David Arroyo v. State
04-15-00595-CR
Tex. App.Jul 19, 2017Background
- David Arroyo was convicted by a jury on six counts of indecency with a child by contact (touching breasts and genitals of K.E. on three dates); six separate judgments were signed.
- K.E., the complainant, testified about three incidents: appellant moved from playing with her hair to touching her neck, chest, leg, and then moving his hand up her skirt; she explicitly said on one occasion he touched her "vagina" and on another that he put his hand inside her underwear.
- The State also called G.S., a cousin, who testified about longstanding molestation by appellant decades earlier.
- The trial court admitted outcry testimony from K.E.’s mother (Felicia) that K.E. said she was molested and touched "underneath her pants." The court did not hold a separate article 38.072 reliability hearing.
- On appeal Arroyo challenged (1) sufficiency of evidence for three counts alleging breast-touching, (2) a Confrontation Clause violation tied to limiting cross-examination of G.S., and (3) admission of Felicia’s outcry testimony without a §38.072 hearing.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Arroyo) | Held |
|---|---|---|---|
| Sufficiency re: breast-touching (counts 2,4,6) | K.E.’s repeated description that appellant touched her "chest" and the pattern of touching supports inference of breast contact | "Chest" is broader than "breast" (Nelson); K.E. never used the statutory term, so evidence is insufficient | Reversed and rendered acquittal on counts 2,4,6 — evidence insufficient to prove breast contact |
| Sufficiency re: genital-touching (counts 1,3,5) | Pattern of touching (hand up skirt, under clothing, one occasion said "vagina") permits inference that genitals were touched each time | Testimony was cursory/ambiguous for some counts and did not always use the word "vagina" | Affirmed for counts 1,3,5 — evidence sufficient to support genital-contact convictions |
| Confrontation Clause re: limiting G.S. testimony about uncles | State limited collateral-name disclosure as irrelevant/Rule 412; trial court controlled scope | Restricting ability to elicit names impeded confrontation and ability to show confusion/misidentification | Not preserved for appellate review (defense did not specifically assert Confrontation Clause at trial); complaint waived |
| Admission of outcry witness (Felicia) without §38.072 hearing | State had given pretrial notice of outcry witness and similar substantive evidence was admitted from K.E. directly | Trial court failed to hold required out-of-jury article 38.072 reliability hearing; admission was error | Error assumed but held harmless given K.E.’s detailed, similar testimony; conviction affirm/partial reversal unaffected |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (legal sufficiency standard for criminal convictions)
- Nelson v. State, 505 S.W.2d 551 (court held testimony "he rubbed my chest" insufficient to prove touching of "breasts")
- Clark v. State, 558 S.W.2d 887 (child’s nontechnical descriptions may suffice to identify sexual-contacted body parts)
- Long v. State, 800 S.W.2d 545 (proponent must establish compliance with article 38.072 once hearsay objection invokes statute)
- Johnson v. State, 967 S.W.2d 410 (harmless-error standard for nonconstitutional errors in criminal cases)
- Reyna v. State, 168 S.W.3d 173 (failure to timely and specifically assert Confrontation Clause at trial waives appellate review)