Junior Garvey v. State

• Court: Court of Appeals of Texas
• Decided: October 17, 2013
• Docket: 01-12-00665-CR
• Status: Published

Opinion

Opinion issued October 17, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00664-CR NO. 01-12-00665-CR ——————————— JUNIOR GARVEY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court Harris County, Texas Trial Court Case Nos. 1332795 & 1332796

MEMORANDUM OPINION

A jury convicted appellant, Junior Garvey, of aggravated sexual assault of a

child 1 and indecency with a child 2 and assessed his punishment at fifty years’ and

1 See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2012). five years’ confinement, respectively. 3 In his sole point of error on appeal,

appellant argues that the trial court erred in admitting the testimony of an outcry

witness.

We affirm.

BACKGROUND

The complainant, M.F., attended the Diamond A-Cat-A-Me daycare for

approximately ten years, beginning when she was a toddler and ending when she

was twelve years old. The daycare’s director, Melbra Garvey, was a friend of

M.F.’s mother and was married to appellant, who also worked at the daycare. M.F.

viewed the Garveys as parental figures and would sometimes spend the night at

their home.

At trial, M.F. testified that in 2005, when she was ten years old, appellant

began rubbing her breasts outside and underneath her clothing. In 2006, appellant

progressed to touching her vagina outside her clothing while in his office at the

daycare. Appellant escalated the abuse by touching M.F.’s vagina underneath her

clothing in 2007 while in the daycare’s kitchen. In 2009, the abuse culminated in

appellant’s digital penetration of her vagina while at the daycare.

2 See id. § 21.11 (Vernon 2011). 3 Appellant was charged with the offense of aggravated sexual assault in trial court cause number 1332795, resulting in appellate cause number 01-12-00664-CR. Appellant was charged with indecency with a child in trial court cause number 1332796, resulting in appellate cause number 01-12-00665-CR. 2 M.F.’s mother, D.F., testified at trial regarding the outcry of abuse that M.F.

made to her in 2009 and subsequent events. Appellant objected to D.F.’s

testimony, arguing that it was hearsay and that the State had failed to comply with

the provisions of Code of Criminal Procedure article 38.072, governing the

admissibility of testimony from outcry witnesses. Specifically, appellant argued

that the State’s notice of its intent to use outcry-witness testimony was

“misleading” and did not properly identify D.F. as an outcry witness.

The notice provided to appellant had a space designated for naming the

outcry witnesses, but it was left blank. Below that section, the notice stated,

The summary of the statements are as follows: Cilya Broadnax, [sic] On or about June 27, 2011, [M.F.] told Officer C. Brown and Officer C. Kimbrough that he [sic] had been molested for approximately 5 years . . . and that he (meaning the Defendant) would take her to his room at Diamond Academy and touch her breasts and body. . . . [H]e touched her private areas, including putting his finger in her private area. [M.F.] also stated that she stayed the night at his home and he put his finger in her private parts when she was in the family room. On or about June 23, 2011, after a presentation on child abuse by a police officer, [M.F.] told her teacher, Ms. Stanfield . . . that “that had just happened to her and had been happening to her for a long time and it had just stopped happening.” On or about June 27, 2011, [M.F.] told her assistant principal, Cilya Broadnax, that she had been abused by a family friend who owns a daycare (meaning the Defendant). [M.F.] stated that he had been touching her, and had almost penetrated her with his finger. [M.F.] stated the touching began in the third grade and continued until December of her 8th grade year. On or about July 1, 2010, [M.F.] told her mother, [D.F.], that the Defendant, Junior Garvey, had touched her on her breasts and private place. [M.F.] described the incident when she sat on his knees 3 to use a computer and he touched her private place. M.F. also described an incident that occurred when she spent the night at the Defendant’s house and he touched her when she had fallen asleep in the living room.

The trial court overruled appellant’s objections, stating that it would allow

D.F. to testify regarding the statements that were included in the State’s notice as

being made to her by M.F..

D.F. testified that one evening while they were preparing to attend a party at

the Garveys’ home, M.F. became visibly upset and told her repeatedly that she did

not want to attend. M.F. revealed for the first time that she had been sexually

abused by appellant beginning in 2005. M.F. told D.F. that appellant touched her

breasts and private area while she sat on appellant’s lap. D.F. also testified that

M.F. told her that appellant put his finger in her vagina while they were in his

office and had done it before and that M.F. recounted another incident in which she

was on the couch in appellant’s home and appellant touched her body.

M.F. thought of the daycare as a second home, and she did not want the

police to become involved for fear the daycare or the Garveys would get in trouble.

D.F. testified that both she and M.F. confronted Melbra Garvey with the

allegations. The next day, appellant denied the allegations and claimed that M.F.

had a motive to fabricate the allegations; he claimed that she was lying because he

had yelled at her for unauthorized computer use the day before. Because M.F. did

not want the daycare to get in trouble, D.F. did not report the abuse to the police. 4 However, M.F. had no further contact with the Garveys and did not return to the

daycare.

Two years after her initial outcry, while attending summer school, M.F.

spoke again about the alleged abuse. A police officer spoke to her middle school

class, and after the presentation, M.F. told the officer and the teacher, Camula

Stanfield, about her ordeal. They reported the abuse to Cilya Broadnax, the middle

school’s associate principal, and Broadnax had a conversation with M.F. about the

abuse. They also reported the abuse to the police, who subsequently conducted an

investigation. Stanfield testified at trial regarding the outcry of abuse that M.F.

made to her. The State also presented the testimony of the officers involved in the

investigation.

After learning the alleged abuse had been reported to the police, the Garveys

apologized to M.F. in her home. M.F. testified that appellant apologized for the

abuse she had suffered. She also testified that she got the impression from

appellant’s apology that he wanted her to tell the police that nothing bad had

happened. However, at trial, appellant again denied abusing M.F., and he testified

that he apologized to her for shouting at her about her computer use. Appellant’s

wife also testified on his behalf.

A jury convicted appellant of both aggravated sexual assault and indecency

with a child. This appeal followed.

5 Testimony of Outcry Witness

In his sole point of error on appeal, appellant argues that the trial court erred

in admitting D.F.’s testimony.

A. Standard of Review

We review a trial court’s ruling on the admissibility of evidence for an abuse

of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

We will uphold the trial court’s ruling if it was within the zone of reasonable

disagreement. Id. In addition, we must review the trial court’s ruling in light of

the evidence before the trial court at the time the ruling was made. Id.

Hearsay is a statement, other than one made by the declarant while testifying

at trial, that a party offers to prove the truth of the matter asserted. TEX. R. EVID.

801(d); Baldree v. State, 248 S.W.3d 224, 230–31 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d). Hearsay statements are inadmissible, except as provided by

statute or other rule. TEX. R. EVID. 802. The Code of Criminal Procedure provides

a statutory exception to this general rule: when a defendant is charged with certain

offenses against a child under fourteen, including aggravated sexual assault of a

child and indecency with a child, article 38.072 permits the first person over the

age of eighteen to whom the child makes a statement describing the offense to

testify as to the child’s statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072

(Vernon Supp. 2012); Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App.

6 2011). To invoke the statutory exception, the party intending to offer the statement

must meet certain procedural requirements, including timely notifying the

defendant of the outcry witness’s name and a summary of the testimony. TEX.

CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1); see Lopez v. State, 343 S.W.3d 137,

140 (Tex. Crim. App. 2011). We review the trial court’s determination of the

proper outcry witness for an abuse of discretion. See Garcia v. State, 792 S.W.2d

88, 92 (Tex. Crim. App. 1990).

B. Admission of D.F.’s Testimony

Appellant specifically argues on appeal that: (1) D.F.’s testimony regarding

M.F.’s outcry was “unreliable because [it was] not consistent with other evidence

or corroborated in any way”; (2) D.F. “was permitted to testify about collateral and

extraneous offenses”; (3) the State’s written notice “did not identify [D.F.] as the

outcry witness”; (4) the State’s written notice “did not provide a sufficiently

detailed recitation of the proposed outcry testimony, in particular it did not

describe a penetration of the complainant’s vagina which constituted the offense of

aggravated sexual assault versus the indecency with a child allegations in the

summary”; (5) D.F.’s testimony “exceeded the scope of the summary given to

appellant by including an allegation that he penetrated [M.F.’s] vagina with his

finger, a crime not suggested by the summary which only alleged indecency with a

child by contact”; and (6) D.F. “was permitted to repeat statements made by the

7 complainant which were ambiguous, did not describe a criminal offense in any

discernible manner, and which constituted general allusions to abuse.”

1. Preservation

The State argues that appellant failed to preserve his complaint that D.F.’s

testimony regarding M.F.’s outcry was “unreliable because [it was] not consistent

with other evidence or corroborated in any way.” It also argues that he failed to

preserve his complaints that the trial court erred in admitting D.F.’s testimony

because she “was permitted to testify about collateral and extraneous offenses” and

because her testimony “exceeded the scope of the summary” in the State’s written

notice. The State further asserts that appellant failed to preserve his complaint that

D.F. “was permitted to repeat statements made by the complainant which were

ambiguous, did not describe a criminal offense in any discernible manner, and

which constituted general allusions to abuse.”

To preserve a complaint for review on appeal, a party must make a timely,

specific request, objection, or motion to the trial court that states the grounds for

the ruling sought, and the trial court must rule on the request, objection, or motion.

TEX. R. APP. P. 33.1(a); Gutierrez v. State, 36 S.W.3d 509, 510 (Tex. Crim. App.

2001). Furthermore, the complaint raised on appeal must comport with the

objection made in the trial court. See Swain v. State, 181 S.W.3d 359, 367 (Tex.

8 Crim. App. 2005) (holding that appellant failed to preserve complaint for review

when trial objection did not comport with issue raised on appeal).

Here, appellant objected to D.F.’s testimony at trial on the ground that it

constituted hearsay, and he argued that the State’s written notice was misleading

and did not properly identify D.F. as an outcry witness. He did not object on the

basis that the statement was unreliable or otherwise raise that issue in the trial

court. See id. Thus, this argument is not preserved.

Regarding his complaints that D.F.’s testimony exceeded the scope of the

summary contained in the State’s written notice, that D.F. erroneously testified

about “collateral and extraneous offenses,” and that D.F. repeated ambiguous

statements relating general allegations of abuse, appellant fails to identify the

specific statements at issue or cite any authority supporting his contentions of

inadmissibility. See TEX. R. APP. P. 38.1(i) (providing that appellate brief must

contain clear and concise argument for contentions made, with appropriate

citations to authority and to record); see also Mims v. State, 238 S.W.3d 867, 874

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding, where appellant failed to

specifically identify complained-of statement that allegedly constituted hearsay or

cite any authority, that appellant waived his complaint). Furthermore, appellant

did not object to any of D.F.’s testimony in a way that would have put the trial

9 court on notice of these complaints. See TEX. R. APP. P. 33.1(a); Swain, 181

S.W.3d at 367; Gutierrez, 36 S.W.3d at 510.

We conclude that appellant failed to preserve these complaints for our

review, and, thus, they are overruled. However, appellant did object at trial that

the State’s written notice was “misleading” and that it failed to properly identify

D.F. as an outcry witness. Thus, we consider appellant’s remaining contentions on

appeal.

2. Notice and identification of the outcry witness

Appellant argues that the trial court erred in admitting D.F.’s testimony

because the State’s written notice “did not identify [D.F.] as the outcry witness”

and because it “did not provide a sufficiently detailed recitation of the proposed

outcry testimony” due to its failure to “describe a penetration of the complainant’s

vagina which constituted the offense of aggravated sexual assault versus the

indecency with a child allegations in the summary.” For the outcry statement to be

admissible, the State was required to provide timely notice of its intention to

introduce such testimony, including notifying the defendant of the name of the

witness through whom it intends to offer the statement and providing a written

summary of the statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072,

§ 2(b)(1).

10 Appellant claims that the trial court erred in admitting D.F.’s testimony

because the State failed to provide proper notice identifying her as the outcry

witness. Appellant complained at trial that the notice erroneously listed

Broadnax’s name immediately following the part of the notice providing “[t]he

summary of the statements are as follows” and that this error led him to believe

that Broadnax was the only witness who would testify regarding M.F.’s outcry of

abuse. However, Broadnax would not have been able to testify as to the outcry

statements that M.F. made to others. See id. § 2(a)(3) (defining outcry witness as

first person over age eighteen to whom child made statement concerning offense),

§ 2(b)(1)(B) (requiring State to provide notice of name of outcry witness). The

notice, when read in its entirety, indicated that the witnesses listed in the individual

paragraphs, including D.F., would be testifying as to the outcry statements made to

them and summarized the outcry statements that M.F. made to each of them. We

conclude that the trial court did not abuse its discretion in concluding that appellant

had sufficient notice of the State’s intention to call D.F. as an outcry witness. See

Garcia, 792 S.W.2d at 92.

Appellant also argues that the summary of D.F.’s statement was not

sufficiently detailed. However, the summary stated that M.F. told D.F. that

appellant “touched her on her breasts and private place,” that M.F. “described the

incident when she sat on his knees to use a computer and he touched her private

11 place,” and that appellant “touched her when she had fallen asleep in [his] living

room.” This summary describes the alleged offense of indecency with a child in a

discernible manner by describing contact of a sexual nature between appellant and

M.F., and it provides more than just a general allusion that abuse had occurred. It

describes the specific type of touching M.F. reported—i.e. touching her breasts and

“private place” and described two specific instances of such touching—an instance

at the daycare while M.F. sat on appellant’s lap and an instance at appellant’s

home. See Garcia, 792 S.W.2d at 91 (stating that outcry witness is “the first

person, 18 years old or older, to whom the child makes a statement that in some

discernible manner describes the alleged offense” and that “the statement must be

more than words which give a general allusion that something in the area of child

abuse was going on”).

Furthermore, the summary largely comports with D.F.’s testimony at trial.

D.F. testified that M.F. revealed that she had been sexually abused by appellant

beginning in 2005, that appellant touched her breasts and private area while she sat

on appellant’s lap, that appellant put his finger in her vagina while they were in his

office and had done it before, and that appellant touched her body while she was

lying on the couch at appellant’s home. Thus, we conclude that the summary

provided adequate notice of the testimony that would be offered by D.F.

12 Appellant’s complaint that D.F.’s testimony at trial included allegations of

digital penetration that were not made clear in the summary is essentially a

complaint that D.F.’s testimony exceeded the scope of the statements related in the

summary. We have already concluded that appellant waived this complaint for

failure to object on this basis in the trial court. Following appellant’s objection that

the notice was misleading and did not properly identify D.F., the trial court ruled

that it would allow D.F. to testify as to the statements contained in the State’s

written notice. However, when D.F. subsequently testified regarding M.F.’s outcry

of digital penetration, appellant failed to object. Thus, he did not preserve his

complaint that D.F.’s testimony exceeded the scope of the summary of her

statement. See TEX. R. APP. P. 33.1(a); Swain, 181 S.W.3d at 367; Gutierrez, 36

S.W.3d at 510.

CONCLUSION

We affirm the judgment of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).