Unreported / Non-Citable
Background
Brian Edward Hawley was tried in three consolidated cases for continuous sexual abuse of a child and two counts of indecency with a child by sexual contact. The complainant, identified by the court as Anne, testified that Hawley began abusing her when she was four or five and continued until she was about fifteen. She described repeated genital touching, oral sex, and other sexual conduct occurring over several years.
The jury convicted Hawley on all three charges and assessed fifty years’ imprisonment for continuous sexual abuse and ten years for each indecency conviction. The trial court ordered the sentences to run consecutively. On appeal, Hawley challenged the sufficiency of the evidence and the admission of testimony from Anne’s sister, Amber, and another witness, Kim, concerning alleged sexual offenses against them.
The Court’s Holding
The Ninth Court of Appeals affirmed all three judgments. It held that Anne’s testimony alone was legally sufficient because she described at least two acts of sexual abuse occurring over a period of thirty days or more while she was under fourteen, as required for continuous sexual abuse of a child. Her testimony that Hawley repeatedly touched her genitals and used his genitals, fingers, and mouth during the abuse also supported the two indecency convictions. Assessing her credibility was the jury’s responsibility.
The court also held that the trial court acted within its discretion by admitting Amber’s and Kim’s testimony under article 38.37 of the Texas Code of Criminal Procedure, which permits evidence that a defendant committed certain sexual offenses against children other than the charged victim. Hawley did not make a Rule 403 objection at trial, so his appellate argument that unfair prejudice substantially outweighed the testimony’s probative value was not preserved. His due-process challenge to Amber’s testimony was likewise unpreserved because he did not raise that ground in the trial court.
Key Takeaways
- A child complainant’s testimony may, without corroboration, provide legally sufficient evidence of continuous sexual abuse and indecency with a child.
- Article 38.37 permits evidence of qualifying sexual offenses against children other than the complainant, including for its bearing on the defendant’s character and conduct in conformity with that character.
- A defendant must specifically raise Rule 403 and due-process objections in the trial court to preserve those arguments for appellate review.
Why It Matters
The decision illustrates the substantial deference Texas appellate courts give juries when reviewing the credibility and weight of a child complainant’s testimony. It also underscores that admissibility under article 38.37 and exclusion under Rule 403 are distinct questions requiring distinct trial objections.
Because Hawley did not preserve his Rule 403 or due-process complaints, the court did not reach their merits. The ruling therefore emphasizes the importance of stating each evidentiary and constitutional ground with specificity when the challenged testimony is offered.