Newton v. State, No. 10-06-00160-CR (Tex. App. 3/28/2007)

• Decision Date: 28 March 2007
• Docket Number: No. 10-06-00160-CR.,10-06-00160-CR.
• Parties: BOBBY BLAKE NEWTON, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

BOBBY BLAKE NEWTON, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 10-06-00160-CR.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed March 28, 2007.

Do Not Publish.

Appeal from the 272nd District Court, Brazos County, Texas, Trial Court No. 05-00731-CRF-272.

Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice VANCE concurs in the judgment with a note)^*

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Newton appeals his convictions for aggravated sexual assault of a child, and for indecency with a child by sexual contact, against the victim named in the indictment as Jane Doe, the daughter of Newton's former wife. See Act of May 28, 1997, 75th Leg., R.S., ch. 1286, § 1, 1997 Tex. Gen. Laws 4911, 4911 (amended 1999) (current version at Tex. Penal Code Ann. § 22.021(a) (Vernon Supp. 2006)); Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 21.11(a), 1993 Tex. Gen. Laws 3586, 3616 (amended 2001) (current version at TEX. PENAL CODE ANN. § 21.11(a) (Vernon 2003)). We affirm.

VENUE.

In Newton's fourth issue, he contends that the evidence of indecency with a child was legally insufficient. Specifically, Newton argues that there was no evidence of venue in Brazos County.

"Unless . . . disputed in the trial court, or unless the record affirmatively shows the contrary, the court of appeals must presume . . . that venue was proved in the trial court." Tex. R. App. P. 44.2(c); see id. 33.1(a); Henley v. State, 98 S.W.3d 732, 734 (Tex. App.-Waco 2003, pet. ref'd). In order to dispute proof of venue, the defendant must raise the issue specifically in the trial court. See Tex. R. App. P. 33.1(a); Etchieson v. State, 574 S.W.2d 753, 759 (Tex. Crim. App. 1978); Bass v. State, 464 S.W.2d 668, 669 (Tex. Crim. App. 1971); Romay v. State, 442 S.W.2d 399, 400 (Tex. Crim. App. 1969); Martin v. State, 385 S.W.2d 260, 261 (Tex. Crim. App. 1964) (op. on orig. submission); Atwood v. State, 120 S.W.3d 892, 894-95 (Tex. App.-Texarkana 2003, no pet.); Mosley v. State, 643 S.W.2d 212, 216 (Tex. App.-Fort Worth 1982, no pet.); see Henley at 734. In order for the record to show affirmatively that the State did not prove venue, "the record [must] affirmatively negate[] whatever proof was made by the State on the matter of venue." Holdridge v. State, 707 S.W.2d 18, 21-22 (Tex. Crim. App. 1986); see Holdridge v. State, 684 S.W.2d 766, 767 (Tex. App.-Waco 1984) (only "affirmative and conclusive proof in the record that the venue of prosecution was improperly laid" avoids presumption), aff'd, Holdridge, 707 S.W.2d 18.

Newton points to evidence that the abuse began in San Antonio. The State points to Doe's testimony that Newton's "sexual abuse" of Doe began when Doe moved to San Antonio and continued until she moved to Franklin. (Br. at 50 (quoting 3 R.R. at 132).) Doe moved to San Antonio before moving to College Station in Brazos County, and then to Franklin. The State also points to evidence that Newton "insert[ed] a finger into [Doe's] private area" once in Brazos County. (Id. (quoting 3 R.R. at 170).) The indictment alleged that Newton committed indecency with a child by "engag[ing] in sexual contact by touching the genitals of Jane Doe."¹ (I C.R. at 1.)

Newton does not point in the record to any dispute of venue in the trial court, nor does he attempt to show that the record affirmatively negates the State's proof of venue or that the record affirmatively shows that mandatory venue lay elsewhere than in Brazos County. We presume that the State proved venue in the trial court. We overrule Newton's fourth issue.

EVIDENCE.

In Newton's first three issues, he complains concerning the trial court's overruling of Newton's objections to evidence.

"An appellate court reviews a trial court's decision to admit or exclude evidence under an abuse of discretion standard." Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App.), cert. denied, 127 S. Ct. 664 (2006); accord Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991) (op. on reh'g). "If the trial court's decision was within the bounds of reasonable disagreement, the appellate court should not disturb its ruling." Shuffield at 793 (citing Rachal at 816); accord Montgomery at 390-92 (op. on reh'g).

HEARSAY.

In Newton's first issue, he contends that the trial court erred in overruling Newton's hearsay objection to outcry evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon 2005); TEX. R. EVID. 801(d), 802. Texas Code of Criminal Procedure Article 38.072 "makes an `outcry' exception to the hearsay rule for the first report of sexual abuse that [a] child" victim "makes to an adult." In re Z.L.B., 102 S.W.3d 120, 121 (Tex. 2003) (juvenile adjudication); accord Thomas v. State, 1 S.W.3d 138, 140 (Tex. App.-Texarkana 1999, pet. ref'd); see Holland v. State, 802 S.W.2d 696, 699 (Tex. Crim. App. 1991). "When offered for the truth of the matters asserted, so called `outcry testimony' is hearsay; as such, it is objectionable unless the testimony is permitted by a prescribed exception to the hearsay rule." Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992); see Martinez v. State, 178 S.W.3d 806, 810-811 (Tex. Crim. App. 2005).

In prosecutions for certain offenses, however, including prosecutions for sexual offenses under Texas Penal Code Chapter 21 committed against child victims twelve years of age or younger, subject to procedural requirements, the victim's outcry "statements that describe the alleged offense" are "not inadmissible because of the hearsay rule" if the statements "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, § 2(a), (b), § 2(a)(2); see id. § 1. Article 38.072 "strik[es] a balance between the general prohibition against hearsay and the specific societal desire to curb the sexual abuse of children." Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) (citing Osborne v. Ohio, 495 U.S. 103 (1990)). The statute's purpose is to "admit the testimony of the first adult a child confides in regarding the abuse." Martinez, 178 S.W.3d at 811. Otherwise, "the people whom these children trust and in whom they have confided . . . are barred from repeating what they have been told . . . ." Id. n.15 (quoting HOUSE COMM. ON CRIM. JURISPRUDENCE, BILL ANALYSIS, Tex. H.B. 579, 69th Leg., R.S. (1985)).

"But the societal interest in curbing child abuse would hardly be served if all that `first person' had to testify to was a general allegation from the child that something in the area of child abuse was going on at the home." Garcia, 792 S.W.2d at 91. In the context, then, of determining which witness, as the "first person . . . to whom the child made a statement about the offense" committed by the defendant was the proper outcry witness, Article 38.072 "demands more than a general allusion of sexual abuse"; that is, the statutory language "statement about the offense" does not "mean[] that any statement that arguably relates to what later evolves into an allegation of child abuse against a particular person will satisfy the requirements of" the statute. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(2)) (complainant testified that she told her teacher "what happened"); see Villanueva v. State, 209 S.W.3d 239, 247 (Tex. App.-Waco 2006, no pet.); Hanson v. State, 180 S.W.3d 726, 727 (Tex. App.-Waco 2005, no pet.). A "statement about the offense" means "a statement that in some discernible manner describes the alleged offense." Garcia at 91 (interpreting TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(2)).

"We review the trial court's decision to admit or exclude a hearsay statement that may fall within the article 38.072 hearsay exception under an abuse of discretion standard." Klein v. State, 191 S.W.3d 766, 779 (Tex. App.-Fort Worth 2006, pet. granted on other grounds); accord Villanueva, 209 S.W.3d at 247; see Garcia, 792 S.W.2d at 91.

The outcry witness, a psychotherapist who treated Doe, testified outside the presence of the jury that her notes for a date certain stated that Doe disclosed "that [Newton] had sexually abused [Doe] in the past." (3 R.R. at 6, 7; see id. at 5-7.)

Newton argues that the witness's "testimony was a general conclusion of abuse that did not describe the act in a discernible manner." (Br. at 5); see Garcia, 792 S.W.2d at 91. Newton conceded that the witness was the first adult to whom Doe made a statement concerning Newton's offenses. Although the witness's testimony concerning Doe's statement to her did not specify the manner or means of Newton's offenses, Doe's statement did clearly allege sexual abuse and clearly identified Newton as the abuser. The trial court did not abuse its discretion in finding that the witness's testimony was admissible under Article 38.072.² The trial court did not err in overruling Newton's hearsay objection.³ We overrule Newton's first issue.

EXTRANEOUS OFFENSES.

In Newton's second and third issues, he contends that the trial court erred in overruling Newton's objections to evidence of extraneous offenses.

"A trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard." Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005); accord Montgomery, 810 S.W.2d at 391-93 (op. on reh'g).

Newton complains of testimony of his stepdaughter L. D.: "L.D. testified before the jury that Appellant sexually abused her when she was nine or ten when they lived in Houston. (4 RR at 99-100). Appellant made L.D. perform oral sex on him and then forced her to rub on his scrotum while he had sexual intercourse with an unknown individual. (4 RR at 100)." (Br. at 17.)

Rule 404.

In Newton's second issue, he argues under Texas Rule of...