Hearsay Statements of Child Abuse Victims and Delayed Outcry

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


“Hearsay” is a statement, other than one made by the declarant while testifying at a trial or hearing, offered into evidence to prove the truth of some matter being asserted. See: Tex. R. of Evid. 801. In English, hearsay is testimony about what somebody heard from somebody else. Hearsay testimony is generally inadmissible in a criminal trial. See: Tex. R. of Evid. 802. However, Article 38.072 of the Texas Code of Criminal Procedure provides an exception to the hearsay rule by allowing hearsay testimony in the prosecution of an offense committed against children twelve years of age and younger.

§ 38.072 is known as the “child outcry statute.” The statute applies only to statements made (1) by the child against whom the offense was allegedly committed and (2) to the first person to whom the child makes a statement about the offense providing that person is eighteen years of age or older. See: Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref’d).


The appeals court in Brown v. State, 189 S.W.3d 382 (Tex.App.-Texarkana 2006) addressed the “outcry” issue at some length. The case involved a 10-year-old child victim who was sexually assaulted by a friend of her father. The child reported the sexual abuse to her father. The victim was subsequently interviewed, at the behest of investigating officers, by a counselor with the Child Advocacy Center. The victim told the counselor that the first two people she told about the sexual assaults were her father and the girlfriend of the defendant. She also said that she later told her brother, aunt, and uncle. Id., at 384. At trial she prosecution called the counselor as an “outcry” witness to testify and introduced a videotape of the counselor interview with the child victim during the counselor testimony. Id., at 385.


On appeal defendant argued that by allowing the counselor to testify and permitting the introduction of the videotape, the trial court had violated the “outcry” provisions of § 37.072. The appeals court agreed. It pointed out that the victim had made outcries to her father and the defendant’s girlfriend before speaking to the counselor. The State argued that the counselor was the proper outcry witness because the victim gave her a more detailed statement about the sexual abuse than she had the other two persons. The court rejected that argument, saying:

“ …We have previously held the proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense. Rather, as discussed above, Article 38.072 contemplates allowing the first person to whom the child described the offense in some discernible manner to testify about the statements the child made.” Id.


The Brown court endorsed a principle expressed a year earlier by the appeals court in Hanson v. State, 180 S.W.3d 726 (Tex.App.-Waco 2005, no pet.) that “the proper outcry witness is the adult to whom the complainant first tells ‘how, when, and where’ he was assaulted.” Brown, supra, at 385. The Brown court added:


”Admissible outcry witness testimony is not person-specific, but event-specific. In cases where a child has been victim to more than one instance of sexual assault, it is possible to have more than one proper outcry witness. However, before more than one outcry witness may testify, it must be determined the outcry concerned different events and was not simply a repetition of the same event told to different individuals.” Id.


In Brown, the child victim’s statements to her father, the defendant’s girlfriend, and the counselor involved the same conduct: that the defendant had forced the victim to perform oral sex on him. Id., at 387. The counselor, therefore, was not a proper “outcry” witness. Id. This trial error, however, does not always warrant reversal of a conviction. See: Elder v. State, 132 S.W.3d 20 (Tex.App.-Fort Worth 2004) [trial court designating case manager as outcry witness was error but the error was harmless because the same evidence was admitted through other witnesses without objection]; West v. State, 121 S.W.3d 95 (Tex.App.-Fort Worth 2003) [trial court erred by allowing child victim’s mother to testify concerning victim’s outcry statement after the State had designated the father as its outcry witness but error was harmless because of victim’s detailed, fact-specific testimony about the assault].


Before the allowing outcry testimony, the trial court must conduct a hearing outside the presence of the jury to determine “that the statement [made by the victim] is reliable based on the time, content, and circumstances of the statement.” See: Tex. Code Crim. Proc. Art. 38.072 § 2(b)(1)(C). The phrase “time, content, and circumstances” means the time the child made the statement to the outcry witness, the content of the statement, and the circumstances surrounding the making of the statement. See: Broderick v. State, 89 S.W.3d 696, 698 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d]. Reliability is based on the circumstances surrounding the making of the statement, not the circumstances of the abuse. Id., at 699. The trial court has wide latitude in this decision-making process, and its determination that an outcry statement is reliable under § 38.072 is reviewed on appeal for an abuse of discretion. Id.


Like most trial court decisions, § 38.072 reliability determinations are given great deference on appeal. For example, the court of appeals in an aggravated sexual assault case upheld a decision by the trial court to allow a child protective services investigator to testify as an outcry witness. See: Carty v. State, 178 S.W.3d 297 (Tex.App.-Houston [1st Dist.] 2005). The appeals court considered the following three factors in reaching its decision: (1) she was the first adult to whom an outcry statement was made who could remember the victim’s statement and relate it at trial as the mother refused to admit that the victim made an outcry statement to her; (2) the outcry statement the victim made to the outcry witness was not merely a general allusion, but, rather, it was detailed and in a discernable manner described the alleged offense; and (3) the evidence supported the trial court’s finding that the outcry statement was reliable because the outcry witness testified that the victim described the assaults to the outcry witness in detail and in her own words, using immature language; the outcry witness asked the victim open-ended, not leading, questions regarding the assault; and the outcry witness’s testimony was consistent with the victim’s testimony. Id., at 305-06.


The Carty court relied upon a Court of Criminal Appeals decision in Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990) which held that when a child makes only a “general allusion” to the sexual abuse to the first person but then gives a more detailed account to a second person, the second person is the proper outcry witness. See, Carty, supra, at 305. The Carty court pointed to the interpretation by the Court in Garcia that “the ‘first person’ and ‘statement about the offense’ language in article 38.072 to mean that the outcry witness must be the first person, 18 years old or older, to whom the child made a statement that in some discernible manner described the alleged offense. Despite the fact that the child first told her teacher about her step-father’s abuse, the Court held that the trial court properly designated another person as the outcry witness because that person was the ‘first person’ to whom the child actually described the offense in a discernible manner.” See: Carty, supra, at 306.


While § 38.072 requires the prosecution to provide a two-week notice of its intent to use “outcry” testimony and the trial court is mandated to conduct a reliability hearing, the appeals court in Garcia v. State, 2004 Tex.App. LEXIS 4341 (Tex.App.-Dallas 2004) pointed out why defense counsel should not only object to any proposed outcry testimony but request a reliability hearing as well. The Garcia court instructs:


“Although appellant objected to Officer Moore’s testimony on the basis of article 38.072, once the state responded that Moore was the proper outcry witness because she was the first person to whom L.C. gave any details, appellant did not request a hearing or make an offer of proof to determine what L.C. specifically told his parents prior to speaking to Officer Moore. Without such evidence, it is not possible to say that anyone other than Officer Moore was the proper outcry witness. See: Garcia v. [State], 792 S.W.2d 88, 92 (Tex.Crim.Appeals 1990)] (appellate court could not find abuse of discretion when the record was void of any details of the statements made to the alleged first outcry witness); Rodriguez v. State, 997 S.W.2d 640, 642 (Tex. App.-Corpus Christi 1999, no pet.) (school counselor never specified what victim told her, so no abuse of discretion when trial court designated different person outcry witness); Hayden v. State, 928 S.W.2d 229, 231 (Tex. App.-Houston [14th Dist.] 1996, pet. ref’d) (no abuse of discretion because no evidence that child gave counselor details of offense). Officer Moore’s testimony came in before L.C.’s parents testified. We do not know what L.C. told either his father or his mother because the statements were excluded as hearsay. We hold, therefore, that based upon the evidence before us, the trial court did not abuse its discretion when it allowed Officer Moore to testify as the outcry witness.” Id., LEXIS at 24-25.


Finally, defense counsel should be prepared to challenge a “delayed outcry” statement. A delayed outcry statement is one made by a person who was a victim of one of the § 38.072 enumerated offenses when she/he was twelve years of age or younger but who did not “outcry” until after she/he was over the age of twelve. For example, a 16-year-old girl tells her mother that she was sexually abused by her uncle when she was 10 years of age. The 16-year-old daughter/victim describes the sexual abuse in detail to her mother who, of course, is an adult 18 years of age or older. Two significant questions arise in this kind of situation. Can the mother be designated an “outcry” witness under § 38.072? And, is the 16-year-old girl a “child” within the meaning of § 38.072?


§ 38.072, Sec. 2(a)(1) specifically provides that the article “applies only to statements that describe the alleged offense that were made by the child against whom the offense was allegedly committed.” Article 51.02(2)(A) of the Texas Family Code (2007) defines a “child” as a person who is “ten years of age or older and under 17 years of age.” Article 22.04(c)(1) of the Texas Penal Code [Injury to a Child] defines a “child” as a person 14 years of age or younger.” Article 22.021(a)(2)(B) of the Texas Penal Code [Aggravated Sexual Assault] also defines a “child” as a person 14 years of age or younger. Article 22.011 of the Penal Code [Sexual Assault] defines child as a person younger than 17 who is not the spouse of the actor.


District Attorney’s Offices across the State of Texas routinely notice s intent to use “delayed outcry” statements under § 38.072 when the child is over 13 years old at time of trial. Defense counsel should begin to object to this testimony based on the reasonable legal premise that § 38.072 was enacted to cover only outcry statements made by a child while still 12 years old or younger at time of trial. Support for this premise can be found in the numerous factors the trial court may utilize in making its reliability determination under art. 38.072, § 2(b)(2). See: Davidson v. State, 80 S.W.3d 132, 135 (Tex.App.-Texarkana 2002, pet. ref’d). These factors were listed in Davidson as follows:


Whether the victim testifies at the trial and admits making the out-of-court statements;

Whether the child is of a level of maturity to understand the need to tell the truth and have the ability to observe, recollect, and narrate;


Whether the child’s out-of-court statement is corroborated by other evidence;

Whether the child’s out-of-court statement was spontaneously made in the child’s own terminology and rises to the needed level of certainty;


Whether the statement is consistent;

Whether the statement describes an event that a child of his or her age could not be expected to fabricate;

Whether there is abnormal behavior by the child after the contact;

Whether there is a motive for the child to fabricate the out-of-court statement;

Whether the statement is against the interest of the child, e.g., the child expects punishment because of reporting the conduct; and


Whether there was an opportunity under the evidence for the alleged act to have been committed by the defendant.

See also: Buckley v. State, 758 S.W.2d 339, 343 (Tex.App.-Texarkana 1988) aff’d, 786 S.W.2d 357 (Tex.Crim.App. 1990). See also: Naranjo v. State, 2004 Tex.App. LEXIS 2189 (Tex.App.-Texarkana 2004)


Clearly, these factors are directed at determining whether the outcry statement made by a “child” is reliable; and they lend credence to the premise that the Legislature intended “outcry statements” to apply only to children twelve years of age or younger because of the inherent difficulty these children often experience testifying about sexual abuse. The “outcry” testimony by an adult is useful in bolstering the credibility of the child victim/witness.


But there is no need to have an “outcry” statement by an adult to support a person thirteen years of age or older testifying about sexual abuse she/he endured when they were a child twelve years of age or younger. This teenaged – or even adult – victim is quite capable of providing fact-specific details to a jury about the alleged abuse. Furthermore, there is no need for “outcry” statement support because under Tex. Code Crim. Proc. art. 37.07 the victim’s testimony alone is sufficient to support a conviction. See: Sauceda v. State, 2005 Tex.App. LEXIS 6001 (Tex.App.-Corpus Christi July 28, 2005).


Outcry testimony is difficult for a criminal defense attorney to confront. More often than not, this testimony is provided by a child protective services counselor who has interviewed the child victim on numerous occasions about the alleged sexual abuse. CPS workers are seasoned sexual assault witnesses who usually come to trial with their own agenda. They know exactly how, and what, to say to the jury to tilt the scale of guilt against the defendant. Many have a long history of being “coached” by prosecutors and law enforcement personnel about how to testify “against” the defendant. Their primary objective, therefore, is to bolster the credibility of the alleged child sexual assault victim who may not be either emotionally or intellectually equipped to give detailed, fact-specific testimony before a jury.


While that testimony unquestionably has some legitimate basis under § 38.072, it does not necessarily follow that such outcry testimony is permissible in cases where the victim was sexually abused when she/he was twelve years of age or younger but who did not outcry until she/he was thirteen years of age or older. It is especially objectionable when the complaining witness is an adult and the outcry statement, which would be years old, is only used to bolster credibility. The cards are stacked enough against a person charged with a crime such with such a social stigma as child sexual assault, hearsay evidence under § 38.072 should only be allowed when a child 13 or younger is a witness at trial.