Outcry testimony admitted under the statutory hearsay exception constitutes substantive evidence sufficient to support a conviction for sexual assault.
A jury convicted the appellant of aggravated sexual assault based primarily on outcry testimony from the victim's mother, which the trial court admitted under a statutory exception to the hearsay rule. The court of appeals reversed, finding the evidence insufficient because the victim's direct testimony did not substantiate the outcry. The supreme court addresses whether improperly admitted outcry testimony must be considered in a sufficiency review. The court applies the rule that outcry testimony admitted under the statutory exception is substantive evidence admissible for the truth of the matter asserted. Consequently, even if improperly admitted, the testimony must be evaluated for its probative value in the light most favorable to the verdict. The court holds that the outcry testimony alone is sufficient to sustain the conviction.
At page 873 Analyzing outcry testimony's evidentiary sufficiency under statute224 citing casesrecognizing outcry testimony alone can be legally sufficient evidence to support a conviction for sexual assault of a child
- Alfred Llewelyn Carty v. State, No. 01-03-01266-CR (Tex. App.—Houston [1st Dist.] Aug. 4, 2005).published([O]utcry testimony admitted in compliance with Art. 38.072 is admitted as an exception to the hearsay rule, meaning it is considered substantive evidence, admissible for the truth of the matter asserted in the testimon…)
- Rodolfo Villarreal v. State of Texas, No. 10-25-00025-CR (Aug. 27, 2026).unpublishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991).
- Scott Edward Vanzandt v. State of Texas, No. 10-24-00237-CR (Tex. App.—Waco Sept. 18, 2025).unpublished Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Marcelino Gamboa v. State of Texas, No. 01-23-00808-CR (Tex. App.—Houston [1st Dist.] Nov. 26, 2024).unpublishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Kenneth Walden Reel v. STATE OF TEXAS, No. 05-23-00357-CR (Tex. App.—Dallas Nov. 25, 2024).unpublished PROC. art. 38.072; Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). –6– B.
- Aaron Van Brown v. State of Texas, No. 08-23-00179-CR (Tex. App.—El Paso Oct. 17, 2024).published“[O]utcry testimony admitted in compliance with [Article] 38.072 is admitted as an exception to the hearsay rule, meaning it is considered substantive evidence, admissible for the truth of the matter asserted in the test…”
- Colin David Luttoschka v. State of Texas, No. 10-23-00168-CR (Tex. App.—Waco Oct. 10, 2024).unpublishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Allan Ramon Martinez v. State of Texas, No. 01-22-00488-CR (Tex. App.—Houston [1st Dist.] Jan. 11, 2024).unpublishedEubanks v. State, 326 S.W.3d 231, 241 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Kevin Boykin v. State of Texas, No. 11-22-00126-CR (Tex. App.—Eastland Aug. 17, 2023).unpublishedStephanie testified that T.B. told her, not just once, but twice, that Appellant touched his “pee-pee.” “A child victim’s outcry statement alone can be sufficient to sustain a conviction for a sexual offense.” Chavez v. State, 324 S.W.3d 7…
- Charles Bradshaw v. State of Texas, 675 S.W.3d 78 (Tex. App.—Waco 2023).publishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
Show 155 more citing cases
- Rosalio Tavarez v. State of Texas, 714 S.W.3d 64 (Tex. App.—El Paso 2023).publishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Molinar v. Lumpkin, No. 3:22-cv-00379 (W.D. Tex. June 6, 2023).“outcry testimony admitted in compliance with Art. 38.072 is admitted as an exception to the hearsay rule, meaning it is considered substantive evidence, admissible for the truth of the matter asserted in the testimony”
- Donald Nolan Lehman v. State of Texas, No. 05-19-01367-CR (Tex. App.—Dallas June 15, 2022).unpublishedSee Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005) (outcry witness may recite child’s out-of-court statements concerning offense, and testimony is considered substantive evidence of a crime); see also Edwards v. State, No. 0…
- Charles Edward Burke v. State, No. 09-18-00297-CR (Tex. App.—Beaumont Jan. 22, 2020).unpublished Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991).
- Juan Gabriel Cervantes v. State, 594 S.W.3d 667 (Tex. App.—Waco 2019).publishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Dakota Scott Wilson v. State, No. 12-18-00328-CR (Tex. App.—Tyler Nov. 27, 2019).published(holding child victim’s outcry statement alone sufficient to support conviction for aggravated sexual assault)
- Mario Carnero Martinez v. State, No. 11-17-00277-CR (Tex. App.—Eastland Oct. 24, 2019).unpublishedChavez v. State, 324 S.W.3d 785, 788 (Tex. App.—Eastland 2010, no pet.) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Robert Ortiz v. State, No. 07-18-00248-CR (Tex. App.—Amarillo July 2, 2019).unpublishedAnd, “outcry testimony alone can be sufficient to sustain a conviction for aggravated sexual assault.” Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex. Crim.
- Ruben Gonzales v. State, No. 13-17-00502-CR (Tex. App.—Corpus Christi May 9, 2019).unpublishedMartinez v. State, 524 S.W.3d 344, 349 (Tex. App.—San Antonio 2017, pet. ref’d); cf. Saldaña v. State, 287 S.W.2d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d) (“[I]t is well established that outcry testimony is substantive evidence o…
- Delfino Torres-Vasquez v. State, No. 03-17-00473-CR (Tex. App.—Austin Apr. 25, 2019).unpublishedSee Martinez, 178 S.W.3d at 811 (“[The first adult a child confides in regarding the abuse] may recite the child’s out-of-court statements concerning the offense, and that testimony is substantive evidence of the crime.”); Rodriguez v. Sta…
- Joseph Kevin Adamick v. State, No. 09-17-00108-CR (Tex. App.—Beaumont Feb. 27, 2019).unpublishedApp. 2005); Rodriguez v. State 819 S.W.2d 871, 873-74 (Tex. Crim.
- Justin Riordan v. State, No. 03-16-00297-CR, 2017 WL 3378889 (Tex. App.—Austin Aug. 4, 2017).unpublished App. 2005) (“[The first adult a child confides in regarding the abuse] may recite the child’s out-of-court statements concerning the offense, and that testimony is substantive evidence of the crime.”); Rodriguez v. State, 819 S.W.2d 871, 8…
- Ryder v. State, 514 S.W.3d 391 (Tex. App.—Amarillo 2017).publishedAnd, “outcry testimony alone can be sufficient to sustain a conviction for aggravated sexual assault.” Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex. Crim.
- Jaime Joshua Salazar v. State, No. 11-15-00007-CR (Tex. App.—Eastland Feb. 2, 2017).unpublished“A child victim’s outcry statement alone can be sufficient to sustain a conviction for a sexual offense.” Chavez v. State, 324 S.W.3d 785, 788 (Tex. App.—Eastland 2010, no pet.) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Jose L. Jimenez v. State, 507 S.W.3d 438 (Tex. App.—Fort Worth 2016).published Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Marcelino Elias Gutierrez v. State, No. 02-16-00005-CR (Tex. App.—Fort Worth Oct. 13, 2016).unpublished Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Sidney Price Lawson v. State, No. 02-15-00090-CR (Tex. App.—Fort Worth Sept. 8, 2016).unpublished(recognizing outcry testimony alone can be legally sufficient evidence to support a conviction for sexual assault of a child)
- Lindberg, Timothy James, No. PD-1389-15 (Tex. Crim. App. Nov. 23, 2015).unpublished State, 819 S.W.2d 871, 873 (Tex. Crim.
- Timothy James Lindberg v. State, No. 02-14-00071-CR, 2015 Tex. App. LEXIS 10042 (Tex. App.—Fort Worth Sept. 24, 2015).unpublishedKimberlin v. State, 877 S.W.2d 828 , 831–32 (Tex. App.—Fort Worth 1994, pet. ref’d) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Stevie Blaschke Hanke v. State, No. 09-14-00326-CR, 2015 Tex. App. LEXIS 9884 (Tex. App.—Beaumont Sept. 23, 2015).unpublishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Donald Ernest Powell v. State, No. 12-14-00355-CR (Tex. App.—Tyler Aug. 28, 2015).published“an appellate court may not reevaluate the probity of [an] individual item of evidence”
- Hicks, Leonard Charles, No. PD-0888-15 (Tex. Crim. App. July 22, 2015).unpublished(recognizing outcry testimony alone can be legally sufficient evidence to support a conviction for sexual assault of a child)
- Leonard Charles Hicks v. State, No. 14-14-00263-CR (Tex. App.—Houston [14th Dist.] July 1, 2015).unpublished(recognizing outcry testimony alone can be legally sufficient evidence to support a conviction for sexual assault of a child)
- Darius Edwards v. State, No. 05-12-01398-CR (Tex. App.—Dallas June 9, 2014).unpublishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Darius Edwards v. State, No. 05-12-01687-CR (Tex. App.—Dallas June 9, 2014).unpublishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Jeffie Melder v. State, No. 12-12-00400-CR, 2014 WL 1922570 (Tex. App.—Tyler May 14, 2014).publishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Manuel Medellin Jr. v. State of Texas, No. 11-11-00282-CR (Tex. App.—Eastland Oct. 17, 2013).unpublishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Juan Damas Rodriguez v. State of Texas, No. 11-11-00046-CR (Tex. App.—Eastland Feb. 14, 2013).unpublishedRodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- Matthew Mark Heslep v. State of Texas, No. 11-09-00226-CR (Tex. App.—Eastland June 2, 2011).unpublished Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
- in the Matter of Y.H., No. 04-02-00560-CV (Tex. App.—San Antonio June 25, 2003).published
- St. Clair v. State, 26 S.W.3d 89 (Tex. App.—Waco 2000).published
- Coronado v. State, 310 S.W.3d 156 (Tex. App.—Amarillo 2010).published
- Glover v. State, 102 S.W.3d 754 (Tex. App.—Texarkana 2003).published
- Tear v. State, 74 S.W.3d 555 (Tex. App.—Dallas 2002).published
- Diaz v. State, 125 S.W.3d 739 (Tex. App.—Houston [1st Dist.] 2003).published
- Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005).published
- Garza v. State, 18 S.W.3d 813 (Tex. App.—Fort Worth 2000).published
- Klein v. State, 191 S.W.3d 766 (Tex. App.—Fort Worth 2006).published
- Elder v. State, 132 S.W.3d 20 (Tex. App.—Fort Worth 2004).published
- Beckham v. State, 29 S.W.3d 148 (Tex. App.—Houston [14th Dist.] 2000).published
- Saldana v. State, 287 S.W.3d 43 (Tex. App.—Corpus Christi 2009).published
- Frost v. State, 2 S.W.3d 625 (Tex. App.—Houston [14th Dist.] 1999).published
- Reeves v. State, 969 S.W.2d 471 (Tex. App.—Waco 1998).published
- Jensen v. State, 66 S.W.3d 528 (Tex. App.—Houston [14th Dist.] 2002).published
- Carty v. State, 178 S.W.3d 297 (Tex. App.—Houston [1st Dist.] 2006).published
- Martinez v. State, 178 S.W.3d 806 (Tex. Crim. App. 2005).published
- Walker v. State, 291 S.W.3d 114 (Tex. App.—Texarkana 2009).published
- Carney v. State, 31 S.W.3d 392 (Tex. App.—Austin 2000).published
- Duran v. State, 163 S.W.3d 253 (Tex. App.—Fort Worth 2005).published
- Jenkins v. State, 948 S.W.2d 769 (Tex. App.—San Antonio 1997).published
- Hill v. State, 3 S.W.3d 249 (Tex. App.—Waco 1999).published
- Dorsey v. State, 940 S.W.2d 169 (Tex. App.—Dallas 1996).published
- Castillo v. State, 7 S.W.3d 253 (Tex. App.—Austin 1999).published
- Ozuna v. State, 199 S.W.3d 601 (Tex. App.—Corpus Christi 2006).published
- Bottenfield v. State, 77 S.W.3d 349 (Tex. App.—Fort Worth 2002).published
- Chavez v. State, 324 S.W.3d 785 (Tex. App.—Eastland 2010).published
- Eubanks v. State, 326 S.W.3d 231 (Tex. App.—Houston [1st Dist.] 2010).published
- Escamilla v. State, 334 S.W.3d 263 (Tex. App.—San Antonio 2011).published
- Davy v. State, 67 S.W.3d 382 (Tex. App.—Waco 2001).published
- Steinbach v. State, 979 S.W.2d 836 (Tex. App.—Austin 1998).published
- Lowery v. State, 974 S.W.2d 936 (Tex. App.—Dallas 1998).published
- Peters v. State, 997 S.W.2d 377 (Tex. App.—Beaumont 1999).published
- Underwood v. State, 967 S.W.2d 925 (Tex. App.—Beaumont 1998).published
- McWhorter v. State, 957 S.W.2d 928 (Tex. App.—Beaumont 1997).published
- Cagle v. State, 976 S.W.2d 879 (Tex. App.—Tyler 1998).published
- Jones, Lori Ann v. State, No. 01-01-00102-CR (Tex. App.—Houston [1st Dist.] Aug. 1, 2002).unpublished
- Jones, Lori Ann v. State, No. 01-01-00103-CR (Tex. App.—Houston [1st Dist.] Aug. 1, 2002).unpublished
- Jones, Lori Ann v. State, No. 01-01-00104-CR (Tex. App.—Houston [1st Dist.] Aug. 1, 2002).unpublished
- Fernando Deleon Diaz v. State, No. 01-02-01094-CR (Tex. App.—Houston [1st Dist.] Dec. 18, 2003).published
- Avellaneda, Francisco Javier v. State, No. 01-02-00704-CR (Tex. App.—Houston [1st Dist.] July 17, 2003).unpublished
- Lonnie Henry Rector, Jr. v. State, No. 01-04-01151-CR (Tex. App.—Houston [1st Dist.] Dec. 15, 2005).unpublished
- Robert Keven Boulds v. State, No. 01-05-00596-CR, 2006 WL 2974301 (Tex. App.—Houston [1st Dist.] Oct. 19, 2006).unpublished
- Donald Ray Eubanks v. State, No. 01-09-00829-CR (Tex. App.—Houston [1st Dist.] July 8, 2010).published
- Brian David Phifer v. State, No. 02-01-00238-CR, 2003 WL 22026407 (Tex. App.—Fort Worth Aug. 29, 2003).unpublished
- Keith O'Brian Houser v. State, No. 02-02-00109-CR (Tex. App.—Fort Worth Apr. 3, 2003).unpublished
- James Earl Campbell v. State, No. 02-03-00270-CR (Tex. App.—Fort Worth June 17, 2004).unpublished
- Audeliz Pollock v. State, No. 02-02-00390-CR (Tex. App.—Fort Worth May 6, 2004).unpublished
- Danny Howard Elder v. State, No. 02-02-00248-CR (Tex. App.—Fort Worth Feb. 12, 2004).published
- David Duran v. State, No. 02-03-00423-CR (Tex. App.—Fort Worth Apr. 14, 2005).published
- Nicholas George Klein v. State, No. 02-03-00390-CR (Tex. App.—Fort Worth Apr. 6, 2006).published
- Andrew Francis v. State, No. 02-05-00414-CR (Tex. App.—Fort Worth Mar. 15, 2007).unpublished
- Bobby Walker v. State, No. 03-96-00308-CR (Tex. App.—Austin Sept. 11, 1997).unpublished
- Richard Lerma v. State, No. 03-96-00678-CR (Tex. App.—Austin Mar. 26, 1998).published
- Brian Bryant v. State, No. 03-97-00173-CR (Tex. App.—Austin Mar. 26, 1998).published
- Ronnie Charles Bryant v. State, No. 03-96-00727-CR (Tex. App.—Austin Feb. 19, 1999).unpublished
- Bartolo Perez Infante v. State, No. 04-03-00682-CR (Tex. App.—San Antonio Sept. 8, 2004).unpublished
- Domingo Hernandez Mendoza v. State, No. 04-04-00572-CR (Tex. App.—San Antonio Mar. 23, 2005).unpublished
- Troy Shonnard Glover v. State of Texas, No. 06-00-00169-CR (Tex. App.—Texarkana Oct. 31, 2002).unpublished
- Troy Shonnard Glover v. State of Texas, No. 06-00-00169-CR (Tex. App.—Texarkana Feb. 8, 2002).published
- Tommy Lenzy Pennon v. State, No. 06-01-00216-CR (Tex. App.—Texarkana Nov. 18, 2003).unpublished
- Jacky Clay Reynolds v. State, No. 06-05-00155-CR (Tex. App.—Texarkana May 31, 2007).unpublished
- in the Matter of J. D. A., Jr., No. 06-06-00060-CV (Tex. App.—Texarkana Jan. 9, 2007).published
- Lewis Cornelius Tucker v. State, No. 06-09-00164-CR (Tex. App.—Texarkana Sept. 10, 2009).unpublished
- Mark Alan Payne v. State, No. 07-04-00270-CR (Tex. App.—Amarillo May 11, 2004).unpublished
- Jeffrey Grimes v. State, No. 07-04-00390-CR (Tex. App.—Amarillo Jan. 13, 2006).unpublished
- Erin Teague Wages v. State, No. 07-07-00382-CR (Tex. App.—Amarillo July 14, 2008).unpublished
- in the Interest of D.D.D.K., C.E.K., Jr. & C.E.K., Child., No. 07-09-00101-CV, 2009 WL 4348760 (Tex. App.—Amarillo Dec. 1, 2009).published
- Calvin Jarrod Hester v. State, No. 07-07-00474-CR (Tex. App.—Amarillo Nov. 19, 2009).unpublished
- Roy Lee Martinez v. State, No. 07-08-00473-CR (Tex. App.—Amarillo Oct. 14, 2009).unpublished
- Peters, Ronald Lee v. State, No. 09-97-00466-CR (Tex. App.—Beaumont Aug. 11, 1999).published
- Jay Paul Head v. State, No. 09-06-00028-CR, 2006 WL 3742800 (Tex. App.—Beaumont Dec. 20, 2006).published
- Mike Bounds v. State, No. 09-06-00076-CR (Tex. App.—Beaumont Nov. 29, 2006).unpublished
- Alpha James Badeaux v. State, No. 09-05-00489-CR (Tex. App.—Beaumont Apr. 4, 2007).unpublished
- Arthur Lee Williams v. State, No. 09-06-00103-CR, 2007 WL 416543 (Tex. App.—Beaumont Feb. 7, 2007).unpublished
- Mitchell Wayne Warnell v. State, No. 10-96-00238-CR (Tex. App.—Waco Oct. 22, 1997).unpublished
- Kevin Perry Jackson v. State, No. 10-97-00217-CR (Tex. App.—Waco July 22, 1998).unpublished
- Robert Anderson Ryan v. State of Texas, No. 10-01-00177-CR (Tex. App.—Waco Oct. 30, 2002).published
- Daniel J. Barton v. State, No. 10-06-00156-CR (Tex. App.—Waco July 18, 2007).unpublished
- Jamon Earnest Jenkins v. State of Texas, No. 11-07-00247-CR (Tex. App.—Eastland Apr. 2, 2009).unpublished
- James Randall Pullen v. State of Texas, No. 12-00-00202-CR (Tex. App.—Tyler July 25, 2001).published
- Glenn Ray Wingard v. State, No. 12-08-00272-CR (Tex. App.—Tyler Dec. 31, 2009).published
- Juan Hernandez Aguirre v. State, No. 12-07-00388-CR (Tex. App.—Tyler Feb. 25, 2009).published
- Michael McGarity v. State, No. 13-01-00071-CR (Tex. App.—Corpus Christi Oct. 25, 2001).unpublished
- Eloy Ozuna v. State, No. 13-05-00737-CR (Tex. App.—Corpus Christi Aug. 10, 2006).published
- Tony Hernandez v. State, No. 13-06-00357-CR (Tex. App.—Corpus Christi Oct. 11, 2007).published
- Randy Allen Delane v. State, No. 13-06-00126-CR (Tex. App.—Corpus Christi July 26, 2007).published
- Jessie Vernon Jochims v. State, No. 13-06-00285-CR, 2007 Tex. App. LEXIS 5905 (Tex. App.—Corpus Christi July 26, 2007).published
- James Ficarro v. State, No. 13-03-00439-CR, 2007 WL 1218045 (Tex. App.—Corpus Christi Apr. 26, 2007).published
- Eduardo Mendez Vasquez v. State, No. 13-06-00647-CR (Tex. App.—Corpus Christi May 1, 2008).published
- Jesus Perez Saldana v. State, 287 S.W.3d 43 (Tex. App.—Corpus Christi 2008).published
- David Michael Galindo v. State, No. 14-06-00230-CR (Tex. App.—Houston [14th Dist.] May 22, 2007).published
- in the Matter of Q.D.M.T., No. 14-07-00470-CV (Tex. App.—Houston [14th Dist.] Nov. 13, 2008).published
- Rickey Rea Rowlett v. State, No. 03-12-00204-CR (Tex. App.—Austin May 8, 2014).unpublished
- Claude Hunter v. State, No. 14-10-00468-CR (Tex. App.—Houston [14th Dist.] Apr. 12, 2011).unpublished
- Raul Garcia Mirano v. State, No. 11-12-00179-CR (Tex. App.—Eastland June 19, 2014).unpublished
- Ernesto Dutchover Garcia v. State of Texas, No. 11-12-00091-CR (Tex. App.—Eastland Apr. 30, 2014).unpublished
- Orlando Reyes v. State, No. 13-12-00468-CR (Tex. App.—Corpus Christi Dec. 5, 2013).unpublished
- Terry Lynn Fincher v. State, No. 02-13-00212-CR (Tex. App.—Fort Worth Jan. 16, 2014).unpublished
- Antonio B. Rascon v. State of Texas, No. 11-08-00186-CR (Tex. App.—Eastland Jan. 29, 2010).unpublished
- in the Guardianship of Bonnie Bee Brawley, an Incapacitated Person, No. 02-12-00505-CV (Tex. App.—Fort Worth Dec. 28, 2012).unpublished
- Glennie Darnell Jennings v. State, No. 02-12-00046-CR (Tex. App.—Fort Worth Dec. 28, 2012).unpublished
- Victor Wallace v. State, No. 07-09-00099-CR, 2011 Tex. App. LEXIS 1384 (Tex. App.—Amarillo Feb. 23, 2011).unpublished
- in the Interest of A. N. B., a Child, No. 07-06-00279-CV (Tex. App.—Amarillo May 20, 2010).unpublished
- Christopher Demont Smith v. State, No. 07-09-00010-CR (Tex. App.—Amarillo May 20, 2010).unpublished
- Christopher Demont Smith v. State, No. 07-09-00009-CR (Tex. App.—Amarillo May 20, 2010).unpublished
- Tommy Coronado v. State, No. 07-08-00496-CR (Tex. App.—Amarillo Mar. 31, 2010).published
- Ricky Morrison v. State, No. 07-07-00401-CR (Tex. App.—Amarillo Feb. 18, 2010).unpublished
- Anthony Inscore v. State, No. 13-09-00088-CR (Tex. App.—Corpus Christi Aug. 31, 2010).published
- Mark Pereida v. State, No. 13-09-00354-CR (Tex. App.—Corpus Christi July 15, 2010).unpublished
- Felix Tovar, Iii v. State, No. 13-08-00592-CR (Tex. App.—Corpus Christi July 15, 2010).published
- Jon Michael Layer v. State, No. 02-09-00272-CR (Tex. App.—Fort Worth Apr. 7, 2011).unpublished
- Carlos Carranza Gaona v. State, No. 13-08-00342-CR (Tex. App.—Corpus Christi June 24, 2010).published
- Luciano Lopez v. State, No. 01-10-01103-CR (Tex. App.—Houston [1st Dist.] Feb. 16, 2012).unpublished
- Raymond Proctor Harper v. State, No. 01-09-00905-CR (Tex. App.—Houston [1st Dist.] Feb. 10, 2011).unpublished
- Ashley Malone Spikes v. State, No. 01-09-00411-CR (Tex. App.—Houston [1st Dist.] Feb. 10, 2011).unpublished
- Pedro A. Escamilla v. State, No. 04-09-00530-CR (Tex. App.—San Antonio Oct. 13, 2010).published
- Kyle Barton Blount v. State, No. 05-16-00014-CR (Tex. App.—Dallas Oct. 18, 2016).unpublished
- Buddy Wayne Wiley v. State, No. 12-17-00236-CR (Tex. App.—Tyler May 31, 2018).published
- Daniel Arnold Waller v. State, No. 14-17-00980-CR (Tex. App.—Houston [14th Dist.] Jan. 29, 2019).unpublished
- in the Interest of M.H. & H.H., Child., No. 05-22-00017-CV (Tex. App.—Dallas Aug. 5, 2022).published
- Larry Doescher v. State of Texas, No. 11-19-00211-CR (Tex. App.—Eastland Oct. 13, 2022).unpublished
- Wilber Curtis Johnson v. State of Texas, No. 14-21-00466-CR (Tex. App.—Houston [14th Dist.] Nov. 3, 2022).unpublished
- Aaron Philip Fernandez v. State of Texas, No. 01-21-00541-CR (Tex. App.—Houston [1st Dist.] June 1, 2023).unpublished
- Amy Jasmie Sibrian v. State of Texas, No. 12-23-00104-CR (Tex. App.—Tyler Nov. 8, 2023).published
- KC Childress v. State of Texas, No. 11-24-00189-CR (Jan. 15, 2026).unpublished
At page 872 Reviewing evidence sufficiency in sexual assault trial23 citing casesdescribing outcry statute as permitting "testimony" from "outcry witness
- Alfredo Suarez, Jr. v. State, No. 07-17-00047-CR (Tex. App.—Amarillo Aug. 2, 2017).publishedRodri- rence of pretrial publicity creates no automatic presump- guez v. State, 819 S.W.2d 871, 872 (Tex. Crim. App. tion of prejudice; jurors need not come to court com- Page 5 993 S.W.2d 690 , *; 1999 Tex. App. LEXIS 998 , ** pletely ign…
- Bays, Michael Jay, 396 S.W.3d 580 (Tex. Crim. App. 2013).published (describing outcry statute as permitting "testimony" from "outcry witness)
- Green v. State, 899 S.W.2d 245 (Tex. App.—San Antonio 1995).published
- Fiedler v. State, 991 S.W.2d 70 (Tex. App.—San Antonio 1999).published
- Ruth v. State, 167 S.W.3d 560 (Tex. App.—Houston [14th Dist.] 2005).published
- Hollinger v. State, 911 S.W.2d 35 (Tex. App.—Tyler 1995).published
- Musick v. State, 862 S.W.2d 794 (Tex. App.—El Paso 1993).published
- Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1997).published
- Welch v. State, 993 S.W.2d 690 (Tex. App.—San Antonio 1999).published
- McDuff v. State, 943 S.W.2d 517 (Tex. App.—Austin 1997).published
Show 9 more citing cases
- Ontiveros v. State, 890 S.W.2d 919 (Tex. App.—El Paso 1994).published
- Martinez v. State, 844 S.W.2d 279 (Tex. App.—San Antonio 1993).published
- Donald Franklin Connaly v. State, No. 02-08-00264-CR (Tex. App.—Fort Worth June 11, 2009).unpublished
- Guillermo Ponce Ramirez v. State, No. 03-02-00791-CR (Tex. App.—Austin Aug. 14, 2003).unpublished
- Marc Fiedler v. State, No. 04-96-00864-CR (Tex. App.—San Antonio Oct. 21, 1998).published
- in the Matter of Y.H., No. 04-02-00560-CV (Tex. App.—San Antonio June 25, 2003).published
- Hollinger, David v. State, No. 12-93-00080-CR (Tex. App.—Tyler June 30, 1995).published
- Heriberto Muniz v. State, No. 14-06-00989-CR (Tex. App.—Houston [14th Dist.] Feb. 5, 2008).unpublished
- In re Z.L.B., 56 S.W.3d 818 (Tex. App.—Dallas 2001).published
At page 874 Analyzing evidence sufficiency for outcry testimony under statute8 citing casesholding rational trier of fact could have found all elements of offense beyond a reasonable doubt based on outcry testimony and victim = s testimony
- Rodrick Bernard Spence v. State, No. 05-19-00452-CR, 2020 WL 5056556 (Tex. App.—Dallas Aug. 27, 2020).unpublishedRodriguez v. State, 819 S.W.2d 871, 874 (Tex. Crim. App. 1991).
- Heriberto Varelasida v. State, No. 05-18-00187-CR (Tex. App.—Dallas Apr. 22, 2019).unpublishedRodriguez v. State, 819 S.W.2d 871, 874 (Tex. Crim.
- David R. Griffith v. State, No. 10-14-00245-CR (Tex. App.—Waco Apr. 4, 2018).unpublishedRodriguez v. State, 819 S.W.2d 871, 874 (Tex. Crim.
- Juan Hernandez Aguirre v. State, No. 12-07-00388-CR (Tex. App.—Tyler Feb. 25, 2009).published
- Paul M. Stout Jr. v. State, No. 02-04-00106-CR (Tex. App.—Fort Worth Apr. 28, 2005).unpublished
- Kevin Jones v. State, No. 14-07-01052-CR (Tex. App.—Houston [14th Dist.] Nov. 13, 2008).unpublished
- Miguel Velasco-Herrera v. State of Texas, No. 03-24-00761-CR (Tex. App.—Austin Aug. 28, 2025).unpublished
Other citing cases
- Talkington, Kevin D., No. PD-0658-15 (Tex. Crim. App. July 1, 2015).unpublished
v.
the STATE of Texas, Appellee
Lead Opinion
OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
CAMPBELL, Judge.A jury convicted appellant of aggravated sexual assault and assessed punishment at confinement for twenty years. The Court of Appeals found the evidence insufficient, reversed the conviction, and ordered an acquittal entered. Rodriguez v. State, 802 S.W.2d 716 (Tex.App.—San Antonio, 1990).[*872] We granted the State’s petition for discretionary review to address the contention that the Court of Appeals failed to consider all the evidence, whether properly or improperly admitted, in the light most favorable to the verdict when determining the sufficiency of the evidence. We will affirm as reformed.
The victim was five years old at the time of the offense and six years old at the time of trial. At trial she testified by way of two closed circuit televisions. She was unable to answer many questions, including the names of her siblings and her birth date. In response to leading questions she testified that someone touched her in a “bad way” in her house, but she either could not or would not state that person’s name. She denied knowing “Joseph Rodriguez,” and answered negatively when asked if “Joseph” was sitting at the table in the courtroom. Her testimony was ended when she persisted in demanding her coloring book and stating “no” when asked if she wanted to tell what had happened.
The victim’s mother testified as an outcry witness pursuant to Article 38.072, V.A.C.C.P. She stated that when she came home from work on February 15, 1989, appellant was sitting on the bed next to the victim in the victim’s room. The victim followed her into the bathroom and told her mother that “it hurt” and that appellant “had been messing” with her. The victim pulled her panties down, pointed to her vagina, and told her mother that appellant had touched her with his “pee-pee.” The victim’s mother testified that “pee-pee” meant penis.
Other witnesses who testified for the State during the guilt/innocence phase included the doctor who had examined the victim several hours after the assault, and a child protective specialist with the Texas Department of Human Services, who had investigated the offense. The medical testimony was inconclusive. The child protective specialist stated that after some time the victim identified appellant as the perpetrator. She then interviewed appellant about the offense.
Appellant testified and admitted that he fell asleep at the victim’s house on the night of the offense. He stated that when he awoke the victim and her sister were asleep on the bed. He denied committing the offense. He claimed the victim’s mother fabricated the story out of spite because he had ended their affair to go back to his wife.
The Court of Appeals held the hearsay testimony of the outcry witness (the victim’s mother) was inadmissible because of noncompliance with Art. 38.072, and also that the testimony was inadmissible as an excited utterance under Tex.R.Crim.Evid. 803(2).[1] That court acknowledged that, despite this holding, such evidence must be considered when addressing appellant’s challenge to the sufficiency of the "evidence. Chambers v. State, 805 S.W.2d 459 (Tex.Cr.App.1991); Villalon v. State, 791 S.W.2d 130 (Tex.Cr.App.1990); Deason v. State, 786 S.W.2d 711 (Tex.Cr.App.1990). The Court of Appeals also correctly recited that the proper standard of review on appeal is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court concluded that the only evidence of the sexual assault came from the outcry witness. Since the victim’s testimony “failed to substantiate” what the outcry witness had said, the court concluded, “[t]here is no evidence to establish that the sexual organ of appellant contacted the female sexual organ of the child_” Rodriguez, supra at 724.
The State argues that the Court of Appeals essentially assumed the role of a “thirteenth juror” by discounting certain evidence from the victim and isolating it from the outcry testimony. The State contends the Court of Appeals seems to have based its opinion on its own lack of confi[*873]dence in the outcry testimony and on separating and analyzing individual parts of the evidence independently. The State asserts this analysis is like that rejected by this Court in Villalon.
Like the instant case, one of the issues in Villalon concerned the use of outcry testimony in evaluating the sufficiency of the evidence. In Villalon we found that the State had complied with the requirements of Art. 38.072 so that the outcry testimony was properly admitted. However, the Court of Appeals in Villalon found the outcry testimony was unreliable and, therefore, without probative value. That court then excluded or separated the outcry testimony from the rest of the evidence before evaluating the sufficiency of the evidence. We reversed the Court of Appeals, stating that the testimony should not have been excluded or separated from the other evidence because a sufficiency review requires an appellate court to look at all of the evidence admitted at trial and view it in a light most favorable to the verdict.
In the instant case, although the Court of Appeals correctly recited that inadmissible evidence must be considered when addressing a challenge to the sufficiency of the evidence, it did not follow that principle. Instead, the Court of Appeals treated the outcry testimony as proof only that outcry had been made and not as evidence of the truth of the testimony, as though it was admitted pursuant to Article 38.07, V.A.C.C.P. See Alonzo v. State, 575 S.W.2d 547 (Tex.Cr.App.1979); Brown v. State, 649 S.W.2d 160 (Tex.App.—Austin, 1983, no pet.). Under Art. 38.072, by both the terms of the statute and by the legislative history, outcry testimony admitted in compliance with Art. 38.072 is admitted as an exception to the hearsay rule, meaning it is considered substantive evidence, admissible for the truth of the matter asserted in the testimony. See generally HB 579 bill analysis, including “Background Information” and “Purpose” for Acts 1985, 69th Legislature; HB 579, Second Reading, May 9, 1985; HB 579, Third Reading, May 13, 1985. The outcry testimony admitted in the instant case, unlike that in Villalon, did not meet the statutory requirements of Art. 38.072 and, thus, was improperly admitted as substantive evidence. However, the Court of Appeals should have considered that testimony in evaluating sufficiency.
The critical consideration here is that the outcry testimony was proffered and admitted as substantive evidence under a statutory exception to the hearsay rule, and even though improperly admitted, the testimony must be considered as having probative value in determining the sufficiency of the evidence. Chambers v. State, 711 S.W.2d 240 (Tex.Cr.App.1986), (inadmissible hearsay admitted without objection is the same as all other evidence in the sufficiency context, namely, it is capable of sustaining a verdict.); Fernandez v. State, 805 S.W.2d 451 (Tex.Cr.App.1991). The relative probative value of this hearsay evidence was assessed by the trier of fact in reaching its verdict. When the jury convicted appellant, it expressed its view that the outcry testimony was probative. Once the trier of fact has done so, an appellate court may not reevaluate the probity of this individual item of evidence. “[T]he appellate court has only the discretion to determine if any rational trier of fact could have, based on the evidence admitted at trial, found the essential elements of the offense beyond a reasonable doubt. Chambers, 711 S.W.2d, at 245.” Fernandez, supra at 456. The victim’s mother testified the victim indicated to her that appellant touched the victim’s vagina with his penis. Because this evidence is substantive evidence with some probative value, even though erroneously admitted, it is, by itself, sufficient to support the jury’s verdict. See Villalon, supra at 133. Further, contrary to the Court of Appeals’ opinion, viewing the evidence in a light most favorable to the verdict shows that the child’s testimony in the instant case does not contradict the outcry testimony. While the testimony is far from complete, the child testified that someone touched her in a “bad way” at her house. This is consistent with the testimony of the victim’s mother that the child told her appellant touched her vagina with his penis.[*874] The Court of Appeals appeared to require the testimony of the outcry witness to be corroborated or “substantiated” by the victim’s testimony or by other independent evidence. That court may have relied on cases decided under Art. 38.07, but no such requirement exists when the requisites of Art. 38.072 are met as far as the substantive nature of the outcry testimony.[2]
Viewing the evidence in a light most favorable to the verdict, we find that a rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt based upon the outcry testimony and the victim’s testimony. Accordingly, we reform that portion of the Court of Appeals’ judgment by deleting that portion which ordered that a judgment of acquittal be entered. With that reformation the judgment of the Court of Appeals reversing the conviction is affirmed.
CLINTON and MALONEY, JJ., dissent. BENAVIDES, J., dissents, agreeing with the Court of Appeals that the evidence is insufficient.The State did not challenge and we do not address the Court of Appeals’ decision on the admissibility issue.
The Court of Appeals’ discussion of a requirement that other proof must show that the offense occurred-in order to permit admission of hearsay testimony under Rule 803(2) is simply part of a predicate-type of requirement that must be met before a hearsay statement is admissible as an excited utterance.
Dissent
dissenting.
I believe that the court of appeals analyzed the evidence sufficiency claim using the proper standard and came to a conclusion that is supported by the record. Upon inspection of the record, I agree that “no offense was proved and, further, even if an offense had been proved, it was not shown that appellant did commit the offense charged.” Rodriguez v. State, 802 S.W.2d 716, 724 (Tex.App.—San Antonio 1990). Thus, the court of appeals’ holding that a rational trier of fact could not have found all the essential elements of the offense beyond a reasonable doubt and order that a judgment of acquittal be entered should not be disturbed. Because the majority does disturb that holding and order, I respectfully dissent.