Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Burgess MEMORANDUM OPINION Wilburn Elbert Horner, Jr., was convicted of indecency with a child by sexual contact[1] and was sentenced to twenty years’ incarceration.[2] On appeal, Horner contends that the trial court violated his Sixth and Fourteenth Amendment rights by excluding relevant evidence and abused its discretion in allowing outcry testimony. We conclude that Horner (1) failed to preserve his constitutional complaints and (2) is estopped from arguing on appeal, pursuant to the invited error doctrine, that the trial court abused its discretion in allowing outcry testimony. We, therefore, affirm the trial court’s judgment. Background During its case-in-chief, the State introduced evidence that seven-year-old Tonya[3] told her mother (Mother) that she had been inappropriately touched on her peepee by her paternal grandfather. The touching consisted of a rubbing motion and then grandfather and Tonya would watch a video. This happened at least three or four times. At least two months before the outcry, Mother noticed behavioral changes in Tonya. After the outcry, Mother contacted the police, and two days later, Tonya was interviewed by a forensic examiner. Tonya told the forensic examiner that her grandfather also would “show his peepee outside her.” This happened while Tonya’s clothes were on. This conduct first happened when Tonya was five years old. After the State rested, the defense requested that the trial court take up a “limine issue” outside the presence of the jury.[4] The defense informed the trial court that, subsequent to Tonya’s outcry against her paternal grandfather, she resided with her uncle (Uncle) who had since been arrested for child pornography. The defense further explained that Tonya’s stepmother (Stepmother) had seen Tonya engaging in provocative poses with other children, which behavior was supposedly linked to Uncle. Horner wished to present this testimony to the jury because it was “the defense’s theory” that Mother told Tonya not to tell the Children’s Advocacy Center (CAC) interviewer about what happened with Uncle. Specifically, Horner sought to question Stepmother about whether she saw Tonya “outside making sexually subjective poses,” whether Stepmother confronted Tonya about it, and whether Tonya indicated that “that was what [Uncle] was making her do.” The defense argued that such testimony would allow further questioning of Tonya on the issues of where Uncle “was living in the house” and whether “he ha[d] access to her room.” Although the defense admitted that there were no witnesses to suggest that Uncle assaulted Tonya, it claimed that Stepmother’s testimony was supportive of an alternate perpetrator theory. The State responded that Stepmother’s testimony should be excluded because Tonya did not outcry against Uncle in her CAC interview and there was no misidentification issue. The State therefore maintained that Stepmother’s testimony would mislead and confuse the jury. The trial court delayed its ruling following a proffer of Stepmother’s testimony outside the presence of the jury. Stepmother’s proffered testimony revealed that she had three children of her own—aged seven, five, and two—in addition to Horner’s two children. Stepmother stated that she found one of her children and Tonya unclothed and sitting on one another. Child Protective Services investigated the incident on Stepmother’s report. Stepmother stated that it was her “understanding that [Tonya] had been experiencing these things at [her mother's] house with her nephew,” Uncle’s son. Yet, the CAC interview and investigation did not reveal that “Tonya was ever assaulted or involved in any of this stuff.” Stepmother was not aware of any evidence that “[Uncle] was involved in what was going on between Tonya and [Uncle's] son.” Additional proffered testimony revealed that Tonya posed provocatively in photographs and would “say different things about her private areas.” This took place in “early October,” around the time that Uncle was arrested. Stepmother and Tonya had “many conversations” in which Tonya expressed what “she enjoyed doing in her private time.” During those conversations, Uncle’s name came up “a couple of times,” but then Tonya would appear to be frightened and would stop talking. On one occasion in particular, Tonya mentioned an incident in which Uncle “had hurt her,” but she did not go into detail, and Stepmother did not press her for details. Tonya also told Stepmother that Uncle’s bedroom was right next to her bedroom. Although Tonya never told Stepmother that Uncle had “assaulted her or anything like that,” she told Stepmother that she was told not to “talk about the things that were going on at [her mother's] house.” Tonya “hinted” at one point that she had been touched inappropriately by someone. Stepmother asked Tonya if it was Uncle. According to Stepmother, Tonya became quiet and would not say anything. When asked again, Tonya said, “[N]o, but,” and said nothing further. Stepmother never reported her suspicion that Uncle assaulted Tonya. Even though she believed that Tonya was honest and readily spoke her mind, Stepmother believed that Mother could persuade Tonya to remain quiet about anything involving Uncle. Stepmother began dating Horner long after Tonya’s outcry in this case.[5] At the conclusion of Stepmother’s proffered testimony, the trial court asked defense counsel why he wished to offer the proffered testimony. Defense counsel stated that he wanted to offer the evidence (1) in “rebuttal as far as her always telling the truth and [Mother] never telling her what to say,” and (2) because it was “relevant in that it would show the opportunity of another predator that could possibly have done this other than the defendant.” The State responded that (1) Stepmother’s testimony regarding what Tonya told her was hearsay, (2) there had been no allegations of sexual abuse against Uncle, and (3) testimony regarding the “posing” photographs was irrelevant and would confuse the jury. In sustaining the State’s objections to the proffered testimony, the trial court found that “any connection to this case [was] tenuous at best.” The trial court continued, “[T]he Court does not see how this is relevant testimony to the extent that the testimony would go towards questioning the credibility of the mother or the child.” The trial court therefore determined that it would only permit the defense to elicit Stepmother’s testimony on the question of whether Tonya had been told not to “say anything,” which “goes to the credibility of the witnesses.” Defense counsel accepted the trial court’s ruling without further exception or objection.[6] Horner Failed to Preserve His Constitutional Complaints On appeal, Horner claims that the trial court’s limitation on Stepmother’s testimony deprived him of his right to present a complete defense in violation of his Fourteenth Amendment Due Process[7] rights and his Sixth Amendment Compulsory Process and Confrontation Clause[8] rights. See Holmes v. S. Carolina, 547 U.S. 319, 324 (2006) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’”) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)); see also California v. Trombetta, 467 U.S. 479, 485 (1984). Although Horner timely requested—and was granted—a proffer of Stepmother’s testimony, he failed to raise any constitutional objections to the trial court’s ruling limiting Stepmother’s testimony. “Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). When an issue has not been preserved for appeal, this Court is not permitted to address the merits of that issue. Id. To preserve an issue for appellate review, “a party must make a timely objection to the trial court or make some request or motion apprising the trial court of the party’s specific complaint and obtain a ruling, or refusal to rule, on the objection or motion from the trial court.” Minter v. State, 570 S.W.3d 941, 943 (Tex. App.—Texarkana 2019, no pet.) (citing TEX. R. APP. P. 33.1(a)). “Almost all error—even constitutional error—may be forfeited if the appellant fails to object.” Proenza v. State, 541 S.W.3d 786, 808 (Tex. Crim. App. 2017) (citing Fuller v. State, 253 S.W.3d 220, 232 n.48 (Tex. Crim. App. 2008)); see Reyna v. State, 168 S.W.3d 173, 177–79 (Tex. Crim. App. 2005); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995). Following the trial court’s ruling, which limited the areas of inquiry on which Horner was permitted to question Stepmother, defense counsel thanked the court for its ruling. When asked if there was anything further Horner needed to raise before beginning his case-in-chief, Horner indicated that he had nothing further to take up outside of the jury’s presence. Horner did not object or otherwise except to the trial court’s ruling limiting Stepmother’s testimony. He did not argue that his right to present a complete defense under the Constitution would be violated if he was not allowed to question Stepmother about any alleged inappropriate conduct by Uncle against Tonya. As a result, the trial court never had the opportunity to rule on this issue. On these facts, we are compelled to conclude that Horner failed to preserve for our review his constitutional complaints regarding the trial court’s limitation on Stepmother’s testimony. See TEX. R. APP. P. 33.1(a). We overrule this issue. The Doctrine of Invited Error Estops Horner from Arguing on Appeal that the Trial Court Abused its Discretion in Admitting Mother’s Outcry Testimony Prior to trial, the State filed notice of its intention to use Tonya’s hearsay statement in accordance with Article 38.072 of the Texas Code of Criminal Procedure and designated Jessica Kelley as the outcry witness.[9] See TEX. CODE CRIM. PROC. ANN. art. 38.072 (Supp.). Following jury selection, a discussion ensued between the trial court, defense counsel, and the State regarding the correct identity of the outcry witness. In response to the trial court’s question to the State regarding the identity of the outcry witness, the State responded that Kelley, the forensic interviewer, was so designated. Defense counsel interjected, stating that he believed that Mother was the outcry witness. The State explained that, although the initial outcry was to Mother, there were no details provided. Two days after the initial outcry to Mother, Tonya provided details to Kelley. Defense counsel then requested an Article 38.072 hearing. See TEX. CODE CRIM. PROC. ANN. art. 38.072. At the hearing, Mother testified that, when Tonya was seven, she told Mother that “Pawpaw had touched her.” When Mother asked for clarification, Tonya stated that “Pawpaw had touched her peepee.” When asked for more information, Tonya told Mother that “he rubbed there.” Mother grabbed Tonya’s arm and asked if Pawpaw “grabbed like that,” or “did he do a rubbing motion?” Tonya responded that it was “a rubbing motion.” She also told Mother that Pawpaw “showed [her] his peepee, too.” Mother did not ask Tonya if the rubbing was under her clothes or on the outside of her clothes. Tonya told Mother that “it happened a lot and it was weird and nasty to her.” On learning this information, Mother immediately called the police. These allegations were made on October 28, 2018, after Mother had picked Tonya up from her father’s house. As far as Mother knew, she was the first person with whom Tonya had shared that information. Kelley testified that she interviewed seven-year-old Tonya on October 30, 2018. During the interview, Tonya told Kelley that “Pawpaw had rubbed her peepee a lot of times and that he had showed his peepee on the side of her.” Tonya told Kelley that the last time it happened was on the preceding Sunday, October 28. Tonya also told Kelley that the same thing happened on the Saturday preceding the 28th. According to Tonya, as relayed by Kelley, the first incident of this nature happened when she was five years old at her MeeMee’s and Pawpaw’s house where her father lived. She described it as happening in the living room. Tonya told Kelley that she was sitting on her Pawpaw’s lap on the recliner when her Pawpaw touched her. She said that “he had touched her peepee with his hand and that he had rubbed it.” Tonya was dressed, and the rubbing happened over her clothes. Kelley could not recall if Tonya indicated that it happened underneath the clothes as well. Tonya indicated that her Pawpaw’s clothes were on, but that he pulled his “peepee” outside of his clothes. According to Tonya, both her MeeMee and her father were home when the touching happened. Kelley indicated that Tonya had told her Mother about this before the interview. She conceded, on defense counsel’s questioning, that, if Tonya previously told Mother the same thing, that “her Pawpaw, her paternal grandfather, had rubbed her peepee,” that she was not the first adult to hear that allegation. Kelley explained, however, that, due to her training, she was often able to elicit more details than the first adult who heard the allegations. The State then indicated its intention to call Kelley as the outcry witness. The defense objected and told the trial court that it believed Kelley was the second adult who heard the details of the offense. The defense further claimed that Mother was the first adult who heard the details of the offense and that those details were sufficiently specific to conclude that Mother was the proper outcry witness. The State countered that it was not until Kelley interviewed Tonya that it was apparent that the crime of continuous sexual abuse of a child had been committed. Prior to that, Mother only knew that Tonya “had possibly been rubbed in her peepee area and that [Horner] had possibly showed his peepee.” The trial court concluded that, because Mother (1) identified where the child was when the abuse occurred, (2) stated where the child was rubbed, (3) stated the manner in which the child was rubbed, and (4) stated that Horner was the person responsible, Tonya’s statement to Mother was more than a general allusion to sexual abuse. The court further concluded that the exposure allegation was only generally identified to Mother but was not specifically identified. The trial court therefore found that the details regarding the exposure allegation were discerned from the forensic interview with Kelley. In conclusion, the trial court found that, with regard to the allegations of touching, Mother was the proper outcry witness. Regarding the exposure allegations, however, Kelley was the proper outcry witness. Neither Horner nor the State objected to this ruling. At trial, Mother testified that Tonya had made allegations to her of inappropriate touching. When the State asked Mother if Tonya made “some sort of motion or indicate[d] to [her] what type of touching it was,” Horner objected on the basis of hearsay, stating that “even demonstrative [evidence] can be an out-of-court statement.” Although Horner conceded that he understood the court’s earlier ruling, he complained that he did not receive notice regarding Mother as an outcry witness under Article 38.072. The State countered that its question did not call for a hearsay response because it merely asked Mother what she saw, not what she heard. The trial court overruled Horner’s objection. The State’s examination of Mother continued: Q: What motion did she indicate to you? A: I had asked her if it was on her arm. I had rubbed her arm and I said, was it this kind of a motion or was it a circular motion. And she grabbed her arm after I did that and she said it was a circular motion. [Defense counsel]: Your honor, again, I’m going to object to hearsay. Out-of-court statements. [State's counsel]: I’ll rephrase it. THE COURT: Court’s going to overrule the objection. On appeal, Horner contends that the trial court erred in allowing Mother’s testimony because it was inadmissible hearsay under Rule 801 of the Texas Rules of Evidence and Article 38.072 of the Texas Code of Criminal Procedure. “Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted.” Martin v. State, 151 S.W.3d 236, 240 (Tex. App.—Texarkana 2004, pet. ref’d) (citing TEX. R. EVID. 801(d)). Rule 801(a) of the Texas Rules of Evidence provides that a “statement” means, among other things, “nonverbal conduct that a person intended as a substitute for verbal expression.” TEX. R. EVID. 801(a). We need not decide, though, whether any gesture by Tonya in response to Mother’s questions regarding inappropriate touching constituted hearsay. Mother plainly testified over Horner’s objection that Tonya “grabbed her arm” after Mother had asked whether it was a circular motion, and “[Tonya] said it was a circular motion.” (Emphasis added). This evidence amounts to hearsay—an out-of-court statement by Tonya that was offered to prove the truth of the matter asserted—that Horner touched Tonya inappropriately. “Hearsay is not admissible except as provided by statute or by the Texas Rules of Evidence.” Dunn v. State, 125 S.W.3d 610, 613 (Tex. App.—Texarkana 2003, no pet.) (citing TEX. R. EVID. 802; Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990)). “The outcry statute creates a hearsay exception for a child-complainant’s out-of-court ‘statements’ that ‘describe the alleged offense,’ so long as those statements were made ‘to the first [adult person . . . to whom the child . . . made a statement about the offense.'" Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013) (quoting TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(1)--(3)). "Subsection (b) establishes additional procedural requirements, including that the party intending to offer the statement provide the adverse party with a 'written summary of the statement' and the 'name of the witness through whom it intends to offer the statement.'" Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)). Horner complains that, because the State failed to comply with Section 2(b) of the outcry statute, this exception to the hearsay rule is not applicable. The record reflects that the State notified Horner that it intended to call Kelley as the outcry witness. It did not, however, notify Horner that it intended to call Mother as an outcry witness.[10] The State maintains, though, that the statutory exception applies because the trial court had previously concluded that Mother was the proper outcry witness regarding touching. The record plainly reflects that Horner, not the State, took the position that Mother was the proper outcry witness. Before the Article 38.072 hearing began, the trial court asked for the identity of the outcry witness. Although the State responded that Kelley was the outcry witness, defense counsel stated that he “thought it was [Mother].” After the Article 38.072 hearing concluded, the State stood by its designation of Kelley as the outcry witness. Defense counsel told the trial court, Ms. Kelley was actually the second adult that heard details of the offense. And granted she did hear more details than the first witness which would be [Mother]. But [Mother] did hear specific enough details of where it happened, when it happened, who committed the offense, whether the rubbing was intentional or accidental and further, you know, at least received the information that it happened allegedly more than once. So the Defense would contend that [Mother] would be the proper outcry witness as being the first adult that heard the information that constituted a crime and not Ms. Kelley. The trial court ultimately ruled that it was “going to sustain Defense’s objection” and determined that Mother was the proper outcry witness regarding allegations of improper touching. “The law of invited error provides that a party cannot take advantage of an error that it invited or caused, even if such error is fundamental.” Sharper v. State, 485 S.W.3d 612, 618 (Tex. App.—Texarkana 2016, pet. ref’d) (quoting Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011) (citing Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc))); see Lamon v. State, 463 S.W.3d 655, 658 (Tex. App.—Texarkana 2015, no pet.). “In other words, a party is estopped from seeking appellate relief based on error that it induced.” Sharper, 485 S.W.3d at 618 (quoting Woodall, 336 S.W.3d at 644 (citing Prystash, 3 S.W.3d at 531)). Despite the fact Horner lodged a hearsay objection to Mother’s testimony and further informed the trial court—after the Article 38.072 hearing had been concluded—that the State did not provide notice that Mother would be an outcry witness, Horner had already taken the position that Mother was indeed the proper outcry witness. And the trial court agreed with Horner regarding the allegations of improper touching. Not only did Horner fail to object to Mother as the outcry witness based on lack of notice during the Article 38.072 hearing, he also advocated for the position that Mother was the proper outcry witness. Horner cannot now complain that the trial court agreed with his position. See Prystash, 3 S.W.3d at 531 (“[T]he law of invited error estops a party from making an appellate error of an action it induced.”). We overrule this point of error. Conclusion We affirm the trial court’s judgment. Ralph K. Burgess Justice Date Submitted: April 2, 2021 Date Decided: May 26, 2021 Do Not Publish
