CROSSOVER: Admissibility of ‘Tee-Tee’ Outcry: Using Hearsay Exceptions to Support Abuse Findings When a Child Recants at Trial
Smith v. State, 14-24-00823-CR, February 19, 2026.
On appeal from the 149th District Court of Brazoria County
Synopsis
The Fourteenth Court of Appeals affirmed convictions for aggravated sexual assault and indecency with a child, holding that the prosecution need only prove “contact” rather than “penetration” under the applicable Penal Code sections. Furthermore, the court clarified that a child’s trial testimony regarding physical pain and the anatomical placement of a defendant’s sexual organ allows a jury to rationally infer prohibited contact, while conflicting outcry testimony remains admissible to resolve evidentiary gaps created by a child’s trial-day recantations.
Relevance to Family Law
For the family law practitioner, Smith provides a critical roadmap for navigating the evidentiary hurdles of a SAPCR or a divorce involving allegations of sexual abuse. Specifically, it reinforces that the absence of medical trauma or a child’s failure to use precise clinical terminology—or even a child’s outright denial of certain acts at trial—does not preclude a finding of abuse. By clarifying that “contact” is the statutory threshold and that outcry testimony can bridge the gap when a child’s memory or willingness to testify falters, this opinion strengthens the position of a parent seeking to restrict access or terminate parental rights based on a child’s spontaneous “outcry” statements to third parties.
Case Summary
Fact Summary
The appellant, Tyler Lynn Smith, was charged with multiple counts of sexual abuse involving the four-year-old son of his then-girlfriend. At trial, the complainant (then seven years old) provided testimony that was medically descriptive but colloquially phrased, stating that the appellant put his “wiener” where the complainant “pooped” and that the act “hurt.” However, the child contradicted his own previous statements regarding another count, denying that the appellant had touched his genitals. To rebut this denial, the State introduced outcry testimony from the child’s paternal grandmother. She testified that while she was drying the child after a bath, he spontaneously stated that the appellant “pinches my tee-tee real hard” and demonstrated the forceful pinch on her thumb. The appellant argued that the evidence was speculative due to a lack of proof regarding penetration and challenged the admissibility of the outcry witnesses under the Code of Criminal Procedure.
Issues Decided
- Whether the evidence was legally sufficient to support convictions for aggravated sexual assault and indecency with a child when the complainant’s testimony focused on placement and pain rather than explicit penetration.
- Whether the trial court abused its discretion in admitting outcry witness testimony where the child’s trial testimony partially conflicted with the outcry statements.
Rules Applied
The Court applied Texas Penal Code § 22.021(a)(1)(B)(iv) and § 21.11(a)(1), noting that both statutes require proof of prohibited “contact” rather than the higher threshold of “penetration.” Under the legal sufficiency standard of Temple v. State, the court viewed all evidence in the light most favorable to the verdict to determine if any rational trier of fact could find the essential elements beyond a reasonable doubt. For the outcry testimony, the court looked to Texas Code of Criminal Procedure Article 38.072, which permits hearsay statements of a child victim if the witness is the first person over 18 to whom the statement was made and the statement is deemed reliable based on time, content, and circumstances.
Application
The court’s analysis centered on the distinction between speculation and reasonable inference. The appellant contended that because the complainant was facing away during the assaults and did not explicitly describe penetration, the jury’s finding was based on guesswork. The Court of Appeals rejected this, explaining that a child’s testimony that a “wiener” was “put into” a specific anatomical location and caused “hurt” is a sufficient factual predicate for a jury to deduce that contact occurred.
Regarding the indecency charge, the court addressed the “recantation” issue. Although the child denied the genital touching at trial, the grandmother’s outcry testimony provided the necessary evidence of contact. The court reasoned that under the standard of review, the jury is the sole judge of credibility; they were entitled to believe the grandmother’s account of the child’s spontaneous outcry over the child’s later denial on the witness stand. The court further noted that the lack of physical trauma found by a SANE nurse did not render the evidence insufficient, as “contact” does not always leave a lasting medical footprint.
Holding
The Court of Appeals held that the evidence was legally sufficient to support the convictions because the statutes for aggravated sexual assault of a child and indecency with a child require proof of “contact,” not “penetration.” The complainant’s testimony regarding the defendant’s actions and the resulting pain provided a sufficient basis for a rational jury to infer prohibited contact.
The court further held that the trial court did not err in admitting the outcry testimony. Conflicts between a child’s trial testimony and their prior outcry statements go to the weight of the evidence, not its admissibility or the legal sufficiency of the conviction, provided the requirements of the outcry statute are met.
Practical Application
This case is a potent tool for litigators dealing with “he-said/she-said” allegations in custody disputes. It confirms that you do not need a SANE report showing physical injury to prevail on a finding of sexual abuse. If your client’s child has made a spontaneous statement to a grandmother, teacher, or caregiver, Smith provides the authority to argue that those statements can override a child’s later hesitation or denial in a high-pressure trial environment. Practitioners should focus on the “spontaneity” and “context” of the outcry to ensure it meets the reliability hurdles.
Checklists
Qualifying the Outcry Witness
- Confirm the witness is the first person over the age of 18 to whom the statement was made.
- Document the “spontaneous” nature of the statement (e.g., during bath time, diaper changes, or unrelated play).
- Verify the witness can testify to the child’s demeanor at the time of the statement (e.g., “upset,” “flat affect,” or “demonstrative”).
- Prepare for a vior dire hearing outside the presence of the jury (or the fact-finder in a bench trial) to establish the time, content, and circumstances of the statement.
Establishing “Contact” in the Absence of Medical Evidence
- Elicit testimony regarding the child’s subjective experience of pain.
- Use anatomical diagrams or “child-speak” terms (e.g., “tee-tee,” “wiener,” “where I poop”) consistently with the child’s vocabulary.
- Focus on the “placement” of the perpetrator’s body parts rather than the “mechanics” of the act.
- Argue the “Reasonable Inference” doctrine: if Part A was “put into” Area B and it “hurt,” contact is the only logical conclusion.
Citation
Smith v. State, 14-24-00823-CR (Tex. App.—Houston [14th Dist.] Feb. 19, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
In the context of a Texas divorce or SAPCR, this ruling can be effectively weaponized to secure a supervised access order or a complete denial of possession under Tex. Fam. Code § 153.004. Because the criminal “beyond a reasonable doubt” standard was met here, a family lawyer can argue that the same facts easily satisfy the “preponderance of the evidence” standard required in civil court.
Strategic litigators should use Smith to counter the common defense that a child’s denial on the stand—often prompted by the trauma of the courtroom or pressure from the abusive parent—invalidates the initial outcry. By citing Smith, you can argue that the court must prioritize the reliability of the initial outcry over a child’s trial-day reticence, especially when the outcry was spontaneous and accompanied by a physical demonstration of the abuse. This case effectively lowers the evidentiary bar for proving abuse by shifting the focus from “medical proof of penetration” to “credible testimony of contact.”
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