John Gray v. The State of Texas--Appeal from 202nd District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-05-00234-CR
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JOHN GRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 03F0392-202
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

John Gray was charged with, and convicted of, indecency with a child by contact, for causing a seven-year-old girl to touch his penis. See Tex. Penal Code Ann. 21.11 (Vernon 2003). The jury that found him guilty also assessed his punishment at twenty years' confinement.

Appellate counsel filed a brief June 12, 2006, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), asserting that there is no arguable issue for appeal, but setting out one possible point of error, that is, that admitting the testimony of the outcry witness was error. Counsel sent Gray a copy of the brief and advised Gray by letter she believes there are no arguable contentions of error. She also informed Gray of his right to review the record and file a brief pro se. On June 12, 2006, this Court mailed a letter to Gray informing him that a pro se brief, should he wish to file one, was due on or before July 13, 2006. No brief has been filed, and Gray has not sought additional time in which to prepare a brief.

Appellate counsel states that she has thoroughly read and reviewed the entire appellate record and finds no error preserved for appeal that could be successfully argued. Her brief contains a professional evaluation of the record and advances one possible ground for review. This meets the requirements of Anders. See Anders, 386 U.S. 738; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978); see also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In her possible ground, counsel suggests that the court erred by admitting hearsay testimony from Jeanette Enloe as the outcry witness. The State had initially identified both Enloe and Francis Gray as outcry witnesses. Counsel suggests that the evidence at trial possibly showed that the proper outcry witness was neither Enloe nor Francis Gray, but instead was the child's mother, and that the trial court thus possibly erred by admitting into evidence, under the outcry statute and over counsel's objection, Enloe's testimony of what the victim told her about the details of the offense.

We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). We will not reverse a trial court whose ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391 (op. on reh'g).

In cases involving certain sex crimes against children, Article 38.072 provides an exception to the hearsay rule for testimony by "outcry witnesses" when specific requirements are met. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). An outcry witness is the first person, eighteen years of age or older, other than the defendant, to whom the child victim made a statement about the details of the offense. Tex. Code Crim. Proc. Ann. art. 38.072, 2(a)(2); Brown v. State, 189 S.W.3d 382, 385 (Tex. App.--Texarkana 2006, pet. ref'd).

In this case, there was evidence the victim told her mother and grandmother that the abuse happened, but had not told them the details she told Enloe. The victim testified she had drawn a picture on the back of an envelope, which arguably had some sexual content once explained or put into the context of a report about sexual contact, and had given it to her mother about two days after she returned to Missouri from her visit with Gray. The victim later testified that she had already provided to Enloe the details of Gray's sexual contact before the victim drew the picture for her mother. Further, the victim's mother testified that the victim had given her no details of the abuse and that the mother had contacted police to report generally that her daughter had "a problem." Other evidence suggests that the victim had told her mother that Gray had caused her to touch his penis and then later told Enloe the added detail that he had caused her to masturbate him to climax. (1)

The evidence was conflicting. Therefore, the trial court had the responsibility to resolve the conflicting testimony to identify the proper outcry witness, that is, the first adult to whom the offense was discernibly described. Under the requisite abuse of discretion standard, we must agree with counsel that the contention of error, although possible, is without merit.

We have reviewed the possible issue raised by counsel in her appellate brief, and we agree with her assessment that no reversible error exists. We have, likewise, reviewed the record and agree with counsel there are no arguable points of error in this case.

We affirm the judgment of the trial court.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: September 5, 2006

Date Decided: November 3, 2006

 

Do Not Publish

1. One concern relative to that evidence is that Gray was charged with indecency with a child by contact, in that he caused the victim to touch his penis, the act allegedly told to her mother. But because there is conflicting evidence on what was told, to whom it was told, and when it was told, we need not address that concern.