TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00080-CR

NO. 03-07-00082-CR

Sidney Paul Sledge, Appellant

v.

The State of Texas, Appellee

&

NO. 03-07-00081-CR

Sidney Paul Sledge Jr., Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NOS. D-1-DC-05-500011, D-1-DC-04-500557 & D-1-DC-05-500040

HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

O P I N I O N

Sidney Paul Sledge appeals two judgments of conviction for indecency with a child

by contact, in each of which the trial court assessed concurrent twenty-year prison terms, and

four judgments of conviction for aggravated sexual assault of a child, in each of which the

court assessed concurrent forty-year prison terms. See Tex. Penal Code Ann. § 21.11 (West 2003),
 We state the complainants’ ages as of the offense date alleged in the indictments. The 1

complainants were two years older at the time of appellant’s trial.

2

§ 22.021 (West Supp. 2007). In one of his three points of error, appellant contends that the trial

court erred by rendering more than one judgment on a single count. We will sustain this contention

and set aside one of the aggravated sexual assault convictions. We will overrule appellant’s other

points of error, by which he challenges the factual sufficiency of the evidence and complains of the

admission of outcry testimony, and affirm the remaining convictions.

INDICTMENTS AND JUDGMENTS

Appellant was jointly tried on three indictments, each of which contained multiple

counts and paragraphs accusing him of aggravated sexual assault of a child, indecency with a

child by contact, and indecency with a child by exposure. At trial, the State abandoned all of the

indecency by exposure allegations and one of the indecency by contact allegations. The remaining

counts and paragraphs were submitted to the jury as they were alleged in the indictments.

The complainant in cause number D-1-DC-04-500557 was appellant’s nine-year-old

daughter, J.S. The counts and paragraphs submitted to the jury, and the jury’s verdicts, were 1

as follows: 

Count one, paragraph one: penetration of the complainant’s anus by appellant’s

sexual organ. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp. 2007).

Verdict: not guilty.

Count one, paragraph two: penetration of the complainant’s sexual organ by

appellant’s sexual organ. See id. Verdict: guilty.
3

Count one, paragraph three: causing the complainant’s anus to contact appellant’s

sexual organ. See id. § 22.021(a)(1)(B)(iv). Verdict: guilty.

Count two: touching the complainant’s breast with the intent to arouse and gratify

appellant’s sexual desire. See id. § 21.11(a)(1), (c)(1) (West 2003). Verdict: guilty.

The complainant in cause number D-1-DC-05-500011 was appellant’s five-year-old

daughter, X.S. The counts and paragraphs submitted to the jury, and the jury’s verdicts, were

as follows:

Count one, paragraph one: penetration of the complainant’s sexual organ by

appellant’s sexual organ. Verdict: not guilty.

Count one, paragraph two: causing the complainant’s sexual organ to contact

appellant’s sexual organ. See id. § 22.021(a)(1)(B)(iii) (West Supp. 2007). Verdict:

guilty.

Count two: touching the complainant’s genitals with the intent to arouse and gratify

appellant’s sexual desire. Verdict: guilty.

The complainant in cause number D-1-DC-05-500040 was appellant’s seven-year-old

son, E.S. The counts and paragraphs submitted to the jury, and the jury’s verdicts, were as follows:

Count one: penetration of the complainant’s anus by appellant’s sexual organ.

Verdict: guilty.

Count two, paragraph one: touching the complainant’s anus with the intent to arouse

and gratify appellant’s sexual desire. Verdict: not guilty.

Count two, paragraph two: touching the complainant’s genitals with the intent to

arouse and gratify appellant’s sexual desire. Verdict: not guilty.
 The two paragraphs alleged separate indecency with a child offenses—touching the 2

complainant’s breast and touching the complainant’s genitals—for which the defendant could have

been convicted had they been alleged in separate counts. See Pizzo v. State, 235 S.W.3d 711, 719

(Tex. Crim. App. 2007).

 Once again, the paragraphs alleged distinct offenses for which the defendant could have 3

been separately convicted had they been alleged as counts.

4

The district court rendered a judgment of conviction on each count and paragraph for

which there was a verdict of guilt. In point of error two, appellant contends that the court erred in

cause number D-1-DC-04-500557 by rendering judgments of conviction on both paragraph two and

paragraph three of count one. We agree.

If the State wishes to allege several different offenses in a single indictment, it

must allege each offense in a separate count. Tex. Code Crim. Proc. Ann. art. 21.24(a) (West 1989).

Within each count, the State may allege in separate paragraphs different methods of committing

the same offense. Id. art. 21.24(b). Because a count alleges a single offense, an indictment cannot

authorize more convictions than there are counts, and there can be only one conviction per count.

Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007). In Martinez, the court of criminal

appeals held that the trial court erred by rendering judgments of conviction on two paragraphs within

a single count of the indictment. Id. at 555. This Court recently followed Martinez and held that a 2

trial court erred by rendering judgments of conviction on two paragraphs in one count and on

three paragraphs in a second count. Fowler v. State, 240 S.W.3d 277, 281 (Tex. App.—Austin 3

2007, pet. ref’d).

The State seeks to distinguish Martinez, noting that the defendant in that case

objected to the jury charge on the ground that it submitted more than one paragraph per count. See
The State concedes that there was no objection to the charge in Fowler. See Fowler 4

v. State, 240 S.W.3d 277, 279-80 (Tex. App.—Austin 2007, pet. ref’d). The State notes, however,

that it did not advance its “implied amendment” argument in that case.

The State does not contend that appellant’s failure to object below waived the error he 5

asserts. Because Martinez holds that a trial court is not legally authorized to render more than one

judgment of conviction per count, the State reasons that if the indictment was not impliedly amended

(and we hold that it was not), the second and any subsequent judgment on a single count is void. See

Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001).

5

Martinez, 225 S.W.3d at 552-53. The State urges that because appellant did not similarly object

in this case, the trial court was authorized to impliedly “amend” the indictment by treating

the paragraphs as if they were separate counts. The State cites article 28.10, which permits the 4

amendment of an indictment after trial begins if the defendant does not object. Tex. Code Crim.

Proc. Ann. art. 28.10(b) (West 2006). Article 28.10 does not apply here, however, because the

indictment was not actually amended. The State cites no authority, and we are aware of none,

holding that article 28.10 permits a trial court to impliedly amend an indictment, whether by

rendering more than one judgment of conviction on a single count or otherwise.

Martinez does not support the State’s argument. First, the error identified in Martinez

was not the trial court’s submission to the jury of more than one paragraph per count. See Martinez,

225 S.W.3d at 555. Rather, after the jury returned its verdicts, the court erred by rendering judgment

on more than one paragraph per count. See id. Thus, in the causes now before us, appellant’s failure

to object to the jury charge is irrelevant because the error did not occur until after the charge was

given, the verdicts were returned, and the judgments of conviction were rendered. Second, Martinez 5

expressly states that a trial court may not impliedly amend an indictment by treating paragraphs as if

they were counts. See id. at 554. For a trial court to render judgment on multiple paragraphs within
 The same can be said for count one in cause number D-1-DC-05-500011 and count two 6

in cause number D-1-DC-05-500040. In those causes, however, the jury’s verdicts mooted the issue.

6

a single count as if theywere separate counts alleging different offenses violates both the defendant’s

due process right to notice of the charges against him and his constitutional right to grand jury

screening of those charges. See id.

The State also cites this Court’s opinion in Patterson v. State, in which we held that

the trial court did not err by authorizing the defendant’s conviction under both paragraphs of a single

count. 96 S.W.3d 427, 433-34 (Tex. App.—Austin 2002), aff’d, 152 S.W.3d 88, 92 (Tex. Crim.

App. 2004). Insofar as Patterson holds that a trial court may submit more than one paragraph of a

count to the jury, it is consistent with Martinez. But insofar as Patterson holds that a trial court may

treat paragraphs as if they were counts and may render judgment of conviction on more than one

paragraph of a single count, it is contrary to Martinez and should be considered overruled.

By alleging the three sexual assaults as paragraphs under a single count rather than

as three separate counts, the State in cause number D-1-DC-04-500557 gave appellant notice that

he risked only one conviction for aggravated sexual assault and effectively limited itself to only

one aggravated sexual assault conviction. After the jury returned verdicts convicting appellant on 6

paragraphs two and three, the trial court erred by rendering judgment on both paragraphs because

the law permits only one conviction per count in the indictment. See id. at 555. The error was

not harmless because appellant was convicted of more offenses than were authorized by law. See

id. The remedy is to set aside one of the two judgments of conviction under count one. See id.

Accordingly, we will reverse the judgment of conviction on count one, paragraph three.
7

EVIDENCE

In his first point of error, appellant contends that the evidence is factually insufficient

to sustain the guilty verdicts. When there is a challenge to the sufficiency of the evidence to sustain

a criminal conviction, the question presented is whether a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

324 (1979) (legal sufficiency); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (legal

sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency). In

a factual sufficiency review, all the evidence is considered equally, including the testimony of

defense witnesses and the existence of alternative hypotheses. Clewis v. State, 922 S.W.2d 126, 129

(Tex. Crim. App. 1996); Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.).

The evidence will be deemed factually insufficient if the evidence supporting the verdict is so weak

as to make the finding of guilt clearly wrong or manifestly unjust, or if the verdict is against the great

weight and preponderance of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15

(Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 11.

Background

Appellant, who is also known as “Kirby,” and his wife, Cristy Sledge, have five living

children: the three complainants, J.S., E.S., and X.S., and their two younger siblings, S.S. and R.S.

A sixth child, referred to as “baby Kirby,” was stillborn. During 2003, the family was living in a

trailer on property owned by appellant’s mother, Mary Sledge. Mary and appellant’s father lived in

a second trailer on the property, while a third trailer was the residence of appellant’s sister and her
8

family. During 2004, appellant, Cristy, and the children moved to a white house about two blocks

from the Sledge property.

Child Protective Services workers began an investigation into the welfare of

appellant’s children in 2002. In early 2003, a CPS investigator prepared a report finding no evidence

of physical abuse or neglect and reporting no evidence of sexual abuse. CPS workers returned to the

Sledge property in September 2003. When they arrived, Cristy and the children fled into the nearby

woods. Although the children were soon returned to the residence, appellant loaded them into a van

and drove away before they could be interviewed. One of the investigators testified that the trailer

in which appellant and his family were then living had no running water and non-functional toilets.

The trailer had holes in the floor and was infested with roaches, and there were puddles of urine

throughout the premises. CPS obtained temporary managing conservatorship of appellant’s children

in September 2004 and took physical custody of them in October 2004. The children were initially

placed in a shelter. In November 2004, all five children were placed in a foster home.

The foster parents were Tracy and David Conti. The Contis testified that the three

complainants were developmentally behind their age groups. For example, Tracy 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 go to the bathroom.” More

than once, J.S. smeared feces around the bathroom and on her body. Similarly, David testified that

he had to teach E.S., who was seven, “how to wash up and bathe himself.” E.S. also urinated on the

bedroom floor. When eating, the children would “shove food into their mouth[s] so full that it would

fall out.” They also hoarded food, hiding it under their beds.
9

Tracy testified that the children engaged in inappropriate touching. She said, “There

would be times,slap butts or hug[s], and they would get face-to-face, mouth-to-mouth, so we would

have to correct some of those issues.” Tracy said that J.S. would “act out” sexually: “She had a

real—she would lick her lips or her teeth and she would get her—she would just have a look on her

face, if it were—.” J.S. behaved in this manner only in front of men. Tracy also described J.S.’s

unusual doll play: “We had Barbie dolls, Barbie dolls were having sex. The man was—his head was

between the Barbie doll’s legs.” Tracy testified that this happened more than once.

Outcries

J.S. was the first child to make an outcry regarding sexual abuse. David Conti

testified that he and Tracy took J.S. to a doctor’s appointment on November 29, 2004. During the

trip, J.S. told them that “her dad had put his private area,” which she called a “dido,” in her

“monkey,” which was her term for her vagina. She reported that this had happened on more than

one occasion and that it hurt. According to David, J.S. also said 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 was

done.” J.S. said that “she knew that . . . her dad was done [when] he wasn’t making any more ah ah

noises.” She added, “He would make a loud noise and then there would be a hard push and then

he would stop and then he would pull it out and tell her to put her clothes on.” J.S. also told the

Contis that she had heard her father having sex with X.S. David testified that J.S. said “she

knew [X.S.] had had sex because she heard them.” J.S. told David that she heard them “making the

ah ah noises.”
10

J.S. made a second outcry on December 2, 2004. On this occasion, she was in the car

with Tracy Conti and X.S. Tracy testified, “She was telling us that her dad had touched her on her

boobs and that he also had put his . . . dido . . . in her monkey and that it was uncomfortable, and

then she said but it wasn’t as uncomfortable as when her dad put it in her butt and that she wasn’t

to tell anybody that.” Tracy said that J.S. said that this had been going on “since they lived in the

camper and another house, several different homes.”

That same night, the Contis found X.S. crying during their evening bed check. They

brought her to the living room and, after some hesitation, she told them that “her dad had touched

her in her private area.” Tracy testified, “She was crying, talking about her dad touching her in her

private area, that she would have her go under the covers and he would get behind her, pull her pants

down, pull his pants down and put it in her butt . . . .” Tracy went on, “She also said that he would

pull his pants down, pull her pants down, and he said he did this to all four year olds at least once.

She said daddy put his pee pee in her pee pee and she cried.” According to Tracy, X.S. said that

when this happened, her dad made “the oh and the ah, ah and those noises.” X.S. also described

seeing “a green substance she said that came out, sometimes it was a yellowish white she said or a

green substance.”

E.S. made his first outcry to the Contis on January 2, 2005. David testified that he

and E.S. were sitting at the dining table and E.S. “was very upset.” David added, “I remember tears

were rolling down his face as he was talking about things that had happened 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 said that

when he was done, he would have drops of yellow white stuff on him and he said his dad would have
 Burciaga testified that she conducted a third interview of J.S. This interview concerned

7

statements that J.S. made regarding the death of “baby Kirby,” a subject we will address later in

this opinion.

 This interview also related to “baby Kirby.” 8

11

him lay on his stomach.” E.S. told David that he got the “yellow white stuff in his mouth and legs

and chest. He said it tasted like honey oil. It was nasty and dad told him to swallow it.” E.S. also

told David that his parents took pictures of him, J.S., and E.S. performing sex acts.

Interviews and Examinations

The Contis reported each outcry to CPS. CPS, in turn, notified the police and

arranged for the children to be interviewed at the Center for Child Protection. Forensic interviewer

Betzabel Burciaga testified that she interviewed J.S. on December 2, 2004, and X.S. on December

6, 2004. Burciaga testified that both girls reported being sexually assaulted by their father. Burciaga

interviewed the girls a second time in January 2005, after each made outcries regarding sexual abuse

by their grandfather. These interviews were recorded on videotape, and edited versions were 7

introduced in evidence and played for the jury.

Forensic interviewer Cyndi Cantu first interviewed E.S. on December 8, 2004, before

he made his initial outcry. She interviewed him a second time on January 5, 2005, following his 8

outcry to the Contis. Cantu did not describe E.S.’s statements during this second interview but, like

the other interviews, it was recorded and the recording was shown to the jury.

Each complainant was examined by Dr. Beth Nauert, a pediatrician with expertise

in child sexual abuse cases. Nauert testified that J.S. told her during the examination that “her father

would put his diddle, which is what she called a penis, into her vagina and her rectum.” J.S. was
12

unclear on the time frame, but told the doctor that this happened on multiple occasions. Nauert

testified that X.S. told her that “her father touched her vaginal area on top of her clothes.” E.S. told

Nauert that his father “put his thing in [his] bottom. Orange stuff came on my body.” E.S. also told

the doctor about other incidents of sexual abuse by his mother and several cousins. Nauert testified

that her physical examinations of the children were normal and, although they were not inconsistent

with the reported abuse, they did not confirm it.

Complainants’ Testimony

J.S. testified that her parents were Kirby and CristySledge. She testified that her dad,

or Kirby, touched her “boobies” with his hands and put his “dick” inside her “hooch” and her “butt.”

She testified that this happened more than once, at both the trailer and the white house. J.S. testified

that her mother saw appellant touching her and took photographs. She also said that her grandfather

had touched her “hooch” with his hands. J.S. often contradicted herself. For example, she said that

she had alwaystold the truth about her parents, butshe latersaid thatshe lied when she told Burciaga

that her mother had touched her genitals. She also made contradictory statements regarding whether

or not she had seen appellant having sex with X.S. J.S. had not seen appellant for two years and

could not identify him in court. She identified State’s exhibit six, a photograph of appellant taken

two years earlier, as her father, KirbySledge. J.S. also testified about the death of “baby Kirby.” She

said that he “came out of my mama’s stomach wrong.” She also testified, however, that she saw

“baby Kirby” fall from the top of a bunk bed and hit the floor. She said that when this happened,

“there was blood coming down.”
13

X.S. testified that her father, who she also called Kirby, touched the inside of her

“coochie” with his fingers and put his “ding dong” inside her “butt.” She also contradicted herself,

saying later that appellant did not touch her “coochie” and always kept his “ding dong” covered.

X.S. was also unable to identify appellant at trial. She identified State’s exhibit six as a photograph

of her father, Kirby Sledge, and agreed that it showed “how Kirby looked the last time [she] saw

him.” During cross-examination, X.S. acknowledged that she did not always tell the truth to

the persons she talked to, but she said that she could not remember who she lied to. She also

remembered “baby Kirby” falling from the bed and cracking his head, although she said that she did

not see this happen.

E.S. testified that his father, Kirby Sledge, touched his “front part” and his “back part”

with his hand. E.S. also testified that appellant’s “front part” touched his “back part.” He said this

happened more than once. E.S. remembered telling the Contis that “Kirby put his front part inside

[E.S.’s] back part” and said that this statement was true. E.S. said during cross-examination that he

put his “thing” in his father’s “back side.” Like his sisters, E.S. was unable to identify appellant at

trial, but identified State’s exhibit six as a photograph of his father, Kirby Sledge.

E.S. testified that someone he did not identify took pictures of him and his sisters

while they were naked. He also said that Cristy and his “grandpa” touched him. E.S. initially

testified that he never saw anything happen to J.S. or X.S., but he said during cross-examination that

he had seen Kirby doing “bad stuff” with X.S. Also during his cross-examination, E.S. recalled

telling the Contis that Kirby and Cristy had sex with his grandfather and grandmother. He said that

he thought this happened because J.S. told him that it did.
14

Other Testimony

Detective Gerald Kim testified that he investigated the complainants’ statements that

they had been photographed while engaged in sexual activities. He said that he found no evidence

to confirm these statements. He added that all commercial photo developers contact the police when

they encounter child pornography.

Both the State and the defense called an expert witness. The State’s expert was

psychologist William Lee Carter. Carter testified that in assessing the credibility of a child’s outcry,

he considers whether the child’s later statements are consistent with the initial outcry. He also

considers “whose idea is it to tell.” That is, did the child volunteer the information or was the child

prompted by an adult. Carter also looks for “sensory detail”—descriptions of the details of sexual

acts that would not normally be within the child’s experience. Carter said that “[t]he world that these

abused kids come from is so chaotic that the stories that they tell are also 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 figure will commonly not make an outcry until they are placed into a new living situation

and have had time to develop a sense of trust in their new care givers. Carter testified that children

who are sexually abused are often neglected in other ways, and as a result they will display bad

manners, a lack of hygiene, and other behavioral problems.

The defense expert was psychologist Matthew Ferrara. Ferrara testified that the

younger the child, the more prone the child is to making a false outcry. He added that a child who

is developmentally disabled will be less mature than his or her biological age and thus more likely
15

to make a false accusation. Ferrara also described the danger of implanting false memories in young

children through repeated interviews and the use of leading questions. Ferrara criticized the use of

anatomically correct dolls, as had been used by the forensic interviewers in these cases, saying that

recent studies show that such dolls “actually suggest to a child what should be done or could be

done” and hence increase the likelihood of a false statement.

Two other defense witnesses—a family friend and appellant’s sister—testified that

J.S. had a vivid imagination, would fantasize, and was dishonest. Appellant’s half brother testified

that he had never seen any pornographic photographs of appellant’s children.

Discussion

By challenging only the factual sufficiency of the evidence, appellant effectively

concedes that the evidence in these causes is legally sufficient to sustain his convictions. See Clewis,

922 S.W.2d at 134. Nevertheless, appellant urges that when all the testimony is considered equally,

the evidence of guilt is so weak and so contrary to the great weight of the contrary evidence as

to make his convictions manifestly improper. The essence of appellant’s argument is that the

complainants’ outcry statements and trial testimony were not credible.

Appellant argues that the complainants had two motives to falsely accuse him

and his wife ofsexual misconduct. First, appellant suggeststhat the complainants were emotionally

distraught and angry with their parents over the death of their younger brother, “baby Kirby.”

Appellant notes that although it was undisputed that the child was stillborn at the hospital, both J.S.

and X.S. claimed to have seen the child at their home and remembered him falling from his bed.
16

Appellant urges that the children’s accounts of their sexual abuse at the hands of appellant and other

family members was similarly fanciful.

Appellant suggests that the complainants were further motivated to make false

accusations because they did not want to return to their natural family. He bases this argument on

the evidence describing the filthy conditions in which the children were living, their lack of

nourishment, and their developmental problems. He also points to the Contis’ testimony describing

the many gifts the children received while in their care. He notes that X.S. testified that she told the

Contis about the “bad touches” “[s]o [she] could have a good life.”

As further evidence of the complainants’ lack of credibility, appellant cites their trial

testimony: the difficulty they had in recalling events, the inconsistent statements, and the admissions

that they had made false statements in the past. Appellant also notes that in the journal she kept

while the complainants were living with her, Tracy Conti wrote that J.S. “lies so much it is very hard

to believe her with anything” and that J.S. “could lie with a serious face and at the same time swear

she didn’t lie.” Conti testified, however, that those remarks referred to incidents of misbehavior in

the home and not to J.S.’s sexual abuse outcries. Appellant also claims that E.S. was malleable and

suggestible, and simply repeated what J.S. told him. He argues that E.S.’s accounts became more

grandiose and fantastic as his testimony proceeded. Appellant points out that there was no physical

evidence of sexual abuse, and he also draws attention to the fact that the complainants were unable

to identify him at trial.

Appellant argues that there was a strong likelihood that the complainants had

developed false memories concerning the alleged abuse. Each of the complainants was interviewed
17

more than once at the Center for Child Protection, and the children were also shown to have

collectively discussed their outcries with each other and with the Contis. Tracy Conti testified,

however, that the group discussions in their home took place only after the children were

individually interviewed on videotape at the center. The forensic interviewers testified that

the children were never interviewed twice about the same subject; each interview related to a

different matter. Appellant’s argument also does not account for the complainants’ outcry statements

to their foster parents, which were as vivid and detailed as their trial testimony was vague and

inarticulate. Although appellant attempted to show that the complainants had seen sexually explicit

movies on cable television, the trier of fact could reasonably conclude that the details contained in

the outcry statements were strong evidence that the complainants were describing events that they

had actually experienced.

When conducting a factual sufficiency review, we must give due deference to the

jury’s determinations, particularly those concerning the weight and credibility of the testimony

and other evidence. Johnson, 23 S.W.3d at 9; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App.

1997). The jurors in these causes were able to watch the complainants as they testified and were in

the best position to decide whether they were frightened children doing their best to accurately

describe horrible events two or more years in the past, or confused children who had been misled

(inadvertently or otherwise) into making false accusations, or simply liars. The four not guilty

verdicts demonstrate that the jurors were prepared to find appellant not guilty if they believed that

an accusation was not proved. Considering all the evidence equally, we hold that the evidence

supporting the guilty verdicts is not so weak or so against the great weight and preponderance of the
18

other evidence as to make the findings of guilt clearly wrong or manifestly unjust. Point of error one

is overruled.

OUTCRY STATEMENTS

In his last point of error, appellant urges that the trial court erred by admitting

the complainants’ outcry statements to the Contis because the defense was not given the notice

required by statute. See Tex. Code Crim. Proc. Ann. art. 38.072 (West 2005). Broadly speaking,

article 38.072 exempts from the hearsay rule sexual abuse outcry statements made by children twelve

years of age or younger. One requisite for the admission of an outcry statement is that the offering

party notify the adverse party at least two weeks before trial begins Id. art. 38.072, § 2(b)(1).

Appellant argues that the State did not satisfy this notice requirement because no article 38.072

notice appears in the clerk’s records.

The only relevant objection voiced by appellant during the trial came during

Tracy Conti’s testimony. When the prosecutor asked her to relate the outcry statement J.S. made to

the Contis during the trip to the doctor, which the record elsewhere shows was on November 29,

2004, defense counsel approached the bench and said:

MR. FOX: From mymemory and my notes, the outcry notice I got was from

David Conti and the initial outcry, and hers was a—was a subsequent outcry. First

outcry is to the father. Can they establish the date that this happened? I wasn’t given

notice of this.

MS. MCFARLAND: I can do it through David. They were both there.

MR. FOX: I don’t know what she is going to say since I haven’t been given

notice of it.
19

MS. MCFARLAND: That’s fine.

MR. FOX: We can remove the jury.

MS. MCFARLAND: No, that is fine.

Resuming her questioning, the prosecutor asked Tracy to describe the outcry statement J.S. made

on December 2, 2004, which she did without further objection by the defense. The November 29,

outcry statement was later introduced through David Conti’s testimony.

This recitation from the record demonstrates that defense counsel was aware of the

November 29, statement, but had been notified that it would be offered through David Conti rather

than Tracy Conti. Appellant cites no authority holding that the notice required by article 38.072

must be filed and made a part of the clerk’s record, although that might be the better practice. The

record also demonstrates that rather than forcing the issue, the prosecutor wisely chose to wait

and, consistent with the notice given to the defense, introduce the November 29, statement through

David Conti.

The defense did not object to any other outcry testimony based on a lack of proper

notice. The comments of counsel quoted above show that notice of the outcry statements was given.

No error is presented. Point of error three is overruled.

CONCLUSION

In cause numbers D-1-DC-05-500011 and D-1-DC-05-500040, the judgments of

conviction are affirmed. In cause number D-1-DC-04-500557, the judgments of conviction on count
20

one, paragraph two and count two are affirmed, but the judgment of conviction on count one,

paragraph three is reversed and the prosecution of that paragraph is dismissed. 

__________________________________________

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed in part; Reversed and Dismissed in part

Filed: August 19, 2008

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