Two step sisters were assaulted by father/stepfather. They tried to tell their moms (who all lived in the same house), moms told the dad, who whipped the girls and nothing happened. Both moms are prosecuted for endangerment.

Now the dad is coming up to trial. The older girl outcried to her teacher at school, a vague reference, and then in more detail to the counselor.

Obviously the moms are hostile witnesses. I'm not sure I can force them to testify because it's against their fifth amendment rights to show that there was an outcry that they ignored. They have waffled about whether or not the believe the girls still, but it's hard to deny the dad's confession.

We are having a 38.072 outcry statement hearing because I want to use the outcry to the teacher at a minimum and possibly to the counselor. How to get over the hurdle that the moms are the first adult?

Do you have the TDCAA book "Investigation & Prosecution of Child Sexual Abuse"? Lots of good info about outcry as well as everything else involved under this topic.

Basically, more than one person can be an outcry depending upon what the child told that person. See Garcia v State, 797 SW2d 88

Each outcry witness for each act should be allowed to testify.--Tear v State, 74 SW3d 555; Turner 733 SW2d at 183; Hermandez 973 SW2d 787

Get the book!

Thanks for the cites and the book rec. I will add it to my request list!

To get around the moms, look at their statements. Did they say that the kids went into detail regarding the offenses? If not, then they are not the outcry. The proper witness is the one who is told in detail. Vague allusions to sexual abuse are not sufficient to cause one to be the outcry witness. Along those lines, the teacher might not be the one either.

Your situation is not uncommon. Frequently, a child tells Mom, who tells the child to shut up and stop talking trash about the live-in boyfriend. This works to your advantage in a strange way because the mom will likely say that the child only made some sideways comment or undefined allegation and did not go into great specificity. That would knock the mom out of running as the outcry.

And yes, you can have multiple outcry witnesses if the child comes out with more stuff with different folks. I had a tenacious little girl who wouldn't stop telling anyone she could find at school. The teachers and counselors did a bang-up job of documenting what they were told. And all this was because the little girl told her grandmother that her uncle was messing with her. The grandmother told her to shut up and tell no one.

I'm happy to say that the defendant is doing mandatory life right now. He had previously been to the pen for...... well, you can guess the rest.

You may also want to look at Foreman v. State, 995 S.W.2d 854. The parents in Foreman did not remember being told about the abuse. The Court held that the outcry was the first adult who can remember and relate at trial the child's statement.

Sounds somewhat similar to your facts.