### 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 Bella 1 , who

was younger than six years old

. See Tex. Penal Code § § 22.011 , .021

. T he jury assessed punishment at thirty

- one years in prison. Se e id. § 22.021(f)

. Anderson complains that the tr ial court erred by admitting an out cry 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 St a te ment By his fir st po int of error, Anderson contends that the trial court erred by admitting an outcry statement made by Bella to forensic invest ig ator Grace Moon when the
i ndicia showed that Bella di d not understand the need to tell the truth and di d n ot have the ability

1 Bella is a pseudonym.2 to observe , recall, and na rrate the events

. “ Because it is often traumatic for children to testify in a courtroom setting, especially about sexual offe nses committed against them, th e Legislature enacted [ T exas Code of Criminal Proc edu re ] A rticle 38.072 to admit the testimony of t he 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 , 1 78 S.W.3d 806, 810

- 11 (Tex. Crim. App. 2005)). Th e o ut cry witne ss ’ 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, conten t, an d c ircumstance of the statement. ” See Tex. Code C rim

. P roc. art

. 38.072 , § 2(b )(2). We review a t rial court ’ s admission of testimony from an outcry witness for an abuse of discretion

. Gi bson , 595 S.W.3d at 325 (citing Garcia v. State , 792 S.W.2d 88, 92 (Tex. Crim. App. 1990 ) )

. Indicia of reliabilit y tha t the trial court may consider include ( 1) whether the child victim testifies at trial and admits making the out

- of

- court statement ; (2) wh ether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate ; ( 3) wh et her other evidence corroborates the statement ; (4) whether the child made the statement spontaneously in the child ’ s own terminology or whether e vidence exists of prior prompting or manipulati on by adults ; (5) whether the c hild ’ s statement is clear and u na mbiguous and rises to the needed level of certainty ; (6) whether the statement is consistent with other evidence ; (7) whether the statement descr ibes an event that a child of the victim ’ s age could not be expected to fabric ate ; (8) whether the child beha ve s abnormally after the contac t ; (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 the3 offense. Norris v. St ate , 788 S.W.2d 65, 71 (Te x. App.

— Dallas 1990 , pet. ref ’ d ) ; Buckley

v. State , 758 S.W.2d 339, 34 3

- 4 4 (Tex. App.

— Texarkana 1988, no pet.)

. At the pretrial hearing on the admissibility of the outcry statement , Bella ’ s m other testified that she no tic ed “ s om ething inapprop riate 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. Bell a ’ s mother testified that , after noticing the inapp r opriate action, she asked Bel l a onl y if she took he r clothes off or if Anderson did; she could not at trial remember Bella ’ s answer. She called the polic e and later took B ella to the Center for Child Protection for a forens ic interview.
Foren sic inve stigator Moon testified that s h e had t wo sessions wi th 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 a nd would cover herself and sai d she didn ’ t want to talk ab ou t that. ” Moon said that Bella ’ s demeanor “ change d dramatically ” when asked about her body parts

. Moon testified tha t, a fter a break, Bella “ talked about being touched in the pa rt that she goes p ee with, the part that he goes with , ‘ he ’ being [A n derson ] , th at he was slapp ing 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 tow ard him and took off her clothes. A n derson was not wearing any clot hes , and she c o uld s ee “ [t ]he part that he goe s pee and his butt. ” She descri bed the noise they made when they were touch ing as

“ clapping. ” Moon testified t hat Bella sai d that when her mother saw what was happening , “ [ h]e
g ot off of her. ” Moon testified tha t she a sk ed quest io ns to dete rmine whether Bella would tell the truth. Moon marked in her notes that Bella said she knew w hat the truth was , though she later told Moon she forgot what it means to tell the truth

. Bell a correctly identified the wall color and4 sai d that som eo ne who said it was a different color would be telling a lie. But w hen M oon asked Bella the color of Moon ’ s car, Bella res ponded “ red ” e ven though she had no way of knowing its color; when told she s h ould not guess abou t things sh e did not know , Bella ne ve rtheless again said Moon ’ s car was red. M oon asked Bella what her “ ocular hue ” was and, when Bella did not respond immediately, Moon reminded Bella no t t o gue ss if she did not know the words in a
que stion or the answer to a question . Moon sai d Bella di d not acknowledge the distinction.
A t the close of the pretrial examination, the tr ial court found that Bella ’ s outcry statement made to Moon was rel iable based upon its time , cont ent, and circumsta nces. The trial
court recited the relevant st a ndard. S ee Tex. Code Crim. Proc. art

. 38.072

. While Bella ’ s
per sistenc e in guessing the color of Moon ’ s car and he si tation to ask for help understanding an unf am iliar term may have weigh ed a gainst the re liabi lity of Bella ’ s o utcry, they are balanced b y evidence t ha t she unders tood the difference bet ween the truth and a lie

. That conflict was an issue for the t rial court to assess when determining the reliabilit y of the child ’ s statement
rega rding a n alleged r ecent assault

. On the record presented, we c ann ot say th at the court abuse d its discretion by finding the out cry statement reliable after the hearing conducted outside the
pres ence of the jury. We note further that t he trial court questioned Bella herself at trial and found that she knew the diffe rence betw ee n a truth and a lie

. Tho ugh s he then testified that she did not

re member or recog nize Anderson , h er inability to recognize or remember Anderson does no t show tha t the trial court erred in admitting her outcry statement based on the Norris fact ors
. Furt he r, t he jury could weigh her in ability to r emember or recognize Anderson at trial in their consideration of the outcry testimony and her hearsay statements contained in it.5 T he portions of the out cry testimony Anderson cites do not demonstrat e that the
tr ial court abused its discretion in ad mitting the outcry

. Moon testified that a t one point Bella said that A nd erson was sitti ng on the child , which Anderson asserts was “ impo ssible

. ” Anderson deems “ highly improbable ” Bella ’ s reported stateme nt that , wh il e she was ly ing under the bed on her ba ck, Anderson “ pulled her towards him and got her clot hes [off] , got o n her, a nd the part whe re she goes pee touched the par t where he g oes pee and that he wa s slapping her against
him

. ” Moon reported tha t , when ask ed whether the contact hurt, Bella said “ she didn ’ t feel anything, ” which Anderson again deems “ impossible

. ” We do no t find And erson ’ s

c haracterization of th is testimo ny pe rs u asive

. T he fact that a four

- year - old girl who noticeably withdraws w hen asked a bo ut some one touching her says she “ didn ’ t feel an ything ” when asked if the contact hurt does not render her o ut cry st atement unreliable. E specially in light of Bella ’ s mother ’ s testimony , the trial court did not abuse its discretion by admi tti ng the outc ry as reliable

. Bella ’ s mother testified that she and her daughters were visiting Anderson ’ s apartment on th e day of the assault

. W hen visiting, s he prefer red to kee p the gi rls in Ander son ’ s bedroom with her so she could monitor them rather t han leave t he m in the areas shared with Anderson ’ s ro ommates. T here wa s a pallet underneath t he bed where the chi ldren c ould n ap if needed. She te stified that , when she and Ande rson had “ intimate time , ” the girls would often be at the computer desk pla y i ng games or w atching cartoons. Bella ’ s mothe r testified that , on the day of the assault , she was lying on her back nea r the ed ge of the bed with a blanket over her while Anderson knelt b eside the bed and performed oral sex on her. At some point, she bega n to hear “ we t noises down on the ground ” that were not coming from her, so she sat up to investigate . Bella ’ s mother te stifie d that she saw that A nderson did not have his pants on and
t hat Bella was across his lap with no pants on ; Bella ’ s mother testifi ed that she c ould not6 remember whether Bella had on underwear but al so that she could see Bella ’ s bare bottom. She
te sti fied th at Anderson quickly moved Bella to the side and pu t her pa nt s on. Bella ’ s mother testified that Anderson said there had been no penetratio n. T his description paralleled Moon ’ s testimony on Bella ’ s description of the assault as well as Bella ’ s s tat ement t hat her you nger sis ter

was watching something on t he compu ter at a desk in the bedroom, that Bella was under the bed because her mo ther had t old her to lie under the bed, and that her mother was on top of the bed. Though the trial court had alre ady made i ts reliability deci sion before trial , the consist e ncy of
M oon ’ s testimony with Bella ’ s mother ’ s testimony supports the reliabili ty of the o ut cry
statement. See Norris , 788 S.W.2d at 71. T he vocabular y of the child ’ s statement, Bella ’ s withdrawa l o n the m ention of the touch ing, and Anderson ’ s opportunity to comm it the offense as described all support the court ’ s decision on re liab ility. Se e i d. We overrule point of error one.

Medical Records By his second point of error, Anderson contends t hat the tr ial court erred in admitting Bella ’ s hea rsay statemen t from her medical records because there was an indication that she did no t know the imp or tance of being truthful. Anderson did not raise this or any other objection to t he admission of the med i cal records or the testimon y of the sponsoring Sexual Assault Nurse Examiner Kim Sanche z. Beca use Anderson did not raise this objectio n at trial , hi s second point of error is waived

. See Tex. R. App. P. 33.1(a); Fernandez v. St ate , 805 S.W.2d 451, 45 5

- 56 (Tex. Crim. App. 1991) (failure to timely object waive s error, and hearsay admitted

w ithout o bjection is probative evidence). Further , there is no in dication in the medical record s or Sanchez ’ s testimony that Bella did not k now the imp ortance of bei ng tr uthful. We have already7 concluded that the trial court did not abuse its discretion b y conclu ding that Bella ’ s out cry
statement to the forensic inve st igator was reliabl e. We ov errule point of error two.

CONCLUSION We af fi rm the judgment of co nvic tion.

__________________________________________ Darlene By rne, C hief Justice

Before Chief Justice Byrne, Justices Baker and Kelly Affirmed Filed: August 9, 2023
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