Affirmed and Opinion Filed July 16, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-16-01318-CR JAMES DALTON SMITH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-82195-2015



### MEMORANDUM OPINION Before Justices Bridges, Myers, and Schenck Opinion by Justice Bridges James Dalton Smith appeals his conviction of one count of conti nuous sexual abuse of a child younger than fourteen and two counts of indecency with a child by sexual contact. A jury found appellant guilty and senten ced him to thirty years’ confi nement on the continuous sexual abuse count and four years’ confinement on each indecency count . In eight issues, appellant argues the continuous sexual abuse st atute is unconstitutional on its face and as applied, the indictment was fundamentally defective, the jury charge was fundamentally defective, the evidence is insufficient to show appellant com mitted two or more of the all eged acts of sexual abuse after the effective date of the continuous s exual abuse statute and befor e the complainant reached fourteen years of age, there is a fatal variance between the indictment and the court’s charge, appellant’s sentence and the no parole provision violate state and federal constitutional protections against–2– cruel and unusual punishment, the trial court erred in admittin g evidence of extraneous bad acts, and the trial court erred in overruling appellant’s objection t o Eli Molina being the outcry witness. We affirm the trial court’s judgment. At a hearing outside the presence of the jury at appellant’s tr ial in October 2016, the trial court conducted a hearing to det ermine the proper outcry witnes s. Laura Dueer, the thirty-oneyear-old sister of the complaina nt, C.N.S., testified she had a sked C.N.S. if appellant “had done anything inappropriately with her sexually” when C.N.S. was twe lve or thirteen. C.N.S.’s “answer was no.” However, on January 21, 2015, C.N.S. called Dueer and said she had “lied to [Dueer] back then” and told Dueer that appellant had done something ina ppropriate. Dueer could not “get any kind of specific details” from C.N.S., but C.N.S. said “it started right around her eighth birthday” and ended when she was twelve or thirteen. Dueer “pi cked [C.N.S.] up and took her to the police right away.” Eli Molina, a forensic interviewe r at the Children’s Advocacy C enter of Collin County, testified he interviewed C.N.S . on January 21, 2015. In the in terview, C.N.S. described detailed sexual acts that occurred with her and appellant on more than o ne occasion “from the time that she was nine until twelve or thirteen.” C.N.S. described in detail what she felt during the assaults and described sensory details about multiple assaults. Molina test ified C.N.S. said she had told her sister that she “was molested” a nd told “someone on the Interne t” that “she had been dating,” but Molina testified he was the first person eighteen years of age or older that C.N.S. had “told specific details about what t ouched what.” Appellant objected to Molina being the outcry w itness, but the trial court overruled the objection. C.N.S., seventeen at the time of trial, testified her father, a ppellant, began sexually abusing her in 2008 when she was nine years old. After the first time, appellant abused her “multiple times a week.” About a year after the abuse started, appellant began having sex with C.N.S. When–3– C.N.S. was in “seventh grade and after,” she was sometimes “kin d of out of it” when appellant assaulted her because appellant gave her “pills” and “liquor an d beer and marijuana.” C.N.S. testified appellant sometimes showed her pornography, left a se x toy in her bed after assaulting her one time, and left a picture of his penis on C.N.S.’s cell phone. The abuse ended in 2012, when C.N.S. was twelve or thirteen. E.M., seventeen years old at the time of trial, testified she w as C.N.S.’s “best friend from about sixth to tenth grade.” E .M. testified she frequently spe nt the night at C.N.S.’s house. The second time E.M. spent the night, she woke up and found appella nt “standing at the foot of the bed watching while [she] was asleep.” Appellant had “something up to his face,” and E.M. thought “it was night vision goggles or something like that.” E.M. recogni zed appellant, who was wearing his work uniform. E.M. testified she thought that she might be imagining it, but she moved around and confirmed “it was definitel y not [her] imagination.” E.M. pulled the blanket over herself and waited while she continued to w atch. Appellant “just stood the re for a while and then eventually backed out of the room and didn’ t turn back around until he was out the door.” E.M. testified the incident did not happen again. Lanita Smith testified she is married to appellant’s brother. On one occasion in 2014, after calling appellant to let him know she was coming over, Smith we nt to appellant’s house and knocked on the door. Appellant “took a little while” to come t o the door and, when he opened the door, appellant was wearing boxers, he had a camera around his neck, and “it looked like he had [an erection].” Smith saw C.N.S. inside on a couch. C.N.S. ha d her panties “down around her knees,” and she was wearing a t-shirt. C.N.S. pulled up her pa nties and “sat up off the couch.” Smith went inside and asked C.N.S. if she was okay. C.N.S. sai d she was “fine” and “turned around and walked off.” Smith “thought it was kind of strange” and suspected “something was happening,” but she did not say a nything until after C.N.S. rep orted the abuse. At the conclusion–4– of trial, the jury found appellant guilty of continuous sexual abuse of a child younger than fourteen and two counts of indecency wit h a child by sexual contact. Th is appeal followed. In his first issue, appellant ar gues the continuous sexual abus e statute, penal code section 21.02, in unconstitutional on its face and as applied and resul ted in fundamental error as applied in this case. However, appellant did not raise the issue of th e constitutionalit y of section 21.02 in the trial court. A defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute. Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Further, appellant must preser ve an “as applied” constitutional challenge by raising it at trial.
Flores v. State , 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008). Thus, we co nclude appellant has waived his right to challenge the constitutionality of sect ion 21.02. We overrule appellant’s first issue. In his second issue, appellant argues the indictment in this ca se is fundamentally defective and resulted in egregious erro r. Specifically, appellant compl ains the indictment for continuous sexual assault of a child was a mbiguous because it used “and/or ” language to allege four separate predicate offenses. Again, appellant did not object to the ind ictment in the trial court, and he thereby forfeited any right to object to indictment defects. Teal v. State , 230 S.W.3d 172, 182 (Tex. Crim. App. 2007). We overrule appellant’s second issue. In his third issue, appellant ar gues the jury charge is fundame ntally erroneous and resulted in egregious harm because it abrogated appellant’s right to a u nanimous verdict and failed to require the jury to elect a specific act of abuse, allowed the jury to convict based on the commission of acts less than alleged in the indictment and allowed the jur y to consider acts occurring before the effective date of the conti nuous sexual abuse statute and a fter C.N.S. turned fourteen. Appellate review of purported e rror in a jury charge involves a two-step process. Kirsch
v. State , 357 S.W.3d 645, 649 (Tex. Crim . App. 2012). First, we determ ine whether the jury–5– instruction is erroneous. Id. Second, if error oc curred, then an appellate court must analy ze that error for harm. Id. If, as here, the error was not objected to, it must be “funda mental” and requires reversal occurs only if it was so egregious and created such ha rm that the defendant “has not had a fair and impartial trial.” Barrios v. State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Appellant was charged with contin uous sexual abuse of a child p ursuant to section 21.02 of the Texas Penal Code. S ection 21.02 provides, in pertinent part: (b) A person commits an offense if: (1) during a period that is 30 or more days in duration, the pe rson commits two or more acts of sexual abuse, regar dless of whether the acts of se 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.

.... (d) If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committ ed by the defendant or the exact date when those acts were committed. Th e jury must agree unanimously that the defendant, during a period that is 30 or m ore days in duration, committed two or more acts of sexual abuse. T EX

. P ENAL C ODE A NN . § 21.02 (emphasis added). Count One of the indictment in this case charged appellant wit h the following:
Count 1 during a period that was 30 days or more in duration, committed two or more acts of sexual abuse against [C.N.S.] , said acts of sexual abuse hav ing been violations of one or more of the follo wing penal laws, including: Aggravated Sexual Assault of a C hild: intentionally and knowing ly cause the female sexual organ of [C.N.S.], a child then younger than four teen (14) years of age, and not the spouse of the defendant, to contact the male s exual organ of the defendant; AND/OR Aggravated Sexual Assault of a C hild: intentionally and knowing ly cause the female sexual organ of [C.N.S.], a child then younger than four teen (14) years of age, and not the spouse of the de fendant, to contact the mouth of the defendant;–6– AND/OR Aggravated Sexual Assault of a C hild: intentionally and knowing ly cause the penetration of the female sexual organ of [C.N.S.], a child the n younger than fourteen (14) years of age, and not the spouse of the defendant , by means of the defendant’s finger; AND/OR Indecency With a Child by Contact: intentionally and knowingly, with the intent to arouse or gratify the sexual desire of any person, engage in se xual contact by touching part of the genitals of [C.N.S.] , a child younger than seventeen (17) years of age and not the spouse of the defendant, by means of part of the defendant’s hand; and each of the aforementioned acts of sexual abuse were commit ted on more than one occasion and, at the time of the commission of each of the acts of sexual abuse, the defendant was seventeen (17) years of age or older and [C.N .S.] was a child younger than fourteen (14) years of age; Regarding appellant’s unanimity argument, the trial court’s jur y charge followed the language of section 21.02(d): In order to find the defendant guilty of the offense of Continu ous Sexual Abuse of a Young Child, you are not required to agree unanimously on whi ch specific acts of sexual abuse were committed by the defendant or the exact da te when those acts were committed. However, in order to find the defendant guilty of the offense of Continuous Sexual Abuse of a Young Child, you must agree unanim ously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse. Section 21.02 is a statute that creates a single element of a “ series” of sexual abuse; it does not make each “violation” (act of sexual abuse) a separate element of the offense that needs to be agreed upon unanimously. Render v. State , 316 S.W.3d 846, 858 (Tex. App.—Dallas 2010, pet. ref’d). Thus, the jury charge did not permit a non-unanimous verdict. See id. Regarding appellant’s argument that the charge allowed the jury to consider acts occurring before the effective date of the continuous sexual abuse statut e and after C.N.S. turned fourteen, appellant is correct that the offense of continuous sexual abus e of a young child became effective on September 1, 2007, and the statute does not apply to acts of sexual abuse committed before that–7– date. Gomez v. State , 459 S.W.3d 651, 660 (Tex. App.—Tyler 2015, pet. ref’d). Appe llant complains of the following por tion of the court’s charge: You are instructed that while the indictment alleges that the o ffenses were committed on or about the 12th day of August, 2008 through the 1st day of August, 2013, and on or about the 15th day of March, 2010, respectively , you are not bound to find that the offenses, if any, took place on those specific dates, it being sufficient if such time is approximately acc urate, and occurring prior to August 15, 2015, the date of the return of the indictment for said offenses in this case, and is not barred by the statute of limitations. Appellant argues that this portion of the charge permitted the jury to consider acts occurring at any time prior to August 15, 2015 and thereby perm itted the jury to consider acts occurring before the effective date of the continuous s exual assault statute and aft er C.N.S.’s fourteenth birthday. In examining the record to determine whether jury-charge error is egregious, the reviewing court should consider the entirety of the jury charge itself, t he evidence, including the contested issues and weight of the probative evidence, the arguments of c ounsel, and any other relevant information revealed by the record of the trial as a whole. Stuhler v. State , 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). Here, C.N.S. testified appellant began sexually abusing her in 2008 when she was nine years old, and the abuse ended in 2012, when C.N.S . was twelve or thirteen. There was no evidence presented that any abuse occurred before the co ntinuous sexual assault statute became effective on September 1, 2007 or after C.N.S. turned “t welve or thirteen” in 2012. The application paragraph under count one was predicated on a findi ng that appellant committed the acts of sexual abuse “on or about the 12th day of August, 2008, through the 1st day of August, 2013.” The application paragraph further required the jury to find that, “at the time of the commission of each of the acts of sexual abuse, the defendant w as seventeen (17) years of age or older and [C.N.S.] was a child younger than fourteen (14) years of age.” The testimony showed C.N.S. turned fourteen on August 11, 2013. Considering the rec ord and the charge as a whole, we–8– cannot conclude appellant was egregiously harmed by the charge’ s reference to offenses “occurring prior to August 15, 2015.” Id. Regarding appellant’s argument that the charge allowed the jury to convict based on the commission of acts less than alleged in the indictment, appella nt complains the charge did not track the indictment’s averment that “each of the aforementione d acts of sexual abuse were committed on more than one occasion.” Appellant argues that, h aving pleaded this allegation in the indictment, the State was bound by the indictment and was r equired to prove the allegation but failed to do so because the charge was silent in this respect. Instead, the charge required the jury to find that “any one or more of the aforementioned acts of sex ual abuse were committed on more than one occasion.” As a result, appellant argues, the charge is fundamentally defective because it allowed the jury to convict appellant based on commission of acts less than alleged in the indictment. In his fourth issu e, appellant argues, based on th is same argument, that the evidence was insufficient to show he committed more than one of the alle ged predicate offenses more than thirty days apart or to show he committed each of the alleged p redicate offenses more than once as pleaded in the indictment. In his fifth issue, appellant ar gues there is a fatal variance between the indictment’s allegation that “each of the aforementioned ac ts of sexual abuse were committed on more than one occasion” and the court’s charge that only req uired the jury to find that “any one or more of the aforementioned act s of sexual abuse were committ ed on more than one occasion.” In an evidentiary-sufficiency review, we view all of the eviden ce in the light most favorable to the verdict to determine whet her any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979); Ramjattansingh v. State , No. PD-0972-17, 2018 WL 2714677, at *3 (Tex. Crim. App. June 6, 2018). A reviewing court’s limite d determination on sufficienc y review does not rest on how the jury was instructed. Ramjattansingh , 2018 WL 2714677, at *3. In assessing a challenge to the–9– sufficiency of the evidence in a criminal case, the elements of the charged crime are the elements “defined by the hypothetically cor rect jury charge for the case ,” a charge that “accurately sets out the law, is authorized by the indictment, does not unnecessaril y increase the State’s burden of proof or unnecessarily restrict th e State’s theories of liabili ty, and adequately describes the particular offense for which the defendant was tried.” Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “As authorized by the indict ment” means the statutory elements of the offense as modified by the charging instrument. Id. When a Texas statute lists more than one method of committing an offense or definition of an element of an offense, and the indictment alleges some, but not all, of t he statutorily listed methods or definitions, the Stat e is limited to the methods and definitions alleged. Id. But the hypothetically correct jury charge does not necessarily have to track exactly all of the charging instrumen t's allegations. Id. Under Gollihar
v. State , 46 S.W.3d 243, 257 (Tex. Crim. App. 2001), whether an unprove d allegation is to be included in the hypothetically cor rect jury instruction is dete rmined by whether or not the variance between the allegation and proof is “material.” Id. Only a “material” variance, one that prejudices a defendant’s substantial rights, will render the evidence insu fficient. This happens when the indictment, as written, 1) fails t o adequately inform the defen dant of the charge against him, or 2) subjects the defendant to the risk of being prosec uted later fo r the same crime. Id. The Texas Court of Criminal Appe als has recognized three differ ent categories of variance: 1. a statutory allegation that defines the offense; not subject to materiality analysis, or, if it is, is always material; the hypothetically correct ju ry charge will always include the statutory alle gations in the indictment; 2. a non-statutory allegation that is descriptive of an element of the offense that defines or helps define the allo wable unit of prosecution; some times material; the hypothetically correct jury charge will sometimes include the n on-statutory allegations in the indictment and sometimes not; 3. a non-statutory allegation that has nothing to do with the a llowable unit of prosecution; never material; the hypothetically correct jury ch arge will never include the non-statutory alle gations in the indictment.–10– Id. at *3-4. The bottom line is that, in a sufficiency review, we tolerate variances as long as they are not so great that the proof at trial “shows an entirely dif ferent offense” than what was alleged in the charging instrument. Id. at *4.
In Ramjattansingh , the appellant was charged by information with driving while intoxicated. Id. As the court noted, if the Sta te proves a defendant had “an a lcohol concentration level of 0.15 or more at the time the analysis was performed,” the offense is a Class A misdemeanor. Id. However, the information alleged appellant had “an alcohol co ncentration level of 0.15 or more at or near the time of the commission of the of fense.” Id. at *5. The court held this language in the information fit the test for an immaterial variance. Id. This extra language was a “non-statutory allegation that had nothing to do with the allowable unit of prosecution.” Id. It was an “extra, made-up requirement.” Id. Appellant argued that the language created a material variance because it misled the defense and led appellant to bel ieve “he would have to defend against this discrete allegation.” The court rejected this con tention, noting appellant’s defense was that there was no adequate, non-hearsay proof that appellant wa s driving at all, and appellant did not “anchor his case” to challe nging the alcohol concentration at the time of the test as compared to the concentration at or near the time of driving. Id. at *6. Because the variance between the non-statutory allegation and the proof presented at trial was i mmaterial, the hypothetically correct jury charge did not n eed to include it. Id. Similarly, here the indictment contained extra language that wa s a “non-statutory allegation that had nothing to do with the allowable unit of prosecution.” See id. at *5. The variance between the non-statutory allegation and the proof presented at trial w as therefore immaterial. See id. In reaching this conclusion, we note appellant did not “anchor his case” to challenging the indictment’s averment that “each of the aforementioned acts of sexual abuse were committed on more than one occasion.” Appellant’s defense was that he did n ot commit any acts of sexual abuse.–11– Because the variance in this case was immaterial, the State was not bound by the indictment and was not required to prove the allegation that “each of the afor ementioned acts of sexual abuse were committed on more than one occasion.” We overrule appellant’s third and fif th issues. Regarding the sufficiency of the evidence, the hypothetically c orrect jury charge in this case did not need to include the “extra, made-up requirement” t hat “each of the aforementioned acts of sexual abuse were committed on more than one occasion.” See id. Instead, both the trial court’s charge and the hypothetically correct jury charge inclu de language requ iring proof that “any one or more of the aforementioned acts of sexual abuse wer e committed on more than one occasion,” in keeping with the requirements of penal code secti on 21.02. A conviction for sexual assault of a child is supportable on th e uncorroborated testimony of the victim of a sexual offense alone. T EX

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. P ROC . art 38.07; Revels v. State , 334 S.W.3d 46, 52 (Tex. App.—Dallas 2008, no pet.). Here, C.N.S. t estified appellant began sexually abusing her in 2008 when she was nine years old, appellant abus ed her “multiple times a week and began having sex with her, and the abuse ended in 2012, when C. N.S. was twelve or thirteen. This testimony was sufficient to prove one or more of the acts of se xual abuse were committed on more than one occasion. See Jackson , 443 U.S. at 319; Revels , 334 S.W.3d at 52. We overrule appellant’s fourth issue. In his sixth issue, appellant argues his sentence and the no pa role provision in his sentence violate his constitutional protection against cruel and unusual punishment. This argument has previously been considered and rejected. See Barroquin-Tabares v. State , No. 05-15-00794-CR, 2016 WL 3144160, at *3 (Tex. App.—Dallas May 31, 2016); Glover v. State , 406 S.W.3d 343, 347-50 (Tex. App.—Amarillo 2013, pet . ref’d). We overrule appe llant’s sixth issue. In his seventh issue, appellant argues the trial court erred in admitting evidence of extraneous bad acts or conduct. S pecifically, appellant compla ins of the admission of Smith’s–12– testimony about appellant coming to the door in his boxers and E.M.’s testimony concerning the night vision goggles. Appellant also complains of the admissio n of C.N.S.’s testimony that (1) appellant gave her alcohol, mar ijuana, and other drugs; (2) she found a sex toy in h er bed; and (3) appellant left a picture of his penis on her phone. In additio n to his claim that admission of this evidence was erroneous and harmful, appellant argues the eviden ce did not fall within an exception to the rule against extraneous offense evidence, citing rule of evidence 404(b), and “its probative value is substantially outweighe d by its danger of unfair preju dice or propensity to confuse, delay, mislead, or cumulate,” citing rule of evidence 403. Appellant cites no other authorities in his argument. We review the trial court’s decision to admit or exclude eviden ce, as well as its decision as to whether the probative value of evidence was substantially ou tweighed by the danger of unfair prejudice, under an abuse of discretion standard. Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does not abuse its discretio n unless its determination lies outside the zone of reasonable disagreement. Id. Under the Texas Rules of Evidence, evidence of other crimes, wr ongs, or acts is not admissible “to prove the character of a person in order to show action in conformity therewith.” De La Paz v. State , 279 S.W.3d 336, 342 (Tex. Crim. App. 2009). But it may be ad missible for other purposes, such as proof of motive, opportunity, intent, p reparation, plan, knowledge, identity, or absence of mistake or accident. See T EX

. R. E VID . 404(b); De La Paz , 279 S.W.3d at 342-43. Article 38.37, entitled “Evidence of extraneous offenses or ac ts,” is an evidentiary rule applicable to certain types of sexual abuse cases including sex ual assault of a child, indecency with a child, and continuous sexual abuse of a child. See T EX

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. A NN . art. 38.37 (West Supp. 2016). It supersedes application of Rule 404(b), making admissible extraneous offense evidence that Rule 404(b) does not. See id. §§ 1(b), 2(b). Article 38.37 allows the jury to consider–13– that evidence’s bearing on “rel evant matters,” including the st ate of mind of the defendant and the child, the previous and subseque nt relationship between the def endant and the child, and the character of the defendant and acts performed in conformity wit h the character of the defendant.
See id. Here, appellant does not address the applicability of article 38.37. Nevertheless, we conclude the evidence appellant complains of was admissible und er article 38.37. All of the evidence was relevant to show appellant’s state of mind, his re lationship with C.N.S. and another young girl, E.M., and appellant’s character as the perpetrator of a continuous sexual abuse of a young child. See id. Accordingly, the trial court did not abuse its discretion in admitting the evidence. See De La Paz , 279 S.W.3d at 342-43. We overrule a ppellant’s seventh issue. In his eighth issue, appellant a rgues the trial court erred in overruling his objection to Molina being the outcry witness. Specifically, appellant argue s C.N.S. had made prior outcry to her “step-mother, Amanda Smith,” and Dueer. In addition, appel lant argues the trial court erred in not making findings on the record that the statement made to Molina was reliable based on the time, content, and circumstances of the statement. When a defendant is charged with certain offenses against a chi ld under the age of fourteen or a disabled individual, artic le 38.072 allows into evidence t he complainant’s out-of-court statement so long as that statement is a description of the off ense and is offered into evidence by the first adult the complainant told of the offense. See T EX

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. A NN . art. 38.072 (West Supp. 2016). Article 38.072 has additional requir ements that must be met bef ore an outcry witness may testify. Id. At least 14 days before the trial on the merits begins, the S tate must notify the defendant of its intention to call an outcry witness, who must be identif ied. Id. § 2(b)(1). The State must provide a summary of the outcry statement that will be offered into evidence. Id. Outside the–14– presence of the jury, the trial c ourt must hold a hearing to de termine, “based on the time, content, and circumstances of the statemen t” whether the victim’s out-of -court statement is “reliable.” Id. § 2(b)(2). Finally, the victim must either testify, or be avai lable to testify, at the proceeding in court or in any other manner provided by law. Id. § 2(b)(3). To qualify as an outcry statement under article 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 discernib le way, that being “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). Here, the State filed notice of its intent to offer outcry test imony more than fourteen days before trial, and the trial court conducted a hearing to determ ine the outcry witness. See T EX

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. A NN . art. 38.072 §§ 2(b)(1), (2) (West Supp. 2016). The record sh ows Amanda Smith did not testify at the outcry hearing. Dueer testified C .N.S. called Dueer and told Dueer that appellant had done something inappropriate. Dueer could not “g et any kind of specific details” from C.N.S. On the contrary, Molina testified C.N.S. described detailed sexual acts that occurred with her and appellant on more than one occasion “from the time that she was nine until twelve or thirteen.” C.N.S. described in detail what she felt during the assaults and described sensory details about multiple assaults. Molina testified he was the first per son eighteen years of age or older that C.N.S. had “told specific details about what touched what.” Un der these circumstances, we conclude the trial c ourt did not abuse its d iscretion in determ ining Molina was the outcry witness. See Martinez v. State , 327 S.W.3d at 736. Further, by overruling appellant’s object ions to Molina’s testimony, the trial court impliedly found the statement given to Molina was reliable. See
Halbrook v. State , 322 S.W.3d 716, 722 (Tex. App.—Texarkana 2010, no pet.). We overrule appellant’s eighth issue.–15– We affirm the trial court’s judgment.

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161318F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–16– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JAMES DALTON SMITH, Appellant

No. 05-16-01318-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 401st Judicial District Court, Collin County, Texas Trial Court Cause No. 401-82195-2015. Opinion delivered by Justice Bridges. Justices Myers and Schenck participating. Based on the Court’s opinion of t his date, the judgment of the trial court is AFFIRMED

. Judgment entered July 16, 2018.