### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 080 -CR NO. 03-07-00082- CR

Sidne y P aul Sle dge , A ppe lla nt

v . The State of Texas, App ellee

& NO. 03-07-00081- CR

Sidne y P aul Sle dge Jr ., App e lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 167TH JUDICIAL DISTRICT

NOS. D-1-D C-05 -5000 11, D -1-DC -04-50 0557 & D -1-DC -05-50 0040 HO NORAB LE MI CHAEL LY NCH , JUDGE PRESIDI NG

O P I N I O N
Sid ne y Pa ul Sle dg e a

pp e a ls tw o jud g me nts of c on vic tio n fo r ind e c e nc y wi th a c hil d by contac t, in each of

which the tria l court asse ssed co n cu rre nt twenty -y ear prison terms, and four judg ments of convi ct i o n fo r agg ravated sexual assault of a c hild, in each of which the court assessed concur

rent forty -y ear prison terms. See Tex. Penal C ode Ann. § 21.11 ( West 2003),We state the complaina nts’ ag es as of

the offe nse date alleg ed in the ind i ct m en t s . The 1 c omp la ina

nts we re tw o y e ars old e r at th e tim e of a pp e lla nt’ s tr ia l. 2 § 22.021 (West Supp. 2007). I n one of his thre e points of error, a ppellant contends that the trial court e rre d by

rende ring more than one judgme nt on a si ng le count. We will sustain thi s contention and set a side one of the ag g ravated sexual assault convictions. We w ill over rule appellant’ s other points of error , by

which he c halleng es the fa ctual sufficie ncy of the evidenc e and complains of the
a dmi ssi on

of ou tc ry te sti mony , a

nd a ff ir m th e re ma ini ngc on vic tio ns . IN DI CT M EN TS A ND JU DG M EN TS Ap pe lla nt w a s jo int ly

tr ie d o n thre e ind ic tme nts , e a ch o f whic h c on ta ine d mu lti ple counts and pa

rag raphs a ccusinghim of ag g ravated sexual assault of a c hild, indecenc y wi th a child by contac t, and indece ncy

with a child by

exposure. At trial, the State aba ndo n ed al l of the indece ncy by exposure alleg ations and one of the indece ncy by contac t a lleg ations. The re maining
c ounts and

pa ra g ra ph s w e re su

bmi tte d to the jur

y a s th e y we re a lle g e d in

the ind ic tme nts
. Th e c omp la ina

nt i n c a us e numbe r D -1 -D C- 04 -5 00 55 7 w a s a pp e lla nt’ s n ine -ye ar- old da ug hte r, J.S. The c ounts an d p arag raphs submitted to the jury , and the jury ’s ver dicts, were

1

a s f oll ow s: Count one, para g raph one : penetration of the complainant’s a nus by appe l l ant’s sexual orga

n. See Tex. P enal Co d e Ann. § 22.021( a)( 1)(B )(i) ( West S upp. 2007). V e r d i c t : n o tg u i l t y. Count one, para g raph two: pe netration of the complainant’ s s ex ual org an by appellant’ s sexual orga

n. Se e id
. V e r d i c t : g u i l t y.3

Count one, para g raph thre e: causing the complainant’ s anus to contac t appellant’s sexual orga

n. Se e id
. § 2 2
. 0 2 1 ( a ) ( 1 ) ( B ) ( i v )
. V e r d i c t : g u i l t y. Count two: t ouching the complainant’ s brea st with the i ntent to arouse a nd g ratify appellant’ s sexual desire. Se e id
. § 2 1
. 1 1 ( a ) ( 1 ) , ( c ) ( 1 ) ( W e s t 2 0 0 3 )
. V e r d i c t : g u i l t y.
Th e c omp la ina

nt i n c a us e numbe r D -1 -D C- 05 -5 00 01 1 w a s a pp e lla nt’ s f ive -ye ar- old daug hter, X.S. The c ounts and para g raphs submitted to the jury , an d the jury ’s ver dicts, were
a s f oll ow s: Count one, para g raph one: penetra tion of the complainant’s se x ual org an by a p p e l l an t ’ s s e x u a l o r g an . V e r d i c t : n o tg u i l ty. Count one, para g raph two: c au s i n g the complainant’ s sexual orga n to contact appellant’ s sexual orga

n. Se e id
. § 2 2. 02 1( a )( 1) (B )( iii ) ( Wes t Su pp . 2 00 7) . V e rd ic t: g u i l t y. Count two: t ouching the complainant’ s g enitals with the intent to a rouse and g ratify a p p e l l an t ’ s s e x u a l d e s i r e . V e r d i c t : g u i l t y.
Th e c omp la ina

nt i n c a u s e n u m b e r D
- 1
- D C

- 0 5
- 5 0 0 0 4 0 w a s a p p e l l a nt ’ s s e v e n - y e ar- old
so n, E. S. T he c ounts and

pa ra g ra ph s su bmi tte d to the jur

y , a nd the jur y ’s ve rd ic ts, we re a s f

oll ow s: Count one: penetration of the complainant’s a nus b y ap p ell ant’s sexual org an. V e r d i c t : g u i l t y. Count t wo , p ara g ra

phon e : to uc hin g the c omp la ina nt’ s anu s with

the int e nt t o a

ro us e an d g r a t i f y a p p e l l an t ’ s s e x u a l d e s i r e . V e r d i c t : n o tg u i l t y. Cou n tt w o , p ar a g r a

p h t w o : t o u c h i n g t h e c o mp l a i n an t ’ s g e n i t a l s w i t h t h e i n t e n tto ar o u s e an d

g r a t i f y a p p e l l an t ’ s s e x u a l d e s i r e . V e r d i c t : n o tg u i l t y.The two pa rag raphs a lleg ed sepa

rate i n d ec ency

with a child offe nses—touching the 2 complainant’s br east a

nd touching the complainant’ s g enitals—for w hich the def endant c ould have been convicted had they been alleg ed in sepa rate counts. Se e Pi

zzo v . S tate , 235 S.W .3d 711, 719 (Tex. Crim. App. 2007). Once ag ain, the par ag raphs a lleg ed distinct offe nses for which the de fenda nt could have 3 be e n s e pa ra te ly c on vic te d h a d th e y

be e n a lle g e d a s c ounts
.

4 The district cour

t rende red a judgme nt of conviction on eac h count and pa rag raph f or wh ic h th e re wa s a

ve rd ic t of

g uil t. I n po int of e rr or

tw o, a pp e lla nt c onte nd s th a t th e c ourt e rr e d in
cause number D- 1-DC-04-500557 by rende ring judgme nts of conviction on both pa rag raph two and para g raph thre e of c ount one. We ag ree .

I f th e State wi sh e s to a lle g e se ve ra l di ff e re nt o ff e ns e s in a sin g le ind ic tme nt, it must alleg e ea ch off

ense in a separ ate c ount. Tex. C ode Crim. Proc. Ann. a rt. 21.24(a) (West 1989). Wit hin eac h count, the State may alleg e in s ep ar ate pa

rag raphs diff

ere nt methods of committing the s ame offense
. Id . art. 21.24(b) . Be cause a count a lleg es a sing le offe nse, an indictment c annot
a uth or ize mor e c on vic tio ns tha n th ere are c ounts , a

nd the re c an b e on ly

on e c on vic tio n p e r c ount. Ma rti ne z v . S tate , 225 S.W .3d 550, 554 (Tex. Crim. App. 2007). I n Martinez , the court of criminal
a pp e a ls h e ld t

hat th e tr ia l court e rr e d by re nd e ri ng jud g me nts of c on vic tio n o n tw o p ara g ra ph s w ith in
a sin g le c ount o f t

he ind ic tme nt. Id . at 555. This Court rec ently followed Martinez

and he ld t hat a 2 trial court e rre d by

rende ring judgme nts of co nviction on two para g raphs in one c ount and on th re e pa ra g ra ph s in a se c on d c ount. Fo wle r v . S tate , 2 40 S.W. 3d

27 7, 28 1 ( Te x. Ap p. —Aus tin 3 2007, pet. re f’d)
.

The State see ks to disti ng uish Martinez , n oti ngthat the de fe nd ant i n th a t c a se objected to the jury char g e on the g round that it submi tted more than one para g raph pe r count. SeeT h e St a te c o n c e d e s th a t th e r e w a s n o o b je c ti o n to th e c h ar g e in Fowler
. See F owler 4 v . S tat e , 240 S.W .3d 277, 279-80 (Tex. A pp.—Austin 2007, pe t. ref’ d). The State note s, howeve r, that it did not advance its “implied ame ndment” ar g ument in that case
. The S tat e d o e s n o t c o n te n d th a t a p p e ll an t’ s f

a il u r e to o b

je c t b e lo w w a iv e d

th e e r r o r he 5 asser ts. Bec ause Martinez holds that a trial court is not lega lly authorized to rende r more tha n one judgme nt of conviction per count, the State re asons that if the indictment wa s not impl iedly amende d (and we hold that it was not), the second and any subsequent judgme nt on a single count is void. See Nix v . S tat e , 65 S.W .3d 664, 667-68 (Te x . Crim. App. 2001). 5 M a r tine z , 2 2 5 S.W .3d at 552-53. The State urg es that bec ause a ppellant did not simi larly object in this case, the tria l co u rt wa s authorized to impli edly “ame nd” the indictment by treating the pa ra g ra ph s a s if th ey wer e se pa

rate c ounts
. The State c ites article 28.10, which per mits t he 4

a me ndme nt o f a

n in dic tme nt a ft e r t

ri a l beg in s if th e defe nd ant d oe s n ot o bje c t. T e x. Cod e Cr im. Proc. Ann. a

rt. 28.10(b) ( West 2006). Ar t i cl e 2 8
. 1 0 does not apply here , howeve r, bec ause the ind ic tme nt w a s n ot a ctually am en d ed. The State cites no authority , and we are awa re of none, holding that a

rticle 28.10 pe rmits a trial court to im pli e dly amend a n i n d i ctm ent, whethe r by rende ring more than one judgme nt of conviction on a sing le count or othe rwise.

Martinez does not support the State’s a rg ument. First, the e r

r o r id entified in Martinez was not the trial c ourt’s submissi on to the jury of more than one para g raph per count. See M artinez , 225 S.W .3d at 555. Rather, a fter the jury returne d its verdic ts, the court erre d by rende ring judgme nt on more than one para g raph pe r count. Se e id
. Thus, in the cause s now befor e us, appe llant’s failure to object to the jury

char g e is irre l ev an t beca use the e rror

did not occur until afte r the c harg e wa s g iven, the ver dicts were r e tu r n e d, and the judg ments of conviction we re r ender ed. Second, Martinez 5
e xpre ssl y state s th a t a

tr ia l court may no t impli e dly a me nd an indi c tme nt by tr e a tin g pa

ra g ra ph s a s if they wer e counts. Se e id . at 5 54 . F or a tr ia l c ourt

to r e nd e r j ud g me nt o n mu lti ple pa ra g ra ph s w ith inThe same can be said for c ount one in cause n u m b er D-1-DC-05- 500011 and count two 6 in cause number D-1-D C-05-500040. I n those cause s, howeve r, the jury ’s ver dicts mooted the issue. 6 a sing le count as if they wer e separ ate counts alleg ing differ ent offe nses violates both the defe ndant’s due proc ess rig ht to notice of t he cha rg es ag ainst him and his constitut ional rig ht to gr and jury
scre ening of those cha

rg es. Se e id
. The State a lso cites this Court’s opini on in Pa tte rso n v . S tate , in which we he ld that the tr ia l c ourt

did no t e rr by a

uth or izin g the de fe nd ant’ s c on vic tio n un de r bo th pa ra g ra ph s o f a sin g le count. 96 S.W.3d 427, 433-34 (Tex. App.—Austin 2002), aff’d , 1 52 S.W. 3d 88 , 9 2 (T e x. Cr im. Ap p. 20 04 ). I ns of

ar a s Patterson holds that a trial court may submit more than one parag raph of a count to the jury , it is consist ent with Martinez
. B ut i ns of ar a s Patterson holds that a trial court may treat para g raphs a s if they wer e counts a

nd may rende r judg ment of convic tion on more than one para g raph of

a sing le count, it is contrar y to Martinez

and should be c onsidered ove rruled. By alleg ing the three sexual assaults as para g raphs unde r a sing le count rather than as three separ ate c ounts, the State in cause numbe r D-1-D C-04-500557 g ave a ppellant notice that he ri sk e d o nly

on e c on vic tio n f

or a g g ra vate d s e xua l a ssa

ult and effe c tiv e ly

lim ite d it se lf

to o nly one agg ravated sexual assault conviction. After the jury returne d verdic ts convicting appellant on 6 pa ra g ra ph s tw o a nd thr e e , th e tr ia l c ourt

e rred by re nd e ri ngjud g me nt o n b oth pa ra g ra ph s b e c a us e t h e law per

mits onl y one convic tion per count in the indictment. Se e id
. a t 5 5 5
. T h e e rror was not harmless because appellant was convicted of more off enses than w ere authorized by law. See id . The re medy

is to set aside one of the two judgme nts of conviction under count o n e. Se e id
. Acc ording ly , we will re verse the judg ment of convic tion on count one, par ag raph thre e.7 EVIDENCE I n his first point of error , appellant contends that the e vidence is factua lly insufficient to s us ta in t

he g uil ty ve rd ic ts. Whe n the re is a c ha lle ng e to t

he su ff ic ie nc y of the e vid e nc e to s us ta in
a cr iminal conviction, the question prese nted is whether a rational trier of fa ct could have found the essential ele ments of the off ense be y ond a re asonable doubt. J ac k so n v . V irg ini a , 44 3 U.S. 307, 32 4 ( 19 79 ) ( le g a l su ff

ic ie nc y ); Cla y ton v . S tate , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007) (leg al
su ff ic ie nc y ); J oh ns on v . S

tate , 2 3 S
. W
. 3 d

1 , 1 1 ( T e x . C r i m . A p p . 2 0 0 0 ) ( f a c tu a l s u f f i c i e n c y )
. In a fa ctual suff

iciency revi ew, all the evidence is considere d equally , including the testimony of defe nse wit nesses and the exist ence of alter native hy potheses. Cle wis v . S

tate , 922 S.W .2d 126, 129 (T e x. Cr im. Ap p. 19 96 ); Or on a v . S tate , 836 S.W .2d 319, 321 (Tex. App.—Austin 1992, no pet.). The e vidence will be deeme d fac tually insufficient if the evidence supporting the verdic t is so weak as to make the finding of g uilt clearly wrongor manife stly

unjust, or if

the ver dict is ag ainst the g reat weig ht and pre pondera

nce of the ava ilable evid en ce . W ats on v . S

tate , 204 S.W .3d 404, 414-15 (T e x. Cr im. Ap p. 20 06 ); Johnson , 23 S.W .3d at 11.
Backg ro und Appellant, who is also k n o wn as “K irby ,” and his wife , Cristy Sledge , have f

ive living
c hil dr e n: t

he thr e e c omp la ina

nts , J.S. , E .S. , a

nd X. S., a nd the ir tw o y oung e r sib lin g s, S.S. and R.S. A six th child, refe rre d to as “ba by Kirby ,” wa s still born. During2003, the family was living in a tr a ile r o n pr op e rt

y ow ne d by a

pp e lla nt’ s mot he r, Ma ry Sle dg e . Ma

ry and a pp e lla nt’ s f a the r l ive d in
a sec ond trailer on the proper ty , while a third trailer wa s the reside nce of appellant’ s sister and her8

family . During2004, appellant, Cristy , and the children moved to a white house a

bout two blocks f r o m t h e S l e d g e p r o p e rt y.

Child P rot ec t i v e Servic es worke rs beg an an inve stigation into t he we lfare of appellant’ s children in 2002. I n ear ly 2003, a CPS i nvestig ator pre pare d a re port finding no evidenc e of phy sical abuse or neg lect and r eportingno evidenc e of sexual abuse. CPS worke rs re turned to the Sledge proper

ty in Septe mber 2003. When the y arr ived, Cristy

and the c hildren fled into the ne arby woods. Althoug h the children wer e soon returne d to the residence, appellant loaded them into a van and drove awa

y befor e they could be interviewe d. One of the investig ators testified that the tr ailer in whic h a

pp e lla nt and his fa

mil y we re the n liv ing ha d no ru nn ing wate r a

nd no n- fu nc tio na l to ile ts. The tra iler had hole s in the floor and w as infeste d with roac hes, and the re wer e p u d dles of urine throug hout the premise s . CP S o btained tempora ry manag ing c onservatorship of appe llant’s children in Sep te mbe r 200 4 an d took ph y sic a l cus tod y of the m in

Oc tob e r 2 00 4. Th e c hil dr e n w e re ini tia lly place d in a shelter. I

n November

2004, all five c hildren we re pla ced in a foster home
. The foster pare nts were Trac y and David Conti . The Contis testified that the three complainants we re de velopmentally behind their a g e g roups. For example, Trac y

said that J .S., who was then nine , “did not know how to shower, did not know how to take a bath, did not know how to use soap, shampoo, she did not know how to wipe when she would g o to the bathroom.” Mor e than once, J .S. smea

red fec es around the bathroom and on he r body . Simi larly , David testified that he had to tea ch E.S., who wa s seven, “ how to wash up a nd bathe himself.” E.S. also urinate d on the be dr oo m f

loo r. Whe n e a tin g , th e c hil dr e n w ou ld “ sh ov e fo od int o the ir mouth[s ] so f

ull that it wo uld fa ll o ut. ” Th e y

a lso ho ard e d f

oo d, hid ingit und e r t

he ir be ds
.9 Trac y testified that the childre n eng ag ed in ina ppropriate touching . She said, “The re
wo uld be tim e s, sla

p bu tts or hu g [s], and the y wo uld g e t f a c e -t o- fa c e , mo uth -t o- mouth, so we wo uld have to c orre ct some of those issues.” Trac y said that J
. S. would “act out” se x ually : “She had a
rea l—she would lick her lips or her teeth and she would g et her —she would just have a

look on her fac e, if it were—.” J.S. behaved in this manner only in front of men. Tr acy

also descr ibed J .S.’s unusual doll play : “We had Ba rbie doll s, Ba

rbie doll s wer e having sex
. The man w as—his head w as betwee n the B arbie doll’s leg s.” Tra cy testified that this happene d more than onc e.
Outcries J.S. w a s th e fi rs t chil d to make an o utc ry re g ard ingse xua l a

bu se . D a vid

Con ti testified that he a

nd Trac y took J .S. to a doctor’s appointment on November 29, 2004. Duringthe trip, J .S. told t hem that “h er d ad had put his private a rea ,” which she called a “dido,” in her “monkey ,” which w as h er term for he r vag ina. She re ported that this had happe ned on more than
one occ asion and that it hur t. Acc ording to D avid, J .S. a lso sa id that “he would put it in her butt and that it would make her

cry . She would tell him it would hurt but he would keep doing it until he wa s done.” J .S. sa id that “ she knew that
. . . her dad was done [when] he wasn’t making any more a h ah noises.” She adde d, “He would make a loud noise and then ther e would be a har d p u s h an d then he would stop and then he would pul l i t out and tell her to put her c lothes on.” J.S . also told the Contis t hat she ha d hear d h er father havingsex wit h X.S. David testified that J.S . said “she knew [X.S.] had had se x beca use she he ard them.” J .S. told David that she hear d them “makingthe ah ah noise s.”10 J .S. made a se cond outcr

y on Dec ember

2, 2004. On this occa sion, she was in the c ar with Trac y Conti and X.S. Trac y testified, “She was telling us that he r dad ha d touched he r on her boobs and that he al s o h ad p u t h i s . . . dido . . . in her monkey and that it was unc omfortable, a nd then she said but it wa sn’t as uncomforta ble as when her dad put it in her butt and that she wasn’ t to tell any body that.” Tra cy

said that J .S. said that this had been g oing on “ since they lived in the campe r and a

nother house, se vera l differ ent homes.” That same nig ht, the Contis found X.S. c rying dur ing the ir eve ning be d chec k. They broug ht her to t he li ving room and, af ter some he sitation, she told them that “her da d had touche d her in he r private are a.” Trac y testified, “She was cry ing, talking a

bout her da d touching her in he r pr ivate are a , th a t sh e wo uld have he r g o und e r the c ov e rs and he wo uld g e t beh ind he r, pu ll h e r p ants do wn , p ull his pa

nts do wn and pu t it in he r butt .
. . .” Tr a c y

we nt o n, “ She a lso sa id t hat he wo uld pull his pants down, pull her pants down, and he said he did this to a ll f our y ear olds at least once
. She said daddy

put his pee pee in her pe e pee and she c ried.” Acc ording to Trac y , X.S. said that when this happe ned, her

dad made “the oh a

nd the ah, ah and those noises.” X.S. also descr ibed seeing“a g ree n substance she said that came out, sometimes it was a y ellowish white she said or a g ree n substance.”

E.S. made his first outcry to the Contis on J anuar y 2, 2005. David testified that he and E.S. wer e sitti ng at the dining table and E.S. “ was very upset.” David added, “ Ireme mber tea rs
wer e rolling down his fac e as he wa s talking a bout things that had ha

ppened to him, and then [E.S.] said that his dad had had sex with him, he said his dad would put his penis in his butt . He sa id that when he was done , he would have drops of y ellow white stuff on him and he said his dad would ha veBur ciag a testified that she conducte d a third interview of J.S . This in t er view conc erne d 7 state me nts th at J .S
. made re g ard ingthe de a th o f “ ba by Ki rb y ,” a

su bje c t w e wi ll a dd

re ss l a te r i n this opini on. This interview a lso related to “ baby Kirby .” 8 11 h i m l ay o nh i s s t o m ac h
. ” E
. S
. t o l d Da v i d t h at h e got t h e “ y el l o w w h i t e s tu ff i nh i s m o u t h an d

l egs
and c he st. He sa id i t ta ste d li ke ho ne y oil . I t w a s n a sty

and da d to ld h im t o s wa llo w i t.” E. S. a lso tol d D a vid

that hi s p are nts too k p ic tur e s o f h im, J.S., and E. S. p e rf or min g se x ac ts.
Inte rv ie ws a nd Examinat ion s The Contis reporte d eac h outcry to CP S. CP S, in turn, noti fied the police and
arr ang ed for

the childre n to be interview ed at the Center for Child Protection. For ensic intervie wer Be tzabel Burc iag a testified that she interviewe d J .S. on Dec ember 2, 2004, and X.S. on Dec ember 6 , 2 0 0 4
. Bu rc i agat es t i fi edt h at b o t h gi rl s re p o rt edb ei n g s ex u al l y as s au l t ed b y t h ei r f at h er . Bu rc i aga int e rv ie we d th e g ir ls a

se c on d ti me in Janu ary 20 05 , af te r ea c h mad e ou tc ri e s r e g ard ingse xua l a bu se by their g randf

ather
. These inter

views we re r ecor ded on videotape , and edit ed ver sions were 7 i n t r o d u c e d i ne v i d e n c e an d

p l aye d f o r t h e j u r y. For ensic intervie wer

Cy n d i C a ntu first interviewe d E.S. on Dece mber 8, 2004, be fore h e m a d e h i s i n i t i a l o u t c r

y. She in te rv ie we d h im a se c on d ti me on

Janu ary 5, 20 05 , f

oll ow inghis 8 outcry to the Contis. Cantu did not descr ibe E.S.’s statements during this second interviewbut, like t h e o t h e r i n t e r v i e w s , i tw a s r e c o r d e d

an d t h e r e c o r d i n g w a s s h o w nt o t h e j u r y. Ea c h c omp lain ant w a s e xami ne d b y Dr . B e th N a

ue rt , a pe dia tr ic ian w ithe xpe rt ise in child sexual abuse cases. Naue rt testified t hat J .S. told her during the examination that “her father would put his diddle, which is w hat she called a penis, into he r vag ina and her rect u m . ” J
. S
. was12

unclea r o n t h e t i m e fr ame, but told the doctor that this happened on multiple occa sions. Nauer t te sti fi e d th a t X .S. tol d h e r t hat “ he r f a the r tou c he d h e r v a g ina l a re a on top of he r c lot he s. ” E. S. t old Na ue rt that hi s f a the r “ pu t hi s th ingin [h is] b ott om. Or ang e stu ff c a me on my bo dy .” E. S. a lso tol d the doctor about ot her incidents of sex ual abuse by his mother and seve ral c ousins. Nauer t testified that her phy sical examinations of the children w ere normal and, althoug h they wer e not inconsistent wi th t he re po rt e d a

bu se , th e y

did no t c on fi rm

it. Compla ina nts’

Te sti mony J .S. testified that her pare nts w ere Kirby and Cristy Sledge
. She testified that her dad, or Kirby , touched he r “boobie s” with his hands and put his “dick” inside her “ hooch” a nd her “ butt.” She testified that this happene d more than onc e, at both the trailer and the white house. J.S . testified that her mother

saw a ppellant touching her and took photogr aphs. She also said that her g randf ather had touche d her “ hooch” w ith his hands. J.S . often c ontradicte d herse lf. For example, she said that
s h e h ad al wa y s t o l d t h e tr

u t h ab o u t h er p ar en t s , b u t s h e la t er s ai d t h at s h e li ed wh en s h e to l d Bu rc i aga that her mother

had touche d her ge nitals. She also made contr adictory statements re g ardingwhether or not she had s ee n ap p el l an t having sex wit h X.S. J .S. had not seen a ppellant for two y ear s and could not identify

him in court. She identified S tate’s ex hibit si x , a photog raph of appellant take n two y ear s ear lier, as he r father, Kirby Sledge
. J .S. a lso te stified about the death of “baby Kirby .” She said that he “ came out of m y m am a’ s stomach wrong .” She also testified, how ever , that she saw “baby Kirby ” fa ll from th e top of a bunk be d and hit the floor. She sa id that when this happene d, “ther e wa s blood coming dow n.”13 X.S. testified that her f

ather , who she a lso called Kirby , touched the inside of her “cooc hie” with his fing ers and put his “ding dong ” inside her “ butt.” She also contra dicted her self, saying later that a

ppellant did not touch her “ coochie ” and a lway s kept his “ding dong ” cove red. X.S. was also unable to identify appellant at trial. She identified State’s e x hibit si x as a photog raph of her f a th e r , K ir b y Sl e d g e , an d a g r e e d th a t it s h o w e d “ h o w K ir b y lo o k e d th e la s t ti me [she] saw him .” Duri ngc ro ss- e xami natio n, X. S. a c kn ow le dg ed th at sh e did no t a lw ay s te ll the tr

uth to the pe rs on s sh e ta lke d to , b ut s he sa id t hat sh e c ou ld n ot r e me mbe r who sh e lie d to . Sh e a lso
re me mbe re d “ ba

by Ki rb y ” fa lli ngfr om t

he be d a nd c ra c kin g his he a d, a lth ou g h s he sa id t hat sh e did not see this happen.

E. S. t e sti fi e d th a t hi s f

a the r , K i r b y S l e dg e , to uc he d h is “ fr on t pa rt ” and his “ ba c k p art ” wi th h is h and
. E. S. als o tes tif ie d th a t a pp e lla nt’ s “ fr on t pa

rt ” tou c he d h is “ ba c k p art .” He sa id t his happene d more than onc e. E.S. reme mbere d telling the Contis t hat “Kir by put his front part inside [E.S .’s] back part” and said that this statement was true . E.S. said during cross-e x amination that he put his “thing” in his father’ s “bac k side.” L ike his sisters, E.S. was unable to identify appellant at trial, but identified State’s exhibit s ix as a photog raph of his father , Kirby

Sledge
. E.S. testified that someone he did not ide n t i fy t o o kpictures of him and his sist ers wh ile the y

we re na ke d. He a lso sa id t

hat Cr isty and his “ g ra nd pa ” tou c he d h im. E. S. i nit ial ly testified that he ne ver sa

w any thing ha ppen to J .S. or X.S., but he said during cross-e x amination that he had se en Kirby

doing “ bad stuff” with X.S. Also during his cr oss-examination, E.S. r eca lled telling the Contis that Kirby and Cristy

had sex with his g randf

ather and g randmother . He sa id that he thoug ht this happened be cause J .S. told hi m that it did.14

Ot he r T esti mony Detec tive Ger ald Kim testified that he investigate d the complainants’ statements that they had bee n photogr aphed w hile eng ag ed in sexual activities. He sa id that he found no e vidence to confirm these statements. He added that all commerc ial photo developer s contac t the police whe n t h e y e n c o u n t e r

c h i l d p o r n o g r a p h y. Both the State a

nd th e d ef

en s e ca lled an expert witness. The State’ s expert was p s yc h o l o g i s tW i l l i am L e e C art e r . C art e r t e s t i f i e d t h a ti na s s e s s i n g t h e c r e d i b i l i t y o f a c h i l d ’ s o u t c r

y, he c on sid e rs wh e the r t

he c hil d’ s late r s tate me nts are con si st ent wi th t he ini tia l outc ry . H e a lso
c on sid e rs “ wh os e ide a

is it to te ll. ” Th a t is, did the c hil d vo lun te e r the inf or matio n or wa s th e c hil d prompted by

an adult. Carte r also looks for “ sensory detail”—de scriptions of the de tails of sexual
a c ts that w ou ld n ot n or

ma lly be wi thi n the c hil d’ s expe ri e nc e . Ca rt e r s a id t hat “ [t]he wo rl d th a t th e se abused kids come from is so chaotic that the stories that they tell a re a lso sometimes chaotic and you can’ t make sense of them.”

Carter also explained that children who are sexually abused by a parent or some other authority fig ure w ill commonly

not make an outcry until they are place d into a new living situation and have had time to develop a sense of trust in their new car e g ivers. Carter testified that childre n who ar e sexually

abused a re of ten n egl ected in other wa y s, and as a

result they

will displ ay

bad
mann e rs , a

la c k o f hy g ie ne , a

nd oth e r b e havio ra l pr ob le ms. The de fense expert was psy cholog ist Matthew Fe rrara . Fe rra ra te stified that the y oung er the child, the m ore pr one the c hild is t o making a fa lse outcry . He a dded that a c hild who is d e ve lop me nta lly

dis a ble d w ill be le ss m a tur e tha n h is o r h e r b iol og ic a l a g e and thu s mo re lik e ly15

to make a f

alse a ccusation. Fe rra

ra also descr ibed the dang er of implanting fa lse memories in y oung children throug h repe ated interviews and the use of leading questions. Fer rar a cr iticiz ed the use of anatomica lly

corr ect dolls, as had be en used by the forensic i nterview ers in these case s, saying that
rec ent studies show that such dolls “ac tu al l y sug g est to a child what should be done or c ould be do ne ” and

he nc e inc re a se the lik e lih oo d o f a fa lse state me nt. Two other de fense witnesses—a family friend and appellant’ s sister—testified that J .S. had a vivid imag ination, would fantasize, and wa s dishonest. Appellant’s half br other testified that he had ne ver se en any pornog raphic photogr aphs of a ppellant’s childre n.
Discussion B y

c ha lle ng ingon ly the fa c tua l su ff ic ie nc y of the e vid e nc e , a

pp e lla nt e ff e c tiv e ly
conce des that the evidenc e in the se cause s is le g ally sufficie nt to sustain his convictions. Se e Cle wis , 9 2 2 S
. W
. 2 d

a t1 3 4
. N e v e rt h e l e s s , a

p p e l l an tu r g e s t h a tw h e na l l t h e t e s t i m o ny i s c o n s i d e r e d e qu a l l y, the evidenc e of guilt is so weak and so contra ry to the g reat weig ht of t h e co n t ra ry evidenc e as to make his convictions manife stly improper. The essenc e of a ppellant’ s argume nt is that the complainants’ outcr

y statements and tria l testimony wer e not cr edible. Ap pe lla n tar g u e s t h a tt h e c o mp l a i n an t s h a d t w o m o t i v e s t o f

a l s e l y a c c u s e h im
and his wi fe of se xua l mis c on du c t. F ir st, a pp e lla nt su g g e sts that the c omp la ina nts we re e mot ion a lly distraug ht and ang ry

with their par ents over the death of their y oung er br other, “ baby Kirby .” Ap pe lla nt n ote s th a t a lth ou g h it

wa s und isp ute d th a t th e c hil d wa s still bo rn a t the ho sp ita l, b oth J.S. and X.S. claimed to have see n t h e child at their home and r emember ed him falling from his bed.16

Appellant urg es that the c hildren’s acc ounts of their sexual a buse at the hands of a

ppellant and other fa mil y me mbe rs wa s si mil arl y

fa nc if ul. Ap pe lla nt s ug g e sts that th e c omp la ina nts we re fu

rt he r mo ti vated

to m a ke fa lse
acc usations beca

use they did not want to return to their natural family . He ba ses this argument on the evidenc e desc ribing the filthy conditions in which the children w ere living, their la ck of nourishment, and their de velopmental proble ms. He also points to the C ontis’ testimony descr ibing the many g ifts the children r ece ived whil e in their care. He notes that X.S. testified that she told the Contis about the “bad touche s” “[s]o [ she] could have a g ood life.” As furthe r evide nce of

the complainants’ la ck of cre dibilit y , appellant c ites their trial testimony : the difficulty

they had in re calling events, the inc onsistent statements, and the admissions that they had made false statements in the p as t
. Ap p el l an t also notes that in the journal she ke pt while the complaina

nts were living with her , Trac y Conti wrote that J .S. “lies so much it is very hard to believe her with a

ny thing” and that J .S. “ could lie with a serious fa ce a nd at the same time swear sh e did n’ t li e .” Con ti t e sti fi e d, ho we ve r, that th os e re mark s r e fe rr e d to inc ide nts of mis be havio r i n the home and not to J .S.’s sex ual abuse outcries. Appe llant also claims that E.S. was malleable and sug g estible, and simply

repe ated wha

t J .S. told him. He argues that E.S.’s ac counts bec ame more g randiose and fanta stic as his te stimony proce eded. Appellant points out that there was no phy sical
e vid e nc e of se xua l a

bu se , and he a lso dr aws a tte nti on to the fa c t that the c omp la ina nts we re un a

ble to i de nti fy

him a t tr ia l. Appellant ar g ues that there was a strong likelihood that the complainants had develope d false me mories conce rning the alleg ed abuse. Eac h of the c omplainants was intervie wed17

more than onc e at the Ce nter for Child P rotec tion, and the childre n wer e also sho wn to have collectively

di s cu s s ed t h eir outcries with eac h other a nd with the Contis. Tracy Conti t estified, howeve r, that the g roup discussions in their hom e took pl ace only afte r the c hildren we re individually

interviewe d on videotape at the cente r. The f orensic inter

viewer s testi fi ed that the childre n wer e neve r interview ed twice about the same subject; ea ch int ervie w re lated to a dif fe re nt m a tte r. Ap pell ant ’s a rgum ent als o d oes no t ac cou nt for th e com pl ain ant s’ o ut cry

st ate men ts to their foster pa

rents, which w ere as vivid and deta iled as their tria l test i m o n y wa s v ague and ina rt ic ulate . A lth ou g h a

pp e lla nt a tte mpt e d to sh ow that th e c omp la ina nts ha d s e e n s e xua lly

e xplic it
mov ie s o n c a

ble te le vis ion , the tr ie r o f f a c t c ou ld r e a so na

bly c on c lud e that th e de ta ils c on ta ine d in the outcry statements wer e strongevidenc e that the complainants wer e descr ibing e vents that they had ac tually

experience d. When conducting a fa ctual suff iciency revie w, we must g ive d u e d eferenc e to the jury ’s deter

minations, particularly

those conc erning t h e we ight a nd cre dibilit y

of the testimony and other evidenc e. Johnson , 2 3 S. W.3 d at 9; Cai n v . S tate , 958 S.W .2d 404, 407 (Tex. Crim. App. 19 97 ). Th e jur or s in

the se c a us e s w e re a

ble to w a tc h th e c omp la ina nts a s th e y

te sti fi e d a

nd we re in the be st p os iti on

to d e c ide wh e the r t

he y we re fr ig hte ne d c hil dr e n d oin g the ir be st t o a c cura tely descr ibe horrible e vents two or more y ea rs i n the past, or c onfused c hildren who ha d been misled (i na dv e rt e ntl y

or oth e rw is e) into m a kin g fa lse a c c us a tio ns , o r s imp ly lia rs . T he fo ur

no t g uil ty verdic ts demonstrate that the juror s were prepa red to find appellant not guilty if they believed that
an ac cus at i on was not prove d. Considering all the evidenc e equa lly , we hold that the e vidence supporting the g uilty verdic ts is not so weak or so ag ainst the g reat weig ht and pre pondera nce of the18

other e vidence as to make the finding s of g uilt clearly wrongor manife stly

unjust. P oint of err or one is overrule d.
OU TC RYSTA TEM EN TS

I n his last point of error, a ppellant urg es that t h e t ri al cour t erre d by

admitting the complainants’ outc ry statements to the Contis because the de fense was not g iven the notice require d by

statute. See T ex . C o d e C ri m . P ro c. An n . ar t
. 3 8
. 0 7 2 (W es t2 0 0 5 ). Br o ad l y s p ea k i n g, article 3 8
. 072 exempts from the hear say rule sexual abuse outc ry

statements made by

children twe lve y ear s of ag e or young er. O ne re quisite for the admission of an outcry statement is that the offe ring pa rt y no tif y the a dv ers e part y at lea st t wo we e ks be fo re tr ia l be g ins Id . art. 38.072, § 2(b) (1). Ap p ellant ar g ues that the State did not satisfy this noti ce r equire ment beca use no ar ticle 38.072
no tic e a pp e ars in t

he c le rk ’s re c or ds
. The only rele vant objection voice d by appellant d u ri n g the trial ca me during Tr a c y Con ti’ s te sti mony . When the pr os e c uto r as ke d he r to re late the ou tc ry state me nt J.S. ma de to the Contis during the trip t o t h e d o ct or, which the rec ord elsewhere shows was on Nove mber 29, 2004, defe nse counse l approa ched the bench a nd said:
MR. F OX: Fr om my memory and my notes, the outcry notice I g ot was fr om Da vid Con ti a nd the ini tia l outc ry , an d he rs wa s a—w a s a su bs e qu e nt o utc ry . F ir st outcry is to the father. Can they establish the date that this happened? Iwasn’t g iven no tic e of thi s. MS. MC FARLAND: I

can do it throug h David. The y wer e both there
. MR. FOX: I don’t know what she is goingto say since I haven’ t been g iven no tic e of it.19 MS. MC FARLAND: That’s fine. M R
. F O X : W e c anr e m o v e t h e j u r y. MS. MC FARLAND: No, that is fine.
Res u mi n g h e r qu e s ti o n in g , th e p r o s e c u to r a s k e d T r a c y to d e s c r ib e th e o u tc r y s tate me n t J.S. m ade on Dec ember

2, 2004, which she did without further objection by the def ense. The November

29,
o u t c r y s t a t e m e n tw a s l a t e r

i n t r o d u c e d t h r o u g h D a v i d

C o n t i ’ s t e s t i m o n y. This rec itation from the rec ord demonstrates that defe nse counsel was awa re of the November

29, statement, but had been notifie d that it would be offe red throug h David Conti rather than Tra cy

Conti. Ap p el l an t cites no authority holding that the notice require d by article 38.072 must be filed and made a part of the cler k’s rec ord, althoug h that might be the better pr actice . The
re c or d a lso de mon str a te s th a t r a the r t ha n f or c ingthe iss ue , th e pr os e c uto r w ise ly cho se to w a it
an d , co n s i s t en t wi t h t h e no t i ce gi v en t o t h e de fe n s e, i n t ro d u ce t h e N o v em b er

2 9 , s t at em en tt h ro u gh Da vid Con ti. The de fense did not object to any other outcr

y testimony

based on a lack of prope r notice. The comments of counsel quoted above show that notice of the outcry statements was g iven. No er ror is pre sented. Point of err or three is overrule d.
CO NC LU SION I n cause numbers D- 1-DC-05-500 0 1 1 and D- 1-DC-05-500040, the judgme nts of conviction are aff

irmed. I n cause number D-1-D C-04-500557, the judgme nts of conviction on count20

one, par ag raph two a

nd count two ar e af

firmed, but the judg ment of convic tion on count one, para g raph thre e is reve rsed a nd the prosec ution of that para g raph is dismissed.

__________________________________________ W. Kenneth L aw, Chief Justice Be fore Chief J ustice L aw, Justi ces Waldrop a nd Henson Affir med in part; Rever sed and D ismiss ed in par t Filed: August 19, 2008 Pub lis h