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Garcia v. State4/23/2004
erse the trial judge's decision to admit testimony from an outcry witness if it is within the zone of reasonable disagreement. See Tear v. State, 74 S.W.3d 555, 558 (Tex. App.-Dallas 2002, pet. ref'd), cert. denied 123 S.Ct. 1753, 155 L.Ed.2d 517 (2002).
Although appellant objected to Officer Moore's testimony on the basis of article 38.072, once the state responded that Moore was the proper outcry witness because she was the first person to whom L.C. gave any details, appellant did not request a hearing or make an offer of proof to determine what L.C. specifically told his parents prior to speaking to Officer Moore. Without such evidence, it is not possible to say that anyone other than Officer Moore was the proper outcry witness. See Garcia, 792 S.W.2d at 92 (appellate court could not find abuse of discretion when the record was void of any details of the statements made to the alleged first outcry witness); Rodriguez v. State, 997 S.W.2d 640, 642 (Tex. App.-Corpus Christi 1999, no pet.) (school counselor never specified what victim told her, so no abuse of discretion when trial court designated different person outcry witness); Hayden v. State, 928 S.W.2d 229, 231 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd) (no abuse of discretion because no evidence that child gave counselor details of offense). Officer Moore's testimony came in before L.C.'s parents testified. We do not know what L.C. told either his father or his mother because the statements were excluded as hearsay. We hold, therefore, that based upon the evidence before us, the trial court did not abuse its discretion when it allowed Officer Moore to testify as the outcry witness. We overrule issue six.
CHARGE ERROR
In his seventh issue, appellant complains for the first time on appeal that the jury charge on Indecency with a Child by Contact was fundamentally defective because it enlarged upon the allegations in the indictment by defining "sexual contact" in statutory terms that included all means of committing such contact, but the application paragraph did not sufficiently restrict the term to the particular means alleged in this case. Nor, according to appellant, did it allege a specific purpose and intent-to arouse and gratify the sexual desire of appellant-as opposed to another "person."
When an appellant complains of charge error, we must first determine whether there is any error in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If we conclude there is error, we must determine if the error caused sufficient harm to warrant reversal. Id. at 170-71. The extent of harm requiring reversal is controlled by whether the error was properly preserved at trial. Id. at 171; Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). Where the appellant failed to object to the error at trial, as in this case, we reverse only if the record shows that the error was so egregiously harmful that the appellant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
The trial court defined "sexual contact" in the charge as "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." The application paragraph in the charge for Indecency with a Child tracked the language of the indictment and instructed the jury as follows: Now, if you find from the evidence beyond a reasonable doubt that . . . the defendant, CECIL RAY GARCIA, did then and there intentionally or knowingly, with the intent to arouse and gratify the sexual desire of said defendant, engage in sexual contact by touching part of the genitals of [L.C.] . . . by means of defendant'
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