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PAUL EUGENE KAPPES, Appellant, v. THE STATE OF TEXAS, Appellee.
A jury convicted Appellant, Paul Eugene Kappes, of continuous sexual abuse of a young child. Appellant raises two issues challenging his convictions: (1) the evidence is legally insufficient to support his conviction, and (2) the trial court abused its discretion by designating the incorrect outcry witness under TEX. CODE CRIM. PROC. ANN. art. 38.072. For the following reasons, we disagree and affirm Appellant's convictions.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim in this case, Child, was Appellant's adopted child.1 Appellant and his wife adopted Child when she was four years old, and she lived with Appellant, his wife, and several siblings at a house in Kermit, Texas. Child testified that she stopped living with Appellant and his wife after Appellant sexually abused her. Child, who was ten years old at the time of trial, recalled that the sexual abuse began when she was four years old. In the first incident of abuse, Appellant and Child were in his room when Appellant told her to take off her clothes and “touched [her] in [her] private areas.” Child clarified that “private area” meant her vagina. Child stated that Appellant “put it in [her].” When asked with what object Appellant touched her, Child related that it was “long and it had two ․ things at the end of it. It was very hard.” After the incident, Appellant told Child not to tell anybody about what had occurred.
Child stated that this occurred again “a couple of days later” when Appellant woke her up late at night, took her from her room to the bathroom, and “pulled down [her] pants because [she] was too tired and he kept on sticking it in me.” When asked how Appellant was “sticking it in [her],” Child stated it was “[i]n [her] butt” using “[h]is thing” that she had described earlier. Child also asserted that Appellant had used “sex toys,” including a “vibrator,” by placing them on her “butt” and “private area” while she was in his bedroom in the house in Kermit, Texas.
Child claimed that Appellant committed these acts “way more times than that,” and that the last time Appellant abused her was “[a] week before I told.” Regarding this final incident, Child and her family were on vacation in Dallas and were staying at a hotel when Appellant “stuck it in [her] butt again.” Child did not recall how old she was when this happened. Child also recalled that the day before they went to the hotel, she slept in the bed of a truck outside when Appellant did “[t]he same thing that happened at the hotel.” Describing the abuse in a general sense, Child affirmed that Appellant “stuck it” in her vagina, “butt,” and mouth when she “was different ages.” When these incidents occurred, she stated that “white stuff would come out, and he would make me drink it.”
In August 2019, Child made an outcry of abuse to her cousin “[b]ecause [she] thought it was going on for too long and [she] needed it to stop.” In turn, her cousin told her mother, Brandi Browning, about Child's outcry. After Browning informed Appellant's wife and other family members, Appellant's wife took Child home and told her, “[d]o you want us to go to jail?” The next day, Appellant's wife took Child to the hospital, where Child told a nurse, Luz Eaton, more particular details about the abuse that we recount in detail below. Lisa Montoya, a sexual-assault nurse examiner (SANE), also testified that she performed a sexual-assault examination of Child that showed “anogenital trauma” consisting of abnormal abrasions and a “notch” on Child's vagina and small lacerations on her anus. Child was subsequently placed in a group home.
At trial, the State offered Eaton as an outcry witness under Article 38.071 of the Code of Criminal Procedure, arguing that she was the first person over eighteen years of age to whom Child sufficiently described the particular details of the sexual abuse. See TEX. CODE CRIM. PROC. ANN. art. 38.072. Appellant objected to Eaton's designation as the outcry witness, arguing that Browning was the appropriate outcry witness (and she had already testified before the jury). The trial court overruled Appellant's objections, designated Eaton as the outcry witness, and allowed Eaton to testify before the jury regarding Child's outcry statements.
The jury found Appellant guilty of continuous sexual abuse of a young child and assessed punishment of life imprisonment. This appeal followed. Appellant challenges his conviction in two issues, arguing that (1) the evidence is legally insufficient to support his conviction, and (2) the trial court abused its discretion by designating Eaton as the outcry witness under Article 38.072. We address each issue in turn.
II. LEGAL SUFFICIENCY
A. Standard of review and applicable law
The Fourteenth Amendment due process guarantee requires legally sufficient evidence to support every conviction. See Jackson v. Virginia, 443 U.S. 307, 315–16 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In a legal-sufficiency challenge, we focus solely on whether the evidence, when viewed in the light most favorable to the verdict, would permit any rational jury to find that the essential elements of the offense were met beyond a reasonable doubt. Jackson, 443 U.S. at 318–19; Brooks, 323 S.W.3d at 912 (establishing legal sufficiency under Jackson v. Virginia as the only standard for review of the evidence).
Applying that standard, we recognize that our system designates the jury as the sole arbiter of credibility and the weight attached to the testimony of each witness. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Only the jury acts “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007), quoting Jackson, 443 U.S. at 319. In doing so, the jury may choose to believe or disbelieve any testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict and defer to that determination. Dobbs, 434 S.W.3d at 170, citing Jackson, 443 U.S. at 319. In conducting a legal-sufficiency review, “[w]e are not to sit as a thirteenth juror reweighing the evidence or deciding whether we believe the evidence established the element in contention beyond a reasonable doubt[.] Blankenship v. State, 780 S.W.2d 198, 207 (Tex. Crim. App. 1988). Instead, “we test the evidence to see if it is at least conclusive enough for a reasonable factfinder to believe based on the evidence that the element is established beyond a reasonable doubt.” Id., citing Jackson, 443 U.S. at 318.
Here, Appellant challenges his conviction for continuous sexual abuse of a young child. As it pertains to this case, a person commits that offense if (1) during a period that is thirty days or more in duration, the person commits two or more acts of sexual abuse; and (2) at the time of the commission of the acts, the actor is seventeen years of age or older and the victim is younger than fourteen years of age. TEX. PENAL CODE ANN. § 21.02(b)(1)–(2). “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 committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.” Id. § 21.02(d). An “act of sexual abuse” means any act that is a violation of several different sexual offenses, including aggravated sexual assault. Id. § 21.02(c)(4). A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means, or if he causes the penetration of the mouth of a child by the person's sexual organ. Id. § 22.021(a)(1)(B)(i), (ii).
On appeal, Appellant contests the legal sufficiency of the evidence on two grounds: (1) the State failed to establish, as alleged in the indictment, that Appellant penetrated Child's sexual organ or anus with his sexual organ; and (2) the evidence did not establish that the abuse occurred over a period longer than thirty days.
B. The evidence is legally sufficient to establish Appellant penetrated Child's anus and sexual organ with his sexual organ
We first address Appellant's argument that Child “did not label or define the item used to penetrate her was the sexual organ of APPELLANT.” In the indictment, the State's allegations of Appellant committing multiple acts of sexual abuse against Child from February 2015 to August 2019 included:
[T]hat on or about the 9th day of February, 2015 [Appellant] did then and there intentionally and knowingly cause the penetration of the sexual organ of [Child, ․] a child who was then and there younger than 14 years of age, by the defendant's sexual organ,
AND on or about the 10th day of March, 2015 [Appellant] did then and there intentionally and knowingly cause the penetration of the anus of [Child, ․] a child who was then and there younger than 14 years of age, by the defendant's sexual organ,
AND on or about the 10th day of March, 2015 [Appellant] did then and there intentionally and knowingly cause the penetration of the mouth of [Child, ․] a child who was then and there younger than 14 years of age, by the defendant's sexual organ[.]
At trial, Child could not recall the name of the object Appellant used to penetrate her and she stated that she did not have a particular name for it. Nevertheless, Child stated that Appellant would “put it in me” and “stick it” in her vagina, “butt,” and mouth. She described the object as “his thing” and recalled that “[it] was long and it had two—two things at the end of it. It was very hard.” When describing Appellant's acts of oral penetration, Child stated that “white stuff would come out, and he would make me drink it.” Child further iterated that “girls” do not have that part, but men do. Child's testimony was corroborated by her statements to Luz Eaton, a nurse who testified that Child told her that Appellant penetrated her with “[h]is private part.” The State also presented testimony and a report from Lisa Montoya, a SANE nurse who found multiple injuries to Child's vagina and anus.
Thus, the record demonstrates that Child did not use precise medical terminology like “penis” or “sexual organ” to describe the object Appellant used to penetrate her. But given her descriptions of the object Appellant used to penetrate her, we conclude that a rational jury could have concluded beyond a reasonable doubt that Appellant penetrated Child's vagina, anus, and mouth on multiple occasions with his penis, thereby committing at least two acts constituting aggravated sexual assault. See Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977) (recognizing that children often lack the technical knowledge to describe human anatomy and that a child's use of unsophisticated language to describe sexual organs does not render the evidence insufficient to support a conviction for sexual offenses); Frueboes v. State, No. 06-03-00061-CR, 2004 WL 625682, at *3 (Tex. App.—Texarkana Mar. 31, 2004, no pet.) (mem. op., not designated for publication) (recognizing that a child's use of imprecise terminology in describing human sexual organs is “hardly unusual” in sexual abuse cases and does not render the evidence legally insufficient to establish penetration).
C. The evidence is legally sufficient to establish Appellant committed the acts over a period longer than thirty days
Appellant further argues that the evidence is legally insufficient to establish that Appellant committed the alleged acts over a period of thirty days or more in duration. See TEX. PENAL CODE ANN. § 21.02(b)(1). Child, who was born in July 2011, made her outcry of sexual abuse in August 2019. Regarding the timing of the abuse, Child testified that the first abusive incident occurred when she was four years old and that the final incident occurred “[a] week before [she] told;” Eaton likewise testified that Child told her that the abuse began when she was four years old. Child related that the abuse occurred “way more times” than the incidents she testified to and that Appellant committed the abuse when she was “different ages.” Thus, the evidence supports a finding that the abuse occurred over a long period of time, far beyond thirty days. Although the record does not establish firm dates on which each incident occurred, courts have recognized that the offense of continuous sexual abuse of a child “was created ‘in response to a need to address sexual assaults against young children who are normally unable to identify the exact dates of offenses when there are ongoing acts of sexual abuse.’ ” Lewis v. State, No. 02-16-00179-CR, 2017 WL 2686325, at *7 (Tex. App.—Fort Worth June 22, 2017, pet. ref'd) (mem. op., not designated for publication) (quoting Baez v. State, 486 S.W.3d 592, 595 (Tex. App.—San Antonio 2015, pet. ref'd). Thus, a child need not testify to the precise dates upon which the abuse occurred for the State to establish that the abuse lasted longer than thirty days. See Lewis, 2017 WL 2686325, at *7-8.
Viewed in the light most favorable to the verdict, a rational jury could have found that Appellant committed the acts of abuse between 2015 and 2019, a period of approximately four years—well over the thirty-day threshold under the statute. See id. (evidence was legally sufficient to establish that the defendant's sexual abuse occurred over a period longer than thirty days when the child testified that the abuse occurred “over and over” “so many times” in several different incidents and “it's been happening a long time”).
Accordingly, we overrule Appellant's first issue.
III. OUTCRY WITNESS
In his second issue, Appellant argues that the trial court abused its discretion by designating Luz Eaton as the appropriate outcry witness and allowing her to testify regarding Child's hearsay statements about the abuse. Appellant instead posits that the appropriate witness was Brandi Browning, who was the first adult to whom Child related the existence of the abuse.
A. Standard of review and applicable law
We review a trial court's determination of whether an outcry statement is admissible under Article 38.072 for an abuse of discretion. See TEX. CODE CRIM. PROC. ANN. art. 38.072; Calderon v. State, No. 08-20-00139-CR, 2021 WL 5027754, at *3 (Tex. App.—El Paso Oct. 29, 2021, pet. ref'd) (not designated for publication) (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990)). A trial court only abuses its discretion in admitting outcry testimony if its decision falls outside the zone of reasonable disagreement. Id. (citing Gonzales v. State, 477 S.W.3d 475, 479 (Tex.App.—Fort Worth 2015, pet. ref'd)).
Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011) (citing TEX. R. EVID. 801(d)). Hearsay is inadmissible unless it falls under an exception in Texas Rules of Evidence 803 or 804, or it is allowed by “other rules prescribed pursuant to statutory authority.” Id. (citing TEX. R. EVID. 802). One of the “other rules” is found in Article 38.072 of the Texas Code of Criminal Procedure, which allows for the admission of certain out-of-court “outcry” statements. Id. Relevant here, that article applies to statements that (1) describe the alleged offense, (2) were made by a child victim who is younger than fourteen years old, and (3) are implicated in cases where the defendant is charged with certain enumerated offenses. TEX. CODE CRIM. PROC. ANN. art. 38.072, §§ 1, 2(a)(1)(A), 2(a)(2). Continuous sexual abuse of a young child is one of those enumerated offenses. Id. art. 38.072, § 1(1). Further, Article 38.072 specifically provides that the statement must be one made to the first person, eighteen years old or older, other than the defendant, to whom the child made a statement about the offense. Id. art. 38.072, § 2(a)(3). Procedurally, the State cannot introduce the statement until the trial court holds a hearing outside the presence of the jury to determine whether the statement is “reliable based on the time, content, and circumstances of the statement.” Id. art. 38.072, § 2(b)(2). In addition, the child must testify or be available to testify at the trial. Id. art. 38.072, § 2(b)(3). Outcry testimony admitted in compliance with Article 38.072 is considered substantive evidence that is admissible for the truth of the matter asserted in the testimony. Calderon, 2021 WL 5027754, at *3.
Article 38.072's specificity requirement has been construed to mean that an outcry statement must be “ ‘more than words which give a general allusion that something in the area of child abuse was going on.’ ” Id. (quoting Garcia, 792 S.W.2d at 91); see also TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(1)(A). Put another way, the specificity requirement is generally met when a victim sufficiently describes the “ ‘how, when, and where’ ” of the abuse. Id. (quoting Rivera v. State, No. 08-19-00136-CR, 2021 WL 3129261, at *4 (Tex. App.—El Paso July 23, 2021, no pet.) (not designated for publication)).
B. Eaton was the first adult to whom Child related sufficiently specific details of the abuse
Prior to the outcry-witness hearing, Browning testified before the jury that on August 15, 2019, Child was showering with her daughter with their swimsuits on when Child told her daughter about Appellant “hurting her.” Browning's daughter informed Browning about Child's statement, and after she and Child's grandmother spoke with Child and confirmed the general existence of the abuse, Browning informed other members of her family. Later in the trial, Child testified that she did not give details about the abuse to Browning; instead, Child provided more details about oral and anal penetration to a nurse at the hospital.
Following Child's testimony, the trial court held an outcry-hearing under Article 38.072. During the hearing, Eaton testified that on August 16, 2019, Child was taken to the hospital where Eaton worked as a nurse. While she was there, Child told Eaton that Appellant had sexually abused her. In particular, Child told Eaton that Appellant “was touching her,” and when Eaton asked where Appellant had touched her, Child pointed to her “private area.” Child told Eaton that Appellant “was putting it, his private part, inside her.” When Eaton asked when and where this happened, Child responded that it happened “[d]ay and night ․ [i]n [her] dad's room.” Child also told Eaton that the abuse happened “when she got back from Six Flags and Sea World” and that the first incident of abuse happened “[w]hen [she] was adopted at four.”
Thus, the record shows that although Browning was the first adult who learned about the general existence of the abuse, Eaton was the first adult to whom Child sufficiently described the details of the abuse. These details included the existence of penetration that occurred over a long period of time while Child was in Appellant's room and that the abuse started when Child was four years old. For these reasons, we conclude that the trial court's designation of Eaton as the proper outcry witness was not outside the zone of reasonable disagreement. See Calderon, 2021 WL 5027754, at *4 (finding that a detective was the proper outcry witness because the victim told him the particular details of how, when, and where the abuse occurred, even though victim first told her therapist about the general existence of the abuse).
Accordingly, we overrule Appellant's second issue.
We affirm the trial court's judgment supporting Appellant's conviction.
1. In order to protect the victim's identity, we refer to her as “Child” in place of her true name. See TEX. R. APP. P. 9.10.
LISA J. SOTO, Justice
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Docket No: No. 08-22-00095-CR
Decided: February 13, 2023
Court: Court of Appeals of Texas, El Paso.
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