                                  NO. 07-10-00417-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                          PANEL B

                                   OCTOBER 12, 2012


                     MICKEY CHARLES ROBINETT, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


              FROM THE 355TH DISTRICT COURT OF HOOD COUNTY;

            NO. CR11394; HONORABLE RALPH H. WALTON, JR., JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.



                                          OPINION


       Appellant Mickey Charles Robinett appeals from his convictions by jury for

aggravated sexual assault, sexual performance by a child, and indecent exposure and

the resulting concurrent sentences. He presents two points of error. We will affirm.


                           Factual and Procedural Background


       Appellant does not challenge the sufficiency of the evidence, so we discuss only

the facts relevant to resolution of his two points of error. Those points involve the trial

court’s rulings on evidentiary matters.
        The case involved allegations of acts committed against four girls. Two of the

girls, H.H. and B.H., are sisters and were step-granddaughters of appellant. M.J. is

their cousin; M.L. is their friend.


       Evidence showed that M.L. first told her mother about events that occurred on a

day on which she and the other three girls were visiting at appellant’s home. M.L. told

her mother that appellant had come out of the shower naked in their presence, and that

she “saw his thing.” She also told her mother that later the same day appellant took the

girls “skinny dipping.” M.L.’s mother contacted the mothers of the other girls.


       The next day, M.J.’s parents and the mother of H.H. and B.H. met with their three

girls, who had been with appellant on many occasions. After that conversation, police

were called, and a deputy sheriff responded. The deputy also talked with the three girls.


       The next day, all four girls were taken to the Children’s Advocacy Center, where

they were interviewed by Sharon Hardin.


       Appellant was indicted in thirteen counts, alleging one or more acts against each

of the four girls, occurring on or about dates ranging from March 2004 through May

2009. Six counts were abandoned by the State before trial and seven were submitted

to the jury.


       Prior to trial, the State notified the defense of its intention to offer Hardin’s

testimony as subject to the exception to the hearsay rule under article 38.072 of the

Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.072 (West 2009).



                                            2
Appellant objected, and the court held a hearing, at which Hardin, M.J.’s mother, and

the mother of B.H. and H.H. testified.


       At the conclusion of the hearing, the trial court ruled “that the outcry witness as it

relates to the alleged victims, that is [B.H., H.H. and M.J.], the outcry witness there who

will testify concerning those allegations would be Sharon Hardin.”


       Of the seven counts submitted to the jury, two alleged aggravated sexual

assaults of H.H. and B.H., based on contact between the girls’ mouths and appellant’s

penis.1     Two counts alleged appellant induced H.H. and M.J. to engage in sexual

conduct, bestiality, by causing a dog to lick the girls’ sexual organs. 2       Two counts

alleged appellant induced H.H. and B.H. to engage in sexual conduct, masturbation.

The final count alleged appellant committed indecency with a child by exposing his

genitals to M.L.3


       In her trial testimony, Hardin related that B.H. told her of her oral contact with

appellant’s penis, and told her that appellant told B.H. to pull down her pants and sit on

a circular massager. Hardin gave similar testimony of her interview with H.H., relating

for the jury that the child told her of appellant’s causing her to perform oral sex. Hardin

also said H.H. told her appellant caused H.H. to sit on the massager with her pants

down, and on the same occasion allowed a dog to lick her sexual organ.               Hardin

testified similarly of her interview with M.J., saying the child told her appellant “made

       1
           Tex. Penal Code Ann. § 22.021 (West 2012).
       2
           Tex. Penal Code Ann. §§ 43.25; 43.26 (West 2012).
       3
           Tex. Penal Code Ann. § 21.11 (West 2012).

                                             3
them pull down their pants and let the dog lick their private.” Hardin said M.J. told her

appellant was “laughing” as the dog licked her.


       Appellant’s theory at trial was the girls fabricated the allegations against him.

Three witnesses, a neighbor, appellant’s son, and appellant’s grandson, testified they

never witnessed any of the type of conduct described by the girls.         Appellant also

testified, denying each of the allegations.


       The jury found appellant guilty of all seven submitted counts and assessed

punishment 60 years of incarceration for each of the two aggravated sexual assault of a

child convictions, 20 years for each of the four sexual performance by a child

convictions and 10 years for the indecency with a child conviction. The sentences are

concurrent. This appeal followed.


                                              Analysis


Outcry Witness


       Appellant’s first issue challenges the trial court’s ruling that the forensic

interviewer Hardin was the proper outcry witness under article 38.072 as to the offenses

against M.J., H.H. and B.H. The trial court overruled appellant’s hearsay objection to

her testimony.


       We review a trial court's decision to admit an outcry statement for abuse of

discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App. 1990); see Martinez v.

State, 178 S.W.3d 806, 810 (Tex.Crim.App. 2005) (referring to article 38.072 as “a rule

of admissibility of hearsay evidence” and describing its purpose). We will uphold the trial
                                              4
court's ruling if it is within the zone of reasonable disagreement. Weatherred v. State, 15

S.W.3d 540, 542 (Tex.Crim.App. 2000); Chapman v. State, 150 S.W.3d 809, 813

(Tex.App.--Houston [14th Dist.] 2004, pet. ref'd).


       Article 38.072 establishes an exception to the hearsay rule, applicable in

proceedings for prosecution of certain listed offenses, for statements made by a child or

disabled victim “to the first person, 18 years of age or older, other than the defendant, to

whom the [victim] . . . made a statement about the offense.” Tex. Code Crim. Proc.

Ann. art. 38.072 (West 2009). To be admissible under article 38.072, outcry testimony

must be elicited from the first adult to whom the outcry is made. Chapman, 150 S.W.3d

at 812. Article 38.072 requires "that the outcry witness . . . be the first person, 18 years

old or older, to whom the child makes a statement that in some discernible manner

describes the alleged offense" and provides more than "a general allusion that

something in the area of child abuse was going on." Garcia, 792 S.W.2d at 91; Brown v.

State, 189 S.W.3d 382, 386 (Tex.App.—Texarkana 2006, pet. ref’d).4              Among the

conditions for admissibility of such a statement is the requirement that the party

       4
         We agree with the suggestion in Brown that analysis of the admissibility of
outcry testimony should not focus on whether the proposed witness is the adult to whom
the complainant first told “how, when and where” he was assaulted. See Brown, 189
S.W.3d at 386 (quoting Hanson v. State, 180 S.W.3d 726, 730 (Tex.App.—Waco 2005,
no pet.)). Interestingly, the “how, when, where” listing makes no mention of the “who.”
In Garcia, the Court of Criminal Appeals, giving interpretation to the phrase “statement
about the offense” in article 38.072, declined to read the phrase as meaning “any
statement that arguably relates to what later evolves into an allegation of child abuse
against a particular person . . . .” 792 S.W.2d at 91 (emphasis ours). The testimony
quoted in the Garcia opinion with regard to statements made by the complainant to her
teacher, who the defendant contended was the proper outcry witness, did not identify
the alleged perpetrator of the abuse. Id. at 89-90.

                                             5
intending to offer it notify the adverse party of the name of the witness through whom

the party intends to offer the statement. Tex. Code Crim. Proc. Ann. art. 38.072, §

2(b)(1)(B) (West 2009).


      Admissible outcry witness testimony is not person-specific, but event-specific.

Lopez v. State, 343 S.W.3d 137, 140 (Tex.Crim.App. 2011); West v. State, 121 S.W.3d

95, 104 (Tex.App.—Fort Worth 2003, pet. ref’d); Broderick v. State, 35 S.W.3d 67, 73

(Tex.App.--Texarkana 2000, pet. ref'd).      The proper outcry witness is not to be

determined by comparing the statements the child gave to different individuals and then

deciding which person received the most detailed statement about the offense. Brown,

189 S.W.3d at 386; see Reed v. State, 974 S.W.2d 838, 841 (Tex.App.--San Antonio

1998, pet. ref'd) (rejecting contention CPS worker should have been designated outcry

witness because victims’ statements to her were “more detailed”). However, because

designation of the proper outcry witness is event-specific, when a child is victim to more

than one instance of sexual assault, it is possible to have more than one proper outcry

witness, so long as the outcries concerned different events and not simply repetition of

the same event told to different individuals. Brown, 189 S.W.3d at 387; see Lopez, 343

S.W.3d at 140 (“[t]here may be only one outcry witness per event”).


      Here, appellant asserts H.H., B.H. and M.J. first told their mothers of appellant’s

sexual acts against them.5 He also argues those girls’ conversation with the deputy

sheriff precludes Hardin’s testimony as the outcry witness. We disagree.


      5
        Hardin did not testify as the outcry witness as to the indecency with a child
count involving M.L.
                                            6
       At the pretrial hearing, the mother of H.H. and B.H. testified her girls told her

“they were made to touch [appellant’s] private, and he was touching their private, and

just doing bad things to the girls.” These girls’ statements to their mother that appellant

was touching their privates, and made them touch his, do not refer to the oral-penile

contact for which he was convicted. Because the analysis of outcry testimony under

article 38.072 is event-specific, that the girls’ mother might have been the proper outcry

witness with respect to offenses involving the touching of genitals, does not mean she is

the outcry witness for all offenses involving appellant and her daughters. She testified

her daughters did not describe to her the events of oral-penile contact with appellant,

and based on the mother’s testimony, the trial court was correct to find the forensic

interviewer was the first adult other than the defendant to whom each of the sisters

“made a statement about the offense.” Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(3)

(West 2009); see Garcia, 792 S.W.2d at 91 (finding, based on teacher’s testimony, that

trial court did not abuse discretion by determining child protective specialist, not teacher,

was proper outcry witness); Brown, 189 S.W.3d at 387 (possible to have more than one

outcry witness, so long as testimony is to different events).


       According to the testimony of M.J.’s mother, M.J. told her appellant “touched

[her] tee-tee.” Neither this statement, nor any of the girls’ other statements to their

mothers, made outcry of the events involving the licking dog or the circular massager.


       Although one of the mothers gave inconsistent testimony at the pretrial hearing

regarding the information the girls gave the deputy sheriff, the trial court could have

believed, based on the testimony, that the girls did not tell the deputy sheriff anything

                                             7
more than what they related to their mothers. See Garcia, 792 S.W.2d at 92 (trial court

has broad discretion in making decisions as to outcry witnesses).


       The trial court reasonably could have concluded the statements to the girls’

mothers and the deputy sheriff described incidents distinct from those for which

appellant was being tried. Brown, 189 S.W.3d at 386-87; Broderick, 35 S.W.3d at 73.

The trial court did not abuse its discretion by determining Hardin was the first adult to

whom the girls made a statement about the offenses being tried. 6            We overrule

appellant’s first point of error.


Restriction of Cross-Examination


       During Hardin’s trial testimony, defense counsel sought to show Hardin an

offense report prepared by the sheriff’s investigator to refresh her memory.7 The trial

court denied his request and, according to appellant, violated his constitutional rights by




       6
         Even were we mistaken in our conclusion the trial court did not err by admitting
Hardin’s testimony, we could not find any error in its admission to be harmful. H.H.,
B.H. and M.J., who at trial ranged in age from ten to twelve years old, testified in some
detail to appellant’s offenses against them. In view of the victims’ testimony, we are
reasonably assured that any error in admitting Hardin’s testimony did not influence the
jury’s verdict or had but a slight effect. See Tex. R. App. P. 44.2(b) (standard for harm
from non-constitutional error); West, 121 S.W.3d at 105 (finding admission of hearsay
testimony harmless in similar circumstance); Mason v. State, No. 07-10-00246-CR,
2011 Tex.App. Lexis 9107 (Tex.App.—Amarillo Nov. 15, 2011, pet. ref’d) (mem. op., not
designated for publication) (similar analysis).
       7
       Appellant states he sought to introduce the report to impeach Hardin, showing
H.H. had been the victim of a sexual assault by another person. However, appellant
does not further develop this argument, and we do not address it.

                                            8
limiting his cross-examination of Hardin. We agree with the State this issue was not

preserved for appellate review.


       A complaint on appeal must comport with the complaint made in the trial court or

the error is waived.    Tex. R. App. P. 33.1; Rezac v. State, 782 S.W.2d 869, 870

(Tex.Crim.App. 1990).      Here, appellant complains of constitutional violations and

limitations on his cross-examination at trial. However, the record shows those were not

the bases for his objections at trial. See, e.g., Reyna v. State, 168 S.W.3d 173, 179

(Tex.Crim.App. 2005) (noting the purpose of requiring an objection is to give the trial

court or opposing party the opportunity to correct the error and when a defendant’s

objection encompasses complaints under both the rules of evidence and the

Confrontation Clause, the objection is not sufficiently specific to preserve error). Also,

appellant provides no argument or authority with respect to his assertion his

constitutional rights were violated. See, e.g., Russeau v. State, 171 S.W.3d 871, 881

(Tex.Crim.App. 2005) (overruling points of error as inadequately briefed where appellant

provided no argument or authority with respect to the protection provided by the Texas

Constitution). For both those reasons, appellant’s second point of error presents nothing

for our review, and is overruled.


       Having resolved both of appellant’s points of error against him, we affirm the

judgment of the trial court.


                                                       James T. Campbell
                                                           Justice


Publish.
                                            9
