Outcry testimony is frequently used in child sexual abuse cases in Texas. For years, the statutory procedural rules governing outcry testimony have worked like this: Tex. Code of Crim. Proc. art. 38.072(b) §2(a)(1), (2) carved out an exception to the rules of hearsay evidence by allowing the first person 18 years of age or older to whom a child under 14 years of age made statements concerning sexual abuse to testify against the defendant facing trial for committing that abuse.


The 2023 Texas Legislature, through S.B. 1527, changed the outcry rule by increasing the child’s age from under 14 to a child under 18 years of age. 


The Texas Sexual Assault law, Tex. Penal Code Section 28.011(a), Subsection (a)(2), permits the charging of someone with sexual assault of a child if that victim is under 17 years of age. 


What impact S.B. 1527 will have on Penal Code 28.011(a),(a)(2) remains to be seen. 


S.B. 1527 increases the age of a child sexual assault victim from 16 to 17 years of age. 


The rest of the traditional rules dealing with outcry testimony remain the same. 


From a defense perspective, outcry testimony still poses two fundamental problems: 1) outcry testimony offers substantive corroborating evidence in the form of repetition of the child allegation of the charged sexual abuse, and 2) the defense is not entitled to any limiting hearsay instructions about the use of such testimony.


The prosecution must still (1) provide the defense with notice of its intention to use outcry statements or testimony, and (2) it must provide the defense with the name(s) of the outcry witness(es) and a summary of their testimony more than 14 days before the trial.


At trial, the court must conduct a hearing outside the presence of the jury to determine both the reliability and admissibility of the outcry testimony based on the circumstances of the outcry, its content, and the time frame in which it was given. Under Tex. Code Crim. Proc. art. 38.072 §2(b) (2)-(3), the child must testify or be available to testify at the hearing.


The prosecution may present a couple, even several, outcry witnesses so long as each witness describes a distinct aspect of the alleged abuse. However, the testimony of a second outcry witness is not admissible when the witness merely provides additional details regarding the same instance of sexual abuse. 


The best defense against outcry testimony is through an objection and, more importantly, the proper preservation of that objection. It is now a benchmark rule in Texas that when a defendant claims a trial judge has erred in admitting evidence, the error must be preserved with a proper objection and a ruling on that objection.


A trial judge has broad discretion in their decisions about admitting outcry evidence. 


On appeal, whether a trial court committed an error in either designating or admitting outcry testimony is determined under the “abuse of discretion” standard. As handed down by the Texas Court of Criminal Appeals, this standard essentially holds that a trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles.


The second barrier on appeal is that the Court of Criminal Appeals has made it clear that the erroneous admission of a hearsay statement constitutes a non-constitutional error that must be disregarded unless the error affects the appellant’s substantial rights. 


In effect, an appellate court should not overturn a criminal conviction for non-constitutional error “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or influenced the jury only slightly.” A trial court has “broad discretion” in determining who qualifies as a proper outcry witness, and we will uphold the trial court’s ruling if it is reasonably supported by the record and within the zone of reasonable disagreement. 


In outcry testimony cases that involve the improper admission of such, the error is also considered “harmless” when the victim testifies in court to the same or similar statements without defense objection. “In cases involving the improper admission of outcry testimony, the error is harmless when the victim testifies in court to the same or similar statements that were improperly admitted or other evidence setting forth the same facts is admitted without objection.”


Put simply, the appeals court stated that any error that did not influence the jury, or influenced the jury only slightly, would not result in reversible error, and the conviction should not be reversed because the error was non-constitutional, harmless, and it did not impact the jury verdict.  


Those are the problems inherent in dealing with child sex abuse cases involving outcry testimony, even though this testimony is subject to embellishment, exaggeration, and even fabrication. It is a legal hurdle that undermines the concept of a fair trial. Defense lawyers must be prepared to confront this type of evidence, legally and factually, and make proper objections to preserve for appeal.