Heath R. Barker v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2018
• Docket: 07-17-00024-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00024-CR

HEATH R. BARKER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 213th District Court Tarrant County, Texas1 Trial Court No. 1477288R, Honorable Louis E. Sturns, Presiding

July 31, 2018

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, Heath R. Barker, appeals from his conviction for continuous sexual

abuse of a child.2 We will affirm.

1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to

this Court from the Second Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).

2 See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2017). Factual and Procedural Background

The complainant in this case, A.M., is appellant’s daughter.3 Since her birth, A.M.

lived with her great-aunt, L.M., but she occasionally spent weekends with her father. After

returning home from one of these visits, A.M. was getting into the bathtub when L.M.

observed that something was written on A.M.’s backside. On one of A.M.’s buttocks, the

words, “I’m going in there,” were written, along with an arrow pointing toward the cleft

between A.M.’s buttocks. On the other side, the words, “I heart you,” were written. L.M.

asked who had written on her, and A.M. replied that it was appellant. L.M. took a

photograph, which she later provided to the police, of A.M.’s buttocks. L.M. asked A.M.

whether appellant had “done anything else like touch her on her privates or anything.”

A.M. said yes, and told L.M. that appellant had put his hands in her panties and “poked

her in the front and the back.” L.M. determined to contact the police the next day, and

asked no further questions. The following morning, A.M. told L.M. that appellant had been

“doing that” since she was seven. A.M. was ten years old at the time.

Following an investigation, appellant was indicted for continuous sexual abuse of

a child and four lesser-included offenses. A Tarrant County jury found appellant guilty of

the offense of continuous sexual abuse of a child. The trial court sentenced appellant to

forty years’ imprisonment.

3 We will use initials to protect the privacy of the complainant. See Linney v. State, 401 S.W.3d 764, 769 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

2 Outcry Witness Testimony

By his first issue, appellant contends that the trial court erred by allowing L.M. to

testify as an outcry witness, because the statement A.M. made to her was too vague to

constitute a specific allegation of sexual abuse.

At trial, the jury heard testimony from L.M. about A.M.’s allegation of abuse. While

hearsay statements are generally inadmissible, they may be admitted under specific

conditions when public policy supports their use and the circumstances surrounding the

making of the statements support their reliability. Martinez v. State, 178 S.W.3d 806, 810

(Tex. Crim. App. 2005). One such exception to the general rule excluding hearsay

concerns a child abuse victim’s initial outcry statement. Article 38.072 of the Texas Code

of Criminal Procedure allows for the testimony of the first person aged eighteen or over,

other than the defendant, to whom the child made an outcry statement about the alleged

offense. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2017). This provision

requires that (1) the defendant be given notice, (2) the trial court conduct a hearing to

determine the reliability of the statement, and (3) the child testify or be available to testify.

Id. at § 2(b). To constitute an admissible outcry, the statement must describe the offense

in some discernible manner and “must be more than words which give a general allusion

that something in the area of child abuse was going on.” Garcia v. State, 792 S.W.2d 88,

91 (Tex. Crim. App. 1990). We review a trial court’s decision to admit or exclude a

hearsay statement that may fall within the outcry exception under an abuse of discretion

standard. Id. at 92.

3 Appellant argues on appeal that A.M.’s statement to L.M. was merely a “general

allusion” to abuse that failed to provide sufficient details to satisfy article 38.072. At trial,

during the hearing regarding L.M.’s ability to testify as an outcry witness, appellant made

only one complaint about L.M.’s testimony: “Our argument is that all questions regarding

any kind of abuse was [sic] prompted by [L.M.]. The child didn’t voluntarily start talking

about it and saying that anything happened. So we would object and say that it’s all

hearsay.”

Appellant’s trial objection was that A.M.’s statement was not made spontaneously,

but was the result of L.M.’s prompting. This objection differs from the issue raised on

appeal, i.e., that A.M.’s statement was not sufficiently descriptive. We may not review an

appellate objection to testimony that does not comport with the objection made at trial.

Murphy v. State, 229 S.W.3d 334, 343 (Tex. App.—Amarillo 2006, pet. ref’d).

Consequently, appellant has preserved nothing for our review on this issue. Wright v.

State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d). We overrule

appellant’s first issue.

By his second issue, appellant asserts that the circumstances of A.M.’s statement

to L.M. failed to demonstrate its reliability. Specifically, appellant claims that “any

statement by A.M. was prompted by [L.M.],” making the outcry statement unreliable.

For the trial court to find the statement admissible, it had to find it was reliable

based on “the time, content, and circumstances of the statement.” TEX. CODE CRIM. PROC.

ANN. art. 38.072, § 2(b)(2). The phrase “time, content, and circumstances” refers to the

time the child makes the statement to the outcry witness, the content of the statement,

4 and the circumstances surrounding the making of the statement. Broderick v. State, 89

S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). A trial court has broad

discretion in admitting outcry witness testimony. Garcia, 792 S.W.2d at 92. We will not

reverse the trial court’s decision to admit outcry witness testimony unless it falls outside

the zone of reasonable disagreement. See Shaw v. State, 329 S.W.3d 645, 650 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d).

L.M. testified that, after A.M. told her that appellant had written the words on her

buttocks, L.M. asked A.M. whether appellant had “done anything else like touch her on

her privates or anything.” A.M. said yes, and told L.M. that appellant had put his hands

in her panties and “poked her in the front and the back.” This testimony indicates that the

outcry statement was not made spontaneously. However, L.M.’s testimony did not show

that she prompted A.M. as to the substance of the outcry. A.M. provided the detail about

where and how appellant had touched her. There was no evidence in the record that

L.M. had coached or manipulated A.M. into fabricating a statement about appellant. In

fact, A.M. testified that she did not think L.M. believed her when she first told her that it

was appellant who had written on her. Additionally, the undisputed evidence that A.M.

spent weekends with appellant established that he had the opportunity to commit the

offenses related in the outcry testimony. Finally, the circumstances surrounding the

outcry—i.e., the discovery of disturbing writing on A.M.’s buttocks upon her return from

appellant’s house—indicate that the outcry was reliable. See, e.g., Cooke v. State, Nos.

12-03-00183-CR, 12-03-00184-CR, 2004 Tex. App. LEXIS 5057, at *10 (Tex. App.—Tyler

June 9, 2004, no pet.) (mem. op.) (where mother asked child “if anybody had ever touched

her privates,” court found that, although child’s statement was made in response to

5 mother’s inquiry, “given the attendant circumstances, the trial judge was justified in

concluding that [the child’s] statement was not the product of her mother’s manipulative

conduct.”).

The trial court had discretion to determine whether A.M.’s outcry statements were

reliable based on the time, content, and circumstances of the statements. See Shaw,

329 S.W.3d at 652. The trial court’s decision was supported by the evidence and was

not outside the zone of reasonable disagreement. We overrule appellant’s second issue.

By his third issue, appellant argues that the trial court erred in admitting outcry

testimony from another witness after it had allowed L.M. to testify as the outcry witness.

As set forth above, article 38.072 allows the first person to whom a child describes an

offense in some discernible manner to testify about the statements the child made. See

TEX. CODE CRIM. PROC. ANN. art. 38.072. A trial court errs when it permits testimony of a

second outcry witness as to the same event over a defendant’s hearsay objection.

Broderick v. State, 35 S.W.3d 67, 73-74 (Tex. App.—Texarkana 2000, pet. ref’d).

However, multiple outcry witnesses can testify about separate acts of abuse committed

by a defendant if each witness is the first person to whom the child disclosed the separate

acts. Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref’d). A

trial court has broad discretion in determining the admissibility of outcry evidence, and its

determination will not be disturbed absent a showing in the record that the trial court

clearly abused its discretion. Garcia, 792 S.W.2d at 92.

After both L.M. and A.M. testified, the State called Samantha Shircliff, a forensic

interviewer with the Alliance for Children. As it had with L.M., the trial court conducted a

6 hearing pursuant to article 38.072 prior to allowing Shircliff to testify before the jury. In

this hearing, Shircliff testified that A.M. told her that appellant “put his finger in the hole of

her butt and the hole of her crotch” and moved his finger back and forth. A.M. also

provided Shircliff with other details, including when and where these events occurred,

how she was positioned, and things appellant said to her.

Appellant’s counsel argued that Shircliff was not an outcry witness, because she

was not the first person to whom A.M. described the abuse. Counsel for the State, noting

that outcry statements are event-specific, argued that the outcry to Shircliff provided

details and elements of penetration that L.M.’s testimony did not cover. The trial court

overruled appellant’s objections to Shircliff’s testimony as an outcry witness.

As set forth above, L.M., the first witness, testified that A.M. told her that appellant

had put his hands in her panties and “poked her in the front and the back.” A.M. herself

testified next, and when asked if appellant touched her over her clothes, under her

clothes, or something else, answered, “Kind of a little bit of both.” She then stated, “There

has just been different times where it was different.” Following A.M.’s testimony, Shircliff

testified, “I was trying to get clarification about what part of her butt and crotch he actually

touched, and I was able to clarify that he put his finger in the hole of her butt and the hole

of her crotch.” Additionally, Shircliff testified to details A.M. gave her about the last

instance of abuse, which was one or two weekends prior to their interview, and the first

instance of abuse, which occurred shortly after A.M. turned seven.

This case involved a five-count indictment; appellant was charged with continuous

sexual abuse of a child and four lesser-included counts of aggravated sexual assault and

7 indecency by contact. Continuous sexual abuse necessarily involves separate acts

committed at different times. At trial, L.M.’s testimony about appellant’s acts described

indecency with a child, while Shircliff’s testimony clearly went to the allegation of

aggravated sexual assault of a child by penetration.

Under these circumstances, we cannot say that the trial court’s admission of

Shircliff’s testimony constituted a clear abuse of discretion. See Sledge v. State, No. 03-

03-00092-CR, 2004 Tex. App. LEXIS 2247, at *9 (Tex. App.—Austin Mar. 11, 2004, no

pet.) (mem. op.) (no abuse of discretion where trial court allowed testimony of one outcry

witness as to indecency with a child allegation and another outcry witness as to

aggravated sexual assault allegation). We overrule appellant’s third issue.

Ineffective Assistance of Counsel

By his fourth issue, appellant claims he received ineffective assistance of counsel

because his attorney failed to request that L.M.’s testimony be stricken. Appellant

contends that when the trial court admitted the testimony of Shircliff, counsel should have

moved to strike the testimony of L.M., because there were then two outcry witnesses

concerning the same acts.

To show ineffective assistance of counsel, appellant must demonstrate that (1) his

trial counsel’s performance was deficient because it fell below an objective standard of

reasonableness, and (2) there was a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Rodriguez v. State, 899 S.W.2d

658, 664 (Tex. Crim. App. 1995).

8 We concluded in our analysis of appellant’s third issue that the trial court did not

commit a clear abuse of discretion in allowing both L.M. and Shircliff to testify as outcry

witnesses. Because the testimony was admissible, it would have been futile for

appellant’s counsel to move to strike it. Counsel is not required to present the court with

futile motions. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991).

Consequently, we do not agree that appellant’s trial counsel’s performance was deficient.

We therefore need not reach the second prong of the Strickland test. See Strickland, 466

U.S. at 687. We overrule appellant’s fourth issue.

Conclusion

The judgment of the trial court is affirmed.

Judy C. Parker Justice

Do not publish.