Affirm; Opinion Filed February 8, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-19-00372-CR

CARROLL GENE HENDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 59th Judicial District Court

Grayson County, Texas

Trial Court Cause No. 069214

MEMORANDUM OPINION

Before Chief Justice Burns,1Justice Pedersen, III, and Justice Goldstein2

Opinion by Justice Pedersen, III

Appellant Carroll Gene Henderson pled not guilty to the offenses of 

aggravated sexual assault of a child and indecency with a child. After a jury 

convicted him as charged, the trial court assessed punishment of imprisonment for 

ninety-nine years on the first count of aggravated sexual assault of a child and 

imprisonment for twenty years on the second count of indecency with a child. 

 

1 The Honorable Chief Justice Robert D. Burns, III participates on this panel in place of the Honorable 

David Bridges, a member of the original panel. Chief Justice Burns has reviewed the briefs and the record 

before the Court.

2

 The Honorable Justice Bonnie Lee Goldstein succeeded the Honorable David Evans, a member of 

the original panel. Justice Goldstein has reviewed the briefs and the record before the Court. 
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Both of appellant’s issues on appeal pertain to his conviction for aggravated 

sexual assault of a child. He complains that the trial court erred when it refused to 

charge the jury on the lesser included offense of indecency with a child. He also

contends that the trial court designated the wrong person as an outcry witness. We 

affirm.

I. BACKGROUND

Appellant was indicted on two counts. The first count—aggravated sexual 

assault of a child—charged that he penetrated the sexual organ of six-year-old E.S.S. 

with his finger. The second count—indecency with a child—charged that he engaged 

in sexual contact with seven-year-old D.N.D. by touching the child’s anus. Because 

both appellate issues pertain to appellant’s conviction for aggravated sexual assault 

of a child, we limit our discussion of the facts and the evidence accordingly.

Before trial, the trial court conducted an outcry witness hearing pursuant to 

article 38.072 of the Texas Code of Criminal Procedure. With respect to E.S.S., the 

State offered two outcry witnesses. The first outcry witness was Taylor Holcomb,

E.S.S.’s mother. She stated that she was the first person E.S.S. told that appellant 

put his hand in her panties and used his hand to squeeze her vagina hard. The second 

outcry witness was Brittany Martin Barker, Executive Director for the Grayson 

County Children’s Advocacy Center. Barker conducted the forensic interview of 

E.S.S. She testified that E.S.S. told her that appellant stuck his hand “in there” and 

pointed to her vagina. Upon ascertaining that the outcries to Holcomb and Barker 
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pertained to the same event, the trial court concluded that the State could designate 

only one outcry witness with respect to that event. The State requested that Barker 

be designated as E.S.S.’s outcry witness regarding penetration. The trial court 

designated Barker as the outcry witness over appellant’s objection.

At trial, Brandon Hughes, a Corporal with the Sherman Police Department, 

testified that at the time of the alleged offense, he was working in the Family 

Services Division investigating sex crimes and crimes against children. He was 

assigned to investigate allegations of possible sexual assault against two children. 

When he arrived at the apartment, he spoke to the mothers of both alleged victims 

and was told what the children claimed had happened. He also learned there had 

been two men in the apartment with the children—one was the father of D.N.D. and 

the other was appellant. He arranged for the children to go to the Children’s 

Advocacy Center for forensic interviews. Based on statements made by E.S.S. 

during her forensic interview, Hughes then arranged for her to have a SANE3

examination. He also sent swabs and clothing to be tested at the Texas Department 

of Public Safety crime laboratory in Garland, Texas.

Hughes also interviewed appellant. Hughes testified that during this interview, 

appellant admitted penetrating E.S.S.’s vagina with his finger. The jury watched the 

video of appellant’s police interview which included this admission. Hughes 

 

3

 A SANE examination, conducted by a certified sexual assault nurse examiner, includes obtaining a 

history and conducting a head-to-toe medical examination. 
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testified that as part of his investigation, he learned of allegations that appellant had 

abused other children when he lived in Tennessee.

Holcomb testified at trial. She explained that at the time of the alleged offense, 

she and her fiancé Gary shared an apartment with Jerrell Daw, the father of D.N.D., 

and three children. She stated that appellant had been a close family friend for almost

ten years. She saw appellant every day and at times, he stayed overnight at their 

apartment. She stated that it was not unusual for her to leave E.S.S. with appellant,

as she did on the night in question. While she was out, she received a telephone call 

from E.S.S. that made her feel that something was not right. As a result, she

immediately returned home. Upon arrival, she went into the bedroom to use the 

attached bathroom. She saw appellant lying on the bed with E.S.S. sitting on top of 

him, straddling him. Appellant was pushing E.S.S. against himself and was rubbing

against her. Holcomb asked what was going on and told E.S.S. to come into the 

bathroom with her. After questioning E.S.S., Holcomb told appellant to get out of 

their apartment and she called the police.

Barker described the forensic interview process to the jury. E.S.S. was six 

years old at the time she was interviewed. Barker described E.S.S. as timid and quiet 

but after a few minutes, she was able to answer Barker’s questions in an ageappropriate way. Barker confirmed that E.S.S. referred to the appellant by name and 

stated that he stuck his hand “in there,” while pointing to her vagina. Barker testified 
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that based on E.S.S.’s statement, she and Corporal Hughes determined it necessary 

to refer E.S.S. for a SANE examination.

E.S.S. testified at trial. She said that she remembered a time when appellant 

got in trouble. She described the places that people are not supposed to touch. She 

calls the front part her “castle” and the back part her “butt.” When asked if there was 

ever a time that appellant touched her in any of those places, she said yes. But when 

asked if she had a memory of that, she said no. 

Julia Griffin testified that she is a registered nurse and a certified adult and 

pediatric sexual assault nurse examiner. She conducted the SANE examination of 

E.S.S. During the history portion of the exam, she asked E.S.S. what happened. She 

read from her report that E.S.S. said that her “castle” was hurting, that she woke up 

with someone touching her “castle,” and she thought appellant was pushing on her 

“castle” really hard. E.S.S. said that she thought appellant rolled over like he was 

asleep and pinched it with his hands. She also told Griffin, “I think he put his finger 

in, that’s why it hurts.” During the physical exam, Griffin did not note any trauma. 

She found mild redness of the labia majora. She said that E.S.S. complained of pain 

at the female sex organ and had tenderness at the vaginal opening. Griffin sent swabs 

to the lab. On cross-examination, Griffin agreed that there was no way to know what 

caused the redness.

Chelsea Wingate testified that she is a forensic scientist and works for the 

DNA Section of the Texas Department of Public Safety crime lab in Garland, Texas. 
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Wingate explained that the DPS crime lab received a sexual assault kit in this case 

that included buccal swabs from the victim, vaginal and anal swabs from the victim, 

and the victim’s clothing. The lab also received buccal swabs from appellant. She 

tested E.S.S.’s vaginal and anal swabs. With respect to the vaginal swab, the 

detection of male DNA was inconclusive. Male DNA was present on the anal swab.

Jimmy Ferrer testified that he is a licensed forensic scientist in the DNA 

discipline at the Texas Department of Public Safety. He was given three items of 

E.S.S.’s clothing to test—her t-shirt, her shorts, and her underpants. He described 

the testing process whereby he first used an alternative light source to scan for stains. 

Any stains are then tested with an acid phosphatase solution which turns purple in 

the presumptive presence of semen. In this case, a stain was found on the t-shirt, a 

sample was tested, and Ferrer confirmed the presence of semen. In scanning the 

child’s shorts, he found two different stains that may have been semen; however, he 

did not extract samples to confirm that the stains were semen because he had already 

confirmed the presence of semen on the t-shirt. His testing did not indicate the 

presence of semen on the underwear.

Lauren Jones, Senior Forensic DNA Analyst at the University of North Texas 

Health Science Center, testified that UNT has a contract with the Garland DPS lab 

to work on DNA samples from backlogged sexual assault kits. She explained that 

once Garland DPS has determined there is male DNA or sperm on items, those items 

are sent to her to compare to the DNA sample from the defendant. In this case, she 
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received anal swabs and a cutting from a t-shirt. Her testing of the anal swab revealed 

a partial Y-STR profile consistent with either appellant or a male patrilineal relative 

of appellant. Jones further testified that the data indicated with a high degree of 

confidence that appellant was the source of the major contributor DNA in the sperm 

found on the cutting of E.S.S.’s t-shirt.

The jury convicted appellant as charged, and the trial court assessed 

punishment. Appellant filed this appeal with respect to his conviction for aggravated 

sexual assault of a child.

II. ANALYSIS

A. Lesser Included Offense

In his first issue, appellant complains about the jury charge pertaining to the 

first count of aggravated sexual assault of a child. He argues that the trial court’s 

refusal to charge the jury with the lesser included offense of indecency with a child 

was jury charge error. Review of alleged jury charge error is a two-step process. The 

reviewing court must first decide whether error exists and if so, must then determine

whether the accused was harmed by the error. Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2005). If no error exists, the review ends there and no harm 

analysis is necessary. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 

2003). Here, the analysis ends with the first prong.

The two-step test for determining whether a trial court is required to give a 

requested instruction on a lesser included offense is well established. Bullock v. 
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State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016); Hall v. State, 225 S.W.3d 524, 

535–36 (Tex. Crim. App 2007). We first determine if the requested instruction 

pertains to an offense that is a lesser included offense of the charged offense.

Bullock, 509 S.W.3d at 924. This is a question of law and does not depend on the 

evidence produced at trial. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 

2013). An offense is a lesser included offense if “it is established by proof of the 

same or less than all the facts required to establish the commission of the offense 

charged.” TEX. CODE CRIM. PROC. ANN. art. 37.09(1); see Sweed v. State, 351 

S.W.3d 63, 68 (Tex. Crim. App. 2011). In this case, the first step is satisfied because 

“indecency with a child is a lesser-included offense of aggravated sexual assault of 

a child when both offenses are predicated on the same act.” Evans v. State, 299 

S.W.3d 138, 143 (Tex. Crim. App. 2009); see Martinez v. State, 524 S.W.3d 344, 

347 (Tex. App.—San Antonio 2017, pet. ref’d) (“Indecency with a child by touching 

the child’s genitals can be a lesser-included offense of aggravated sexual assault of 

a child by penetrating the child’s sexual organ if the same act is used to prove both 

the touching and the penetration.”).

In the second step of the analysis, we determine if there is evidence in the 

record that supports giving the instruction to the jury. Bullock, 509 S.W.3d at 924–

25. A defendant is entitled to an instruction on a lesser included offense when there 

is some evidence in the record that would permit a jury to rationally find that, if the 

defendant is guilty, he is guilty only of the lesser included offense. Id. at 925 (citing 
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Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011)). “The evidence must 

establish that the lesser-included offense is a valid rational alternative to the charged 

offense.” Id. The second step is a fact question and is based on all of the evidence 

presented at trial. Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012).

A defendant is entitled to the instruction on anything more than a scintilla of 

evidence, but “it is not enough that the jury may disbelieve crucial evidence 

pertaining to the greater offense, but rather there must be some evidence directly 

germane to the lesser included offense for the finder of fact to consider before an 

instruction on the lesser included offense is warranted.” Bullock, 509 S.W.3d at 925. 

When reviewing the trial court’s ruling, we cannot consider the credibility of the 

evidence and whether it conflicts with other evidence or is controverted. Id. 

Accordingly, “the standard may be satisfied if some evidence refutes or negates 

other evidence establishing the greater offense or if the evidence presented is subject 

to different interpretations.” Id. (quoting Sweed, 351 S.W.3d at 68).

In considering whether a lesser offense is a valid, rational alternative to the 

charged offense, we compare the statutory requirements between the greater 

offense—here, aggravated sexual assault of a child—and the lesser offense—here, 

indecency with a child by contact—to determine whether evidence exists to support 

a conviction for indecency with a child by contact but not aggravated sexual assault 

of a child. A person commits aggravated sexual assault of a child when that person 

causes the penetration of the sexual organ of a child by any means. TEX. PENAL CODE
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ANN. § 22.021(a)(1)(B)(i). A person guilty of indecency with a child by contact 

when that person engages in sexual contact with a child who is younger than 17 years 

of age. Id. § 21.11(a)(1). Sexual contact is defined as the touching by a person, 

including through the clothing, of the breast, anus, or genitals of a child, with the 

intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1).

In his brief, appellant argues that although E.S.S. testified at trial, she could 

not recall the events of the date in question. He argues that although Barker testified 

that E.S.S. told her that appellant put his hands “in there” and pointed to her vagina, 

Barker did not clarify whether E.S.S. was referring to penetration of her vagina or 

merely to appellant putting his hands in her pants. Appellant acknowledged the 

SANE nurse’s testimony that E.S.S. told her that she thought appellant put his finger 

in her castle and that is why it hurt, but he argues that no statements were definitive 

as to what occurred. In his police interview, appellant admitted to Corporal Hughes 

that he penetrated E.S.S.’s vagina with his finger. However, on appeal, appellant 

argues that his admission was not corroborated by physical evidence. He argues that 

a rational jury could have concluded from this circumstantial evidence that he 

touched E.S.S.’s genitals with the intent to arouse or gratify his sexual desires but 

did not penetrate her vagina. 

At trial, the defense did not refer the trial court to any evidence that would 

permit a jury to rationally find that the defendant was guilty only of the lesser 

included offense of indecency because genital touching, but not penetration, had 
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occurred. See Bullock, 509 S.W.3d at 925. He questioned the sufficiency of the 

evidence pertaining to the greater offense, but he did not point to any evidence that 

refuted or negated other evidence establishing the greater offense. On the record 

before us, we conclude that the trial court did not err by refusing to charge the jury 

on the lesser included offense because it was not supported by the evidence and did 

not constitute “a valid rational alternative to the charged offense.” Id. We overrule 

appellant’s first issue.

B. Outcry Witness Testimony

In his second issue, appellant contends that the trial court designated the 

wrong outcry witness for E.S.S. We review a trial court’s admission of testimony 

from an outcry witness under an abuse of discretion standard. See Garcia v. State, 

792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Gibson v. State, 595 S.W.3d 321, 325 

(Tex. App.—Austin 2020, no pet.). A 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. See Garcia, 792 S.W.2d at 92; Tear v. State, 74 S.W.3d 555, 558 

(Tex. App.—Dallas 2002, pet. ref’d). 

At the hearing on the admissibility of outcry testimony, the State argued that 

both Holcomb, E.S.S.’s mother, and Barker, the forensic interviewer, qualified as 

outcry witnesses. The State explained that the child made an outcry to Holcomb of 

touching but not penetration. The child made an outcry of penetration to Barker. The 
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defense objected, arguing that Holcomb was the proper outcry witness because she 

was the first person to whom E.S.S. described an offense in a discernible manner. 

The defense argued that Barker was not the proper outcry witness because E.S.S. 

simply told Barker more details or told Barker what happened in a different way. 

After ascertaining that E.S.S.’s outcry to Holcomb and her outcry to Barker 

concerned the same event, the trial court determined that it was not proper to have 

both of the witnesses testify as outcry witnesses. The court further concluded that 

Barker would be the outcry witness at trial because in her outcry to Barker, E.S.S. 

described in some discernable manner the offense that was actually charged in count 

one. On appeal, appellant argues that the trial court erred in designating Barker, and 

not Holcomb, as E.S.S.’s outcry witness.

Generally, hearsay is not admissible except as provided by the rules of 

evidence or by statute. See TEX. R. EVID. 802. However, article 38.072 of the Texas 

Code of Criminal Procedure allows admission of certain hearsay testimony in the 

prosecution of offenses committed against children younger than fourteen years of 

age. CRIM. PROC. art. 38.072; see Buentello v. State, 512 S.W.3d 508, 517 (Tex. 

App.—Houston [1st Dist.] 2016, pet. ref’d). The statute allows the designation of an 

outcry witness to testify about a child’s disclosure of abuse but requires that the 

outcry witness be the “first person, 18 years of age or older, other than the defendant, 

to whom the child . . . made a statement about the offense.” CRIM. PROC. art. 38.072

§ 2(a)(3); see Bays v. State, 396 S.W.3d 580, 581 n.1 (Tex. Crim. App. 2013). The 
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outcry witness “may recite the child’s out-of-court statements concerning the 

offense, and that testimony is substantive evidence of the crime.” Martinez v. State, 

178 S.W.3d 806, 811 (Tex. Crim. App. 2005).

“To be a proper outcry statement, the child’s statement to the witness must 

describe the alleged offense in some discernible manner and must be more than a 

general allusion to sexual abuse.” Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—

Dallas, pet ref’d) (citing Garcia, 792 S.W.2d at 91). The outcry witness designation 

is event-specific, not person-specific. Lopez v. State, 343 S.W.3d 137, 140 (Tex. 

Crim. App. 2011). Thus, “[t]here may be only one outcry witness per event.” Id.

In this case, appellant was indicted for the specific offense of aggravated 

sexual assault of a child by causing the penetration of the child’s sexual organ with 

his finger or hand. See PENAL § 22.021(a)(1)(B)(i). There was no evidence that 

E.S.S. told her mother that appellant put his finger in her vagina. Holcomb only 

recounted E.S.S.’s statement that appellant put his hand in her panties and pinched 

her vagina hard. The State’s second outcry witness, the forensic interviewer, testified 

that E.S.S. told her that appellant put his hand “in there” and pointed to her vagina. 

Although E.S.S.’s statement to Barker was not lengthy or overly-detailed, it 

contained sufficient information about the nature of the act and the perpetrator. The 

trial court reasoned that Barker was the first adult that E.S.S. told what happened in 

a discernible manner that described the alleged offense of penetration. We conclude 

that the trial court acted within its broad discretion in overruling appellant’s 
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objection to Barker’s being designated as the outcry witness. See Buentello, 512 

S.W.3d at 517. We overrule appellant’s second issue.

III. CONCLUSION

Having overruled appellant’s issues, we affirm the trial court’s judgment.

190372f.u05

Do Not Publish

TEX. R. APP. P. 47

/Bill Pedersen, III//

BILL PEDERSEN, III

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CARROLL GENE HENDERSON, 

Appellant

No. 05-19-00372-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 59th Judicial 

District Court, Grayson County, 

Texas

Trial Court Cause No. 069214.

Opinion delivered by Justice 

Pedersen, III. Chief Justice Burns and 

Justice Goldstein participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 8th day of February, 2021.