TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00030-CR

Sean Anderson, Appellant

v. 

The State of Texas, Appellee

FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-22-904055, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

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

 A jury found Sean Anderson guilty of aggravated sexual assault of Bella1, who 

was younger than six years old. See Tex. Penal Code §§ 22.011, .021. The jury assessed 

punishment at thirty-one years in prison. See id. § 22.021(f). Anderson complains that the trial 

court erred by admitting an outcry statement and asserts that the trial court erred in admitting the 

hearsay statement of the child from her medical records. We will affirm the judgment.

DISCUSSION

Outcry Statement

 By his first point of error, Anderson contends that the trial court erred by 

admitting an outcry statement made by Bella to forensic investigator Grace Moon when the 

indicia showed that Bella did not understand the need to tell the truth and did not have the ability 

1

 Bella is a pseudonym. 
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to observe, recall, and narrate the events. “Because it is often traumatic for children to testify in 

a courtroom setting, especially about sexual offenses committed against them, the Legislature 

enacted [Texas Code of Criminal Procedure] Article 38.072 to admit the testimony of the first 

adult a child confides in regarding the abuse.” Gibson v. State, 595 S.W.3d 321, 325 (Tex. 

App.—Austin 2020, no pet.) (quoting Martinez v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. 

App. 2005)). The outcry witness’s testimony will not be excluded as hearsay if “the trial court 

finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based 

on the time, content, and circumstance of the statement.” See Tex. Code Crim. Proc. art. 38.072,

§ 2(b)(2). We review a trial court’s admission of testimony from an outcry witness for an abuse

of discretion. Gibson, 595 S.W.3d at 325 (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. 

App. 1990)).

Indicia of reliability that the trial court may consider include (1) whether the child 

victim testifies at trial and admits making the out-of-court statement; (2) whether the child 

understands the need to tell the truth and has the ability to observe, recollect, and narrate;

(3) whether other evidence corroborates the statement; (4) whether the child made the statement 

spontaneously in the child’s own terminology or whether evidence exists of prior prompting or 

manipulation by adults; (5) whether the child’s statement is clear and unambiguous and rises to 

the needed level of certainty; (6) whether the statement is consistent with other evidence;

(7) whether the statement describes an event that a child of the victim’s age could not be 

expected to fabricate; (8) whether the child behaves abnormally after the contact; (9) whether the 

child has a motive to fabricate the statement; (10) whether the child expects punishment because 

of reporting the conduct; and (11) whether the accused had the opportunity to commit the 
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offense. Norris v. State, 788 S.W.2d 65, 71 (Tex. App.—Dallas 1990, pet. ref’d); Buckley

v. State, 758 S.W.2d 339, 343-44 (Tex. App.—Texarkana 1988, no pet.).

At the pretrial hearing on the admissibility of the outcry statement, Bella’s mother 

testified that she noticed “something inappropriate going on with my boyfriend at the time and 

my daughter.” Anderson was her boyfriend, and her daughter Bella was four years old at the 

time. Bella’s mother testified that, after noticing the inappropriate action, she asked Bella only if

she took her clothes off or if Anderson did; she could not at trial remember Bella’s answer. She 

called the police and later took Bella to the Center for Child Protection for a forensic interview.

Forensic investigator Moon testified that she had two sessions with Bella the day

of the incident. She described Bella as initially playful, though when Moon broached the topic 

of Bella’s body as a subject, Bella “kind of closed down a little bit and would cover herself and 

said she didn’t want to talk about that.” Moon said that Bella’s demeanor “changed 

dramatically” when asked about her body parts. Moon testified that, after a break, Bella “talked 

about being touched in the part that she goes pee with, the part that he goes with, ‘he’ being 

[Anderson], that he was slapping her against him and that she was under the bed when this 

happened.” Bella said that she was lying on her back and that Anderson pulled her toward him 

and took off her clothes. Anderson was not wearing any clothes, and she could see “[t]he part 

that he goes pee and his butt.” She described the noise they made when they were touching as 

“clapping.” Moon testified that Bella said that when her mother saw what was happening, “[h]e 

got off of her.”

Moon testified that she asked questions to determine whether Bella would tell the 

truth. Moon marked in her notes that Bella said she knew what the truth was, though she later 

told Moon she forgot what it means to tell the truth. Bella correctly identified the wall color and
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said that someone who said it was a different color would be telling a lie. But when Moon asked 

Bella the color of Moon’s car, Bella responded “red” even though she had no way of knowing its 

color; when told she should not guess about things she did not know, Bella nevertheless again 

said Moon’s car was red. Moon asked Bella what her “ocular hue” was and, when Bella did not 

respond immediately, Moon reminded Bella not to guess if she did not know the words in a 

question or the answer to a question. Moon said Bella did not acknowledge the distinction.

At the close of the pretrial examination, the trial court found that Bella’s outcry 

statement made to Moon was reliable based upon its time, content, and circumstances. The trial 

court recited the relevant standard. See Tex. Code Crim. Proc. art. 38.072. While Bella’s 

persistence in guessing the color of Moon’s car and hesitation to ask for help understanding an 

unfamiliar term may have weighed against the reliability of Bella’s outcry, they are balanced by 

evidence that she understood the difference between the truth and a lie. That conflict was an 

issue for the trial court to assess when determining the reliability of the child’s statement 

regarding an alleged recent assault. On the record presented, we cannot say that the court abused

its discretion by finding the outcry statement reliable after the hearing conducted outside the 

presence of the jury.

We note further that the trial court questioned Bella herself at trial and found that 

she knew the difference between a truth and a lie. Though she then testified that she did not 

remember or recognize Anderson, her inability to recognize or remember Anderson does not 

show that the trial court erred in admitting her outcry statement based on the Norris factors. 

Further, the jury could weigh her inability to remember or recognize Anderson at trial in their 

consideration of the outcry testimony and her hearsay statements contained in it.
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The portions of the outcry testimony Anderson cites do not demonstrate that the 

trial court abused its discretion in admitting the outcry. Moon testified that at one point Bella 

said that Anderson was sitting on the child, which Anderson asserts was “impossible.” Anderson 

deems “highly improbable” Bella’s reported statement that, while she was lying under the bed on 

her back, Anderson “pulled her towards him and got her clothes [off], got on her, and the part 

where she goes pee touched the part where he goes pee and that he was slapping her against 

him.” Moon reported that, when asked whether the contact hurt, Bella said “she didn’t feel 

anything,” which Anderson again deems “impossible.” We do not find Anderson’s 

characterization of this testimony persuasive. The fact that a four-year-old girl who noticeably 

withdraws when asked about someone touching her says she “didn’t feel anything” when asked 

if the contact hurt does not render her outcry statement unreliable. Especially in light of Bella’s 

mother’s testimony, the trial court did not abuse its discretion by admitting the outcry as reliable.

Bella’s mother testified that she and her daughters were visiting Anderson’s 

apartment on the day of the assault. When visiting, she preferred to keep the girls in Anderson’s 

bedroom with her so she could monitor them rather than leave them in the areas shared with 

Anderson’s roommates. There was a pallet underneath the bed where the children could nap if 

needed. She testified that, when she and Anderson had “intimate time,” the girls would often be 

at the computer desk playing games or watching cartoons. Bella’s mother testified that, on the

day of the assault, she was lying on her back near the edge of the bed with a blanket over her 

while Anderson knelt beside the bed and performed oral sex on her. At some point, she began to 

hear “wet noises down on the ground” that were not coming from her, so she sat up to 

investigate. Bella’s mother testified that she saw that Anderson did not have his pants on and 

that Bella was across his lap with no pants on; Bella’s mother testified that she could not 
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remember whether Bella had on underwear but also that she could see Bella’s bare bottom. She 

testified that Anderson quickly moved Bella to the side and put her pants on. Bella’s mother 

testified that Anderson said there had been no penetration. This description paralleled Moon’s 

testimony on Bella’s description of the assault as well as Bella’s statement that her younger sister

was watching something on the computer at a desk in the bedroom, that Bella was under the bed 

because her mother had told her to lie under the bed, and that her mother was on top of the bed. 

Though the trial court had already made its reliability decision before trial, the consistency of 

Moon’s testimony with Bella’s mother’s testimony supports the reliability of the outcry 

statement. See Norris, 788 S.W.2d at 71. The vocabulary of the child’s statement, Bella’s

withdrawal on the mention of the touching, and Anderson’s opportunity to commit the offense as 

described all support the court’s decision on reliability. See id. We overrule point of error one.

Medical Records

By his second point of error, Anderson contends that the trial court erred in 

admitting Bella’s hearsay statement from her medical records because there was an indication 

that she did not know the importance of being truthful. Anderson did not raise this or any other 

objection to the admission of the medical records or the testimony of the sponsoring Sexual 

Assault Nurse Examiner Kim Sanchez. Because Anderson did not raise this objection at trial, his 

second point of error is waived. See Tex. R. App. P. 33.1(a); Fernandez v. State, 805 S.W.2d 

451, 455-56 (Tex. Crim. App. 1991) (failure to timely object waives error, and hearsay admitted 

without objection is probative evidence). Further, there is no indication in the medical records or 

Sanchez’s testimony that Bella did not know the importance of being truthful. We have already 
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concluded that the trial court did not abuse its discretion by concluding that Bella’s outcry 

statement to the forensic investigator was reliable. We overrule point of error two.

CONCLUSION

We affirm the judgment of conviction.

__________________________________________

Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Baker and Kelly

Affirmed

Filed: August 9, 2023

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