The opinion
t *
ISO- IS
CAUSE NO. PD-0150-15
IN THE
ORIGINAL
TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN,TEXAS
OWCU
COURT OF CRBWiNAL APPEALS
FSLFD IN SFP 1 fi POtt
COURTOFCRIMINALAPPEALS °anny ray rancher,appellant pro se,
SEP16 2G15 v. «oei Acosta. Clerj?
Abel Acosta, Cierk
THE STATE OF TEXAS, APPELLEE
Appealed From the 9th Court of Appeals Cause Nos.
09-13-00355-CR & 09-13-00356-CR From The 9Th.,
Court of Appeals;Trial Cause Nos. 12-01-00820-CR
(Counts 1 And 2),221St,Judicial District,Montgomery
County,Texas,Honorable Robert Trapp Sitting as 22St,District Judge
PRO SE PETITION FOR DISCRETIONARY REVIEW
SEEKING REVIEW BECAUSE CONSTITUTIONAL ERROR
IN VIOLATION OF USCA. CONST.ARTS. 1§9,C1.3;
1§10,C1.1 AND TEX.CONST. ART.1§16 AS PROHIBITED
BY STATE AND FEDERAL EX POST FACTO CLAUSES ARE
REVEALED FROM THE !©§©!© TO OBTAIN CONVICTIONS
TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES Appellant Pro se, Danny Ray Rancher and respectfully submits
this Petition for Discretionary Review Because Constitutional Error in violation
of the State and Federal Ex Post Facto Clauses pursuant to USCA. CONST. ARTS.1§9,
C1.3;1§10,C1,1, and Tex.Const. Art.l§16 as revealed from the Records and used
to obtain both convictions and punishments. And in support would show as follows:
IDENTITY OF PARTIES AND COUNSEL
APPELLANT PRO SE ON "PDR":
Danny Ray Rancher,TDCJ-ID#1884198
Rt. 2 Box 4400
Hughes Unit
Gatesville, Texas 76597
JUDGE:
Honorable Robert Trapp ..
Sitting a 221st District Court
207 W. Phillips
Conroe,Texas 77301
PROSECUTION:'
Ms. Mary^Nan Huffman
State Bar No. 24058581
Assistant District Attorney
Montgomery County
207 W. Phillips, 2nd Floon;
Conroe,Texas 77301
Mr. Vince Santini
State Bar No. 240063410
Assistant District Attorney
207 W. Phillips, 2nd. Floor
Conroe, Texas 77301
DEFENSE COUNSEL:
Mr. Jarred L. Walker
State Bar No.00788601
300 W. Davis Suite 450
Conroe,Texas 77301
Ms. Wendy Little
State Bar No. 240039509
141 N. San Jacinto
Conroe, Texas 77301
COURT APPOINTED APPELLATE COUNSEL:
Mr. William L. Pattillo
State Bar No. 00792745
430 N. Main
Conroe, Texas 77301
COUNSEL FOR STATE IN APPELLATE COURT:
Mr. Jason Larman
Assistant District Attorney
207 W. Phillips, 2nd Floor
Conroe, Texas 77301
li
TABLE OF CONTENTS
Identity of Judge, Parties and Counsel ii
Table of Contents iii
Index of Authorities iv
Statement Regarding Oral Argument v
Statement of the Case vi
Statement of Procedural History vii,viii
Grounds for Review 1
Argument .2-15
Prayer for Relief 1 15
Appendix 1, Memorandum Opinion 9th Court of Appeals Attached
in
INDEX OF AUTHORITIES
Beazell v. Ohio, 46. S.Ct. 68 (1925) 13,14
Bowers v. State, 914 SW.2d. 213 (Tex.App.8-Dist. 1996) 4
Calder v. Bull/- 3 Dall. 386,390,1 L.Ed. 640 (1798) 7,13
Carmell v. Texas, 120 S.Ct. 1620 (2000) 7
Garcia v. State, 125 SW.3d. 921 (Tex.Cr.App. 2004) 3
Ieppert v. State, 908 Sw.2d. 217 (Tex.Cr.App. 1995) ,2,8,11,12,13
Jaehne v. New York, 9 S.Ct. 70 (1880) .15
Johnson v. United States, 120 S.Ct. 1795 (2000) 4
Kotteakos v. United States, 66 S.Ct. 1239 (1946) 3
Leday v. State, 983 SW.2d. 713 (Tex.Cr.App. 1998) .7
Marks v. United States, 97 S.Ct. 990 (1977) 13
Martinez v. State, 178 SW.3d. 806 (Tex.Cr.App. 2005) 4
Martinez v. State, 188SW.3d. 291 (Tex.App. l-Dist.2006) 4
Miller v. Florida, 107 S.Ct. 2446 (1987) 13
Phillips v. State, No.PD-1402-09 (Tex.Cr.App. 2011) 2
Scoggan v. State, 799 SW.2d. 679 (Tex.Cr.App. 1990) 7
Stogner v. California, 123 S.Ct- 2446 (2003) 3,7,12,15
IV
W
STATEMENT REGARDING ORAL ARGUMENT
No Oral Argument is requested by Appellant Pro se, therefore Oral
Argument is deemed waived by this party. And in its discretion,the Court
of Criminal Appeals may decide this Cause without Oral Argument because
argument would not significantly aid the Court in determining the issues
presented. See TRAP.Rule 39.8.
v
STATEMENT OF THE CASE
On May 31,2012, the Grand Jury for Montgomery County, Texas indicted the
Petitioner Danny Ray Rancher for the First-Degree Felony Offense of Aggravated
Sexual Assault of a Child (Count I) and the Second-Degree Felony Offense of
Sexual Assault of a Child Arising from the same transaction (Count II), alleged
to have been committed against the same victim on NOVEMBER 8,1996)(Clerk's Record
Count I ("CRI" at 23-24;Clerk's Record,Count II ("CRII" at 19-20).
On July 22, 2013, the Petitioner's jury trial began in the 221st District Court,
the Honorable Robert Trapp, presiding. On July 24, 2013, after hearing evidence
from both the State and Petitioner, the Jury convicted the Petitioner of both Count
I and Count II, as charged, in the State's indictment. (RR. VOL. 5 at 29,lines 3-15).
On July 25,2013, the same Jury, after considering the evidence presented by the
State of Continuous Sexual Abuse of a Child and the evidence presented by Petitioner,
sentenced, the Petitioner to confinement, for Life and a. $10,000.00 fine for Count I,
and confinement for a Maximum Twenty Years' for Count II. (RR. Vol.6 at 93-94,lines
23-25,1-12).
On August 2, 2013 the Petitioner's Trial Counsel filed a timely Notice of Appeal,
and the trial court appointed Appellate Counsel to represent the Petitioner on direct
appeal. And Petitioner appealed the trial court's judgements and sentence with timely
filed brief on the merits to the 9th Court of Appeals at Beaumont,Texas.
VI
V/-I
STATEMENT OF PROCEDURAL HISTORY
On May 31,2013, the Grand Jury for Montgomery County,Texas indicted the
Petitioner, Danny Ray Rancher for the First-Degree Felony Offense of Aggravated
Sexual Assault of a Child (Count I) and the Second-Degree Felony Offense of Sex
ual Abuse of a Child (Count II), both allegedly to have been committed on November
8, 1996.
On July 22, 2013, well over Sixteen (15) years,thereafter the commission of
the Sexual Abuses of a Child Offenses were allegedly committed on November 8,1996,
exceeding the former available defense of a -10- year Statute of Limitations, jury
trial began.
On July 24,2013, after hearing unobjected evidence of Continuous Sexual-Abuse
of a Child from the alleged Victim then Twenty-Nine Years Old, the same Jury
convicted Petittioner upon return of General Verdict of Guilty as alleged in Counts
I and II of the State's indictment.
On July 25, 2013, the same Jury further considering the same evidence of Contin
uous Sexual Abuse of a Child beginning at age Eight (8) by the State also at the
punishment stage, sentenced the Petitioner to confinement for Life and a $10,000.00
Fine for Count I and a Maximum Twenty Years for Count II, when prosecuted for the
New Offense.
On August 2, 2013, the Petitioner's trial counsel filed a timely Notice of
Appeal and withdrew from appellate representation. Then the trial court appointed
Mr. William L. Patillo to represent him as an Indigent Appellant on direct appeal.
Petitioner's Appellants Brief was due to had been filed on November 27,2013,
and Court Appointed Appellate Counsel filed for and was granted a Second Motion for
an Extension of Time to file an Appellant's Brief. Thus,making the Brief due to -
had been timely filed on or before December 28,2013, In Consolidated Appeal Nos.
09-13-003555-CR, and 09-13-00356-CR.
On December 31,2013, Petitioner's Appellant's Brief was actually filed with
the Ninth Court of Appeals at Beaumont, Texas, thereby advancing Two Points of
Error regarding Inadmissible Outcry witness testimony violative of Tex.Code Crim.
Proc. Art.38.072. Oral Argument was not requested.
On February 24,2014,the State filed its Appellate Brief, after having been
granted an Extension of Time in which had done so on January 29,2014.
The Clerk of the Ninth Court of Appeals notified both parties that said
Causes on Appeal/ were Submitted to the Court on the Briefs before a Panel
of Justices to be heard on September 10,2014.
vii
On January 28, 2015, the Ninth Court of Appeals entered a Memorandum
Opinion, ruling adversely against the Petitioner and resolving the dispute over
which version of Article 38.072 applied to the facts was to the current version,
of the Statute. APPENDIX 1.Further affirming the Judgements and Sentences of the
trial court. ,
On February 11, 2015, the Court of Criminal Appeals granted Petitioner's
First Motion for Extension of Time in which to timely file a Pro Se Petition
For Discretionary Review (PDR) as No.PD-0510-15. Wherein such time in which to
had filed the Pro se ("PDR"), was extended up and until Tuesday, April 28,2015.
With further directions that "No further Extensions would be entertained."
On May 1, 2015, the Petitioner's Pro se ("PDR") was received and deemed filed
by the Clerk of the Texas Court of Criminal Appeals.
On June 10,2015, the Court of Criminal Appeals issued a Per Curiam Opinion
Striking Petitioner's Pro se Petition for Discretionary Review ("PDR") because
of non-compliance with the -15- page limitaion pursuant to TRAP. Rule 9, with
Two Judges Dissenting.
On July^l4.,^2015, -the Texas Court of Criminal Appeals^denied Petitioner's
timely filed Motion to Exceed the -15- page limit.
On August 4, 2015, the Texas Court of Criminal Appeals denied Petitioner's
timely filed Bro se Motion for Reconsideration of his Motion to had exceeded
the -rM>— page limit. Then granted Alternative Relief as to an Extension of Time
until September.4, 2015.to filed a corrected Pro se Petitition for-Discretionary
Review.
/. /••
Vlll
Mll\
GROUNDS FOR REVIEW
NUMBER ONE: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING TINA FULLEN
TO TBSlb'V AS AN OUTCRY WITNESS UNDER TEX.CODE CRIM.PROC.ART.38.072,AMENDED
AND CURRENT VERSION OF THE HEARSAY STATEMENTS MADE BY A CHILD AS FURTHER
RESOLVED BY THE COURT OF APPEALS,AND PROHIBITED BY THE STATE AND FEDERAL
EX POST FACTO CLAUSES PURSUANT TO USCA.CONST.ARTS.1§9,CI.2,1§10,C1.1,AND
TEX.CONST. ART.1§16,ALTERING THE RULES OF EVIDENCE REQUIRING THAT THE CHILD
MUST BE 14 YEARS OF AGE OR YOUNGER AND THE FORMER STATUTE REQUIRED THAT THE
CHILD MUST HAD BEEN 12 YEARS OR YOUNGER,WHEREAS THE FIRST OUTCRY WAS MADE
WHEN THE CHILD WAS OLDER THAN 12 YEARS OF AGE BEING -13- OR OLDER.
NUMBER TWO: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING OFFICER ADAM
KULAK TO TESTIFY AS AN OUTCRY WITNESS UNDER TEX.CODE CRIM.PROC.ART. 38.072,
AMENDED AND CURRENT VERSION OF THE HEARSAY STATEMENTS MADE BY CHILD AS FUR
THER RESOLVEDLY THE COURT OF APPEALS,AND PROHIBITED BY THE STATE AND FED
ERAL EX POST FACTO CLAUSES PURSUANT TO USCA.CONST.ARTS. 1§9,C1.3, 1§10,C1.1;
TEX.CONST. ART.1§16,ALTERING THE RULES OF EVIDENCE REQUIRING THAT THE CHILD
MUST BE 14 YEARS OR YOUNGER AND THE FORMER STATUTE REQUIRED THAT THE CHILD
MUST HAD BEEN 12 YEARS OR YOUNGER,WHEREAS THE FIRST OUTCRY WAS MADE TO KULAK
WHEN THE COMPLAINANT WAS 28 YEARS OLD.
NUMBER THREE:lEPELL&NffiPWAS CONVICTED,PROSECUTED AND PUNISHED FOR CONTINUOUS
SEXUAL ABUSE OF A YOUNG CHILD,PURSUANT TO TEX.PENAL CODE § 21.02 (2007) WHICH
HAD NOT YET BEEN ENACTED AT THE TIME OF THE ALLEGED COMMISSION OF AGGRAVATED
SEXUAL ASSAULT OF A CHILD AND SEXUAL ASSAULT OF A CHILD 14 YEARS OF AGE OR
•YOUNGER ON NOVEMBER 8,1996,AND THE EX POST FACTO CLAUSES OF THE UNITED STATES
AND TEXAS CONSTITUTIONS PURSUANT TO USCA.CONST.ARTS.1§9,C1.3,1§10,AND TEX.CON
ST. ART. 1§16 DOES NOT PERMIT SUCH PROSECUTION OR CONVICTION WHICH DID NOT CON
STITUTE CRIMINAL OFFENSE OF CONTINUOUS ABUSE OF A CHILD WHEN IT HAPPENED.
NUMBER FOURPETITIONER WAS DEPRIVED OF A COMPLETE DEFENSE UNDER THE FORMER
!) YEAR STATUTE OF LIMITATIONS (TEX.CODS CRIM.PROC.ART.12.01(2)(D)(1991),
BARRING THE ALLEGED CRIMES OF AGGRAVATED ASSAULT OF A CHILD AND SEXUAL AS
SAULT OF A CHILD WHEREAS SUCH A DEFENSE WAS AVAILABLE ON NOVEMBER 8,1996,AT
THE TIME SUCH CRIMES WERE ALLEGEDLY COMMITTED,RATHER THAN THE RETROACTIVE
APPLICATION OF THE AMENDED VERSIONS OF THE STATUTE/S IN 91997) AND (2007)
STARSTEPPED TO REVIVE AN OTHERWISE TIME BARRED PROSECUTION FIRST UNTO THE
TENTH YEAR FROM THE 18TH BIRTHDAY OF THE VICTIM OF THE OFFENSE,THEN UNTO
NO LIMITATIONS PERIOD AT ALL,THUS,VIOLATIVE OF THE STATE AND FEDERAL EX
POST FACT CLAUSES AS PROHIBITED BY USCA.CONST.ARTS.1§9,CI.3,1§10,Cl.l;
TEX. CONST. ART. 1§16.
ARGUMENT/S
NUMBER ONE: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING TINA FULLEN
TO TESTIFY AS AN OUTCRY WITNESS UNDER TEX.CODE CRIM.PROC. ART.38.072,AMENDED
AND CURRENT VERSION OF THE HEARSAY STATEMENTS MADE BY A CHILD AS FURTHER RE
SOLVED BY THE COURT OF APPEALS,AND PROHIBITED BY THE STATE AND FEDERAL EX POST
FACTO CLAUSES PURSUANT TO USCA.CONST.ARTS. 1§9,CL.3; 1§10,CL.1, AND TEX.CONST.
ART. 1§16,ALTERING THE RULES OF EVIDENCE REQUIRING THAT THE CHILD MUST BE 14
YEARS OF AGE OR YOUNGER WHEN THE FORMER STATUTE REQUIRED THAT THE CHILD MUST '
HAD BEEN 12 YEARS OR YOUNGER,WHEREAS THE FIRST OUTCRY WAS MADE WHEN THE CHILD
WAS OLDER THAT 12 YEARS OF AGE BEING 13 YEARS OLD* OR OLDER.
NUMBER TWO: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING OFFICER ADAM
KULAK TO TESTIFY AS AN OUTCRY WITNESS UNDER TEX.'CODE CRIM.PROC. ART.38.072,
AMENDED AND CURRENT VERSION OF THE HEARSAY STATEMENTS MADE BY A CHILD AS
WAS FURTHER RESOLVED BY THE COURT OF APPEALS,AND PROHIBITED BY THE STATE AND
FEDERAL EX POST FACTO CLAUSES PURSUANT TO USCA.CONST.ARTS. 1§9,CL.3, 1§10,CL.1;
TEX.CONST. ART.1§16,ALTERING THE RULES OF EVIDENCE REQUIRING THAT THE CHILD
MUST HAD BEEN 12 YEARS OLD OR YOUNGER,WHEREAS THE FIRST OUTCRY WAS MADE TO
KULAK WHEN THE COMPLAINANT WAS 28 YEARS OLD.
TO Avoid being redundant and make every effort to comply with the -15- pages
Limitations Rule,the Petitioner incorporates by Reference the foregoing Number
One and Two Ex Post Facto Claims as presented for review in accord with this C
Courts decision in IEPPERT V. STATE, 908 SW.2d. 217 (TEX.CR.APP. 1995).
RETROACTIVE APPLICATION OF AMENDED ART. 38.072 TINA FULLEN'S TESTIMONY
The thrust of Petitioner Pro se's argument on his first issue is that the
trial court improperly admitted; the outcry testimony, by Retroacfiiyely applying
an Ex Post Facto Amended Version|of Tex.Code Crim.Proc.Art.38.072 (2009),TO, .
Sexual Abuses of a Child Offenses allegedly committed on'November 8,1996).------: '.'.'
The initial inquiry in any review of a Child victim's Hearsay Statements
sought to be introduced as evidence under Art.38.072, is the Age requirement
of the Child at the time the Statement/s was/were made. Under the version of
Art.38.072, effective and existing prior to September 1,2009, required the child
to be -12- years or younger. Then,if the age of the Child was THIRTEEN (13) "••"
Years Old or Older,clearly Pre-Amended Art.38.072, would render such Statement/s
Inadmissible as evidence. The records of the acse shows that Complainant gave
a letter to her mother, (MS.FULLEN) when she was -13- years old detailing her
allegations of Continuous Sexual Abuse. One cannot argue that under the current
version of 38.072, changing the Child's age from -12- years old or younger unto
14 years of age or younger that the letter would meet the required age and qualify
as an Initial Outcry Statement. However,because Art.38.072, Pre-Amendment as it
existed at the time the Complainant gave Ms. Fullen the letter,Required evidence
that the Child be TWELEVE (12) OR YOUNGER. Therefore this letter would not qual
ify as Outcry statements and were inadmissible under the Ex Post Facto Clauses
under the Pre-Amended version of Art.38.072, and further an available
defense at the time the alleged Sexual Abuse crimes were committed.
II.
RETROACTIVE APPLICATION OF AMENDED VERSION OF ART.38.072 (2009)
By Mlowing ©fficer Adam gulak ffo Testify As An Outcry Witness
The trial court improperly allowed Officer Adam Culak to testify to Hearsay
Statements the Complainant made to him. And an Outcry Hearing held outside the
presence of the jury, Officer Culak testified as a Second Outcry witness,that
the Complainant told him that the Petitioner CONTINUED TO SEXUALLY ABUSE HER
FROM THE AGE OF THIRTEEN (13) UNTIL SHE WAS ALMOST EIGHTEEN (18) YEARS OLD."
(RR.VOL. 4 at 255). The Trial Court overruled the Petitioner's 38.072, general
objections and allowed the elicit this inadmissible testimony from Officer Cul
ak before the Jury. (RR.VOL. 4 at 260). The Complainant made these Statements
to Officer Culak in 2011, when she was well- over the Age of Thirteen. (RR.VOL.3
at 61).(The Complainant was born on NOVEMBER 8, 1983. (RR.VOL. 3 at 20). Her
Statements to Officer Culak were made sometimes in late November 2011,or at the
latest in January of 2012. (RR. VOL. at 139-40). Showing that the Complainant
was at least TWENTY-SEVEN or TWENTY-EIGHT YEARS OLD. When she made the Statements
to Officer Culak.
The Pre-amended version of Art.38.072,in existence and available at the time
when the alleged -Aggravated Sexual Assault of a Child and Sexual Assault of a
Child,clearly required that the Child be Twelve—Years of Age or Younger, as was/
is applicable on NOVEMBER 8,1996)'. Rather than the Retroactive application of
the Amended Art.38.072, September 1,2009,version, when she was well over the age
of thirteen. Thus,prohibited by the State and Federal Ex Post Facto Clauses.Seeking
to revive an already mandated 12 years or younger evidentiary requirement under
the Pre-Amended Statute,to be resurrected and prosecuted under the current version
applied Retroactively to 27-28 years old. See STOGNER V. CALIFORNIA, 123 .S.CT.
2446 (2003);PHILLIPS V. STATE, NO.PDr-1402-09 (TEX.CR.APP. 2011).
"As this Court noted in GARCIA V. STATE, 125 SW.3d. 921 (TEX.CR.APP. 2004),
"If when all is said and done, the conviction is sure that the error did not
influence the "Jury",or had but a slight effect, the judgement should stand,
. . . but if one cannot say,with fair assurance,after pondering all that hap
pened without stripping the erroneous action from the whole,that the judgement
was not substantially swayed by the error,it is impossible to concluded that
substantial rights were not affected." Id. at 927 n.9 (Quoting KOTTEAKOS V. U.S.,
66 S.CT. 1239 (1946)).
Cf. MARTINEZ V. STATE, 188 SW.3d. 291 (TEX. APP. 1-DIST. 2006), On remand ,after
Court of Criminal Appeals, reversed, holding that: "The majority was mistaken in
its conclusion that admitting hearsay testimony (Complainant's Outcry) by the Com-
'} plainant's Mother) was admissible under Article 38.07. "In MARTINEZ V. STATE,178
SW.3d. 806 (TEX.CRIM.APP. 2005), remandedi"To Determine whether the Admission of
the Outcry was Harmless Error." Id.
"Error in admitting testimony of victim's Mother regarding what victim told
her about offense was HARMFUL in prosecution for Indecency With a Child; Absent
Improperly Admitted Evidence, only direct evidence supporting verdict was victim's
testimony,thereby making her credibility essential to the conviction, . . . And
during mother's testimony trial judge instructed Jury about its role as Judge of
the Credibility of Testimony and its right to consider what victim told Mother,
and thus,' there was not fair assurance that error did not have substantial and in
jurious effect or influence in determining jury's verdict." TRAP. 44.2(b).Id.
"Because A.R. was Older than twelve (12), the Outcry Testimony Given by A.R.'s
Mother WAS NOT ADMISSIBLE." "A.R.'s Mother was the witness immediately preceding
$;£; A.R,\s- Testimony. This Testimony was introduced as background Testimony and gave
'''- 1 context about which MARTINEZ complains, and the subsequent testimony given by A.R,,,,
•ji'i without objection.." Id.
"RETROACTIVE APPLICATION OF 1993 AEMNDMENT' TO'STATUTE RELATING TO EVIDENCE IN^J
SEX OFFENSE PROSECUTION UNDER WHICH :EITHER; OUTCRY BY VICTIM WITHIN ONE YEAR OR ^
CORROBORATION OF VICTIM'S TESTIMONY IS REQUIRED IN ORDER TO SUPPORT CONVICTION .;-
ONLY WHEN VICTIM IS 18 YEARS OF AGE OR OLDER,ALTERS RULES OF EVIDENCE TO REQUIRE
LESS EVIDENCE TO SUSTAIN CONVICTION AND VIOLATES EX POST FACTO CLAUSE."USCA CONST.
ART. 1§10,CL.1;TEX.CODE CRIM.PROC. ART. 38.07. BOWERS V. STATE, 914 SW.2d. 213
(TEX APP 8—DIST. 1996).
"WE FIND THAT*THE OUTCRY STATUTE FOUND AT TEX.CODE CRIM.PROC.ART. 38.07 WAS
AMENDED SO AS TO ALLOW CONVICTION UPON LESS EVIDENCE THAN WAS REQUIRED WHEN THE
ALLEGED OFFENSE OCCURRED." Id.
"THE EX POST FACTO CLAUSE RAISES TO THE CONSTITUTIONAL LEVEL ONE OF THE MOST
BASIC PRESUMPTIONS TO OUR LAW;LEGISLATION,ESPECIALLY OF THE CRIMINAL SORT IS NOT,1
TO BE^SPPLIED RETROACTIVELY." USCA.CONST.ART. 1§9,C1.3. JOHNSON V. UNITED STATES,
120 S,CT,r 1795 (2000).
Even under the current and Amended version, Art.38.072(2009), still mandates
that the Statements Must be made by a Child Younger that Fourteen years of age
and in this case,because the Complainant>was Twenty-Seven or Twenty-Eight Years
old at the time when she made her Outcry to Officer Culak. This Amended Statute
does not provide an Exception to the Hearsay Rules or adduce evidence at this
trial sufficient to had established an Outcry under either version of the Statute.
ARGUMENT WITH SUPPORTING AUTHORITIES
USCA.CONST.ART. 1§9,C1.3, pertinent here provides: "No ... Ex Post Facto
Law Shall be passed."
USCA.CONST. ART. 1§10,C1.1, pertinent here provides: "No State Shall;Pass any
Ex Post Facto Law."
USCA.CONST. ART. VI,CI.2, pertinent here provides: "This Constitution,and the
Laws of the United States which shall be made in Pursuance thereof;, under the
Authority of the United States, shall be the Supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of Any State to the Contrary Notwithstanding."
USCA.CONST. AMEND. XIV§1,1 pertinent here provides: "All persons born ... in
the United States and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make or en
force any law which shall abridge the privileges or immunities of citizens of
the United States; Nor shall any State deprive any person of life,liberty, or
property, without Due Process of Law; Nor deny yo any person within its juris
diction the Equal Protection of the Laws."
TEX.CONST. ART.1§16/ pertinent here provides: "No ... Ex Post Facto Law,Ret
roactive law, shall be made."
TEX.CODE CRIMINAL PROCEDURE,ART.38.072, in effect on the alleged Sexual Assault
Of a Child Offense as former Evidence in Criminal Actions committed on November
8th, 1996,provided: "Hearsay Statement of Child Abuse Victim."
SEC.l. "This article applies to a proceeding in the prosecution of an offense
under any of the following provisions of the Penal Code,"IF COMMITTED AGAINST A
CHILD 12 YEARS OF AGE OR YOUNGER:"
(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);
(2) Section 25.02 (Prohibited Sexual Conduct); or
(3) Section 43.25 (Sexual Performance by a Child).
SEC.2. (a) "This article applies only to statements that Describe the
alleged offense that:
(1) "Were made by the child against whom the offense was allegedly com
mitted; and
(2) "Were made by the FIRST PERSON, 18 YEARS OF AGE OR OLDER, other than
THE DEFENDANT, to whom the Child made a statement about the offense."
(b) "A Statement that meets the requirements of Subsection (a) of this
article is not inadmissible because of the hearsay rule if:
(1) "On before the 14th day before the date the proceeding begins,the
party intending to offer the statement:
(A) Notifies the adverse party of its intention to do so;
(B) "Provides the adverse party with the name of the witness through
whom it intends to offer the statement; and
(C) "Provides the adverse party with a written summary of the statement;
(2) "The trial court finds, in a hearing conducted outside the presence
of the jury, that the statement is reliable based on the TIME,CONTENT, and CIR
CUMSTANCES OF THE STATEMENT; and
(3) "The Child testifies or is available to testify at the proceeding in
court or in any other manner provided by law."
"Added by Sets 1985,69th Leg.,ch,590,§l,eff,Sept.1,1985. Amended by Acts 1995,
74th Leg. ch. 76, § 14.25, eff.Sept.l, 1995.
r
TEX.CODE CRIMINAL PROCEDURE,ART. 38.072, as Complained of as being Retroactively
APPLIED to Appellant's Serious Disadvantage, detriment and altering the Rules
of evidence as prohibited by the Federal and State Ex Post Facto Clauses,provides:
"HEARSAY STATEMB8TC0RTeEHTAESS5BMSETg!EeTlMS."
SEC.l. "This Article applies to a proceeding in the prosecution of an offense
under any of the following provisions of the Penal Code,if COMMITTED AGAINST A
CHILD YOUNGER THAN 14 YEARS OF AGE OR A PERSON WITH A DISABILITY:
(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);
(2) Chapter 25.02 (Prohibited sexual Conduct);
(3) Section 43.25 (Sexual Performance by a CHILD);
(4) Section 43.05(a)(2) (Compelling Prostitution);
(5) Section 20A.02(a)(f?') or (8) (Trafficking of Persons); or •-**>-•••••
(6) Section 15.01 (Criminal Attempt), if the offense attempted is described
by Subdivision (1)(2)(3)(4),or (5) of this section.
SEC.2. (a) This article only applies to statements that:
(1) Describes:
(A) The alleged Offense;or
(B) ""IF THE STATEMENT IS OFFERED DURING THE PUNISHMENT PHASE OF THE PRO
CEEDING, A CRIME,WRONG,OR ACT OTHER THAN THE ALLEGED OFFENSE THAT IS:
(i) Described by Section 1;
(ii) "Allegedly committed by the defendant against the Child who is the
victim of the offense, . . . and
(iii) Otherwise admissible as evidence under Article 38.37, Rule 404 or
405, Texas Rules of Evidence,or another law or rule of evidence of this State;
(2) Were made by the Child or person with a Disability against whom the
charged offense or extraneous crime, wrong,or act 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 or person ,with, a disability made a fsJ;atement about ...-•,-
the offense or extraneous crime,wrong,or act.; . "' '", "..' :'. . . '
,.;•(. Cbf^A Statement that meets the, requirements; of Subdivision (a) is not in- .^
admissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins,the
party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witnesses through
whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) THE TRIAL COURT Finds,In-a Hearing Conducted Outside the Presence of
the Jury, That the Statement is reliable based on the Time,Content,and Circum
stances of the statement; and
(3) the child or person with a disability testifies or is available to
testify at the proceeding in court or in any manner provided by law.
SEC.3. In this article, "PERSON WITH A DISABILITY" means a person 13 years
of age or older who because of age or physical or mental disease,disability,
or injury is substantially unable to protect the person's self from harm or to
provide food,shelter,or medical care for the person's self."
ACTS 2009,81st Leg.,Ch, 710, SUBSITUTUTED "YOUNGER THAN 14 YEARS OF AGE" FOR
"12 YEARS OF AGE OR YOUNGER" AAdded Aubsec.(4); and rewrote §2(a).
2011 LEGISLATION.
ACTS 2011, 82nd Leg.ch, 1 (S.B. 24, redesignated § 1(4) as §1(6),and as redesig
nated,inserted, " (4)(,or (5)", inserted § 1(4) and (5); . Section 7.01 of Acts
2011,82nd Leg., ch. 1 (S.B. 24) provides:
6
"The Change in law made by this Act applies only fo an Offense committed
on or After the effective date [SEPT.1,2011] Of this Act. An offense commit-
BEFORE the effective date of this Act is governed by the law in effect on the
date the offense was committed, and the FORMER LAW is Continued in effect for
that purpose. For purposes of this.Section an Offense was COMMITTED BEFORE THE
EFFECTIVE DATE OF THIS ACT IF ANY ELEMENT OF THE OFFENSE OCCURRED BEFORE THAT
DATE."
"THE "OUTCRY,! OR CORROBORATION" REQUIREMENT WAS NOT SATISFIED FOR THOSE CON
VICTIONS; THEY RESTED SOLELY ON THE VICTIM'S TESTIMONY. ACCORDINGLY,THE VERDICTS
ON THOSE FOUR COUNTS STAND OR FALL DEPENDING ON WHETHER THE CHILD VICTIM EXCEPT
ION APPLIES. "UNDER THE OLD LAW,THE EXCEPTION WOULD "NOT" APPLY,BECAUSE THE VIC
TIM WAS MORE THAN 14 YEARS OLD AT THE TIME OF THE ALLEGED OFFENSES. UNDER THE NEW
LAW,THE EXCEPTION WOULD APPLY BECAUSE THE VICTIM WAS UNDER 18 YEARS OLD AT THAT
TIME. IN SHORT,THE VALIDITY OF PETITIONER'S CONVICTIONS DEPENDS ON WHETHER THE
OLD OR THE NEW LAW APPLIES TO HIS CASE,WHICH IN TURN,DEPENDS ON WHETHER THE EX POST
FACTO CLAUSE PROHIBITS THE APPLICATION OF THE NEW VERSION OF ARTICLE 38.07 TO HIS
CASE." Cf. CARMELL V. TEXAS, 120 S.CT. 1620 (2000).
"The Third feature is that Article 38.07, Establishes a sufficiency of the
Rule respecting the minimum quantum of Evidence accessary to sustain a conviction.
If the statute's requirements are not met (for example, by introducing the uncorro
borated testimony of a 15 year old -victim who did not make a timely outcry), a def
endant cannot be convicted, and the Court must enter a judgement of acquittal."
See LEDAY V. STATE, 983 SW.2d. 713 (TEX.CR.APP. 1998); SCOGGAN V. STATE, 799 SW.2d.
679 (SEX.CR.APP. 1990). Texas Amended Article 38.07, effective September 1,1993.The
Amendment extended the GMjLd victim exception to victims under, 18 years old. For four
of petitioner's, that Amendment was critical." CARMELL, supra.
"IN CALDER V. BULL,3 DALL. 386, 390, 1 L.Ed. 648 , JUSTICE CHASE STATED THAT THE
PROSCRIPTION AGAINST EX POST FACTO LAW WAS DERIVED FROM ENGLISH COMMON LAW WELL KNOWN
TO THE FRAMERS,AND SET OUT FOUR CATEGORIES OF EX POST FACTO CRIMINAL LAWS:
"1ST.EVERY LAW THAT MAKES AN ACTION DONE BEFORE THE PASSING OF THE LAW,AND WHICH
WAS TmOCENT WHEN DONE,CRIMINAL,AND PUNISHES^SUCH ACTION." 2ND. "EVERY LAW THAT
AGGRAVATES A CRIME,OR MAKES IT GREATER THAN IT WAS,WHEN COMMITTED." 3RD."EVERY LAW
THAT CHANGES THE PUNISHMENT,AND INFLICTS GREATER PUNISHMENT,THAN THE LAW ANNEXED TO
THE CRIME,WHEN COMMITTED." 4TH. "EVERY LAW THAT ALTERS THE LEGAL RULES OF EVIDENCE
AND RECEIVES ELSE,OR DIFFEREOT7TESTIMONY,THAN THE LAW REQUIRED AT THE TIME OF THE
COMMISSION OF THE OFFENCE,IN ORDER TO CONVICT THE OFFENDER."
"There is plainly a fundamental fairness interest in having the government abide
by the Rules of Law it establishes to govern the circumstances under which it can
deprive a person of his or her liberty or Life. Id.
"AMENDMENT TO TEAXS STATUTE WHICH AUTHORIZED CONVICTION OF CERTAIN SEXUAL
OFFENSE ON VICTIM'S TESTIMONY ALONE,WHERE PREVIOUSLY CORROBORATING EVIDENCE
SLT" USCA.CONST.AmDl§10,Cl.l; VERNON'S ANN.TEX. CCP.ART. 38.07; ART. 38.07
(1992). CARMELL,Supra.
"GIVEN^HE^NEW =^
ACTS ALLEGEDLY COMMITTED MANY JEARS BEFOREHAND tVhL ^ vIC_
PERIOD HAD EXPIRED-AS S^p^SS^^^tS^T^MED
TIM'S FIRST COMPLAINT TO THE POLICE,THE N™ ^f^* ;
THE KINDS OF HARM
TTN7UST AND OPPRESSIVE
DICTIVE LEGISLATION." STOGNER V. CALIFORNIA, 123 S.CT. ^440 u
7
•PETITIONER PROSECUTED FOR NEW OFFENSE
DURING GUILT/INNOCENCE STAGE OF TRIAL
EVIDENCE ADDUCED ABUSE BEGAN AT EIGHT
The records of the case reveals that Petitioner was prosecuted,convicted
and punished for:"CONTINUOUS SEXUAL ABUSE OF A YOUNG CHILD,"Pursuant to TEX.
PENAL CODE ANN.§ 81.02 (2007); which had not yet been enacted at the time of
his alleged Criminal Conduct alleging AGGRAVATED SEXUAL ASSAULT OF A CHILD and
SEXUAL ASSAULT committed on NOVEMBER 8,1996. And such Convictions were/are bar
red by the Ex Post Facto Clauses of USCA.CONST. ARTS. 1§9,C1.3; 1§10,C1.1, and
TEX.CONST. ART.1§16.
"AN EX POST FACTO COMPLAINT ABOUT THE IMPROPER RETROACTIVE APPLICATION OF
A PENAL STATUTE IS NOT REALLY A COMPLAINT ABOUT ERRORS OR DEFECTS IN AN ACCUS
ATORY PLEADING TO A JURY CHARGE. RATHER IT IS A COMPLAINT THAT THE LAW DOES NOT
PERMIT "PROSECUTION" OR CONVICTION FOR BEHAVIOR WHICH DID NOT CONSTITUTE A CRIM
INAL OFFENSE WHEN IT HAPPENED." See IEPPERT V. STATE, 908 SW2d. 217 (TEX.CR.APP.
1995).
Trista Marie Butler/ the complainant/ testified without objection, upon delayed
improper outcry at age 28, that her father-the Petitioner-Sexually abused her for
a period of approximately 10 years. Ms. Butler stated Continous Sexual abuse began
when she was 8-or-9 years old when Petitioner gave he a back massager,had her lay
on his bed and then "showed her how to use it."(RR. Vol 3 at 42).
Ms. Butther testifed Continous Sexual Assaults occured when the Petitioner would
take her into his bedroom, have her undress, lay on his bed, and then he would
"use the Massager on her." (RR. Vol.3 at 48).
Continuing over time, she testified that Petitioner began inserting his fin
ger into her vagina, he would perform Oral Sex on her, and then he would have her
perform ORAL SEX on him. (RR. Vol.3 at 46,52-54). Ms. Butler testified that bet
ween the ages of 8-and-13, she and the Petitioner would have Continuos Sexual en-
counters-without Sexual intercourse-three-to-five times a week." (RR. Vol.3 at 55).
Ms. Butler testified that when she was -13- years old (in 1996), she lost her
virginity to Petitioner. (RR. Vol. 3 at 58-59). She stated that while she was riding
in a vehicle with her father to a friend's house, he drove her into a wooded area
where he told her that he had something to give her. (RR. Vol. 3 at 61). And then
that he gave Ms. Butler Two Sex Toys - One "Corn-on-the-Cob Dildo" and one "Pink
Dildo." (RR. Vol. 3 at 68-69). In further testifying of continous Sexual Assault
of a Child she stated that Petitioner had her lay down on the seat of the vehicle,
and he tehn performed ORAL SEX on her and also INSERTED THE SEX TOYS IN HER VAGINA.
(RR. Vol. 3 at 70). The Petitioner then took out a condom and told Ms. Butler that
he was "Going to Stick His Dick into her Vagina." (RR. Vol. 3 at 71)(Which is the
only Act of Aggravated Sexual Assault and Sexual Assault of a Child allegedly Com
mitted on NOVEMBER 8, 1996, as alleged in the State's Indictment.). She then test-
ified that the two then had SEXUAL INTERCOURSE For the First Time, with
each reaching Climax, and then they left. (RR. Vol. 3 71-72).
Ms. Butler testified that she told no one of the Continous Sexual Abuses
between the ages of 8-and-13, until she confided in her -13- year-eld cousin,
Brandy Allen shortly after her initial SEXUAL INTERCOURSE with the Petitioner.
Ms. Butler during this improper outcry told -13- year old Ms. Allen that she
had had Sex with her father-that it was normal to her." (RR. Vol. 3 at 80).
Then at Ms. Allen's urging, Ms. Butler wrote a letter to her mother describing
and detailing the previous 5-years of Continuos Sexual Abuse. (RR. Vol. 3 at 81).
Ms. Butler testified shortly after she gave the letter to her mother [Tina
Fullen), that Petitioner confronted her and promised to stop. She claims that the
Continuos Sexual Absue Stopped for a period of approximately Two weeks. (RR.VSIfi-
3 ,at 85-86).
Outside of the Continuos and ongoing, allegedly weekly Sexual Abuse detailed
above, Ms. Butler detailed other specific Sexual Abuse with the Petitioner,when
testifying without any objection that at age 15-or-16 Petitioner called her to
his trailer to "Pop His Back, and he continued having Sex with her there." (RR.
Vol. 3 at 89).
Ms. Butler recounted how she went in his bedroom, and after having her "Pop"
his back, the Petitioner then made her perform ORAL SEX on him. (RR. Vol. 3 at 90).
He then made her lay on her back on the bed while he Continued to perform ORAL
SEX on her and INSERTED HIS FINGER INTO HER VAGINA. (RR. Vol.3 Id). He then contin
ued to sexually abuse her with Petitioner on top of her, but later switching pos
itions to where Ms. Butler was on top of him. (RR. Vol. 3 at 91).
While they Continued to have Sexual Intercourse, Mr. Butler testified that her
younger sister, MARLENE and her friend MELANIE walked into the room, and then Pet
itioner threw Ms. Butler off of him and covered her with a blanket. (RR. Vol. 3 at
92). MARLENE and MELANIE corroborated Ms. Butler's unobjected to testimony of such
Continuos Sexual Abuse, although their memories of this event when Ms. Butler was
15-16 years old were somewhat different. (RR. Vol 4 at 186-191; RR. Vol. 5 at 17-21).
Ultimately, Ms. Butler testified that Petitioner Continued to have Sexual Inter
course with her until shortly before her -18th- birthday. She estimated that she
had Continous Sexual intercourse with Petitioner more than a Hundred (100) times and
that Petitioner told her not to tell anyone about the Continuos Sexual Abuse, and
warned her that if she did he would hurt her.
NEW OFFENSE BEING FURTHER PROSECUTED AT PUNISHMENT PHASE
The New Offense of Continuous Sexual Abuse of a Child, Pursuant
To TEX. PENAL CODE ANN.§ 21.07 (2007), applied Retroactively to an alledged Single
SEXUAL ASSAULT OF A CHILD,Offense Committed on NOVEMBER 8,1996, is shown to had
been used as different evidence during the Guilt-Innocence Phase to Convict,was
further used during the Punishment phase. Specifically as follows:to further Pros
ecute Petitioner:
CROSS-EXAMINATION OF DEFENSE WITNESS ROY STEELY BY MS. HUFFMAN:
Q. "So you don't know that at the age of eight (8) he started using a
vibrating back massager on Trista's vagina. "You don't know that,do you?"
A. "No".
MR. WALKER: "Objection. Asked and answered. He said he doesn't know any
of the allegations."
THE COURT: "All right. I'll sustain as to that question."
Q. (BY MS. HUFFMAN): "Would it change your opinion if you knew that at age
of Eight (8) he used a vibrating back massager on her vagina?" "Would that
change your opinion of Danny Ray?"
A. "I tell you, I know enough of Danny that I don't believe that."
Q."So would if change your opinion if you knew that he inserted this corn
cob "Dildo" into her vagina?" "Would that change your opinion." "Judge he
is here as a character witness. So its important for the JURY to know if
he would change his opinion if he knew these things about the Defendant.'^
, THE COURT: "I'm going to overrule the objection. You can ask the question."
Q. (BY MS. HUFFMAN): "And so my question is, yes or no no, would it change your
opinion if you knew that he inserted that "Dildo" into her vagina when she was
Thirteen (13) years old?"
A. "Yes,it would."
Q. Would it change your opinion if you knew that he inserted this "Pink Dildo"
into her vagina when she was Thirteen (13) Years Old?"
A. "Yes,it would."
Q. "And would it change your opinion if you knew that he "CONTINUALLY HAD SEX
WITH HER UNTIL THE AGE OF EIGHTEEN (18)?"
A. "Yes,it would." (RR. VOL. 6- Pp. 48,49,50,51).
CLOSING ARGUMENT BY THE STATE
MR. SANTIN: "May it please the Court, defense attorney, members of the JURY:
One Child molested One Time is a Life Sentence for that Child. One Child Molest
ed "One" Time should be a Life Sentence for a Sexual Predator." "HERE WE HAVE A
DECADE OF RAPE."
"Every single time he had sex with his daughter, that's a Felony." That man
has "25" (Twenty-five) To Life Over and Over and Over Again." Give him Life.
Let's go home. Thank you." (RR. Vol. 6 Pp.74-77).
MS. HUFFMAN: "He gave Trista a Life Sentence,and it started when she was so
young." "She had to worry at the age of -10- (Ten) if — whether or not I had
to put my mouth on my Dad's penis today. What a terrible thing for a -10- year
old to have to worry about." "When she's -13- she has to wonder, Am I going to
have to have sex with my Dad today?" And she worried about it constantly because
it happened Four (4) TO Five (5) Times a week. Any time he wanted it." So that's
what she's what she was worrying about. And YOU SEE THAT A CHILD HAS GONE THROUGH
A DECADE OF RAPE?" What's that worth?" "Ten Years?" "Twenty Years?" "Sixty Years?"
No. Its worth Life." Because a LONG TIME AGO HE MADE A DECISION TO GIVE HER A LIFE
/
10
SENTENCE." (RR. Vol. b Pp. 82-83).
Likewise See STATE'S OPENING STATEMENT AT PUNISHMENT ARGUING NEW OFFENSE:
MR. SANTINI: "May it please the Court, Mr. Walker, Ms. Little, Members of
the JURY: "One Child molested one time is a Life Sentence for that Child. One
Child Molested "ONE TIME" should be a LIFE SENTENCE FOR THE SEXUAL PREDATOR.
"HERE WE HAVE A DECADE OF RAPE. AND UNLIKE GUILT/INNOCENCE WHEN YOU HEARD .
ABOUT THE DECADE OF RAPE AND ALL THOSE TIMES, Y'ALL COULD NOT USE THAT TO PUN
ISH HIM. "YOU'RE GOING TO LEARN DURING YOUR TIME HERE THAT YOU'RE ALLOWED TO
USE THOSE ACTS DURING PUNISHMENT PHASE FOR TO ACTUALLY PUNISH HIM." IN
GUILT/INNOCENCE YOU CAN ONLY USE THOSE ACTS TO HELP PROVE MOTIVE OR HIS INTENT
FOR THE TWO COUNTS THAT WE HAVE." (RR. Vol. 6 Pp. 6,7). "SO YOU GET TO TAKE
INTO CONSIDERATION EVERY SINGLE TIME. "AND WE'RE GOING TO OFFER ALL OF THE
EVIDENCE FROM GUILT/INNOCENCE SO THAT YOU'RE GOING TO HEAR FROM PUNISHMENT IS
— ARE THOSE FACTS. "SO YOU CAN TAKE INTO ACCOUNT "EVERY SINGLE.TIME HE GROOM
ED HER,"EVERY SINGLE TIME HE CALLED HER A WHORE", "EVERY SINGLE TIME HE PENE
TRATED HER DIGITALLY," "PERFORMED ORAL SEX", "PENETRATED HER WITH HIS SEXUAL
ORGAN," "HIS PENIS." AND YOU HEARD TRISTA SAY, "THE ACTUAL SEX PART," "THE
PENETRATION WITH THE SEXUAL ORGAN, WAS ANYWHERE FROM OVER ONE HUNDRED (100)
LESS THAN FIVE-HUNDRED (500), I THINK SHE SAID."
"AND IF YOU GAVE HIM ONE YEAR FOR EACH SEXUAL ORGAN PENETRATION." "WE'RE
NOT GOING TO CALL ANYBODY. "WHAT WE'RE GOING TO DO IS ENTER THE EVIDENCE THAT
Y'ALL ALREADY HEARD." "SO THIS WHAT YOU'RE GOING TO HEAR AGAIN.'""SO YOU CAN
GIVE ONE YEAR FOR EACH SEXUAL ORGAN PENETRATION, AND ITS STILL A LIFE SENTENCE.
"PROTECTING THE COMPLAINANT AS WE HEARD ABOUT "HIS THREATS" AND WE HEARD
ABOUT HIS ABILITY TO CARRY THESE OUT."
THE COURT: "Thank You, Mr. Santini. All right. Witnesses by the State?"
MS.HUFFMAN: "JUDGE,AT THIS TIME WE OFFER ALL THE EVIDENCE FROM GUILT/
'INNOCENCE "AND THE STATE RESTS.'";. (RR.i' Vol.6 Ppi 7/8/9) .'; ^ p-
.... -^RTHER PROSECUTION -AND PUN±SHMEOT-©BTAI^D-'-'UNDER NEW'OFFENSE ":
AS TO CONTINUOUS SEXUAL ABUSE OF A CHILD ART.21.02,TEX. PENAL CODE !(2007)
AT STATE'S CLOSING ARGUMENT BY MS. HUFFMAN CHILD ASSAULTED 100'S OF TIMES
. . . "SO THE YEARS GO NO AND THE ABUSE "CONTINUES." MAYBE HE THOUGHT THE
"STATUTE OF LIMITATIONS HAD RUN." "SO TODAY IS FINALLY ABOUT TRISTA." "ITS
ABOUT THE HUNDREDS AND HUNDREDS OF TIMES THAT SHE SUFFERED ABUSE AT HIS HANDS."
"Today I'm asking you to tell this Defendant that no Child should ever have
to go through that type of Abuse and then come in here and have to tell you about
it. "I'm asking you to do today what the FACTS JUSTIFY and what Justice demands.
He gave her a Life Sentence, and I'm asking you to return the favor." (RR. Vol.
Pp. 85-86). Cf. Amended TEX.PENAL CODE§§ 21.02, 22.021,Eff. 2007 & 2011,respect
ively; COUNTS I and II, of Indictment; alleging Single Acto of AGGRAVATED SEXUAL
ASSAULT OF A CHILD, And SEXUAL ASSAULT of same Child Committed on NOVEMBER 8,1996,
when CONTINUOUS SEXUAL ABUSE OF A CHILD WAS NOT YET AN OFFENSE. Whereas further
the DEFENSE OF LIMITATIONS (10) YEARS WAS AVAILABLE AT THE TIME SUCH OFFENSES WERE
ALLEGEDLY COMMITTED IN 1996).
"THE INDICTMENT CHARGED A VERSION OF THE OFFENSE THAT WAS NOT IN EFFECT AT
THE TIME OF THE ALLEGED OFFENSE,BUT APPELLANT HAD RAISED. NO OBJECTION OF EX
POST FACTO VIOLATION UNDER U.S. CONSTITUTION. ARTICLE 1§10 AND TEX.CONST.ART.
1§16 AT THE TRIAL LEVEL. APPELLANT'S CONVICTIONS FOR AGGRAVATED SEXUAL ASSAULT
WERE REVERSED AS BEING BASED ON EX POST FACTO LAWS,EVEN THOUGH APPELLANT FAILED
TO OBJECT,WHERE THE INDICTMENT CHARGED A VERSION OF THE OFFENSE NOT IN EXISTENCE
AT THE TIME OF THE CRIME." IEPPERT V. STATE, 908 SW.2d. 217 (TEX.CR.APP. 1995).
11
"AN EX POST FACTO COMPLAINT ABOUT THE IMPROPER RETROACTIVE APPLICATION
OF A PENAL 'STATUTE IS NOT REALLY A COMPLAINT ABOUT ERRORS OR DEFECTS IN
THE ACCUSATORY PLEADING OR A JURY CHARGE. RATHER, IT IS A COMPLAINT THAT
THE LAW DOES NOT PERMIT PROSECUTION OR CONVICTION FOR BEHAVIOR WHICH DID
NOT CONSTITUTE A CRIMINAL OFFENSE WHEN IT HAPPENED." Id. IEPPERT, supra.
"EX POST FACTO PROHIBITIONS DO NOT MERELY CONFER UPON THE PEOPLE A
WAIVABLE OR FORFEITABLE RIGHT NOT TO HAVE THIER CONDUCT PENALIZED RET
ROACTIVELY. INDEED THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO
LEGISLATION IS NOT REALLY AN INDIVIDUAL RIGHT AT ALL. IT IS A CATEGORICAL
PROHIBITION DIRECTED BY THE PEOPLE TO THEIR GOVERNMENT. SHORT OF A CONST
ITUTIONAL AMENDMENT,THE PEOPLE MAY NOT WAIVE THIS PROHIBITION,EITHER IND
IVIDUALLY OR COLLECTIVELY,ANY MORE THAN THEY MAY CONSENT TO BE IMPRISONED
FOR CONDUCT WHICH DOES NOT CONSTITUTE A CRIME." USCA.CONST.ART. 1§10,C1.1,
TEX. CONST. ART. 1§16. Id. IEPPERT, supra.
"THE COURT OF APPEALS DID NOT REACH THE MERITS OF THE CLAIM,HOWEVER,
INSTEAD,HELD THAT APPELLANT FORFEITED THE RIGHT TO COMPLAIN OF IT ON APPEAL
BECAUSE HE DID NOT FIRST RAISE IT IN THE TRIAL COURT. " WE GRANTED DISCRET
IONARY REVIEW TO DECIDE WHETHER PROSECUTION FOR CONDUCT WHICH WAS NOT ILL
EGAL COMMITTED IS A FORFEITABLE IRREGULARITY OF THE TRIAL PROCESS." WE HOLD
THAT IT IS NOT." Id. IEPPERT, supra.
"WHILE THE STATE HAD AN IMPORTANT INTEREST IN PROSECUTING CHILD-ABUSE
CASES, THERE WAS ALSO A PREDOMONATING FEDERAL CONSTITUTIONAL INTEREST IN
FORBIDDING THE STATE TO REVIVE A LONG-FORBIDDEN PROSECUTION; APPLYING THE
"NEW STATUTE AT-HAND WOULD (a) UNFAIRLY SUBJECT THE ACCUSED TO PROSECUTION
LONG AFTER THE STATE, HAD IN EFFECT, GRANTED AN AMNESTY; (b) RETROACTIVELY
WITHDREW A COMPLETE DEFENSE TO PROSECUTION AFTER THE DEFENSE HAD ALREADY
ATTACHED; AND '(c) DO SO IN A MANNER THAT WOULD ALLOW THE STATE TO WITHDRAW
THIS DEFENSE AT WILL AND WITH RESPECT TO. INDIVIDUALS ALREADY IDENTIFIED." . --„
"5|e STO)gNER:; V.:. CALIFORNIA, 123 S.CT., 2446.. (2.0.03),. . • " \i; ';,,;;•/'
•'*""GIVEN THAT, THE NEW STATUTE PURPORTED TO AUTHORIZE PROSECUTION FOR CRIMINAL
ACTS ALLEGEDLY, COMMITTED MANY YEARS BEFOREHAND-EVEN IF THE ORIGINAL LIMITATIONS
PERIOD HAD, EXPIRED-AS'LONG AS PROSECUTION BEGAN WITHIN A YEAR OF AN ALLEGED VIC
TIM'S'FIRST COMPEAi-NT TO THE POLICE,THE NEW STATUTE THREATENED THE KINDS-OF HARM
THAT THE EX POST FACTO PROHIBITION SOUGHT,TOvAVOID,SUCH ^AS'UNJUST AND OPPRESSIVE
RETROACTlfE EFFECTS (b) LACK OF FAIR WARNING^ (c) ARBITRARY'%ND POTENTIALLY VIND
ICTIVE LEGISLATION, AND (d) EROSION OF THE SEPARATION OF IoWEEIS. "--Id.,.. STOGNER.
"AN ARGUMENT,IN FAVOR OF APPLYING SUCH STATUTES,THAT DENIED'THE:EXISTENCE*OF;
RELIANCE INTERESTS (a) IGNORED THE POTENTIALLY LENGTHY PERIOD OF TIME DURING \ .,•
WHICH THE ACCUSED LACKED NOTICE OF THE POSSIBILITY OF PROSECUTION AND DURING "''
WHICH THE ACCUSED WAS UNAWARE,FOR EXAMPLE,OF ANY NEED TO PRESERVE EVIDENCE OF
INNOCENCE, AND (b) WOULD SEEM TO PERMIT A STATE TO REVIVE A PROSECUTION FOR
ANY KIND OF CRIME WITHOUT ANY TEMPORAL LIMITATION." Id. STOGNER, supra.
"THE FEDERAL CONSTITUTION'S TWO EX'POST FACTO PROVISIONS (1)-PROHIBIT THE
FEDERAL GOVERNMENT (UNDER ART. 1§9,C1..3):,AND. (UNDER ART.I§10,C1.1) FROM ENACT
ING LAWS WITH CERTAIN RETROACTIVE EFFECTS,AND (2) ARE AIMED AT PREVENTING UN
FAIR RETROACTIVE LAWS."' Id. STOGNER, "supra.
The New Offense as prosecuted and punished by assessment of an AGGRAVATED
LIFE SENTENCE and TWENTY YEARS Confinement as to such Unjust and Oppressive
Retroactive Effects, and allegedly committed Beforehand and Never Reported
as proper Outcry by a Child -12- years or Younger before NOVEMBER 8,1996,
1
12
8~w
as revealed from the foregoing records. Provides as follows:
TEX.PENAL CODE ANN.' § 21.02, "CONTINUOS SEXUAL ABUSE OF YOUNG CHILD."
fal "In this section "Child" has the meaning assigned by Section
22.01(c).
(b) "A person commits an offense if:
(1) "during a period that is 30 or more days in duration,the
person commits Two or More Acts of Sexual Abuse, regardless of whether
the Acts of S§xual Abuse are committed against one or more victims; and
(2) "at the time of the commission of each of the Acts of Sexual
Abuse, the actor is -17- years of age or older and the victim is a Child
younger than -14- years of age."
(c) "For purposes of this section, "ACT OF SEXUAL ABUSE" Means Any
Act that is in violation of One Or Mdre of the following Penal Laws:
(2) "Indecency with a child under Section 21.11(a)(1),if the act
or committed the offense in a manner other than by touching,including
touching through clothing,the child's breasts;
(3)"SEXUAL ASSAULT UNDER SECTION 22.011;
(4) "AGGRAVATED SEXUAL ASSAULT UNDER SECTION 22.021;
(d) "If a jury is the trier of fact, members of the jury are not required
to agree unanimously on what 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- days or
more in duaration committed Two or More ACTS OF SEXUAL ABUSE."
(h) "An offense under this section is a felony of the first degree,punish
able by imprisonment in the Texas Department of Criminal Justice for LIFE,or
for any term of not more than 99 years or less than 25 years." ACTS.2007,eff.Sept.
1; Acts 2011, 82nd Leg.,ch. 1 (S.B. 24) Amended. Section 7.01 of Acts 2011,82nd.
Leg., ch.l (S.B.24) provides:
"The change in law made by this Act applies only to an offense committed on
or after the effective date [Sept.1.2011] of this Act. An offense committed be
fore the effective date of this Act is governed by the law in effect on the date
the offense was committed, and the Former Law is continued in effect for that
purpose. For purposes of this section an offense was committed Before the effec
tive date of this Act if any element of the offense occurred before that date."
"Both the United States and the Texas Constitutions contain an absolute prohib-
ion against Ex Post Facto Laws. USCA.CONST. ART. l§10,Cl.l,and TEX.CONST.ART.l§16.
Id. IEPPERT,supra. "The principle upon which the Ex Post Facto Clauses are based is
the central to our concept of fairness, e.g., that a defendant HAVE NOTICE of that
conduct which may subject him to criminal penalties." MARKS V. UNITED STATES, 97
S.CT. 990 (1977); MILLER V. FLORIDA, 107 S.CT. 2446 (1987),and CALDER V. BULL, 3 U.S.
386, DALL. 386, 389, 1 L.Ed. 648 (1798). "Where a defendant is placed on trial
for conduct which was not criminal at the time of its commission,the trial is fund
amentally flawed because it violates our "concept of Constitutional Liberty."
MARKS, 97-'S.CT. at 993.
"IN BEAZELL V. OHIO, 46 S.CT. 68 (1925),THE SUPREME COURT SUMMARIZED THE CHAR
ACTERISTICS OF AN EX POST FACTO LAW:
IT IS SETTLED,BY DECISIONS OF THIS COURT SO WELL KNOWN THAT THEIR CITATIONMAY BE
DISPENSED-WITH,THAT ANY STATUTE WHICH PUNISHES AS A CRIME AN ACT PREVIOUSLY COM
MITTED,^ICH WAS INNOCENT WHEN DONE,WHICH MAKES MORE BURDENSOME AND PUNISHMENT FOR
A CRi'^S,AFTER ITS ^COMMISSION, "OR WHICH DEPRAVES ONE CHARGED WITH, CRIME ANY DEFENSE
AVAILABLE^ACCORDING TO LAW AT THE TIME WHEN THE ACT WAS COMMITTED,IS PROHIBITED AS
EX POST FACTO."
13
IV
PETITIONER WAS DEPRIVED OF A COMPLETE DEFENSE UNDER THE FORMER SEN
YEAR STATUTE OF LIMITATIONS BARRING THE ALLEGED CRIMES OF AGGRAVATED
SEXUAL ASSULT OF A CHILD AND SEXUAL ASSAULT OF A CHILD WHEREAS SUCH A
DEFENSE WAS AVAILABLE ON NOVEMBER 8,1996 AT THE TIME SUCH CRIMES WERE
ALLEGEDLY COMMITTED PURSUANT TO TEX.CODE CRIM.PROC.ART. 12.01 (1991),
AS WAS APPLICABLE RATHER THAN THE MORE ONEROUS AND DISADVANTAGEOUS
RETROACTIVE APPLICATION OF THE (1997),AND (2007) STAIR STEPPED AND
AMENDED VERSIOBS5- REVIVING AN OTHERWISE TIME-BARRED PROSECUTION UNTO
TEN YEARS FROM THE 18TH BIRTHDAY OF THE VICTIM OF THE OFFENSE THEN
UNTO NO LIMITATIONS PERIOD AT ALL,THUS,VIOLATIVE OF USCA.ARTS.1§5,CI.
3.1§10,C1.1;TEX. CONST. ART. 1§16,AND PROHIBITED BY THE EX POST FACTO
CLAUSES.
At the time the alleged offenses of Aggravated Sexual Assault of a
Child Younger than 14, and Sexual Assault of a Child younger than 17 years
of age committed on same day of November 8, 1996. Under then Former TEX.
CODE CRIM. PROC. ART. 12.01(2)(D)(1991),as a Complete and Available Defense
at that time provided an applicable (Ten) -10- Year Time-barred Statute
of Limitations from the commission date of the crimes prior to the (1997)
and (2007) Amended Versions Reviving these otherwise TIME BARRED prosec
utions as applied Retroactively and prohibited by both the State and Fedeca
eral Ex Post Facto Clause in accord with BEAZELL V. OHIO, 46 S.CT. 68 (1925).
TEX.CODE CRIM.PROC. ART. 12.01(2)(D)(1991), in effect as former law still
available as a defense available according to law at the time when the Act
was committed on November 8, 1996, clearly provided:
"EXCEPT AS PROVIDED IN ARTICLE 12.03, Felony Indictments May be presented
Within these Limits, And Not afterwards:"
(2) "TEN YEARS FROM THE DATE OF THE COMMISSION OF THE OFFENSE:"
(D) "SEXUAL ASSAULT UNDER SECTION 22.011(a)(2) OF THE PENAL CODE;
INDECENCY WITH A CHILD."
"Amended by Acts 1983,68th Leg.,p.413, ch. 85, §l,eff. 1983,68th Leg.,
Acts 1991, 72nd Leg., ch. 565, §6,eff. Sept.1,1991."
The (1997), Amended Version of the Statute was retroactively applied
Stair-step fasMon to deprive Petitioner of the Ten Year Statute of Limit
ations Defense which was available according to the former (1991) version
at the time when the NOVEMBER 8, 1996, Acts were allegedly Committed. Was
Amended Effective SEPTEMBER 1,1997, and as prohibited by the Ex Post Facto
Clauses, revived and extended the Limitations period from -10- years, Unto
"TEN YEARS FROM THE ISffH BIRTHDAY OF THE VICTIM OF THE OFFENSE." ACT OF MAY
28,1997,75TH.LEG.,R.S., CH. 740, §§ 1,4,1997,TEX. GEN. LAWS 2403. ~
The (2007), Amended Version of the Statute was ultimately Retroactively
applied to revive otherwise Time-barred Sexual Abuse Offenses of a Child with
NO LIMITATIONS For Sexual Assault, and Aggravated Sexual Assault,celarly dep
riving Petitioner of the -10- Year(Statute of Limitations Defense available
14
according to the law under the (1991),former version of the Statute. And such
Amended Statute further more onerous and disadvantageous as retroactively app
lied, provides: ART.12.01(1)(A)(B)(D)(E)." FELONIES. "Except as provided in
Article 12.03, Felony Indictments may be prsented within these Limits, and
not Afterwards:
(1) "NO LIMITATION:"
(B) "SEXUAL ASSAULT UNDER SECTION 22.011(a)(2),PENAL CODE,OR AGGRAVATED
SEXUAL ASSAULT UNDER SECTION 22.021(a)(1)(B),PENAL CODE";
(D) "CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR CHILDREN UNDER SECTION
21.01,PENAL CODE."
"Acts 2007, 80th. Leg., R.S. , ch. 593, EFF. SEPT. 1,2007).
"APPLYING THE NEW STATUTE IN THE CASE AT HAND WOULD CLEARLY UNFAIRLY (a)
SUBJECT THE ACCUSED TO PROSECUTION LONG AFTER THE STATE HAD,IN EFFECT GRANTED
AMNESTY (b) RETROACTIVELY WITHDREW A COMPLETE DEFENSE TO PROSECUTION AFTER THE
DEFENSE HAD ALREADY ATTACHED: AND (c) DO SO IN A MANNER THAT WOULD ALLOW THE
STATE TO WITHDRAW THIS DEFENSE AT WILL AND WITH RESPECT TO INDIVIDUALS ALREADY
IDENTIFIED." See STOGNER V. CALIFORNIA, 123 S.CT. 2446 (2003).
"PORTION OF LEGISLATION "VOID" WHICH SHOULD ENDEAVOR TO REACH BY ITS RET
ROACTIVE OPERATION ACTS BEFORE COMMITTED." See JAEHNE V. NEW YORK, 9 S.CT. 70
(1888).
"Officer Culak testified that he met with Daughter on November 2, 2011,at
the Willis Police Department. He testified that when Daughter first came to
the Station she initially only complained that Rancher was harassing her and
her husband, But then also told him that Rancher had Molested her AS A CHILD.
Culak testified that Daughter told him that when she was Eight (8) years
old that Rancher had given her "Sexual Toys," Sexual pornographic movies and
had touched her sexually. Daughter told Culak that by the time she was thirteen
years old she had lost her virginity to Rancher." Daughter told Culak that
Rancher taught her how to pleasure herself.
At trial Daughter, then TWENTY-NINE (29) Years Old,testified at length re
garding the Continuous Sexual Abuse as a Child she endured from Rancher.
PRAYER
Wheeefore Premises Considered,Petitioner Pro se prays that this Court of
Appeals considers the Ex Post Facto Claims and Reasons for review,and grants
this Pro se Petition for Discretionary Review.
Dated: 9/41 iS Respectfully submitted,
Rt. 2 Bflx 4J00 \
Hughes Unit
Gatesville, Texas 76597
-Petitioner Pro Se
15.
CERTIFICATE
I,hereby the undersigned Petitioner Pro se certify that a true and
correct copy of the foregoing Petition for Discretionary Review has been
served on Attorney representing the State by delivering same to TDCJ-ID.,
Officials for mailing to: STATE'S PROSECUTING ATTORNEY, P.O. BOX 13046,
Austin, Texas 78711-3406, on this 4th day of September, 2015, First Class
mail postage prepaid under the prison Mailbox Rule.
APPENDIX "1"
NINTH COURT OF APPEALS MEMORANDUM OPINION
COA. NOS. 09-13-00355-CR & 09-13-00356-CR
i #£• iS
In The
Court ofAppeals
Ninth District of Texas at Beaumont
NO. 09-13-00355-CR
NO. 09-13-00356-CR
y
DANNY RAY RANCHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 12-01-00820 CR (Counts 1 and 2)
MEMORANDUM OPINION
Appellant Danny Ray Rancher appeals his conviction for aggravated sexual
assault ofa child and for sexual assault ofa child. The jury found Rancher guilty of
aggravated sexual assault and sentenced him to life imprisonment and a fine of
$10,000. The jury also found Rancher guilty of sexual assault and sentenced him to
twenty years imprisonment. The two sentences are to run concurrently. In two
X'
issues, Rancher complains about the admission of outcry witnesses' testimony. We
affirm the trial court's judgments.
I. Background
The record reflects that the complainant is appellant's daughter. In
November 2011, Daughter, at around age twenty-eight, reported acts of sexual
abuse she endured as a child to Officer Adam Culak of the Willis Police
Department. The State indicted Rancher on one count of aggravated sexual assault
and one count of sexual assault. The State alleged these acts occurred "on or about
November 08, 1996," when Daughter was "a child younger than 14 years of age
and not the spouse of the Defendant[.]" Rancher pleaded "not guilty" to the
charged offenses. The jury found Rancher guilty of the charged offenses. This
timely appeal followed.
II. Standard of Review
We review a trial court's decision to admit an outcry statement for abuse of
discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990) (en banc);
see also Robinett v. State, 383 S.W.3d 758, 761 (Tex. App.—Amarillo 2012, no
pet.). We will reverse the trial court's decision only when the court's decision falls
1To protect the privacy of the parties involved in this appeal, we identify
them bytheir familial titles or initials.
2
3'
outside the zone of reasonable disagreement. Shaw v. State, 329 S.W.3d 645, 652
(Tex. App.—Houston [14th Dist] 2010, pet. refd).
IH. Outcry Testimony
In Rancher's first and second issues, he argues the trial court erred in
admitting the outcry testimony from both Daughter's mother and Officer Culak. In
his first issue, Rancher argues the trial court erred in admitting the outcry
testimony of Daughter's mother because article 38.072 of the Texas Code of
Criminal Procedure was inapplicable as Daughter was thirteen years old when she
made the statement to her mother.2 In his second issue, Rancher argues the trial
court erred in admitting the outcry testimony of Officer Culak because Daughter
was twenty-eight years old at the time she made the statement to Culak and
therefore article 38.072 does not apply to her statements. The State responds that
Rancher failed to preserve either issue for review. The State argues in the
alternative that even if the trial court erred in admitting Mother and Culak's
testimony, any error was harmless.
2The parties disagree over the version of article 38.072 that applies to the
facts ofthis case. Because of our resolution ofthis appeal, we cite to the current
version of the statute.
3
V
A. Preservation of Error
We first address whether Rancher properly preserved his issues for appellate
review. Rule 33.1(a) of the Texas Rules of Appellate Procedure requires that a
party make a"timely request, objection, or motion" to the trial court that "state[s]
the grounds for the ruling that the complaining party sought from the trial court
with sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context[.]" Tex. R. App. P. 33.1(a)(1)(A);
see Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). "The purpose
of requiring aspecific objection in the trial court is twofold: (1) to inform the trial
judge ofthe basis ofthe objection and give him the opportunity to rule on it; (2) to
give opposing counsel the opportunity to respond to the complaint." Id.
Rancher complains that the trial court erred in admitting the outcry
testimony from both Daughter's mother and Officer Culak. Article 38.072, entitled
"Hearsay Statement of Certain Abuse Victims," provides that some hearsay
statements are admissible in prosecuting certain offenses, including the offense of
aggravated sexual assault of a child and sexual assault of a child. See Tex. Code
Crim. Proc. Ann. art. 38.072, §§ 1, 2 (West Supp. 2014); see also Tex. Penal Code
Ann. §22.011(a)(2) (West 2011), § 22.021(a)(1)(B) (West Supp. 2014). Article
38.072 applies to statements that describe the alleged offense and that (1) were
made by the child against whom the offense allegedly was committed and (2) were
made to the first person, eighteen years of age or older, other than the defendant, to
whom the child made a statement about the offense. Tex. Code Crim. Proc. Ann.
art. 38.072, §2(a). The hearsay rule will not bar these statements as inadmissible
if, among other things, the trial court finds, in ahearing outside the presence ofthe
jury, the statement is reliable based on the time, content, and circumstances of the
statement. Id. § 2(b)(2). Once a defendant raises a hearsay objection to testimony
regarding a child victim's statement, the State, as the proponent of the evidence,
has the burden to establish compliance with the provisions of article 38.072. See
Longv. State, 800 S.W.2d 545, 547-48 (Tex. Crim. App. 1990); Cordero v. State,
444 S.W.3d 812, 816 (Tex. App.—Beaumont 2014, pet. filed).
Regarding Rancher's first issue concerning the admission of outcry
testimony from Daughter's mother, the State argues that Rancher bases his
appellate issue on an alleged technical disqualification under an earlier version of
article 38.072 requiring the child to be younger than thirteen years of age at the
time of the outcry, but he did not present this argument to the trial court. The trial
court conducted a hearing outside the presence of the jury to determine the
admissibility of Mother's outcry testimony. At trial, Rancher objected to Mother's
testimony, stating only that his objection was "under 38.072." The trial court
I
overruled Rancher's objection. We conclude Rancher's objection based on article
38.072 was sufficient to preserve error for any failure to comply with article
38.072, including an argument that State failed to comply with the statute because
Daughter was allegedly older than the age established by statute. See Long, 800
S.W.2d at 547-48.
Regarding Rancher's second issue concerning the admission of outcry
testimony from Officer Culak, the State argues that Rancher did not specifically
raise his appellate issue in his trial objection. At trial, Rancher objected to Culak's
testimony as hearsay. In ahearing outside the presence ofthe jury to determine the
admissibility of Culak's testimony regarding Daughter's outcry statement, Rancher
explained his objection as follows:
We would object, Judge. It is hearsay and, in addition, under
Article 38.072, the Texas Code of Criminal Procedure, I would point
the Court specifically to Section 2, Parenthetical 1 - I'm sorry ~
Parenthetical 3, made to the first person the person made the outcry to.
He was not the first person. Unfortunately, for the State, the
mother could not give any details as far as the letter, but she was used
as an outcry witness about sexual abuse.
To use a second outcry witness is ~ first of all, it is hearsay
and, secondly, it violates the statute or the article in the Code of
CriminalProcedure. Therefore, we would object.
6
n
The trial court overruled Rancher's objections. Rancher presented additional points
to the trial court, but the trial court once again noted that Rancher's objection to the
testimony was overruled. At Rancher's request, the trial court granted him a
running objection to Culak's testimony. On appeal, Rancher specifically argues
that article 38.072 does not apply because Daughter was no longer a child at the
time she made her statement to Culak. The State contends that because Rancher
did not include this specific argument to the trial court he has not preserved error.
We conclude Rancher's objection to Culak's testimony based on hearsay and
article 38.072 was sufficient to preserve error for any failure by the State to comply
with the provisions ofarticle 38.072, including that Daughter's statements were not
the type the statute was designed to address. See Long, 800 S.W.2d at 547-48; see
also Cordero, 444 S.W.3d at 816-19.
B. Harmless Error
Rancher argues that the trial court erred in admitting the testimony of
Daughter's mother when the trial court applied the wrong version of article 38.072
and application of the correct statute would have rendered the testimony
inadmissible because Daughter did not meet the age qualification in the correct
statute. Rancher argues that the trial court erred in admitting the testimony of
7
9
Officer Culak because article 38.072 only applies to statements made by a child
younger than fourteen years of age.
Without concluding that the trial court erred in overruling Rancher's hearsay
and article 38.072 objections to the testimony of Mother and Officer Culak, we
will review whether error, if any, necessitates a reversal in this case. Under the
facts of this case, we review an erroneous admission of hearsay as non-
constitutional error, subject to a harm analysis under rule 44.2(b) of the Texas
Rules of Appellate Procedure. See Tex. R. App. P. 44.2(b). We disregard non-
constitutional error unless it affects the substantial rights of the defendant. Id. "A
substantial right is affected when the error had a substantial and injurious effect or
influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997). A conviction should not be overturned for such error if,
after examining the entire record, we have fair assurance that "the error did not
have a substantial and injurious effect or influence in determining the jury's
verdict." Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). Improper
admission of evidence is not reversible error if the same or similar evidence is
admitted without objection at another point in the trial. Leday v. State, 983 S.W.2d
713, 718 (Tex. Crim. App. 1998) (en banc); see Duncan v. State, 95 S.W.3d 669,
672 (Tex. App.—Houston [1st Dist.] 2002, pet. refd) (holding improper admission
of outcry testimony was harmless error because similar testimony was admitted
through complainant, pediatrician, and medical records). Neither the State nor the
appellant has the burden to show harm when an error has occurred; rather, after
reviewing the record, it is the appellate court's duty to assess harm. Schutz v. State,
63 S.W.3d 442, 444 (Tex. Crim. App. 2001). We must reverse a conviction for
nonconstitutional error if we have "grave doubt" about whether the result of the
trial was free from substantial influence ofthe error. Barshaw v. State, 342 S.W.3d
91, 94 (Tex. Crim. App. 2011). "'Grave doubt' means that 'in the judge's mind,
the matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.'" Id. (quoting Burnett v. State, 88 S.W.3d 633, 637-38
(Tex. Crim. App. 2002)).
Rancher complains about Mother's testimony that Daughter had written her
a letter detailing Daughter's allegations of sexual abuse by Rancher. Mother
testified that she did not recall what the letter stated, but that it was about Rancher
molesting Daughter. Mother testified that after she read the letter she confronted
Rancher and he denied all allegations of abuse.
Rancher also complains about Officer Culak's testimony that Daughter told
him that Rancher had sexually abused her from the age ofthirteen until she was
almost eighteen years old. At trial, the defense called Officer Culak to testify.
10
Officer Culak testified that he met with Daughter on November 2, 2011 at the
Willis Police Department. Culak testified that when Daughter first came to the
station she initially only complained that Rancher was harassing her and her
husband, but then also told him that Rancher had molested her as achild. Culak
testified that he took a written statement from Daughter.
Culak testified that Daughter told him that when she was eight years old
Rancher had given her "sexual toys[,]" "sexual pornographic movies[,] and had
touched her sexually." Daughter told Culak that by the time she was thirteen years
old she had lost her virginity to Rancher. Daughter told Culak that Rancher taught
her how to pleasure herself.
Culak testified that Daughter told him that she had written aletter to Mother
about what had happened, that Mother believed Daughter made the allegations up
for attention, and that Mother had burned the letter after she read it. Culak testified
that Daughter told him that when she was fifteen years old one of her friends
walked into Rancher's bedroom while Rancher was engaged in sexual acts with
Daughter. Culak recalled that Daughter told him that Rancher's sexual abuse
continued until she left home at age eighteen.
At trial, Daughter, then twenty-nine years old, testified at length regarding
the abuse she endured from Rancher. Daughter explained that Mother became ill
10
II
around 1992 or 1993 and required frequent stays in the hospital. Mother ultimately
was diagnosed with multiple sclerosis. Approximately ayear or two after being
diagnosed, Mother became confined to a wheelchair, which required Mother,
Daughter, Sister, and Brother to move into adifferent trailer house that included
handicap accommodations. Rancher maintained aseparate trailer on the property
where he conducted his business and also resided. Because Rancher's trailer was
not handicap accessible, Mother could not access it without help and in fact never
went to Rancher's trailer.
Daughter testified that Rancher's sexual abuse and grooming of her began
when Mother first became ill in the early nineties. Daughter explained in detail
how Rancher's abuse began with inappropriate touching and inappropriate
conversations. Daughter testified that after the first incident of inappropriate
touching, Rancher touched her sexually two to four times a week. Daughter
described in detail atime when Rancher digitally penetrated her vagina when she
was about eight or nine years old.
Daughter testified that after Rancher moved into his own trailer the
inappropriate touching progressed. Daughter explained that she had oral sex with
Rancher, that he touched her vagina, and that he would have her watch
11
f2
pornographic movies. She testified Rancher sexually abused her in his trailer three
to five times a week.
Daughter testified that when she was thirteen years old she lost her virginity
to Rancher and described in graphic detail the abuse she endured during this
incident. Daughter testified that after this incident she started having sexual
intercourse with Rancher regularly—she estimated it would occur between three to
five times a week. She estimated that she has had sexual intercourse with Rancher
more than a hundred times.
Daughter testified that Rancher told her not to tell anyone about the abuse
and warned her that if she did he would hurt her. Daughter testified that once the
sexual abuse started, Rancher sheltered her and would not let her go places that the
other children were allowed to go. She testified that sometimes if she would do
sexual things, Rancher would later take her to meet up with her siblings.
Daughter recalled that she was thirteen years old when she first told
someone about Rancher's abuse; she told her thirteen-year-old cousin. Daughter
explained that Cousin had disclosed to Daughter that Cousin had lost her virginity,
and in response to Cousin's confession, Daughter told Cousin that she too had lost
her virginity and revealed to Cousin that she had had sex with Rancher. Daughter
testified that when she made this confession to Cousin, Daughter believed it was
12
)'3 «*
normal behavior to have sex with her father because it had been the norm for her.
According to Daughter, Cousin did not believe this behavior was normal. Daughter
testified that she then wrote Mother a detailed letter explaining what Rancher had
been doing to her. Daughter testified that Mother did not believe the accusations,
and either Mother or Rancher ultimately burned the letter.
Daughter testified that after she told Mother about Rancher's abuse and
Mother did not believe her, Rancher continued to have sexual intercourse with
Daughter. Daughter testified that when she was fifteen years old, Sister and a
friend of theirs from school walked in on Daughter and Rancher having sexual
intercourse.
Cousin corroborated Daughter's testimony. Cousin testified that Rancher
would put the television on pornography with five or six children in the room.
Cousin testified that after Daughter had confided in her, Cousin convinced
Daughter to write Mother a letter. Cousin testified that she was present when
Mother confronted Daughter about the letter. Cousin testified she and Daughter
were both thirteen years old when this happened. Cousin recalled that Rancher
denied the accusations and that his demeanor during the confrontation was
unemotional and nonchalant.
13
z«r' «•
M.K., a friend of Daughter, also corroborated Daughter's testimony.
According to M.K., when she was "still 15, maybe turning 16[,]" she walked into
Rancher's bedroom and witnessed Rancher having sex with Daughter. M.K.
testified that the expression on Daughter's face suggested she was horrified,
embarrassed, and in shock.
Sister also testified. She testified that it was very scary growing up with
Rancher because he had a very bad temper. She testified that Rancher is a "very
mean and aggressive" person and that she tries not to associate with him. Sister
recalled that while they were growing up, Rancher often singled Daughter out and
asked Daughter to massage his back. Sister testified that Rancher would keep
Daughter from going out and doing things with the other children by saying that he
needed her to stay and massage his back or clean his house. Sister recalled an
occasion where she and M.K. had gone to Rancher's trailer to ask him for money
and to see ifDaughter could go with them to aclub. Sister testified that she walked
into Rancher's bedroom and observed Rancher sexually abusing Daughter.
After examining the entire record, and after considering the nature of the
evidence supporting the verdict, we cannot conclude that Rancher's substantial
rights were affected by the admission of the complained-of testimony. The
Mother's testimony and Officer Culak's testimony were merely cumulative of
14
'.§• " '
other evidence admitted without objection. See Duncan, 95 S.W.3d at 672.
Daughter herself gave detailed testimony concerning Rancher's abuse and the
letter she had written to Mother detailing the abuse and Daughter's testimony was
substantially corroborated by Cousin, Sister, and M.K. We conclude that the
admission of the complained-of testimony did not have a substantial or injurious
effect on Rancher's substantial rights. See id.; see also Cordero, 444 S.W.3d at
823; Chapman v. State, 150 S.W.3d 809, 814-15 (Tex. App.-Houston [14th Dist]
2004, pet. refd). Therefore, we disregard any error in the admission of the
complained of testimony and overrule Rancher's first and second issues. See Tex.
R. App. P. 44.2(b).
Having overruled Rancher's issues on appeal, we affirm the judgments of
the trial court.
AFFIRMED.
CHARLES KREGER
Justice
Submitted on September 10, 2014
Opinion Delivered January 28, 2015
Do not publish
Before Kreger, Horton and Johnson, JJ.
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