Sanchez v. State: 38.072 Outcry Hearing not Adequate Opportunity to Cross Examine for Sixth Amendment Purposes


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The Law


Who is an “outcry witness?”


An outcry witness is the first adult to whom a child (14 years of age, or younger), or disabled person, tells about being a victim of a statutory designated offense, mostly sexual offenses, as set forth in Article 38.072, Texas Code of Criminal Procedure. This statute permits a witness to testify about a victim’s out-of-court description of the offense as an “exception” to the hearsay rule.


Rule 801(d), Texas Rules of Evidence, defines hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Texas jurisprudence prohibits the use of hearsay unless it falls into one of the designated exceptions set forth in Rules 803 or 804—one of those exceptions being Art. 38.072 outcry testimony. Whether such testimony is admissible at a criminal trial is determined by the Texas Rules of Evidence and the Sixth Amendment to the United States Constitution.


Under Art. 38.072, the State is required, at least 14 days before the trial begins, to provide notice to the defendant of its intention to call an outcry witness, identify the witness, and provide a summary of the outcry statement it intends to offer into evidence. The defendant can request, and the trial court must conduct, a hearing prior to the admission of outcry testimony “to determine whether the outcry statement is reliable based on the time, content, and circumstances of the statement.”


In determining reliability, an indicia of reliability is whether there is evidence of prior prompting or manipulation by an adult (influenced, for example, by bias the outcry witness may have against the defendant). Additional indicia of reliability is whether the outcry witness can, in a discernible manner, describe the alleged offense; and recall the time, content and circumstances of the outcry. The defendant has an indisputable procedural right under Art. 38.072 to explore these issues.


Additionally, there is subtle tension between Texas jurisprudential rules governing hearsay and the Sixth Amendment to the U.S. Constitution. The Texas Court of Criminal Appeals, as noted in Sanchez v. State, has held that under Rule 804 (an exception to the hearsay rule dealing with prior testimony) the issue is not whether a defendant had an opportunity for cross examination but whether a party had a “similar motive” for cross-examination at an earlier pre-trial hearing.


However, the U.S. Supreme Court in 2004, in Crawford v. Washington, distinguished the difference between ”testimonial” and “non-testimonial” hearsay evidence. The Court held that the use of testimonial hearsay in a criminal trial violates the Confrontation Clause unless the party making the statement is unavailable and the defendant had a prior opportunity to cross-examine the party. Thus, Crawford endorsed the “opportunity” for cross-examination, not whether the defendant had a “similar motive” for the cross examination. The Court of Criminal Appeals pointed out in Sanchez that although Rule 804 and the Sixth Amendment “may be similar in theme, they are jurisprudentially distinct in both scope and consequence.”


The Sanchez court, however, made it clear that “in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant. ‘That prior opportunity for cross-examination must serve the same function as is normally accorded in adversarial cross-examination in the courtroom during trial: … to test with witness’ perceptions and memory … [and] to impeach, i.e., discredit, the witness …’”


The Facts


Ivan William Sanchez was convicted of four counts of indecency with a child by contact and one count of aggravated sexual assault of a child involving his stepdaughter. The State initially provided Sanchez with notice that it intended to use Jennifer Guzman (the victim’s cousin) as its outcry witness. Later, the State noticed Sanchez that it had discovered Guzman was not the first adult to whom she told about the sexual abuse. The State then listed Angelica Newsome and Terry Melendez as its outcry witnesses and provided Sanchez with summaries of their expected testimony. Sanchez filed a motion objecting to the use of two outcry witnesses when Art. 38.072 permitted the use of only one such witness.


The trial court conducted a pre-trial hearing to determine the admissibility of the expected outcry testimony of Newsome and Melendez. The State called two witnesses at the hearing: the victim and Newsome. The victim testified her stepfather, who she had always thought was her biological father, began abusing her when she was nine and continued till she was fourteen, at which time she was able to move out of his household. She said she told her best friend’s mother, Newsome, about the abuse when she was thirteen, describing it as inappropriate touching and rape. Although Newsome was the first adult to whom she out-cried, the victim testified Melendez was in the house when she told Guzman about the abuse.


Newsome told the victim’s mother about the abuse who responded by preventing the victim from seeing Newsome and her daughter. At the pre-trial hearing, Newsome testified the victim was like a “second daughter” to her and that she reported the alleged sexual abuse to Child Protective Services but nothing came of the report. She told the court the victim made the following specific outcry:


She said that her father … picked her up, took her to the other room – she actually told me … she was sleeping with her brothers and sisters in the same room. She was picked up out of that room and taken to another room and raped … she said he got on top of her and put his penis in her. She made it clear in what happened.


At the conclusion of the hearing, the State informed the court that it had been unable to locate Guzman; therefore, it wanted to designate Newsome as it outcry witness. Sanchez’s defense counsel objected to the maneuver, telling the court that Newsome suffered from seizure problems and had a “fuzziness” about the “time, content, and circumstances” of the outcry—both of which limited the court’s ability to determine the reliability of her outcry. The trial denied the objections and accepted Newsome as an outcry witness so requested by the State.


But one month later Newsome, like Guzman, became unavailable to testify at the trial. The State informed the court that Newsome was in the Bexar County jail (without explaining why she had been arrested) and that “someone” had filed a motion for a “psychiatric evaluation” to determine her competency to stand trial.


During opening statement, in a maneuver only an ethically challenged prosecutor would use, and certain trial courts would accept, the State informed the jury that Newsome would take the witness stand and gave jurors a summary of what her expected testimony would include. The State then informed the jury it would call Guzman who would tell the jury that the victim had “opened up” to her by describing what she had been living with since age nine.


No longer “unavailable,” Guzman was the State’s first witness. She told jurors that after seeing an emotional conversation between the victim and victim’s mother in 2005, she offered to take the victim and her twin brother to live with the Guzman family. The victim’s mother signed a document giving Guzman “custodianship” of the twins. The State then offered into evidence two pages of transcribed notes from Guzman’s personal calendar which described the sexual assaults against the victim. Sanchez’s attorney objected, first on grounds of hearsay, and then by telling the court the State was in “a surreptitious way of trying to get outcry testimony introduced, although [Guzman] is not the outcry witness.”


“I don’t need the speeches or lectures,” the trial court responded. “Your objection will be overruled.”


The State then informed the court that Newsome was in a “holding cell” and her attorney, Virginia Maurer, had discussed with prosecutors her ability to testify. The trial court conducted a brief hearing outside the presence of the jury. Maurer told the court that Newsome had been arrested for obtaining drugs by fraud. The attorney said when she told Newsome she would have to testify at Sanchez’s trial, Newsome told her some “famous people” named “OC and AC” were using the jail to “chang[e] her DNA and she’s now half man, half woman.” The trial court found Newsome was “unavailable” to testify at the trial.


The State promptly moved to admit Newsome’s pre-trial hearing testimony from the 38.072 hearing under Texas Rules of Evidence 804(b) (1), because Newsome was unavailable. Sanchez’s defense counsel raised a Sixth Amendment objection. Defense counsel pointed out to the court that while he had cross-examined Newsome at the pre-trial hearing, it was not an adversarial type cross-examination normally conducted during a trial. The trial court overruled the objection. The State read Newsome’s pre-trial hearing testimony to the jury.


Before the case went to the jury, the trial court granted one directed verdict of acquittal on one count of aggravated sexual assault and the State abandoned four counts of aggravated sexual assault. Of the remaining twelve counts, the jury returned five guilty verdicts and seven acquittals. Clearly this case was wrought with problems.


Sanchez received concurrent sentences of 28, 15, 7, 5 and 5 years in prison for his convictions.


Reasons for Reversal


On appeal, the lower appeals court held that Guzman had been used as an improper “outcry witness” but deemed the error harmless because the victim and an investigator testified about the same matters contained in Guzman’s calendar but in more detail and without objection from defense counsel.


The Court of Criminal Appeals had no problem with this finding but its attention was drawn to the issue of whether the reading of Newsome’s pre-trial hearing testimony to the jury violated Sanchez’s Sixth Amendment right to confront his accusers. The appeals court framed the issue as follows:


There are two levels of hearsay before us. First, Newsome testified at the pre-trial hearing regarding what R.F. (the victim) had told her outside the court. Then, at the trial, Newsome’s prior testimony regarding R.F.’s out-of-court statements was read to the jury. Thus, Newsome’s hearsay contained R.F.’s hearsay. When hearsay contains hearsay, the Rules of Evidence require that each party of the combined statements be within an exception to the hearsay rule.


Had Newsome been available for trial, her testimony about what the victim had told her would have been admissible under Art. 38.072. However, she was not available and the use of her prior testimony at the pre-trial  hearing was the kind of “testimonial” hearsay condemned by Crawford, and thus was inadmissible. It is well-established in Texas jurisprudence that Art. 38.072 testimony does not violate the Sixth Amendment when the child victim is available for cross-examination. However, in the Sanchez case, the conveyer of the hearsay was available to testify but the recipient was not; thus, the sole issue the Court of Criminal Appeals had to decide was whether Sanchez’s attorney had an adequate opportunity to cross-examine Newsome at the pre-trial hearing, allowing an exception to the hearsay rule under 804. The court began its analysis with this preliminary observation:


It is first necessary to appreciate the particular nature of a hearing held under Article 38.072. Every hearing outside the presence of the jury will be limited in scope, but the focus of an Article 38.072 hearing is exceptionally narrow.

The Court of Appeals said that an inquiry into Newsome’s motives and mental state was both possible and appropriate during the Article 38.072 hearing. While we have not issued an opinion describing the scope of Article 38.072 hearings, the Court of Appeals’s holding is at odds with opinions from other courts of appeals. These contrary opinions hold, generally, that the only relevant question at an Article 38.072 hearing is whether, based on the time, content, and circumstances of the outcry, the outcry is reliable.

The court discussed each of those cases without endorsing the holdings in any of them but did point out they “more accurately” reflected the “scope of an Article 38.072” than the State and the lower appeals court wanted to apply in the Sanchez case. As the court pointed out, the purpose of the Art. 38.072 hearing is to test the reliability of the outcry statement while the purpose at a trial is to test is credibility. The court added:

The Court of Appeals believed (and the State argued) that because an indicium of reliability is whether the outcry was prompted or manipulated by adult, evidence of the outcry witness’s biases is relevant at an Article 38.072 hearing. This is not correct. The outcry witness’s biases may be such that a fact-finder would not believe the outcry statement as relayed by the witness, but that is not a matter that the legislature has given to the trial court’s discretion. The same is true of an outcry witness’s ability to remember, which the court below also thought relevant at an Article 38.072 hearing.


If the “circumstances” of the statement had the meaning that the Court of Appeals gave it, Article 38.072 hearings could become elaborate mini-trials in which defendants could cross-examine the outcry witness regarding biases in order to ferret out background evidence of prompting or manipulation. We do not believe Article 38.072 authorizes such a broad-ranging inquiry. The only task it assigns the trial court is to determine whether, based on the time, content, and circumstances of the statement, the outcry is reliable. The trial court would be within its discretion at an Article 38.072 hearing to disallow as irrelevant a line of questioning that addressed the biases or memory of the outcry witness but not the time, content, and circumstances of the outcry.


The court concluded:


Trial courts have great discretion in how they manage their Article 38.072 hearings. However, we do not wish to encourage parties to attempt to elicit irrelevant testimony in order to get impeachment evidence for trial. Our ruling today is meant not only to vindicate defendants’ Sixth Amendment rights, but also to ensure that trial courts decide the reliability of an outcry based only on the time, content, and circumstances of the statement, leaving the determination of the outcry witness’s credibility to the fact-finder at trial.


The court remanded the case back to the appeals court with instructions that it conduct a “harm” analysis of the unconstitutional admission of Newsome’s testimony.




The conduct of the State in the Sanchez case was nothing short of shameful—even borderline close to being prosecutorial misconduct. The State initially noticed Sanchez that Guzman would be its outcry witness. Subsequent to that notice, Guzman disappeared for reasons never fully explained. The State then noticed Sanchez it had designated Newsome as its outcry witness. The record was not fully developed about whether the State “discovered” that Newsome, not Guzman, was the first adult the victim out-cried to before or after Guzman’s disappearance. We suspect this information was readily available to the State before it designated Guzman as the outcry witness.


We further suspect the State did not designate Newsome as its outcry witness from the outset because the State knew she had mental and character issues that made her a less than desirable outcry witness. However, once it became known Guzman was “unavailable” as an outcry witness, the State decided to go with the questionable witness it had, Newsome, and against the clear language of Article 38.072, also designated a backup outcry witness, Melendez.

Significantly the State did not inform the court about Guzman’s unavailability until after the pre-trial hearing and the court had accepted Newsome as the State’s outcry witness.
Suddenly, and again without explanation, Guzman became available for trial. Interestingly, her availability occurred after the State learned Newsome was in jail on drug charges and was suffering from delusions. Despite all this, the State informed the jury it would call Newsome as a witness who would testify the victim told her about the sexual abuse she had experienced by her stepfather.


At that procedural juncture the State knew it was not going to call Newsome to testify; that she was incompetent as a witness. So the State used its opening statement to effectively get Newsome’s testimony before the jury fully knowing it could not produce Newsome as a witness. Worse yet, the State effectively used Guzman as its outcry witness over strenuous objections by Sanchez’s defense attorney.


We believe this was a planned, methodical prosecutorial strategy to get before the jury outcry testimony the State did not have within the meaning of Art. 38.072. Since defense counsel did not make the necessary objections, these issues were foreclosed on appeal. We do not second-guess counsel’s tactical choice. He was in the best position to defend his client. But that does not lessen the State’s shameful conduct in the case.  It is exactly this type of questionable strategy and ends justify the means mentality that leads to wrongful convictions and innocent people spending years in prison.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Board of Legal Specialization



(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant:


(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;

(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;

(3) testifies to a lack of memory of the subject matter of the declarant’s statement;

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.


(b) Hearsay Exceptions. The following are not excluded if the declarant is unavailable as a witness:


(1) Former testimony. In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.

(2) Dying declarations.  A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement of personal or family history.

(A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history even though declarant had no means of acquiring personal knowledge of the matter stated; or

(B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.




Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.