                             Fourth Court of Appeals
                                    San Antonio, Texas

                                MEMORANDUM OPINION
                                       No. 04-12-00180-CR

                                     Troy Shane KNOWLES,
                                            Appellant

                                                v.

                                       The STATE of Texas,
                                             Appellee

                    From the 198th Judicial District Court, Mason County, Texas
                                      Trial Court No. 114647
                         The Honorable M. Rex Emerson, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Karen Angelini, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: March 20, 2013

AFFIRMED

           A jury convicted Troy Shane Knowles of continuous sexual abuse of a young child and

the trial judge sentenced him to fifty years confinement. Knowles appeals, asserting the trial

court abused its discretion in determining who the proper outcry witness was, erroneously

instructed the jury, and erred in denying Knowles’s motion to quash the indictment. We affirm

the judgment.
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                               FACTUAL AND PROCEDURAL BACKGROUND

        Knowles was indicted for the offenses of continuous sexual abuse of a young child and

aggravated sexual assault. 1 The evidence at trial established that during the summer of 2010,

eleven-year-old K.S. was sexually abused by Knowles, her stepfather. Some of the acts occurred

in their home when K.S.’s mother (“Mrs. Knowles”) was not home, but most of the acts occurred

while K.S. was helping Knowles on the trash route he drove three days a week. The sexual

abuse happened almost every time K.S. went with Knowles on the trash route and twice on most

days, so that as many as seventy-two acts of abuse may have occurred during that summer.

        In February 2011, K.S. told a seventeen-year-old friend in a text message that Knowles

had sexually assaulted her. The friend told his mother, who then contacted Child Protective

Services. Soon thereafter, CPS caseworker Susan Neal called K.S. out of class at school and

briefly discussed the allegations with her. Mrs. Knowles was called to the school and Neal and

K.S. told her the allegations. K.S. and Mrs. Knowles then went to the sheriff’s office, where

K.S. was given a sheet of paper and asked to make a written statement. While K.S. was writing

the statement, she told her mother further details about the abuse.

        The continuous sexual abuse count of the indictment alleged that from on or about June,

1 through August 4, 2010, Knowles, “during a period that was 30 days or more in duration,

committed two or more acts of sexual abuse against” K.S., said acts of sexual abuse having been

aggravated sexual assault. 2        A jury convicted Knowles of that offense, and the trial court

sentenced him to fifty years in prison. Knowles timely appealed.



1
  The State withdrew Count II, the aggravated sexual assault count, during the outcry hearing and did not submit it
to the jury.
2
  Three different acts of aggravated sexual assault were alleged to have occurred in two locations. It was alleged
that Knowles intentionally or knowingly caused (1) the penetration of the female sexual organ of K.S. by his hand or
portion thereof; (2) the penetration of K.S.’s mouth by his penis; and (3) his mouth to contact the female sexual
organ of K.S. Each of these acts was alleged to have occurred in K.S.’s home and on the trash route.

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                                            OUTCRY

       Knowles first argues the trial court abused its discretion in allowing Mrs. Knowles to

testify as the outcry witness because K.S. had previously made an outcry to Neal. The trial court

held a hearing pursuant to article 38.072 of the Texas Code of Criminal Procedure, at which both

Mrs. Knowles and Neal testified. At the conclusion of the hearing, the trial court ruled that Mrs.

Knowles was the proper outcry witness as to Count I, continuous sexual abuse of a young child.

Applicable Law

       Article 38.072 provides that certain hearsay statements are admissible in the prosecution

of certain offenses, including continuous sexual abuse of a young child. TEX. CODE CRIM. PROC.

ANN. art. 38.072, § 1 (West Supp. 2012); see TEX. PENAL CODE ANN. §§ 21.02(b), (c)(4); 22.021

(West Supp. 2012). The admissible “outcry” statements are those “that describe the alleged

offense” and (1) were made by the child against whom the offense was allegedly committed and

(2) were made to the first person, eighteen years of age or older, other than the defendant, to

whom the child made a statement about the offense. See TEX. CODE CRIM. PROC. ANN. art.

38.072 § 2(a)(1), (2).

       A proper outcry witness is the first adult to whom the complainant makes a statement that

“in some discernible manner describes the alleged offense.” Garcia v. State, 792 S.W.2d 88, 91

(Tex. Crim. App. 1990). The statement “must be more than words which give a general allusion

that something in the area of child abuse was going on.” Id.; Reed v. State, 974 S.W.2d 838, 841

(Tex. App.—San Antonio 1998, pet. ref’d) (statement must be more than “a general allegation of

sexual abuse”). Moreover, the child victim’s statement to the outcry witness must describe

the alleged offense, not just any offense.     See TEX. CODE CRIM. PROC. ANN. art. 38.072,

§ 2(a)(1)(A).



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         We review the trial court’s determination that an outcry statement is admissible under

article 38.072 for abuse of discretion. Garcia, 792 S.W.2d at 92. “[A] trial court has broad

discretion in determining the admissibility of such evidence. The exercise of that discretion will

not be disturbed unless a clear abuse of discretion is established by the record.” Id. at 92. A trial

court abuses its discretion if no reasonable view of the record could support the trial court’s

ruling. Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012) (reviewing motion for new

trial for ineffective assistance of counsel). This deferential standard of review requires us to

view the evidence in the light most favorable to the trial court’s ruling and not substitute our

judgment for that of the trial court. Id. We must uphold the trial court’s ruling if it is within the

zone of reasonable disagreement. Id.

Discussion

         Neal testified at the outcry hearing that K.S. did not tell her what specific acts occurred,

or when, where, or how many times they occurred. On cross-examination, Neal testified that

K.S. told her “it started happening some time ago” and it always happened when her mother was

not present, either while K.S. was on the trash route or at home. Neal testified she asked K.S. if

penetration occurred and, after Neal explained what penetration meant, K.S. said it had occurred,

but no further explanation was elicited. Neal also testified that K.S. told her Knowles made her

take her clothes off and get completely naked. 3

         Mrs. Knowles testified that when she arrived at the school, K.S. gave her only minimal

details. It was not until they were at the sheriff’s office, as K.S. discussed the written statement

she was preparing with her mother, that K.S. provided specific details to Mrs. Knowles about


3
  The night before the outcry hearing, the trial court, with the agreement of the parties, reviewed the audio recording
of Neal’s initial interview of K.S. At the hearing, the trial court took judicial notice of the recording. However, the
recording was not marked as an exhibit or introduced into evidence and was not filed in the trial court. It is not
contained in the record before this court.

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what happened. K.S. told her mother where they were living when the abuse began

approximately a year earlier, and that it continued throughout the time that K.S. went on the trash

route with Knowles. The abuse K.S. related included the allegation that Knowles made her put

her mouth on his private area a couple of times each day when she went to work on the trash

route with Knowles.

       From this evidence, the trial court reasonably could have concluded K.S.’s statements to

Neal that Knowles penetrated her and forced her to disrobe do not constitute statements that in

some discernible manner describe the offense alleged against Knowles in Count I of the

indictment. Those statements do not describe any of the alleged acts and give no indication of

the continuing nature and duration of the acts, both of which are required elements of the alleged

offense. The trial court reasonably could conclude that K.S.’s statements to Neal constituted

nothing more than words that gave a general allusion that something in the area of child abuse

was going on. See, e.g., Robinett v. State, 383 S.W.3d 758, 762 (Tex. App.—Amarillo 2012, no

pet.) (girls’ statements that accused touched their privates, and made them touch his, did not refer

to alleged offense of oral-penile contact); Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d) (statement that accused got victim pregnant, although it

could raise inference of penetration, did not clearly describe alleged offense that appellant

penetrated victim’s sexual organ); Reyes v. State, 274 S.W.3d 724, 727–28 (Tex. App.—San

Antonio 2008, pet. ref’d) (where victim just acknowledged abuse without detail to first person

but provided details of allegations to second person, second was proper outcry witness); Carty v.

State, 178 S.W.3d 297, 300–01, 306 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (child did

not describe offense of penetrating the child’s sexual organ when child said appellant was

molesting her); but see Nino v. State, 223 S.W.3d 749, 753 (Tex. App.—Houston [14th Dist.]

2007, no pet.) (child described offense of aggravated sexual assault when he said defendant
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“made me suck it” and indicated his penis); Reed, 974 S.W.2d at 841 (child described offense of

indecency with a child when she said defendant touched her between legs and underneath her

bathing suit).

        On the other hand, the trial court reasonably could have concluded K.S.’s statements to

Mrs. Knowles, although not descriptive of all the acts alleged in Count I, specifically described

some of those acts and first provided information on the continuous nature and temporal element

of the offense. Those statements constituted “more than words which give a general allusion that

something in the area of child abuse was going on.” See Garcia, 792 S.W.2d at 91. K.S.’s

statements in some discernible manner described not just any offense, but the offense alleged in

Count I of the indictment.

        After reviewing the evidence in the light most favorable to the trial court’s ruling, we

conclude the trial court’s determination that Mrs. Knowles was a proper outcry witness for the

offense in Count I of the indictment is within the zone of reasonable disagreement and the court

did not clearly abuse its discretion in so finding. We overrule Knowles’s first issue.

                                          JURY CHARGE

        Knowles argues paragraph III of the jury charge erroneously permitted the jury to find

him guilty by finding he committed two or more acts of sexual abuse, even if the acts occurred

less than thirty days apart. He argues the instruction denies him due process and violates the

requirement that an accurate, written charge be given. The State disagrees, contending there is

no error in the court’s charge and that Knowles’s proposed instruction improperly restricted the

State’s theories of liability.

        Paragraph I of the charge stated the Penal Code provision regarding continuous sexual

abuse of a young child nearly verbatim. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp.

2012). In paragraph III, the jury was instructed:
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               In order to find the defendant guilty of the offense of continuous
               sexual abuse of a young child, you are not required to agree
               unanimously on which specific alleged acts of sexual abuse were
               committed by the defendant or the exact dates when those acts
               were committed. However, in order to find the defendant guilty of
               the offense of continuous sexual abuse of a young child, you must
               agree unanimously beyond a reasonable doubt, that the defendant,
               during a period that is 30 or more days in duration, beginning on
               or after June 1, 2010 and through August 4, 2010, committed two
               or more acts of sexual abuse as alleged in the indictment.

(Emphasis added). Paragraph IV, the application paragraph, provided in part that the jury should

convict if it believed Knowles “on or about June 1, 2010 through August 4, 2010, in Mason

County, Texas, during a period that was 30 days or more in duration, intentionally or knowingly

committed two or more acts of sexual abuse against [K.S.] ….” (emphasis added).

       At the charge conference Knowles submitted a proposed instruction that he requested be

given in place of paragraph III of the charge. Knowles’s requested instruction provided:

               In order to find the Defendant guilty of the offense of continuous
               sexual abuse of a young child, you are not required to agree
               unanimously on which specific alleged acts of sexual abuse were
               committed by the defendant or the exact dates when those acts
               were committed. However, you must find unanimously from the
               evidence beyond a reasonable doubt that the defendant committed
               one of the acts alleged in the indictment on or after June 1, 2010,
               and you must further find unanimously from the evidence beyond a
               reasonable doubt that the defendant committed at least one of the
               other acts alleged in the indictment before August 4, 2010 and at
               least 30 days after the commission of the first act.

(Emphasis added). Knowles did not object to the application paragraph of the court’s charge.

       “A jury charge is fundamentally defective if it omits an essential element of the offense

or authorizes conviction on a set of facts that do not constitute an offense.” Zuckerman v. State,

591 S.W.2d 495, 496 (Tex. Crim. App. 1979). To establish continuous sexual abuse of a child,

the State must prove three elements: (1) the defendant “commit[ted] two or more acts of sexual

abuse,” (2) “during a period that is 30 or more days in duration,” and (3) “at the time of the


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commission of each of the acts of sexual abuse, the [defendant was] 17 years of age or older and

the victim [was] a child younger than 14 years of age.” Smith v. State, 340 S.W.3d 41, 47 (Tex.

App.—Houston [1st Dist.] 2011, no pet.) (quoting TEX. PENAL CODE ANN. § 21,02(b)).

       Relying on Smith v. State, 340 S.W.3d 41 (Tex. App.—Houston [1st Dist.] 2011, no pet.),

Knowles argues the charge did not require the jury to find that two or more acts of sexual abuse

were committed thirty days or more apart. In Smith, the application paragraph of the charge

permitted the jury to convict if it found the defendant committed two acts of sexual abuse “on or

about the lst day of December, 2007, through the lst day of September, 2008, which said time

period being a period that was 30 days or more in duration.” Smith, 340 S.W.3d at 50

(emphasis added). Smith argued the erroneous application paragraph lowered the State’s burden

of proof by omitting an essential element of the offense—proof of at least two acts of sexual

abuse occurring during a period that is thirty or more days in duration. Id. at 49. Smith argued

the instruction merely stated that December 1, 2007 to September 1, 2008, “is a period that is 30

or more days in duration” and imposed no requirement as to the time period in which the acts of

sexual abuse occurred. Id. The court correctly held the instruction was erroneous:

                This instruction … allowed the jury to find appellant guilty so long
                as two or more acts of sexual abuse occurred between December
                2007 and September 2008 regardless of whether the acts occurred
                at least 30 days apart. … The application paragraph of the charge
                is erroneous because it does not specifically require that the jury
                determine that two or more acts of sexual abuse occurred during a
                period at least 30 days in duration—i.e., that there is at least 28
                days between the day of the first act of sexual abuse and the day of
                the last act of sexual abuse.

Id. at 50–51.

       We disagree with Knowles that the charge in this case is analogous to that in Smith. In

Smith, the trial court misplaced the statutory language, “during a period that is 30 or more days

in duration,” in the instruction, so that it modified the time period during which the offense
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occurred. As a result, the charge merely made the irrelevant observation that the period specified

in the indictment—between December 2007 and September 2008—was a time period that was

thirty days or more in duration. It did not require the jury to find, as the Penal Code requires,

that the defendant committed the specified acts “during a period that is 30 or more days in

duration.” Hence, the charge in Smith was defective because it did not accurately state the law

and set out all the essential elements of the offense.

       In contrast, here, in both paragraph III of the instructions and in the application

paragraph, the language “during a period that is 30 or more days in duration” is referable to the

“committed two or more acts of sexual abuse” language. Consequently, the charge expressly

requires a finding that the defendant, during a period that is thirty or more days in duration,

committed two or more acts of sexual abuse, and thus reflects the language and structure of the

offense as provided by the Penal Code. See TEX. PENAL CODE ANN. § 21.02(b), (d). Moreover,

the charge tracked the language of the relevant provisions of the Penal Code. See Casey v. State,

215 S.W.3d 870, 886–87 (Tex. Crim. App. 2007); Martinez v. State, 924 S.W.2d 693, 699 (Tex.

Crim. App. 1996) (jury charge tracking language of statute is proper because “[f]ollowing the

law as it is set out by the Texas Legislature will not be deemed error on the part of the trial

judge”). We hold the charge accurately stated the law and properly charged this essential

element of the offense.

       The trial court also did not err in refusing to submit Knowles’s requested instruction. The

instruction given was correct. Further, Knowles’s requested instruction would have required the

last of the required two or more acts to have been committed “before August 4” when the

indictment specified the last offense could be committed as late as August 4, 2010.              The

requested instruction thus improperly restricted the State’s theories of liability. See In re State ex

rel. Weeks, Nos. AP–76,953, AP–76,954, 2013 WL 163460, at *5 (Tex. Crim. App. Jan. 16,
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2013) (trial judge may not restrict presentation of theory of party liability if the restriction is not

required by charging instrument or evidence).

       The trial court’s jury charge tracked the applicable statutory language, accurately setting

out the law applicable to the offense charged. We therefore overrule Knowles’s second issue.

                                            INDICTMENT

       In his final issue, Knowles argues the trial court erred in denying his motion to quash the

indictment. The indictment alleged:

               On or about the 1st day of June, 2010 through the 4th day of
               August, 2010, in Mason County, Texas, Troy Shane Knowles,
               hereinafter “defendant”, during a period that was 30 days or more
               in duration, committed two or more acts of sexual abuse against
               [K.S.], said acts of sexual abuse having been violations of one or
               more of the following penal laws ….

Knowles contends the indictment did not set out all the essential elements of the offense of

continuous sexual abuse because it did not require that two or more of the alleged acts of sexual

abuse occur thirty days or more apart.

       We review the trial court’s ruling on a motion to quash an indictment de novo because

the sufficiency of a charging instrument is a question of law. Smith v. State, 309 S.W.3d 10, 13–

14 (Tex. Crim. App. 2010); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). A

criminal defendant has a constitutional right to notice. Lawrence v. State, 240 S.W.3d 912, 916

(Tex. Crim. App. 2007). To satisfy this notice requirement, an indictment must be specific

enough to inform the defendant of the nature of the accusation against him so he may prepare a

defense. Id.; Moff, 154 S.W.3d at 601. “An indictment is generally sufficient as long as it tracks

the language of a penal statute that itself satisfies the constitutional requirement of notice.”

Lawrence, 240 S.W.3d at 916; see Smith, 309 S.W.3d at 14.




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        Knowles’s sole contention is that the indictment did not require the two or more acts of

sexual abuse occur thirty or more days apart, and he again relies solely on the rationale in Smith

v. State. See Smith, 340 S.W.3d 50–51. We disagree. Here, the indictment alleged that Knowles

“during a period that was 30 days or more in duration, committed two or more acts of sexual

abuse against” K.S. The indictment made the temporal element referable to the “committed”

provision so that it clearly requires that at least two acts of abuse be committed at least thirty

days apart, as the Penal Code requires. In short, the indictment tracked the statutory language,

correctly charged the temporal element of the offense, and therefore is sufficient as a matter of

law. See TEX. PENAL CODE ANN. § 21.02(b); see also Lawrence, 240 S.W.3d at 916 (indictment

is generally sufficient as long as it tracks language of penal statute). We overrule Knowles’s

third issue.

                                          CONCLUSION

        We affirm the trial court’s judgment.


                                                         Luz Elena D. Chapa, Justice


DO NOT PUBLISH




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