Charles Eugene Evans, Jr. v. the State of Texas
CourtTexas Court of Appeals, 10th District (Waco)
Date FiledNovember 5, 2026
Docket10-24-00368-CR
StatusPublished
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Full Opinion
Court of Appeals
Tenth Appellate District of Texas
10-24-00368-CR
Charles Eugene Evans, Jr.,
Appellant
v.
The State of Texas,
Appellee
On appeal from the
18th District Court of Johnson County, Texas
Judge Sydney B. Hewlett, presiding
Trial Court Cause No. DC-F202300910
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
A jury found Appellant, Charles Evans, Jr., guilty of three counts of the
felony offense of sexual assault of a child, three counts of the felony offense of
indecency with a child by contact, and three counts of the felony offense of
indecency with a child by exposure. See TEX. PENAL CODE ANN. §§
22.011(a)(2)(A); 21.11(a)(1); 21.11(a)(2)(A). The jury assessed his punishment
at twenty years confinement in the penitentiary on each count of sexual assault
of a child and indecency with a child by contact and ten years confinement in
the penitentiary on each count of indecency with a child by exposure. See id.
at §§ 12.33; 12.34. The trial court sentenced him accordingly and ordered that
the twenty-year sentences be served consecutively and the ten-year sentences
be served concurrently with all counts. See id. at § 3.03; TEX. CODE CRIM.
PROC. ANN. art. 42.08. This appeal ensued. We will affirm.
A. Background
In 2023, Lacey Long 1 was living at her maternal grandmother’s home
0F
with her grandmother (“Trammell”), mother (“Aldridge”), siblings, and Evans,
who was dating Aldridge at the time and the father of two of Long’s siblings.
In August 2023, Aldridge began to suspect that Long and Evans were having
an improper relationship, so she installed a camera in the home which she and
Trammell could access via an app.
On September 26, 2023, Aldridge and Trammell saw camera footage of
Evans in Long’s bedroom. They called the police and as the police were
arriving at the house, the camera footage showed Evans pulling up his pants
as he was leaving Long’s bedroom. Long’s paternal aunt, Jamie Miller, picked
Long up from the home. Long told Miller that she and Evans had engaged in
sexual activity twice that day and that they had previously engaged in sexual
1
Pseudonym used for the victim pursuant to TEX. R. APP. P. 9.10(a)(3).
Evans v. State Page 2
activity over the previous few weeks. Long underwent an examination with a
SANE nurse that evening, and DNA samples were collected.
Following his arrest, Evans was interviewed on two occasions: once by
Sergeant Summey with the Cleburne Police Department and once by
Investigator Goetz with the Johnson County District Attorney’s Office. Evans
admitted to sexual contact or sexual intercourse between himself and Long in
both interviews.
B. Sufficiency
In his first nine issues, Evans challenges the sufficiency of the evidence
to support each count of his conviction.
1. Standard of Review
The Court of Criminal Appeals has defined our standard of review of
a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the
evidence, we consider whether, after viewing all of the evidence in
the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232
(Tex. Crim. App. 2017). This standard requires the appellate court
to defer “to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson,
443 U.S. at 319. We may not re-weigh the evidence or substitute
our judgment for that of the factfinder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a
sufficiency review must not engage in a “divide and conquer”
Evans v. State Page 3
strategy but must consider the cumulative force of all the evidence.
Villa, 514 S.W.3d at 232. Although juries may not speculate about
the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is
supported by the evidence presented at trial. Cary v. State, 507
S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S.
at 319); see also Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim.
App. 2007). We presume that the factfinder resolved any
conflicting inferences from the evidence in favor of the verdict, and
we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525
(Tex. Crim. App. 2012). This is because the jurors are the exclusive
judges of the facts, the credibility of the witnesses, and the weight
to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010). Direct evidence and circumstantial
evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative
force of all the incriminating circumstances is sufficient to support
the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was
sufficient to support a conviction by comparing it to “the elements
of the offense as defined by the hypothetically correct jury charge
for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge is one that
“accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the
defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d
654, 665 (Tex. Crim. App. 2013). The “law as authorized by the
indictment” includes the statutory elements of the offense and
those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732–33 (Tex. Crim. App. 2018).
Evans v. State Page 4
2. Counts One to Three: Sexual Assault of a Child
In his first three issues, Evans argues that the evidence is insufficient to
support his convictions in counts one to three for sexual assault of a child.
As defined by a hypothetically correct jury charge and as authorized by
the indictment, the State was required to establish that Evans intentionally or
knowingly caused the penetration of the sexual organ of Long by Evans’s
sexual organ. See TEX. PENAL CODE ANN. § 22.011(A)(2)(A).
To support his argument that the State failed to meet its burden of
proving beyond a reasonable doubt that Evans committed sexual assault of a
child, Evans points to the evidence that, while Long made an outcry on
September 26, 2023, she had previously told a forensic interviewer at the Child
Advocacy Center that nothing happened.
On September 9, Aldridge made a report to police about a suspected
inappropriate relationship between Long and Evans after finding suspicious
messages on Long’s phone. Long was brought in for a forensic interview but
did not make an outcry or provide any information that an offense had
occurred. The investigating officer described Long as uncooperative. At trial,
Long testified that when Aldridge asked her about the messages between Long
and Evans, Long told Aldridge that she had gotten Evans’s phone and put the
messages there herself. Long stated that this was a lie to protect Evans. We
Evans v. State Page 5
presume that the factfinder resolved any conflicting inferences from the
evidence in favor of the verdict, and we defer to that resolution. Merritt v.
State, 368 S.W.3d at 525.
The court conducting a sufficiency review must not engage in a “divide
and conquer” strategy but must consider the cumulative force of all the
evidence. Villa, 514 S.W.3d at 232. While it is true that Long did not disclose
any information during her forensic interview on September 9 to suggest that
an offense occurred, the record before us contains ample evidence for a jury to
have found beyond a reasonable doubt that Evans intentionally or knowingly
caused the penetration of the sexual organ of Long by Evans’s sexual organ.
Trammell and Aldridge both testified that they saw Evans and Long engaging
in sexual activity on the camera Aldridge installed in the home, and the video
footage was admitted into evidence. Long testified that on at least three
occasions in August and September 2023, she and Evans had sex. Miller
testified that Long outcried to multiple occurrences of sexual activity between
her and Evans, including having sex twice on the day he was arrested. The
SANE nurse, Theresa Fugate, testified that Long reported that for about a
month and a half, she and Evans would “mess around” a few times a week.
Fugate noted that Long stated she and Evans would mostly have sex, which
she clarified was vaginal penetration by Evans’s penis. Additionally, DNA
Evans v. State Page 6
testing identified Evans as the male contributor to samples taken from Long’s
vulva, inner thigh, and neck as part of the SANE examination. Evans also
admitted to having sexual intercourse with Long in two separate interviews
with law enforcement.
Evans also contends that there is insufficient evidence to support that
he acted intentionally or knowingly. Intent can be inferred from the acts,
words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 (Tex.
Crim. App. 1995); see also Cary, 507 S.W.3d at 757.
Viewing the foregoing evidence in the light most favorable to the verdict,
a rational jury could have reasonably concluded that Evans had committed the
offense of sexual assault of a child. See Villa, 514 S.W.3d at 232. Accordingly,
the evidence was legally sufficient to support Evans’s convictions for sexual
assault of a minor as contained in Counts One, Two, and Three.
Therefore, we overrule Evans’s first, second, and third issues.
3. Counts Four to Six: Indecency with a Child by Contact
In his fourth, fifth, and sixth issues, Evans argues that the evidence is
insufficient to support his convictions in counts four, five, and six for indecency
with a child by contact.
As defined by a hypothetically correct jury charge and as authorized by
the indictment, the State was required to establish that, with the intent to
Evans v. State Page 7
arouse himself or gratify his sexual desire, Evans engaged in sexual contact
with Long by touching her genitals or breast. See TEX. PENAL CODE ANN. §
21.11(A)(1).
Evans specifically argues that “no rational trier of fact could have
decided that the State had proved all elements of the offense based beyond a
reasonable doubt on the testimony of the alleged victim Lacey Long.”
Fugate’s SANE report details sexual contact other than vaginal
penetration. Specifically, it notes that Long reported Evans had touched,
kissed, and licked her breasts and genitals. Miller testified that Long told her
Evans had performed oral sex on her. Long also testified at trial that other
sexual activity besides vaginal penetration occurred between her and Evans.
Evans also contends that there is insufficient evidence to support that
he acted with intent to arouse or gratify the sexual desire of any person. Intent
can be inferred from the acts, words, and conduct of the accused. Patrick v.
State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); see also Cary, 507 S.W.3d
at 757.
Viewing the foregoing evidence in the light most favorable to the verdict,
a rational jury could have reasonably concluded that Evans had committed the
offense of indecency with a child by contact. See Villa, 514 S.W.3d at 232.
Accordingly, the evidence was legally sufficient to support Evans’s convictions
Evans v. State Page 8
for indecency with a child by contact as contained in Counts Four, Five, and
Six.
Therefore, we overrule Evans’s fourth, fifth, and sixth issues.
4. Counts Seven to Nine: Indecency with a Child by Exposure
In his seventh, eighth, and ninth issues, Evans argues that the evidence
is insufficient to support his convictions in counts seven, eight, and nine for
indecency with a child by exposure.
As defined by a hypothetically correct jury charge and as authorized by
the indictment, the State was required to establish that, with the intent to
arouse himself or gratify his sexual desire, Evans exposed his genitals knowing
that Long was present. See TEX. PENAL CODE ANN. § 21.11(A)(2)(A).
Evans specifically argues that the evidence was insufficient to support
the convictions for indecency with a child by exposure because Long testified
to seeing his “private area,” but the definition of this phrase was unclear from
Long’s testimony. The victim’s description of what happened to her need not
be precise, and she is not expected to express herself at the same level of
sophistication as an adult. See Villalon v. State, 791 S.W.2d 130, 134 (Tex.
Crim. App. 1990) (en banc); see also Gonzalez Soto v. State, 267 S.W.3d 327,
333 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.); Clark v. State, 558
S.W.2d 887, 889 (Tex. Crim. App. 1977) (holding evidence sufficient to show
Evans v. State Page 9
sexual contact where complainant testified appellant touched her “front butt”);
Williams v. State, 911 S.W.2d 788, 790 (Tex. App.–San Antonio 1995, no pet.)
(holding complainant children sufficiently communicated that touching
occurred to part of body covered by statute by using terms such as “dick,”
“penis,” and “private part”). Here, Long was describing seeing Evans’s “private
part” during questioning about the first incident between Long and Evans:
Q. (BY [THE STATE]) [Long], let me ask you this. Did he -- did he
expose himself? Did you see his private area that day?
A. Yes.
Q. Okay. Did it touch your body?
A. Yes.
Q. What part of your body did it touch? Did he have sex with you
that day?
A. Yes.
Q. Okay. How many times did that happen?
A. I’m not too sure how many times it actually happened. I just
know it was a lot.
Long continued her testimony by explaining different times she and Evans had
engaged in sexual intercourse. Given the context of Long’s description, a
rational jury could have found that Evans exposed his genitals with Long
present. See Villa, 514 S.W.3d at 232. Additionally, a rational jury could have
made the reasonable inference that Evans exposed his genitals with Long
present each time they engaged in sexual intercourse, and that he exposed
himself with the intent of sexual gratification. See Cary, 507 S.W.3d at 757.
Evans v. State Page 10
Viewing the foregoing evidence in the light most favorable to the verdict,
a rational jury could have reasonably concluded that Evans had committed the
offense of indecency with a child by exposure. See Villa, 514 S.W.3d at 232.
Accordingly, the evidence was legally sufficient to support Evans’s convictions
for indecency with a child by exposure as contained in Counts Seven, Eight,
and Nine.
Therefore, we overrule Evans’s seventh, eighth, and ninth issues.
C. Admission of Exhibit Twelve
In his tenth issue, Evans argues that the trial court erred in admitting
the videos of the bedroom into evidence.
1. Preservation of Error
Evans’s argument here is twofold: (1) the videos in Exhibit 12 were
obtained by Aldridge in violation of Texas law and therefore inadmissible
under Texas Code of Criminal Procedure article 38.23 and (2) the State failed
to lay the proper foundation for the admissibility of Exhibit 12.
Evans states that his argument that the videos were obtained in
violation of Texas law “was brought to the [trial court’s] attention in a timely
filed motion for new trial.” However, if the trial court denies a motion for new
trial, the defendant must have preserved that same error before he may claim
it as a basis for reversing the trial judge once he moves into the appellate court.
Evans v. State Page 11
State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App. 2007). The failure to
properly preserve error under Texas Rules of Appellate Procedure Rule 33.1
cannot be cured by raising the matter in a motion for new trial. Igo v. State,
210 S.W.3d 645, 647 (Tex. Crim. App. 2006).
In order for a complaint to be presented on appeal, a timely request,
objection, or motion generally must have been made to the trial court, stating
the grounds “with sufficient specificity to make the trial court aware of the
complaint.” TEX. R. APP. P. 33.1(a)(1)(A). An appellant fails to preserve error
by failing to object when he had the opportunity. Burt v. State, 396 S.W.3d
574, 577–78 (Tex. Crim. App. 2013). Additionally, an objection is timely only
if it is raised as soon as the ground for objection becomes apparent. Johnson
v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994). When the State offered
Exhibit 12, Evans objected to the evidence on the basis of “improper
foundation.” Since his argument on appeal relating to Texas Code of Criminal
Procedure article 38.23 does not comport with his objection at trial, Evans has
failed to preserve error as to that portion of his argument under this issue. See
TEX. R. APP. P. 33.1(a)(1)(A). Therefore, we focus only on the preserved
argument relating to the authentication of the videos in Exhibit 12.
Evans v. State Page 12
2. Standard of Review
A trial court’s decision to admit or exclude evidence is reviewed under an
abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex.
Crim. App. 2018). A trial court abuses its discretion when its decision lies
outside of the zone of reasonable disagreement. Id. We must uphold the trial
court’s decision if it is reasonably supported by the record and correct under
any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845
(Tex. Crim. App. 2002).
3. Authority
To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is. TEX. R. EVID. 901. There are
at least two ways to authenticate photo or video evidence: (1) testimony that
the photo or video is an accurate representation of the object or scene in
question or (2) testimony that the process or system that produced the photo
or video is reliable. See Standmire v. State, 475 S.W.3d 336, 345 (Tex. App.—
Waco 2014, pet. ref ’d). The sponsoring witness is not required to be the person
who operated the camera or video equipment. Id. If the sponsoring witness
was present when the photographs or video were taken or has personal
knowledge of what the photographs or video depict, it is unnecessary for the
Evans v. State Page 13
sponsoring witness to also testify regarding the reliability of the system. See
id.; TEX. R. EVID. 901.
4. Analysis
Here, Evans argues that the sponsoring witness, Trammell, did not lay
the proper foundation for Exhibit 12 because she testified that she had been
unable to make the app for the camera record the video. While it is true that
Trammell testified she had not been able to figure out how to have the app
record the video and that Aldridge had been the one who figured out how to
have the app record the video, Trammell also testified that she saw the video
footage live, had reviewed the recorded videos contained in Exhibit 12, and
that the videos fairly and accurately depicted the events she witnessed.
Because the admission of Exhibit 12 was based on Trammell’s personal
knowledge of the events contained within the videos, Trammell’s testimony
was sufficient to authenticate the videos contained in Exhibit 12. See TEX. R.
EVID. 901. Accordingly, the trial court did not abuse its discretion in admitting
the videos over Evans’s objection.
Therefore, Evans’s tenth issue is overruled.
D. Admission of Evans’s Recorded Statements
In his eleventh and twelfth issues, Evans argues that the trial court
erred in admitting his recorded statements to Sergeant Summey and
Evans v. State Page 14
Investigator Goetz. Specifically, he complains that Sergeant Summey did not
comply with the requirements set forth by Texas Code of Criminal Procedure
article 38.22 and Miranda and that Sergeant Summey made promises that
coerced him into waiving his Miranda rights. Additionally, he complains that
in both interviews, he was under the influence of methamphetamines and
therefore unable to knowingly, intelligently, and voluntarily waive his
Miranda rights.
1. Preservation of Error
In order for a complaint to be presented on appeal, a timely request,
objection, or motion generally must have been made to the trial court, stating
the grounds “with sufficient specificity to make the trial court aware of the
complaint.” TEX. R. APP. P. 33.1(a)(1)(A). Litigants need not employ “specific
words or technical considerations” to avoid forfeiting their complaints.
Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016). Instead, a party
need only let the trial court know what he wants and why he feels himself
entitled to it clearly enough for the judge to understand him. Id. However, a
general or imprecise objection will not preserve error for appeal unless “the
legal basis for the objection is obvious to the court and to opposing counsel.”
Id.
Evans v. State Page 15
During trial, Evans objected to the admission of his recorded statement
to Sergeant Summey on the grounds that Evans’s admissions were not made
voluntarily because “his intoxication caused him to be mentally impaired,
therefore mentally incompetent” and “that there was [sic] promises made for
his statement.” To the extent that Evans now argues on appeal that his
recorded statement to Sergeant Summey was inadmissible under any other
theory, 2 we find that Evans has failed to preserve error as to those portions of
1F
his argument under his eleventh issue. See TEX. R. APP. P. 33.1(a)(1)(A). We
will focus on his preserved arguments of whether Evans knowingly,
intelligently, and voluntarily waived his rights under Miranda and Texas Code
of Criminal Procedure article 38.22 before making his statements to Sergeant
Summey and Investigator Goetz.
2. Standard of Review
When reviewing a trial court’s ruling on a motion to suppress, we apply
a bifurcated standard of review. State v. Rodriguez, 521 S.W.3d 1, 8 (Tex.
Crim. App. 2017). In a suppression hearing, the trial court is the sole trier of
fact and judge of the credibility of the witnesses and the weight given to their
testimony and may accept or reject any or all of any witness’s testimony. Stiles
v. State, 927 S.W.2d 723, 729 (Tex. App.—Waco 1996, no pet.). We give almost
2
Evans references the timing of the Miranda warnings in his argument regarding the Summey interview, but does
not go into further detail on that potential argument.
Evans v. State Page 16
complete deference to the trial court’s determination of historical facts.
Rodriguez, 521 S.W.3d at 8. An appellate court must examine the record in
the light most favorable to the ruling and uphold the trial court’s findings of
fact so long as they are supported by the record. Id. “The appellate court then
proceeds to a de novo determination of the legal significance of the facts as
found by the trial court—including the determination of whether a specific
search or seizure was reasonable.” Id. We are obligated to uphold the trial
court’s ruling on a motion to suppress if that ruling was supported by the
record and was correct under any theory of law applicable to the case.
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
3. Authority
The Supreme Court of the United States has explained that a person who
is questioned by the police after he is “taken into custody or otherwise deprived
of his freedom of action in any significant way” must first “be warned that he
has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney,
either retained or appointed.” See Miranda v. Arizona, 384 U.S. 436, 444, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State has the burden of showing that
a defendant knowingly, intelligently, and voluntarily waived his Miranda
rights. See Miranda, 384 U.S. at 444, 475, 86 S.Ct. 1602; Hill v. State, 429
Evans v. State Page 17
S.W.2d 481, 486 (Tex. Crim. App. 1968). The State must prove waiver by a
preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107
S.Ct. 515, 93 L.Ed.2d 473 (1986). Only if the “totality of the circumstances
surrounding the interrogation” reveals both an uncoerced choice and the
requisite level of comprehension may a court properly conclude that the
Miranda rights have been waived. Joseph v. State, 309 S.W.3d 20, 25 (Tex.
Crim. App. 2010) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135,
89 L.Ed.2d 410 (1986)).
Article 38.22 of the Texas Code of Criminal Procedure further precludes
the use of statements that result from custodial interrogation absent
compliance with additional procedural safeguards. See TEX. CODE CRIM. PRO.
ANN. art. 38.22. For oral statements given by an accused, those safeguards
include the following: (1) an accurate and unaltered electronic recording of the
statement, (2) admonishment of Miranda and statutory warnings to the
accused before the statement was made, (3) the accused’s knowing, intelligent,
and voluntary waiver of Miranda and statutory warnings, (4) use of an
accurate recording device by a competent operator, and (5) positive
identification of all voices on the recording. Id.
Evans v. State Page 18
4. Analysis
Evans contends that his waivers of rights under Miranda and Article
38.22 was not made knowingly, intelligently, or voluntarily because he was
under the influence of methamphetamines during his interviews with Summey
and Goetz. While intoxication can be a consideration when determining
whether a defendant effectively waived his rights, it does not render a
confession involuntary per se. See Jones v. State, 944 S.W.2d 642, 651 (Tex.
Crim. App. 1996). Evans’s evidence of intoxication consists of his statement to
Summey that he had used methamphetamines early that morning before his
arrest and his statement to Goetz the day after his arrest that he could not
think straight. Summey and Goetz each testified that they have extensive
training and experience in law enforcement, including dealing with intoxicated
individuals and recognizing signs of intoxication. Both Summey and Goetz
stated that they did not observe any signs of intoxication during their
interviews. Accordingly, we conclude that the evidence supports the trial
court’s finding that Evans’s mental state was not impaired during the
interviews and that he knowingly, intelligently, and voluntarily waived his
rights.
Evans also argues that his statements to Summey were coerced by
promises that he would not be placed in general population at the jail if he
Evans v. State Page 19
talked to her. Before a promise will render a confession inadmissible, it must
be shown that the promise induced the confession. Muniz v. State, 851 S.W.2d
238, 254 (Tex. Crim. App. 1993). Regardless of whether Summey’s statements
would be considered promises, we cannot say that they induced Evans’s
confession because they were made after Evans had already confessed.
Accordingly, we conclude that the record supports the trial court’s finding that
Evans knowingly, intelligently, and voluntarily waived his rights.
Therefore, we overrule Evans’s eleventh and twelfth issues.
E. Admission of SANE report and testimony
In his thirteenth issue, Evans argues that the trial court erred in
allowing the SANE nurse, Theresa Fugate, to testify and in admitting State’s
Exhibit 17 over his objection. Specifically, he contends that the SANE report
and accompanying testimony were hearsay and violated his right to confront
witnesses.
1. Confrontation Clause
We review the trial court's ruling admitting the evidence against a
constitutional objection under a bifurcated standard, giving deference to the
trial court's findings regarding any pertinent historical facts but reviewing de
novo the trial court's application of the law to those facts. Grey v. State, 299
Evans v. State Page 20
S.W.3d 902, 907 (Tex. App.-Austin 2009, pet. ref'd) (citing Wall v. State, 184
S.W.3d 730, 742–43 (Tex. Crim. App. 2006)).
The Confrontation Clause dictates that an accused “shall enjoy the right
... to be confronted with the witnesses against him.” U.S. CONST. amend. VI.
But if the declarant is subject to cross-examination at trial, “the Confrontation
Clause places no constraints at all on the use of [a declarant’s] prior testimonial
statements.... The Clause does not bar admission of a statement so long as the
declarant is present at trial to defend or explain it.” Crawford v. Washington,
541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Accordingly, to
implicate the Confrontation Clause, the challenged out-of-court statement
must be made by a witness absent from trial and be testimonial in nature. See
id. at 59, 124 S.Ct. 1354.
Here, Fugate testified and was subject to cross-examination. Long and
Aldridge, whose statements were contained within the SANE report, also
testified and were subject to cross-examination. Therefore, the Confrontation
Clause was not implicated here. See Crawford, 541 U.S. at 59.
2. Hearsay
We review the trial court’s ruling on Appellant’s hearsay objection for an
abuse of discretion. See Wall, 184 S.W.3d at 743.
Evans v. State Page 21
Under Texas Rule of Evidence 803(4), the trial court may admit into
evidence statements made for, and reasonably pertinent to, medical diagnosis
or treatment that describe medical history, past or present symptoms or
sensations, their inception, or their general cause even though they are
hearsay. TEX. R. EVID. 803(4). For evidence to be admissible under this
exception, the proponent normally must show that (1) the declarant “was
aware that the statements were made for purposes of medical diagnosis or
treatment and that proper diagnosis or treatment depended upon the veracity
of the statements” and (2) “the statements are pertinent to diagnosis or
treatment, i.e., that it was reasonable for the care provider to rely on the
statements in diagnosing or treating the declarant.” Lumsden v. State, 564
S.W.3d 858, 883 (Tex. App.—Fort Worth 2018, pet. ref ’d) (citing Taylor v.
State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008)). However, the Court of
Criminal Appeals has observed that “it seems only natural to presume that
adults, and even children of a sufficient age or apparent maturity, will have an
implicit awareness that [a] doctor’s [or nurse’s] questions are designed to elicit
accurate information and that veracity will serve their best interest.” Taylor,
268 S.W.3d at 589. Thus, the Court of Criminal Appeals recognized “the almost
universal tendency of courts under these circumstances to assay the record,
not for evidence of such an awareness, but for any evidence that would negate
Evans v. State Page 22
such an awareness, even while recognizing that the burden is on the proponent
of the hearsay to show that the Rule 803(4) exception applies.” Id. As such,
the Court of Criminal Appeals has not required the proponent of statements to
a SANE to affirmatively demonstrate that the declarant was aware of the
purpose of the statements and the need for veracity. Lumsden, 564 S.W.3d at
883–84 (citing Taylor, 268 S.W.3d at 589).
Here, Fugate testified at length that the information contained within
SANE report was collected for medical purposes. Evans has not pointed to,
and we cannot find any evidence in the record that negates an awareness that
Fugate’s questioning of Long and Aldridge was designed to elicit an accurate
medical history for the purposes of diagnosis or treatment. See Taylor, 268
S.W.3d at 589.
Accordingly, because Exhibit 17 and Fugate’s testimony did not violate
the Confrontation Clause and qualified under an exception to the rule against
hearsay, we find that the trial court did not err in admitting the exhibit and
allowing Fugate to testify.
Therefore, we overrule Evans’s thirteenth issue.
F. Admission of Outcry Testimony
In his fourteenth issue, Evans argues that the trial court erred in
allowing Jamie Miller to testify as an outcry witness over his objection.
Evans v. State Page 23
Specifically, Evans contends that Miller was not the proper outcry witness
because (1) she was not the first person over 18 years of age that Long had told
about the abuse and (2) she was not able to give enough detail of the abuse.
1. Preservation of Error
In order for a complaint to be presented on appeal, a timely request,
objection, or motion generally must have been made to the trial court, stating
the grounds “with sufficient specificity to make the trial court aware of the
complaint.” TEX. R. APP. P. 33.1(a)(1)(A). An appellant fails to preserve error
by failing to object when he had the opportunity. Burt v. State, 396 S.W.3d
574, 577–78 (Tex. Crim. App. 2013). Litigants need not employ “specific words
or technical considerations” to avoid forfeiting their complaints. Vasquez v.
State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016). However, a general or
imprecise objection will not preserve error for appeal unless “the legal basis for
the objection is obvious to the court and to opposing counsel.” Id.
At the end of the outcry hearing with Miller, the State clarified to the
trial court that while the notice for hearsay statements included both Miller
and Aldridge, the State only intended to call Miller as the outcry witness. The
trial court then asked Evans for his argument, at which time Evans objected
that Miller was not the proper outcry witness because Miller was not able to
give adequate details of Long’s outcry, either because Miller did not remember
Evans v. State Page 24
what Long said or because Long did not go into enough detail in her statements
to Miller. Since his argument on appeal relating to Aldridge being the proper
outcry witness does not comport with his objection at trial, Evans has failed to
preserve error as to that portion of his argument under this issue. See TEX. R.
APP. P. 33.1(a)(1)(A). Therefore, we focus only on the preserved argument
relating to whether Miller was able to provide discernable details of the event
to qualify as an outcry witness.
2. Standard of Review
A trial court reviews the designation of an outcry witness under Article
38.072 of the Texas Code of Criminal Procedure for abuse of discretion. Garcia
v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).
3. Authority
Article 38.072 of the Texas Code of Criminal Procedure creates an
exception to the rule against hearsay by allowing the admission of outcry
statements if certain requirements are met. TEX. CODE CRIM. PROC. ANN. art.
38.072. One such requirement is that the designated outcry witness must be
the first person eighteen years of age or older whom the child victim told about
the abuse. Id. at § 2(a)(3). The first person refers to the first adult who can
remember and relate at trial the child’s statement that in some discernible
manner describes the alleged offense. Foreman v. State, 995 S.W.2d 854, 859
Evans v. State Page 25
(Tex. App.—Austin 1999, pet. ref ’d). The proper outcry witness is the adult to
whom the complainant first tells “how, when, and where” she was assaulted.
Villanueva v. State, 209 S.W.3d 239, 247 (Tex. App.—Waco 2006, no pet.).
4. Analysis
During the outcry hearing, Miller testified that on September 26, 2023,
Aldridge asked her to come pick up Long from the house. When Miller arrived
at the house, she stated that there were detectives at the house and that she
observed Long crying and Aldridge and Trammell trying to console Long.
Miller then drove Long to her house, and during the drive, they discussed what
had happened. Miller testified that Long told her the relationship started
when Evans gave her a note saying he wanted to pursue a relationship. Miller
stated that Long said the sexual interactions began the next day. Miller also
testified that Long told her that she and Evans had engaged in sexual
intercourse twice on the day they got caught and that they had frequently done
so when Long would stay home from school between the first incident and the
day they got caught. Miller stated that Long did not go into “great detail” but
that she did describe instances of oral sex and vaginal sex.
Miller’s testimony adequately covers “how, when, and where” Long and
Evans engaged in sexual activity. See Villanueva v. State, 209 S.W.3d at 247.
Evans v. State Page 26
Accordingly, the trial court did not err in allowing Miller to testify as