                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00406-CR
                             NO. 02-13-00407-CR


CHARLES EDWARD PAIR, JR.                                           APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
                    TRIAL COURT NO. 09398, 10031

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Charles Edward Pair, Jr. appeals his two convictions for

aggravated sexual assault of a child.            See Tex. Penal Code Ann. §

22.021(a)(2)(B) (West Supp. 2014). A jury found Pair guilty, and the trial court

sentenced him to life imprisonment and a $10,000 fine in each case, ordering

      1
      See Tex. R. App. P. 47.4.
that the sentences run concurrently. In two issues, Pair argues that the trial court

abused its discretion by admitting the victim’s outcry statement and that, in trial

court cause number 09398 (our cause number 02-13-00406-CR), the issue was

never joined between him and the State due to a failure to amend the indictment.

We will affirm.

                             II. FACTUAL BACKGROUND

      In 2009, eleven year-old Sally2 was living with her mother Kassandra, step-

father Pair, and fifteen-year-old sister Julie in a mobile home in Young County,

Texas. One Sunday, Kassandra left Sally, Julie, and Pair at home while she

went to the hospital with her oldest daughter Tara and Tara’s children.

Kassandra left about 10:00 that morning and returned around 11:30 that night.

      At approximately 8:00 in the evening, Pair told Julie’s boyfriend, who was

visiting, to leave the home.     Pair then suggested and engaged in a drinking

game with Sally and Julie that required the loser to take shots of Everclear and

tequila. Sally and Julie soon became drunk, and when Kassandra called to say

that she was on her way home, Pair told Julie to dispose of the liquor bottles

outside in a boat stored in the back of Pair’s truck.

      Although Sally attempted to follow after Julie, Pair demanded that she stay

inside, where he then forcibly penetrated her vagina and anus with his penis.

      2
        To protect the anonymity of the children in this case, we will use aliases to
refer to all individuals named herein with the exception of the appellant. See
Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex.
Crim. App. [Panel Op.] 1982).


                                          2
Sally eventually pulled herself away and ran outside to join her sister. Pair joined

the sisters and began smoking cigarettes, allowing them to do the same. Sally

made a comment about it being “balls cold” outside, and Pair replied, “No, this is

what balls look like,” and exposed himself to his minor stepdaughters.

       Back inside, Pair convinced Sally to play “strip poker.” Sally testified that

her last memory of the night is running towards her mother’s room while her

pants were on the floor in order to get away from Pair. Julie testified that she

observed Sally and Pair playing strip poker and later saw Sally running into

Kassandra’s room in only her shirt and underwear.

       Sally went to school the next morning—still feeling nauseated and

intoxicated—without telling her mother what had happened. While there, Sally

told some close friends about what Pair had done, and they convinced Sally to

tell Kassandra.     After school, Sally told Kassandra that Pair had raped her

vaginally and anally. Kassandra called Tara, who called the police. The police

found Everclear and tequila bottles in a boat in the bed of Pair’s truck.

Kassandra gave the police a written statement detailing what Sally had told her.

                     III. RELIABILITY OF THE OUTCRY STATEMENT

       In his first issue, Pair contends that the trial court abused its discretion by

admitting the outcry statement made by Sally to Kassandra because it did not

possess sufficient indicia of reliability at the time of the trial court’s ruling.

   A. Law on Admissibility of Outcry Statement and Standard of Review




                                             3
      Hearsay is generally inadmissible. Tex. R. Evid. 802. But article 38.072

provides that an outcry statement is not inadmissible on the basis that it is

hearsay if, in relevant part, (1) the statement describes a sexual assault offense

that a defendant committed against a child younger than fourteen years of age;

(2) the statement was made by the child to the first person who was eighteen

years old or older, other than the defendant, that the child spoke to about the

offense; and (3) the “trial court finds, in a hearing conducted outside the

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

and circumstances of the statement.” Tex. Code Crim. Proc. Ann. art. 38.072,

§§ 1(1), 2 (West Supp. 2014); see Sanchez v. State, 354 S.W.3d 476, 487–88

(Tex. Crim. App. 2011); West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort

Worth 2003, pet. ref’d). Outcry testimony admitted in compliance with article

38.072 is considered substantive evidence, admissible for the truth of the matter

asserted in the testimony. Duran v. State, 163 S.W.3d 253, 257 (Tex. App.—Fort

Worth 2005, no pet.)

      Various courts have created a non-exclusive list of factors that tend to

indicate reliability of an outcry statement. See Norris v. State, 788 S.W.2d 65, 71

(Tex. App.—Dallas 1990, pet. ref’d); Buckley v. State, 758 S.W.2d 339, 343–44

(Tex. App.—Texarkana 1988), aff’d, 786 S.W.2d 357 (Tex. Crim. App. 1990).

This non-exclusive list includes: (1) whether the child victim testified at trial and

admitted making the out-of-court statement; (2) whether the child understood the

need to tell the truth and had the ability to observe, recollect, and narrate; (3)


                                         4
whether other evidence corroborated the statement; (4) whether the child made

the statement spontaneously in her own terminology or whether evidence existed

of prior prompting or manipulation by adults; (5) whether the child’s statement

was clear and unambiguous and rose to the needed level of certainty; (6)

whether the statement was consistent with other evidence; (7) whether the

statement described an event that a child of the victim’s age could not be

expected to fabricate; (8) whether the child behaved abnormally after the contact;

(9) whether the child had a motive to fabricate the statement; (10) whether the

child expected punishment by reporting the conduct; and (11) whether the

accused had the opportunity to commit the offense. Norris, 788 S.W.2d at 71

(citing       Buckley,     758      S.W.2d       at   343–44);      Woodruff v. State,

Nos. 02-11-00337-CR, 02-11-00338-CR, 02-11-00339-CR, 02-11-00340-CR,

02-11-00341-CR, 02-11-00342-CR, 02-11-00343-CR, 2012 WL 3041114, at

*9 (Tex. App.—Fort Worth July 26, 2012, pet. ref’d) (mem. op., not designated for

publication).

          A trial court’s decision that the outcry statement is reliable and admissible

under article 38.072 will not be disturbed absent a clear abuse of discretion.

Duran, 163 S.W.3d at 257; see Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.

App. 1990). A trial court abuses its discretion by admitting a statement under

article 38.072 only when the court’s decision falls outside of the zone of

reasonable disagreement. Bautista v. State, 189 S.W.3d 365, 367 (Tex. App.—

Fort Worth 2006, pet. ref’d).


                                             5
                       B. Reliability of Sally’s Statement3

      Kassandra was the State’s sole witness at the article 38.072 hearing. She

testified that Sally got home from school at 4:30 p.m. on January 26, 2009, came

inside the house, and asked Kassandra how she had felt when Tara had

confided in her that she had been raped in the past. Kassandra said that she

had been very angry because she could not help Tara after so much time had

passed. Sally then told Kassandra that Pair had raped her the night before.

Sally explained to Kassandra that she, Pair, and Julie had been playing a

drinking game while playing Guitar Hero and that she had become drunk. Sally

told Kassandra that Pair sent Julie outside to hide the liquor bottles but would not

let Sally go outside with her sister. Sally explained that Pair “grabbed” her when

she headed for the door, pulled down her underwear, and penetrated her. Sally

pulled away, she flipped over, and then he penetrated her anally. Sally told her

mother that she did not remember getting in bed, that Pair’s cigarettes “were

strung all over her bedroom,” and that she did not know how they got there.

Sally explained that she had not wanted to tell Kassandra because she did not

want to hurt her but that, after talking to her friends at school, she decided to tell


      3
        Contrary to the State’s assertion on appeal, the record clearly indicates
that Pair objected to the outcry statement’s reliability and received an adverse
ruling at the article 38.072 hearing conducted outside the presence of the jury.
Although Pair did not object during Kassandra’s testimony before the jury, his
38.072 objection at the pretrial hearing was sufficient to preserve his complaint
for appeal. See Tex. R. Evid. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858
(Tex. Crim. App. 1991).


                                          6
her mother what had happened. Kassandra testified that she accompanied Sally

to the hospital that day and that Sally “was very quiet, very sullen,” and kept

asking her mother if she was alright.

         Kassandra testified that she gave a written statement to police detailing

what Sally had told her. The State introduced the written statement into evidence

at the hearing.4 The written statement was similar to Kassandra’s trial testimony,

with minor variations. She used the terms “vagina” and “anus” in her written

statement. When asked at the hearing if she had used “the kind of vocabulary”

that Sally used when making the written statement, Kassandra answered, “Most

of it. I don’t – I was kind of in shock, so I really couldn’t say the exact words she

said.”       Kassandra remembered Sally saying that Pair had “stuck it in [her]

vaginally” and also asking “if it was rape if it was stuck in anally.”            When

Kassandra told Sally that it was rape, Sally said, “He stuck it in me vaginally. I

tried to crawl away and he stuck it in me anally.”

         On cross-examination, Kassandra testified that her written statement was

“pretty close” to the exact language used by Sally. Kassandra maintained that

Sally had used the words “vaginally” and “anally” because she had been taught

the proper terms.

         Pair contends that, applying the non-exclusive list of factors set out in

Buckley and Norris, the trial court did not have sufficient indicia of reliability of the


         4
         The written statement was not introduced into evidence at trial.


                                           7
outcry statement at the time that it ruled that the statement was admissible. See

Norris, 788 S.W.2d at 71; Buckley, 758 S.W.2d at 343–44. For example, Pair

argues that the trial court did not know—at the time of its ruling—whether Sally

would testify at trial, whether Sally would admit to making the outcry statement,

whether Sally understood the need to tell the truth, or whether other evidence

corroborated Sally’s statement or was consistent with Sally’s statement.

      The indicia of reliability set out in those cases provide guidance, when

applicable, to the trial court at an article 38.072 hearing in determining its only

task—whether, based on the time, content, and circumstances of the statement,

the outcry is reliable. See Sanchez, 354 S.W.3d at 488; Norris, 788 S.W.2d at

71; Buckley, 758 S.W.2d at 343–44; see also Broderick v. State, 89 S.W.3d 696,

699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (explaining that the indicia of

reliability enumerated in Norris and similar cases should not be expanded into a

requirement that the court examine the circumstances of the alleged abuse). But

the ultimate inquiry is whether the time of the child’s statement, the content of the

child’s statement, and the circumstances surrounding that statement provide

sufficient indicia of reliability. See Sanchez, 354 S.W.3d at 488.

      Here, Kassandra testified that Sally made her outcry the day after the

incident, just after returning home from school. Sally gave specific details of the

night’s events, as detailed above, and of the following day’s events, leading up to

her confiding in her mother about what had happened. Kassandra also testified

that when the police showed up that day, they “got the liquor bottles,” confirming


                                         8
that liquor bottles were found on the property and corroborating Sally’s statement

that Pair had Julie hide the liquor bottles.

      Pair asserts that inconsistencies between Kassandra’s testimony of the

outcry statement and her written statement detailing the outcry statement cast

doubt on the statement’s reliability, but an article 38.072 hearing is solely to

determine the reliability of the outcry statement, not the reliability of the outcry

witness. See id. (explaining that the credibility of the outcry witness is not a

relevant issue at an article 38.072 hearing).

      Although the trial court could not determine if Sally would indeed testify,

and the State did not expand on the supporting evidence during the hearing,

viewing the time of Sally’s statement to Kassandra, the content of that statement,

and the circumstances surrounding that statement, we hold that the trial court

acted within its discretion by admitting the outcry statement. See Sanchez, 354

S.W.3d at 488; Garcia, 792 S.W.2d at 92. We overrule Pair’s first issue.

                           IV. JOINDER OF THE INDICTMENT

      In his second issue, Pair argues that proper joinder of the issue between

himself and the State never occurred in trial court cause number 09398 (our

cause number 02-13-00406-CR). Pair argues that he pleaded “not guilty” to a

proposed amended indictment, which substituted the word “vagina” for “sexual

organ,” but that the indictment was never amended.

      The original indictment charged Pair with aggravated sexual assault of a

child by “intentionally or knowingly causi[ing] the penetration of the sexual organ


                                           9
of Sally[].” Prior to trial, the State filed a motion to amend the indictment to

change the term “sexual organ” to “vagina” so that the indictment would allege

that Pair “intentionally or knowingly caused the penetration of the [vagina] of

Sally[].” The trial court entered an order finding that the motion was “well-taken”

and that there was no opposition to the motion. However, the indictment was

never amended.

      At trial, when the prosecutor read the indictment in front of the jury, she

read the unamended indictment—alleging penetration of the sexual organ—and

Pair entered a plea of not guilty to that original, unamended indictment.

Immediately afterwards, at a bench conference, the State incorrectly told the trial

court that the indictment had been amended to change the term “sexual organ” to

“vagina,” and defense counsel responded, “There wasn’t a change of date or

anything like that. It’s all the same.”    The trial then resumed with the State

reading the indictment in the remaining cause. At the charge conference, the

State said it would “abandon” the amendment to the indictment, and the trial

court noted that the original indictment read in front of the jury charged

penetration of the sexual organ and that Pair pleaded not guilty to that

indictment.   The jury charge instructions used the wording from the original,

unamended indictment, using the term “female sexual organ,” not “vagina.”

      An indictment is essential to vest the trial court with jurisdiction, and it

provides a defendant notice of the offense charged so that he may prepare, in

advance of trial, an informed and effective defense. Riney v. State, 28 S.W.3d


                                          10
561, 565 (Tex. Crim. App. 2000). Until the indictment is read and a plea is

entered, the issue is not joined between the State and the accused before the

jury. Peltier v. State, 626 S.W.2d 30, 31 (Tex. Crim. App. [Panel Op.] 1981).

      The Texas Code of Criminal Procedure creates a procedure for amending

an indictment.    Tex. Code Crim. Proc. Ann. art. 28.10–.11 (West 2006).

However, neither the State’s motion to amend nor the trial court’s granting of the

motion constitutes amendment of the indictment. Riney, 28 S.W.3d at 565–66.

Instead, the motion to amend and the trial court’s order granting such motion

“comprise the authorization for the eventual amendment of the charging

instrument pursuant to article 28.10.” Id.; see Valenti v. State, 49 S.W.3d 594,

597 (Tex. App.—Fort Worth 2001, no pet.). An amendment to an indictment can

be effectuated either by the physical alteration of the original indictment itself or

by the incorporation into the record of a new document to serve as the “official”

indictment. Riney, 28 S.W.3d at 565–66.

      Here, the original indictment was never physically altered, nor was an

altered indictment substituted for the original indictment. The State read the

unamended indictment in front of the jury, and Pair entered a plea of not guilty to

the unamended indictment; the issue was thus joined between Pair and the

State. See Peltier, 626 S.W.2d at 31. Additionally, because Pair pleaded to the

original, unamended indictment, there is no notice issue, regardless of the

attempted amendment.       See Riney, 28 S.W.3d at 565.         We overrule Pair’s

second issue.


                                         11
                                  V. CONCLUSION

         Having overruled Pair’s two issues, we affirm the judgment of the trial

court.



                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 13, 2014




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