Posted on 2/18/19

The Texas Legislature has been tough on those who commit crimes against children, especially sex crimes. Crimes against children tend to have higher penalties. A defense attorney defending someone accused of a sex crime will often face tough questions from the media regarding those crimes. The defendant will feel pressure to confess and “own” the crime, even without a trial. To that end, it is imperative that someone facing allegations of sexual misconduct obtain strong, aggressive representation who will defend the accused, pursuant to the Texas Constitution and the United States Constitution.

Hearsay Exception

In general, the Texas Rules of Evidence, like the Federal Rules of Evidence, disallow a witness to testify if that testimony is hearsay. Hearsay, in simple terms, is when a witness testifies about what another person said. If John takes the stand and tells the court that Mike told him something, such testimony is hearsay and will be struck. A judge, when providing jury instructions, would tell the jury at the case to disregard John’s hearsay testimony.

Under the Texas Criminal Code, Article 38.072, provides an exception to this hearsay rule called the “outcry” witness. An outcry witness is the first person who hears from a minor about sexual abuse. Depending on the circumstances, a court has the discretion to admit such hearsay evidence of an outcry witness. Each court should decide whether outcry witness testimony is proper on a case by case basis.

Note that a minor in this context is a child under the age of 17 or someone disabled. Outcry witnesses are only allowed as evidence if the nature of the alleged offense was a sex crime or an assault crime.


Note that many cases that are appealed with respect to sex crimes against minors hinge on whether outcry witness testimony was correct and proper. Defendants will often challenge the outcry witness’s testimony as inadmissible hearsay. Statistically, however, such appeals generally fail. This is because an appellate court would generally defer to the trial court’s judgment of whether it properly admitted an outcry witness.

Therefore, if you are accused of a sex or assault crime against a minor, you need a lawyer who will defend you at the trial level regarding how to handle an outcry witness.

Sex Crime Defendants

As is often the case, many children grow up in blended families. When a child alleges sexual abuse, the accused defendant is often a male in the house who is not a blood relative to the child. When these accusations are alleged, the Texas Child Protective Services, better known as CPS, will often get involved. A common scenario is when a mom has small children and a man moves in with the family. A few years later, the mom or a teacher will come forward claiming that the child discussed the man’s sexual abuse of the child with the mom or the teacher. That person will become the outcry witness.

Accused of a crime against a child? Know your rights. Contact the criminal defense firm of Christopher Abel, a board-certified criminal defense attorney.

(image courtesy of Annie Spratt)

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