Affirmed and Memorandum Opinion filed January 29, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00980-CR

                    DANIEL ARNOLD WALLER, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 149th District Court
                           Brazoria County, Texas
                       Trial Court Cause No. 79878-CR

                           MEMORANDUM OPINION

      In this appeal from two convictions for indecency with a child, we consider
whether the evidence is sufficient to support the convictions, and whether the trial
court properly admitted the testimony of an outcry witness. For reasons explained
more fully below, we conclude that the evidence is sufficient, and that the trial court
did not abuse its discretion in the admission of the outcry statements. We therefore
affirm the trial court’s judgment.
                                  BACKGROUND

      The complainant began living with her great-aunt when she was three years
old, after her mother lost custody due to her struggles with substance abuse. The
great-aunt’s household included several extended family members, including
appellant, who was the great-aunt’s brother.

      When the complainant was six years old, she informed her great-aunt that
appellant had shown her adult pornography on his cellphone. The complainant later
relayed the same information to her mother during a period of visitation.

      The complainant’s mother called CPS, which investigated the matter and
requested that appellant leave the household. Appellant left as requested, but CPS
referred the matter to local police for further investigation.

      The police scheduled an appointment for the complainant to see a forensic
interviewer at a child advocacy center. During that appointment, the complainant
revealed new information in addition to the allegations of adult pornography. The
complainant told her forensic interviewer that on more than one occasion since she
was three years old, appellant had exposed himself to her, and he had made her touch
his penis with her hand.

      Appellant was then indicted on two counts of indecency with a child. The first
count alleged indecency by contact, and the second count alleged indecency by
exposure.

      During the trial on the merits, the complainant, then eight years old, testified
that she remembered that appellant had exposed himself to her, but she could not
remember if he had made her touch his penis. Over appellant’s objection, the
forensic interviewer testified that the complainant had said that appellant had made
her touch his penis, and that he had told her to keep it a secret.

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      Appellant did not testify in his own defense, but his counsel argued that the
allegations were fabricated by the complainant’s mother in an attempt to regain
custody. The jury rejected that explanation and convicted appellant on both counts.

                      SUFFICIENCY OF THE EVIDENCE

      In a sufficiency review, we examine all of the evidence in the light most
favorable to the verdict, and determine whether a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Robinson
v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015).

      There are two offenses in this case, and each has similar elements. On the first
count of indecency by contact, the essential elements are as follows: (1) the
defendant caused a child to engage in sexual contact, and (2) the child was younger
than seventeen years of age. See Tex. Penal Code § 21.11(a)(1). Regarding the first
of these elements, the phrase “sexual contact” includes any touching of any part of
the genitals of a person, if committed with the intent to arouse or gratify the sexual
desire of any person. Id. § 21.11(c)(2).

      As for the second count of indecency by exposure, the essential elements are:
(1) the defendant exposed any part of his genitals, knowing that a child was present,
(2) the child was younger than seventeen years of age, and (3) the exposure was
committed with the intent to arouse or gratify the sexual desire of any person. Id.
§ 21.11(a)(2).

      Turning to the evidence presented in this case, there is no dispute that the
complainant is a child younger than seventeen years of age. Accordingly, there is
sufficient evidence to support that essential element.

      As for the other essential elements, the testimony from the outcry witness was
sufficient by itself to establish the actus reus of each offense. See Rodriguez v. State,

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819 S.W.2d 871, 873 (Tex. Crim. App. 1991). According to the forensic interviewer,
the complainant said that, on more than one occasion, appellant had exposed himself
to her and he had made her touch his penis. The jury could have inferred from this
testimony that appellant had committed each of these acts with the intent to arouse
or gratify his own sexual desires. That inference is supported circumstantially by
evidence that appellant showed adult pornography to the complainant, and that he
told her to keep his actions a secret.

      Appellant contends that the evidence is insufficient to support the contact
conviction because the complainant testified that she could not remember if she had
touched appellant’s penis. This point merely highlights a conflict in the evidence,
which we, as the reviewing court, presume the factfinder resolved in favor of the
verdict. See Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014).

      Appellant also contends that the evidence is insufficient to support the
exposure conviction because “the child’s testimony was clearly insufficient and
incomplete to show criminal behavior.” Appellant does not elaborate on this point,
and it is plainly refuted by the record. The complainant’s testimony was clear and
direct: “He showed his private at me.”

      We conclude that the evidence is sufficient to support every essential element
of both offenses beyond a reasonable doubt.

                             OUTCRY STATEMENTS

      The trial court conducted a hearing outside the presence of the jury to
determine the admissibility of certain statements that the complainant had made to
the forensic interviewer. The prosecutor proposed that the statements were outcry
statements, which are not inadmissible hearsay if they meet certain statutory
requirements. Among those requirements, the trial court must find that the


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statements are “reliable based on the time, content, and circumstances of the
statement[s].” See Tex. Code Crim. Proc. art. 38.072, § 2(b)(2). Also, the statements
must have been made to the outcry witness, who is “the first person, 18 years of age
or older, other than the defendant, to whom the child . . . made a statement about the
offense.” Id. art. 38.072, § 2(a)(3).

       The central dispute during the trial court’s hearing was whether the forensic
interviewer was the outcry witness for statements regarding appellant’s exposure
and sexual contacts (as opposed to his display of adult pornography). The forensic
interviewer testified that she “believed” that she was the first person to whom the
complainant had made such statements. Defense counsel suggested, however, that
the complainant had discussed those matters (in addition to the adult pornography)
with her great-aunt and her mother, before she had ever met with the forensic
interviewer.

       At the end of the hearing, the trial court ruled that the outcry statements were
not admissible “based on the state of the record as it is right now.” The court gave
additional clarification to the prosecutor: “I’m not saying that it’s out for all
purposes. I’m just saying at this point I don’t think you’ve met your burden on
getting this in.”

       The prosecutor responded that she would call another witness and establish
the record further. The prosecutor’s follow-up witness was a police officer, who
testified in front of the jury that when he scheduled the complainant’s appointment
with the forensic interviewer, the “sole allegation” known to him at that time was
that “someone is showing pornography to a child.”

       An off-the-record bench conference ensued, and then the prosecutor called the
forensic interviewer to the stand, with the jury still present. As the prosecutor began
to elicit testimony about the complainant’s statements, defense counsel objected on
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the basis of hearsay, arguing again that “it has not been adequately shown that [the
forensic interviewer] is, in fact, the first person over 18 to whom any of this stuff
was told.” The trial court overruled the objection, and the outcry statements were
admitted.

      Appellant no longer challenges whether the forensic interviewer was the
outcry witness. Instead, he argues that the trial court erred by admitting the outcry
statements because the trial court did not conduct a reliability hearing or make a
finding of reliability, as required by Article 38.072. Both of these points are
meritless. The record shows that the trial court conducted a reliability hearing, and
contrary to appellant’s suggestions, there is no statutory requirement that the trial
court make an express finding of reliability. By ruling that the forensic interviewer
could testify as an outcry witness, the trial court implicitly found that the outcry
statements were reliable. See Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim.
App. 1990) (“Even though the trial court submitted no written findings that the
statement is reliable, as pointed out by the Court of Appeals, the trial court’s ruling
at the hearing outside the presence of the jury implied that it found the nurse’s
testimony to be reliable, thereby complying with § 2(b)(2).”).

                                  CONCLUSION

      The trial court’s judgment is affirmed.




                                        /s/       Tracy Christopher
                                                  Justice

Panel consists of Justices Christopher, Bourliot, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).



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