Carlos Omar Cordero v. State

444 S.W.3d 812, 2014 Tex. App. LEXIS 10610
CourtCourt of Appeals of Texas
DecidedSeptember 24, 2014
Docket09-13-00158-CR, 09-13-00159-CR, 09-13-00160-CR, 09-13-00161-CR, 09-13-00162-CR, 09-13-00163-CR
StatusPublished
Cited by20 cases

This text of 444 S.W.3d 812 (Carlos Omar Cordero v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlos Omar Cordero v. State, 444 S.W.3d 812, 2014 Tex. App. LEXIS 10610 (Tex. Ct. App. 2014).

Opinion

*815 OPINION

CHARLES KREGER, Justice.

Appellant Carlos Omar Cordero was convicted by a jury of four counts of indecency with a child and two counts of aggravated sexual assault of a child. In seven issues, Cordero appeals his convictions and contends the trial court erred by: (1) permitting an outcry witness to testify when the alleged victim was not a child at the time she made her outcry, (2) allowing an outcry witness to testify about extraneous offenses occurring outside of Montgomery County, and (3) allowing the State to question Cordero about the veracity of the alleged victim’s testimony. We affirm the trial court’s judgment.

I. Factual and Procedural Background

The victim in this case, M.P. 1 , was twenty-eight years old when, in 2011, she first reported acts of sexual abuse she endured as a child to Detective Mark Denham of the Shenandoah Police Department. M.P. described to Detective Denham a number of incidents where Cordero allegedly committed acts of indecency by contact and sexual assault against her when she was a child. The State indicted Cordero on five counts of indecency with a child by contact and four counts of aggravated sexual assault of a child by contact. The State alleged that Cordero committed these acts between August 1, 1991 and January 1, 1995, when M.P. was between the ages of nine and twelve.

II. Outcry Testimony

In his first six issues, Cordero contends the trial court erred by admitting outcry testimony from the police officer when such testimony was inadmissible hearsay not subject to the outcry exception in arti-ele 38.072 of the Texas Code of Criminal Procedure. In his first issue, Cordero contends that the trial court erred in admitting the testimony of Denham .as an outcry witness because Denham did not receive the statement from a child as required by the statute, but from M.P. after she had reached the age of majority. In his second, third, fourth, fifth, and sixth issues, Cordero argues the trial court erred in admitting Denham’s outcry testimony that described five further extraneous acts that allegedly occurred outside of Montgomery County.

As the groundwork for this discussion, we begin with the well-known definition of hearsay — an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). “Hearsay is not admissible except as provided by statute or [the Rules of Evidence] or by other rules prescribed pursuant to statutory authority.” Tex.R. Evid. 802. The State does not dispute that the statement M.P. made to Denham was hearsay. Rather, the State contends that it was admissible hearsay under article 38.072 of the Texas Code of Criminal Procedure.

A. Standard of Review

We review a trial court’s designation of an outcry witness under an abuse of discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990). A trial court abuses its discretion when its ruling is outside the zone of reasonable disagreement. Zarco v. State, 210 S.W.3d 816, 830 (Tex.App.-Houston [14th Dist.] 2006, no pet.). We will not disturb the trial court’s ruling absent a clear abuse of discretion. Id. We will uphold a trial court’s designation of an outcry witness if it is supported by the evidence. Garcia, 792 S.W.2d at 92.

*816 B. Article 38.072 — An Exception to the Hearsay Rule

Article 38.072 creates a statutory exception to the hearsay rule for child victims of certain offenses. Long v. State, 800 S.W.2d 545, 547 (Tex.Crim.App.1990). Because Cordero was charged with committing offenses between August 1, 1991 and January 1, 1995, the 1985 version of article 38.072 is applicable in this case. The 1985 version of the statute provides a hearsay exception for statements made by a child victim to the first person, 18 years of age or older, other than the defendant, in which the child describes certain offenses, including indecency with a child and aggravated sexual assault, committed against her when she was twelve years of age or younger. Act of May 27, 1985, 69th Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2223 (amended 1995, 2009, 2011) (current version at Tex.Code Crim. Proc. Ann. art. 38.072, §§ 1, 2 (West Supp. 2014)). 2

Once a hearsay objection has been raised to such testimony, the burden shifts to the State, as the proponent of the hearsay evidence, to establish compliance with the provisions of article 38.072. Long v. State, 800 S.W.2d at 547-48; see also Cofield v. State, 891 S.W.2d 952, 954 (Tex.Crim.App.1994). The 1985 version of article 38.072 provides that this hearsay exception only applies 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, [eighteen] years of age or older, other than the defendant, to whom the child made a statement about the offense.” Act of May 27, 1985, 69th Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2223 (amended 1995, 2009, 2011). The 1985 version of article 38.072 further provides that the statement will not be inadmissible because of hearsay if: (1) the party intending to offer the statement gives proper notice as provided in the statute; (2) the trial court holds a hearing outside the presence of the jury and finds the statement is rehable based on the time, content, and circumstances of the statement; and (3) the child testifies or is available to testify at the proceeding. See id. These provisions of the statute are mandatory and must be satisfied for the article 38.072 exception to be applied. Long, 800 S.W.2d at 547.

C. Preservation of Error

Cordero contends the provisions of article 38.072 were not satisfied because (1) M.P., the complainant, was not a child when she made her statements and (2) the events described in some of the statements were not of the alleged offenses. The State argues that Cordero failed to preserve these issues for appeal. Specifically, the State contends that for Cordero to have preserved these issues, he would have had to present the specific arguments he now makes on appeal to the trial court — i.e., he had to argue to the trial court that article 38.072 is inapplicable because M.P. was no longer a child when she made her outcry statement and that the statements regarding extraneous offenses committed outside of Montgomery County were inadmissible hearsay.

To preserve error for appellate review, a party must make an objection with sufficient specificity to make the trial *817 court aware of the complaint and its basis and obtain a ruling on the objection. Martinez v. State, 98 S.W.Sd 189, 198 (Tex.Crim.App.2003); Gutierrez v. State,

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Cite This Page — Counsel Stack

Bluebook (online)
444 S.W.3d 812, 2014 Tex. App. LEXIS 10610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlos-omar-cordero-v-state-texapp-2014.