I am not aware of any cases addressing this issue, so I am asking for thoughts and guidance.

Possibly in response to questioning, child makes outcry of one incident of indecency-touching with sex toy.

Forensic interview child repeats statement about the touching with toy, and makes vague statement about something else happening other times.

In counseling the child clearly states that the touching with the toy had been ongoing and references other types of sexual abuse.

So, in a continuous case, is the outcry witness the first person the child told about any kind of sexual abuse, the first person the child told hinted at tthat the abuse was ongoing, or the first person the child clearly described the extent of the continuing abuse???

My judge wants a trial brief by one week from today. Something tells me that there is no caselaw specifically on point. I am aware of the caselaw that says you can have more than one outcry witness for different offenses, but since "continuous sexual abuse" is all one offense, what effect does that have if any??

Thanks!

From the Texas Criminal Practice Guide:

The requirement that the statements by the child be a "description" is also important in determining who the appropriate outcry witness is. The statute requires that the outcry witness be the first person to whom the child makes a statement that in some discernible manner describes the alleged offense [ Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) statement must be more than words giving general impression that offense may have transpired]. Thus, the outcry witness may not actually be the very first person to whom the child mentions the occurrence of an offense, as long as the child did not provide details of the offense to any person before providing them to the outcry witness [see Garibay v. State, 787 S.W.2d 128, 129-130 (Tex. App., Corpus Christi 1990, pet. ref.) ; Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) child protective specialist is first adult despite referral from teacher who learned of abuse from child; Hanson v. State, 180 S.W.3d 726, 730 (Tex. App., Waco 2005, no pet.) proper outcry witness is adult to whom complainant first tells "how, when, and where" complainant was assaulted].

In one case, the Court of Criminal Appeals affirmed the decision of the trial court to allow an agent of the Texas Department of Human Services to testify as the outcry witness even though the child-declarant had informed several other adults of the offense [ Garcia v. State, 792 S.W.2d 88, 93 (Tex. Crim. App. 1990)] . The first person that the child told, a first grade teacher, was held not to be the outcry witness because the record did not reflect that the child had made more than a general complaint about sexual abuse at home and "the statement must be more than words which give a general allusion that something in the area of child abuse was going on" [see Garcia, 792 S.W.2d at 90 ]. Thus, in order for the child's statement to qualify as an outcry and for the adult to qualify as the first person, the child's statement to that adult must provide sufficient detail to specify the offense alleged [see Reed v. State, 974 S.W.2d 838, 841-42 (Tex. App., San Antonio 1998, pet. ref.) father was proper outcry witness when girls told him how, when, and where a neighbor had touched them even though child protective worker took a more detailed statement the next day; Hinds v. State, 970 S.W.2d 33, 35 (Tex. App., Dallas 1998, no pet.) mother proper outcry witness where complainant first told counselor in general terms but gave mother more detail later; Hayden v. State, 928 S.W.2d 229, 235 (Tex. App., Houston [14th Dist.] 1996, pet. ref.) child protective service worker proper outcry witness although child first told school counselor of abuse because no evidence existed that the child gave the counselor details of the offense; Ford v. State, 908 S.W.2d 32, 36 (Tex. App., Fort Worth 1995, pet. ref.) mother proper outcry witness to abuse of son, even though daughter told teacher of defendant's abuse of both children; Schuster v. State, 852 S.W.2d 766, 768 (Tex. App., Fort Worth 1993, pet. ref.) psychologist proper outcry witness even though complainant told mother first because child was so upset that no details were related; Sims v. State, 12 S.W.3d 499, 500 (Tex. App., Dallas 1999, pet. ref.) child protective services agent proper outcry witness because prior statement to mother not sufficiently detailed; but see Thomas v. State, 1 S.W.3d 138, 141 (Tex. App., Texarkana 1999, pet. filed) proper outcry witness not determined by comparing statements that child gave to different individuals and then deciding which person received most detail, but rather first person to whom child described offense in some discernible manner].

first one given enough to satisfy your offense elements even if scanty and by inference -- who, what, when, where, and 3 times (excludes venue, non-spouse, etc.)