Stephen Howard Herrington v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma. L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 8, 2003

AFFIRMED

Steve Herrington ("Herrington") appeals his convictions of aggravated sexual assault of a child and indecency with a child. In three points of error, Herrington complains that: (1) the trial court erred in failing to exclude outcry testimony as being unreliable; (2) he was denied his Sixth Amendment right to confront and cross-examine witnesses when evidence of a prior sexual abuse of one of the victims was excluded; and (3) the evidence is insufficient to support his conviction. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

In his first point of error, Herrington contends that the trial court erred in allowing the victims' mother to testify as the State's outcry witness because the outcry statements were not reliable. (1)

A court's decision that an outcry statement is reliable is reviewed under an abuse of discretion standard. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Broderick v. State, 89 S.W.3d 696, 698 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). A trial court must conduct an inquiry into the reliability of the outcry statement, examining the "time, content, and circumstances of the statement." Broderick, 89 S.W.3d at 699. The phrase "time, content, and circumstances" refers to the time the child's statement was made to the outcry witness, the content of the child's statement, and the circumstances surrounding the making of that statement. Id. Although courts have enumerated factors that may assist in ascertaining the reliability of an outcry statement, the focus of the inquiry must remain upon the outcry statement, not the abuse itself. Id. The indicia of reliability that a trial court may consider include: (1) whether the child victim testifies at trial and admits making the out-of-court statement; (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate; (3) whether other evidence corroborates the statement; (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults; (5) whether the child's statement is clear and unambiguous and rises to the needed level of certainty; (6) whether the statement is consistent with other evidence; (7) whether the statement describes an event that a child of the victim's age could not be expected to fabricate; (8) whether the child behaves abnormally after the contact; (9) whether the child has a motive to fabricate the statement; (10) whether the child expects punishment because of reporting the conduct; and (11) whether the accused had the opportunity to commit the offense. Davidson v. State, 80 S.W.3d 132, 139 (Tex. App.--Texarkana 2002, pet. ref'd).

In this case, the outcry was made in response to questioning by the victims' mother after the victims' mother was informed that one of her daughters had acted out sexually with another child. According to the mother, the outcry statements were made within a week of the date the mother was told that the victim had been acting out. One of the victims stated that she made the outcry after her mother had questioned her once a week for "like, a month." The victim stated that her mother questioned her "about an hour" each time. The older victim only made an outcry after her younger sister made an outcry, and the mother stated that the older victim had tried to keep the younger victim quiet during the time the mother attempted to question the two victims together. Looking at the indicia of reliability, the trial court could consider: (1) the children testified at trial and admitted making the out-of-court-statements; (2) nothing in the record suggests that the children did not understand the need to tell the truth or that they lacked the ability to observe, recollect, and narrate, (3) although the children made the statements in response to questioning, the questioning followed a report to the mother that one of the victims was acting out sexually; therefore, the questioning was a normal response by the mother to the reported situation, not a manipulative action; (4) the children's statements are clear and unambiguous and rise to the needed level of certainty, (5) one of the victims was behaving abnormally in acting out sexually; (6) the events described by the children were acts that children of the victims' age could not be expected to fabricate, and (7) the undisputed evidence showed that the accused had the opportunity to commit the offense.

In view of the foregoing, the trial court did not abuse its discretion in concluding that the outcry testimony was reliable, and Herrington's first issue is overruled.

In his second point of error, Herrington contends that he was deprived of his constitutional right to cross-examine the witnesses regarding a prior sexual abuse incident involving the older of the victims.

The Sixth Amendment of the United States Constitution provides that a criminal defendant has the right to be confronted with the witnesses against him. U.S. Const., amend. VI. This right includes the right to cross-examine and is extended to the states by the Fourteenth Amendment. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996); Saglimbeni v. State, 100 S.W.3d 429, 434 (Tex. App.--San Antonio 2002, pet. ref'd). Although the rights to confrontation and cross-examination are constitutionally protected, these rights are not absolute. Saglimbeni, 100 S.W.3d at 435. The trial court has great latitude to impose reasonable limits on cross-examination based upon concerns about, among other things, harassment, prejudice, confusion of issues, and the witness's safety. Id. We review a trial court's decision to limit cross-examination under an abuse of discretion standard. See Matchett v. State, 941 S.W.2d 922, 940 (Tex. Crim. App.1996).

Herrington began abusing the victim in question when she was nine and continued abusing her for approximately three years. Defense counsel sought to introduce evidence that when the victim was three, a family friend performed oral sex on her. Defense counsel sought to introduce the evidence to show that the victim could have learned the behavior she did in acting out as a result of the prior abuse. The prior abuse was discovered when a family friend told the victim's father. We hold that the trial court did not abuse its discretion in excluding the evidence of the prior abuse. The victim underwent counseling after the abuse; however, the counselor reported that the victim did not remember anything. In addition, the sexual abuse the victim testified that she suffered as a result of Herrington's actions went far beyond the abuse to which she was subjected when she was three.

Herrington's second issue is overruled.

To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). For a factual sufficiency review, an appellate court looks at all the evidence to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).

In his one paragraph analysis of his sufficiency complaint, Herrington appears to be suggesting that the evidence is insufficient because the victim's testimony was unreliable, and Herrington "gave a clear and decisive denial of the allegations." We previously rejected Herrington's contention that the outcry testimony was unreliable. The jury evaluated the credibility of the witnesses, including the victims, and all of the alleged inconsistencies, variations, and suggestive influences pointed out by defense counsel during cross-examination. Given the verdict, the jury must have chosen to believe the victims. Because the available record does not clearly reveal that a different result is appropriate, we defer to the jury's determination concerning what weight to give the contradictory testimonial evidence because it turns on an evaluation of credibility and demeanor, and the jurors were in attendance when the testimony was delivered. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

Herrington's third issue is overruled.

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. The State suggests that Herrington's objections were not sufficient to preserve this issue for appeal; however, defense counsel informed the trial court that in addition to determining the identity of the outcry witness, the court also had "to look at the overall reliability of the statement in order to determine its admissibility."