### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00299- CR

The State of Texas, App ellant

v. Ayoob Akteyarle e, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 390 TH JUDICI AL DISTRICT NO. D-1 -DC- 15- 9002 50, H ONO RAB LE JO N N. WI SSER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellee Ay oob Aktey arle e g uilty of “super ” ag g rava ted sexual assault of a child. See Tex. Pena l Code § 22.021(a) (2)( B) , (f) (1). Aktey arle e filed a motion for new trial, the trial court g rante d the motion, and the State appea led. I n four points of err or, the State contends that the trial court abused its dis cr et i o n i n g ranting the motion for new trial and that the written judgme nt of conviction should be modified to corr ect a cler ical err or. We will aff irm the trial court’s order g ranting the motion for new tr ial.

BACK GR OUND 1 At the time of the all ege d o ff en se, Aktey arle e and his wife Doris wer e living with A ktey arle e’s cousin, his c ousin’s wife, and his c ousin’s two children. His cousin’s daug hter,

The fac ts rec ited in this opinion are taken from the testimony and other evidenc e prese nted 1 at trial.M.A., was five y ear s old. On May 7, 2014, Doris called 911 and told the dispatcher that Aktey arle e 2 had sexually abused a child. The police never arr ived, and Doris called 911 ag ain. After the police still did not arrive, D oris made a third call and c ance lled her r equest. 3 Doris later repor

ted suspected sexual abuse to the Texas Depa rtment of Fa

mily and Protective Service s. Acc ording to Doris, M.A. told her about the abuse. Doris broug ht the alleg ed abuse to the a ttention of M.A.’s fa ther, who immediate ly kicked Akte y arle e out of the a partment. Aktey arle e was in d i ct ed on two counts of “super ” ag g rava ted sexual assault of a child and two counts of indece ncy with a child by contac t. M.A. testified at trial but did not identify Aktey arle e in c ourt or make any alleg ations of sexual abuse. The State did not call Doris to te stify
at trial but instead called Marisa DuB ose (sometimes spelled “De bose” or “De Bose ” in the rec ord),

a fore nsic interviewe r with the Center for Child Protection, who had interv i ew ed M

. A. Over Aktey arle e’s objection, the court desig nated DuB ose as an outcry witness and allowed her to testify

r e g a r d in g s ta te me n ts th a

t M

. A

. h a d ma d e d

u r in g th e in te r v ie w . S e e T e x. Co d e Cr im

. Pr o c . a r t. 3 8

. 0 7 2

. The jury found Aktey arle e g uilty of “super ” ag g rava ted sexual assault of a child, and the trial court sentenc ed him to 25 y ear s in prison. Aktey arle e then filed a motion for new trial, which the trial court g rante d afte r holding an evidentiar y hear ing. I n its finding s of fact and conclusions of law, the trial court deter mined that: (1) it improperly allowed DuB ose to testify as an outcry witness; (2) a juror who was a para leg al made incorre ct statements of law to the jury and
persua ded the jury to find Akt ey ar l ee g uilty , and these actions constituted an improper “outside

We refe r to M.A. by

her initials beca

use she is a minor. 2 Recording s of Doris’s three 911 calls wer e admitted into evidenc e at the hear i n g o n 3 Aktey arle e’s motion for ne w trial. 2influence ”; and (3) the evidenc e was insufficient for any rational juror t o find Aktey arle e g uilty

bey ond a re asonable doubt. This appeal f ollowed.

STANDARD OF REVIEW “A trial judge ’s decision to g rant a motion for new trial is revie wed only for an abuse

o f d is c r e ti o n . ” S

ta te v
. Za lm a n , 4 0 0 S. W. 3 d 5 9 0 , 5 9 3 ( T e x. Cr im

. A p p . 2 0 1 3 )

. We v ie w th e e v id e n c e in the light most favor able to the trial court’s ruling and uphold the ruling if it was within the zone of

rea sonable disag ree ment. W ebb v. State , 232 S.W .3d 109, 112 (Tex. Crim. App. 2007). Moreove r,

we presume that the trial court corr ectly g rante d a new trial, and the State has the burden to establish th e c o n tr a r y . S e e S ta te v
. Tr a h a n , N o . 1 4

- 1 5

- 0 0 4 7 2

- CR , 2 0 1 6 WL 2 6 9 1 6 2 , a t * 4 ( T e x. A

p p . — H o u s to n [14t h Dist.] J an. 21, 20 1 6 , p et

. ref ’d) (mem. op., not desig nated for publication) (citing State v. Sanders , 440 S.W .3d 94, 99 (Tex. App.—Houston [14t h Dist.] 2013, pet. re f’d) ).

A defe ndan t need not establish reve rsible err or as a matter of law befor e the trial
court may exercise its di s cretion to g rant a motion for new trial, but trial courts do not have discretion to g rant a new trial u n less the defe ndant demonstrates that the first trial was seriously f la w e d a n d th a t th e f la w s a d v e r s e ly a f f e c te d h is s u

b s ta n ti a l r ig h ts to a f a ir tr ia l. S e e S ta te v
. H e r n d o n , 215 S.W

. 3 d 9 0 1 , 9 0 9 (T ex . Crim. App. 2007). “The trial court, as fac tfinder, is the s ole j udg e of witness cre dibilit y at a hear ing on a motion for n ew t ri al with respe ct to both live testimony and aff idavits.” Okonk

wo v. Stat e , 398 S.W .3d 689, 694 (Tex. Crim. App. 2013). “Ac cording ly , the appellate court must aff

ord almost total defe renc e to a trial court’s finding s of historical fac ts as well as mix ed questions of law and fa ct that turn on an e valuation of c redibility and deme anor.” Id.

3DISCUSSIO N Acc ording to the trial court’s finding s of fac t and conclusions of law, Doris was the
proper outcry witness in this case and the court e rre d in desig nating DuB ose as an outcry witness. The court deter

mined that M.A. convey ed the “how, when, and wher e” of the alleg ed sexual assault
t o Doris and that M.A. made these statements to Doris befor e she discussed the alleg ed abu s e with DuB ose. I n its third point of error, which we address fir st beca use it is dispositi ve, the State contends that the trial court abused its discretion in g ranting a new trial b as ed o n t h e court’s conclusion that it had err ed i n allowing DuB ose to testify as an outcry witness and that this err or harme d Aktey arle e.

Article 38.072 of t he Te x as Code of Crimi nal P roce dure, also known as the out cry statute, cre ates a hear say exception in the prosec ution of cer tain sexual offe nses ag ainst children for the admission of a child’s first outcry of sexual abuse to an adult. Tex. Code Crim. Proc. art. 38.072; Bays v. State , 396 S.W .3d 580, 581 n.1 (Tex. Crim. App. 2013). The outcry statute applies only to out-of-c ourt statements that: (1) descr ibe the alleg ed offe nse; (2) are made by the child; and (3) are

m ad e t o t h e first person, 18 y ear s of ag e or older, other than the defe ndant, to whom the chil d made a statement about the offe nse. Tex. Code Crim. Pro c. ar t

. 3 8.072 § 2(a) ; Mims v. State , No

. 03-13-00266- CR, 2015 WL 7166026, at *2 (Tex. App.—Austin Nov. 10, 2015, pet. ref ’d) (mem. op., not desig nated f or publication). Although the outcry statute provides that the proper outcry witness is the “first” adult
to whom a child made a statement about the offense, the court of criminal appeals has interpre ted that provision to mean the first adult “to whom the child makes a statement that in some discernible

4manner descr ibes the alleg ed offe nse.” Garcia v. State , 792 S.W .2d 88, 91 (Tex. Crim. App. 1990).

“[T] he statement must be more than words which g ive a g ener al allusion that something in the are a of child abuse was going on.” Id. I f t he ini tial statement t o an adult convey ed nothi ng more th an

a “g ener al allusion” of ab u s e, then the rec ipient of a subsequent, detailed statement should be desig nated as the outcry witness, even though that person technica lly was not the first adult to whom th e c h il d r e v e a le d th e o f

f e n s e . S e e M im s , 2 0 1 5 WL 7 1 6 6 0 2 6 , a

t * 2 ; Th o m a s v
. S

ta te , 3 0 9 S. W. 3 d 5 7 6 , 579 (Tex. App.—Houston [14t h Dist.] 2010, pet. ref ’d). This require ment allows the State to prese nt outcry testimony th at descr ibes the char g ed offe nses in a “disce rnable manner ,” even though the child may have previously made g ener al al l u s i o ns reg arding the offe nse to another adult. See Garcia , 792 S.W .2d at 91. Gene rally speaking , the proper outcry witness is the first adult to whom the complainant descr ibes “how, when, and wher e” the abuse occur red. See Gar ci a v. State , No. 0 3

- 1 4 -00269-CR, 2016 WL 1691218, at *1 (Tex. App.—Austin Apr. 22, 2016, pet. ref ’d) (mem.
op., not desig nated for publication); Rey es v. State , 274 S.W .3d 724, 727 (Tex. App.—San Antonio 2008, pet. re f’d)

.

M o re o v er, beca

use outcry witnesses are event- specific , the hear say exceptio n permits testimony of multipl e outcries if they reg ard discrete occur renc es or discrete events of abuse and are not mere ly a repe tition of the same event told to differ ent individuals. See Dorsey v. State , No. 03-10-00039- CR, 2010 WL 3810830, at *3 (Tex. App

. — Au s t i n Sept. 30, 2010, pet. ref ’d) (mem. op., not desig nated for publication); see also Brown v. State , 189 S.W .3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref ’d) (“[B]efor e more than one outcry witness may testify , it must be deter mined the outcry conce rned differ ent events and was not simply a repe tition of the same event told to differ ent individuals.”); Hernande z v. State , 973 S.W .2d 787, 789 (Tex. App.—Austin 1998,
5pet. ref

’d) (“[M]ul t i p l e outcry witnesses may testify reg arding discrete instances in which the d e f e n d a n t c o mm it te d th e c h a

r g e d c o n d u c t a g a in s t th e v ic ti m. ” )

. T h e r e ma y b e o n ly o n e o u tc r

y w it n e s s abou t a s i n gl e event. Garza v. State , No. 03-04-00508- CR, 2006 WL 2706964, at *5 (Tex. App.—Austin Sept. 21, 2006, pet. re f’d) (mem. op., not desig nated f or publication). An appellate
court revie ws the admission of outcry -witness testimony under an abuse- of-discr etion standard and

m u st deter

mine whether any err oneously admitted testimony aff ecte d the defe ndant’s subs t an t i al rig hts. See D orsey , 2010 WL 3810830, at *4; see also Tex. R. App. P . 44.2(b).

I t is undisputed that Doris was the fi rs t person at least 18 y ear s old other than the defe ndant whom M.A. told a bout the alleg ed abuse. There fore , Doris was the only outcry witness
to whom article 38.072’s hear say ex ce p t i o n wo uld apply , and the trial court err ed in allowing DuB ose to prese nt hear say testimony , unless M.A. did not convey the “how, w here , and whe n” of the offe nse to Doris in a discernible manner or unless M.A. descr ibed a separ ate offe nse to DuB ose. See Tex. Code Crim. Proc. art. 38.072 § 2(a) ; Garcia , 2 016 WL 1691218, at *1; Hernande z , 973 S.W .2d at 789.

The trial c ourt was pr esente d with evidence that M.A. told Doris the following :

• Aktey arle e took M.A. to his bed in his room. He then remove d their clothes and tried to g et his “babool” (or “baboul” ) into her “babool.” (M.A. used the term “ba bool” to ref

er to their se x ual org ans.)

• Aktey arle e set M.A. on his “thing ” and it was “re al hard” and “it felt g ood.”

• Aktey arle e “pla

y ed with [M.A.’s] babool and it tickled and it fe lt good.”

• Aktey arle e told M.A. that they wer e play ing a g ame and that M.A. should not tell her par ents.

6• Aktey arle e and M.A . wer e “pla y ing w ith their parts.”

• This happene d multipl e times and that it “we nt on ever y day .” I t happene d when the family was out shopping and Aktey arle e was wa t ch ing M.A. and her br other.

Vi ew i ng this evidenc e in the light most favor able to the trial court’s ruling , we conclude that the trial court did not abuse its discretion in deter mining that this outcry convey ed the “how, wher e, and when” of the alleg ed abuse. Acc ording to M.A.’s outcry to Doris, Aktey arle e would place M.A.’s sexual org an on his ere ct penis in his bedroom wh i l e M

. A.’s pare nts wer e
out of the home. Although penetr ation is not expli citly mentioned, it is rea so n ab l y i n ferred from the fact that Aktey arle e “set” M.A.’s exposed sexual org an on his ere ct penis and “tr i ed to g et hi s [sex ual orga

n] into hers.” See Chapman v. Stat e , 150 S.W .3d 809, 813–14 (Tex. App.—Houston [14t h Dist.] 2004, pet. ref ’d) (conc luding child’s mother was proper outcry witness when child told mother that defe ndant “tried to ‘stick’ his ‘private part’ in her ‘behind,’” even though mother could
not provide “a date cer

tain” when the alleg ed offe nse occur red)

. Be cause M.A.’s descr iption of the alleg ed abuse to Doris was more than a “g ener al allusion” and “in some discernible manner descr ibes the allege d offe nse,” the trial court did not abuse its discretion in conc l u d i n g t h at article 38.072’s hear say exception applied to Doris. See G arcia , 792 S.W .2d at 91. The State never

theless cont e n d s th a

t th e o u tc r y M .A. later made to DuB ose conce rned a diffe rent instance of abuse . Among other thing s, M.A. told DuBose the following :

• Aktey arle e “pla

y [ed] mean” on M.A.’s “be lly boot” (sexual org an).

• Aktey arle e “put his thing ” inside M.A.

7• This happene d in Aktey arle e’s r oom.

• I t felt “mea

n” to M.A. and hurt her w hen Aktey arle e put his “belly boot” in her “ belly boot.”

• When Aktey arle e put his “belly boot” inside M.A., he wig g led his body and brea thed hea

vily

.

• M.A. could not move beca use Aktey arle e was hol d i n g h er tightly with his leg s.

• This happene d more than onc e.

• Aktey arle e told M.A. not to tell any one.

• M.A. told Doris about the alleg ed abuse

.
We conclude that the trial court did not abuse its discretion in deter mining that “[M.A.’s] statements
to [DuBose] rela

ted to the same alleg ed conduct as her statements to Doris.” I n both M.A.’s acc ount
to Doris and her acc ount to DuB ose, M.A. alleg ed t h at Ak t ey arle e penetr ated her sexual org an with his sex ual org an in his bedroom on multiple occa sions. 4

Unlike in case s that the State cites, M.A. repor ted the same abuse to Doris and to DuB ose. 4 Cf. Pierce v. State , No. 10-09-00320- CR, 2010 WL 2683052, at *2 (Tex. App.—Waco J uly 7, 2010, no pet.) (mem. op., not desig nated for publication) (holding that trial cour t d i d n o t abuse its discretion in failing to sustain appellant’ s objection to outcry witness’s testimony when witness was first person whom victim had told that defe ndant penetr ated victim’s sexual org an with his tongue ); Garza v. State , No. 03-04-00508- CR, 2006 WL 2706964, at *5 (Tex. App.—Austin Sept. 21, 2006, pet. ref ’d) (mem. op., not desig nated for publication) (holding that fore nsic interviewe r was proper outcry witness when she was first adult whom victim told that appellant had penetr ated her g enitals); Turner v. State , 924 S.W .2d 180, 183 (Tex. App.—Eastland 1996, pet. ref ’d) (holding that counselor was not outcry witness when victim told counsel o r t h at appellant penetr ated her vag ina with his fing er but did not say

that appellant pe netra ted her with his penis). We also note that in closing arg ument to t h e jury , the State arg ued that M.A.’s outcry to Doris was e ssentially

the same a s her outcr

y to DuBose : And here , althoug h littl e [M.A.] , and we’ ll g et to her in a littl e bit, althoug h littl e 8The State also arg ues that the trial court did not err in allowing DuB ose to testify as

an outcry witness beca

use “[t] here is no evidenc e that Doris would have rela ted the outcry at trial.” Acc ording to the State, “the evidenc e at trial showed that Doris moved to a differ ent state, ref used
to cooper ate with the police, era sed a rec ording of [M.A.’s] outcry , and said that she would not say

a word if she was put on the witness stand.” Howeve r, it was the State’s burden to obtain evidenc e ag ains t Aktey arle e, not the defe nse’s burden, and the State has not demonstrated that it took all

rea sonable steps to e nsure that Doris would be available to testify at trial. Moreove r, althoug h the State prese nted jail calls in which Doris told Aktey arle e that she would not say any thing in court to incriminate him, the State has not shown that Doris would follow throug h with those promises under oath or that the State would not ha ve been able to impeach Dor is with her prior statements. 5
I n sh o rt , we ar e not persua ded that the S tate has established that Doris was unable to testify as an outcry witness. Having conclude d that the trial court did not abuse its discretion i n d eter mining that Doris was the proper outcry witness and that M.A. later repor ted the same abuse to DuB ose, we
next consider whether the trial court abused i t s d iscretion in deter mining that its err or aff

ecte d Aktey arle e’s substantial rig hts. See Tex. R. App. P. 44.2(b). We ag ree with the tri al co u rt t h at
[M.A.] didn’t tell y ou about the pene tration, she told [DuBose], and [DuBose] told y ou that [M.A.] said that. And throug h [DuBose], [M.A.] told y ou what happene d. An d [ M .A.] also—[M.A.] was consistent, beca use she told Doris some very —the core elements. She told y ou who: [Aktey arle e]; she told y ou wher e: His room in the old apar tment; she told y ou what body parts we re use d, their balbouls , and she ha d indicated to [DuBose] the front part and not the back part, and she told Doris that it was the sa

me ac t: Put ting his balboul in my balboul . She was c onsistent. This is espec ially true in l i gh t o f t h e fac t that Doris was the one who initially called the 5 police to re port Aktey arle e’s a lleg ed abuse

. 9the er ro r d id harm Aktey arle e. Be cause M.A. did not testify that Aktey arle e had sexually abused

her and beca

use Do ri s d id not testify at all, the evidenc e would have been insufficient to support Aktey arle e’s conviction if the trial court had excluded DuB ose’s hear say testimony

. See Owens v. S ta te , 9 1 6 S. W. 2 d 7 1 3 , 7 1 9 ( T e x. A p p . — Wa c o 1 9 9 6 , n o p e t. ) ( h o ld in g th a t a p p e ll a n t’ s tr ia l c o u

n s e l’ s defic ient perf

ormanc e u n d ermined confide nce in jury verdic t beca use, absent err or, evidenc e would have be en insuffic ient to support conviction).

For these rea sons, we hold that the trial court did not abuse its discretion in g ranting

a new trial on the g round that it err ed in allowing DuB ose to prese nt hear say testimony and that this

err or har med Aktey arle e. Ac cording ly , we ove rrule the State’s third point of err or. 6

Be cause the trial court did not abuse its discretion in g ranting the motion for new trial on 6 this g round, we need not addre ss the State’s second point of err or, which challeng es the trial court’s gra n t o f a n ew trial based on the allege d juror mi sconduct, or its fourth point of error, which asks t h i s C o u rt t o modify the judgme nt of conviction to corr ect a cler ical err or. See State v. Trahan , No. 14-15-00472- CR, 2016 WL 269162, at *4 (Tex. App.—Houston [14t h Dist.] J an. 21, 2016, pet. ref ’d) (mem. op., not desig nated for publication) (noting that appellate court will uphold trial court’s order g ranting motion for new trial if any appropr iate g round exis ts to s u p port it) (citing State v. Sanders , 440 S.W .3d 94, 99 (Tex. App.—Houston [14t h Dist.] 2013, pet. re f’d) ). Howeve r, we arg uably must addre ss the State’s first point of err or, which challeng es the trial court’s g rant of a new trial based on its conclusion that the evidenc e was insufficient to support Aktey arle e’s conviction, beca use, wer e we to conclude that the e v id e n c e w a s in sufficie nt, Aktey arle e would be entitled to an a cquittal. See Curry v . State , 30 S.W .3d 394, 404 (Tex. Crim. App. 2000) (“I f the evidenc e is insufficient to support Curry ’s conviction, the reme dy is acquittal. That reme dy is g rea ter than simply g ranting Curry a new trial.”). To the extent that we must consider this issue, and assuming without deciding that Aktey arle e was require d to and did prese rve err or on this issue, we conclude that the evidenc e was sufficie nt to support Aktey arle e’s conviction. I n revie wing the le g al sufficie ncy of the evidenc e supporting a conviction, appellate courts consider “ all evidenc e that the trier of fac t was permitted to consider, reg ardle ss of whether it was rig htly or wrong ly admitted.” Demond v. State , 452 S.W .3d 435, 445 (Tex. App.—Austin 2014, pet. re f’ d ) (e m phasis added)

. Ther efor e, we must consider DuB ose’s testimony , even if she prese nted inadmissible hear say t es t imony

. DuB ose testified that M.A. told her that Aktey arle e penetr ated her sexual org an with his sexual org an on multipl e occa sions in his bedroom. We conclude that DuB ose’s t es t i mony 10CONCLUSION We affir m the trial court’ s order

g ranting Aktey arle e’s motion for ne w trial.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: De cembe r 7, 2016 Do Not Publish

constituted sufficie nt evid en ce t o support Aktey arle e’s conviction beca use it would allow a rea sonable jury to find that Aktey arle e had committed eac h element of the char g ed offe nse bey ond a re asonable doubt. See B rooks v. State , 323 S.W .3d 893, 895 (Tex. Crim. App. 2010). 11