                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00090-CR


SIDNEY PRICE LAWSON                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1304582D

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Sidney Price Lawson appeals his conviction for the offense of

continuous sexual abuse of a young child. In three issues, Lawson argues that

the trial court erred by not including in the jury charge a lesser-included offense

instruction for indecency with a child by exposure, that the trial court erred by


      1
       See Tex. R. App. P. 47.4.
designating the forensic interviewer as an outcry witness, and that the evidence

is insufficient to support the jury’s verdict. We will affirm.

                                   II. BACKGROUND

      After Daughter2 revealed to her biological mother, Cari Mauk, that her

biological father, Lawson, had “touched her” in her “no-no areas,” Mauk

contacted the police.     The police investigation resulted in the State charging

Lawson with the continuous sexual assault of a young child.

      At trial, Mauk testified that she met Lawson in 1999 when she was

nineteen years old and that she began living with Lawson and his Wife in 2001.

According to Mauk, Wife was not supportive at first of the living arrangement, but

eventually Mauk, Lawson, and Wife all became sexual partners with one another,

and the three lived with their collective four children as a “family.” Mauk said that

she had two children with Lawson, a son and Daughter, and that Wife also had

two children with Lawson, both boys. By Mauk’s account, the children referred to

both her and Wife as “mom.” Toward the end of the “family” arrangement in

August 2011, Mauk and Wife had become committed to each other, but due to

“too many problems,” the women had “drifted apart” from Lawson.

      Mauk said that while she was working during the evening shift on

February 29, 2012, she received a call from Wife. What Wife told Mauk caused

her to have a “panic attack” because Daughter had told Wife something

      2
       In order to protect the minor child, pseudonyms are used where possible.
Tex. R. App. P. 9.10.


                                           2
disturbing about Lawson’s behavior with Daughter. After Mauk calmed down,

she immediately drove home, and she, Wife, and Daughter went somewhere

private so Daughter could tell Mauk what she had told Wife. Mauk said that

Daughter told her that Lawson had repeatedly “touched her in her no-no areas”

but that Daughter was not more specific. Mauk said that she did not inquire

further because she did not want to upset Daughter. Instead, Mauk said that she

went home and called the police.

      Daughter, who was twelve years old at the time of trial, testified that on

February 29, 2012, she told Wife, “[M]y dad touched me.” Daughter said that the

reason she told Wife at the time that she did was because the family had moved

away from Lawson and that she “wasn’t afraid anymore.”

      Daughter averred that she did not remember the day Lawson began to

“touch” her, but she recalled how one day Lawson told her to go to the parents’

bedroom. From there, Lawson pushed Daughter onto the bed and told her to

take her clothes off. After she disrobed, Lawson then touched Daughter in her

“no-no places.” Specifically, according to Daughter, Lawson touched her chest

area, sexual organ area, and bottom. Daughter said that when Lawson touched

her sexual organ, he digitally penetrated it. Daughter also said that during this

episode, Lawson kissed her on her lips.

      Daughter averred that incidents like these occurred multiple times “[o]ver a

period of years,” that Lawson routinely touched her sexual organ and chest area,

and that he routinely required Daughter to masturbate him to ejaculation.


                                          3
Daughter specifically said that Lawson would routinely “take off his pants and his

boxers, and he would just tell [her] to touch him . . . . He would make [her] grab

it.” Daughter said that Lawson would then tell her to move her hand “up and

down” until she saw “[w]hite stuff” come out of his penis. Daughter said that she

did not know how many times these incidents occurred but that they had

occurred more than five times.

       By Daughter’s account, Lawson instructed her not to tell either of her

“moms” about what Lawson would do to her or that she would get in trouble. She

also averred that Lawson would buy her more things than he bought the three

boys and that he would take her “more places” so that he could be alone with

her. Daughter said that the incidents ceased when Lawson moved away just shy

of her ninth birthday.

       The State called Lindsey Dula, a forensic interviewer for Alliance for

Children. Outside the presence of the jury, and after Lawson objected to Dula as

a witness, the State and Lawson questioned Dula to determine whether she was

the proper outcry witness to testify at trial.   Dula averred that Daughter had

described to her in detail how Lawson had kissed her, how he had made her

masturbate him, how she had described and then drew a picture of Lawson’s

penis, how he had touched her chest and digitally penetrated her sexual organ,

and how Daughter described where the first incident occurred. The trial court

overruled Lawson’s objection and allowed Dula’s testimony to be heard before

the jury.


                                        4
      In the jury’s presence, Dula testified that in March 2012 she interviewed

Daughter. Dula said that Daughter was “very reluctant to talk.” According to

Dula, Daughter eventually described in detail how Lawson had touched her chest

and sexual organ area, how Lawson had kissed Daughter using his tongue, and

how he had digitally penetrated her sexual organ. Dula said that Daughter told

her where the first incident occurred, who was home, and roughly how old she

was at the time. Dula said that Daughter described several incidents, including

multiple times in which Lawson required Daughter to masturbate him to

ejaculation. Dula averred that she could not determine from the interview how

many times these incidents occurred, but Dula described the frequency as

“chronic.”

      Brenda Crawford, a sexual assault nurse examiner for Cook’s Children

Hospital, testified that she examined Daughter on April 4, 2012. Crawford said

that during her examination, Daughter said to her, “My dad did it.” Crawford said

that she then asked Daughter what her dad’s name was, and Daughter said,

“Sidney Lawson. He touched me in my private parts.” Daughter described to

Crawford how Lawson had taken her and his clothes off, how he had required

her to masturbate him to ejaculation, and how he had told her not to tell anyone.

Daughter also told Crawford that Lawson showed her pornographic magazines.

      Lawson testified in his defense.       Lawson denied ever having molested

Daughter and expressed disbelief as to why he “would be accused of it.”

Specifically, Lawson denied that he had ever told Daughter to undress; he denied


                                         5
that he ever had her masturbate him; and he denied ever having touched her in

an inappropriate way.         Lawson expressed love for his children, including

Daughter, and described how the last time he saw her at a scheduled visitation

she was excited to see him, she hugged him, she played with his hat, and she

told him about Girl Scouts.

      On cross, Lawson admitted that when he was asked by Child Protective

Services about Daughter’s allegations, he reported to CPS a situation that

happened between his oldest son and Daughter. Lawson said that Daughter

was lying about her allegations.

      Wife also testified. Wife said that Lawson treated Daughter differently than

his sons and that he would buy Daughter gifts and not buy his sons gifts. Wife

recalled when Daughter told her about Lawson’s inappropriate behavior.

According to Wife, Daughter did not give much detail, only stating that Lawson

touched her inappropriately on more than one occasion.

      During the charge conference, Lawson requested that the trial court

include an instruction on indecency with a child as a lesser-included offense to

the charge of continuous sexual abuse of a young child. The trial court overruled

Lawson’s request. The jury returned a verdict of guilty, and after a punishment

hearing, the jury assessed punishment at thirty years’ confinement. The trial

court entered judgment accordingly, and this appeal followed.




                                          6
                                    III. DISCUSSION

      A.     Jury Charge

      In his first issue, Lawson argues that the trial court committed reversible

error by denying his request for the inclusion of a lesser-included offense

instruction on the charge of indecency with a child. Specifically, Lawson argues

that the evidence at trial supported an instruction of indecency with a child by

exposure.    The State argues that Lawson was not entitled to the instruction

because there is no evidence in the record to indicate that Lawson committed

only indecency with a child. We agree with the State.

      We use a two-step analysis to determine whether an appellant was entitled

to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.

App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come

within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.

Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.

1998).

      Second, some evidence must exist in the record that would permit a jury to

rationally find that if the appellant is guilty, he is guilty only of the lesser offense.

Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.

2005); Rousseau, 855 S.W.2d at 672–73. The evidence must be evaluated in

the context of the entire record. Moore, 969 S.W.2d at 8. There must be some

evidence from which a rational jury could acquit the appellant of the greater


                                           7
offense while convicting him of the lesser-included offense. Id. The court may

not consider whether the evidence is credible, controverted, or in conflict with

other evidence. Id. Anything more than a scintilla of evidence may be sufficient

to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.

      A charge on the lesser-included offense is not required when the

defendant presents no evidence or presents evidence that no offense was

committed and there is no evidence otherwise showing that the defendant is

guilty of a lesser-included offense. Lofton v. State, 45 S.W.3d 649, 652 (Tex.

Crim. App. 2001).

      A person commits the offense of indecency with a child by exposure if, with

a child younger than seventeen years and not the person’s spouse, the person

exposes the person’s anus or any part of the person’s genitals, knowing the child

is present, with the intent to arouse or gratify the sexual desire of any person or

causes the child to expose the child’s anus or any part of the child’s genitals.

Tex. Penal Code Ann. § 21.11(a), (b-1) (West 2011).

      Here, assuming without deciding that indecency with a child by exposure is

a lesser-included offense of the State’s charge that Lawson committed

continuous sexual assault of a young child, there is simply no evidence in the

record that would have permitted the jury to rationally find that if Lawson was

guilty, he was guilty only of indecency with a child by exposure. See Hall, 225

S.W.3d at 536. Each witness who testified to what Daughter reported, averred

that Lawson had subjected Daughter to a series of sexually abusive incidents.


                                        8
Each of the incidents described entailed Lawson touching Daughter’s sexual

organ or chest, or the incidents entailed Lawson having Daughter touch his

penis. Furthermore, Lawson categorically denied that he had ever committed a

single act described by the testimony of others.

       In short, Lawson was not entitled to a charge on the lesser-included

offense of indecency with a child by exposure because he presented only

evidence that no offense was committed, and there is no record evidence

otherwise showing that Lawson was only guilty of indecency with a child by

exposure. See Lofton, 45 S.W.3d at 652; see also Brown v. State, 381 S.W.3d

565, 583 (Tex. App.—Eastland 2012, no pet.) (holding that defendant convicted

by jury of continuous sexual abuse of a young child was not entitled to lesser-

included charge of indecency with a child because there was no record evidence

that defendant only committed indecency with a child). We overrule Lawson’s

first issue.

       B.      Outcry Witness

       In his second issue, Lawson argues that the trial court erred by allowing

Dula, the forensic interviewer, to testify to what Daughter had told her during her

interview. Specifically, Lawson argues that the trial court improperly allowed two

outcry witnesses to testify, Mauk and Dula. The State responds that Daughter

expressed only a general allusion to sexual abuse to Mauk, but Daughter

expressed the how, when, and where the sexual abuse occurred to Dula, and

thus, Dula was the proper outcry witness. We agree with the State.


                                        9
      We review a trial court’s decision to admit an outcry statement under an

abuse of discretion standard. 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 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).      But because the trial court has no

discretion in determining the applicable law, the trial court abuses its discretion

when it fails to analyze the law correctly and apply it to the facts of the case.

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

      Hearsay is not admissible except as provided by statute or by the rules of

evidence. See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).

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 § 2(a)(3) (West Supp. 2016). To be

admissible under article 38.072, outcry testimony must be elicited from the first

adult to whom the outcry was made. Lopez v. State, 343 S.W.3d 137, 140 (Tex.

Crim. App. 2011). Admissible outcry witness testimony is not person-specific but

event-specific. Id.; West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort Worth


                                        10
2003, pet. ref’d). And article 38.072 requires more than “a general allusion that

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

      To be a proper outcry statement, the child’s statement to the witness must

describe the alleged offense, or an element of the offense, in some discernible

manner. See id. As a general rule, in order to describe the alleged offense, the

statement must contain the “how,” “when,” or “where” the offense allegedly

transpired.   See Brown v. State, 381 S.W.3d 565, 572 (Tex. App.—Eastland

2012, no pet.) (citing Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas

1999, pet ref’d)) (“On the other hand, the child’s statements to Burkett regarding

how, when, and where appellant touched her clearly satisfied the statutory

requirements.”).

      Here, the record does not support Lawson’s contention that the trial court

allowed two outcry witnesses to testify. Both Mauk’s and Daughter’s testimony

demonstrate that Daughter told Mauk nothing more than a general allusion that

something in the area of sexual abuse had occurred and not a clear description

of the charged offense, the continuous sexual abuse of Daughter. Daughter’s

statements that Lawson had touched her “no-no areas” more than once gives no

answer to the questions of how, when, and where the continuous sexual abuse

occurred.

      In contrast, Daughter told Dula that the first incident occurred in the

parents’ bedroom at the family’s home. Daughter told Dula in detail how Lawson

had her disrobe, how he touched her chest and sexual organ, how he had


                                       11
digitally penetrated her sexual organ, how he had kissed her on her mouth and

inserted his tongue in her mouth, and how he required her to masturbate him to

ejaculation.    Daughter also drew a picture of Lawson’s penis for Dula and

explained how “white stuff” had come from “where he pees.” Daughter told Dula

how this had occurred frequently, with most of the incidents occurring when she

was in third grade.

      According to the record, Dula was the first person over eighteen years of

age to whom Daughter, in some discernible manner, described the how, when,

and where of the offense charged in the indictment. See Tex. Code Crim. Proc.

Ann. art. 38.072, § 2(a); Garcia, 792 S.W.2d at 91. We conclude the trial court

did not abuse its discretion in designating Dula as the proper outcry witness.

Therefore, we overrule Lawson’s second issue.

      C.       Sufficiency of the Evidence

      In his third issue, Lawson argues that the evidence is insufficient to support

his conviction.     Specifically, Lawson argues that the evidence is insufficient

because “[t]he only uncontroverted direct evidence on point came from the

testimony of the alleged victim herself and witnesses testifying to what she told

them during the investigation.” We disagree that the evidence is insufficient.

               1.     Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential


                                         12
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

      We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.


                                       13
State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of

the crime are determined by state law.”). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized

by the indictment means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging

instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.

2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)

(“When the State pleads a specific element of a penal offense that has statutory

alternatives for that element, the sufficiency of the evidence will be measured by

the element that was actually pleaded, and not any alternative statutory

elements.”).

               2.   Continuous Sexual Assault of a Child

      A person commits the offense of continuous sexual abuse of a young child

if

      (1) during a period that is 30 or more days in duration, the person
      commits two or more acts of sexual abuse, regardless of whether
      the acts of sexual abuse are committed against one or more victims;
      and

       (2) at the time of the commission of each of the acts of sexual
      abuse, the actor is 17 years of age or older and the victim is a child
      younger than 14 years of age.

Tex. Penal Code Ann. § 21.02(b) (West Supp. 2016).



                                         14
       Either a child complainant’s testimony or an outcry witness’s testimony is

sufficient alone to support a conviction for sexual assault of a child. See Tex.

Code Crim. Proc. Ann. art. 38.07(a) (West Supp. 2016) (providing conviction for

sexual assault of a child is “supportable on the uncorroborated testimony of the

victim”); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)

(recognizing outcry testimony alone can be legally sufficient evidence to support

a conviction for sexual assault of a child); see also Bargas v. State, 252 S.W.3d

876, 888–89 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding child’s

testimony regarding abuse alone was sufficient to support defendant’s conviction

for   aggravated   sexual   assault   despite   child’s   use   of   “unsophisticated

terminology”); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th

Dist.] 2002, pet. ref’d) (holding child’s outcry statement alone was sufficient to

support defendant’s conviction for aggravated sexual assault).

       In this case, both Daughter and Dula, as the outcry witness, testified to

incidents that occurred “[o]ver a period of years” wherein Lawson touched

Daughter’s sexual organ and chest area and wherein Lawson required Daughter

to masturbate him to ejaculation. Daughter specifically said that Lawson would

routinely “take off his pants and his boxers, and he would just tell [her] to touch

him . . . . He would make [her] grab it.” Daughter said that Lawson would then

tell her to move her hand “up and down” until she saw “[w]hite stuff” come out of

his penis. Daughter said that these events occurred when she was in elementary




                                        15
school and when she was younger than eight years old.             Dula’s testimony

echoed Daughter’s testimony.

      Viewing the evidence in the light most favorable to the jury’s verdict, we

hold that a rational trier of fact could have found that Lawson committed two or

more acts of sexual abuse during a period exceeding thirty days at the time that

Lawson was seventeen years of age or older and Daughter was a child younger

than fourteen years of age. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Dobbs, 434 S.W.3d at 170. We overrule Lawson’s third issue.

                               IV. CONCLUSION

      Having overruled all three of Lawson’s issues, we affirm the trial court’s

judgment.




                                                 /s/ Bill Meier
                                                 BILL MEIER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

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

DELIVERED: September 8, 2016




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