Broderick v. State

• Decision Date: 26 October 2000
• Docket Number: No. 06-00-00019-CR,06-00-00019-CR
• Citation: 35 S.W.3d 67
• Parties: (Tex.App.-Texarkana 2000) THEODORE MICHAEL BRODERICK, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 67

35 S.W.3d 67 (Tex.App.-Texarkana 2000)

THEODORE MICHAEL BRODERICK, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-00-00019-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted September 14, 2000

Decided October 26, 2000

On Appeal from the 6th Judicial District Court Fannin County, Texas Trial Court No. 19154

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Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Chief Justice Cornelius

Theodore Broderick appeals from his conviction in a jury trial for the offense of aggravated sexual assault on a child. He was sentenced to life imprisonment on one count, and to twenty years' imprisonment and a $10,000.00 fine on the second count.

Broderick contends that the trial court erred by excluding evidence that a different individual had sexually assaulted the complainant at an earlier date and then allowing the prosecutor to argue that the complainant had exhibited sexual knowledge that a seven-year-old child should not have.

He contends that the court erred by allowing the State to use outcry evidence from the wrong witness and erred by denying his motion for new trial based on that error, that the evidence was legally and factually insufficient to support the verdict, that the court erred by failing to order a mistrial based on the prosecutor's comments about the defendant's failure to testify, and that counsel was ineffective for failing to object to those comments, as well as for failing to conduct an adequate voir dire, failing to object to the admission of extraneous offenses, failing to effectively cross-examine the State's expert witnesses, failing to obtain his own expert to rebut the State's allegations, failing to object to comments about preteen sex news groups, and failing to cross-examine a witness about prior inconsistent statements.

The child victim, M. M., was seven years old at the time of the offenses. She called Broderick "Uncle Mike" because he is the uncle of M. M.'s mother. M. M. testified that she visited Broderick's house from time to time, and that he would use his computer to make cards and play games with her. She testified that he began touching her in spots where he was not supposed to touch her, and that he would show her his private spots, sometimes with her clothes on and sometimes with them off. She testified that he told her to touch his private parts, and that she rubbed them up and down until white stuff came out.

When she was asked if he had ever licked or put his finger in her private parts, she initially said no, but then told the jury she was afraid Broderick would come after her. She then described how he would touch her genitals with his tongue and put his tongue inside her while her clothes were on the floor. She also testified that he showed her pictures on his computer of little girls "doing stuff with their uncles," which she described as "having sex," and that he told her she was going to have to do that with him one day.

Outcry Witness

Broderick contends that the trial court erred in designating Officer David Thompson as the outcry witness rather than the child's mother, Tammy Mueller. Article 38.072 of the Code of Criminal Procedure provides that a child victim's hearsay statement about the offense is admissible in certain circumstances. Article 38.072 provides as follows:

This article applies only to statements that describe the alleged offense that:

(1) were made by the child against whom the offense was allegedly committed; and

(2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.

Tex Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2000).

Broderick contends that Mueller was the correct outcry witness rather than Officer Thompson. He argues that M. M.'s first statements to an adult were made to her mother rather than to Officer Thompson, who testified for the State as the outcry witness.

The State initially filed motions identifying Mueller as its outcry witness. The prosecutor later filed a motion identifying Officer Thompson as the outcry witness. The motions are identical, both stating that the individual was the first person to whom the child victim made a statement about the offense alleged in the indictment. They both summarize the statement as being that M. M. did not want to spend the night with Broderick because he touched her, that he rubbed and licked her private part, that he wanted her to suck his penis, that he had shown her pictures of sexual acts on his computer, that he put his finger and tongue into her vagina, and that he forced her to masturbate him.

The trial court conducted a hearing outside the presence of the jury in order to determine who was the proper outcry witness. At the hearing, Mueller testified that when M. M. began making excuses for not visiting Broderick, she asked her what was going on. Mueller testified that M. M. told her she did not want to go to Broderick's hosue because "he touches me." Mueller testified that she asked her how, and M. M. cupped her hand and moved it back and forth, pointing to her genitals. On cross-examination, Mueller stated repeatedly that the information provided by M. M. at that time was no more than the bare bones of an allegation that he had touched her genitals, and that she believed at that time that Broderick had only touched M. M. through her clothing.

Officer Thompson testified to a much more detailed statement. He testified that when Mueller brought M. M. in for an interview, she answered his questions in graphic detail. M. M. first told the officer that Broderick had been feeling her. When Thompson began questioning M. M., she told him that Broderick had licked her and that he wanted her to suck him back. Thompson said that when M. M. told him this, she looked at her mother and said over and over, "I never did it, I never did it." He also stated that it was obvious that the mother was not prepared for what she heard and that he had to help the mother out of the room because of the emotional shock caused by the statements.

We recently addressed a similar issue in Thomas v. State, 1 S.W.3d 138 (Tex. App. Texarkana 1999, no pet.). As we said in that opinion, 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. Id.; see Reed v. State, 974 S.W.2d 838, 841 (Tex. App. San Antonio 1998, pet. ref'd).

Article 38.072 contemplates allowing the first person to whom the child described the offense in some discernible manner to testify about the statements the child made. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).¹ We recognized in Thomas that "[a] 'statement about the offense' means more than a general allusion to sexual abuse. It must describe the alleged offense in some discernible manner." Thomas v. State, 1 S.W.3d at 140-41; see Garcia v. State, 792 S.W.2d at 91.

Because of the way in which the statute is written, an outcry witness is not person-specific, but event-specific. Before more than one outcry witness may testify, however, the outcry must be about different events, and not simply a repetition of the same event as related by the victim to different individuals. From a careful reading of the outcry witness statute, we conclude that there may be two proper outcry witnesses if they each testify about different events, but there may be only one outcry witness to the victim's statement about a single event. The proper outcry witness to a single event is the first adult person other than the defendant to whom the victim made a statement describing the incident. See Turner v. State, 924 S.W.2d 180, 183 (Tex. App. Eastland 1996, pet. ref'd); see also Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App. Austin 1998, pet. ref'd).

Broderick was tried in a single prosecution on an indictment listing five separate acts in two counts. Each of the five paragraphs alleges that the events occurred on or about September 29, 1997. The offense of touching M. M. was clearly set out in a discernible manner in her outcry to Mueller, even though its full extent or the precise nature in which it was accomplished was not stated. The trial court abused its discretion by determining that the officer was the outcry witness about the touching described by M. M. because she had previously told Mueller the same story in a discernible manner.

However, there was evidence at the hearing that Officer Thompson was the first person to hear M. M.'s outcry stating that Broderick had licked her genitals. Thus, we conclude that the trial court did not abuse its discretion by determining that Officer Thompson was the outcry witness for that act.

Broderick also argues under this contention that other evidence introduced during the trial cast doubt on Mueller's veracity, suggesting that M. M. actually told her more than Mueller was willing to recount for the court at the hearing. Family members testified that Mueller had initially claimed that Broderick had only fondled M. M. through her clothes and was disappointed when they informed her that this would not constitute rape. According to those witnesses, she reappeared the next day with another story, that M. M. had told her Broderick forced her to engage in oral sex. They testified that it was four days after the initial confrontation before Mueller went to the police. Because of this trial testimony, Broderick argues that the court could not have properly concluded that the police officer was a proper outcry witness. We disagree.

The court made its ruling about the outcry witness pretrial. When this evidence was eventually introduced at trial, counsel did not ask the trial court to reconsider its ruling because of the additional information that had become available...