Jerry Lee Canfield v. State

• Court: Court of Appeals of Texas
• Decided: February 19, 2015
• Docket: 07-13-00161-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00161-CR ________________________

JERRY LEE CANFIELD, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1317398R; Honorable Louis E. Sturns, Presiding

February 19, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Jerry Lee Canfield, was convicted by a jury of continuous sexual

assault of a child (M.C.) and assessed a sentence of fifty years confinement.1 By four

issues, Appellant asserts the trial court erroneously admitted portions of the testimony

1 TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014). A person commits the offense of continuous sexual assault of a child if, during a period that is 30 or more days in duration, he commits two or more acts of sexual abuse, and at the time of the commission of each act of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. An offense under this section is a felony of the first degree, punishable by imprisonment for life, or for any term of not more than 99 years or less than 25 years. of (1) Jessica Canfield Killion, (2) Ronda Canfield, (3) Michael Canfield, and (4) Lindsey

Dula. Specifically, Appellant contends their testimony concerning statements made by

M.C. was inadmissible hearsay because those statements did not qualify as admissible

outcry statements under the provisions of article 38.072 of the Texas Code of Criminal

Procedure.2 We affirm.

BACKGROUND

Appellant was charged by indictment of intentionally or knowingly committing two

or more acts of sexual abuse of M.C., a child younger than 14 years of age, during the

period from May 1, 2010 through August 31, 2010. Specifically, the indictment alleged

Appellant committed aggravated sexual assault of M.C. “by causing the sexual organ of

[M.C.] to contact the mouth of the defendant, and/or by causing the sexual organ of

[M.C.] to contact the sexual organ of the defendant, and/or by causing the anus of

[M.C.] to contact the sexual organ of the defendant.” The indictment went on to allege

Appellant also committed the offense of indecency with a child with intent to arouse or

gratify the sexual desire of any person “by touching the genital of [M.C.] and/or by

causing [M.C.] to touch the genitals of the defendant, and/or by touching the anus of

[M.C.].” The indictment further alleged the statutory requirement that “at the time of the

commission of each of these acts of sexual abuse the defendant was 17 years of age or

older and [M.C.] was younger than 14 years of age.”

2 TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2014). Unless otherwise indicated, all future references to an “article” or “articles” are references to the Texas Code of Criminal Procedure.

2 On December 3, 2012, the State filed five separate notices, entitled Notice of

Outcry Pursuant to Article 38.072 CCP, each naming one of the following witnesses:

Ronda Canfield, Jessica Canfield,3 Michael Canfield, Lindsey Dula, and Beth Hobbs.

Each notice gave a summary of their proposed testimony concerning statements made

by M.C.4 In April 2013, a jury trial was held during which, among others, each of the

following witnesses testified: (1) Ronda Canfield (M.C.’s great aunt), (2) Jessica

Canfield (Ronda’s daughter), (3) Michael Canfield (M.C.’s great uncle), and (4) Lindsey

Dula (a forensic examiner who interviewed M.C.).

At trial, Jessica was the first to testify. She testified that, in January 2012, while

she, M.C. and Jessica were in the kitchen at the Canfield’s home in Bedford, Texas,

M.C. told her that Appellant had touched her private parts. Jessica further testified that

in a conversation that took place the next day, M.C. told her Appellant had touched her

private parts with his hands, mouth, and private part and that M.C. stated she “had to

touch [Appellant’s] private parts with [her] hands and [her] body.” During her testimony,

Appellant’s counsel never objected to the testimony concerning M.C.’s statements to

her.

Ronda was the next witness to testify. During her direct examination, she too

testified concerning the conversation that took place in the kitchen of her home. Ronda

testified that during that conversation M.C. told her Appellant touched her private parts.

She also stated that M.C. told her it happened when she was in the downstairs bedroom

3 Jessica Canfield and Jessica Canfield Killion are the same person. At the time of her original statement to the police she used her maiden name. 4 The State filed a more detailed description of Lindsey Dula’s testimony on March 19, 2013, pursuant to a notice entitled Notice of Outcry Supplement Pursuant to Article 38.072 CCP.

3 in Bedford and that it also happened in a room in Tennessee. Ronda testified that, at

that point, she asked her husband to come into the kitchen and she asked M.C. to tell

him what she had just told her. When Michael and M.C. began to talk, she and Jessica

left the room to take care of M.C’s brother. During Ronda’s testimony, Appellant’s

counsel never objected to the testimony concerning M.C.’s statements to her.

Michael was the third witness. During both direct and cross-examination,

Michael testified that, in January 2012, M.C. told him her father kissed her private parts

and touched his private parts to her private parts. As with Jessica and Ronda, during

Michael’s testimony before the jury, Appellant’s counsel never objected to any testimony

concerning M.C.’s statements to him.5

After a Bedford Police Department detective testified, the State called Lindsey

Dula, the director of program services at Alliance for Children. Lindsey, a child abuse

forensic examiner, interviewed M.C. concerning the allegations of abuse she had

disclosed to Jessica, Ronda, and Michael. Lindsey described M.C.’s statements to

5 In a pretrial article 38.072 hearing conducted immediately prior to the jury being seated, Michael testified concerning the statements made to him by M.C. At that time, Appellant’s counsel made the following objection:

I would agree that some of the things that Jessica has said may have differed slightly from what [M.C.] had told Ronda, especially the second time. However, I think what she told Mike Canfield is identical to what she had told Jessica and Ronda at the earlier time. Therefore, I would object to Mike Canfield being an outcry witness because none of the outcries were any different from what she told to Ronda and Jessica earlier. So I would object to Mike as an outcry witness.

After some discussion, without expressly ruling on the objection, the trial court stated, “Now, with respect to [the State] calling both Ronda and Mike as an outcry witness, I’m a bit concerned there, so I probably will just allow one.”

4 those witnesses as a “rolling outcry.”6 She testified M.C. told her that Appellant touched

her private parts and put his private part into her private part more than once. She also

testified that M.C. told her these incidents occurred in an apartment in Tennessee and

at Aunt Ronda’s house. According to Lindsey’s testimony, M.C. also demonstrated the

position she would be in when Appellant would enter her anus and that M.C. indicated

she and Appellant had vaginal and anal sex multiple times. M.C. also indicated to

Lindsey that when Appellant put his mouth on her vagina, he would penetrate her

vagina with his tongue. M.C. also told Lindsey Appellant would show her adult sexual

organs on his computer.

Prior to this testimony being given, in an article 38.072 hearing conducted

outside the presence of the jury, Appellant made the following objection concerning

M.C.’s statements to Lindsey:

My understanding of the outcry statements given by Ms. Dula are duplicative of the outcry statements that have already been elicited from Jessica and from Ronda and also the statements given by Mike, so we would object.

The trial court overruled the objection.

Araceli Desmarais, a Sexual Assault Nurse Examiner, was the next witness. She

testified M.C. told her that Appellant touched her private part with his private part. M.C.

indicated that, when this took place, she was not wearing her pants or underwear and

Appellant had removed his pants and boxers. According to M.C.’s statement, this type

of encounter occurred multiple times in Tennessee and in Bedford. M.C. also indicated

6 Lindsey described a “rolling outcry” as multiple instances where a child would describe only part of the sexual abuse awaiting a reaction from the listeners. If the listeners did not react negatively and the child felt safe, the child would reveal additional instances and/or more detail of abuse.

5 that her father showed her adult sexual organs on his computer. She told Araceli that

Appellant performed oral sex on her and made her touch his private parts more than

once at the Canfield home in Bedford. M.C. also indicated there was pain when

Appellant penetrated her private part. Appellant’s counsel did not object to Araceli’s

testimony.

M.C. was the State’s final witness. M.C. testified her father touched her private

parts when they lived in Tennessee and that he also touched his private part to her

private part when she was living in Bedford. She testified that when he touched her with

his private part, sometimes she was on her stomach and other times on her back. She

did not have any panties on and her father was not wearing any pants or underwear.

She indicated that when her father was on top of her and she was on her tummy, it hurt.

She also indicated her father made noises and something came out of his private part.

Following M.C.’s testimony, the State rested. The defense then rested without

calling any additional witnesses. Thereafter, the jury convicted Appellant of continuous

sexual assault and, at the conclusion of the punishment phase of trial, assessed his

punishment at fifty years confinement. This appeal followed.

ARTICLE 38.072—OUTCRY STATEMENTS

Hearsay is generally inadmissible. TEX. R. EVID. 802. However, article 38.072

creates a statutory hearsay exception for a child-complainant’s out-of-court outcry

statement in the prosecution of certain sexually related offenses if, in relevant part, (1)

the statement describes the alleged offense; (2) committed by the defendant against a

6 child who is younger than fourteen years of age; (3) where the statement was made to

the first person who was eighteen years old or older, other than the defendant, that the

child spoke to about the offense; (4) the “trial court finds, in a hearing conducted outside

the presence of the jury, that the statement is reliable based on the time, content, and

circumstances of the statement,” and (5) the child testifies or is available to testify at

trial. Art. 38.072, § 2. Continuous sexual assault of a child, the offense at issue in this

case, is Chapter 21 sexual offense covered by article 38.072. TEX. PENAL CODE ANN. §

21.02(b) (West Supp. 2014); Art. 38.072, § 1(1). The child-victim’s statements must

describe the alleged offense in some discernable way such that the outcry is “more than

words which give a general allusion that something in the area of child abuse is going

on . . . .” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).

Furthermore, outcry witness testimony is event-specific, not person-specific.

Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). That is, where more than

one offense is being prosecuted, there may be more than one outcry statement and

more than one outcry witness. Robinett v. State, 383 S.W.3d 758, 761-62 (Tex. App.—

Amarillo 2012, no pet.). In such situations, each outcry statement must meet the

requirements of article 38.072, and because designation of the proper outcry witness is

event-specific, the outcry statements related by different witnesses must concern

different events and not simply be the repetition of the same event told by the victim at

different times to different individuals. See Lopez, 343 S.W.3d at 140 (stating “[t]here

may be only one outcry witness per event”); Robinett, 383 S.W.3d at 762; Solis v. State,

No. 02-12-00529-CR, 2014 Tex. App. LEXIS 4493, at *11 (Tex. App.—Fort Worth April

24, 2014, no pet.) (mem. op., not designated for publication). Where, as here, the

7 prosecution of the singular offense of continuous sexual assault involves establishing

the commission of “two or more acts of sexual abuse,” committed “during a period that

is thirty or more days in duration,” there may be an outcry statement as to each act of

sexual abuse and, therefore, more than one outcry witness as to that particular offense.

Additionally, the hearsay exception provided by article 38.072 applies only if the

statute’s stringent procedural requirements are met. Garcia, 792 S.W.2d at 91. In order

to invoke the statutory exception, the party intending to offer the statement must notify

the adverse party of the name of the witness through whom it intends to offer the

statement and provide a written summary of the statement. See Art. 38.072, § 2(b)(1).

The statute’s explicit content and procedural requirements are mandatory, even though

they may at times result in admission of a less detailed statement from the child. Id.

STANDARD OF REVIEW

An appellate court reviews a trial court’s decision to admit or exclude evidence

under an abuse of discretion standard of review. Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991) (op. on reh’g.). Under that standard, the appellate

court will reverse the trial court’s decision only if it acted arbitrarily, unreasonably, or

without reference to any guiding rules or principles. Id. at 380. This Court should

uphold the trial court’s ruling if it is within the zone of reasonable disagreement. Id. at

391.

8 ISSUES ONE AND TWO

By his first two issues, Appellant asserts the trial court erroneously permitted

Jessica and Ronda to testify as outcry witnesses because M.C.’s statements to them

did not qualify as outcry statements. Specifically, Appellant contends M.C.’s statements

to Jessica were vague and Ronda’s testimony was redundant of Jessica’s earlier

testimony. The State contends Appellant waived these complaints by failing to

contemporaneously object to their testimony.

In general, as a prerequisite to presenting a complaint for appellate review, the

record must show that the complaint was made to the trial court by a timely request,

objection or motion. See TEX. R. APP. P. 33.1(a). That request, objection or motion

must state the grounds for the ruling that the complaining party sought from the trial

court with sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context. Id.

Here, Appellants did not object to the testimony of Jessica or Ronda on the basis

that they were not qualified outcry witnesses. Accordingly, the trial court was never

afforded the opportunity to consider the complaints Appellant now raises before ruling

on the admissibility of their testimony. Because Appellant failed to raise these issues in

the trial court below, any error in admitting their testimony was not preserved for our

review. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g.)

(reviewing court should not address the merits of an issue that has not been preserved

for appeal). As such, these issues have been forfeited. Clark v. State, 365 S.W.3d 333,

339-40 (Tex. Crim. App. 2012). Appellant’s first and second issues are overruled.

9 ISSUE THREE

By his third issue, Appellant contends the trial court erroneously allowed Michael

to testify to M.C.’s hearsay statements because that testimony was redundant of the

testimony given by both Jessica and Ronda. The State responds to this argument by

contending Appellant’s complaint on appeal does not comport to his objection at trial; or,

alternatively, his testimony is admissible because it describes a different event.

As to Michael’s testimony, although an objection was made during the article

38.072 hearing concerning the redundancy of this testimony, Appellant never obtained a

ruling with respect to that objection. Because the trial court did not rule on the

objection, Appellant did not preserve error as to the introduction of Michael’s testimony

concerning M.C.’s outcry statements. See TEX. R. APP. P. 33.1(a)(2). As such,

Appellant’s third issue is overruled.

Alternatively, because the trial court allowed Michael to testify to matters

Appellant appeared to be objecting to during the article 38.072 hearing, it can be argued

the trial court implicitly overruled that objection. See TEX. R. APP. P. 33.1(a)(2)(A).

Assuming the trial court did implicitly overrule Appellant’s objection, thereby preserving

error, the State alternatively contends Michael’s testimony is admissible because it

describes a different event. Specifically, Appellant’s objection at the article 38.072

hearing was as follows:

I think what [M.C.] told Mike Canfield is identical to what she had told Jessica and Ronda at the earlier time. Therefore, I would object to Mike Canfield being an outcry witness because none of the outcries were any different from what she told to Ronda and Jessica earlier.

10 This objection refers to the statements M.C. made to Ronda and Jessica in the kitchen

on the first day. Those statements were to the effect that Appellant had merely touched

her private parts. In that statement, M.C. did not say anything about Appellant having

kissed her private parts or touched his private parts to her private parts. Although the

differentiation between the two events is not the model of clarity, because the

statements describe two different event-specific offenses, we find the complaint being

raised on appeal is not the same as the complaint asserted at trial. See TEX. R. APP. P.

33.1(a)(1); Knox v. State, 934 S.W.2d 678, 687 (Tex. Crim. App. 1996) (finding nothing

preserved for review if objection at trial does not comport with issue on appeal).

Therefore, even assuming Appellant preserved error by his objection, that error fails

because it does not conform to the complaint now being raised on appeal. For this

additional reason, Appellant’s third issue is overruled.

ISSUE FOUR

Finally, Appellant asserts the trial court erred by permitting Lindsey to testify to

statements by M.C. that were repetitive of statements testified to by the other outcry

witnesses. Assuming, without deciding, the trial court committed error in admitting

Lindsey’s testimony, we must conduct a harm analysis to determine whether that error

affected Appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). We review this

error as nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998).

Improper admission of evidence is not reversible error if the same or similar

evidence is admitted without objection at another point in the trial. Anderson v. State,

11 717 S.W.2d 622, 627-28 (Tex. Crim. App. 1986). Without objection, both M.C. and

Araceli, the nurse examiner, testified at trial. Both of these witnesses provided

substantially the same account of the offense as Lindsey provided in her testimony.

Thus, examining the record as a whole, we conclude that error, if any, by the trial court

in admitting Lindsey’s testimony about the offense did not have a substantial and

injurious effect or influence in determining the jury’s verdict. See Nino v. State, 223

S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no. pet). Because we

conclude that the trial court’s error, if any, was harmless, we overrule Appellant’s fourth

issue.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.