So here's a squirrely situation I've never encountered.

Child sexual abuse victim is interviewed and says that she outcried to a particular person and tells the details of what she told this person, which are sufficient to argubly make that person the 38.072 outcry. Mom of child is interviewed and says that the initial outcry witness told her of the child's outcry and, in response, mom goes to the child, who then gives the mom an even more complete and detailed outcry.

Initial outcry person is interviewed and she unequivocally denies ever being told anything by the child. Did I mention that this person is very close to the perp???

Anyway, State gives notice of MOM as being the 38.072 outcry witness, not the first lady, since she's still denying. Defense objects to mom testifying to the hearsay since child and mom both agree that she's really not the first outcry, but the other lady is just fudging on it.

Anyone know of a similar case or have a good argument?

Foreman v. State, 995 S.W.2d 854, 957 (Tex.App.-Austin 1999, pet. ref'd) (trial judge did not abuse his discretion in determining counselor was outcry witness even though child initially told her mother and stepfather when the mother and stepfather either could not or did not want to remember child making any statement at all);

Anderson v. State, 831 S.W.2d 50, 53-54 (Tex.App.-Fort Worth 1992, pet. ref'd) (although evidence showed child first told her mother about alleged abuse, trial judge did not abuse his discretion in determining mother was not outcry witness when mother denied child told her and testified she did not believe child).

Villanueva v. State, 209 S.W.3d 239, 247
Tex.App. - Waco 2006, no pet.)("while it is clear that A.H. first told her mother about the incident, her mother denied that A.H. made an outcry that Villanueva had rubbed his penis against her. The trial court could have concluded that A.H. did not tell her mother the 'how'-all of the details-of Villanueva's conduct. The trial court also noted that the mother was aligned with Villanueva at trial.")


Pinales v. State, No. 05-01-00765-CR, 2002 WL 77256 at*3(Tex.App. - Dallas January 22, 2002, no pet.) ("L.P., a stroke-victim, could not answer clearly the majority of the questions asked her. Thus, even assuming Y.P. had told L.P. any details of the assault, we would nevertheless conclude the trial judge did not abuse his discretion in concluding Smith was the proper outcry witness.")

Schuster v. State, 852 S.W.2d 766, 768 (Tex.App.-Fort Worth 1993, pet. ref'd)("We believe the trial judge could have reasonably determined from this testimony that A.K.'s statement to her mother was merely a general allusion that something in the area of child abuse was going on rather than a clear description of the offense.")

Thanks David.
The lawyer who called me in an absolute panic will be very relieved!