### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00078
- CR

Jose Rodriguez
- Navarette , Appellant

v. The State of Texas , Appellee

FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- DC
- 18
- 301179 , THE HONORABLE P. DAVID WAHLBERG , JUDGE P R ESIDING

M E M O R A N D U M O P I N I O N
Appellant Jose Rodriguez

- Navarette was convicted by a jury of continuous sexual abuse of a child and indecency with a child by sexual contact. See Tex. Penal Code §§ 21.02(b), 21.11(a). The trial court se nt enced appellant to thirty years’ confinement and ten years’ confinement, respectively, and ordered that the se ntences run concurrently. In his sole point of

error , appellant contends that the trial court abused its discretion by finding that forensic
in te rviewer Grac e Moon was the proper outcry witness for the third incident of abuse alleged to have occurred between appellant and the complainant, GFP. 1 We will modify the judgments to correct a clerical error and affirm the judgments of conviction as mo dif ied

.

1 Because the complai nant is a minor, we will refer to her by her i n itials i n the interest of privacy. See Tex. R. App. P. 9.10(a)(3).2 D ISCUSSION 2

I. Proper Outcry Witness Article 38.072 of the Texas Code of Criminal P rocedure, the outcry statute, governs the admissibility of certain he arsay evidence in trial s for specified crimes against a child younger than fourteen years old. See Te x. Code Crim. Proc. art. 38.072. The statute creates a hearsay exception and allow s testimony of the first adult in whom a child confides regarding sexual or physic al abuse. See i d. at 3 8.072 § 2(a)(3); Martinez v. State , 178 S.W.3d 806, 810

– 11 (Tex. Cri m. App. 2005). The child’s s tatement to the adult is commonly known as the “outcry ,” and the adult who testifies about the outcry is commonly known as the “outcry witness.” Sanchez v. State , 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). The Texas Court of Criminal Appeals has explain ed that under A rticle 38.072, the proper outcry witnes s is the first adult person to whom the child describes the alleged offense in some discerni ble manner beyond general insinuations that sexual abuse occurred. Lopez v. Stat e , 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); see Garcia v. State , 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) (“[T]he statement must be more than words [that] give a general al lusion that something in the area of child abuse was going on.”); see also Reyes v. State , 274 S.W.3d 724, 727 (Tex. App.

— San Antonio 2008, pet. ref’d) (“Simply put , the outcry witness is the first adult to whom the child tells ‘how, when, and where’ of th e assault.”). However, the proper outcry witness is not

2 Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we do not recite t hem in this opinion except as necessary to adv i se the p ar ties of th e Cou rt ’ s decision and the basic reas ons for it. See Tex. R. App. P. 47.1, 47.4.3 determined merely by com paring the statements the chi ld gave to different individuals and then deciding whi ch person received the most detailed statement about the offense. See Thomas

v. State , 1 S. W.3d 138, 141 (Tex. App.

— Texarkana 1999, pet. ref’d) . Rather, the victim must de scribe the offense to the witness. Garcia , 792 S.W.2d at 91. In cases where a chi ld has been victim of more than one instance of sexual assault, multiple outcry witnesses ma y testify about separate acts of abuse committed by the defendant against the chil d, but there may be only one outcry witness per event. Lopez , 343 S.W.3d at 140 ( cit ing Broderick v. State , 35 S.W.3d 67, 73

– 74 (Tex. App.

— Texarkana 2000, pet. ref’d)) ; see In re C.E.S. , 400 S.W.3d 187, 192 (Tex. App.

— El Paso 2013 , no pet. ) (“ Outcry testi mony is event

- specific not person

- specific and, as such, multiple outcry witnesses

ma y testify when the outcry statements are about different events and not a repetition of t he

same events

. ”). The trial court has “broad di scretion” in determining the adm issibility of outcry evidence. Garcia , 792 S.W.2d at 92; see Foreman v. State , 995 S .W.2d 854, 859 (Tex. App.

— Austin 1999, pet. ref’d) (noting that prior cases “establish the difficulty that can arise in identifying the pro per outcry witness, and the broa d discretion of district courts in making this determination”)

. We review a tri al co urt’s ruling on the designation of an outcry witness for an abuse of discretion. Garci a , 792 S.W.2d at 92

. A trial court abuses its discr etion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgome ry

v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 199 0 ) (citing Downer v. Aquamarine Operato rs, Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985)) . We will not reverse a trial court’s ruling if it was “within the zone of reasonable disagreement,” id . at 3 91 (on re h ’ g) , and we must uphold the4 ruling “ if it is reasonably supported by the record an d is correct under any theory of law applicable to the case , ” Brito Carrasco v. State , 154 S .W.3d 127, 129 (Tex. Crim. App. 2005)

. Appellant was indicted on one count of conti nuous sexual abuse of a child, three counts of aggravated sexual assault of a child, and four co unts of indecency with a child by sexual contact. 3 The charge of continuou s sexual abuse of a child alleged in relevant part that appellant, “on or about Febru ary 21, 2018 through April 5, 2018, . . . during a period that was
30 days or more in duration, . . . committed two or more acts of sexual abuse” against G F P , including ag gravated sexual assault and indecency with a child. 4 The State abandoned one o f the counts of indecency during the charge conference , and t he jury sub sequently found appellant
g uilty of continuous sexual abuse of a child and two counts of indecency with a child by sexual contact. However, the trial court reformed the judgment and d eleted one of the counts of

3 GFP was eleven years old at the t ime of the offenses.

4 The charge of continuous sexual abuse of a ch ild alleged the following violations: Agg ra v ated sexua l assault under s ection 22.021, namely, did then and there, intentionally and knowingly cause the penetration of the sexual organ of [GFP], by the sexual organ of the Defendant; AND/OR Aggravated sexu al assault under section 22.021, namely, d id then and t he re, intentional ly and knowingly cause the sexual organ of [GFP] , to contact the mouth of the Defendant; AND/OR Indecency with a child under section 21.11 (a)(1 ), namely, with the intent to arouse an d gratify the sexual desire of JOSE RODRIGUE Z

- NAVARRETE , engage in sexua l contact with [GFP], by touching the genitals of [GFP].5 indecency because it was a lesser

- included o ffense of continuous sexual abuse and therefore subsumed by it. The ul timate ruling serving as the basi s for the present appeal is the result of tw o outcry hea ring s c on ducted o n sepa rate d ates. The first occurred at an e arlier trial that resulted in a mistrial

. The transc ript fr om that hearing was admitted into evidence during the second hearing , on Octob er 21 , 2019. 5 The circumstances underlying GFP’s disclosures of abuse were
est ablish ed through witness testimony presented during the first hearing

. The first adult to whom GFP made an allegation of abuse was her school’s soci al worker, Calisson Keating , on April 18, 2018 . However, at the first outcr y hearing, both sides agreed tha t, due to the perfunctory nature of the allegation , Keating was not the appropriate outcry witness. According to her testimony at that hear ing, Keating reported the allegation to the Austin Police Department (“APD”), and Officer Vaneza Bremner met with GFP and her mother, Yasmin, at the school. Bremner

— whom appellant argued at the hearing should be the sole or principal outcry witness

— described her role as to extract “the most basic information, to be able
to provide that information to detectives so t hey can determine what their next steps are.” In the approximately 13

- minute interview betw een GFP and Bremner , GFP briefly described three incidents of abuse , about which Bremne r tes tified at the first ou tcry hearing

. A t first, GFP was “kind of vague,” and Brem ner had to “bring it out of her.” GFP told Bremner that on three

5 No witnesses testified at the second hearing.6 occasions, she had been taken to a hotel room in Austin near Capital Plaza by her “Aunt Maria.” 6
On the first occasion, “ a man ” had touched GFP o ver her clothing in her “private are a.” On the second occasion, she was kissed but did not specify where on her body. The third time , GFP

“ st ated that the suspect sexually assaulted her. ” Bremner testified that w ith respect to the third incident , she and GF P “ got a little bi t more into i t , ” and GFP told her that Maria had c laimed that she was taking G FP to the hotel to watch Maria’s two

- year - old daughter. GFP detailed the clothes she was wearing, how her clothin g was removed and put back on, and who else was in the room during the assaul t. GFP spelled out “s

- e - x” and clarified that it meant “dick to vagina.” She also discussed “how many times” it occurred. When asked who else was in the room during the as sault , GFP told Bremner that her “Aun t Maria” and “Uncle Jose , ” as well as Maria’s young d augh ter, were present. GFP explained that the assault hurt “like up near her ribs.” She also stated that she had witnessed Maria and appellant having intercourse while s he and Maria’s daughter were in the room. Although GFP told Bremner that one of the incidents had taken approximately three hours, she did not otherwise discuss a time frame for the incidents with her. Bremner learned from Keating that GFP had informed the social worker that two of the incidents occurred

6 Maria Miranda

- Aguirre was a friend of Yasmin’s and a co

- defendant in the ca se. At the time of the offenses, Maria sh a red an apart me nt with Yasmin, GFP, GFP’s siblings, and Maria’s husband and children. Maria did not testify at appellant’s trial.7 in February and one in March. 7 GFP did not mention breast

- touching, breast

- kissing, or oral sex in her statement to Bremner. Following her disclosures to Keating and Bremner, GFP made her third disclo sure to Grace Moon, a forensic interviewer with the Center for Child Protec tion

. Moo n also testified at the first ou tcry hearing. Accor ding to Moon , GFP claimed that she “didn’t remember” why she was there. But when asked if anything else had happened t hat she wanted to talk about,
GFP answered “in a very long narrative form.” T he inte rview took approximately two hours and three minutes

. In her narrative response to Moon , which Moon related in her testimony at the first hearing, GFP stated that her “ t ía ’s 8 lover” had se xually ab used, “touched,” and done “inappropriate” thi ngs to her. She said that Maria had take n her from school to the Super 8 hotel and had sex with appellant while GFP was in the room with “her little cousins”

— Maria’s two young childr en. While in the bathroom o n her phone, GFP heard a ppellant ask Maria if GFP was “go ing to let herself get touche d,” and Maria said yes. Appellant and Maria called GFP over and asked GFP if she was going to let herself get touched. GFP did not know how to respond and

7 Bremn er’s s upplemental report noted that G FP had stated that “the first time in February, Jose touched her in her private a rea above he r clothing.” How ever, the report did not specify whether Bremner had received this information directly from GFP.

8 “T ía ” is Spa nish for aunt. T ía , SpanishDic t.com, https://www.spanishdict.com/tran slate/tia (last visited January 20 , 2022). Elsewhere, GF P defined “ tía ” as “[s]omeone who has always been there and ha[s] supported you.” Moon explained that GFP called Maria her tía an d appellant her tía ’s lover.8 remained sile nt. Maria looked at her “as if to say yes, s ay yes,” and appellant began to touch
GFP “inside her shorts and her titties.” GFP told Moon that the abuse occurred three times. Following her recitation of the narrative, Moon te stified that she questioned GFP , going through the “acts and incidents on e by one.” 9 Recounting GFP ’ s answers, Moon testified that Maria picked GFP up from school and took her home, where GFP changed into shorts and a crop top. Maria then took GFP and he r children to McDonald’s for breakfast before going to the hotel. Maria used her pas sport and cash to rent a room on the first floo r. They met appellant in the room, and Maria and appellant began having sex, which GFP described as “that disgusting thing, ” “s

- e - x,” meaning “when he put his penis inside Maria’s vagina.” Around noon, GFP w as checking her phone when she heard Maria and appellant whispering; appellant asked Maria whether GFP was going to let herself get touched. GFP did not know what to say and stayed quiet. Appellant started touching her inside her shorts on he r vagina, ti ckling it with his fingers. GFP closed her leg s “really tight[ly]” to stop appellant from putting his hand inside her vagina. Appellant also put his hand inside GFP’s sh irt and bra and touched her “titties.” At some point during the incident , appellant gave Maria money.
Moon next testified that GFP told her about a second incident , which began much like the first; Maria picked GFP up from school and took her home to ch ange. However, this time G FP made sure she was wearing pants and a shir t “that was c overing.” They met appellant at an IHOP for breakfast and proceeded to the same hotel. Unlike the previous occasion, the

9 The three incidents GFP related to Mo on during the interview are the same as t h ose disclosed t o Bremner at GF P’s school.9 room only had one bed. Because Maria and appell ant were “moving [it] too m uch,” GFP sat in a chair but made herself sic k from spinni ng it. She threw up in the ba throom, and when she came out, Maria went to take a shower. Appellant called GFP over to the bed, touched her legs, and pulled her closer to him. He took off her pant s and underwear and kissed and licked her vag ina. Next, a ppellant tried to vaginally pe netrate GFP with his penis. Although it “didn’t fit at first,” “then it did fit ” and “hurt her a lot.” When GFP told appellant that it hurt , he laughed. Appellant

a nd Maria began to have sex, and GFP went to th e bathroom to clean her vagina, which felt “gooey and sticky.” Lastly, Moon testified about the facts of the third incident GFP disclosed

. Maria , accompanied by her two children, on ce again picked up GFP fr om school. This time, they drove
stra ight to the hotel with out stopping for breakfast. They met appellant outside the hotel and went to the room. GFP was told to take a shower, and Maria helped her to turn it on. After the show er, GFP redressed and wra pped herself in a blanket because it w as cold. Maria got in the shower, and appellant took off GFP’s clothes, laid her down, and kissed her. He “would start with kissing and licking her vagina, then would put his penis inside her vagina.” With his penis inside her, appellant began to move b ack and forth. Maria came out of the shower, lied down next to GFP, and began licking and touching GFP’s breasts per appellant’s instruction. While appellant’s penis was inside her, GFP’s rib s began to hurt “the more he did it.” When appellant “stopped, ” there was some “whit e stuff that came out and was on his penis and on her vagina.” At the first outcry hearing, foll owing the witness ’ testimony, t he State argued that Moon was the appropri ate outcry witness beca use she had articulated “additional sexual act s that
were not discussed with Officer Bremner,” inclu ding breast touching and oral sex, which were10 given as manner s and means in counts I and III, respectively. The State also emphasize d that GFP had disclosed two instances of “vaginal/penial penetration ” to Moon but on ly one to Bremner. Calling this a “pie cemeal outcry,” the State alternatively asked that Bremner be permitted to testify as to the “partial” outcry, with additional acts and detail offered throu gh Moon’s testimony. The defense maintained that the outcry to Bremner had been adequate: “she gives enough information that there was a sexual assault that took place, and she goes into some detail about the penetration with the penis and the touching,” which was “enough fo r that to constitute an o utcry . . . of a sexual nature.” The defense similarly agreed that there could be two outcry witnesses but insisted that Moon be limited to testifying only about “additional act[s]” dis closed for the first time during her intervie w with GFP. The trial c our t , in making its ruling at the first hearing , explained , “Obviously, there is some significant portion of outcry to Officer Bremner, but I think that there is or there are significant differences including al legations of additional sexual contact or sex ual assault. S o I’m going to hold that Ms. Moon is the proper outcry witness.” The defense in response again suggested that Bremner testify to “whatever statements were made to her” an d that Moon testify “only to the differences.” In addition, the d efen se contended th at any statements made by GFP in response to Moon’s questioning following the initial narrative be excluded from the outcry testimony because they were not “volunteered” b ut were being elicited th rough questioning. The State disagreed, and the trial court acknowledged:
[T] hat’s one of the fundamental problems with this exception to the hearsay rule. And that is, the real design here is to accommodate an outcry which theor etically ought to be a s ort of spontaneous utterance and that’s n ot w hat we’re seeing

. What we’re seeing is specific detailed questioning by the forensic interviewer. That’s why they’re called a forensic interviewer. I think that’s a totally different11 i ssue. I think that the case law that I’m familiar with, at least at this point in ti me, indicates that that’s appropriate. While I might not agree with that analysis, that is the analysis that I think I’m obligated to follow.
Ultimately, the trial court ruled that Moon was the proper outcry witness, and it would “ allow
Br emner to testify basically to exactly what she’s already testified [to] here.” At the second outcry hea ring, on October 21, 2019 , both sides largely reit erated similar arguments. T h e def ense contended that all owing either Bremner or Moon to te stify as an outcry witness w ould introduce inadmissible hearsay testimony and violate appellant’s rights to confrontation and due process. Nevertheless, if one of the two were to qualif y as an outcr y witness, the defense argued, it would be Bremner because she “was t he first adult t o whom the child gave a description or statement describing the alleged abuse in this case.” Although Moon may have been provided more detail, the episodes or events were the same as those disclosed to Bremner, wh o had been told the “how, where, a nd what” of the abuse. As at the first hearing, t he trial court respond ed that it was “philosophically” inclined to agree with the defense but bound by the case law to rule in fav or of the State’s position because of the “particularity of the outc ry to Ms. Moon co mpared to the so rt of general lack of particularity with regard to the statements to Officer Bremner.” When asked if it was saying that only Moon would be eligible to tes tify as an outcry witness, the trial court , deviating from its previ ous ruling of the first hearing , replied, “Now, if you ’ re asking i s Officer Bremner going to be able to testify to any outcry, the answer to that is no. ” The trial court clarified that it woul d not allow the State to “go into any details of the statement the complainant m ay have mad e to Officer Bremner” because:12 [T]he distinction between the two [statements made to Bremner and Moon] only goes to the increased particularity of the outcry to Moon . So not to any discre [te ]l y different incidents that would be supportive of tw o outcry witn esses. I think the only time that I would ever consider

– and the case law indicates that there’s a potential for more than one outcry is if we’re talking ab out tw o different incidents or two differen t statements. Two differ ent incidents I g uess is a be tter way to phrase it.
The State agreed , in its ar gument at the second hearing, that the offense of continuous sexual abuse was covered by “everything the c hild s aid to Moon,” to which the defense protested , asserting that G FP had told Bremn er “ how many instances there were and in general what happened and where it happened and who was there and so forth.” The trial court once more noted that it was inclined to agr ee with the defense “from a philosoph ical and policy perspect ive” but that, ba sed on the case law, Moon was the proper outcry witne ss , and no outcry testimony would be allowed through Bremner. It is this final ruling from the t rial court that appel lant ch allenges in the present appeal

. Br emner did not testify at trial. Prior to the start of trial, and again at the beginning of Moon’s testimony, the trial court noted and overruled the defense’s running objection to Moon’s te stimony on hearsay grou nds an d with regard to whether she was the proper outcry witness. Article 38.072 ap plies only to statements describing the alleged offense. See Tex. Code Crim. Proc. art. 38.072. C ontinuous sexual abuse of a child requires proo f that the offender has c ommi tted “two or more acts of sexual abus e,” during a period of 3 0 days o r more in du r at ion

. See Tex. Penal Code § 21.02(b), (c). Count I of the indictment alleged that appellant committed two or more predicate acts of s exual abuse, including aggrav ated sexual assault (causing penetrat ion of GFP’s sexual organ by appe llant’s sexual organ ), aggravated13 sexual assault (causing GFP’s genitals to contact appellant’s mouth ), an d / o r indecency with a child by sexual contact (touc hing GFP’s genitals).
GFP ’s stat ement to Bremner described at most a commission of the first

ma nner of aggravated sex ual assault. Contrary to the trial court’s ruling, the “particularity,” or detail, of the disclosure is not determinative of the proper outcry witness. See Hines v . Stat e , 551 S.W.3d 771 , 781 (Tex. Ap p.

— Fort Worth 2017 , no pet. ) (“ W e do not determine the sufficiency of a statement for outcry purposes simply by comparing different statements the child gave to different individuals and deciding which person received t he mos t detailed statement about the offense. ”). We must instead loo k to whether child has described the offense in a “discernible manner.” Garcia , 792 S.W.2d at 91. Nevertheless, GFP’s allegations that ap pellant had “touched [her] over her clothing in her pr ivate area or private region” 10 or “kissed” her are

— without more

— insufficient to descr ibe the predicate offenses charged in the indictment. Rather,
t hese statements amount to mere “general allusion[s] that something in the area of child abuse was goi ng on. ” Lopez , 343 S.W.3d at 140 (qu oting Garcia , 792 S.W.2d at 91) ; see Michell

v. State , 381 S.W.3d 554, 559 (Tex. App.

— Eastland 2012 , no pet. ) (holding child’s statements to 911 dispatcher and police off icer that her mom “made her put her hands up in h er,” h er dad “put his middle part up in her ” and “put his male parts inside of her,” and he r parents “touche d her in her private areas” were no more than general allusions to sexual abuse ); Thomas v. State , 309 S.W.3d 576, 579 (Tex. App.

— Houston [14th Dist .] 201 0, pet. ref’d) (child’s stateme nt that

10 Bremner testified that GFP alleged she was touched in her “private area” or “priva te region. ” While the prosecutor in a later qu estion referred to the act as “vaginal t ouching,” it is unclear from the record w h ether GFP spe ci fied the area t ouched in her statement to Bremner.14 defendant “us[ed] his ha nds to touch her” was general allusion); Sims v. State , 12 S.W.3d 499, 500 (Tex. App.

— Dallas 1999, pet. ref’d) (holding trial court did not abuse its discretion by not designating victim’ s moth er as outcry witness where she had been told only that defendan t “had touched [ child ’ s] private parts”)

. Cf. Thoma s , 1 S.W.3d at 141 (holding child’ s mother was proper outcry witness where child told her defendant took her into his bedr oom, “touched her
p rivate parts,” and told her not to tell)

. GFP provided the “ho w, when, and where” fo r the first two incidents of abuse only in her subsequent disclosure to Moon. See Reyes , 274 S.W.3d at
727. It was onl y in the outcry to Moon that GFP for the first time alleged vaginal

- and breast

touching during the first incident and oral sex during t he second. Moreover, GFP’s statement to Moon included an additional allegation of vaginal

- penile penetration not made i n the statement
to Bremner.
From the record befor e us, we are un able to say that the trial court abused its di scretion by finding that Moon was the proper outcry witness. See Garcia , 792 S.W.2d at 92. The trial court’s ruling was not outside the z one of reasonable disagreement. See Montgomery , 810 S.W .2d at 391. Therefore, we overrule appellant’s sole issue.

II. Modification of the Judgment
I n a motion for jud gment nunc pro tunc filed s ubsequent to this appeal , the State notes that the judgment forms for both counts errone o u sly state , “ THIS SENTENCE SHAL L R UN : N/A , ” and ask s that we mo dify the forms to r eflect the trial court ’ s pronouncement at sentencing t hat the sentences run concurrently. A judgment nunc pro tu nc provides a method to correct a discrepancy between the jud gment as pron ounced and th at re f lected in the record. Blan ton

v. State , 369 S.W.3 d 894, 897 (Tex. Crim. App. 2012). “When there is a conflict between the oral15 pronouncement of the sentenc e and the sentence in the written judgment, the oral pronouncement controls.” Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The written judgment is just a “declaration and embodiment of that oral pronouncement.” Id

. We have the authori ty to modify a trial court’s judgments and affi rm them as modified. See Tex. R. App. P. 43.2(b); Bigl ey v. State , 865 S.W.2d 26, 27

– 28 (Te x. Crim. App.
1993 ) (courts of appeals have authority to modify judgment) ; Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.

— Dallas 1991, pet. ref ’ d) (“Appellate courts have the power to reform whatever the trial court c ould have corrected by a judgment nun c pro tunc where t he evidence necessary to correct the judgment appears in the record.”). Accordingly, we grant the State ’ s motion and modify the judgme nt s for both count s to reflect that the sentences shall run conc ur rently

.
CONCLUSION Having overr uled appellant ’s singl e issue, we affirm the court’s judgments of conviction as modified

.

_________________________________ _________ Melissa Goodwin , Justice Before Jus ti ces Goodwin, Triana, and Kelly Modified and, as Modified, Affirmed Filed: January 21, 2022
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