nothing in the record suggesting

M.L.‘s statements to her uncle described the alleged offense in some discernible manner. In

contrast, the record establishes M.L.‘s discernible statement to Ehrhart. In Garcia, the child

complainant made general statements of abuse to her teacher. 792 S.W.2d at 91. From the



                                                8
record, the court was unable to determine ―what it was the complainant told her teacher.‖ Id.

Garcia found that where the State laid ―a proper predicate that [a child protective specialist] was

the outcry witness,‖ and ―the defense had ample opportunity to recall [the teacher] in an attempt to

rebut this predicate, but failed to do so,‖ and did not ―elicit testimony from the complainant

regarding the specifics of the statements she made to [the teacher],‖ the trial court was within its

discretion to consider the child protective specialist as the proper outcry witness. Id. at 91–92.

Similarly, in this case, the defense had the ability to call the uncle who ―was out in the hall,‖ or

recall M.L. in order to clarify the statements she made to him.   Because the defense failed to do

so, we find the trial court was within its discretion in finding Ehrhart to be the proper outcry

witness. See In re Z.L.B., 102 S.W.3d 120, 122–23 (Tex. 2003) (―defendant in this case had the

burden to introduce evidence that J.M.‘s statement to his mother was more than just a general

allusion to abuse‖). We overrule this point of error.

       Halbrook also argues that the trial court erred by failing to conduct a hearing outside the

presence of the jury to determine if the statement given to Ehrhart was reliable. TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(b)(2). The State has the burden to comply with the terms of the

statute, and the trial court is required to determine the statement is reliable after a hearing

conducted outside the presence of the jury. Id. The provisions of the statute are mandatory and

must be satisfied. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).         An issue that

has split some of the courts of appeals is whether a more specific objection than ―hearsay‖ is



                                                 9
required to preserve argument that a section of the statute has been violated (lack of notice, failure

to conduct hearing, etc.).       Zarco v. State, 210 S.W.3d 816, 828 (Tex. App.—Houston [14th Dist.]

2006, no pet.) (compilation of Texas opinions on this issue).                 We believe the Texas Court of

Criminal Appeals has definitively resolved this issue in Long when it held that Long preserved

error by his hearsay objection and therefore was allowed to argue that the trial court failed to

conduct a hearing to determine if the statement was reliable as required by the statute. Long, 800

S.W.2d at 548.        We agree with the holding in Zarco, ―we will follow the Court of Criminal

Appeals‘ binding precedent . . . . ― This argument is preserved for our consideration.

         Here, during Ehrhart‘s testimony, the trial court conducted a hearing outside the presence

of the jury to determine the admissibility of a video recording of a ten-minute portion of the child‘s

statement.3 This procedure necessarily involved a review of the child‘s statement and was more

extensive than Ehrhart‘s abbreviated report of the child‘s statement. The State argued the video

recording would show ―the actual scene when the officer responds and it shows the layout of the

area, how they talked to everybody, what was said.‖ A bench conference has been found to fulfill

the requirements of the statute. Zarco, 210 S.W.2d at 831. We find that this review by the trial

court satisfied the hearing requirement; by overruling the objection, the trial court impliedly found

the statement given to the officer and recorded on the videotape was reliable. Id.

III.     Conclusion


3
 The hearsay objection was only that the officer‘s testimony and the video recording were not admissible because ―the
first person outcry was made to the uncle.‖

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      We affirm the judgment of the trial court.



                                                   Jack Carter
                                                   Justice

Date Submitted:      July 8, 2010
Date Decided:        July 28, 2010

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