### OPINION

No. 04-07-00203-CR

Vicente REYES , Appellant

v. The STATE of Texas, Appellee From the 290th Judicial Distri ct Court, Bexar County, Texas Trial Court No. 2006-CR-6988 Honorable Sharon MacRae, Judge Presiding Opinion by: Rebecca Simmons, Justice Sitting: Catherine Stone, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice Delivered and Filed: August 6, 2008
AFFIRMED Appellant Vicente Reyes was convicted by a jury on five counts of aggravated sexual assault and indecency with a child. On appeal, Reyes argues that the trial court erred in: (1) designating the outcry witness; (2) admitting the te stimony of the State’s medical expert; and (3) failing to hold a pretrial taint hearing regarding the outcry testimony and the child’s testimony. We affirm the judgment of the trial court.04-07-00203-CR

F ACTUAL B ACKGROUND After her sister made allegations of sexual ab use, nine year old S. O. and her two sisters were removed from their home and placed in fost er care. Even though S. O. initially denied any sexual contact, she was assigned a caseworker by Child Protective Services (“CPS”), examined by a doctor at Bexar Count y Child Safe, and ultimately intervie wed by a CPS investigator. All three individuals testified at tr ial. Additionally, S.O. took the stand and testified about sexual abuse committed, over a period of thr ee years, by Reyes, her stepfather. During a pretrial hearing, Reyes’s defense counsel argued S.O.’s outcry statement and subsequent statements were unrel iable because her recollection of events had been stimulated and materially influenced by the way in which she was questioned. As examples of the improper stimulation, Reyes argued that, over six mont hs before her outcry, CPS caseworker Kathy Openshaw showed S.O. videotap es about honesty and being “brave enough” to tell the truth. Additionally, Openshaw read S.O. a book entitled “Good Touc h, Bad Touch,” describing different emotions associated with different types of touching and showed her videotapes depicting different scenarios and what a child sh ould do if someone’s actions created a feeling of discomfort for the child. Finally, Reyes argues that Openshaw provided S.O. a copy of a workbook containing lists of feelings and how to define sexual abuse, as well as discussing bodily fluids. Although not definitive for sexu al abuse, S.O.’s physical ex amination at Child Safe was considered abnormal revealing S.O. had “very little hymen at six o’clock.” According to Openshaw, after explaining to S.O. that her exam ination indicated there had been some abuse, S.O. acknowledged the sexual abuse but the convers ation was limited to S.O.’s emotions and did

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not reveal any specifics with rega rd to the abuse itself. Three days later, S.O. made a detailed, but not complete, outcry to CPS Investigator Caroline Briones. After conducting a pre-trial hearing regarding the admissibility of the outcry statement, the trial court refused Reyes’ reque st to conduct a separate reliability hearing and also refused to exclude the child’s statements. At trial, the defense called Dr. Joann Murphey, a clinical psychologist specializing in sexual abuse, who te stified that Openshaw’s techniques involved a “critical mistake” exceeding the “bounds of acce ptable professional standards of care.” The jury found Reyes guilty on five counts of aggravated sexual assault of a child and two counts of indecency with a child. This appeal followed.
P ROPER O UTCRY W ITNESS The parties agree that the State provided ti mely notice to Reyes that it intended to call Briones as the outcry witnes s and provided a summary of the outcry statement. T EX
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. art. 38.072 § 2(b)(1-3) (Vernon 2005) (r equiring (1) State provide timely notice; (2) trial court conduct a he aring outside the presence of the jury; and (3) ch ild testify or be available to testify). During the 38.072 hearin g, and on appeal, Reyes contends the trial court improperly designated Briones as the outcry witn ess because she was not the first person over eighteen to whom S.O. spoke about the offense, and her statements were, therefore, inadmissible hearsay. A. Texas Code of Crimin al Procedure Article 38.072 Article 38.072 allows for the admission of otherwise inadmissible hearsay in the prosecution of offenses committed against children twelve years and younger. See T EX
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. A NN . art. 38.072 (Vernon 2005). The statute requires the statements be made: (1) by the child against whom the offense was alle gedly committed; and (2) to the first person,

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eighteen years of age or older, to whom the child made a statement about the offense. Id . at § 2(a). To qualify as an outcry statement under articl e 38.072, the statement must be more than a general allusion of sexual abuse and the child must have described the alleged offense in some discernible way, that being “more than words whic h 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). Simply put, the outcry witness is the first adult to whom the child tells “how, when, and where” of the assault. See Hanson v. State , 180 S.W.3d 726, 730 (Tex. App.
─ Waco 2005, no pet.). A trial court has broad discretion in determ ining the admissibility of the proper outcry witness. Garcia , 792 S.W.2d at 92. The exercise of that discretion will not be disturbed unless a clear abuse of that discretion is established by the record. Id .; see also Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (stating that a trial court abuses its discretion when its ruling is outside the “zone of reasonable disagreement”). B. Testimony of Op enshaw and Briones Openshaw, a social worker and director fo r the emergency shelter at the Baptist Child and Family Services, was contacted by Bea Martinez, a CPS caseworker, to assess whether any abuse had occurred with regard to S.O. and to facilita te S.O.’s feelings about being separated from her family and her adjustment to her foster home. Openshaw first saw S.O. on September 25, 2001 and described her as anxious, scared and admittedly sad. Openshaw further testified that at some point between her first and second vi sits with S.O., she learned that S.O.’s physical examination at Child Safe “validated” the pres ence of sexual abuse. As expected, Openshaw questioned S.O. about the examination: I basically started talking to her about the fact that I knew she had gone for an evaluation and, you know, were there things about that that sh e wanted to talk about. She indicated that that was hard for her to talk ab out. I said to her that, you know, sometimes even though it’s hard for you to talk, your body can speak

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for you, and in this case your body has and the results of some of these evaluations indicated that abuse did occur. During that session, S.O. acknowledged that she ha d been abused, but Openshaw testified that she intentionally did not ask any further questions and instead only spoke to S.O. in generalities. “I really wanted to avoid getting de tails and getting into that part of that with her . . . My job was merely to deal with the feelings and con cerns that she might ha ve about that.” Briones, on the other hand, testified that sh e only met ten-year-old S.O. one time, during an interview in October of 2001. She explained that, to her knowledge, she was the first person to interview S.O. regarding the details of the a llegations. As was the protocol at CPS, Briones was called upon “[t]o ascertain if anything was occurr ing to [S.O.] so that she could be safe and also to proceed accordingly for th e actual investigator, whether they needed to make a report to law enforcement, if therapy regarding specific sexual abuse issues would be needed, those kinds of things.” Briones ex plained that she followed specific guidelines during her interview with S.O., including making sure the child understood th at everything she said had to be the truth. S.O. told Briones that she had been sexually abus ed by Reyes. According to Briones, S.O. gave her a detailed description of Reyes making her t ouch his penis and subsequent penetration. S.O. further described the pain associated with the penetration and how Reyes told her that he was sorry and “wouldn’t do it again.” C. Analysis The trial court held a hearing outside the presence of the jury to determine the proper outcry witness. 1 In Garcia , the court indicated that the record must clearly show that the victim described the offense to the witness. Garcia , 792 S.W.2d at 91. The r ecord substantiates that

1 Only Briones, not Openshaw testified at the hearing. The trial court did, however , consider: (1) Openshaw’s notes; (2) a videotape of Briones’ interv iew; and (3) presumably the foster moth er’s statement attached to the State’s Notice of Intent to Present Outcry Statement.

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S.O.’s statement to Openshaw did not describe th e alleged offense with a ny specificity, i.e., the “how, when, or where” appellant touched her, but was instead a general confirmation of the sexual abuse. Id. ; see also Smith v. State , 131 S.W.3d 928, 931 (Tex. App.
─ Eastland 2004, pet. ref’d) (child’s statement to mother that appe llant had been performing oral sex on him did not relay any specific details about the charged offense for purposes of determining proper outcry witness); Castelan v. State , 54 S.W.3d 469, 475-76 (Tex. App.
─ Corpus Christi 2001, no pet.) (grandmother was not proper outcry witness because victim did not relay specific details of the abuse but only stated appellant “ put his thing in through the back”). Briones, on the other hand, testified that S.O.’s statement, including the details of the alleged abuse, was very descriptive. The State confined its examination of Openshaw to what she asked S.O. and allowed Brione s to testify regarding the specifics of the sexual assault. The record indicates the trial court thoroughly considered the testim ony, the attached statements and evidence, and argument of counsel before designating Briones as th e outcry witness. While it is clear that S.O. first told Openshaw about the in cident, the trial court co uld have concluded that S.O. did not tell her any sufficient details of Reye s’s conduct. Contrary to Reyes’s assertion, this case does not present a scenario in which the trial court erred by perm itting outcry testimony from multiple witnesses. See Hernandez v. State , 973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref’d). Accordingly, we cannot conclude the trial court abused its discretion and we overrule this issue.
T ESTIMONY R EGARDING I NCONCLUSIVE M EDICAL E XAMINATION In issue three, Reyes asserts that the tria l court erred in allowing Dr. Nancy Kellogg to testify in support of S.O.’s credibility, argu ing that Dr. Kellogg’s testimony was clearly a comment on the truthfulness of the child. The Stat e contends that at trial, the objection was

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based on the medical examination’s lack of physical evidence in accordance with Salinas v.
State , 166 S.W.3d 368, 370-71 (Tex. A pp.—Fort Worth 2005, pet. ref’d) (in absence of physical evidence, medical doctor’s diagno sis of sexual abuse solely on th e history provided by the child was an abuse of discretion). Ho wever, because Reyes also argued before the trial court that the testimony was “bolstering,” we address this issue on appeal. A. Standard of Review We review the trial court’s de cision to admit or exclude scie ntific expert testimony under an abuse of discretion standard. Sexton v. State , 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). The trial court abuses its discretion if it acts withou t reference to any guiding rules and principles. Montgomery , 810 S.W.2d at 380. Thus, we will uphold th e trial court’s decisi on as long as it is within the zone of reasonable disagreement, given the evidence presen ted and the requirements of Rule 702 of the Texas Rules of Evidence. Sexton , 93 S.W.3d at 99. B. Texas Rule of Evidence 702 The trial court is guided by Texas Rule of Evidence 702 in determining whether expert testimony should be admitted. T EX
. R. E VID . 702. Rule 702 provides: “ If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Id .; Duckett v.
State , 797 S.W.2d 906, 914 (Tex. Crim. App. 1990), disapproved on other grounds, Cohn v.
State , 849 S.W.2d 817 (Tex. Crim. App. 1993) (noting th at to be admissible, expert testimony must “assist” the trier of fact). Expert testimony does not assist the jury if it constitutes “a direct opinion on the truthfulness” of a child victim’s allegations. Yount v. State , 872 S.W.2d 706, 709 (Tex. Crim. App. 1993) (testimony regarding an opini on of truthfulness “does more than ‘assist

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the trier of fact to understa nd the evidence or to determ ine a fact in issue’; it decides an issue for the jury.”). An expert may testify that the wi tness exhibits symptoms consistent with sexual abuse, but not that a witness is truthful. Cohn , 849 S.W.2d at 818-19. Even if admissible under Rule 702, evidence mu st still be relevant—it must make the existence of a fact of consequence more or less probable than it would be without the evidence.
T EX
. R. E VID . 401. A court may also admit expert test imony that a child exhibits behavioral characteristics that have been empirically s hown to be common among children who have been abused under Rule 702. Perez v. State , 113 S.W.3d 819, 832 (Tex. App.
─ Austin 2003, pet. ref’d). Relevance, however, requires that the expert witness tie or relate the pertinent facts of the case to the subject of her testimony. Morales v. State , 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). C. Testimony of Dr. Nancy Kellogg Dr. Nancy Kellogg, the medical director at Child Safe, testified regarding her extensive background in the field of child abuse, includ ing the examination of between eight and nine thousand children. Dr. Kellogg’s so le contact with S.O. was duri ng an examination on April 4, 2001, based on a referral from Child Protective Serv ices. Dr. Kellogg opined that the exam was abnormal, particularly with regard to the hymen at the six o’clock position. Although she explained that it was not an acute finding, i.e ., there was no bruising or bleeding, Dr. Kellogg saw evidence of “something that was already h ealed over.” She considered the examination abnormal with a concern for penetration into S.O.’s hymen caused by trauma. She further explained to the jury that this examination was in the ten percent range of the children that she examines. Although not definitive, Dr. Kellogg tes tified that her findings were consistent with

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“trauma caused by penetration of [S.O.]’s sexual organ with the male sexual organ of another individual.” Dr. Kellogg further testified that she did not discuss any sexual abuse with S.O. or ask her any questions regarding the same. However, based on her experience, she explained that “delay in [sexual abuse] disclosu re is pretty common,” as is wanting to go back and live with the abuser as an attempt to keep the family togeth er. With regard to outcry, Dr. Kellogg testified that many children will initially deny that anything happened and th en gradually give little pieces to “test the water,” then wait and see what happens before they “s how all their cards.” D. Analysis Reyes appears to complain that, because Dr . Kellogg used the word “truth” in some of her answers, her testimony amounted to a comment on the veracity of the S.O.’s allegations. Reviewing the entire record, Dr . Kellogg’s statements explained how she interviews children and the steps taken to ask nonleading questions and allow the child to tell her story. See Kelly v.
State , 824 S.W.2d 568, 573 (Tex. Crim. App. 1992) (holding that, to be considered reliable, expert testimony must be based on proper application of valid techniques). As for Reyes’s complaint that Dr. Kell ogg commented on S.O.’s truthfulness, we disagree. In the present case, there is no eviden ce that Dr. Kellogg testified that the victim was truthful or that sexual abuse victims, as a cl ass, are truthful. To the contrary, Dr. Kellogg testified that, although not definitive, S.O.’s physi cal condition was consistent with the abuse she later described. Here, the subject of Dr. Kellogg’s testimony was the physical condition of S.O. at the time of her examination and a further expl anation of why a delay in reporting the abuse is not uncommon. She described her observations of S.O. and explaine d how S.O.’s physical condition was consistent with the reported assault. Dr. Kellogg did not testify that S.O. was

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abused or that she was telling the truth. Pursua nt to Rule 702, it was permissible for Dr. Kellogg to testify regarding behavioral characteristic s common among abused children and to give her expert opinion that S.O.’s examination was consistent with penetration. T EX
. R. E VID . 702. Accordingly, we overrule this issue on appeal.
R ELIABILITY OF C HILD ’ S O UTCRY S TATEMENT AND T ESTIMONY In the first two issues raised in his brief, Reyes contends that the trial court erred by failing to conduct a pre-trial tain t hearing to determine whether the child’s outcry statement was admissible as required by State v. Michaels , 642 A.2d 1372 (N.J. 1994) , More specifically, Reyes argues the State’s intervie w techniques undermined the reli ability of the child’s outcry statement and trial testimony and th e trial court erred in failing to hold a pretrial hearing to determine the admissibility of both forms of evid ence. Notably, Reyes is not complaining about the admission of any specific testimony, but the l ack of a separate procedure to weigh the reliability of the testimony before it is presented to the jury. Reyes contends that if such a procedure had been utilized, ev idence of the outcry and S.O. ’s testimony would have been excluded. A. State v. Michaels Reyes points to Michaels , 642 A.2d at 1379, for the propositi on that “the use of coercive or highly suggestive inte rrogation techniques can cr eate a significant risk that the interrogation itself will distort the child’s re collection of events, thereby unde rmining the reliability of the statements and subsequent testimony concerning such events.” The Michaels Court noted that statements resulting from suggestive or coercive interview techniques could potentially implicate “principles of constitutional due process.” Id . at 1380. A Michaels analysis provides that once the defendant establishes “some evidence” that the victim’s st atements were the product of

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suggestive or coercive interview te chniques, the burden shif ts to the State to prove reliability of proffered statements and testimony by clear and convincing evidence. Id . at 1383. B. Analysis In Texas, the jury is the exclusive judge of the credibility of the witnesses and the weight to give their testimony, and it is the exclusive pr ovince of the jury to r econcile conflicts in the evidence. Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); see also Johnson v.
State , 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (noting that an appellate court must give deference to the jury’s determinatio n of the weight and credibility of wi tness testimony). The jury is free to accept or reject any part of a witness’s testimony. Lackey v. State , 819 S.W.2d 111, 116 (Tex. Crim. App. 1989). Reliability of the techniques used during a child ’s interview is dependent on an evaluation of the credibility and demeanor of witnesses. See Hernandez v. State , 957 S.W.2d 851, 852 (Tex. Crim. App. 1998). Reyes is unable to provide s upport for his suggestion that th e trial court must conduct a pre-trial taint hearing as prescribed by Michaels , 642 A.2d at 1380. Here, the trial court conducted an article 38.072 hearing as required by the Code of Criminal Procedure. T EX
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. art. 38.072(2)(b). 2 During such, the trial court evaluated the testimony of Briones, her techniques and Openshaw’s notes. In adm itting the testimony, the tria l court implicitly found that the testimony complied with not only article 38.072, but also th e Texas Rules of Evidence. The issues raised are clearly those of credibilit y—the credibility of Openshaw, Briones and even S.O. The evidence was evaluated in light of all th e testimony presented at trial, including that of defense witness Dr. Joanne Murphey’s express con cerns that the interview methods led to S.O.’s allegations of sexual abuse.

2 Section 38.072(2)(b)(2) requires the trial court to conduct a hearing outside the presence of the jury, in order to determine “that the statement is reliable based on the tim e, content, and circumstances of the statement.” T EX

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Accordingly, evidence of “leading” questions or suggestive interview techniques imposed on S.O. was before the members of the jury to a ssist in their credibility assessments. The trial court complied with the requirements of article 38.072, and the defense was allowed full and complete cross-examination of the witnesses. The complaints raised by Reyes are simply questions of credibility of the w itnesses. Because credibility rest s exclusively with the jury, we decline the invita tion to adopt the Michaels procedure, and overrule these two issues on appeal. Wesbrook , 29 S.W.3d at 111. C ONCLUSION The trial court properly allowed Investigator Caroline Briones to testify as the outcry witness in accordance with article 38.072 and allowed Dr. Nanc y Kellogg to opine as to the medical findings of S.O. and behavioral char acteristics regarding sexually abused children. Additionally, we decline to impose a mandate that the trial court hold a pre-trial taint hearing as prescribed in State v. Michaels , 642 A.2d 1372 (N.J. 1994). The evidence was properly admitted under the Texas Code of Criminal Procedure and the Texas Rules of Evidence. We, therefore, affirm the judgment of the trial court.

Rebecca Simmons, Justice Publish

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