Porfirio Alvarado v. State
05-15-01195-CR
| Tex. App. | Dec 14, 2016Background
- Appellant Porfirio Alvarado was tried before the court for aggravated sexual assault of a child and found guilty; sentenced to 20 years’ imprisonment.
- The State filed an August 11, 2015 "Notice of Outcry Statement" naming Bibana (misspelled "Bibianna") Dominguez, a Dallas Children’s Advocacy Center forensic interviewer, and provided a written summary of the child's statements.
- At trial the parties agreed on the record that Dominguez would be the outcry witness; the victim L.S. also testified at trial.
- Dominguez testified about L.S.’s forensic interview (March 19, 2014), including sensory and event-specific details identifying Alvarado and describing incidents on March 6, 2014 and thereafter.
- Alvarado objected to admission of Dominguez’s testimony on hearsay grounds (arguing Article 38.072 requirements were not met and that Dominguez was not the first adult and/or not over 18); the trial court overruled the objections.
- The court of appeals modified the judgment to delete an inaccurate “Open” plea-bargain entry and affirmed, holding the trial court did not abuse its discretion admitting Dominguez as the outcry witness and that certain objections were not preserved.
Issues
| Issue | Appellant's Argument (Alvarado) | State's Argument | Held |
|---|---|---|---|
| Admissibility of Dominguez’s outcry testimony under Art. 38.072 | Dominguez was not the first adult over 18 to whom L.S. made a statement with event-specific details (mother Huerta‑Flores was); therefore Dominguez’s hearsay testimony was inadmissible. | The record shows (1) parties agreed Dominguez would be the outcry witness, (2) Huerta‑Flores’s statements were general/allusive, and (3) Dominguez’s interview contained the requisite event‑specific details. | The court affirmed: trial court did not abuse its discretion in admitting Dominguez’s testimony as the outcry witness. |
| Notice and witness age under Art. 38.072 §2(b) and §2(a)(3) | State failed to notify that "Bibana" would testify and did not prove Dominguez was over 18 at time of interview. | Notice (August 11 filing) named "Bibianna Dominguez" and other filings and on‑the‑record agreement showed Dominguez was the same person; Dominguez’s testimony established she was over 18. | Objections not preserved at trial; even if preserved, record shows adequate notice and that Dominguez was over 18; claim without merit. |
| Preservation of complaints | Raised on appeal though not specifically preserved at trial. | Must make timely, specific objection and obtain ruling to preserve error. | Court held Alvarado failed to preserve some arguments for appellate review. |
| Clerical error in judgment | N/A | Judgment incorrectly lists "Terms of Plea Bargain: Open" though Alvarado pleaded not guilty and no plea bargain existed. | Court modified judgment to delete "Open" and affirmed as modified. |
Key Cases Cited
- Bays v. State, 396 S.W.3d 580 (Tex. Crim. App. 2013) (describes outcry-statute scope and requirements)
- Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) (outcry witness must be first adult, not the defendant)
- Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) (distinguishes general allusion from event‑specific outcry)
- Sims v. State, 12 S.W.3d 499 (Tex. App.—Dallas 1999) (trial court may find counselor, not mother, was proper outcry witness when mother heard only general allusion)
- Castelan v. State, 54 S.W.3d 469 (Tex. App.—Corpus Christi 2001) (school counselor can be proper outcry witness when earlier report to family was general)
- Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) (trial court’s evidentiary rulings reviewed for abuse of discretion; zone of reasonable disagreement)
- Rodgers v. State, 442 S.W.3d 547 (Tex. App.—Dallas 2014) (standard of review for outcry witness determination)
- Robinett v. State, 383 S.W.3d 758 (Tex. App.—Amarillo 2012) (outcry‑admissibility review)
- Martin v. State, 541 S.W.2d 605 (Tex. Crim. App. 1976) (idem sonans principle for name variations on notice)