                                                                              ACCEPTED
                                                                           01-15-00532-cr
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                     9/24/2015 3:58:58 PM
                                                                    CHRISTOPHER PRINE
                                                                                   CLERK


                   NO. 01-15-00532-CR
          IN THE COURT OF APPEALS FOR THE
               FIRST JUDICIAL DISTRICT   FILED IN                       -
                                       1st COURT OF--APPEALS
                                                                 - ----
                                           HOUSTON,            -
                                                            --- TEXAS
                                                  - - ----ID K ------
                                       9/24/2015
                                               - 3:58:58
                                                -                  -- PM
                                           ---- VO ------
                      NO. 1453096      CHRISTOPHER         --       A. PRINE
                                                    ----
                                              ----Clerk
           IN THE 248TH DISTRICT COURT OF
                ~SCOUNTY,TEXAS

                                             FILED IN
ROMELO HERNANDEZ DIAZ                 1st COURT
                                     APPELLANT    OF APPEALS
                                          HOUSTON, TEXAS
                                      9/24/2015 3:58:58 PM
VS.                                   CHRISTOPHER A. PRINE
                                              Clerk
THE STATE OF TEXAS                   APPELLEE


                 APPELLANT'S BRIEF




                                     KEN GOODE
                                     P.O.Box 590947
                                     Houston, Texas 77259
                                     (409) 779-3631
                                     State Bar # 08143200
                                     Goodedkc@msn.com
                        IDENTIFICATION   OF THE PARTIES

Romelo Hernandez Diaz                         Appellant
TDCJ-ID
Huntsville, Texas

Juan Aguirre                                  Trial Defense Attorney
2028 Buffalo Terrace,
Houston, Texas

Cara Burton                                   Trial Prosecutor
1201 Franklin
Houston, Texas

Hon. Katherine Cabaniss                        Trial Judge
1201 Franklin
Houston, Texas

Ken Goode                                      Appellate Attorney
P.O. Box 590947
Houston, Texas

Devon Anderson                                 Appellate D.A.
1201 Franklin
Houston, Texas
                                                 TABLE OF CONTENTS

Identification of the Parties                                                                                 .

Table of Contents..........................................................................................          ii

Index of Authorities.....................................................................................            iii

Statement of the Case...................................................................................             1

Issues Presented...............................................................................................      2

Summary of the Argument............................................................................                  3

Statement of Facts.........                                                                                          4

Argument..........................................................................................................    9

Prayer for Relief......................................................                                              16

Certificate of Service...........................................................................................     17

Certificate of Word Count Compliance......................................                                                17
                                    INDEX OF AUTHORITIES

CASES

Brooks v, State,
  323 S.W.3d 893 (Tex. Crim. App. 2010).........................................       9

Connell v. State,
  233 S.W.3d 460 {Tex.App.-Fort Worth 2007, no pet.)..................                 10

Conner v, State,
  67 S.W.3d 192 (Tex. Crim. App. 2001)...........................................      10       h




Graham v. State,
  643 S.W.2d 920 (Tex. Crim. App. 1983).......................................         15

Hooper v. State,
  214 S.W.3d 9 (Tex.Crim. App. 2007)..............................................      9

long v. State,
   800 S.W.2d 545 (Tex. Crim. App. 1990)...........................................    13

Proctor v. State,
   356 S.W.3d 681 (Tex.App.-Eastland 2011, pet. ref'd.)....................            10

Scott v. State,
   202 S.W.3d 405 {Tex.App.-Texarkana 2006}pet. refd.}.................                10

Soto v. State,
   267 S.W.3d 327 {Tex.App.-Corpus Christi 2008, no pet.)...............                10

State v. Kurtz,
   152 S.W.3d 72 (Tex. Crim. App. 2004}.............................................    12

Villalon v, State,
   791 S.W.2d 130 {Tex.Crim. App. 1990)..........................................          10
Winegarner v. State,
    235 S.W.3d 787 (Tex. Crim. App. 2007)                                                                12


STATUTES & RULES

TEX.CODECRIM. PRO. Art. 38.072...................................                                         13

TEX.R. EVID.801(a)....................................................................................    15

TEX.R. APP. PROC.44.2(b)........................................................................          16
TO THE HONORABLE JUDGES OF SAID COURT:

     Comes now Romelo Hernandez Dlaz, appellant, and in support of this brief

shows as follows:

                             STATEMENT OF THE CASE

     Appellant was charged by indictment with indecency with a Child (c. R.-8);

     Appellant pleaded not guilty and proceeded to jury trial (c.R.-394)

     The jury found appellant guilty and assessed 40 years in prison and a fine in

the amount of $10,000 (c.R.-392).

      Appellant timely filed notice of appeal (C.R.- 397).

      The trial court certified that appellant has the right to appeal (c.R.-393).
                      ISSUES PRESENTED ON APPEAL


POINT OF ERROR   1

THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE
CONVICTION FOR INDECENCY WITH A CHILD

POINT Of ERROR 2

THE TRIAL COURT ERRED BY FAILING TO CONDUCT A
RELIABILITY HEARING PRIOR TO ADMITTING OUTCRY
TESTIMONY FROM LISA HOLCOMB




                                    2
                               SUMMARY OF THE ARGUMENT


     Appellant brings two points of error. The first challenges the sufficiency of

the evidence to establish that the element of identity.

     The second point asserts error in the admission of outcry testimony without

the mandatory    reliability    hearing under article 38.072 of the Texas code of

Criminal Procedure.




                                           3
                           STATEMENT OF FACTS

       Appellant   challenges the sufficiency      of the evidence. The record

reveals the following salient facts presented at trial in this prosecution for

Indecency with a Child:

                                  State's Evidence

       The State's first    witness     was Wilma     Lowe, the       mother   of the

complainant. She testified that appellant began dating her mother in 2004

and was living with her mother at the time the complainant made outcry of

sexual misconduct in February of 2012 (R.R.-3-30).

       According to Lowe, her children, including the complainant, who was

11 years old in February of 2012, called appellant "Tio Romelo.". (R.R.-3-

38). She recalled appellant having given the complainant $50 as a gift prior

to the outcry incident. (R.R.-3-39-40).

       Lowe   testified    that   she    dropped    her   children,    including   the

complainant, off at her mother's trailer while she attended night school on

February 17, 2012. She wanted to stay later and attend a party so she

called her mother to ask that the children stay longer than planned. (R.R.-3-

40).




                                        [4]
       Her mother refused so Lowe angrily went over to her mother's trailer.

When the children got in her vehicle, the complainant told her that she

knew    why    her   grandmother      wouldn't      watch   them   anymore.    The

complainant told Lowe that appellant had been touching her "down there."

(R.R.-3-46). Lowe drove back to the trailer and confronted her mother with

the complainant's       allegation and threatened    to call the police. Appellant

ran out the back door and was seen running down the esplanade on the

beltway (R.R.-3-48-49).

       Lowe testified     that only a well ness exam was conducted         on the

complainant at that time and the results did not reveal any injuries (R.R.-3-

53).

       The State's next witness was Deputy Garza of the Sheriff's Office. She

was dispatched to the appellant's home on February 17, 2012 in response

to the report made by Wilma Lowe (R.R.-3-78). Garza stated that the report

was that an 11 year old had been sexually assaulted by her grandmother's

boyfriend, who had fled the scene. She added that the name of the suspect

was Romelo Diaz. (R.R.-3-83).




                                      [5]
      She interviewed   Wilma Lowe at the scene. According to her} Lowe

told her that the complainant stated that appellant had touched her "down

there." 9R.R.-3-87}.

      Garza also spoke with the complainant's         grandmother.     Initially the

grandmother said she didn't think anything had happened} but changed her

mind and stated that     she believed        her grandchildren     and expressed

surprise that it happened under her nose. (R.R.-3-104).

      Garza interviewed the complainant} who told her that when she was

10 years old she had fallen asleep in her bathing suit at appellant's home

and had been awakened        by appellant      touching   her private area. She

pointed to her breast and genitalia area to demonstrate (R.R.-3-108).

      The complainant told Garza that appellant was very drunk} and gave

her   $50 after   touching   her    breast    and   genitalia    (R.R.-3-109). The

complainant stated that the first time appellant had touched her was when

she was 9 years old (R.R.-3-109).

      The State's next witness was Lisa Holcomb, a forensic interviewer

with the Children's Assessment Center. She testified that the complainant

disclosed to her that she had been sexually abused, and was certain about

the details (R.R.-3-127). Holcomb testified that the complainant          reported


                                    [6]
multiple   incidents and pointed to the body parts affected, namely, her

breast and private     parts (R.R.-3-133-134). Holcomb        believed that the

complainant was reliving the abuse when she provided details (R.R.-3-131).

     The complainant was the State's next witness. She testified that on

two separate occasions she had fallen asleep and been awakened by

appellant touching her private parts over her clothing. She explained that

her private parts were her breast and vagina. One occurred at her home;

the other occurred at appellant's trailer (R.R.-3-167-208).

      Regarding the incident in her house, she stated that she knew it was

appellant even though it happened in the dark at night because the TV was

on and provided enough light for her to identify him (R.R.-3-190).

      Regarding the incident at appellant's trailer, she stated that during

the commission of the act it was too dark to see appellant's face, but she

smelled alcohol on him and could see his hair (R.R.-3-168).

      She added that he stopped for awhile and went in the restroom and

turned on the light, which enabled her to recognize that it was appellant

(R.R.-3-217)

     The complainant    testified that she first told her grandmother,     who

told her it would remain a secret between them (R.R.-3-199).


                                   [7]
     She recalled that during the incident at appellant's trailer he placed

her hand on his private part, and gave her $50 the next morning (R.R.-3-

195).She had originally,    in her interview    at the Children's Assessment

Center, been unsure whether she might have felt only appellant's finger.

(R.R.-3-217).

      Danielle Madera,     staff psychologist   at the Children's Assessment

Center, was the State's final witness. After observing the complainant

testify, she expressed the opinion that the complainant was remembering

actual events. She pointed to the complainant's mention of sensory details,

such as the odor on appellant during the incident (R.R.-3-231).

     She explained why delay in outcry is common in child sexual abuse

cases, and described the grooming process whereby a perpetrator gains the

trust of a child and or her family (R.R.-3-223).

     According to Madera, children do not typically lie about sexual abuse.

She cited literature in the field of child sexual abuse which estimated that

between 2 and 4 percent of sexual abuse complaints made by children are

false, and usually occur in child custody settings (R.R.-3-230-235).

     She expressed the opinion that such was not present in this case

(R.R.-3-232).


                                    [8]
                          ARGUMENT AND AUTHORITIES




                               POINT OF ERROR NO.1


                THE EVIDENCEIS INSUFFICIENTTO SUPPORTTHE
                 CONVICTION FOR INDECENCYWITH A CHILD


                                           I.

                                A. Standard of Review


     Review of appellant's challenge to the sufficiency of the evidence requires

that this court consider all of the evidence in the light most favorable to the

verdict. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).


     If, when viewed in this light, any rational factfinder   could have found the

essential elements of the offense beyond a reasonable doubt, then the evidence

is sufficient to support the verdict. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App.2007).


     A person commits indecency with a child by engaging in sexual contact with

a child younger    than   seventeen    years of age. Tex. Penal Code Ann. sec.

21.11(a)(1). "Sexual contact" includes touching by a person, including touching

through clothing, of the genitals of a child with the intent to arouse or gratify the

sexual desire of any person. Id. sec. 21.11(c)(1).

                                          [9]
      The testimony of a child victim alone is sufficient to support a conviction for

indecency with a child. Proctor v. State, 356 S.W.3d 681, 685 (Tex. App.-Eastland

2011, pet. ref'd.).


      Whether the defendant possessed the requisite intent to commit an offense

is often proven through circumstantial    evidence surrounding the crime. Scott v.

State, 202 S.W.3d 405, 408 (Tex. App.-Texarkana 2006, pet. ref' d.). The jury may

infer the requisite intent from the acts, words, and conduct of the accused.

Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).


      In the context of indecency with a child, the jury can infer the intent to

arouse or gratify     from   conduct   alone. Scott, 202 S.W.3d at 408. No oral

expression of intent or visible evidence of sexual arousal is necessary. Connell v.

State, 233 S.W.3d 460, 467 (Tex. App.-Fort Worth 2007, no pet.).


      The courts will give wide latitude to testimony     given by child victims of

sexual abuse. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).


      The victim's description   of what happened need not be precise, and the

child is not expected to communicate with the same level of sophistication as an

adult. Soto v. State, 267 S.W.3d 327, 332 (Tex. App.-Corpus Christi 2008, no pet.).




                                          [10]
        Corroboration   of the victim's testimony by medical or physical evidence is

not required. Id. at 332.




                                    B. The Evidence


        The complainant's testimony adequately shows that by the term "princess

parts" she was referring to her genitalia and breast. Moreover, there is sufficient

evidence to establish the genital touching, including touching through clothing,

necessary for the sexual contact element of indecency with a child.


        However, appellant asserts that there is insufficient   evidence to establish

beyond a reasonable doubt that he perpetrated the criminal offense.


        The complainant testified about two incidents of sexual abuse. According to

her, both events occurred at night in the dark when she was sleeping. (R.R.-3-167-

208).

        Concerning the earliest incident, which occurred in her home, she testified

that the only available light was from a TV in the room; Concerning the second

incident, which occurred in appellant's trailer, she testified the only light was

provided when she observed appellant in a nearby bathroom. (R.R.-3-168-217).




                                          [11]
     Notwithstanding    evidence of flight by appellant when confronted          by the

complainant's   agitated mother, {R.R.-3-48-49}, appellant asserts that no rational

juror could have found the essential element of identity beyond a reasonable

doubt.

     This point of error should be sustained and an acquittal entered.




                              POINT OF ERROR NO.2


         THE TRIAL COURT ERREDBY FAILINGTO CONDUCTA RELIABILITY
         HEARING PRIORTO ADMITIING OUTCRYTESTIMONY FROM LISA
         HOLCOMB.

                                          I.

                              A. Standard of Review

     This court reviews the admission of evidence under an abuse of discretion

standard. Winegarner v. State, 235 S.W.3d 787, 790 {Tex. Crim. App. 2007}. A trial

court has no discretion in determining what the law is or applying the law to the

facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).

     An outcry statement     is not inadmissible because of the hearsay rule if,

among other things, a trial court finds, in a hearing conducted            outside the

presence of the jury, that the statement        is reliable based on the time, content,




                                         [12]
and circumstances of the statement.      TEX. CODE CRIM. PROC.ANN. art. 38.072

(2}(b)(2).

     A general hearsay objection is sufficient to preserve a complaint on appeal

that a trial court did not hold an article 38.072 reliability hearing. Long v. State,

800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (noting that the provisions of article

"are mandatory,    and must be complied with in order for a statement to be

admissible over a hearsay objection.")

                                  B. The Evidence

      Appellant anticipated that Lisa Holcomb would testify as regards statements

the complainant   had made to her during a forensic interview conducted under

the auspices of the Children's Assessment Center.

      Defense counsel lodged the following objection to the proposed testimony:

      "I believe that the testimony that would come from Ms. Holcomb would be

an outcry witness, yet this witness has just testified as to the outcry meeting all

the statutory requirements   as questioned by Ms. Burton. So in essence I would

ask this witness not be allowed to testify since we've already had the outcry

witness."

(R.R.-3-112).




                                         [13]
     The prosecutor stated that "I don't want to offer any outcry statement from

her." {R.R.-3-112}.

     No reliability   hearing was conducted; the trial court overruled appellant's

objection. (R.R.-3-112).

     Lisa Holcomb was permitted        to testify concerning verbal and non-verbal

statements made by the complainant over the course of a forensic interview. In

addition, two photographs taken from the videotape of the forensic interview

which showed the complainant        touching her body were admitted as evidence.

{R.R.-3-112-139}. The State elicited      the following      hearsay statements    from

Holcomb:


         •   That the child disclosed to her that she had been sexually abused;

         •   That the child was certain as to the details;

         •   That the child was certain as to the person who sexually abused her;

         •   That the child named only one perpetrator;

         •   That the child disclosed multiple instances of abuse;

         •   That the child provided sensory details, and a specific time frame;

         •   That the child was able to explain to her what body parts had been

             touched;



                                          [14]
        •    That the child demonstrated to her, as depicted in State's Exhibits 120

             and 121, the parts of her body that had been touched;

        •    That the child demonstrated to her that she had been touched on her

             breast and privates.


{R.R.-3-127-134}.


                                        c. Harm

     The trial court erred in admitting             Holcomb's testimony   recounting   the

child's statements, including the nonverbal conduct of the child which was dearly

intended as a substitute for verbal expression. See TEX. R. EVID. 801(a); Graham

v. State, 643 S.W.2d 920 (Tex. Crim. App. 1983).



     Harm is apparent from the record. The State in final argument emphasized

the importance of Holcomb's testimony, stating "And you know that she gave a

clear and concise and consistent outcry to Lisa Holcomb." {R.R.-3-260.


     Holcomb's      testimony    was   not    merely     cumulative   of other   evidence

presented.   For example,       Holcomb testified      that the child detailed   multiple

incidents of sexual abuse.




                                             [15]
     Appellant's substantial rights were affected and reversal is warranted under

Texas Rule of Appellate Procedure 44.2(b).




     This point of error should be sustained and a new trial ordered.

                                PRAYER FOR RELIEF


     WHEREFORE, appellant prays that his points of error be sustained and a

judgment of acquittal be ordered or in the alternative that a new trial be ordered.

                                               Respectfully submitted,




                                                /S/KEN GOODE                 _
                                                P.O.Box 590947
                                                Houston, Texas 77259
                                                (409) 779-3631
                                                State Bar No. 08143200




                                        [16]
                            CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing was delivered to the

State this 25st day of September 2015 by hand delivery at 1201 Franklin, Houston,

Texas 77002.




                                              /S/KEN GOODE              _




                  CERTIFICATE OF WORD COUNT COMPLIANCE

      Relying on the word count function in the word processing software used to

produce this document I certify that the number of words used in this appellate

brief is 2100.

                                                 /S/KEN GOODE.                _




                                       [17]
