Opinion filed May 16, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00127-CR

__________

RICHARD McLAY MELVIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 14188

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

The jury convicted Richard McLay Melvin of the offense of continuous 

sexual abuse of a young child. Appellant elected to have the trial court assess his 

punishment, and it assessed his punishment at confinement for ninety-nine years. 

We affirm.
2

Issues on Appeal

Appellant presents two issues for review. In his first issue, he contends that 

the testimony of the State’s outcry witness was inadmissible hearsay and that, 

therefore, the trial court erred when it admitted the outcry testimony. In his second 

issue, appellant challenges the sufficiency of the evidence to support his 

conviction.

The Charged Offense

To obtain a conviction for the offense of continuous sexual abuse of a young 

child, the State must prove three elements: (1) the defendant “commit[ted] two or 

more acts of sexual abuse,” (2) “during a period that [was] 30 or more days in 

duration,” and (3) “at the time of the commission of each of the acts of sexual 

abuse, the [defendant was] 17 years of age or older and the victim [was] a child 

younger than 14 years of age.” TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 

2012); Brown v. State, 381 S.W.3d 565, 569 (Tex. App.—Eastland 2012, no pet.). 

In this cause, the indictment alleged all the statutory elements of the offense 

of continuous sexual abuse of a young child. The indictment alleged that 

Appellant, who was seventeen years of age or older, committed two or more acts 

of sexual abuse against B.Z.,1 who was younger than fourteen years of age. The 

indictment further alleged that the acts of sexual abuse occurred “DURING A 

PERIOD THAT WAS 30 OR MORE DAYS IN DURATION, TO-WIT: FROM 

ON OR ABOUT SEPTEMBER 1, 2007 THROUGH ON OR ABOUT 

JANUARY 4, 2008.” The indictment described specific acts of sexual abuse that 

Appellant allegedly committed, including aggravated sexual assault by causing the 

penetration of B.Z.’s sexual organ by Appellant’s sexual organ. See PENAL

§ 22.021. 

 1

The child’s initials were used in the indictment to protect her identity. Also to protect the 

identity of the child, we use initials to refer to the child, her mother, and the child’s sister.
3

Sufficiency of the Evidence

We review a sufficiency of the evidence issue under the standard of review 

set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 

893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. 

App.—Eastland 2010, pet. ref’d). Under this standard, we examine all of the 

evidence in the light most favorable to the verdict and determine whether, based on 

that evidence and any reasonable inferences from it, any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. 

Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 

2010). In conducting a sufficiency review, we are required to defer to the jury’s 

credibility and weight determinations because the jury is the sole judge of the 

witnesses’ credibility and the weight to be given their testimony. Merritt v. State, 

368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks, 323 S.W.3d at 899.

The record shows that, during the time period alleged in the indictment, 

Appellant was about thirty-four years old and B.Z. was twelve years old. T.Z. is 

B.Z.’s mother. B.Z. has a younger sister, D.Z. T.Z. married appellant in 2000. 

From February 2006 until January 2008, Appellant, T.Z., B.Z., and D.Z. lived in a 

house on Sam Houston Street in Mineral Wells. In January 2008, Appellant 

moved out of the house. T.Z. and Appellant were divorced in October 2008.

B.Z. testified that Appellant started sexually abusing her when she was about 

six years old. She said that, at that time, she and her family lived in a house at the 

Country Club Estates. Appellant was a truck driver. B.Z. said that the first 

incident of abuse occurred when she went with Appellant and his father in the “big 

truck” on a trip to Columbus, Ohio. B.Z. testified that, while they were on this 

trip, Appellant “touched [her] like a bad touch.” She said that “it happened a lot 

after that” and that “[i]t got worse as [she] got older.” B.Z. said that Appellant’s 

abuse of her consisted of touching until she was in the fourth or fifth grade and
4

that, at that time, he started penetrating her. She said that Appellant usually 

penetrated her with his penis and sometimes penetrated her with a vibrator. B.Z. 

explained that, when she said that Appellant penetrated her with his penis, she 

meant that he put his penis inside of her. The State introduced two vibrators into 

evidence that belonged to T.Z. B.Z. testified that Appellant penetrated her with 

one of these vibrators.

B.Z. testified about incidents that occurred during the time period described 

in the indictment. She said that Appellant penetrated her with his penis around 

Halloween in 2007, during the Christmas holidays in 2007, and around January 3, 

2008. B.Z. said that the January 3 incident occurred right before Appellant moved 

out of the house and that it was the last incident of abuse. B.Z. said that, from 

September 2007 until January 2008, Appellant sexually abused her at least ten 

times and that, during these incidents, Appellant usually penetrated her with his 

penis.

B.Z. said that she told T.Z. about Appellant’s abuse of her in April 2008. 

She testified that she did not tell T.Z. about the abuse earlier because Appellant 

told her that T.Z. would not believe her and because B.Z. was scared that 

Appellant would hurt her family if she told anyone.

T.Z. testified as the outcry witness. T.Z. said that Appellant was employed 

as a truck driver during their marriage. She said that, during 2006 and 2007, her 

marriage to Appellant was not going very well and was “pretty rocky.” At one 

point, T.Z. and Appellant separated, but they reconciled in early 2007 because 

Appellant needed to have shoulder surgery. Around the time that Appellant had 

surgery, T.Z. went to work for Metro. Her work shift started at 2:00 p.m. and 

ended at 11:00 or 11:30 p.m. When T.Z. was at work, Appellant stayed home with 

B.Z. and D.Z.
5

T.Z. testified that the marriage did not improve after Appellant’s surgery. 

She said that Appellant was always tough on B.Z. T.Z. described an incident that 

occurred on January 5, 2008. She said that, on that occasion, B.Z. said something 

that made Appellant angry and then Appellant told B.Z. to “Shut the ‘F’ up” in 

front of B.Z., D.Z., their friends, and T.Z. The situation escalated and, ultimately, 

T.Z. told Appellant to get his things from the house and to leave. T.Z. said that 

Appellant left the house that night. T.Z. testified that she and Appellant talked on 

the phone in the following months. They were divorced on October 22, 2008.

T.Z. testified that, on April 1, 2008, she was watching her best friend’s 

children. At about 9:00 p.m., T.Z. heard her friend’s thirteen-year-old daughter tell 

B.Z., “You need to tell your mom.” T.Z. then asked B.Z., “Tell me what?” In 

response, B.Z. told T.Z. that Appellant had been doing things to her. T.Z. asked 

B.Z. what kind of things, and B.Z. said, “He put his thingy in me.” T.Z. said that 

she was outraged when B.Z. told her about the sexual abuse. B.Z. told T.Z. that 

the first incident of abuse occurred when she had been on a trip with Appellant and 

his father. T.Z. said that this trip occurred in the summer of 2001. B.Z. told T.Z. 

that Appellant put his penis in her vagina and that Appellant sexually abused her 

“[p]robably about 50” times over the years. T.Z. said that she asked B.Z. if she 

knew what happened when boys finished having sex. B.Z. told T.Z. that she knew. 

T.Z. asked B.Z., “[W]hat would [Appellant] do with that?” B.Z. responded, 

“Sometimes it would be inside [her], and sometimes he would put it on [her] 

stomach.” B.Z. told T.Z. that Appellant put his face in her private area. B.Z. also 

told T.Z. that Appellant sometimes put his shotgun on the bed beside them when 

Appellant sexually abused her.

T.Z. testified that B.Z. told her that the last incident of abuse occurred the 

night that T.Z. had gone to see a friend whose dog had died. T.Z. said that the date 

she went to see her friend was January 4, 2008. B.Z. told T.Z. that the incidents of 
6

abuse occurred when T.Z. was not at home. B.Z. told T.Z. that she did not tell her 

about the abuse earlier because Appellant told her that T.Z. would not believe her 

and because Appellant threatened to harm T.Z. and D.Z. if she told anyone.

T.Z. testified that she asked B.Z. whether Appellant said anything to her 

when he abused her. B.Z. said that Appellant sometimes said that “[t]hat was 

nice,” “[t]hat was good,” or that he was going to B.Z. because T.Z. would not have 

sex with him.

The next morning, T.Z. took B.Z. to the Mineral Wells police station to 

report that Appellant had been raping B.Z. T.Z. made the initial report to Corporal 

Adam Davis. Corporal Davis informed Detective Brian Boetz that T.Z. and B.Z. 

had made the report. Detective Boetz and Detective Darby Thomas conducted an 

investigation in this case. They scheduled B.Z. for a forensic interview with a 

Child Protective Services investigator and also for an examination at Cook 

Children’s Medical Center in Fort Worth. B.Z. gave a forensic interview, and the 

detectives observed it. Detective Thomas interviewed T.Z. and obtained a 

statement from her. Detective Thomas obtained a warrant for Appellant’s arrest on 

April 9, 2008. Appellant was arrested in Andrews, Texas, on that same day. The 

following day, Detective Thomas and Detective Boetz transported Appellant from 

Andrews to Mineral Wells.

Donna Ann Wright is a pediatric nurse practitioner at Cook Children’s 

Medical Center. Wright examined B.Z. on April 10, 2008. Wright testified that 

B.Z. was referred to the hospital’s Child Advocacy Resource and Evaluation team 

for medical concerns related to a possible sexual assault. During the evaluation, 

B.Z. said that Appellant had sexually abused her since she was in kindergarten or 

first grade. B.Z. told Wright that “[she] was being raped by [her] stepdad”; that 

“[Appellant] went inside [her] with his penis, [her] vagina”; and that, “[a]t first, 

[Appellant] just rubbed it on there.” In response to questions by Wright, B.Z. said 
7

that Appellant put his penis into her vagina, that Appellant put his finger into her 

vagina, that Appellant put a metal vibrator inside her vagina, that Appellant put his 

mouth on her vagina, that Appellant rubbed her vagina, and that Appellant made 

her rub on his penis. Wright asked B.Z. whether anything came out of Appellant’s 

penis. B.Z. responded, “[Y]es, [and] that it was in her vagina.”

B.Z. also told Wright that she had consensual sex with a thirteen-year-old 

boy when she was twelve years old. Wright testified that twelve-year-old girls 

generally are not sexually active. However, she said that it is not uncommon for 

twelve-year-old victims of sexual abuse by adults to engage in sexual activity 

outside of the abusive relationship. 

Wright testified that B.Z.’s examination revealed that she had a healed 

transection to the hymenal opening, which meant that, at some point, B.Z. had had 

a tear to the opening of her vagina. Wright described the healed injury as “a 

complete tear through the hymen to the base of the vagina.” She said that the 

injury had to have been caused by some type of penetration. Wright said that there 

was no way to determine when the injury occurred. She explained that genital 

tissue heals very, very quickly. Wright testified that her final diagnosis was

“sexual abuse, healed transection to the hymen at 5:00 o’clock, unable to date the 

injury, and no anal trauma.”

On April 11, 2008, Detective Boetz and Detective Thomas interviewed 

Appellant. Detective Boetz advised Appellant of his rights. Appellant waived his 

rights and voluntarily gave an interview. The detectives electronically recorded 

the interview. The State introduced a copy of the interview into evidence. During 

the interview, Appellant brought up the subject of vibrators. He told the detectives 

that, when B.Z. was nine or ten years old, she found T.Z.’s vibrators. Appellant 

said that B.Z. asked him what the vibrators were and that, in response, he told her 

what they were and how to use them. He told B.Z. that vibrators were used for 
8

sexual pleasure. Appellant told the detectives that B.Z. put a vibrator into her 

vagina, that he watched and became sexually aroused, that he masturbated in front 

of B.Z., and that he ejaculated. Appellant said that he may have “accidentally 

gotten some of it” on B.Z. Appellant told the detectives that he masturbated while 

B.Z. used a vibrator on five to ten occasions.

On April 14, 2008, Detective Thomas retrieved the vibrators from T.Z. at 

her house on Sam Houston Street. These vibrators were introduced into evidence.

Appellant testified that, during his interview with the detectives, he did not 

tell the truth when he told them about the incidents that involved B.Z.’s use of a 

vibrator. Appellant testified that the incidents did not occur. According to

Appellant, he understood his rights, including his right to remain silent, but he did 

not understand how to utilize his rights. He said that he told the detectives the 

story about the vibrators because “[he] had already told [himself] that [he] wasn’t 

going to stay in a room with two detectives for seven to eight hours trying to be 

whittled down and drained down.” Thus, Appellant said that he decided to admit 

to the detectives that he committed serious crimes against B.Z. so that he could 

avoid a long interview. Appellant said that he told the detectives what they wanted 

to hear and was, therefore, able to finish the interview in about ten minutes.

During his testimony, Appellant denied that he committed any acts of sexual 

abuse against B.Z. He said that he never had sexual contact with B.Z. He denied 

all of the charges alleged in the indictment.

In summary, B.Z. testified that Appellant put his penis inside her on multiple 

occasions during the time period alleged in the indictment. She said that Appellant 

sexually abused her at least ten times from September 2007 to January 2008 and 

that the incidents of abuse usually involved Appellant penetrating her with his 

penis. Specifically, she said that Appellant penetrated her with his penis around 

Halloween in 2007, during the Christmas holidays in 2007, and around January 3, 
9

2008. B.Z. said that the last incident occurred right before Appellant moved out of 

the house. T.Z. testified that Appellant left the house on January 5, 2008. T.Z. 

testified that B.Z. told her that Appellant put his penis in her vagina. Wright 

testified that B.Z. told her that Appellant penetrated her vagina with his penis. 

B.Z. described to T.Z. and to Wright the long pattern of sexual abuse committed by 

Appellant. Contrary to his statements to the detectives in his interview, Appellant 

testified that he did not have any sexual contact with B.Z.

As the sole judge of the credibility of the witnesses, the jury was free to 

believe B.Z.’s, T.Z.’s, and Wright’s testimony and to disbelieve Appellant’s 

testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Polk, 337 

S.W.3d at 289. In arguing his sufficiency issue, Appellant relies on a lack of 

evidence that B.Z. experienced pain during the sexual penetration and that B.Z. 

experienced physical or emotional symptoms as a result of the sexual abuse. 

Appellant’s argument raises the issue of B.Z.’s credibility. He essentially asks us 

to conclude that B.Z. was not credible even though the jury found her credible. An 

appellate court, however, may not reevaluate the weight and credibility of the 

record evidence and thereby substitute its judgment for that of the jury. 

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewing all the 

evidence in the light most favorable to the verdict, we conclude that a rational trier 

of fact could have found all the elements of the offense beyond a reasonable doubt. 

Therefore, the evidence is sufficient to support Appellant’s conviction for 

continuous sexual abuse of a young child. Appellant’s second issue is overruled. 

Outcry Witness Issue

In his first issue, Appellant contends that T.Z.’s outcry testimony was 

inadmissible hearsay. Article 38.072 of the Texas Code of Criminal Procedure 

permits outcry statements by certain victims of child abuse to be admitted during 

trial, despite the hearsay rule, if the provisions of that article are met. See TEX.
10

CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2012); Michell v. State, 381 

S.W.3d 554, 558 (Tex. App.—Eastland 2012, no pet.). The proper outcry witness

is the first person, eighteen years old or older, to whom the victim made a 

statement about the offense. CRIM. PROC. art. 38.072, § 2(a)(3); Sanchez v. State, 

354 S.W.3d 476, 479 n.1 (Tex. Crim. App. 2011). To qualify as an outcry 

statement, the child’s statement must describe the alleged offense in some 

discernible manner and must amount to “more than words which give a general 

allusion that something in the area of child abuse was going on.” Garcia v. State, 

792 S.W.2d 88, 91 (Tex. Crim. App. 1990); Reyes v. State, 274 S.W.3d 724, 727 

(Tex. App.—San Antonio 2008, pet. ref’d). 

Under Article 38.072, a hearsay statement is admissible if (1) the State 

provides timely notice to the defendant of its intention to introduce an outcry 

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 trial. CRIM.

PROC. art. 38.072, § 2(b). A trial court has broad discretion to determine the 

admissibility of outcry evidence, and we will not disturb its determination absent a 

showing in the record that the trial court clearly abused its discretion. Garcia, 792 

S.W.2d at 92; Smith v. State, 131 S.W.3d 928, 921 (Tex. App.—Eastland 2004, 

pet. ref’d).

In this case, the State provided Appellant timely notice, as required by 

Article 38.072, of its intent to use T.Z. as the outcry witness. The trial court 

conducted a hearing to determine the reliability of B.Z.’s statements to T.Z. The 

only issue for determination at an Article 38.072 hearing is whether, based on the 

time, content, and circumstances of the outcry statement, the statement is reliable. 

Sanchez, 354 S.W.3d at 478, 487–88. In Sanchez, the Court of Criminal Appeals 

explained that “[Article 38.072] charges the trial court with determining the 
11

reliability based on ‘the time, content, and circumstances of the statement’; it does 

not charge the trial court with determining the reliability of the statement based on 

the credibility of the outcry witness.” Id. at 487–88. Thus, the credibility of the 

outcry witness is not a relevant issue at a hearing to determine admissibility of an 

outcry statement. Id. at 488. 

In this case, the trial court found that B.Z.’s outcry statement to T.Z. “[was] 

reliable based on time, content, and circumstances” and that the State satisfied the 

other requirements of Article 38.072 for admissibility of the outcry statement. 

Therefore, the trial court admitted T.Z.’s outcry testimony. 

Appellant contends that, based on T.Z.’s testimony, B.Z.’s outcry statement 

to T.Z. “only created a general allusion of sexual abuse” and that, therefore, the 

statement was unreliable. Appellant relies on Garcia to support his contention. In 

Garcia, a child made statements about abuse to her teacher and, later, to a Texas 

Department of Human Services employee. 792 S.W.2d at 89–90. The State 

designated the Department employee as the outcry witness. Id. at 90. The trial 

court held an Article 38.072 hearing. At the hearing, the Department employee 

testified in detail about the child’s description to him of the alleged offense. Id. 

The trial court ruled that the Department employee was the proper outcry witness. 

Id. On appeal, the defendant asserted that the child’s teacher was the proper outcry 

witness because she was the first person eighteen years or older to whom the child 

made a statement about the offense. Id. 

In Garcia, the record showed “that the [child] told her teacher that 

something happened at home, and that it had to do with child abuse.” Id. at 91. 

The child testified that she told her teacher “what happened.” Id. at 90. However, 

the record did not contain evidence as to any specific details of the statements that 

the child made to her teacher or as to any description of the alleged offenses that 

the child told her teacher. Id. at 91. The Court of Criminal Appeals explained that
12

the child’s general statements about abuse to her teacher “apparently did not, in 

context, and in the trial court’s view, amount to more than the general allusion”

that something in the area of child abuse happened. Id. Thus, the statements did 

not describe an alleged offense in a discernible manner. The Court of Criminal 

Appeals emphasized that, from the record, it could not determine “what it was the 

complainant told her teacher.” Id. Therefore, the court held that the trial court had 

not abused its discretion when it determined that the Department employee was the 

proper outcry witness. Id. at 92. 

This case is distinguishable from Garcia. In this case, T.Z. testified at the 

Article 38.072 hearing. T.Z.’s trial testimony, which we have summarized above, 

was substantially similar to her earlier testimony at the Article 38.072 hearing. At 

the hearing, T.Z. testified that she was the first person eighteen years old or older 

to whom B.Z. made statements about Appellant’s sexual abuse. T.Z. also testified 

that B.Z. told her, among other things, that “[Appellant] put his thingy in [her],” 

that Appellant put his face in her private area, that Appellant put his penis in her 

vagina, that Appellant ejaculated inside her, that Appellant sometimes ejaculated 

on her stomach, and that Appellant sexually abused her about fifty times over the 

years. Thus, T.Z.’s testimony supports the conclusion that B.Z. told her about 

specific acts of penetration. B.Z.’s statements to T.Z. described the offense in a 

discernible manner and created significantly more than a general allusion that 

something in the area of sexual abuse occurred. We conclude that the trial court 

did not abuse its discretion when it admitted T.Z.’s outcry testimony. Appellant’s 

first issue is overruled.
13

This Court’s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

May 16, 2013

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

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.