t *

ISO- IS

CAUSE NO. PD-0150-15

IN THE

TEXAS COURT OF CRIMINAL APPEALS

AT AUSTIN,TEXAS

ORIGINAL

OWCU

COURT OF CRBWiNAL APPEALS

FSLFD IN SFP 1 fi POtt COURTOFCRIMINALAPPEALS °anny ray rancher,appellant pro se,

SEP16 2G15 v. «oei Acosta. Clerj?

Abel Acosta, Cierk

THE STATE OF TEXAS, APPELLEE

Appealed From the 9th Court of Appeals Cause Nos.

09-13-00355-CR & 09-13-00356-CR From The 9Th.,

Court of Appeals;Trial Cause Nos. 12-01-00820-CR

(Counts 1 And 2),221St,Judicial District,Montgomery

County,Texas,Honorable Robert Trapp Sitting as 22St,District Judge

PRO SE PETITION FOR DISCRETIONARY REVIEW

SEEKING REVIEW BECAUSE CONSTITUTIONAL ERROR

IN VIOLATION OF USCA. CONST.ARTS. 1§9,C1.3;

1§10,C1.1 AND TEX.CONST. ART.1§16 AS PROHIBITED

BY STATE AND FEDERAL EX POST FACTO CLAUSES ARE

REVEALED FROM THE !©§©!© TO OBTAIN CONVICTIONS

TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COMES Appellant Pro se, Danny Ray Rancher and respectfully submits

this Petition for Discretionary Review Because Constitutional Error in violation

of the State and Federal Ex Post Facto Clauses pursuant to USCA. CONST. ARTS.1§9,

C1.3;1§10,C1,1, and Tex.Const. Art.l§16 as revealed from the Records and used

to obtain both convictions and punishments. And in support would show as follows:
IDENTITY OF PARTIES AND COUNSEL

APPELLANT PRO SE ON "PDR":

Danny Ray Rancher,TDCJ-ID#1884198

Rt. 2 Box 4400

Hughes Unit

Gatesville, Texas 76597

JUDGE:

Honorable Robert Trapp ..

Sitting a 221st District Court

207 W. Phillips

Conroe,Texas 77301

PROSECUTION:'

Ms. Mary^Nan Huffman

State Bar No. 24058581

Assistant District Attorney

Montgomery County

207 W. Phillips, 2nd Floon;

Conroe,Texas 77301

Mr. Vince Santini

State Bar No. 240063410

Assistant District Attorney

207 W. Phillips, 2nd. Floor

Conroe, Texas 77301

DEFENSE COUNSEL:

Mr. Jarred L. Walker

State Bar No.00788601

300 W. Davis Suite 450

Conroe,Texas 77301

Ms. Wendy Little

State Bar No. 240039509

141 N. San Jacinto

Conroe, Texas 77301

COURT APPOINTED APPELLATE COUNSEL:

Mr. William L. Pattillo

State Bar No. 00792745

430 N. Main

Conroe, Texas 77301

COUNSEL FOR STATE IN APPELLATE COURT:

Mr. Jason Larman

Assistant District Attorney

207 W. Phillips, 2nd Floor

Conroe, Texas 77301

li
TABLE OF CONTENTS

Identity of Judge, Parties and Counsel ii

Table of Contents iii

Index of Authorities iv

Statement Regarding Oral Argument v

Statement of the Case vi

Statement of Procedural History vii,viii

Grounds for Review 1

Argument .2-15

Prayer for Relief 1 15

Appendix 1, Memorandum Opinion 9th Court of Appeals Attached

in
INDEX OF AUTHORITIES

Beazell v. Ohio, 46. S.Ct. 68 (1925) 13,14

Bowers v. State, 914 SW.2d. 213 (Tex.App.8-Dist. 1996) 4

Calder v. Bull/- 3 Dall. 386,390,1 L.Ed. 640 (1798) 7,13

Carmell v. Texas, 120 S.Ct. 1620 (2000) 7

Garcia v. State, 125 SW.3d. 921 (Tex.Cr.App. 2004) 3

Ieppert v. State, 908 Sw.2d. 217 (Tex.Cr.App. 1995) ,2,8,11,12,13

Jaehne v. New York, 9 S.Ct. 70 (1880) .15

Johnson v. United States, 120 S.Ct. 1795 (2000) 4

Kotteakos v. United States, 66 S.Ct. 1239 (1946) 3

Leday v. State, 983 SW.2d. 713 (Tex.Cr.App. 1998) .7

Marks v. United States, 97 S.Ct. 990 (1977) 13

Martinez v. State, 178 SW.3d. 806 (Tex.Cr.App. 2005) 4

Martinez v. State, 188SW.3d. 291 (Tex.App. l-Dist.2006) 4

Miller v. Florida, 107 S.Ct. 2446 (1987) 13

Phillips v. State, No.PD-1402-09 (Tex.Cr.App. 2011) 2

Scoggan v. State, 799 SW.2d. 679 (Tex.Cr.App. 1990) 7

Stogner v. California, 123 S.Ct- 2446 (2003) 3,7,12,15

IV

W
STATEMENT REGARDING ORAL ARGUMENT

No Oral Argument is requested by Appellant Pro se, therefore Oral

Argument is deemed waived by this party. And in its discretion,the Court

of Criminal Appeals may decide this Cause without Oral Argument because

argument would not significantly aid the Court in determining the issues

presented. See TRAP.Rule 39.8.

v
STATEMENT OF THE CASE

On May 31,2012, the Grand Jury for Montgomery County, Texas indicted the

Petitioner Danny Ray Rancher for the First-Degree Felony Offense of Aggravated

Sexual Assault of a Child (Count I) and the Second-Degree Felony Offense of

Sexual Assault of a Child Arising from the same transaction (Count II), alleged

to have been committed against the same victim on NOVEMBER 8,1996)(Clerk's Record

Count I ("CRI" at 23-24;Clerk's Record,Count II ("CRII" at 19-20).

On July 22, 2013, the Petitioner's jury trial began in the 221st District Court,

the Honorable Robert Trapp, presiding. On July 24, 2013, after hearing evidence

from both the State and Petitioner, the Jury convicted the Petitioner of both Count

I and Count II, as charged, in the State's indictment. (RR. VOL. 5 at 29,lines 3-15).

On July 25,2013, the same Jury, after considering the evidence presented by the

State of Continuous Sexual Abuse of a Child and the evidence presented by Petitioner,

sentenced, the Petitioner to confinement, for Life and a. $10,000.00 fine for Count I,

and confinement for a Maximum Twenty Years' for Count II. (RR. Vol.6 at 93-94,lines

23-25,1-12).

On August 2, 2013 the Petitioner's Trial Counsel filed a timely Notice of Appeal,

and the trial court appointed Appellate Counsel to represent the Petitioner on direct

appeal. And Petitioner appealed the trial court's judgements and sentence with timely

filed brief on the merits to the 9th Court of Appeals at Beaumont,Texas.

VI

V/-I
STATEMENT OF PROCEDURAL HISTORY

On May 31,2013, the Grand Jury for Montgomery County,Texas indicted the

Petitioner, Danny Ray Rancher for the First-Degree Felony Offense of Aggravated

Sexual Assault of a Child (Count I) and the Second-Degree Felony Offense of Sex

ual Abuse of a Child (Count II), both allegedly to have been committed on November

8, 1996.

On July 22, 2013, well over Sixteen (15) years,thereafter the commission of

the Sexual Abuses of a Child Offenses were allegedly committed on November 8,1996,

exceeding the former available defense of a -10- year Statute of Limitations, jury

trial began.

On July 24,2013, after hearing unobjected evidence of Continuous Sexual-Abuse

of a Child from the alleged Victim then Twenty-Nine Years Old, the same Jury

convicted Petittioner upon return of General Verdict of Guilty as alleged in Counts

I and II of the State's indictment.

On July 25, 2013, the same Jury further considering the same evidence of Contin

uous Sexual Abuse of a Child beginning at age Eight (8) by the State also at the

punishment stage, sentenced the Petitioner to confinement for Life and a $10,000.00

Fine for Count I and a Maximum Twenty Years for Count II, when prosecuted for the

New Offense.

On August 2, 2013, the Petitioner's trial counsel filed a timely Notice of

Appeal and withdrew from appellate representation. Then the trial court appointed

Mr. William L. Patillo to represent him as an Indigent Appellant on direct appeal.

Petitioner's Appellants Brief was due to had been filed on November 27,2013,

and Court Appointed Appellate Counsel filed for and was granted a Second Motion for

an Extension of Time to file an Appellant's Brief. Thus,making the Brief due to -

had been timely filed on or before December 28,2013, In Consolidated Appeal Nos.

09-13-003555-CR, and 09-13-00356-CR.

On December 31,2013, Petitioner's Appellant's Brief was actually filed with

the Ninth Court of Appeals at Beaumont, Texas, thereby advancing Two Points of

Error regarding Inadmissible Outcry witness testimony violative of Tex.Code Crim.

Proc. Art.38.072. Oral Argument was not requested.

On February 24,2014,the State filed its Appellate Brief, after having been

granted an Extension of Time in which had done so on January 29,2014.

The Clerk of the Ninth Court of Appeals notified both parties that said

Causes on Appeal/ were Submitted to the Court on the Briefs before a Panel

of Justices to be heard on September 10,2014.

vii
On January 28, 2015, the Ninth Court of Appeals entered a Memorandum

Opinion, ruling adversely against the Petitioner and resolving the dispute over

which version of Article 38.072 applied to the facts was to the current version,

of the Statute. APPENDIX 1.Further affirming the Judgements and Sentences of the

trial court. ,

On February 11, 2015, the Court of Criminal Appeals granted Petitioner's

First Motion for Extension of Time in which to timely file a Pro Se Petition

For Discretionary Review (PDR) as No.PD-0510-15. Wherein such time in which to

had filed the Pro se ("PDR"), was extended up and until Tuesday, April 28,2015.

With further directions that "No further Extensions would be entertained."

On May 1, 2015, the Petitioner's Pro se ("PDR") was received and deemed filed

by the Clerk of the Texas Court of Criminal Appeals.

On June 10,2015, the Court of Criminal Appeals issued a Per Curiam Opinion

Striking Petitioner's Pro se Petition for Discretionary Review ("PDR") because

of non-compliance with the -15- page limitaion pursuant to TRAP. Rule 9, with

Two Judges Dissenting.

On July^l4.,^2015, -the Texas Court of Criminal Appeals^denied Petitioner's

timely filed Motion to Exceed the -15- page limit.

On August 4, 2015, the Texas Court of Criminal Appeals denied Petitioner's

timely filed Bro se Motion for Reconsideration of his Motion to had exceeded

the -rM>— page limit. Then granted Alternative Relief as to an Extension of Time

until September.4, 2015.to filed a corrected Pro se Petitition for-Discretionary

Review.

/. /••

Vlll

Mll\
GROUNDS FOR REVIEW

NUMBER ONE: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING TINA FULLEN

TO TBSlb'V AS AN OUTCRY WITNESS UNDER TEX.CODE CRIM.PROC.ART.38.072,AMENDED

AND CURRENT VERSION OF THE HEARSAY STATEMENTS MADE BY A CHILD AS FURTHER

RESOLVED BY THE COURT OF APPEALS,AND PROHIBITED BY THE STATE AND FEDERAL

EX POST FACTO CLAUSES PURSUANT TO USCA.CONST.ARTS.1§9,CI.2,1§10,C1.1,AND

TEX.CONST. ART.1§16,ALTERING THE RULES OF EVIDENCE REQUIRING THAT THE CHILD

MUST BE 14 YEARS OF AGE OR YOUNGER AND THE FORMER STATUTE REQUIRED THAT THE

CHILD MUST HAD BEEN 12 YEARS OR YOUNGER,WHEREAS THE FIRST OUTCRY WAS MADE

WHEN THE CHILD WAS OLDER THAN 12 YEARS OF AGE BEING -13- OR OLDER.

NUMBER TWO: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING OFFICER ADAM

KULAK TO TESTIFY AS AN OUTCRY WITNESS UNDER TEX.CODE CRIM.PROC.ART. 38.072,

AMENDED AND CURRENT VERSION OF THE HEARSAY STATEMENTS MADE BY CHILD AS FUR

THER RESOLVEDLY THE COURT OF APPEALS,AND PROHIBITED BY THE STATE AND FED

ERAL EX POST FACTO CLAUSES PURSUANT TO USCA.CONST.ARTS. 1§9,C1.3, 1§10,C1.1;

TEX.CONST. ART.1§16,ALTERING THE RULES OF EVIDENCE REQUIRING THAT THE CHILD

MUST BE 14 YEARS OR YOUNGER AND THE FORMER STATUTE REQUIRED THAT THE CHILD

MUST HAD BEEN 12 YEARS OR YOUNGER,WHEREAS THE FIRST OUTCRY WAS MADE TO KULAK

WHEN THE COMPLAINANT WAS 28 YEARS OLD.

NUMBER THREE:lEPELL&NffiPWAS CONVICTED,PROSECUTED AND PUNISHED FOR CONTINUOUS

SEXUAL ABUSE OF A YOUNG CHILD,PURSUANT TO TEX.PENAL CODE § 21.02 (2007) WHICH

HAD NOT YET BEEN ENACTED AT THE TIME OF THE ALLEGED COMMISSION OF AGGRAVATED

SEXUAL ASSAULT OF A CHILD AND SEXUAL ASSAULT OF A CHILD 14 YEARS OF AGE OR

•YOUNGER ON NOVEMBER 8,1996,AND THE EX POST FACTO CLAUSES OF THE UNITED STATES

AND TEXAS CONSTITUTIONS PURSUANT TO USCA.CONST.ARTS.1§9,C1.3,1§10,AND TEX.CON

ST. ART. 1§16 DOES NOT PERMIT SUCH PROSECUTION OR CONVICTION WHICH DID NOT CON

STITUTE CRIMINAL OFFENSE OF CONTINUOUS ABUSE OF A CHILD WHEN IT HAPPENED.

NUMBER FOURPETITIONER WAS DEPRIVED OF A COMPLETE DEFENSE UNDER THE FORMER

!) YEAR STATUTE OF LIMITATIONS (TEX.CODS CRIM.PROC.ART.12.01(2)(D)(1991),

BARRING THE ALLEGED CRIMES OF AGGRAVATED ASSAULT OF A CHILD AND SEXUAL AS

SAULT OF A CHILD WHEREAS SUCH A DEFENSE WAS AVAILABLE ON NOVEMBER 8,1996,AT

THE TIME SUCH CRIMES WERE ALLEGEDLY COMMITTED,RATHER THAN THE RETROACTIVE

APPLICATION OF THE AMENDED VERSIONS OF THE STATUTE/S IN 91997) AND (2007)

STARSTEPPED TO REVIVE AN OTHERWISE TIME BARRED PROSECUTION FIRST UNTO THE

TENTH YEAR FROM THE 18TH BIRTHDAY OF THE VICTIM OF THE OFFENSE,THEN UNTO

NO LIMITATIONS PERIOD AT ALL,THUS,VIOLATIVE OF THE STATE AND FEDERAL EX

POST FACT CLAUSES AS PROHIBITED BY USCA.CONST.ARTS.1§9,CI.3,1§10,Cl.l;

TEX. CONST. ART. 1§16.
ARGUMENT/S

NUMBER ONE: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING TINA FULLEN

TO TESTIFY AS AN OUTCRY WITNESS UNDER TEX.CODE CRIM.PROC. ART.38.072,AMENDED

AND CURRENT VERSION OF THE HEARSAY STATEMENTS MADE BY A CHILD AS FURTHER RE

SOLVED BY THE COURT OF APPEALS,AND PROHIBITED BY THE STATE AND FEDERAL EX POST

FACTO CLAUSES PURSUANT TO USCA.CONST.ARTS. 1§9,CL.3; 1§10,CL.1, AND TEX.CONST.

ART. 1§16,ALTERING THE RULES OF EVIDENCE REQUIRING THAT THE CHILD MUST BE 14

YEARS OF AGE OR YOUNGER WHEN THE FORMER STATUTE REQUIRED THAT THE CHILD MUST '

HAD BEEN 12 YEARS OR YOUNGER,WHEREAS THE FIRST OUTCRY WAS MADE WHEN THE CHILD

WAS OLDER THAT 12 YEARS OF AGE BEING 13 YEARS OLD* OR OLDER.

NUMBER TWO: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING OFFICER ADAM

KULAK TO TESTIFY AS AN OUTCRY WITNESS UNDER TEX.'CODE CRIM.PROC. ART.38.072,

AMENDED AND CURRENT VERSION OF THE HEARSAY STATEMENTS MADE BY A CHILD AS

WAS FURTHER RESOLVED BY THE COURT OF APPEALS,AND PROHIBITED BY THE STATE AND

FEDERAL EX POST FACTO CLAUSES PURSUANT TO USCA.CONST.ARTS. 1§9,CL.3, 1§10,CL.1;

TEX.CONST. ART.1§16,ALTERING THE RULES OF EVIDENCE REQUIRING THAT THE CHILD

MUST HAD BEEN 12 YEARS OLD OR YOUNGER,WHEREAS THE FIRST OUTCRY WAS MADE TO

KULAK WHEN THE COMPLAINANT WAS 28 YEARS OLD.

TO Avoid being redundant and make every effort to comply with the -15- pages

Limitations Rule,the Petitioner incorporates by Reference the foregoing Number

One and Two Ex Post Facto Claims as presented for review in accord with this C

Courts decision in IEPPERT V. STATE, 908 SW.2d. 217 (TEX.CR.APP. 1995).

RETROACTIVE APPLICATION OF AMENDED ART. 38.072 TINA FULLEN'S TESTIMONY

The thrust of Petitioner Pro se's argument on his first issue is that the

trial court improperly admitted; the outcry testimony, by Retroacfiiyely applying

an Ex Post Facto Amended Version|of Tex.Code Crim.Proc.Art.38.072 (2009),TO, .

Sexual Abuses of a Child Offenses allegedly committed on'November 8,1996).------: '.'.'

The initial inquiry in any review of a Child victim's Hearsay Statements

sought to be introduced as evidence under Art.38.072, is the Age requirement

of the Child at the time the Statement/s was/were made. Under the version of

Art.38.072, effective and existing prior to September 1,2009, required the child

to be -12- years or younger. Then,if the age of the Child was THIRTEEN (13) "••"

Years Old or Older,clearly Pre-Amended Art.38.072, would render such Statement/s

Inadmissible as evidence. The records of the acse shows that Complainant gave

a letter to her mother, (MS.FULLEN) when she was -13- years old detailing her

allegations of Continuous Sexual Abuse. One cannot argue that under the current

version of 38.072, changing the Child's age from -12- years old or younger unto

14 years of age or younger that the letter would meet the required age and qualify

as an Initial Outcry Statement. However,because Art.38.072, Pre-Amendment as it

existed at the time the Complainant gave Ms. Fullen the letter,Required evidence

that the Child be TWELEVE (12) OR YOUNGER. Therefore this letter would not qual

ify as Outcry statements and were inadmissible under the Ex Post Facto Clauses
under the Pre-Amended version of Art.38.072, and further an available

defense at the time the alleged Sexual Abuse crimes were committed.

II.

RETROACTIVE APPLICATION OF AMENDED VERSION OF ART.38.072 (2009)

By Mlowing ©fficer Adam gulak ffo Testify As An Outcry Witness

The trial court improperly allowed Officer Adam Culak to testify to Hearsay

Statements the Complainant made to him. And an Outcry Hearing held outside the

presence of the jury, Officer Culak testified as a Second Outcry witness,that

the Complainant told him that the Petitioner CONTINUED TO SEXUALLY ABUSE HER

FROM THE AGE OF THIRTEEN (13) UNTIL SHE WAS ALMOST EIGHTEEN (18) YEARS OLD."

(RR.VOL. 4 at 255). The Trial Court overruled the Petitioner's 38.072, general

objections and allowed the elicit this inadmissible testimony from Officer Cul

ak before the Jury. (RR.VOL. 4 at 260). The Complainant made these Statements

to Officer Culak in 2011, when she was well- over the Age of Thirteen. (RR.VOL.3

at 61).(The Complainant was born on NOVEMBER 8, 1983. (RR.VOL. 3 at 20). Her

Statements to Officer Culak were made sometimes in late November 2011,or at the

latest in January of 2012. (RR. VOL. at 139-40). Showing that the Complainant

was at least TWENTY-SEVEN or TWENTY-EIGHT YEARS OLD. When she made the Statements

to Officer Culak.

The Pre-amended version of Art.38.072,in existence and available at the time

when the alleged -Aggravated Sexual Assault of a Child and Sexual Assault of a

Child,clearly required that the Child be Twelve—Years of Age or Younger, as was/

is applicable on NOVEMBER 8,1996)'. Rather than the Retroactive application of

the Amended Art.38.072, September 1,2009,version, when she was well over the age

of thirteen. Thus,prohibited by the State and Federal Ex Post Facto Clauses.Seeking

to revive an already mandated 12 years or younger evidentiary requirement under

the Pre-Amended Statute,to be resurrected and prosecuted under the current version

applied Retroactively to 27-28 years old. See STOGNER V. CALIFORNIA, 123 .S.CT.

2446 (2003);PHILLIPS V. STATE, NO.PDr-1402-09 (TEX.CR.APP. 2011).

"As this Court noted in GARCIA V. STATE, 125 SW.3d. 921 (TEX.CR.APP. 2004),

"If when all is said and done, the conviction is sure that the error did not

influence the "Jury",or had but a slight effect, the judgement should stand, . . . but if one cannot say,with fair assurance,after pondering all that hap

pened without stripping the erroneous action from the whole,that the judgement

was not substantially swayed by the error,it is impossible to concluded that

substantial rights were not affected." Id. at 927 n.9 (Quoting KOTTEAKOS V. U.S.,

66 S.CT. 1239 (1946)).
Cf. MARTINEZ V. STATE, 188 SW.3d. 291 (TEX. APP. 1-DIST. 2006), On remand ,after

Court of Criminal Appeals, reversed, holding that: "The majority was mistaken in

its conclusion that admitting hearsay testimony (Complainant's Outcry) by the Com-

' } plainant's Mother) was admissible under Article 38.07. "In MARTINEZ V. STATE,178

SW.3d. 806 (TEX.CRIM.APP. 2005), remandedi"To Determine whether the Admission of

the Outcry was Harmless Error." Id.

"Error in admitting testimony of victim's Mother regarding what victim told

her about offense was HARMFUL in prosecution for Indecency With a Child; Absent

Improperly Admitted Evidence, only direct evidence supporting verdict was victim's

testimony,thereby making her credibility essential to the conviction, . . . And

during mother's testimony trial judge instructed Jury about its role as Judge of

the Credibility of Testimony and its right to consider what victim told Mother,

and thus,' there was not fair assurance that error did not have substantial and in

jurious effect or influence in determining jury's verdict." TRAP. 44.2(b).Id.

"Because A.R. was Older than twelve (12), the Outcry Testimony Given by A.R.'s

Mother WAS NOT ADMISSIBLE." "A.R.'s Mother was the witness immediately preceding

$;£; A.R,\s- Testimony. This Testimony was introduced as background Testimony and gave

'''- 1 context about which MARTINEZ complains, and the subsequent testimony given by A.R,,,,

•ji'i without objection.." Id.

"RETROACTIVE APPLICATION OF 1993 AEMNDMENT' TO'STATUTE RELATING TO EVIDENCE IN^J

SEX OFFENSE PROSECUTION UNDER WHICH :EITHER; OUTCRY BY VICTIM WITHIN ONE YEAR OR ^ CORROBORATION OF VICTIM'S TESTIMONY IS REQUIRED IN ORDER TO SUPPORT CONVICTION .;-

ONLY WHEN VICTIM IS 18 YEARS OF AGE OR OLDER,ALTERS RULES OF EVIDENCE TO REQUIRE

LESS EVIDENCE TO SUSTAIN CONVICTION AND VIOLATES EX POST FACTO CLAUSE."USCA CONST.

ART. 1§10,CL.1;TEX.CODE CRIM.PROC. ART. 38.07. BOWERS V. STATE, 914 SW.2d. 213

(TEX APP 8—DIST. 1996). "WE FIND THAT*THE OUTCRY STATUTE FOUND AT TEX.CODE CRIM.PROC.ART. 38.07 WAS

AMENDED SO AS TO ALLOW CONVICTION UPON LESS EVIDENCE THAN WAS REQUIRED WHEN THE

ALLEGED OFFENSE OCCURRED." Id.

"THE EX POST FACTO CLAUSE RAISES TO THE CONSTITUTIONAL LEVEL ONE OF THE MOST

BASIC PRESUMPTIONS TO OUR LAW;LEGISLATION,ESPECIALLY OF THE CRIMINAL SORT IS NOT,1

TO BE^SPPLIED RETROACTIVELY." USCA.CONST.ART. 1§9,C1.3. JOHNSON V. UNITED STATES,

120 S,CT,r 1795 (2000).

Even under the current and Amended version, Art.38.072(2009), still mandates

that the Statements Must be made by a Child Younger that Fourteen years of age

and in this case,because the Complainant>was Twenty-Seven or Twenty-Eight Years

old at the time when she made her Outcry to Officer Culak. This Amended Statute

does not provide an Exception to the Hearsay Rules or adduce evidence at this

trial sufficient to had established an Outcry under either version of the Statute.
ARGUMENT WITH SUPPORTING AUTHORITIES

USCA.CONST.ART. 1§9,C1.3, pertinent here provides: "No ... Ex Post Facto

Law Shall be passed."

USCA.CONST. ART. 1§10,C1.1, pertinent here provides: "No State Shall;Pass any

Ex Post Facto Law."

USCA.CONST. ART. VI,CI.2, pertinent here provides: "This Constitution,and the

Laws of the United States which shall be made in Pursuance thereof;, under the

Authority of the United States, shall be the Supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the Constitution or

Laws of Any State to the Contrary Notwithstanding."

USCA.CONST. AMEND. XIV§1,1 pertinent here provides: "All persons born ... in

the United States and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State shall make or en

force any law which shall abridge the privileges or immunities of citizens of

the United States; Nor shall any State deprive any person of life,liberty, or

property, without Due Process of Law; Nor deny yo any person within its juris

diction the Equal Protection of the Laws."

TEX.CONST. ART.1§16/ pertinent here provides: "No ... Ex Post Facto Law,Ret

roactive law, shall be made."

TEX.CODE CRIMINAL PROCEDURE,ART.38.072, in effect on the alleged Sexual Assault

Of a Child Offense as former Evidence in Criminal Actions committed on November

8th, 1996,provided: "Hearsay Statement of Child Abuse Victim."

SEC.l. "This article applies to a proceeding in the prosecution of an offense

under any of the following provisions of the Penal Code,"IF COMMITTED AGAINST A

CHILD 12 YEARS OF AGE OR YOUNGER:"

(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);

(2) Section 25.02 (Prohibited Sexual Conduct); or

(3) Section 43.25 (Sexual Performance by a Child).

SEC.2. (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 com

mitted; and

(2) "Were made by 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 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 CIR

CUMSTANCES 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."

"Added by Sets 1985,69th Leg.,ch,590,§l,eff,Sept.1,1985. Amended by Acts 1995,

74th Leg. ch. 76, § 14.25, eff.Sept.l, 1995.
r

TEX.CODE CRIMINAL PROCEDURE,ART. 38.072, as Complained of as being Retroactively

APPLIED to Appellant's Serious Disadvantage, detriment and altering the Rules

of evidence as prohibited by the Federal and State Ex Post Facto Clauses,provides:

"HEARSAY STATEMB8TC0RTeEHTAESS5BMSETg!EeTlMS."

SEC.l. "This Article applies to a proceeding in the prosecution of an offense

under any of the following provisions of the Penal Code,if COMMITTED AGAINST A

CHILD YOUNGER THAN 14 YEARS OF AGE OR A PERSON WITH A DISABILITY:

(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);

(2) Chapter 25.02 (Prohibited sexual Conduct);

(3) Section 43.25 (Sexual Performance by a CHILD);

(4) Section 43.05(a)(2) (Compelling Prostitution);

(5) Section 20A.02(a)(f?') or (8) (Trafficking of Persons); or •-**>-•••••

(6) Section 15.01 (Criminal Attempt), if the offense attempted is described

by Subdivision (1)(2)(3)(4),or (5) of this section.

SEC.2. (a) This article only applies to statements that:

(1) Describes:

(A) The alleged Offense;or

(B) ""IF THE STATEMENT IS OFFERED DURING THE PUNISHMENT PHASE OF THE PRO

CEEDING, A CRIME,WRONG,OR ACT OTHER THAN THE ALLEGED OFFENSE THAT IS:

(i) Described by Section 1;

(ii) "Allegedly committed by the defendant against the Child who is the

victim of the offense, . . . and

(iii) Otherwise admissible as evidence under Article 38.37, Rule 404 or

405, Texas Rules of Evidence,or another law or rule of evidence of this State;

(2) Were made by the Child or person with a Disability against whom the

charged offense or extraneous crime, wrong,or act was allegedly committed; and

(3) Were made to the First person, 18 years of age or older,other than the

defendant,/,, to whom the child or person ,with, a disability made a fsJ;atement about ...-•,-

the offense or extraneous crime,wrong,or act.; . "' '", "..' :'. . . ' ,.;•(. Cbf^A Statement that meets the, requirements; of Subdivision (a) is not in- .^

admissible 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 witnesses 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 Circum

stances of the statement; and

(3) the child or person with a disability testifies or is available to

testify at the proceeding in court or in any manner provided by law.

SEC.3. In this article, "PERSON WITH A DISABILITY" means a person 13 years

of age or older who because of age or physical or mental disease,disability,

or injury is substantially unable to protect the person's self from harm or to

provide food,shelter,or medical care for the person's self."

ACTS 2009,81st Leg.,Ch, 710, SUBSITUTUTED "YOUNGER THAN 14 YEARS OF AGE" FOR

"12 YEARS OF AGE OR YOUNGER" AAdded Aubsec.(4); and rewrote §2(a).

2011 LEGISLATION.

ACTS 2011, 82nd Leg.ch, 1 (S.B. 24, redesignated § 1(4) as §1(6),and as redesig

nated,inserted, " (4)(,or (5)", inserted § 1(4) and (5); . Section 7.01 of Acts

2011,82nd Leg., ch. 1 (S.B. 24) provides:

6
"The Change in law made by this Act applies only fo an Offense committed

on or After the effective date [SEPT.1,2011] Of this Act. An offense commitBEFORE the effective date of this Act is governed by the law in effect on the

date the offense was committed, and the FORMER LAW is Continued in effect for

that purpose. For purposes of this.Section an Offense was COMMITTED BEFORE THE

EFFECTIVE DATE OF THIS ACT IF ANY ELEMENT OF THE OFFENSE OCCURRED BEFORE THAT

DATE."

"THE "OUTCRY,! OR CORROBORATION" REQUIREMENT WAS NOT SATISFIED FOR THOSE CON

VICTIONS; THEY RESTED SOLELY ON THE VICTIM'S TESTIMONY. ACCORDINGLY,THE VERDICTS

ON THOSE FOUR COUNTS STAND OR FALL DEPENDING ON WHETHER THE CHILD VICTIM EXCEPT

ION APPLIES. "UNDER THE OLD LAW,THE EXCEPTION WOULD "NOT" APPLY,BECAUSE THE VIC

TIM WAS MORE THAN 14 YEARS OLD AT THE TIME OF THE ALLEGED OFFENSES. UNDER THE NEW

LAW,THE EXCEPTION WOULD APPLY BECAUSE THE VICTIM WAS UNDER 18 YEARS OLD AT THAT

TIME. IN SHORT,THE VALIDITY OF PETITIONER'S CONVICTIONS DEPENDS ON WHETHER THE

OLD OR THE NEW LAW APPLIES TO HIS CASE,WHICH IN TURN,DEPENDS ON WHETHER THE EX POST

FACTO CLAUSE PROHIBITS THE APPLICATION OF THE NEW VERSION OF ARTICLE 38.07 TO HIS

CASE." Cf. CARMELL V. TEXAS, 120 S.CT. 1620 (2000).

"The Third feature is that Article 38.07, Establishes a sufficiency of the

Rule respecting the minimum quantum of Evidence accessary to sustain a conviction.

If the statute's requirements are not met (for example, by introducing the uncorro

borated testimony of a 15 year old -victim who did not make a timely outcry), a def

endant cannot be convicted, and the Court must enter a judgement of acquittal."

See LEDAY V. STATE, 983 SW.2d. 713 (TEX.CR.APP. 1998); SCOGGAN V. STATE, 799 SW.2d.

679 (SEX.CR.APP. 1990). Texas Amended Article 38.07, effective September 1,1993.The

Amendment extended the GMjLd victim exception to victims under, 18 years old. For four

of petitioner's, that Amendment was critical." CARMELL, supra.

"IN CALDER V. BULL,3 DALL. 386, 390, 1 L.Ed. 648 , JUSTICE CHASE STATED THAT THE

PROSCRIPTION AGAINST EX POST FACTO LAW WAS DERIVED FROM ENGLISH COMMON LAW WELL KNOWN

TO THE FRAMERS,AND SET OUT FOUR CATEGORIES OF EX POST FACTO CRIMINAL LAWS:

"1ST.EVERY LAW THAT MAKES AN ACTION DONE BEFORE THE PASSING OF THE LAW,AND WHICH

WAS TmOCENT WHEN DONE,CRIMINAL,AND PUNISHES^SUCH ACTION." 2ND. "EVERY LAW THAT

AGGRAVATES A CRIME,OR MAKES IT GREATER THAN IT WAS,WHEN COMMITTED." 3RD."EVERY LAW

THAT CHANGES THE PUNISHMENT,AND INFLICTS GREATER PUNISHMENT,THAN THE LAW ANNEXED TO

THE CRIME,WHEN COMMITTED." 4TH. "EVERY LAW THAT ALTERS THE LEGAL RULES OF EVIDENCE

AND RECEIVES ELSE,OR DIFFEREOT7TESTIMONY,THAN THE LAW REQUIRED AT THE TIME OF THE

COMMISSION OF THE OFFENCE,IN ORDER TO CONVICT THE OFFENDER."

"There is plainly afundamental fairness interest in having the government abide by the Rules of Law it establishes to govern the circumstances under which it can

deprive a person of his or her liberty or Life. Id.

"AMENDMENT TO TEAXS STATUTE WHICH AUTHORIZED CONVICTION OF CERTAIN SEXUAL

OFFENSE ON VICTIM'S TESTIMONY ALONE,WHERE PREVIOUSLY CORROBORATING EVIDENCE

SLT" USCA.CONST.AmDl§10,Cl.l; VERNON'S ANN.TEX. CCP.ART. 38.07; ART. 38.07

(1992). CARMELL,Supra.

ACTS"GIVEN^HE^NEW ALLEGEDLY COMMITTED

=^

MANY JEARS BEFOREHAND tVhL ^ vIC_

PERIOD HAD EXPIRED-AS S^p^SS^^^tS^T^MED THE KINDS OF HARM

TIM'S FIRST COMPLAINT TO THE POLICE,THE NTM ^f^* ; TTN7UST AND OPPRESSIVE

DICTIVE LEGISLATION." STOGNER V. CALIFORNIA, 123 S.CT. ^440 u

7
•PETITIONER PROSECUTED FOR NEW OFFENSE

DURING GUILT/INNOCENCE STAGE OF TRIAL

EVIDENCE ADDUCED ABUSE BEGAN AT EIGHT

The records of the case reveals that Petitioner was prosecuted,convicted

and punished for:"CONTINUOUS SEXUAL ABUSE OF A YOUNG CHILD,"Pursuant to TEX.

PENAL CODE ANN.§ 81.02 (2007); which had not yet been enacted at the time of

his alleged Criminal Conduct alleging AGGRAVATED SEXUAL ASSAULT OF A CHILD and

SEXUAL ASSAULT committed on NOVEMBER 8,1996. And such Convictions were/are bar

red by the Ex Post Facto Clauses of USCA.CONST. ARTS. 1§9,C1.3; 1§10,C1.1, and

TEX.CONST. ART.1§16.

"AN EX POST FACTO COMPLAINT ABOUT THE IMPROPER RETROACTIVE APPLICATION OF

A PENAL STATUTE IS NOT REALLY A COMPLAINT ABOUT ERRORS OR DEFECTS IN AN ACCUS

ATORY PLEADING TO A JURY CHARGE. RATHER IT IS A COMPLAINT THAT THE LAW DOES NOT

PERMIT "PROSECUTION" OR CONVICTION FOR BEHAVIOR WHICH DID NOT CONSTITUTE A CRIM

INAL OFFENSE WHEN IT HAPPENED." See IEPPERT V. STATE, 908 SW2d. 217 (TEX.CR.APP.

1995).

Trista Marie Butler/ the complainant/ testified without objection, upon delayed

improper outcry at age 28, that her father-the Petitioner-Sexually abused her for

a period of approximately 10 years. Ms. Butler stated Continous Sexual abuse began

when she was 8-or-9 years old when Petitioner gave he a back massager,had her lay

on his bed and then "showed her how to use it."(RR. Vol 3 at 42).

Ms. Butther testifed Continous Sexual Assaults occured when the Petitioner would

take her into his bedroom, have her undress, lay on his bed, and then he would

"use the Massager on her." (RR. Vol.3 at 48).

Continuing over time, she testified that Petitioner began inserting his fin

ger into her vagina, he would perform Oral Sex on her, and then he would have her

perform ORAL SEX on him. (RR. Vol.3 at 46,52-54). Ms. Butler testified that bet

ween the ages of 8-and-13, she and the Petitioner would have Continuos Sexual encounters-without Sexual intercourse-three-to-five times a week." (RR. Vol.3 at 55).

Ms. Butler testified that when she was -13- years old (in 1996), she lost her

virginity to Petitioner. (RR. Vol. 3 at 58-59). She stated that while she was riding

in a vehicle with her father to a friend's house, he drove her into a wooded area

where he told her that he had something to give her. (RR. Vol. 3 at 61). And then

that he gave Ms. Butler Two Sex Toys - One "Corn-on-the-Cob Dildo" and one "Pink

Dildo." (RR. Vol. 3 at 68-69). In further testifying of continous Sexual Assault

of a Child she stated that Petitioner had her lay down on the seat of the vehicle,

and he tehn performed ORAL SEX on her and also INSERTED THE SEX TOYS IN HER VAGINA.

(RR. Vol. 3 at 70). The Petitioner then took out a condom and told Ms. Butler that

he was "Going to Stick His Dick into her Vagina." (RR. Vol. 3 at 71)(Which is the

only Act of Aggravated Sexual Assault and Sexual Assault of a Child allegedly Com

mitted on NOVEMBER 8, 1996, as alleged in the State's Indictment.). She then test-
ified that the two then had SEXUAL INTERCOURSE For the First Time, with

each reaching Climax, and then they left. (RR. Vol. 3 71-72).

Ms. Butler testified that she told no one of the Continous Sexual Abuses

between the ages of 8-and-13, until she confided in her -13- year-eld cousin,

Brandy Allen shortly after her initial SEXUAL INTERCOURSE with the Petitioner.

Ms. Butler during this improper outcry told -13- year old Ms. Allen that she

had had Sex with her father-that it was normal to her." (RR. Vol. 3 at 80).

Then at Ms. Allen's urging, Ms. Butler wrote a letter to her mother describing

and detailing the previous 5-years of Continuos Sexual Abuse. (RR. Vol. 3 at 81).

Ms. Butler testified shortly after she gave the letter to her mother [Tina

Fullen), that Petitioner confronted her and promised to stop. She claims that the

Continuos Sexual Absue Stopped for a period of approximately Two weeks. (RR.VSIfi3 ,at 85-86).

Outside of the Continuos and ongoing, allegedly weekly Sexual Abuse detailed

above, Ms. Butler detailed other specific Sexual Abuse with the Petitioner,when

testifying without any objection that at age 15-or-16 Petitioner called her to

his trailer to "Pop His Back, and he continued having Sex with her there." (RR.

Vol. 3 at 89).

Ms. Butler recounted how she went in his bedroom, and after having her "Pop"

his back, the Petitioner then made her perform ORAL SEX on him. (RR. Vol. 3 at 90).

He then made her lay on her back on the bed while he Continued to perform ORAL

SEX on her and INSERTED HIS FINGER INTO HER VAGINA. (RR. Vol.3 Id). He then contin

ued to sexually abuse her with Petitioner on top of her, but later switching pos

itions to where Ms. Butler was on top of him. (RR. Vol. 3 at 91).

While they Continued to have Sexual Intercourse, Mr. Butler testified that her

younger sister, MARLENE and her friend MELANIE walked into the room, and then Pet

itioner threw Ms. Butler off of him and covered her with a blanket. (RR. Vol. 3 at

92). MARLENE and MELANIE corroborated Ms. Butler's unobjected to testimony of such

Continuos Sexual Abuse, although their memories of this event when Ms. Butler was

15-16 years old were somewhat different. (RR. Vol 4 at 186-191; RR. Vol. 5 at 17-21).

Ultimately, Ms. Butler testified that Petitioner Continued to have Sexual Inter

course with her until shortly before her -18th- birthday. She estimated that she

had Continous Sexual intercourse with Petitioner more than a Hundred (100) times and

that Petitioner told her not to tell anyone about the Continuos Sexual Abuse, and

warned her that if she did he would hurt her.
NEW OFFENSE BEING FURTHER PROSECUTED AT PUNISHMENT PHASE

The New Offense of Continuous Sexual Abuse of a Child, Pursuant

To TEX. PENAL CODE ANN.§ 21.07 (2007), applied Retroactively to an alledged Single

SEXUAL ASSAULT OF A CHILD,Offense Committed on NOVEMBER 8,1996, is shown to had

been used as different evidence during the Guilt-Innocence Phase to Convict,was

further used during the Punishment phase. Specifically as follows:to further Pros

ecute Petitioner:

CROSS-EXAMINATION OF DEFENSE WITNESS ROY STEELY BY MS. HUFFMAN:

Q. "So you don't know that at the age of eight (8) he started using a

vibrating back massager on Trista's vagina. "You don't know that,do you?"

A. "No".

MR. WALKER: "Objection. Asked and answered. He said he doesn't know any

of the allegations."

THE COURT: "All right. I'll sustain as to that question."

Q. (BY MS. HUFFMAN): "Would it change your opinion if you knew that at age

of Eight (8) he used a vibrating back massager on her vagina?" "Would that

change your opinion of Danny Ray?"

A. "I tell you, I know enough of Danny that I don't believe that."

Q."So would if change your opinion if you knew that he inserted this corn

cob "Dildo" into her vagina?" "Would that change your opinion." "Judge he

is here as a character witness. So its important for the JURY to know if

he would change his opinion if he knew these things about the Defendant.'^ ,, THE COURT: "I'm going to overrule the objection. You can ask the question."

Q. (BY MS. HUFFMAN): "And so my question is, yes or no no, would it change your

opinion if you knew that he inserted that "Dildo" into her vagina when she was

Thirteen (13) years old?"

A. "Yes,it would."

Q. Would it change your opinion if you knew that he inserted this "Pink Dildo"

into her vagina when she was Thirteen (13) Years Old?"

A. "Yes,it would."

Q. "And would it change your opinion if you knew that he "CONTINUALLY HAD SEX

WITH HER UNTIL THE AGE OF EIGHTEEN (18)?"

A. "Yes,it would." (RR. VOL. 6- Pp. 48,49,50,51).

CLOSING ARGUMENT BY THE STATE

MR. SANTIN: "May it please the Court, defense attorney, members of the JURY:

One Child molested One Time is a Life Sentence for that Child. One Child Molest

ed "One" Time should be a Life Sentence for a Sexual Predator." "HERE WE HAVE A

DECADE OF RAPE."

"Every single time he had sex with his daughter, that's a Felony." That man

has "25" (Twenty-five) To Life Over and Over and Over Again." Give him Life.

Let's go home. Thank you." (RR. Vol. 6 Pp.74-77).

MS. HUFFMAN: "He gave Trista a Life Sentence,and it started when she was so

young." "She had to worry at the age of -10- (Ten) if — whether or not I had

to put my mouth on my Dad's penis today. What a terrible thing for a -10- year

old to have to worry about." "When she's -13- she has to wonder, Am I going to

have to have sex with my Dad today?" And she worried about it constantly because

it happened Four (4) TO Five (5) Times a week. Any time he wanted it." So that's

what she's what she was worrying about. And YOU SEE THAT A CHILD HAS GONE THROUGH

A DECADE OF RAPE?" What's that worth?" "Ten Years?" "Twenty Years?" "Sixty Years?"

No. Its worth Life." Because a LONG TIME AGO HE MADE A DECISION TO GIVE HER A LIFE

/

10
SENTENCE." (RR. Vol. b Pp. 82-83).

Likewise See STATE'S OPENING STATEMENT AT PUNISHMENT ARGUING NEW OFFENSE:

MR. SANTINI: "May it please the Court, Mr. Walker, Ms. Little, Members of

the JURY: "One Child molested one time is a Life Sentence for that Child. One

Child Molested "ONE TIME" should be a LIFE SENTENCE FOR THE SEXUAL PREDATOR.

"HERE WE HAVE A DECADE OF RAPE. AND UNLIKE GUILT/INNOCENCE WHEN YOU HEARD .

ABOUT THE DECADE OF RAPE AND ALL THOSE TIMES, Y'ALL COULD NOT USE THAT TO PUN

ISH HIM. "YOU'RE GOING TO LEARN DURING YOUR TIME HERE THAT YOU'RE ALLOWED TO

USE THOSE ACTS DURING PUNISHMENT PHASE FOR TO ACTUALLY PUNISH HIM." IN

GUILT/INNOCENCE YOU CAN ONLY USE THOSE ACTS TO HELP PROVE MOTIVE OR HIS INTENT

FOR THE TWO COUNTS THAT WE HAVE." (RR. Vol. 6 Pp. 6,7). "SO YOU GET TO TAKE

INTO CONSIDERATION EVERY SINGLE TIME. "AND WE'RE GOING TO OFFER ALL OF THE

EVIDENCE FROM GUILT/INNOCENCE SO THAT YOU'RE GOING TO HEAR FROM PUNISHMENT IS

— ARE THOSE FACTS. "SO YOU CAN TAKE INTO ACCOUNT "EVERY SINGLE.TIME HE GROOM

ED HER,"EVERY SINGLE TIME HE CALLED HER A WHORE", "EVERY SINGLE TIME HE PENE

TRATED HER DIGITALLY," "PERFORMED ORAL SEX", "PENETRATED HER WITH HIS SEXUAL

ORGAN," "HIS PENIS." AND YOU HEARD TRISTA SAY, "THE ACTUAL SEX PART," "THE

PENETRATION WITH THE SEXUAL ORGAN, WAS ANYWHERE FROM OVER ONE HUNDRED (100)

LESS THAN FIVE-HUNDRED (500), I THINK SHE SAID."

"AND IF YOU GAVE HIM ONE YEAR FOR EACH SEXUAL ORGAN PENETRATION." "WE'RE

NOT GOING TO CALL ANYBODY. "WHAT WE'RE GOING TO DO IS ENTER THE EVIDENCE THAT

Y'ALL ALREADY HEARD." "SO THIS WHAT YOU'RE GOING TO HEAR AGAIN.'""SO YOU CAN

GIVE ONE YEAR FOR EACH SEXUAL ORGAN PENETRATION, AND ITS STILL A LIFE SENTENCE.

"PROTECTING THE COMPLAINANT AS WE HEARD ABOUT "HIS THREATS" AND WE HEARD

ABOUT HIS ABILITY TO CARRY THESE OUT."

THE COURT: "Thank You, Mr. Santini. All right. Witnesses by the State?"

MS.HUFFMAN: "JUDGE,AT THIS TIME WE OFFER ALL THE EVIDENCE FROM GUILT/

'INNOCENCE "AND THE STATE RESTS.'";. (RR.i' Vol.6 Ppi 7/8/9) .'; ^ p-

.... -^RTHER PROSECUTION -AND PUN±SHMEOT-©BTAI^D-'-'UNDER NEW'OFFENSE ":

AS TO CONTINUOUS SEXUAL ABUSE OF A CHILD ART.21.02,TEX. PENAL CODE !(2007)

AT STATE'S CLOSING ARGUMENT BY MS. HUFFMAN CHILD ASSAULTED 100'S OF TIMES

. . . "SO THE YEARS GO NO AND THE ABUSE "CONTINUES." MAYBE HE THOUGHT THE

"STATUTE OF LIMITATIONS HAD RUN." "SO TODAY IS FINALLY ABOUT TRISTA." "ITS

ABOUT THE HUNDREDS AND HUNDREDS OF TIMES THAT SHE SUFFERED ABUSE AT HIS HANDS."

"Today I'm asking you to tell this Defendant that no Child should ever have

to go through that type of Abuse and then come in here and have to tell you about

it. "I'm asking you to do today what the FACTS JUSTIFY and what Justice demands.

He gave her a Life Sentence, and I'm asking you to return the favor." (RR. Vol.

Pp. 85-86). Cf. Amended TEX.PENAL CODE§§ 21.02, 22.021,Eff. 2007 & 2011,respect

ively; COUNTS I and II, of Indictment; alleging Single Acto of AGGRAVATED SEXUAL

ASSAULT OF A CHILD, And SEXUAL ASSAULT of same Child Committed on NOVEMBER 8,1996,

when CONTINUOUS SEXUAL ABUSE OF A CHILD WAS NOT YET AN OFFENSE. Whereas further

the DEFENSE OF LIMITATIONS (10) YEARS WAS AVAILABLE AT THE TIME SUCH OFFENSES WERE

ALLEGEDLY COMMITTED IN 1996).

"THE INDICTMENT CHARGED A VERSION OF THE OFFENSE THAT WAS NOT IN EFFECT AT

THE TIME OF THE ALLEGED OFFENSE,BUT APPELLANT HAD RAISED. NO OBJECTION OF EX

POST FACTO VIOLATION UNDER U.S. CONSTITUTION. ARTICLE 1§10 AND TEX.CONST.ART.

1§16 AT THE TRIAL LEVEL. APPELLANT'S CONVICTIONS FOR AGGRAVATED SEXUAL ASSAULT

WERE REVERSED AS BEING BASED ON EX POST FACTO LAWS,EVEN THOUGH APPELLANT FAILED

TO OBJECT,WHERE THE INDICTMENT CHARGED A VERSION OF THE OFFENSE NOT IN EXISTENCE

AT THE TIME OF THE CRIME." IEPPERT V. STATE, 908 SW.2d. 217 (TEX.CR.APP. 1995).

11
"AN EX POST FACTO COMPLAINT ABOUT THE IMPROPER RETROACTIVE APPLICATION

OF A PENAL 'STATUTE IS NOT REALLY A COMPLAINT ABOUT ERRORS OR DEFECTS IN

THE ACCUSATORY PLEADING OR A JURY CHARGE. RATHER, IT IS A COMPLAINT THAT

THE LAW DOES NOT PERMIT PROSECUTION OR CONVICTION FOR BEHAVIOR WHICH DID

NOT CONSTITUTE A CRIMINAL OFFENSE WHEN IT HAPPENED." Id. IEPPERT, supra.

"EX POST FACTO PROHIBITIONS DO NOT MERELY CONFER UPON THE PEOPLE A

WAIVABLE OR FORFEITABLE RIGHT NOT TO HAVE THIER CONDUCT PENALIZED RET

ROACTIVELY. INDEED THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO

LEGISLATION IS NOT REALLY AN INDIVIDUAL RIGHT AT ALL. IT IS A CATEGORICAL

PROHIBITION DIRECTED BY THE PEOPLE TO THEIR GOVERNMENT. SHORT OF A CONST

ITUTIONAL AMENDMENT,THE PEOPLE MAY NOT WAIVE THIS PROHIBITION,EITHER IND

IVIDUALLY OR COLLECTIVELY,ANY MORE THAN THEY MAY CONSENT TO BE IMPRISONED

FOR CONDUCT WHICH DOES NOT CONSTITUTE A CRIME." USCA.CONST.ART. 1§10,C1.1,

TEX. CONST. ART. 1§16. Id. IEPPERT, supra.

"THE COURT OF APPEALS DID NOT REACH THE MERITS OF THE CLAIM,HOWEVER,

INSTEAD,HELD THAT APPELLANT FORFEITED THE RIGHT TO COMPLAIN OF IT ON APPEAL

BECAUSE HE DID NOT FIRST RAISE IT IN THE TRIAL COURT. " WE GRANTED DISCRET

IONARY REVIEW TO DECIDE WHETHER PROSECUTION FOR CONDUCT WHICH WAS NOT ILL

EGAL COMMITTED IS A FORFEITABLE IRREGULARITY OF THE TRIAL PROCESS." WE HOLD

THAT IT IS NOT." Id. IEPPERT, supra.

"WHILE THE STATE HAD AN IMPORTANT INTEREST IN PROSECUTING CHILD-ABUSE

CASES, THERE WAS ALSO A PREDOMONATING FEDERAL CONSTITUTIONAL INTEREST IN

FORBIDDING THE STATE TO REVIVE A LONG-FORBIDDEN PROSECUTION; APPLYING THE

"NEW STATUTE AT-HAND WOULD (a) UNFAIRLY SUBJECT THE ACCUSED TO PROSECUTION

LONG AFTER THE STATE, HAD IN EFFECT, GRANTED AN AMNESTY; (b) RETROACTIVELY

WITHDREW A COMPLETE DEFENSE TO PROSECUTION AFTER THE DEFENSE HAD ALREADY

ATTACHED; AND '(c) DO SO IN A MANNER THAT WOULD ALLOW THE STATE TO WITHDRAW

THIS DEFENSE AT WILL AND WITH RESPECT TO. INDIVIDUALS ALREADY IDENTIFIED." . --„

"5|e STO)gNER:; V.:. CALIFORNIA, 123 S.CT., 2446.. (2.0.03),. . • " \i; ';,,;;•/'

•'*""GIVEN THAT, THE NEW STATUTE PURPORTED TO AUTHORIZE PROSECUTION FOR CRIMINAL

ACTS ALLEGEDLY, COMMITTED MANY YEARS BEFOREHAND-EVEN IF THE ORIGINAL LIMITATIONS

PERIOD HAD, EXPIRED-AS'LONG AS PROSECUTION BEGAN WITHIN A YEAR OF AN ALLEGED VIC

TIM'S'FIRST COMPEAi-NT TO THE POLICE,THE NEW STATUTE THREATENED THE KINDS-OF HARM

THAT THE EX POST FACTO PROHIBITION SOUGHT,TOvAVOID,SUCH ^AS'UNJUST AND OPPRESSIVE

RETROACTlfE EFFECTS (b) LACK OF FAIR WARNING^ (c) ARBITRARY'%ND POTENTIALLY VIND

ICTIVE LEGISLATION, AND (d) EROSION OF THE SEPARATION OF IoWEEIS. "--Id.,.. STOGNER.

"AN ARGUMENT,IN FAVOR OF APPLYING SUCH STATUTES,THAT DENIED'THE:EXISTENCE*OF;

RELIANCE INTERESTS (a) IGNORED THE POTENTIALLY LENGTHY PERIOD OF TIME DURING \ .,••

WHICH THE ACCUSED LACKED NOTICE OF THE POSSIBILITY OF PROSECUTION AND DURING "''

WHICH THE ACCUSED WAS UNAWARE,FOR EXAMPLE,OF ANY NEED TO PRESERVE EVIDENCE OF

INNOCENCE, AND (b) WOULD SEEM TO PERMIT A STATE TO REVIVE A PROSECUTION FOR

ANY KIND OF CRIME WITHOUT ANY TEMPORAL LIMITATION." Id. STOGNER, supra.

"THE FEDERAL CONSTITUTION'S TWO EX'POST FACTO PROVISIONS (1)-PROHIBIT THE

FEDERAL GOVERNMENT (UNDER ART. 1§9,C1..3):,AND. (UNDER ART.I§10,C1.1) FROM ENACT

ING LAWS WITH CERTAIN RETROACTIVE EFFECTS,AND (2) ARE AIMED AT PREVENTING UN

FAIR RETROACTIVE LAWS."' Id. STOGNER, "supra.

The New Offense as prosecuted and punished by assessment of an AGGRAVATED

LIFE SENTENCE and TWENTY YEARS Confinement as to such Unjust and Oppressive

Retroactive Effects, and allegedly committed Beforehand and Never Reported

as proper Outcry by a Child -12- years or Younger before NOVEMBER 8,1996,

1

12
8~w

as revealed from the foregoing records. Provides as follows:

TEX.PENAL CODE ANN.' § 21.02, "CONTINUOS SEXUAL ABUSE OF YOUNG CHILD."

fal "In this section "Child" has the meaning assigned by Section

22.01(c).

(b) "A person commits an offense if:

(1) "during a period that is 30 or more days in duration,the

person commits Two or More Acts of Sexual Abuse, regardless of whether

the Acts of S§xual Abuse are committed against one or more victims; and

(2) "at the time of the commission of each of the Acts of Sexual

Abuse, the actor is -17- years of age or older and the victim is a Child

younger than -14- years of age."

(c) "For purposes of this section, "ACT OF SEXUAL ABUSE" Means Any

Act that is in violation of One Or Mdre of the following Penal Laws:

(2) "Indecency with a child under Section 21.11(a)(1),if the act

or committed the offense in a manner other than by touching,including

touching through clothing,the child's breasts;

(3)"SEXUAL ASSAULT UNDER SECTION 22.011;

(4) "AGGRAVATED SEXUAL ASSAULT UNDER SECTION 22.021;

(d) "If a jury is the trier of fact, members of the jury are not required

to agree unanimously on what specific Acts of Sexual Abuse were committed by

the defendant or the exact date when those acts were committed. The jury must

agree unanimously that the defendant, during a period that is -30- days or

more in duaration committed Two or More ACTS OF SEXUAL ABUSE."

(h) "An offense under this section is a felony of the first degree,punish

able by imprisonment in the Texas Department of Criminal Justice for LIFE,or

for any term of not more than 99 years or less than 25 years." ACTS.2007,eff.Sept.

1; Acts 2011, 82nd Leg.,ch. 1 (S.B. 24) Amended. Section 7.01 of Acts 2011,82nd.

Leg., ch.l (S.B.24) provides:

"The change in law made by this Act applies only to an offense committed on

or after the effective date [Sept.1.2011] of this Act. An offense committed be

fore the effective date of this Act is governed by the law in effect on the date

the offense was committed, and the Former Law is continued in effect for that

purpose. For purposes of this section an offense was committed Before the effec

tive date of this Act if any element of the offense occurred before that date."

"Both the United States and the Texas Constitutions contain an absolute prohibion against Ex Post Facto Laws. USCA.CONST. ART. l§10,Cl.l,and TEX.CONST.ART.l§16.

Id. IEPPERT,supra. "The principle upon which the Ex Post Facto Clauses are based is

the central to our concept of fairness, e.g., that a defendant HAVE NOTICE of that

conduct which may subject him to criminal penalties." MARKS V. UNITED STATES, 97

S.CT. 990 (1977); MILLER V. FLORIDA, 107 S.CT. 2446 (1987),and CALDER V. BULL, 3 U.S.

386, DALL. 386, 389, 1 L.Ed. 648 (1798). "Where a defendant is placed on trial

for conduct which was not criminal at the time of its commission,the trial is fund

amentally flawed because it violates our "concept of Constitutional Liberty."

MARKS, 97-'S.CT. at 993.

"IN BEAZELL V. OHIO, 46 S.CT. 68 (1925),THE SUPREME COURT SUMMARIZED THE CHAR

ACTERISTICS OF AN EX POST FACTO LAW:

IT IS SETTLED,BY DECISIONS OF THIS COURT SO WELL KNOWN THAT THEIR CITATIONMAY BE

DISPENSED-WITH,THAT ANY STATUTE WHICH PUNISHES AS A CRIME AN ACT PREVIOUSLY COM

MITTED,^ICH WAS INNOCENT WHEN DONE,WHICH MAKES MORE BURDENSOME AND PUNISHMENT FOR

A CRi'^S,AFTER ITS ^COMMISSION, "OR WHICH DEPRAVES ONE CHARGED WITH, CRIME ANY DEFENSE

AVAILABLE^ACCORDING TO LAW AT THE TIME WHEN THE ACT WAS COMMITTED,IS PROHIBITED AS

EX POST FACTO."

13
IV

PETITIONER WAS DEPRIVED OF A COMPLETE DEFENSE UNDER THE FORMER SEN

YEAR STATUTE OF LIMITATIONS BARRING THE ALLEGED CRIMES OF AGGRAVATED

SEXUAL ASSULT OF A CHILD AND SEXUAL ASSAULT OF A CHILD WHEREAS SUCH A

DEFENSE WAS AVAILABLE ON NOVEMBER 8,1996 AT THE TIME SUCH CRIMES WERE

ALLEGEDLY COMMITTED PURSUANT TO TEX.CODE CRIM.PROC.ART. 12.01 (1991),

AS WAS APPLICABLE RATHER THAN THE MORE ONEROUS AND DISADVANTAGEOUS

RETROACTIVE APPLICATION OF THE (1997),AND (2007) STAIR STEPPED AND

AMENDED VERSIOBS5- REVIVING AN OTHERWISE TIME-BARRED PROSECUTION UNTO

TEN YEARS FROM THE 18TH BIRTHDAY OF THE VICTIM OF THE OFFENSE THEN

UNTO NO LIMITATIONS PERIOD AT ALL,THUS,VIOLATIVE OF USCA.ARTS.1§5,CI.

3.1§10,C1.1;TEX. CONST. ART. 1§16,AND PROHIBITED BY THE EX POST FACTO

CLAUSES.

At the time the alleged offenses of Aggravated Sexual Assault of a

Child Younger than 14, and Sexual Assault of a Child younger than 17 years

of age committed on same day of November 8, 1996. Under then Former TEX.

CODE CRIM. PROC. ART. 12.01(2)(D)(1991),as a Complete and Available Defense

at that time provided an applicable (Ten) -10- Year Time-barred Statute

of Limitations from the commission date of the crimes prior to the (1997)

and (2007) Amended Versions Reviving these otherwise TIME BARRED prosec

utions as applied Retroactively and prohibited by both the State and Fedeca

eral Ex Post Facto Clause in accord with BEAZELL V. OHIO, 46 S.CT. 68 (1925).

TEX.CODE CRIM.PROC. ART. 12.01(2)(D)(1991), in effect as former law still

available as a defense available according to law at the time when the Act

was committed on November 8, 1996, clearly provided:

"EXCEPT AS PROVIDED IN ARTICLE 12.03, Felony Indictments May be presented

Within these Limits, And Not afterwards:"

(2) "TEN YEARS FROM THE DATE OF THE COMMISSION OF THE OFFENSE:"

(D) "SEXUAL ASSAULT UNDER SECTION 22.011(a)(2) OF THE PENAL CODE;

INDECENCY WITH A CHILD."

"Amended by Acts 1983,68th Leg.,p.413, ch. 85, §l,eff. 1983,68th Leg.,

Acts 1991, 72nd Leg., ch. 565, §6,eff. Sept.1,1991."

The (1997), Amended Version of the Statute was retroactively applied

Stair-step fasMon to deprive Petitioner of the Ten Year Statute of Limit

ations Defense which was available according to the former (1991) version

at the time when the NOVEMBER 8, 1996, Acts were allegedly Committed. Was

Amended Effective SEPTEMBER 1,1997, and as prohibited by the Ex Post Facto

Clauses, revived and extended the Limitations period from -10- years, Unto

"TEN YEARS FROM THE ISffH BIRTHDAY OF THE VICTIM OF THE OFFENSE." ACT OF MAY

28,1997,75TH.LEG.,R.S., CH. 740, §§ 1,4,1997,TEX. GEN. LAWS 2403. ~

The (2007), Amended Version of the Statute was ultimately Retroactively

applied to revive otherwise Time-barred Sexual Abuse Offenses of a Child with

NO LIMITATIONS For Sexual Assault, and Aggravated Sexual Assault,celarly dep

riving Petitioner of the -10- Year(Statute of Limitations Defense available

14
according to the law under the (1991),former version of the Statute. And such

Amended Statute further more onerous and disadvantageous as retroactively app

lied, provides: ART.12.01(1)(A)(B)(D)(E)." FELONIES. "Except as provided in

Article 12.03, Felony Indictments may be prsented within these Limits, and

not Afterwards:

(1) "NO LIMITATION:"

(B) "SEXUAL ASSAULT UNDER SECTION 22.011(a)(2),PENAL CODE,OR AGGRAVATED

SEXUAL ASSAULT UNDER SECTION 22.021(a)(1)(B),PENAL CODE";

(D) "CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR CHILDREN UNDER SECTION

21.01,PENAL CODE."

"Acts 2007, 80th. Leg., R.S. , ch. 593, EFF. SEPT. 1,2007).

"APPLYING THE NEW STATUTE IN THE CASE AT HAND WOULD CLEARLY UNFAIRLY (a)

SUBJECT THE ACCUSED TO PROSECUTION LONG AFTER THE STATE HAD,IN EFFECT GRANTED

AMNESTY (b) RETROACTIVELY WITHDREW A COMPLETE DEFENSE TO PROSECUTION AFTER THE

DEFENSE HAD ALREADY ATTACHED: AND (c) DO SO IN A MANNER THAT WOULD ALLOW THE

STATE TO WITHDRAW THIS DEFENSE AT WILL AND WITH RESPECT TO INDIVIDUALS ALREADY

IDENTIFIED." See STOGNER V. CALIFORNIA, 123 S.CT. 2446 (2003).

"PORTION OF LEGISLATION "VOID" WHICH SHOULD ENDEAVOR TO REACH BY ITS RET

ROACTIVE OPERATION ACTS BEFORE COMMITTED." See JAEHNE V. NEW YORK, 9 S.CT. 70

(1888).

"Officer Culak testified that he met with Daughter on November 2, 2011,at

the Willis Police Department. He testified that when Daughter first came to

the Station she initially only complained that Rancher was harassing her and

her husband, But then also told him that Rancher had Molested her AS A CHILD.

Culak testified that Daughter told him that when she was Eight (8) years

old that Rancher had given her "Sexual Toys," Sexual pornographic movies and

had touched her sexually. Daughter told Culak that by the time she was thirteen

years old she had lost her virginity to Rancher." Daughter told Culak that

Rancher taught her how to pleasure herself.

At trial Daughter, then TWENTY-NINE (29) Years Old,testified at length re

garding the Continuous Sexual Abuse as a Child she endured from Rancher.

PRAYER

Wheeefore Premises Considered,Petitioner Pro se prays that this Court of

Appeals considers the Ex Post Facto Claims and Reasons for review,and grants

this Pro se Petition for Discretionary Review.

Dated: 9/41 iS

15.

Respectfully submitted,

Rt. 2 Bflx 4J00 \

Hughes Unit

Gatesville, Texas 76597

-Petitioner Pro Se
CERTIFICATE

I,hereby the undersigned Petitioner Pro se certify that a true and

correct copy of the foregoing Petition for Discretionary Review has been

served on Attorney representing the State by delivering same to TDCJ-ID.,

Officials for mailing to: STATE'S PROSECUTING ATTORNEY, P.O. BOX 13046,

Austin, Texas 78711-3406, on this 4th day of September, 2015, First Class

mail postage prepaid under the prison Mailbox Rule.
APPENDIX "1"

NINTH COURT OF APPEALS MEMORANDUM OPINION

COA. NOS. 09-13-00355-CR & 09-13-00356-CR
i #£• iS

In The

Court ofAppeals

Ninth District ofTexas at Beaumont

NO. 09-13-00355-CR

NO. 09-13-00356-CR

DANNY RAY RANCHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 221st District Court

Montgomery County, Texas

Trial Cause No. 12-01-00820 CR (Counts 1 and 2)

y

MEMORANDUM OPINION

Appellant Danny Ray Rancher appeals his conviction for aggravated sexual

assault ofa child and for sexual assault ofa child. The jury found Rancher guilty of

aggravated sexual assault and sentenced him to life imprisonment and a fine of

$10,000. The jury also found Rancher guilty ofsexual assault and sentenced him to

twenty years imprisonment. The two sentences are to run concurrently. In two
X'

issues, Rancher complains about the admission of outcry witnesses' testimony. We

affirm the trial court's judgments.

I. Background

The record reflects that the complainant is appellant's daughter. In

November 2011, Daughter, at around age twenty-eight, reported acts of sexual

abuse she endured as a child to Officer Adam Culak of the Willis Police

Department. The State indicted Rancher on one count of aggravated sexual assault

and one count ofsexual assault. The State alleged these acts occurred "on or about

November 08, 1996," when Daughter was "a child younger than 14 years of age

and not the spouse of the Defendant[.]" Rancher pleaded "not guilty" to the

charged offenses. The jury found Rancher guilty of the charged offenses. This

timely appeal followed.

II. Standard of Review

We review a trial court's decision to admit an outcry statement for abuse of

discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990) (en banc);

see also Robinett v. State, 383 S.W.3d 758, 761 (Tex. App.—Amarillo 2012, no

pet.). We will reverse the trial court's decision only when the court's decision falls

1To protect the privacy of the parties involved in this appeal, we identify

them bytheir familial titles orinitials.

2
3'

outside the zone of reasonable disagreement. Shaw v. State, 329 S.W.3d 645, 652

(Tex. App.—Houston [14th Dist] 2010, pet. refd).

IH. Outcry Testimony

In Rancher's first and second issues, he argues the trial court erred in

admitting the outcry testimony from both Daughter's mother and Officer Culak. In

his first issue, Rancher argues the trial court erred in admitting the outcry

testimony of Daughter's mother because article 38.072 of the Texas Code of

Criminal Procedure was inapplicable as Daughter was thirteen years old when she

made the statement to her mother.2 In his second issue, Rancher argues the trial

court erred in admitting the outcry testimony ofOfficer Culak because Daughter

was twenty-eight years old at the time she made the statement to Culak and

therefore article 38.072 does not apply to her statements. The State responds that

Rancher failed to preserve either issue for review. The State argues in the

alternative that even if the trial court erred in admitting Mother and Culak's

testimony, any error was harmless.

2The parties disagree over the version of article 38.072 that applies to the

facts ofthis case. Because ofour resolution ofthis appeal, we cite to the current

version ofthe statute.

3
V

A. Preservation of Error

We first address whether Rancher properly preserved his issues for appellate

review. Rule 33.1(a) of the Texas Rules of Appellate Procedure requires that a

party make a"timely request, objection, or motion" to the trial court that "state[s]

the grounds for the ruling that the complaining party sought from the trial court

with sufficient specificity to make the trial court aware ofthe complaint, unless the

specific grounds were apparent from the context[.]" Tex. R. App. P. 33.1(a)(1)(A);

see Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). "The purpose

ofrequiring aspecific objection in the trial court is twofold: (1) to inform the trial

judge ofthe basis ofthe objection and give him the opportunity to rule on it; (2) to

give opposing counsel the opportunity to respond to the complaint." Id.

Rancher complains that the trial court erred in admitting the outcry

testimony from both Daughter's mother and Officer Culak. Article 38.072, entitled

"Hearsay Statement of Certain Abuse Victims," provides that some hearsay

statements are admissible in prosecuting certain offenses, including the offense of

aggravated sexual assault of a child and sexual assault of a child. See Tex. Code

Crim. Proc. Ann. art. 38.072, §§ 1, 2(West Supp. 2014); see also Tex. Penal Code

Ann. §22.011(a)(2) (West 2011), §22.021(a)(1)(B) (West Supp. 2014). Article

38.072 applies to statements that describe the alleged offense and that (1) were
made by the child against whom the offense allegedly was committed and (2) were

made to the first person, eighteen years of age or older, other than the defendant, to

whom the child made a statement about the offense. Tex. Code Crim. Proc. Ann.

art. 38.072, §2(a). The hearsay rule will not bar these statements as inadmissible

if, among other things, the trial court finds, in ahearing outside the presence ofthe

jury, the statement is reliable based on the time, content, and circumstances ofthe

statement. Id. §2(b)(2). Once a defendant raises a hearsay objection to testimony

regarding a child victim's statement, the State, as the proponent of the evidence,

has the burden to establish compliance with the provisions of article 38.072. See

Longv. State, 800 S.W.2d 545, 547-48 (Tex. Crim. App. 1990); Cordero v. State,

444 S.W.3d 812, 816 (Tex. App.—Beaumont 2014, pet. filed).

Regarding Rancher's first issue concerning the admission of outcry

testimony from Daughter's mother, the State argues that Rancher bases his

appellate issue on an alleged technical disqualification under an earlier version of

article 38.072 requiring the child to be younger than thirteen years of age at the

time ofthe outcry, but he did not present this argument to the trial court. The trial

court conducted a hearing outside the presence of the jury to determine the

admissibility ofMother's outcry testimony. At trial, Rancher objected to Mother's

testimony, stating only that his objection was "under 38.072." The trial court
I

overruled Rancher's objection. We conclude Rancher's objection based on article

38.072 was sufficient to preserve error for any failure to comply with article

38.072, including an argument that State failed to comply with the statute because

Daughter was allegedly older than the age established by statute. See Long, 800

S.W.2d at 547-48.

Regarding Rancher's second issue concerning the admission of outcry

testimony from Officer Culak, the State argues that Rancher did not specifically

raise his appellate issue in his trial objection. At trial, Rancher objected to Culak's

testimony as hearsay. In ahearing outside the presence ofthe jury to determine the

admissibility ofCulak's testimony regarding Daughter's outcry statement, Rancher

explained his objection as follows:

We would object, Judge. It is hearsay and, in addition, under

Article 38.072, the Texas Code of Criminal Procedure, I would point

the Court specifically to Section 2, Parenthetical 1 - I'm sorry ~ Parenthetical 3, made to the first person theperson made the outcry to.

He was not the first person. Unfortunately, for the State, the

mother could not give any details as far as the letter, but she was used

as an outcry witness aboutsexual abuse.

To use a second outcry witness is ~ first of all, it is hearsay

and, secondly, it violates the statute or the article in the Code of

CriminalProcedure. Therefore, we would object.

6
n

The trial court overruled Rancher's objections. Rancher presented additional points

to the trial court, but the trial court once again noted that Rancher's objection to the

testimony was overruled. At Rancher's request, the trial court granted him a

running objection to Culak's testimony. On appeal, Rancher specifically argues

that article 38.072 does not apply because Daughter was no longer a child at the

time she made her statement to Culak. The State contends that because Rancher

did not include this specific argument to the trial court he has not preserved error.

We conclude Rancher's objection to Culak's testimony based on hearsay and

article 38.072 was sufficient to preserve error for any failure by the State to comply

with the provisions ofarticle 38.072, including that Daughter's statements were not

the type the statute was designed to address. See Long, 800 S.W.2d at 547-48; see

also Cordero, 444 S.W.3d at 816-19.

B. Harmless Error

Rancher argues that the trial court erred in admitting the testimony of

Daughter's mother when the trial court applied the wrong version of article 38.072

and application of the correct statute would have rendered the testimony

inadmissible because Daughter did not meet the age qualification in the correct

statute. Rancher argues that the trial court erred in admitting the testimony of

7
9

Officer Culak because article 38.072 only applies to statements made by a child

younger than fourteen years of age.

Without concluding that the trial court erred in overruling Rancher's hearsay

and article 38.072 objections to the testimony of Mother and Officer Culak, we

will review whether error, if any, necessitates a reversal in this case. Under the

facts of this case, we review an erroneous admission of hearsay as nonconstitutional error, subject to a harm analysis under rule 44.2(b) of the Texas

Rules of Appellate Procedure. See Tex. R. App. P. 44.2(b). We disregard nonconstitutional error unless it affects the substantial rights of the defendant. Id. "A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997). Aconviction should not be overturned for such error if,

after examining the entire record, we have fair assurance that "the error did not

have a substantial and injurious effect or influence in determining the jury's

verdict." Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). Improper

admission of evidence is not reversible error if the same or similar evidence is

admitted without objection at another point in the trial. Leday v. State, 983 S.W.2d

713, 718 (Tex. Crim. App. 1998) (en banc); see Duncan v. State, 95 S.W.3d 669,

672 (Tex. App.—Houston [1st Dist.] 2002, pet. refd) (holding improper admission
of outcry testimony was harmless error because similar testimony was admitted

through complainant, pediatrician, and medical records). Neither the State nor the

appellant has the burden to show harm when an error has occurred; rather, after

reviewing the record, it is the appellate court's duty to assess harm. Schutz v. State,

63 S.W.3d 442, 444 (Tex. Crim. App. 2001). We must reverse a conviction for

nonconstitutional error if we have "grave doubt" about whether the result ofthe

trial was free from substantial influence ofthe error. Barshaw v. State, 342 S.W.3d

91, 94 (Tex. Crim. App. 2011). "'Grave doubt' means that 'in the judge's mind,

the matter is so evenly balanced that he feels himself in virtual equipoise as to the

harmlessness ofthe error.'" Id. (quoting Burnett v. State, 88 S.W.3d 633, 637-38

(Tex. Crim. App. 2002)).

Rancher complains about Mother's testimony that Daughter had written her

a letter detailing Daughter's allegations of sexual abuse by Rancher. Mother

testified that she did not recall what the letter stated, but that it was about Rancher

molesting Daughter. Mother testified that after she read the letter she confronted

Rancher and he denied all allegations of abuse.

Rancher also complains about Officer Culak's testimony that Daughter told

him that Rancher had sexually abused her from the age ofthirteen until she was

almost eighteen years old. At trial, the defense called Officer Culak to testify.
10

Officer Culak testified that he met with Daughter on November 2, 2011 at the

Willis Police Department. Culak testified that when Daughter first came to the

station she initially only complained that Rancher was harassing her and her

husband, but then also told him that Rancher had molested her as achild. Culak

testified that he took awritten statement from Daughter.

Culak testified that Daughter told him that when she was eight years old

Rancher had given her "sexual toys[,]" "sexual pornographic movies[,] and had

touched her sexually." Daughter told Culak that by the time she was thirteen years

old she had lost her virginity to Rancher. Daughter told Culak that Rancher taught

her howto pleasure herself.

Culak testified that Daughter told him that she had written aletter to Mother

about what had happened, that Mother believed Daughter made the allegations up

for attention, and that Mother had burned the letter after she read it. Culak testified

that Daughter told him that when she was fifteen years old one of her friends

walked into Rancher's bedroom while Rancher was engaged in sexual acts with

Daughter. Culak recalled that Daughter told him that Rancher's sexual abuse

continued until sheleft home at age eighteen.

At trial, Daughter, then twenty-nine years old, testified at length regarding

the abuse she endured from Rancher. Daughter explained that Mother became ill

10
II

around 1992 or 1993 and required frequent stays in the hospital. Mother ultimately

was diagnosed with multiple sclerosis. Approximately ayear or two after being

diagnosed, Mother became confined to a wheelchair, which required Mother,

Daughter, Sister, and Brother to move into adifferent trailer house that included

handicap accommodations. Rancher maintained aseparate trailer on the property

where he conducted his business and also resided. Because Rancher's trailer was

not handicap accessible, Mother could not access it without help and in fact never

went to Rancher's trailer.

Daughter testified that Rancher's sexual abuse and grooming of her began

when Mother first became ill in the early nineties. Daughter explained in detail

how Rancher's abuse began with inappropriate touching and inappropriate

conversations. Daughter testified that after the first incident of inappropriate

touching, Rancher touched her sexually two to four times a week. Daughter

described in detail atime when Rancher digitally penetrated her vagina when she

was about eight or nine years old.

Daughter testified that after Rancher moved into his own trailer the

inappropriate touching progressed. Daughter explained that she had oral sex with

Rancher, that he touched her vagina, and that he would have her watch

11
f2

pornographic movies. She testified Rancher sexually abused her in his trailer three

to five times a week.

Daughter testified that when she was thirteen years old she lost her virginity

to Rancher and described in graphic detail the abuse she endured during this

incident. Daughter testified that after this incident she started having sexual

intercourse with Rancher regularly—she estimated itwould occur between three to

five times a week. She estimated that she has had sexual intercourse with Rancher

more than a hundred times.

Daughter testified that Rancher told her not to tell anyone about the abuse

and warned her that if she did he would hurt her. Daughter testified that once the

sexual abuse started, Rancher sheltered her and would not let her go places that the

other children were allowed to go. She testified that sometimes if she would do

sexual things, Rancher would later take her to meet up with her siblings.

Daughter recalled that she was thirteen years old when she first told

someone about Rancher's abuse; she told her thirteen-year-old cousin. Daughter

explained that Cousin had disclosed to Daughter that Cousin had lost her virginity,

and in response to Cousin's confession, Daughter told Cousin that she too had lost

her virginity and revealed to Cousin that she had had sex with Rancher. Daughter

testified that when she made this confession to Cousin, Daughter believed it was

12
)'3 «*

normal behavior to have sex with her father because it had been the norm for her.

According to Daughter, Cousin did not believe this behavior was normal. Daughter

testified that she then wrote Mother adetailed letter explaining what Rancher had

been doing to her. Daughter testified that Mother did not believe the accusations,

and either Mother orRancher ultimately burned the letter.

Daughter testified that after she told Mother about Rancher's abuse and

Mother did not believe her, Rancher continued to have sexual intercourse with

Daughter. Daughter testified that when she was fifteen years old, Sister and a

friend of theirs from school walked in on Daughter and Rancher having sexual

intercourse.

Cousin corroborated Daughter's testimony. Cousin testified that Rancher

would put the television on pornography with five or six children in the room.

Cousin testified that after Daughter had confided in her, Cousin convinced

Daughter to write Mother a letter. Cousin testified that she was present when

Mother confronted Daughter about the letter. Cousin testified she and Daughter

were both thirteen years old when this happened. Cousin recalled that Rancher

denied the accusations and that his demeanor during the confrontation was

unemotional and nonchalant.

13
z«r' «•

M.K., a friend of Daughter, also corroborated Daughter's testimony.

According to M.K., when she was "still 15, maybe turning 16[,]" she walked into

Rancher's bedroom and witnessed Rancher having sex with Daughter. M.K.

testified that the expression on Daughter's face suggested she was horrified,

embarrassed, and in shock.

Sister also testified. She testified that it was very scary growing up with

Rancher because he had a very bad temper. She testified that Rancher is a "very

mean and aggressive" person and that she tries not to associate with him. Sister

recalled that while they were growing up, Rancher often singled Daughter out and

asked Daughter to massage his back. Sister testified that Rancher would keep

Daughter from going out and doing things with the other children by saying that he

needed her to stay and massage his back or clean his house. Sister recalled an

occasion where she and M.K. had gone to Rancher's trailer to ask him for money

and to see ifDaughter could go with them to aclub. Sister testified that she walked

into Rancher's bedroom and observed Rancher sexually abusing Daughter.

After examining the entire record, and after considering the nature of the

evidence supporting the verdict, we cannot conclude that Rancher's substantial

rights were affected by the admission of the complained-of testimony. The

Mother's testimony and Officer Culak's testimony were merely cumulative of

14
'.§• " '

other evidence admitted without objection. See Duncan, 95 S.W.3d at 672.

Daughter herself gave detailed testimony concerning Rancher's abuse and the

letter she had written to Mother detailing the abuse and Daughter's testimony was

substantially corroborated by Cousin, Sister, and M.K. We conclude that the

admission of the complained-of testimony did not have a substantial or injurious

effect on Rancher's substantial rights. See id.; see also Cordero, 444 S.W.3d at

823; Chapman v. State, 150 S.W.3d 809, 814-15 (Tex. App.-Houston [14th Dist]

2004, pet. refd). Therefore, we disregard any error in the admission of the

complained oftestimony and overrule Rancher's first and second issues. See Tex.

R. App. P. 44.2(b).

Having overruled Rancher's issues on appeal, we affirm the judgments of

the trial court.

AFFIRMED.

Submitted on September 10, 2014

Opinion Delivered January 28, 2015

Do not publish

Before Kreger, Horton and Johnson, JJ.

15

CHARLES KREGER

Justice
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