Opinion filed September 11, 2020

In The

Eleventh Court of Appeals 

__________

No. 11-18-00232-CR

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CARLOS MANUEL HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 27231-A

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

The jury convicted Carlos Manuel Hernandez of two counts of aggravated 

sexual assault of a child younger than six years old. See TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B), (f)(1) (West 2019). The trial court assessed his punishment at 

confinement for a period of thirty years in the Institutional Division of the Texas 

Department of Criminal Justice on each count with the sentences to run concurrently. 

In his sole issue on appeal, Appellant contends that the outcry witness should not 

have testified because the “outcry” was unreliable. We affirm.
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Background Facts

The indictment charged Appellant with two counts of aggravated sexual 

assault of a child younger than six committed against PSEUIH, Appellant’s fouryear-old daughter. The State called Appellant’s nineteen-year-old daughter, F.H., 

as an outcry witness. F.H. typically cared for PSEUIH in F.H.’s home. On 

February 6, 2016, PSEUIH became irritable and jumpy while F.H. bathed her. F.H. 

noticed that PSEUIH’s vaginal area and anus were red and swollen. F.H. took 

PSEUIH from the bath and asked who touched her. After asking three or four more

times, PSEUIH told F.H., “Daddy touched me.” F.H. denied coercing PSEUIH to 

suggest that Appellant was involved in the incident. F.H. subsequently took 

PSEUIH to the hospital, and a Sexual Assault Nurse Examiner (SANE) examined 

PSEUIH.

The State notified the defense that it intended to use F.H. as an “outcry”

witness. See TEX.CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1) (West Supp. 2019).

At the hearing, defense counsel objected to the outcry statement based on the 

contention that PSEUIH could not discern a truth from a lie during an interview at 

the Child Advocacy Center. See id. § 2(b)(2). At the end of the hearing, the trial 

court determined that PSEUIH’s outcry statement to F.H. was reliable. During trial, 

defense counsel later made a “hearsay” objection to F.H. testifying about what 

PSEUIH had said during the outcry. The trial court overruled the hearsay objection.

Analysis

In his sole issue, Appellant contends that the trial court erred when it 

determined that PSEUIH’s outcry statement to F.H. was reliable. In support of his 

argument, Appellant asserts that the trial court did not use the “[i]ndicia of 

reliability” listed in Torres v. State to determine the reliability of the outcry 

statement. See Torres v. State, 424 S.W.3d 245, 257 (Tex. App.—Houston [14th 
3

Dist.] 2014, pet. ref’d) (listing several discretionary factors that a trial court may 

consider to determine whether an outcry statement is reliable).

We review a trial court’s decision to admit or exclude a hearsay statement that 

may fall within the outcry exception under an abuse of discretion standard. 

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991); Garcia v. State, 

792 S.W.2d 88, 91 (Tex. Crim. App. 1990). We will reverse a trial court’s ruling 

only if it is outside the “zone of reasonable disagreement.” Montgomery, 810 

S.W.2d at 391.

Hearsay is an out-of-court statement offered in evidence to prove the truth of 

the matter asserted. TEX. R. EVID. 801(d). Unless a statutory exception exists, 

hearsay is not admissible evidence. TEX.R. EVID. 802. One exception is the “outcry 

statement” as codified in Article 38.072 of the Texas Code of Criminal Procedure.

Because it is often traumatic for children to testify in a courtroom 

setting, especially about sexual offenses committed against them, the 

Legislature enacted Article 38.072 to admit the testimony of the first 

adult a child confides in regarding the abuse. This witness may recite 

the child’s out-of-court statements concerning the offense, and that 

testimony is substantive evidence of the crime.

Martinez v. State, 178 S.W.3d 806, 810–11 (Tex. Crim. App. 2005) (footnote 

omitted).

Article 38.072 provides that a child’s outcry statement is not inadmissible if 

(1) the State gives the defendant proper notice; (2) 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 circumstances of the statement; and (3) the child testifies. CRIM.

PROC. art. 38.072, § 2(b). The phrase “time, content, and circumstances” refers to 

“the time the child’s statement was made to the outcry witness, the content of the 

child’s statement, and the circumstances surrounding the making of that statement.” 

Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. 
4

ref’d) (quoting MacGilfrey v. State, 52 S.W.3d 918, 921 (Tex. App.—Beaumont 

2001, no pet.)).

In an Article 38.072 hearing, the trial court’s focus is whether the child’s 

outcry statement is reliable, not whether the outcry witness is credible. Sanchez v. 

State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Outcry reliability is determined 

on a case-by-case basis. Buentello v. State, 512 S.W.3d 508, 518 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d); Davidson v. State, 80 S.W.3d 132, 139 (Tex. 

App.—Texarkana 2002, pet. ref’d). The trial court considers the circumstances of 

the outcry, not the abuse itself. See Sanchez, 354 S.W.3d at 487. 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 her 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 offense. Buentello, 512 S.W.3d at 518 n.4; Torres, 424 S.W.3d at 257; 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), aff’d, 786 S.W.2d 357 (Tex. 

Crim. App. 1990).

Although these factors are useful, they are not mandatory. See, e.g., Buckley, 

758 S.W.2d at 343 (establishing eleven “[i]ndicia of reliability” that the trial court 
5

“may look to”); Norris, 788 S.W.2d at 71 (noting that the trial court “may” consider 

the indicia of reliability). Thus, the trial court need not consider every factor to find 

the child’s statement reliable. Cf. Norris, 788 S.W.2d at 71 (concluding that the trial 

court did not need to consider every indicia of reliability before finding the statement 

reliable). Moreover, courts have noted that a child’s outcry statement may be 

reliable even if it is vague or inconsistent about the details. Broderick, 89 S.W.3d at 

699; In re J.G., 195 S.W.3d 161, 171 (Tex. App.—San Antonio 2006, no pet.).

The trial court was vested with discretion to determine whether PSEUIH’s

outcry statements were sufficiently reliable based on the time, content, and 

circumstances of the statements. See Buentello, 512 S.W.3d at 518–20. Appellant 

challenged F.H.’s outcry testimony on the basis that PSEUIH’s report to F.H. was 

not reliable because it was not spontaneous and because PSEUIH did not know the 

difference between the truth or a lie.

F.H. was the only witness that testified at the Article 38.072 hearing. F.H. 

testified that PSEUIH knew the difference between the truth and a lie despite the 

fact that she was only four years old. F.H. also denied coaching PSEUIH to say that 

Appellant touched her. F.H. testified that PSEUIH made the outcry after F.H. 

observed redness on PSEUIH’s vaginal area and witnessed her reluctance to take a 

bath due to the pain. Thus, the evidence offered during the Article 38.072 hearing 

supported the trial court’s determination that PSEUIH’s outcry to F.H. was reliable. 

We conclude that the trial court did not abuse its discretion in finding that the outcry 

statement was reliable.

Moreover, PSEUIH later testified at trial that Appellant touched her privates 

and that it hurt. The child colored a diagram to show where Appellant had touched 

her. The child confirmed that F.H. was the first person that she told about the 

touching. Additionally, PSEUIH conveyed the same information during the CAC 

interview and the SANE examination. See Lane v. State, 151 S.W.3d 188, 192–93 
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(Tex. Crim. App. 2004) (finding no harm in a victim’s hearsay statement when 

hospital records and individual testimonies conveyed the same information).

During the CAC interview, PSEUIH said, “[M]y daddy touched me in the 

butt, and it’s hurting.” Tiffany Fullerton, a sexual assault nurse examiner, testified 

that PSEUIH told her, “I hear something and then my dad came and touched me on 

the butt,” and that PSEUIH indicated “butt” to mean both her sexual organ and anus 

on the diagrams. Thus, even if the trial court erred when it found that the outcry 

statement was reliable and allowed F.H. to testify, the error was harmless. See

Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (When properly 

admitted evidence proves the same facts as the improperly admitted evidence, the 

error is harmless.); Long v. State, 821 S.W.2d 216, 217 (Tex. App.—Houston [14th 

Dist.] 1991, no pet.) (noting that an error was harmless when the victim testified to 

the same information that she told to the outcry witness).

We overrule Appellant’s sole issue on appeal.

This Court’s Ruling

We affirm the judgments of the trial court.

JOHN M. BAILEY

CHIEF JUSTICE

September 11, 2020

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.