Affirmed and Opinion filed April 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00209-CR

JOEL CONTRERAS OLVERA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1648504

OPINION

In this appeal from a conviction for aggravated sexual assault of a child, 

appellant complains in two issues about the trial court’s designation of an outcry 

witness and about the trial court’s refusal to instruct the jury on a lesser-included 

offense. For the reasons given below, we overrule both of these issues and affirm the 

trial court’s judgment.
2

BACKGROUND

When she was seventeen years old, the complainant disclosed to her mother 

that, many years earlier, she had been inappropriately touched by appellant, who is 

her uncle. The complainant made this disclosure in general terms, without 

specifically identifying where or how the touching had occurred.

The mother contacted authorities, and the complainant later gave a more 

detailed statement to a detective. The complainant told the detective that appellant 

had abused her multiple times over the years. The first incident of abuse occurred 

when she was eight or nine years old, when he tried to put his penis in her anus. On 

subsequent occasions, appellant put his penis in her mouth, he forced her to touch 

his penis with her hand, and he fondled her vagina over her clothes.

Despite these several instances of sexual abuse, appellant was indicted on a 

single charge of unlawfully causing the complainant’s anus to contact his sexual 

organ. Appellant pleaded not guilty to that charge, and his case proceeded to a trial 

by jury.

The complainant was twenty-one years old at the time of trial, and she was 

the first witness to take the stand. She testified that the charged incident began when

appellant chased her around a dining table, picked her up, and carried her to a guest 

room, where he pinned her face down on the bed and removed her skirt and 

underwear. The complainant said that appellant then tried to penetrate her anus with 

his penis, but that he let her go when she requested to use the restroom. She also said 

that the attempted penetration was very painful, and that it caused a tear, which in 

turn caused her to bleed for months because the tear would reopen whenever she did 

use the restroom. 
3

The complainant explained that she did not timely report the abuse because 

she was in shock that it had even occurred. She gave similar statements regarding 

the other instances of abuse, explaining that she was too embarrassed to say 

anything, or she feared that she would not be believed, or she was afraid that a 

disclosure would cause a rift in the family. The complainant said that she finally

came forward because she came to believe that appellant might abuse even younger 

children.

The detective testified after the complainant left the stand. Over a defense 

objection, the trial court had previously found in a hearing conducted outside the 

presence of the jury that the detective qualified as an outcry witness. The detective 

accordingly testified about the complainant’s outcry statements from her initial 

interview. Those statements were consistent with the complainant’s trial testimony, 

though they were not nearly as detailed.

Appellant also testified. He denied the allegations against him, but the jury 

found otherwise and convicted him as charged. The jury also assessed his 

punishment at ten years’ imprisonment.

OUTCRY WITNESS

At the end of the outcry hearing, the defense argued that the purpose of having 

an outcry witness was to protect a child from the trauma of having to testify about a 

sensitive matter in open court. The defense then argued that the detective should not 

be designated as an outcry witness because his testimony would not spare a child 

from testifying, since the complainant was already an adult. The defense further 

argued that the detective could not qualify as an outcry witness because, at the time 

of her outcry, the complainant was more than seventeen years of age—and in the 

defense’s view, the complainant was not a child for purposes of the outcry statute.
4

The trial court overruled these arguments and allowed the detective to testify 

as an outcry witness. Appellant now challenges that ruling in his first issue on appeal.

We review the trial court’s designation of an outcry witness for an abuse of 

discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). Under 

this standard, we defer to the trial court’s determination of historical facts that are 

supported by the record, as well as to any mixed questions of law and fact that turn

upon an evaluation of credibility and demeanor, but we consider de novo any purely 

legal questions. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Appellant argues that the trial court abused its discretion by designating the 

detective as an outcry witness because, according to him, the outcry statute permits 

such a designation only when, at the time of the outcry, the child declarant is under 

the age of seventeen, which was not the situation here. The State counters that the 

outcry statute has no such qualification. To settle this disagreement, we must engage 

in a matter of statutory interpretation, which is a purely legal question. See Druery 

v. State, 412 S.W.3d 523, 533 (Tex. Crim. App. 2013).

The statute at issue is Article 38.072 of the Texas Code of Criminal Procedure, 

and it provides an exception to the hearsay rule. The exception applies only to 

statements that “(1) describe . . . the alleged offense; . . . (2) were made by the 

child . . . against whom the charged offense . . . was allegedly committed; and 

(3) were made to the first person, 18 years of age or older, other than the defendant, 

to whom the child . . . made a statement about the offense.” See Tex. Code Crim. 

Pro. art. 38.072, § 2.

Nothing in this text expressly requires the declarant to have been under the 

age of seventeen at the time of the outcry, as appellant has argued. The text merely 

states that the declarant must have been “the child . . . against whom the charged 

offense . . . was allegedly committed.” Id.
5

Nevertheless, appellant argues that the “child” in this provision must refer to

a person younger than seventeen years of age, and for several reasons. He relies in 

part on the Penal Code statute for aggravated sexual assault, which specifically 

defines the word “child” as “a person younger than 17 years of age.” See Tex. Penal 

Code § 22.021(b)(1) (assigning this term the same definition as provided by Tex. 

Penal Code § 22.011(c)(1)). But that definition applies to usages “in this section”—

not to usages in the outcry statute, which is separately codified in the Code of 

Criminal Procedure.

Appellant also relies in part on another provision within the outcry statute, 

which states that the child declarant must have made her outcry to a person “18 years 

of age or older.” See Tex. Code Crim. Proc. art. 38.072, § 2(a)(3). Appellant argues 

that the legislature could have similarly defined the term “child” with a bright line 

rule—for example, as a person younger than “18 years of age.” But because the 

legislature did not enact the outcry statute with such a bright line rule, he construes 

the term “child” even more restrictively, as a person younger than seventeen years 

of age. Appellant supplies no authority for this argument, and we do not agree with 

it.

Because the term “child” is undefined, it must be given its usual meaning. See 

Tex. Code Crim. Proc. art. 3.01 (“All words, phrases and terms used in this Code are 

to be taken and understood in their usual acceptation in common language, except 

where specially defined.”). Black’s Law Dictionary defines the word as “an 

unemancipated person under the age of majority”—i.e., as a person under the age of 

eighteen. That dictionary definition conforms with the common understanding of the 

word, and with how other courts of appeals have applied the outcry statute. See 

Gutierrez v. State, 630 S.W.3d 270, 278 (Tex. App.—Eastland 2020, pet. ref’d) (“If 

an outcry is a statement made to the first person that is eighteen years of age or older 
6

under Article 38.072, section 2(a)(3), then a person under the age of eighteen is a 

child under section 2(a)(2).”); Harvey v. State, 123 S.W.3d 623, 629 (Tex. App.—

Texarkana 2003, pet. ref’d) (“Therefore, we hold that, for Article 38.072 to apply, 

not only must the offense have been committed against a child . . . , but also the 

victim, while still a child—that is, not having reached his or her eighteenth 

birthday—must have confided the details of the ordeal to a person eighteen years of 

age or older.”). We join those courts in concluding that an outcry witness may be 

designated when the child declarant is younger than eighteen years of age at the time 

of the outcry.

Because there was affirmative evidence that the complainant here was 

seventeen years old at the time of her outcry, she qualified as a child declarant under 

the outcry statute, and the trial court did not abuse its discretion by designating the 

detective as the outcry witness.

LESSER-INCLUDED OFFENSE

During the charge conference, the defense requested an instruction on a lesserincluded offense. The trial court denied the request in the following exchange:

The Court: Have you had an opportunity to review the proposed 

charge?

Defense: Yes, we have. And Defense is simply respectfully 

requesting the lesser includeds of indecency by contact 

and indecency by exposure.

The Court: We have indecency by exposure in there, but what is the 

contact? Because there’s not any evidence in the record 

with regard to her genitals being touched in connection 

with the indicted charge, and it’s got to be a lesser included 

offense of what’s in the indictment.

Now, the extraneous act, where she did say that her vagina 

was touched, he’s not charged with that. He’s only charged 

with what’s in the indictment, and I think indecency by 
7

exposure is in evidence. So I think that’s the proper lesser 

included offense.

Defense: Okay. So our request is denied?

The Court: Yes, unless you can convince me otherwise.

Defense: Yes, sir. Thank you, Judge.

Appellant now argues in his second issue that the trial court reversibly erred 

by denying his requested instruction on the lesser-included offense of indecency by 

contact. The State responds that this issue is not preserved. We agree with the State.

To preserve a complaint that the trial court erred by refusing to submit an 

instruction on a lesser-included offense, the defendant must point to the specific 

evidence that negates the greater offense but supports the lesser offense, unless such 

specific evidence is manifest. See Williams v. State, 662 S.W.3d 452, 462 (Tex. 

Crim. App. 2021).

The evidence in support of the requested lesser-included offense was not 

manifest here, as appellant testified that he never assaulted the complainant or 

touched her in an inappropriate manner. And when the trial court prompted the 

defense for any evidence that might support the requested instruction, the defense 

supplied none. (Similarly on appeal, no such evidence has been cited in appellant’s 

brief.) By not alerting the trial court to the specific evidence in support of his 

requested instruction, appellant failed to preserve any error in the trial court’s refusal 

to include that instruction in the jury charge. Id.

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher

Chief Justice 
8

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

Publish — Tex. R. App. P. 47.2(b).