COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00119-CR

JOSEPH MITCHELL BERMAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury acquitted Appellant Joseph Mitchell Berman of aggravated sexual 

assault of a child but convicted him of sexual performance by a child, aggravated 

kidnapping, and indecency with a child by exposure. The jury assessed his

punishment at twenty years’ confinement for the conviction of indecency with a 

 1

See Tex. R. App. P. 47.4.
2

child and at life imprisonment for the convictions of aggravated kidnapping and 

sexual performance by a child. The trial court sentenced Appellant accordingly.

Appellant brings seven points on appeal, arguing that the trial court 

improperly allowed two witnesses to testify as outcry witnesses, that the trial 

court improperly admitted hearsay evidence, and that the evidence was 

insufficient to support the convictions for aggravated sexual assault of a child, 

sexual performance of a child, aggravated kidnapping, and indecency with a child 

by exposure. Because the evidence is sufficient to support the jury’s guilty 

verdicts and because the trial court did not abuse its discretion by admitting the 

evidence complained of, we affirm the trial court’s judgment.

Summary of the Facts 

The six-year-old female complainant was playing in the front yard with 

other children. Appellant lived next door and had a truck the children often used 

as a “base” when they played tag. At some point during the afternoon, Appellant 

picked up the complainant and carried her to a neighbor’s house around the 

corner. Appellant had a key to the house because the family was out of town 

and had asked him to keep an eye on the house and to feed their dogs.

Appellant gave the complainant treats they found in the house. Appellant 

took off his clothes and urinated while the complainant watched. He removed 

her clothes, and they played “mommy and daddy.” Appellant kissed her all over 

and licked her “back privacy.” They worked puzzles and rode on a rocking horse.
3

The complainant said that Appellant had to get on her back to ride the horse and 

that she did not like it, so she got off.

The complainant’s grandmother (Grandmother) went looking for the 

complainant. Grandmother questioned the neighbors and went to the house 

where Appellant had taken the complainant. The complainant heard 

Grandmother knocking on the door and calling for her. But Appellant refused to 

answer the door, and Appellant told the complainant that Grandmother was mad 

at him. Soon, Appellant told the complainant that it was time to go. He picked 

her up, carried her through the backyard of the house to which he had taken her, 

and dropped her over the fence into a culvert.

By this time, the police had arrived to search for her, and a police officer, 

Sergeant Jose Murillo, was searching in the culvert. The complainant saw his 

flashlight and ran toward him. He noticed that she had on socks, but no shoes.

When the police officer returned the complainant to her family, Grandmother 

noticed that the complainant was dressed but that her underwear was on inside 

out and backwards.

After the police left that night, the complainant was taken to Cook 

Children’s Hospital for a sexual assault examination, and on the day after the 

incident she was interviewed by a forensic interviewer. Inside the neighbor’s 

house where Appellant had taken the complainant, the police found the empty 

treat containers and the complainant’s shoes. When the homeowner arrived, he 

noticed a rocking horse on the son’s bed and lint in the dryer trap where 
4

Appellant had dried his and the complainant’s clothes. He also discovered that 

the DVR for the home’s security system was missing.

Appellant was arrested when he attempted to pick up his paycheck early. 

Police found an open briefcase in his house. The briefcase contained passports 

and important documents. When police attempted to obtain buccal swabs from 

Appellant, pursuant to a warrant, he fought the officers to prevent their taking the 

swabs. DNA analysis revealed that Appellant’s DNA was on the complainant’s 

buttocks and abdomen.

A hair was discovered on a swab from the complainant’s inner labia. 

When the police attempted to collect pubic hair and head hair from Appellant, 

pursuant to a warrant, they discovered that Appellant had shaved his pubic hair 

as well as the hair on his buttocks. The hair found on the complainant was later 

found to be an animal hair.

Aggravated Sexual Assault

In his fourth point, Appellant challenges the sufficiency of the evidence to 

support his conviction for aggravated sexual assault of a child. The jury 

acquitted Appellant of that charge. We, therefore, dismiss Appellant’s fourth 

point as moot.2

 2

See Tex. R. App. P. 47.1; Martinez v. State, No. 02-08-00112-CR, 2008 

WL 5194307, at *1 (Tex. App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op., 

not designated for publication).
5

Sufficiency of the Evidence

In his fifth, sixth, and seventh points, Appellant argues that the evidence 

was insufficient to sustain his convictions for sexual performance of a child, 

aggravated kidnapping, and indecency with a child by exposure.

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the verdict to 

determine whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.3

 We consider all the evidence 

in the case, even improperly admitted evidence.4

This standard gives full play to the responsibility of the trier of fact to 

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts.5

 The trier of fact is the sole judge of 

the weight and credibility of the evidence.6

 Thus, when performing an evidentiary 

sufficiency review, we may not re-evaluate the weight and credibility of the 

 3

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).

4

Winfrey, 393 S.W.3d at 767.

5

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350 

S.W.3d 588, 595 (Tex. Crim. App. 2011).

6

See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768.
6

evidence and substitute our judgment for that of the factfinder.7 Instead, we 

determine whether the necessary inferences are reasonable based upon the 

cumulative force of the evidence when viewed in the light most favorable to the 

verdict.8

 We must presume that the factfinder resolved any conflicting inferences 

in favor of the verdict and defer to that resolution.9

Appellant argues merely that the complainant’s testimony was ambiguous 

and lacked credibility. He also argues inferentially that we should not consider 

what he describes as the wrongfully admitted testimony of Grandmother, the 

forensic interviewer Carrie Pascall, and the sexual assault nurse examiner 

Areseli Demarias. Appellant does not direct us to any other insufficiency in the 

evidence.

A person commits the offense of sexual performance by a child when he 

intentionally or knowingly induces a child to engage in sexual conduct or a sexual 

performance.10 Appellant carried the complainant to an empty house, took off his 

clothes and hers, and played “mommy and daddy” with her. He kissed her “all 

 7

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

8

Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see 

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

9

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360.

10Tex. Penal Code Ann. § 43.25(b) (West 2011).
7

over” and licked her “back privacy,” and his DNA was found on her abdomen and 

buttocks.

A person commits the offense of aggravated kidnapping in the context of 

the case before us when he intentionally or knowingly abducts another person 

with the intent to violate or abuse her sexually.11 Appellant picked up the 

complainant and carried her to an empty house. Inside the house, he took their 

clothes off and engaged in lewd activity, playing “mommy and daddy,” kissing her 

all over, and licking her “back privacy.” When Grandmother knocked on the door 

and called for the complainant, Appellant refused to answer or open the door, 

although the complainant had asked him to go to the door. Appellant also 

refused to go to the door when the police knocked. He did return the child, but 

he did so by dropping her over the fence into a drainage ditch.

A person commits the offense of indecency with a child by exposure if he 

exposes his genitals to a child younger than seventeen years of age, knowing the 

child is present, with intent to arouse or gratify his sexual desire.12 Appellant 

took all his clothes off, took the complainant’s clothes off, and played “mommy 

and daddy” in the empty house. Appellant kissed the complainant “all over” and 

licked her “back privacy.” The complainant described Appellant’s penis as 

“straight” and “big” and “fat.”

 11Id. § 20.04(a)(4).

12Id. § 21.11(a)(2)(A).
8

Considering all the evidence, we hold that the evidence is sufficient to 

support Appellant’s convictions, and we overrule his fifth, sixth, and seventh 

points.

Outcry Witnesses

In his first and second points, Appellant argues that the trial court abused 

its discretion by allowing outcry testimony from Grandmother and from Pascall, 

the forensic interviewer. Our law provides that

hearsay is inadmissible unless it falls into one of the exceptions in 

Rules of Evidence 803 or 804, or it is allowed “by other rules 

prescribed pursuant to statutory authority.” One of these “other 

rules” is Article 38.072 of the Code of Criminal Procedure. When a 

defendant is charged with certain offenses against a child under the 

age of 14 or a disabled individual, Article 38.072 allows into 

evidence the complainant’s out-of-court statement so long as that 

statement is a description of the offense and is offered into evidence 

by the first adult the complainant told of the offense. Though the 

terms do not appear in the statute, the victim’s out-of-court 

statement is commonly known as an “outcry,” and an adult who 

testifies about the outcry is commonly known as an “outcry 

witness.”

13

As the Texas Court of Criminal Appeals noted with approval, Texas courts 

of appeals have pointed out that

[t]he outcry witness is the first person over the age of 18, other than 

the defendant, to whom the child spoke about the offense. The 

statement must be “more than words which give a general allusion 

that something in the area of child abuse is going on”; it must be 

made in some discernable manner and is event-specific rather than 

person-specific. Hearsay testimony from more than one outcry 

 13Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011) (citations 

omitted).
9

witness may be admissible under article 38.072 only if the witnesses 

testify about different events. There may be only one outcry witness 

per event. In order to invoke the statutory exception, the party 

intending to offer the statement must notify the adverse party of the 

names of the outcry witnesses and a summary of their testimonies, 

the trial court must conduct a reliability hearing of the witnesses 

outside the presence of the jury, and the child victim must testify or 

be available to testify at the proceeding.14

The State is not obligated to choose as the outcry witness the person who 

heard a brief allusion to an offense over the person who heard a description of 

the events constituting the offense sufficient to distinguish a specific offense from 

any other commission of that offense. That is, the State is not required to choose 

as the outcry witness the person who heard a general allusion to wrongdoing as 

opposed to the person who was told specific details of the offense sufficient to 

distinguish that offense from other acts of misconduct against that complainant 

by the defendant or by another person.15

Appellant argues that Sergeant Murillo was the proper outcry witness. 

Grandmother and Sergeant Murillo both testified that they were together when 

Grandmother asked the complainant to tell her what had happened. 

Grandmother testified that she had asked the complainant questions but got no 

real answers until she questioned her at home, where the complainant reported

that Appellant had taken her to the neighbor’s house, taken her clothes off, and 

 14Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (citations 

omitted).

15Id.
10

“kissed her all over.” Sergeant Murillo testified that he had been present when 

the complainant said that Appellant had “kissed her all over.”

We therefore hold that the record sufficiently reflects that Grandmother 

was the proper outcry witness for the offense of sexual performance by a child.16 

The trial court therefore did not abuse its discretion by admitting her testimony.

Appellant also argues that Pascall was not the proper outcry witness to 

testify that he had exposed his penis to the complainant. He argues that instead,

Demarias was the proper outcry witness for the indecency offense because the 

complainant had told her that Appellant had taken off his clothes. Although 

Demarias testified that the complainant had told her that Appellant took off his 

clothes, there was no mention of seeing his penis. Pascall testified that the 

complainant had discussed specifically seeing Appellant’s penis. Pascall also 

testified that the complainant described Appellant’s penis and drew a picture of 

Appellant and his penis. Consequently, the trial court did not abuse its discretion 

by admitting Pascall’s testimony.

Because Grandmother and Pascall were proper outcry witnesses, we 

overrule Appellant’s first and second points.

Hearsay

In his third point, Appellant argues that the trial court abused its discretion 

by overruling his objection to the hearsay evidence from the sexual assault nurse 

 16Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2013).
11

examiner Demarias. A trial court’s decision to admit hearsay evidence under an 

exception to the hearsay rule is reviewed for an abuse of discretion.17 A trial 

court does not abuse its discretion if its decision is within the zone of reasonable 

disagreement.18 The trial court’s decision will be upheld if that decision is correct 

under any theory of law applicable to the case.19

The State offered the evidence under rule 803(4) of the rules of evidence, 

statements made for purposes of medical diagnosis or treatment.20 Demarias 

testified that she was a member of a team that performs sexual and physical 

abuse exams in children. Although she testified that the purpose of her 

examination was “for medical examination and diagnosis,” she admitted that she 

had asked the complainant about any type of pornography involved and whether 

anybody other than Appellant had been abusing her. Demarias also admitted 

that her purposes were to obtain evidence, including DNA evidence, and to 

ensure that CPS was notified if other children were in the home. She did not 

testify to providing any actual treatment whatsoever, although she testified that 

she did “follow[ ]up with further treatment.” The “further treatment” consisted of 

 17Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

18Id.

19De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

20See Tex. R. Evid. 803(4).
12

swabbing the complainant for DNA evidence. Demarias testified that it was 

important to know who the assailant was to be able to report it to CPS.

Demarias also testified, however, that she completed an assessment of 

the complainant’s eyes, ears, nose, and throat and that the complainant denied 

losing consciousness when Appellant deposited her on the other side of the 

fence from the neighbor’s yard.

Demarias’s “medical examination and diagnosis” and “further treatment”

were thinly disguised methods of gathering evidence for purposes of prosecution. 

She admitted that the complainant denied contact with or penetration of the 

genitals, but Demarias did examine the genitals. Given the record before this 

court, and the general objection to all of Demarias’s testimony, we cannot say 

that there was no medical purpose to obtaining any of the history. Further, 

because the investigative questions were intertwined with proper requests for 

medical history, we cannot say that the trial court abused its discretion by

allowing her testimony. We overrule Appellant’s third point.

Conclusion

Having overruled Appellant’s seven points, we affirm the trial court’s 

judgment.
13

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT 

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: May 22, 2014