Outcry Statements: ARTICLE 38.072, C.C.P. Part 1

In child abuse cases the “outcry statement” of a child witness may be admissible into evidence pursuant to Article 38.072, C. C. P., which establishes an exception to the hearsay rule of exclusion. Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005); Dorado v. State, 843 S.W.2d 37 (Tex. Crim. App. 1992); Dority v State, 631 S.W.3d 799, 791 (Tex. App.-Eastland 2021); Gibson v. State, 595 S.W.3d 321, 326 (Tex. App.–Austin 2020); Prince v. State, 574 S.W.3d 561, 571 (Tex. App.–Houston [1st. Dist.] 2019); Hines v. State, 551 S.W.3d 771, 780 (Tex. App.–Ft. Worth 2017); Alberts v. State, 302 S.W.3d 495, 504 (Tex. App.–Texarkana 2009, no pet.). It permits the introduction into evidence of an out-of-court statement of a child complainant which, in typical criminal or civil litigation, would be barred as hearsay. Bays v. State, supra at 585; Gibson v. State, supra; Prince v. State, supra. Testimony of an outcry witness about a complainant’s outcry is not expert testimony, but is admissible hearsay testimony about the facts of the case. Schmidt v. State, 612 S.W.3d 359, 367 (Tex. App.-Houston [1st Dist.] 2019, reh. denied, pet. ref’d).

A. Requirements

In the prosecution of any sexual offense involving a child, prohibited sexual conduct, sexual performance of a child, or an assaultive offense against a child, the prosecution may use as evidence of guilt, statements made by an alleged child victim who is younger than 14-years of age or is disabled. To be admissible, the following conditions must be present:

  1. The statement was made by the child against whom the offense was allegedly committed;
  2. The statement was 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;
  3. The statement must describe the offense in some discernible way and not be merely a general allusion that something in the area of child abuse is going on;
  4. The adverse party must be notified 14 days prior to the beginning of the trial of the name of the outcry witness and be provided a written summary of the testimony of the outcry witness;
  5. 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 circumstance of the statement; and
  6. The complainant testifies or is available to testify in court or in any other manner provided by law.

Art. 38.072, Sec. 2, C.C.P.; Sanchez v. State, 354 S.W.3d 476, 484-85 (Tex. Crim. App. 2011); Dority v. State, supra; Prince v. State, supra; Nino v. State, 223 S.W.3d 749,752 Tex. App.–Houston [14th Dist.] 2007); Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012).  Article 38.072 applies to outcry statements made by a child (under 18-years of age) who was the victim of sexual contact or abuse prior to age 14. Olivera v. State, 2009 WL 3740781, *7 (Tex. App.–Dallas 11/10/09, pet. ref’d); Cordero v. State, 444 S.W.3d 812 (Tex. App.–Beaumont 2014).  Prior to September 1, 2009, Art. 38.072 applied to child victims twelve-years of age or younger.  Acts 2009, 81st Leg., ch 710, Sec. 1, 2, eff. September 1, 2009.

A seventeen-year-old victim is a “child” for purposes of Article 38.072, so a seventeen-year- old cannot be an outcry witness, even though the seventeen-year-old may be an adult for other criminal law purposes.  Gutierrez v. State, 630 S.W.3d 270, 278 (Tex. App.-Eastland 2020, pet. ref’d 2021). A person who has not attained the age of eighteen-years cannot be an outcry witness.  Nino v. State, 223 S.W.3d 749 (Tex. App.- Houston [14th Dist.] 2007).  Where the victim of an aggravated sexual assault of a child charge is eighteen-years of age or older when she makes her outcry statement, the outcry testimony is not admissible under Article 38.072.  Cordero v. State, 844 S.W.3d 812 (Tex. App.-Beaumont 2014, pet. ref’d).  An outcry witness must be eighteen-years of age or older.  Prieto v. State, 337 S.W.3d 337 S.W.3d 918 (Tex. App.-Tyler 2011); Bargas v. State, 252 S.W.3d 876, 894 (Tex. App.-Houston [14th Dist.] 2008).

Illustration: In Zarco v. State, 210 S.W.3d 816 (Tex. App.–Houston [14th Dist.] 2006), a police detective was determined to be the proper outcry witness in an indecency with a child prosecution, although the child complainant first told her cousin about the abuse. However, the cousin was not 18 years of age at the time the complainant made her statements, and the testimony indicated that the detective was the first person, 18 years of age or older, other than the defendant, to whom the complainant made a detailed statement about the offense.

Illustration: In Harvey v. State, 123 S.W.3d 623, (Tex. App.–Texarkana 2003, pet. ref’d.), the testimony of victim’s boyfriend as to the content of victim’s outcry statement to him, that her step-father had sexually assaulted her when she was twelve-years old, should not have been admitted in a child sexual assault case, because the victim did not make the outcry to her boyfriend until after her eighteenth birthday.

Illustration: In Shaw v. State, 122 S.W.3d 358 (Tex. App.–Texarkana 2003), a handwritten note by a child victim that the defendant had sexual contact with her, was not admissible in an aggravated sexual assault prosecution as an outcry statement under the Article 38.072  because the victim testified she wrote the note after she told everybody, and the victim testified she did not give the note to her mother, but rather, her mother found it.

Illustration: Article 38.072 outcry statements may not be presented by means of a recording but must be presented by the first person to whom the child makes a statement about the offense charged. Bays v. State, 396 S.W.3d 580, 591-92 (Tex. Crim. App. 2013).

Since outcry testimony may only be about the offense charged, any testimony about conduct that occurred prior to the effective date of §21.02 (continuous sexual abuse of a child) cannot be the subject of outcry testimony. Bays v. State, supra at 585 (the outcry statute permits the first person to whom the child made a “statement about the offense” to testify).  The statement made by the child victim must describe the alleged offense. Art. 38.072, §2(a), C.C.P.; Mata v. State, 2016 WL 859037 (Tex. App.-Austin). The outcry statute does not apply to a collateral matter or extraneous offense.  Beckley v. State, 827 S.W.2d 74, 78 (Tex. App.–Ft. Worth 1992); Linney v. State, 401 S.W.3d 724, 780 (Tex. App.–Houston [14th Dist.] 2013, pet. ref’d); Chapman v. State, 150 S.W.3d 809, 816 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d 2005). 

The burden is on the State, as the proponent of the evidence, to satisfy each element of the predicate for admission of evidence pursuant to Art. 38.072. Rosales v. State, 548 S.W.3d 796, 806 (Tex. App.–Houston [14th Dist.] 2018); Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990); Vinson v. State, 252 S.W.3d 336, 340 n.15 (Tex. Crim. App. 2008). If the State presents such evidence, the burden shifts to the defendant to rebut that evidence. Eldred v. State, 431 S.W.3d 177, 183 (Tex. App.-Texarkana 2014). “The provisions of article 38.072 are mandatory and must be followed for the outcry statement to be admissible over a hearsay objection.”  Bays v. State, supra at 591 (the statute’s explicit content and procedural requirements are mandatory, even though they may at times result in admission of a less detailed statement of the child.); Hines v. State, 551 S.W.3d 771, 781 (Tex. App.–Ft. Worth 2017) (the proper outcry statement is not determined by choosing the most detailed statement); Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012) (same); Owens v. State, 381 S.W.3d 696 (Tex. App.–Texarkana 2012) (same); Elder v. State,132 S.W.2d 20 (Tex. App.-Ft. Worth 2004) (same); Thomas v. State, 1 S.W.3d 138 (Tex. App.-Texarkana 1999) (same); Reynolds v. State,227 S.W.3d 355 (Tex. App.-Texarkana 2011) (same); Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (holding that outcry witness’s testimony is only admissible as a statutory exception to the hearsay rule if its procedures are followed);  If the trial court overrules a hearsay objection without complying with the provisions of article 38.072, the trial court has committed error.  Rollins v. State, 2010 WL 1568473 (Tex. App.–Houston [1st Dist.] 2010, pet. ref’d).

Where a trial court commits error by admitting hearsay testimony that does not comport with Article 38.072, an appellate court will not reverse unless the failure to comply with the requirements caused harm. Rollins v. State, supra at *6; Bays v. State, supra; Prestiano v. State, 581 S.W.3d 935, 946 (Tex. App.–Houston [1st Dist.] 2019).  A trial court’s decision to admit or exclude evidence under Art. 38.072 is reviewed for an abuse of discretion. Garcia v. State, 792 S.W.3d 88, 92 (Tex. Crim. App. 1990). “The erroneous admission of evidence becomes harmless error if other evidence proving the same fact is properly admitted elsewhere, or the evidence comes in elsewhere without objection.  Land v. State, 291 S.W.3d 23, 28 (Tex. App.–Texarkana 2009, pet. ref’d); . . .; see Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).” Prince v. State, 574 S.W.3d 561, 574 (Tex. App.–Houston [1st Dist.] 2019).  Testimony of an outcry witness is subject to a limiting instruction at the defendant’s request. Smith v. State, 40 S.W.3d 147, 150 (Tex. App.-Texarkana 2001)

B. Outcry Witness

The outcry witness is the first adult to whom the child makes a statement about the offense.  Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012); Prince v. State, supra at 571; Dority v. State, supra at 792. The first person to whom the child made a statement cannot be the outcry witness if the person did not hear, does not remember, or did not understand what the child was saying. Foreman v. State, 995 S.W.3d 854, 859 (Tex. App.-Austin 1999, pet. ref’d); Dority v. State, supra at 792. To qualify as “outcry evidence,” the child’s statement must constitute more than a general allusion that sexual abuse has occurred.  Rather, the statement must describe the offense in some discernable manner.  Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); Hines v. State, 551 S.W.3d 771, 781 (Tex. App.-Ft. Worth 2017); Bargas v. State, 252 S.W.3d 876, 894 (Tex. App.–Houston [14th Dist.] 2008); Owens v. State, 381 S.W.3d 696, 702 (Tex. App.–Texarkana 2012). 

Illustration: In Elder v. State, 132 S.W.3d 20 (Tex. App.–Ft. Worth 2004), pet. ref’d, cert. denied, 544 U.S. 925, habeas corpus denied, 2007 WL 2191333, the child’s mother was  determined to be the outcry witness where the child made statements to her that the defendant “stuck his weenie” into her mouth, and “licked her privates,” had told her “boys can do that,” had touched her breast and had taken pictures of her with her panties off, which was more than mere allusion that something in the area of child abuse had occurred, even though the child later told the case manager some details she had not mentioned to the mother.

However, the decisions are not consistent as to what constitutes a “discernible manner.”  Several courts have held that the proper outcry witness is the first adult to whom the complainant tells “how, when and where” she was assaulted. Hanson v. State, 180 S.W.3d 726 (Tex. App.–Waco 2005, no pet.); Muzolf v. State, 2016 WL 2842066, *1-3 (Tex. App.–Dallas 05/10/16); Rodgers v. Sate, 442 S.W.3d 547, 552 (Tex. App.–Dallas 2014, pet ref’d); Mitchell v. State, 381 S.W.3d 554, 559-60 (Tex. App.–Eastland 2012, no pet.); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.–Dallas 1999, pet. ref’d); Brown v. State, 381 S.W.3d 565, 571 (Tex. App.-Eastland 2012). In Mata v. State, 2016 WL 859037,*2 (Tex. App.–Austin 03/04/16), where the defendant was charged with continuous sexual abuse of a young child, the trial court did not abuse its discretion by finding the first witness to whom the child described the offense to be the witness to whom the child described the time element, in conjunction with describing the abusive conduct, because that is when the child discussed the “how, when and where” of the abuse.  In Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008), the court held that just providing an interviewer with a general confirmation of sexual abuse, but providing no specificity as the “how, when, where” does not make that interviewer the proper outcry witness if the complainant tells a later interviewer the details of the abuse.

On the other hand, several courts of appeal have rejected the position that how, when and where are necessary to constitute a proper outcry statement. Instead, they rely on “the well-established rule that, to be a proper outcry statement the child’s statement must describe the offense in some discernible manner and must be more than an allusion to sexual abuse.” Brown v. State, 189 S.W.3d 382, 386 (Tex. App.–Texarkana, pet. ref’d 2006); Sims v. State, 12 S.W.3d 499,500 (Tex. App.–Dallas 1999, pet. ref’d); Reed v. State, 974 S.W.2d 838, 841 (Tex. App.–San Antonio 1998, pet. ref’d); Eldred v. State, 431 S.W.3d 177, 181 (Tex. App.–Texarkana 2014); Rosales v. State, 548 S.W. 3d 796, 806 (Tex. App.–Houston [14th Dist.] 2018).  The Court of Criminal Appeals has not resolved the apparent conflict as to which standard should be applied.

Frequently, family members are viewed as having received only general statements of abuse, and subsequent statements to adults outside the family are labeled the “outcry evidence.”

Illustration: In Castelan v. State, 54 S.W.3d 469 (Tex. App.–Corpus Christi 2001, no pet.), a child told her grandmother that the defendant had “put his thing in through the back.”  The child later described the offense to a school counselor. The appellate court ruled that the school counselor was the proper outcry witness because the earlier statement to the grandmother had not communicated specific details of the abuse. 

 Illustration: In Rosales v. State, 548 S.W.3d 796, 807 (Tex. App.–Houston [14th Dist.] 2018), the court held that a statement to Aunt Mary that the defendant “touched her in the wrong way” was no more than a general allusion that abuse had occurred.

Illustration: In Shaw v. State, 329 S.W.3d 645 (Tex. App.–Houston [14th Dist.] 2010, pet. ref’d), the child victim’s mother was the first person, 18 years of age or older, to whom the complainant made a statement describing the offense; but the court found that the complainant did not disclose sufficient details to her mother to describe the alleged offense.  The complainant had told her mother that the defendant was the one who got her pregnant.  The court held that although this statement might raise an inference of penetration, it did not clearly describe the alleged offense that the defendant penetrated the victim’s sexual organ (how else could the defendant have impregnated her).  The court ruled the school principal was the outcry witness.

Illustration: In Reynolds v. State, 227 S.W.3d 355 (Tex. App.–Texarkana 2007, habeas corpus denied 2016 WL 5393852), the program director of a child advocacy center qualified as an outcry witness regarding an offense involving the genital area of a child complainant, as the mother of the child did not testify that the complainant told her about an offense involving the genital area. 

Illustration: In Smith v. State, 131 S.W.3d 928 (Tex. App.–Tyler 2004), pet. ref’d, the court properly determined that an employee of a children’s advocacy center, rather than the child’s mother or doctor, was the proper outcry witness, even though the child made statements both to his mother and the doctor before talking to the advocacy center employee. The child’s statements to the mother that the defendant had been performing oral sex on him did not relay specific enough details about the charged offense and the trial court could have reasonably determined that the statement was nothing more than a general allusion that sex abuse was occurring, and the record did not demonstrate that the child told his doctor anything more than he told the mother.

Illustration: In Monreal v. State, 2006 WL 220857 (Tex. App.–Houston [14th Dist.]), the trial court properly determined that the victim’s mother, rather than the defendant’s wife, was the proper outcry witness, even though the four-year old victim made a statement about the touching to the defendant’s wife before making the statement to her mother, the record was devoid of specific details of the statement made by the victim to the defendant’s wife, the victim’s mother was not present when the victim told the defendant’s wife about the abuse, no testimony was heard at the hearing from the defendant’s wife or the victim, and the victim specifically told her mother that the defendant had touched her private parts with his finger.

As these cases illustrate, the trial court has broad discretion when deciding which of several witnesses is the outcry witness.  Generally, reviewing courts will not disturb that decision absent clear abuse of discretion.  Guzman v. State, 591 S.W.3d 714 (Tex. App.–Houston [1st Dist.] 2019); Martinez v. State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005); Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008); Robinett v. State, supra; Chapman v. State, 150 S.W.3d 809 (Tex. App.–Houston [14th Dist.] 2004, pet., ref’d 2005); Juarez v. State, 2016 Tex. App. LEXIS 3492, *13 (San Antonio 04/06/16).  However, in Brown v. State, 189 S.W.3d 382, 385-86, (Tex. App.–Texarkana, 2006, pet. ref’d), the conviction was reversed because a counselor was not the proper outcry witness where the child had previously told her father of the offense in a discernable manner. A written summary has been found to be insufficient where the summary was deemed to have provided less information that the indictment.  Biggs v. State, 921 S.W.2d 282, 285 (Tex. App.–Houston [1st Dist.] 1995, pet. ref’d 1996); Gay v. State, 981 S.W.2d 864, 866 (Tex. App.–Houston [1st Dist.] 1998); Davidson v. State, 80 S.W.2d 132. 136 (Tex. App.–Texarkana 2002.

It is not error to allow two different outcry witnesses where the child describes different conduct to each of them.  Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Matthews v. State, 152 S.W.3d 723 (Tex. App.–Tyler 2004, no pet.); Alvarado v. State, 2016 WL 191935, *3 (Tex. App.-Houston [1st Dist.]). However, an outcry statement is event-specific, rather than person-specific.  Ruedas v. State, 2015 WL 9584002, *4 (Tex. App.–Eastland).  There may be two outcry witnesses if they each testify about different events, but there may be only one outcry witness as to the victim’s statement about a single event.  Guzman v. State, 591 S.W.3d 713 (Tex. App.–Houston [1st Dist.] 2019); Eldred v. State, 431 S.W.3d 177, 181-182 (Tex. App.–Texarkana 2014); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.–Texarkana 2000, pet. ref’d); Reynolds v. State, 227 S.W.3d 355, 368 (Tex. App.–Texarkana 2007); Hankey v. State, 231 S.W.3d 54, 57 (Tex. App.–Texarkana 2007); Cervantes v. State, 2019 WL 6607003 (Tex. App.–Waco) (trial court acted within its discretion in allowing both mother and grandmother to testify as outcry witnesses to a minor child’s initial statements describing the alleged conduct with the minor, in a prosecution for indecency with a child by contact and by exposure, despite the defendant’s contention that it was error to allow multiple outcry witnesses; although both witnesses described sexual contact, they described different events; the grandmother’s testimony was limited to describing a gesture made by the minor when describing her interaction with the defendant and the mother testified as to the statements the minor made that the defendant made her touch his “thing” while sitting on the couch.); Smith v. State, 459 S.W.3d 707 (Tex. App.–Texarkana 2015, pet. ref’d) (complainant’s mother was proper outcry witness who could testify to her out-of-court outcry statements in aggravated sexual assault prosecution, as there was nothing before the trial court suggesting that the complainant had made event-specific outcries to any person other than her mother); Eldred v. State, 431 S.W.3d 177, 181-185 (Tex. App.–Texarkana 2014), habeas granted 2015 WL 5076834, pet. ref’d, (hospital employee, rather than forensic examiner, was the proper outcry witness concerning two initial events of sexual abuse that occurred the night before the victim’s hospital visit; medical record contained several quotes attributed to victim concerning abuse, which were entered by hospital employee prior to when the victim met with the forensic examiner.  It is not error to admit more than one statement that the child made to more than one outcry witness. Josey v. State, 97 S.W.3d 687 (Tex. App.-Texarkana 2003) (if a child victim first describes a different type of abuse to a second outcry witness, the second witness may testify about the different issue of abuse). In Zinger v. State, 899 S.W.2d 423 (Tex. App.–Austin 1995), rev’d on other grounds, 932 S.W.2d 511 (Tex. Crim. App. 1996), it was permissible to admit multiple statements the child made over a three-day period, where they were all considered part of the initial outcry.

The outcry witness must present the outcry testimony in trial before the trier of fact. If the outcry was elicited during a forensic interview with the child complainant, the forensic interviewer may be the outcry witness, but the outcry testimony may not be presented by means of a recorded statement. Bays v. State, supra; Dunn v. State, 125 S.W.3d 610 (Tex. App.–Texarkana 2003).

C. Reliability Hearing

Prior to admitting the outcry statement, the trial judge must conduct a hearing outside the jury’s presence to determine that the statement is reliable. In making that determination the judge must consider the time, content, and circumstances of the statement. Sanchez v. State, 354 S.W.3d 476, 484-85 (Tex. Crim. App. 2011); Duncan v. State, 95 S.W.3d 669 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d).  The statute charges the trial court with determining the reliability based on “the time, content and circumstances of the statement. . .. [I]t does not charge the trial court with determining the reliability of the statement based on the credibility of the outcry witness.” Sanchez v. State, supra at 487-88. The statute does not require that the reliability hearing be conducted prior to trial, only prior to the admission of the outcry statement. Sanchez v. State, supra at 485 n.16; Smith v. State, 131 S.W.3d 928 (Tex. App.–Eastland 2004, pet. ref’d).  The complainant must either testify or be available to testify at the hearing.  Eldred v. State, 431 S.W.3d 177, 181 (Tex. App.–Texarkana 2014), habeas granted 2015 WL 5076834, pet. ref’d.

Admission of the evidence without a hearing is an abuse of discretion but is subject to a harm analysis.  Moore v. State, 233 S.W.3d 32, 35-37 (Tex. App.–Houston [1st Dist.] 2007).  In order to preserve error, the defendant must object to the trial court’s failure to conduct a preliminary reliability hearing.  Diaz v. State, 125 S.W.3d 739 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d).  Even in the face of an objection, error in failing to conduct a reliability hearing may be deemed harmless. Adams v. State 2003 WL 21087716 (Tex. App.–Austin 2003, no. pet).

TCDLA
TCDLA
Craig Jett
Craig Jett
Craig Jett is Of Counsel to Burleson, Pate & Gibson of Dallas. Mr. Jett has practiced law and been a member of TCDLA for 44 years. He has been a regular lecturer and author on criminal law matters for TCDLA, the State Bar of Texas, various local bar associations and other professional organizations. In his time with TCDLA Mr. Jett has chaired committees, including the Criminal Defense Lawyers Project; produced continuing legal education programs across the State; served on the Board of Directors; and held all of the officer positions, including being President for 2007-08. He has also served as Chair of the Criminal Justice Section of the State Bar of Texas in 2009-10, and President of the Dallas Criminal Defense Lawyers Association in 1994-95. He is currently serving on the Texas Board of legal Specialization. He argued before the United States Supreme Court in Dixon v. United States in 2006.

Craig Jett is Of Counsel to Burleson, Pate & Gibson of Dallas. Mr. Jett has practiced law and been a member of TCDLA for 44 years. He has been a regular lecturer and author on criminal law matters for TCDLA, the State Bar of Texas, various local bar associations and other professional organizations. In his time with TCDLA Mr. Jett has chaired committees, including the Criminal Defense Lawyers Project; produced continuing legal education programs across the State; served on the Board of Directors; and held all of the officer positions, including being President for 2007-08. He has also served as Chair of the Criminal Justice Section of the State Bar of Texas in 2009-10, and President of the Dallas Criminal Defense Lawyers Association in 1994-95. He is currently serving on the Texas Board of legal Specialization. He argued before the United States Supreme Court in Dixon v. United States in 2006.

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