Russell Hal Duncan v. The State of Texas

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State: Texas

Court: Texas Northern District Court

Docket No: 01-11-00901-CR

Case Date: 12/06/2012

Plaintiff: Russell Hal Duncan

Defendant: The State of Texas

Preview:Opinion issued December 6, 2012.

In The

Court of Appeals
For The

First District of Texas
------------------------

NOS. 01-11-00900-CR; 01-11-00901-CR ---------------------- RUSSELL HAL DUNCAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court Harris County, Texas Trial Court Case Nos. 1239820; 1239821

MEMORANDUM OPINION Russell Hal Duncan was charged with the aggravated sexual assault and sexual assault of his minor sister-in-law, E.P.1 A jury found Duncan guilty of both

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Duncan was charged separately but the two cases were tried together.

offenses and sentenced him to five years' imprisonment for each offense, but recommended that the trial court suspend Duncan's sentence for sexual assault and instead place him on community supervision for six years. In his sole point of error, Duncan contends the trial court abused its discretion by allowing Carol Wilson, E.P.'s guardian, to testify as an outcry witness under article 38.072 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2012). We affirm. Background Duncan was charged and convicted of the aggravated sexual assault and sexual assault of E.P., his wife's younger sister. At the time of the abuse, E.P., who has Down syndrome, was thirteen years old and living with Aron Hawkins, an ex-boyfriend of E.P.'s mother, but would visit her sister and Duncan on the weekends. Hawkins became unable to care for E.P. so she went to live with Carol Wilson, her aunt by marriage, who became her legal guardian. After E.P. went to live with Wilson, Hawkins' girlfriend, Theresa Johnson, discovered two letters written by E.P. in a composition book that was left behind at Hawkins' house. In these letters, E.P. described being sexually abused by her sister's boyfriend or "sister['s] baby dad," saying he "mix[ed]" with her two times, he told her not to tell because he did not want to go to jail, he had a "baby dick and it do not fe[e]l good," he had sex with her, she "said no 3 time[s]," and if "he mix [with] me
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a[ga]in I will call 911." Johnson gave the letters to Hawkins, who read them and then called Wilson. After Wilson read the letters, she spoke to E.P. and E.P. confirmed that she wrote the letters, that she was referring to Duncan in the letters, and that what she wrote was true. Wilson then contacted the Houston Police Department and took E.P. to the Children's Assessment Center for a forensic interview and medical exam. After aggravated sexual assault and sexual assault charges were brought against Duncan, the State filed its "Notice of Intent to Use Child Abuse Victim's Hearsay Statement" informing Duncan that Wilson would testify as an outcry witness pursuant to article 38.072 of the Code of Criminal Procedure. Thereafter, the trial court conducted a pretrial hearing to determine the admissibility of Wilson's outcry testimony. Wilson testified at the pretrial hearing that she read E.P.'s letters and confronted E.P. about them. Wilson testified that she and E.P. had an hour long conversation about E.P.'s letters, during which Wilson asked E.P. if she had written the letters and whether someone had "messed" with her in the wrong way. E.P. confirmed that she wrote the letters and explained what happened and who was involved. Wilson testified that although E.P. did not describe in full detail what happened, she did explain that she wrote down what happened in her letters and that those letters were true. Wilson also testified that E.P. told her that

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the abuse first occurred when she was thirteen, right after Thanksgiving, and occurred for a second time in January after she had turned fourteen. At the conclusion of the hearing, Duncan objected to Wilson's testimony and asked the trial court to exclude Wilson's testimony. However, the trial court ruled that Wilson would be designated as the outcry witness under article 38.072. The trial court later reaffirmed this ruling after it conducted a proceeding to reconsider the admissibility of Wilson's outcry testimony during Johnson's testimony. At trial, Hawkins testified that E.P. first lived with her sister and Duncan for a few months while her mother was in jail or drug rehabilitation, then she came to live with him and his girlfriend, Johnson, and finally she moved in with Wilson. He testified that after E.P. moved in with Wilson, Johnson discovered E.P.'s letters among belongings that E.P. had left at Hawkins's house. Johnson showed the letters to Hawkins, who then contacted Wilson and told her that he had something she needed to see. He testified that Wilson came by his house and he gave her the letters. Wilson testified at trial that E.P. wrote in her letters that Duncan had "messed with her," which meant he had sex with her, and that he used his "dick," which meant his male sexual organ. She testified that she spoke with E.P. because she wanted to confirm what was written in E.P.'s letters--that Duncan had sex
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with E.P. Wilson testified that E.P. confirmed those details from the letters. Finally, Wilson testified that E.P. told her that Duncan showed E.P. a "naked movie" during one of the assaults. Dr. Reena Isaac, who interviewed and performed a medical exam on E.P. at the Children's Assessment Center, also testified at trial. She explained that E.P. told her that her sister's husband, Duncan, touched her inside her vagina and bottom with his penis. Dr. Isaac also testified that E.P. told her that Duncan touched her two times, once before she turned fourteen and once after. Finally, Dr. Isaac explained that E.P. told her Duncan showed her a "flick movie" with people doing "nasty stuff." E.P. also testified at trial. She explained that Duncan touched her the first time around Thanksgiving. He called her into a room in his house, told her to pull her pants down and get on her hands and knees on the floor, and then touched the inside of her "middle part" or "jayjay" with his "middle part" or penis. She testified that it hurt when he touched her and that she was bleeding from her middle part after he was finished. E.P. testified that the second time Duncan touched her, he brought her into the same room in his house, bent her forward over a table, and touched her inside her bottom with his penis. E.P. testified that she told Duncan that it hurt and to stop, but he told her to do it anyway. E.P.

demonstrated on anatomically correct dolls how Duncan touched her each time.
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E.P. then explained that she wrote her letters so she could "get it off [her] chest" but that she did not give the letters to her sister because she was scared her sister would be mad. E.P. testified that she wrote in her letters that Duncan told her not to tell anyone because he did not want to go to jail for "mixing" or having sex with her twice. E.P. also said that Duncan showed her a "flick movie" showing people having sex. The jury returned a guilty verdict on both charges, aggravated sexual assault and sexual assault. This appeal followed. Discussion In his sole issue, Duncan contends the trial court erred in admitting Wilson's testimony under article 38.072, which creates an exception to the hearsay rule in certain circumstances. The State responds that Duncan's assertions in support of this argument are not preserved for appellate review and, even if they are preserved, any error in the trial court's decision to permit Wilson to testify as the outcry witness was harmless. A. Standard of Review The trial court's designation of an outcry witness is reviewed under an abuse-of-discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Polk v. State, 367 S.W.3d 449, 452 (Tex. App.--Houston [14th Dist.] 2012, pet. ref'd). A trial court abuses its discretion when its ruling is outside the
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zone of reasonable disagreement. Polk, 367 S.W.3d at 452 (citing Zarco v. State, 210 S.W.3d 816, 830 (Tex. App.--Houston [14th Dist.] 2006, no pet.)). We will not disturb the trial court's ruling absent a clear abuse of discretion. Id. A trial court's designation of an outcry witness will be upheld if it is supported by the evidence. Thomas v. State, 309 S.W.3d 576, 578 (Tex. App.--Houston [14th Dist.] 2010, no pet.) (citing Garcia, 792 S.W.2d at 92). B. Applicable Law Article 38.072 of the Texas Code of Criminal Procedure governs the admissibility of outcry statements and provides that certain statements, which would otherwise be considered hearsay, are admissible in the prosecution of certain offenses, including aggravated sexual assault and sexual assault, committed against a person with a disability or a child fourteen years of age or younger. See TEX. CODE CRIM. PRO. ANN. art. 38.072,

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