                             NUMBER 13-11-00189-CR

                               COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


STEPHEN CAPLE,                                                               Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 23rd District Court
                         of Brazoria County, Texas.


                             MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Chief Justice Valdez
       By four issues, appellant, Stephen Caple, challenges his conviction for

continuous sexual abuse of a child under the age of fourteen for which he was

sentenced to life imprisonment. See TEX. PENAL CODE ANN. § 21.02(b) (West 2011). He

argues that there was error in the jury charge and in the trial court’s admission of outcry

testimony. We affirm.
                                     I. BACKGROUND

      Appellant was indicted for continued sexual abuse of his step-daughter H.G.,

who was thirteen years old at the time of trial. The indictment spanned the period of

time from October 1, 2007 to September 1, 2009. At trial, H.G. testified that appellant

began raping her at the age of ten. H.G. testified that appellant had sex with her on

multiple occasions in the year 2009, including her birthday, April 10. H.G. described the

sex as both vaginal and oral penetration, including at least one instance in which

appellant ejaculated in her mouth.     H.G. also testified about a “pretend marriage”

between her and appellant during that time. The “pretend marriage” was consummated

with the two having sex afterward.

      On December 12, 2009, H.G. gave birth to a child, and DNA tests confirmed that

appellant is the child’s father. At trial, H.G. testified that appellant had sex with her

during her pregnancy, specifically, during the month of September.       Before anyone

knew H.G. was pregnant, H.G. told her grandmother she had sex with appellant. Other

than becoming “upset,” H.G.’s grandmother apparently did nothing in response, and

H.G. continued having contact with appellant with her grandmother’s knowledge.

      H.G. later made an outcry concerning the abuse to Melissa Martinez, a relative

with whom H.G. was placed in October 2009. H.G. was eleven years old at the time

and gave birth approximately three weeks later. H.G. further said that although she

initially did not like having sex with appellant, it occurred so many times she began to

enjoy it and was infatuated with appellant by the time of her placement with Melissa.

      The jury charge instructed the jury that they “must agree unanimously that the

defendant, during a period that is thirty (30) or more days in duration, committed two or



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more acts of sexual abuse.” The application paragraph of the jury charge provided as

follows:

        Now if you find from the evidence beyond a reasonable doubt that on or
        about the 1st day of October, 2007, through the 1st day of September,
        2009, which said time period being a period that was 30 days or more in
        duration . . . .

In a separate paragraph, the jury charge stated in relevant part:

        In the event you have a reasonable doubt as to the defendant’s guilt after
        considering all the evidence before you, and these instructions, you will
        acquit him and say by your verdict not guilty.

Appellant’s counsel did not object to the charge.

        During closing arguments, the State told the jury that “in order to find the

defendant guilty, you must agree unanimously that the defendant, during a period that is

30 days or more in duration, committed two or more acts of sexual abuse.” The State

also argued that the evidence offered at trial proved that appellant committed at least

three different instances of sexual abuse: (1) the act that resulted in the conception of

H.G.’s child; (2) sexual intercourse on H.G.’s birthday; and (3) regular sexual

intercourse taking place three to four times per week at different locations. The State’s

evidence covered a wide range of dates, encompassing a time span far greater than 30

days.

        Appellant was found guilty and sentenced to life imprisonment.        This appeal

ensued.

                                 II. JURY CHARGE ERROR

        In issues one, two, and three, appellant complains about error in the jury charge.

        A. Standard of Review




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       In determining whether there is reversible error in the jury charge, we first decide

whether error exists, and if error exists, then we determine whether the defendant was

harmed. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Abdnor v.

State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). Any harm that is inflicted by an

erroneous charge must be assessed in light of (1) the entire jury charge, (2) the state of

the evidence, (3) the argument of counsel, and (4) any other relevant information

revealed by the record of the trial as a whole. Ngo v. State, 175 S.W.3d 738, 750 n.48

(Tex. Crim. App. 2005).

       If error is found, the degree of harm necessary for reversal depends on whether

the appellant preserved the error by objecting to the complained-of instruction. Olivas v.

State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); see Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985) (op. on reh’g). If the defendant properly objected to

the erroneous jury charge instruction, reversal is required if we find “some harm” to the

defendant’s rights. Olivas, 202 S.W.3d at 144; Ngo, 175 S.W.3d at 743; Almanza, 686

S.W.2d at 171. However, if the defendant did not object, we may only reverse if the

record shows egregious harm to the defendant. Olivas, 202 S.W.3d at 144; Ngo, 175

S.W.3d at 743–44; Almanza, 686 S.W.2d at 171.           Jury charge error is egregiously

harmful if “it affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory.” Stuhler v. State, 218 S.W.3d 706, 719 (Tex.

Crim. App. 2007) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)

(plurality op.)).   We engage in this assessment to determine the actual, not just

theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Furthermore, egregious




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harm is a difficult standard to meet and must be determined on a case-by-case basis.

See Hutch, 922 S.W.2d at 171.

       B. Applicable Law

       The abstract or definitional paragraphs of the jury charge serve as a kind of

glossary to help the jury understand the meaning of concepts and terms used in the

application paragraphs of the charge. See Escobar v. State, 28 S.W.3d 767, 778 (Tex.

App.—Corpus Christi 2000, pet. ref’d). Thus, a charge is adequate if it contains an

application paragraph that authorizes a conviction under conditions specified by other

paragraphs of the charge to which the application paragraph necessarily and

unambiguously refers, or contains some logically consistent combination of such

paragraphs. Id.

       C. Discussion of Issues One and Two

       In issues one and two, appellant complains that the application paragraph of the

jury charge was erroneous because it did not instruct the jury that it was required to find

beyond a reasonable doubt that appellant committed two or more acts of sexual abuse

during a period of time that was 30 or more days in duration. See TEX. PENAL CODE

ANN. § 21.02(b)(1).1       Appellant argues that the jury charge used in this case was

erroneous because it allowed the jury to assume, rather than find, that the acts of

sexual abuse occurred during a period of 30 days or more.

       In its brief, the State acknowledges that the specific language appellant

complains about was previously held to be erroneous by the First Court of Appeals.

       1
          At the time each act of sexual abuse is committed, the actor must be seventeen years of age or
older, and the victim or victims must be younger than fourteen. TEX. PENAL CODE ANN. § 21.02(b)(2)
(West Supp. 2011). An “act of sexual abuse” is an act that violates one or more specified penal laws,
among them indecency with a child, aggravated sexual assault of a child, sexual assault of a child, and
sexual performance by a child. Id. § 21.02(c).

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Smith v. State, 340 S.W.3d 41, 50 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The

State points out, however, that in the same case, the First Court of Appeals determined

that the appellant had not been egregiously harmed by the error in the jury charge. See

id. In sum, the State argues that the error in the jury charge did not cause egregious

harm because the abstract portion of the charge set forth that the jury must have found

beyond a reasonable doubt that the acts occurred during a period of thirty days or more.

The State argues, therefore, that there was sufficient evidence to prove the essential

element, and the jury was not misled by arguments made by the State. See Bazanes v.

State, 310 S.W. 3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref’d) (holding that

erroneous application paragraph that omitted essential element of offense did not

constitute egregious harm where abstract portion set forth essential element, there was

sufficient evidence to show essential element, and the jury was not misled by

arguments of counsel but was repeatedly and correctly advised that the State had to

prove essential elements of the offense). We agree with the State. Appellant’s first and

second issues are overruled.

      D. Discussion of Issue Three

      In issue three, appellant argues that the application paragraph in the jury charge

was erroneous because it did not instruct the jury that “if it did not find all of the

elements of the offense beyond a reasonable doubt, it should acquit the defendant and

say by its verdict ‘not guilty.’” As noted above, the jury charge did include the following

instruction: “In the event you have a reasonable doubt as to the defendant’s guilt after

considering all the evidence before you, and these instructions, you will acquit him and




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say by your verdict not guilty.” Accordingly, there is no error. Appellant’s third issue is

overruled.

                                       III. HEARSAY

       In issue four, appellant complains that the trial court erred in allowing hearsay

testimony from an outcry witness. Appellant argues that the trial court erred in admitting

the outcry testimony of Martinez in violation of article 38.072 of the Texas Code of

Criminal Procedure because H.G.’s grandmother was the proper outcry witness, not

Martinez. See TEX. CODE CRIM. PRO. ANN. art. 38.072.

       A. Standard of Review

       The trial court has broad discretion to determine which of several witnesses is an

outcry witness, and we will not disturb its decision absent a clear abuse of discretion.

See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Hayden v. State, 928

S.W.2d 229, 231 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd).           An abuse of

discretion will not be found unless the trial court’s decision is outside the zone of

reasonable disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000); Tear v. State, 74 S.W.3d 555, 558 (Tex. App.—Dallas 2002, pet. ref'd).

       B. Applicable Law

       Article 38.072 of the Texas Code of Criminal Procedure establishes an exception

to the hearsay rule for a statement made by a child victim “to the first person, eighteen

years of age or older, other than the defendant” in which the child describes certain

offenses, including sexual assault, committed against her when she was twelve years of

age or younger. See TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(a)(2) (West Supp.

2010). The exception applies only if, among other things, “the trial court finds in a



                                            7
hearing conducted outside the presence of the jury, that the statement is reliable based

on the time, context, and circumstances of the statement.” Id. art. 38.072 § 2(b)(2).

       C. Discussion

       At trial, appellant objected to the testimony of Martinez on the sole basis that it

lacked reliability. The trial court overruled the objection: “I will find that the statement is

reliable. I overrule your objection based on time, content and circumstances of the

statement pursuant to Article 38.072.” On appeal, appellant seeks to attack Martinez’s

testimony on the basis that it constituted hearsay. However, appellant did not object on

that basis at trial.

       Appellant’s objection to the “reliability” of Martinez’s testimony did not shift the

burden to the State to prove the outcry testimony complied with each requirement of

article 38.072. See Long v. State, 800 S.W.2d 545, 547–48 (Tex. Crim. App. 1990)

(holding that a hearsay objection to outcry testimony puts the burden on the State to

prove the testimony is admissible under the provisions of article 38.072 or another

hearsay exception); see also Bennett v. State, No. 12-07-00057-CR, 2007 Tex. App.

LEXIS 9938, at *7 (Tex. App.—Tyler Dec. 21, 2007, no pet.) (mem. op., not designated

for publication) (“Appellant’s very specific objection was not a blanket hearsay objection

that would preserve a complaint as to all elements of article 38.072.            Instead, this

objection was a complaint only as to the issue of reliability.         As such, Appellant’s

objection was not sufficient to preserve his notice complaint.”).

       Reliability of an outcry statement is only one of the requirements of article

38.072. TEX. CODE CRIM. PROC. ANN. art. 38.072. For example, an outcry statement

may be reliable but nevertheless inadmissible under article 38.072 section 2(a)(2) when



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the statement concerns abuse that occurred when the victim was over twelve-years-old

or the witness was not an adult or the first person to whom the outcry was made. See

id.   Thus, the objection to “reliability” only burdened the State to prove that “the

statement is reliable based on the time, content, and circumstances of the statement.”

Id. This reliability objection did not preserve error concerning whether Martinez was the

first adult to whom the outcry was made. See id. Accordingly, appellant’s fourth issue

is overruled.

                                     IV. CONCLUSION

       The judgment of the trial court is affirmed.

                                                      _____________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
29th day of March, 2012.




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