Affirmed and Opinion Filed January 7, 2014 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-00202-CR ROBERTO HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1155623-Q 

### MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Lewis Opinion by Justice FrancisAfter a jury found Roberto Hernandez guilty of continuous sexual abuse of his eightyear-old stepdaughter, C.R., he agr eed to a plea-bargained sentence of thirty-five ye ars in prison. In two issues, he contends the trial court erre d by designating the forens ic interviewer as the “outcry” witness and by refusing to allow a defense witness to test ify that appellant “was not the kind of person who would molest a child.” We affirm. In his first issue, appellant contends the trial court abused its discretion by allowing Patricia Guardiola, the forensic interviewer, to testify as the outcry witness. Appellant argues C.R. first told the school nurse that he was “touc hing her private parts with his private parts,” so the nurse was the pr oper outcry witness.–2– In a hearing outside the jury’s presence, C.R. testified the first person she told that “something had happened” was Adrian Villegas , the school counselor. She said she told Villegas appellant had “touched” her but did not sa y where. She then told the school nurse that appellant was “touching” her “private things” with his “private part.” She could not remember if she told the nurse how many times it occurred. Sh e did not tell the nurse how old she was when the abuse was occurring nor did she tell the nurse what grade she was in at the time of the abuse. She did not tell the nurse how long it had been going on; instead, she told that information to Guardiola. Guardiola testified she is a forensic inte rviewer at the Dallas Children’s Advocacy Center. In May 2011, she interviewed C.R., w ho through drawings, said appellant’s penis touched her vagina and “made it bleed multiple times .” Guardiola said C.R. said the abuse had been going on “a long time, a lot of times” but co uld not “put a specific number on the amount of time.” She recounted a specific incident that oc curred right before she came to the DCAC when she woke up to find appellant touching her. C.R. said her st omach and “private area” began hurting, so she went to the ba throom and saw she was bleeding. She told appellant she was bleeding, and he responded, “Yeah, that was me.” Gu ardiola said C.R. told her the same type of abuse, “penis to her vagina,” occurred before she turned eight. C.R. was eight at the time of the interview and her birthday was in December. Because instances of abuse occurred before C.R. was eight and also occurred right before her interview at the DC AC, Guardiola agreed the abuse occurred for more than thirty days. At the conc lusion of the hearing, the prosecutor told the trial court she did not intend to call the school nurse and had not been able to identify her. After hearing arguments of counsel, the trial court overruled appell ant’s objection to Guardiola testifying as the outcry witness.–3– Article 38.072 of the Texas C ode of Criminal Procedure describes the proper outcry witness as “the first person, 18 year s of age or older, other than th e defendant, to whom the child . . . made a statement about the offense. . . .” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 38.072, § 2(a)(3) (West Supp. 2013). The court of criminal appeals has construed this to mean the first adult “to whom the child makes a statement that in some di scernible manner describes the alleged offense. [This] statement must be more than words whic h give a general allusion that something in the area of child abuse is going on.” Garcia v. State , 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); Sims v. State , 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pe t. ref’d). A trial court has broad discretion in determining th e proper outcry witness. Garcia , 792 S.W.2d at 92. Absent a clear abuse of discretion established by the record, the trial court’s de cision should not be disturbed. Id

. Appellant argues the school nurse was the firs t person over the age of eighteen that C.R. made a statement that “described the offense.” He contends the fact that Guardiola was the only witness who could testify to the specific elemen t requiring the abuse con tinue for a period of thirty days or more is not dispositive because there is “no requirement” that the outcry witness must be able to establish all elements of the offense. Appellant was charged with th e offense of continuous sexual abuse. A person commits an offense if during a period of thirty or more da ys, he commits two or more acts of sexual abuse and the victim is a child younger than fourteen years of age. T EX
. P ENAL C ODE A NN
. § 21.01(b). Here, the record shows Guardiola was the first person C.R. described, in a discernable manner, two or more acts of sexual abuse over a period of thirty or more days. In particular, she told Guardiola that appellant’s penis touched her vagi na and made it bleed “multiple times,” that the abuse had been happening for a long time, and st arted before she was eight years old. In contrast, C.R.’s statement to the nurse was more general, saying only that appellant was–4– “touching” her “private things” with his “private part.” In addition, C. R. did not address any particular time frame and could not remember whether she indicated to the school nurse how many times the abuse occurred. Under these circ umstances, we cannot conclude the trial court erred in determining Guardiola was the proper outcry witness. See Sims , 12 S.W.3d at 500 (in indecency with child prosecution, trial court c ould have reasonably concluded counselor was proper outcry witness and that child’s statement to mother th at defendant “had touched her private parts” was nothing more than a “general allusion that something in the area of sexual abuse was occurring and not a cl ear description of offense); Smith v. State , 131 S.W.3d 928, 931 (Tex. App.—Eastland 2004, pet. ref’ d) (in aggravated sexual as sault prosecution, trial court could have reasonably concluded co unselor was proper outc ry witness and that child statement to mother that defendant “had been performing oral sex on him” did not relay specific details of charged offense and was nothing more than general allusion in area of sexual abuse). We overrule the first issue. In his second issue, appellant argues the tr ial court erred in not allowing his uncle to testify that appellant “was not the kind of person who would molest a child.” At trial, Benigo Hernandez testified he was a ppellant’s uncle and had raised him from the ages of four to fourteen. Since then, he said he has maintained contact w ith appellant. He said appellant was a “good person” w ho was “very responsible” and s upported his family. When the defense asked whether Hernandez had “an opinion a bout whether or not he’s the kind of person that would molest children,” the State objected that the question was improper. The trial court sustained the objection. Generally, character evidence is not admissible to show that a person acted in conformity with a character trait on a particular occasion. T EX
. R. E VID
. 404(a). But an accused in a criminal case is permitted to in troduce evidence of a specific good character trait to show it is–5– improbable that he committed the charged offense wh en that character trait is relevant to the offense. Id .; Melgar v. State , 236 S.W.3d 302, 306–07 (Tex. App.—H ouston [1st Dist.] 2007, pet. ref’d); Valdez v. State , 2 S.W.3d 518, 519 (Tex. App.—H ouston [14th Dist.] 1999, pet. ref’d). A pertinent trait is “one that relates to a trait involved in the offense charged or a defense raised.” Melgar , 236 S.W.3d at 307. If evid ence of a person’s characte r or character trait is admissible, proof may be made thr ough reputation or opinion testimony. Valdez , 2 S.W.3d at 519; see T EX
. R. E VID
. 405(a). However, specific instances of conduct are inadmissible to show an inference that the accused did or did not commit the offense. Valdez , 2 S.W.3d at 519. For example, in a prosecution for a crime of violence, the defendant’s character for being peaceful is pertinent because ev idence of peaceful character makes it less likely that the defendant committed the crime. Melgar , 236 S.W.3d at 307. Thus, in a murder case, the appropriate inquiry is the accused’s reputation fo r peacefulness, or non-aggressive behavior. Wheeler v. State , 67 S.W.3d 879, 882 n.2 (Tex. Crim. A pp. 2002). Similarly, a defendant charged with sexually assaulting a child is entitled to offer ev idence of his good character for “moral and safe relations with small child ren or young girls” under rule 404(a)(1)(A). Wheeler , 67 S.W.3d at 882. But the status of being a murderer or a pedophile is not a “character trait.” Id

. at n.2. In Valdez , the appellant was convicted on three c ounts of aggravated sexual assault of a child involving three young boys. At trial, the tria l court refused to allow the appellant’s brother and neighbor to testify that appellant had a good reputation in the co mmunity for being “a nonpedophile.” Valdez , 2 S.W.3d at 519. The court conclude d the proffered question was improper because “unlike a person’s reputation for th e moral treatment of children, being a ‘nonpedophile’ is not evidence of a person’s character or ch aracter trait.” Id . at 520.–6– Initially, we note appellant did not make an offer of pr oof specifying how his uncle would have answered the question. But assu ming he would have answered favorably to appellant, the evidence was not admissible. The question of whether appellant was the “kind of person” who would molest children is substan tively no different from one asking whether a defendant is a non-pedophile. By its question, the defense was not seeking to establish evidence of a good character trait; it was attempting to s how that appellant “was not known to have committed the type of crime for which he was charged in the past.” See Valdez , 2 S.W.3d at 520. This was an impermissible attempt to put on evidence of specific in stances of conduct “to support the inference that it is unlikely the accused would have engaged in the criminal conduct charged.” See id . We conclude the trial court did not abuse its discretion in excluding the evidence. We overrule the second issue. We affirm the trial court’s judgment.

Do Not Publish T EX
. R. A PP
. P. 47 130202F.U05 /Molly Francis/ MOLLY FRANCIS JUSTICE–7– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERTO HERNANDEZ, Appellant No. 05-13-00202-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1155623-Q. Opinion delivered by Justice Francis; Justices Lang-Miers a nd Lewis participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered January 7, 2014

/Molly Francis/ MOLLY FRANCIS JUSTICE