IN THE

TENTH COURT OF APPEALS

No. 10-07-00314-CR

DARRIN AUSTAD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. F40324

MEMORANDUM OPINION

Austad appeals his convictions for two counts of aggravated sexual assault of a 

child and four counts of indecency with a child by sexual contact against J. D. from the 

time J. D. was nine years of age until she was twelve. See Act of May 28, 1999, 76th Leg., 

R.S., ch. 417, § 1, 1999 Tex. Gen. Laws 2752, 2752-53 (amended 2001-2003) (current 

version at TEX. PENAL CODE ANN. § 22.021(a) (Vernon Supp. 2008)); Penal Code, 63d 

Leg., R.S., ch. 399, § 1, sec. 21.11(a), 1973 Tex. Gen. Laws 883, 918 (amended 2001) 

(current version at TEX. PENAL CODE ANN. § 21.11(a) (Vernon 2003)). We affirm.
Austad v. State Page 2

Austad’s three issues concern the admissibility of evidence.1 “[A] trial court’s 

ruling admitting or excluding evidence is reviewed on appeal for abuse of discretion.” 

Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008) (citing State v. Dixon, 206 

S.W.3d 587, 590 (Tex. Crim. App. 2006)) (alteration added); accord Montgomery v. State, 

810 S.W.2d 372, 378-380 (Tex. Crim. App. 1990) (op. on orig. submission), 390-92 (1991) 

(op. on reh’g). “Under an abuse of discretion standard, an appellate court should not 

disturb the trial court’s decision if the ruling was within the zone of reasonable 

disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); accord Powell 

v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery at 391 (op. on reh’g).

Outcry. Austad’s first two issues concern outcry-witness testimony.

“’Hearsay’ is a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX.

R. EVID. 801(d). The Texas Rules of Evidence provide, “Hearsay is not admissible 

except as provided by statute or these rules or by other rules prescribed pursuant to 

statutory authority.” Id. 802.

Texas Code of Criminal Procedure “Article 38.072 creates just such an exception to 

the hearsay rule of exclusion,” for “the outcry statement of a child victim of sexual or 

physical abuse.” Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992); Martinez v. 

State, 178 S.W.3d 806, 816 (Tex. Crim. App. 2005). Article 38.072, Section 2, provides:

 

1 We assume without deciding that Austad adequately briefs his issues. See TEX. R. APP. P.

33.1(a), 38.1(h); Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim. App. 2003); Tong v. State, 25 S.W.3d 707, 710 

(Tex. Crim. App. 2000) (op. on orig. submission); McClenton v. State, 167 S.W.3d 86, 97 (Tex. App.—Waco 

2005, no pet.).
Austad v. State Page 3

(a) This article applies only to statements that describe the alleged offense 

that:

(1) were made by the child against whom the offense was allegedly 

committed; and

(2) 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.

(b) A statement that meets the requirements of Subsection (a) of this 

article is not inadmissible because of the hearsay rule if:

(1) on or before the 14th day before the date the proceeding begins, the 

party intending to offer the statement:

(A) notifies the adverse party of its intention to do so;

(B) provides the adverse party with the name of the witness through 

whom it intends to offer the statement; and

(C) provides the adverse party with a written summary of the statement;

(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 or is available to testify at the proceeding in court or 

in any other manner provided by law.

TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2 (Vernon 2005). “Statement about the 

offense” in Article 38.072 means “a statement that in some discernible manner describes 

the alleged offense.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); see 

Martinez v. State, 178 S.W.3d 806, 810-811 & nn.13-15 (Tex. Crim. App. 2005); Newton v. 

State, No. 10-06-00160-CR, 2007 Tex. App. LEXIS 4634, at *4 (Tex. App.—Waco June 13, 

2007, pet. filed); Villanueva v. State, 209 S.W.3d 239, 247 (Tex. App.—Waco 2006, no pet.).

“A trial court’s determination that an outcry statement is admissible under article 

38.072 is reviewed for an abuse of discretion.” Olivas v. State, No. 10-07-00017-CR, 2008 

Tex. App. LEXIS 18, at *2 (Tex. App.—Waco Jan. 2, 2008, no pet.) (not designated for 
Austad v. State Page 4

publication) (mem. op.) (quoting Nino v. State, 223 S.W.3d 749, 752 (Tex. App.—Houston 

[14th Dist.] 2007, no pet.)); see Garcia, 792 S.W.2d at 91.

Proper Witness. In Austad’s first issue, he contends that the trial court erred in 

admitting the testimony of J. D.’s aunt, C. H.-P., as outcry witness.

“’[A] trial court has broad discretion in determining’ the proper outcry witness.” 

Olivas, 2008 Tex. App. LEXIS 18, at *2-3 (quoting Villanueva, 209 S.W.3d at 347); see 

Garcia, 792 S.W.2d at 92; Hanson v. State, 180 S.W.3d 726, 729 (Tex. App.—Waco 2005, no 

pet.).

Austad argues that the correct outcry witness was not C. H.-P., but the victim’s 

mother, T. D. At a pretrial hearing, J. D. testified that the first person eighteen years of 

age or older to whom she made a statement about the offense was T. D. J. D. testified 

that T. D. “was the first person that [she] told anything about something sexual 

happening to [her] from” Austad, though J. D. did not “give her all the details, specific 

details about what [Austad] had done to [her].” (15 R.R. at 21, 22.) But T. D. 

categorically denied that J. D. had “t[old] her that [Austad] had been touching her.” (Id. 

at 37.) J. D. testified that the next person eighteen years of age or older to whom she 

made a statement about the offense was C. H.-P. J. D. testified that though she “did not 

give [C. H.-P.] all of the details about all of the events that happened,” she gave C. H.-P. 

“some details about some of the events that happened to her,” “some details about 

specific events.” (Id. at 24.) C. H.-P. testified that J. D. “ma[d]e statements to [her] 

regarding Darrin Austad doing sexual things of a sexual nature with her,” namely “that 
Austad v. State Page 5

he touched her up there and then touched her down below,” that “his fingers went 

inside of her when he touched her down there.” (Id. at 42.)

The trial court did not abuse its discretion in holding that C. H.-P. was the first 

person eighteen years of age or older to whom J. D. made statements that in a 

discernible manner described Austad’s offenses.

Notice. In Austad’s second issue, he argues that he did not receive timely notice of 

the State’s intent to offer C. H.-P.’s testimony.

“[F]or purposes of the outcry statute, the proceeding” begins, at the latest, “when 

the jury [i]s empaneled and jeopardy attache[s].” Zarco v. State, 210 S.W.3d 816, 832 

(Tex. App.—Houston [14th Dist.] 2006, no pet.); see TEX. CODE CRIM. PROC. ANN. art. 

38.072, § 2(b)(1) (Vernon 2005).

Austad concedes that he received notice on Monday, June 25, 2007. Trial began and 

the jury was empaneled on Monday, July 9, 2007. Austad received notice on the 

fourteenth day before the date the trial began.

The trial court did not abuse its discretion in finding the notice timely.

CONCLUSION. The trial court did not abuse its discretion in admitting the testimony 

of C. H.-P. as outcry witness. We overrule Austad’s first and second issues.

Extraneous Offense. Austad’s third issue concerns extraneous-offense evidence.2 

Austad contends that the trial court erred in overruling Austad’s objection to the 

 

2 We find no extraneous-offense objection in the record. We assume without deciding that 

Austad’s complaint’s “specific grounds were apparent from the context.” See TEX. R. APP. P. 33.1(a).
Austad v. State Page 6

testimony of Austad’s niece A. J. to the effect that Austad had committed indecency 

with a child by sexual contact against A. J.

Austad argues under Texas Rule of Evidence 404(b). See TEX. R. EVID. 404(b). 

Under that rule, “Evidence of other crimes, wrongs or acts,” other than the charged 

offense, “is not admissible to prove the character of a person in order to show action in 

conformity therewith. It may, however, be admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident . . . .” Id. Among those other purposes is “rebutting a defensive 

theory.” Johnston v. State, 145 S.W.3d 215, 220-21 (Tex. Crim. App. 2004); see Casey v. 

State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007); Rankin v. State, 974 S.W.2d 707, 709 

(Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 388 (op. on reh’g).

A defendant’s “[d]irect-examination testimony containing a broad disclaimer of 

misconduct sometimes can open the door for extrinsic evidence to contradict even 

though the contradictory evidence is otherwise inadmissible under Rule[] 404 . . . .” 

Daggett v. State, 187 S.W.3d 444, 453 n.24 (Tex. Crim. App. 2005) (quoting United States v. 

Antonakeas, 255 F.3d 714, 724-25 (9th Cir. 2001)) (alterations added); see Harrison v. State,

241 S.W.3d 23, 26-28 (Tex. Crim. App. 2007); Ex parte Carter, 621 S.W.2d 786, 788 (Tex. 

Crim. App. 1981); McIlveen v. State, 559 S.W.2d 815, 822 (Tex. Crim. App. 1977); Ransom 

v. State, 503 S.W.2d 810, 822 (Tex. Crim. App. 1974); Randolph v. State, 499 S.W.2d 313, 

313-14 (Tex. Crim. App. 1973); Turner v. State, 4 S.W.3d 74, 79 (Tex. App.—Waco 1999, 

no pet.); Jones v. State, 119 S.W.3d 412, 420-41 (Tex. App.—Fort Worth 2003, no pet.). 

“Where . . . the defendant’s statement of good conduct is directly relevant to the offense 
Austad v. State Page 7

charged—i.e., ‘I would never have sexual relations with a minor’” in a prosecution for 

such “—the opponent may . . . offer extrinsic evidence rebutting the statement.” 

Daggett at 453 n.25. “The State could introduce evidence of appellant’s sexual conduct 

with” a minor “to rebut th[e]” appellant’s “sweeping statements disavowing any sexual 

misconduct with minors.” Id. at 453 (”I would not do something like that”; “I have 

never done anything of that sort with a sixteen year old girl, period”). “[G]enerally 

such evidence is admissible . . . during the State’s rebuttal . . . .” Id. at 453-54. 

“A defendant opens the door by asking a question which creates a false impression 

that the admission of extraneous offense evidence would correct.” Houston v. State, 208 

S.W.3d 585, 591 (Tex. App.—Austin 2006, no pet.) (citing Monkhouse v. State, 861 S.W.2d 

473, 476 (Tex. App.—Texarkana 1993, no pet.)); see Turner, 4 S.W.3d at 79. “In 

determining whether a false impression was created, . . . we must examine the 

testimony in context, rather than in a vacuum.” Moore v. State, 82 S.W.3d 399, 407 (Tex. 

App.—Austin 2000, pet. ref’d) (citing Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. 

App. 1988)). “Testimony admitted into evidence about a specific ‘bad act’ must be 

related to the issue on which the door has been opened.” Turner at 79. 

“A trial court’s Rule 404(b) ruling is reviewed under an abuse of discretion 

standard.” Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004); accord Lane v. State, 

933 S.W.2d 504, 519 (Tex. Crim. App. 1996); see Casey, 215 S.W.3d at 880-81; Page v. State, 

213 S.W.3d 332, 338 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d at 387, 390 (op. on 

reh’g).
Austad v. State Page 8

J. D. testified that when she was seven or eight years of age, when she was sleeping 

with her mother and Austad, she awakened with Austad touching her breast, then 

moving her underwear and putting his finger inside her vagina. J. D. testified Austad 

did the same again about once a week for three or four years, and thereafter until J. D. 

was thirteen years of age.

On direct examination, Austad testified, to the contrary:

Q. Do you find yourself sexually attracted to little girls in general?

A. No, sir.

(15 R.R. at 204.)

In the State’s rebuttal case, A. J. testified that when she was five or six years of age, 

she spent the night at Austad’s residence and was awakened with her underwear 

around her ankles and with Austad “touching [her] in [her] private area below the 

belt.” (16 R.R. at 264.) A. J. also testified that when she was nine or ten years of age, 

Austad attempted to kiss her and attempted to put his hand down J. D.’s pants.

The trial court would not have abused its discretion in finding that Austad’s directexamination testimony, containing a broad disclaimer of sexual misconduct with minor 

girls, and being directly relevant to the charged offenses, created a false impression and 

opened the door to A. J.’s rebuttal testimony to correct that impression. 

CONCLUSION. The trial court did not err in overruling Austad’s objection under 

Rule of Evidence 404(b).3 We overrule Austad’s third issue.

 

3 Austad also argues under Rule of Evidence 403 that the evidence of which he complains “was 

extremely prejudicial.” (See Br. at 32); TEX. R. EVID. 403. Though having preserved his objection under 

Rule 404, Austad forfeits his complaint under Rule 403 by not raising objection in the trial court. See TEX.
Austad v. State Page 9

CONCLUSION. Having overruled Austad’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 15, 2008

Do not publish

[CRPM]

 

R. APP. P. 33.1(a); Berry v. State, 233 S.W.3d 847, 858 (Tex. Crim. App. 2007); Nelson v. State, 864 S.W.2d 

496, 499 (Tex. Crim. App. 1993). We do not consider Austad’s argument under Rule 403.