IN RE: J.A.G.FROM THE 323rd District Court OF Tarrant COUNTYMEMORANDUM OPINION1 In four issues (2011)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

Background Facts

Rebecca's mother “Jenny” had been a Big Sister to Joseph's older sister “Samantha” through the Big Brothers and Big Sisters program, and had considered Samantha and Joseph to be a part of her family.   Jenny began taking Samantha and Joseph to church with her family in 2004.

In May 2009, Jenny was chaperoning a field trip for Rebecca's kindergarten class.   While sitting on a train, Rebecca mentioned to Jenny that when Rebecca had been in the bathroom at church, Joseph followed Rebecca into the bathroom, pulled down his pants, and rubbed his penis against her vagina.

Jenny and her husband filed a report with the Fort Worth police department.   They took Rebecca to Cook Children's Medical Center where Araceli Desmaris, a sexual assault nurse examiner, conducted a sexual abuse examination.   Desmaris did not find any physical signs of injury, but Rebecca told Desmaris that when she was sitting on the toilet, Joseph had “pulled his wiener out of his pants and he touched her vagina.”   Rebecca described Joseph's penis as being “tannish and kind of soft.”   Rebecca said that Joseph had touched her in this way “a lot.”

In November 2009, the State filed a petition alleging that Joseph had engaged in indecency with a child and aggravated sexual assault of a child.   After a bench trial, the trial court found beyond a reasonable doubt that Joseph had engaged in aggravated sexual assault of a child and adjudicated Joseph delinquent.   The trial court placed Joseph on probation until his eighteenth birthday, ordered him to complete sex offender counseling, and deferred his mandatory sex offender registration.   Joseph filed this appeal.

Discussion

Right to Confrontation

In his first two issues, Joseph complains that his right to confrontation was violated when the trial court allowed Desmaris, the sexual assault nurse examiner, and Rebecca's mother Jenny to testify as to what Rebecca told them.   His only contention at trial and

PANEL:  LIVINGSTON, C.J.;   MEIER and GABRIEL, JJ.

DELIVERED:  June 16, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. We use aliases for the names of the children and their parents throughout this opinion.   See Tex.R.App. P. 9.8(b)(2)..  FN2. We use aliases for the names of the children and their parents throughout this opinion.   See Tex.R.App. P. 9.8(b)(2).

FN3. We also note that in the video, Rebecca told the interviewer that someone had touched her, that she had told a friend about it, that her friend had laughed at her, and so she “kind of keep[s] it a secret.”.  FN3. We also note that in the video, Rebecca told the interviewer that someone had touched her, that she had told a friend about it, that her friend had laughed at her, and so she “kind of keep[s] it a secret.”