Joel Contreras Olvera v. the State of Texas

Affirmed and Opinion filed April 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00209-CR

JOEL CONTRERAS OLVERA, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1648504

OPINION

In this appeal from a conviction for aggravated sexual assault of a child,
appellant complains in two issues about the trial court’s designation of an outcry
witness and about the trial court’s refusal to instruct the jury on a lesser-included
offense. For the reasons given below, we overrule both of these issues and affirm the
trial court’s judgment.
BACKGROUND

When she was seventeen years old, the complainant disclosed to her mother
that, many years earlier, she had been inappropriately touched by appellant, who is
her uncle. The complainant made this disclosure in general terms, without
specifically identifying where or how the touching had occurred.

The mother contacted authorities, and the complainant later gave a more
detailed statement to a detective. The complainant told the detective that appellant
had abused her multiple times over the years. The first incident of abuse occurred
when she was eight or nine years old, when he tried to put his penis in her anus. On
subsequent occasions, appellant put his penis in her mouth, he forced her to touch
his penis with her hand, and he fondled her vagina over her clothes.

Despite these several instances of sexual abuse, appellant was indicted on a
single charge of unlawfully causing the complainant’s anus to contact his sexual
organ. Appellant pleaded not guilty to that charge, and his case proceeded to a trial
by jury.

The complainant was twenty-one years old at the time of trial, and she was
the first witness to take the stand. She testified that the charged incident began when
appellant chased her around a dining table, picked her up, and carried her to a guest
room, where he pinned her face down on the bed and removed her skirt and
underwear. The complainant said that appellant then tried to penetrate her anus with
his penis, but that he let her go when she requested to use the restroom. She also said
that the attempted penetration was very painful, and that it caused a tear, which in
turn caused her to bleed for months because the tear would reopen whenever she did
use the restroom.

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The complainant explained that she did not timely report the abuse because
she was in shock that it had even occurred. She gave similar statements regarding
the other instances of abuse, explaining that she was too embarrassed to say
anything, or she feared that she would not be believed, or she was afraid that a
disclosure would cause a rift in the family. The complainant said that she finally
came forward because she came to believe that appellant might abuse even younger
children.

The detective testified after the complainant left the stand. Over a defense
objection, the trial court had previously found in a hearing conducted outside the
presence of the jury that the detective qualified as an outcry witness. The detective
accordingly testified about the complainant’s outcry statements from her initial
interview. Those statements were consistent with the complainant’s trial testimony,
though they were not nearly as detailed.

Appellant also testified. He denied the allegations against him, but the jury
found otherwise and convicted him as charged. The jury also assessed his
punishment at ten years’ imprisonment.

OUTCRY WITNESS

At the end of the outcry hearing, the defense argued that the purpose of having
an outcry witness was to protect a child from the trauma of having to testify about a
sensitive matter in open court. The defense then argued that the detective should not
be designated as an outcry witness because his testimony would not spare a child
from testifying, since the complainant was already an adult. The defense further
argued that the detective could not qualify as an outcry witness because, at the time
of her outcry, the complainant was more than seventeen years of age—and in the
defense’s view, the complainant was not a child for purposes of the outcry statute.

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The trial court overruled these arguments and allowed the detective to testify
as an outcry witness. Appellant now challenges that ruling in his first issue on appeal.

We review the trial court’s designation of an outcry witness for an abuse of
discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). Under
this standard, we defer to the trial court’s determination of historical facts that are
supported by the record, as well as to any mixed questions of law and fact that turn
upon an evaluation of credibility and demeanor, but we consider de novo any purely
legal questions. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Appellant argues that the trial court abused its discretion by designating the
detective as an outcry witness because, according to him, the outcry statute permits
such a designation only when, at the time of the outcry, the child declarant is under
the age of seventeen, which was not the situation here. The State counters that the
outcry statute has no such qualification. To settle this disagreement, we must engage
in a matter of statutory interpretation, which is a purely legal question. See Druery
v. State, 412 S.W.3d 523, 533 (Tex. Crim. App. 2013).

The statute at issue is Article 38.072 of the Texas Code of Criminal Procedure,
and it provides an exception to the hearsay rule. The exception applies only to
statements that “(1) describe . . . the alleged offense; . . . (2) were made by the
child . . . against whom the charged offense . . . was allegedly committed; and
(3) were made to the first person, 18 years of age or older, other than the defendant,
to whom the child . . . made a statement about the offense.” See Tex. Code Crim.
Pro. art. 38.072, § 2.

Nothing in this text expressly requires the declarant to have been under the
age of seventeen at the time of the outcry, as appellant has argued. The text merely
states that the declarant must have been “the child . . . against whom the charged
offense . . . was allegedly committed.” Id.
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Nevertheless, appellant argues that the “child” in this provision must refer to
a person younger than seventeen years of age, and for several reasons. He relies in
part on the Penal Code statute for aggravated sexual assault, which specifically
defines the word “child” as “a person younger than 17 years of age.” See Tex. Penal
Code § 22.021(b)(1) (assigning this term the same definition as provided by Tex.
Penal Code § 22.011(c)(1)). But that definition applies to usages “in this section”—
not to usages in the outcry statute, which is separately codified in the Code of
Criminal Procedure.

Appellant also relies in part on another provision within the outcry statute,
which states that the child declarant must have made her outcry to a person “18 years
of age or older.” See Tex. Code Crim. Proc. art. 38.072, § 2(a)(3). Appellant argues
that the legislature could have similarly defined the term “child” with a bright line
rule—for example, as a person younger than “18 years of age.” But because the
legislature did not enact the outcry statute with such a bright line rule, he construes
the term “child” even more restrictively, as a person younger than seventeen years
of age. Appellant supplies no authority for this argument, and we do not agree with
it.

Because the term “child” is undefined, it must be given its usual meaning. See
Tex. Code Crim. Proc. art. 3.01 (“All words, phrases and terms used in this Code are
to be taken and understood in their usual acceptation in common language, except
where specially defined.”). Black’s Law Dictionary defines the word as “an
unemancipated person under the age of majority”—i.e., as a person under the age of
eighteen. That dictionary definition conforms with the common understanding of the
word, and with how other courts of appeals have applied the outcry statute. See
Gutierrez v. State, 630 S.W.3d 270, 278 (Tex. App.—Eastland 2020, pet. ref’d) (“If
an outcry is a statement made to the first person that is eighteen years of age or older

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under Article 38.072, section 2(a)(3), then a person under the age of eighteen is a
child under section 2(a)(2).”); Harvey v. State, 123 S.W.3d 623, 629 (Tex. App.—
Texarkana 2003, pet. ref’d) (“Therefore, we hold that, for Article 38.072 to apply,
not only must the offense have been committed against a child . . . , but also the
victim, while still a child—that is, not having reached his or her eighteenth
birthday—must have confided the details of the ordeal to a person eighteen years of
age or older.”). We join those courts in concluding that an outcry witness may be
designated when the child declarant is younger than eighteen years of age at the time
of the outcry.

Because there was affirmative evidence that the complainant here was
seventeen years old at the time of her outcry, she qualified as a child declarant under
the outcry statute, and the trial court did not abuse its discretion by designating the
detective as the outcry witness.

LESSER-INCLUDED OFFENSE

During the charge conference, the defense requested an instruction on a lesser-
included offense. The trial court denied the request in the following exchange:

The Court: Have you had an opportunity to review the proposed
charge?
Defense: Yes, we have. And Defense is simply respectfully
requesting the lesser includeds of indecency by contact
and indecency by exposure.
The Court: We have indecency by exposure in there, but what is the
contact? Because there’s not any evidence in the record
with regard to her genitals being touched in connection
with the indicted charge, and it’s got to be a lesser included
offense of what’s in the indictment.
Now, the extraneous act, where she did say that her vagina
was touched, he’s not charged with that. He’s only charged
with what’s in the indictment, and I think indecency by

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exposure is in evidence. So I think that’s the proper lesser
included offense.
Defense: Okay. So our request is denied?
The Court: Yes, unless you can convince me otherwise.
Defense: Yes, sir. Thank you, Judge.
Appellant now argues in his second issue that the trial court reversibly erred
by denying his requested instruction on the lesser-included offense of indecency by
contact. The State responds that this issue is not preserved. We agree with the State.

To preserve a complaint that the trial court erred by refusing to submit an
instruction on a lesser-included offense, the defendant must point to the specific
evidence that negates the greater offense but supports the lesser offense, unless such
specific evidence is manifest. See Williams v. State, 662 S.W.3d 452, 462 (Tex.
Crim. App. 2021).

The evidence in support of the requested lesser-included offense was not
manifest here, as appellant testified that he never assaulted the complainant or
touched her in an inappropriate manner. And when the trial court prompted the
defense for any evidence that might support the requested instruction, the defense
supplied none. (Similarly on appeal, no such evidence has been cited in appellant’s
brief.) By not alerting the trial court to the specific evidence in support of his
requested instruction, appellant failed to preserve any error in the trial court’s refusal
to include that instruction in the jury charge. Id.

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher
Chief Justice

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Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
Publish — Tex. R. App. P. 47.2(b).

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