Opinion by Justice Whitehill

On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F12-47067-Y

MEMORANDUM OPINION

Before Justices Lang, Brown, and Whitehill
Opinion by Justice Whitehill

A jury convicted appellant of continuous sexual abuse of a child under fourteen years of age (KE) and assessed punishment at ninety-nine years imprisonment and a $10,000 fine. Appellant challenges the trial court's judgment in sixteen issues. We affirm.

I. Background

Because the facts and procedural posture are well known to the parties, we discuss only those facts germane to the issues raised.

KE, the complainant, was sixteen years old when she testified at trial.

Appellant was married to Teresa McKinney, KE's mother, and KE met him when she was six years old.

When KE was between the ages of six and eleven, appellant touched or digitally penetrated her vagina fifty to one-hundred times. KE was eleven years old the last time appellant inappropriately touched her.

In 2011, at age thirteen, KE told her cousin and her aunt about the abuse. She also told her mother, who confronted appellant about the abuse. But he denied doing anything wrong.

Appellant then sat in KE's bedroom with her and her mother, handed KE the phone, and told her that she could call the police but doing so would ruin everyone's lives. At that time, KE stayed silent because she was confused as to why her mother was not doing anything about the situation and did not want to ruin everybody's lives.

KE later became depressed and anorexic, and was hospitalized. After being released from the hospital, KE began seeing a counselor.

In February 2012, CPS responded to a claim that KE was being sexually abused. A CPS worker and then a forensic examiner named Jessie Gonzales interviewed KE. KE told Gonzales that she had been sexually abused more than fifty but less than one hundred times from the ages of six to eleven. KE gave Gonzales sensory details regarding KE's abuse by appellant.

Appellant filed several pretrial motions, and the court conducted several hearings, including a combined rule 705-outcry witness hearing, after which the trial court ruled that Gonzales was the proper outcry witness.

The trial lasted four days, and five witnesses testified. The witnesses included among others: KE, her mother, Gonzales, and officer Mayne who had investigated the case.

When the evidence closed, the jury found appellant guilty of continuous sexual abuse of a child under fourteen years of age.

During the trial's punishment phase, the trial court admitted, over appellant's objection, evidence of appellant's prior injury to a child conviction. The jury assessed punishment at ninety-nine years imprisonment and a $10,000 fine. The trial court pronounced and entered judgment accordingly, and appellant appealed.

II. Analysis

A. First Issue: Are the missing or illegible parts of the reporter's record material to this appeal?

Appellant asserts that he is entitled to a new trial because one volume of the reporter's record regarding a July 28, 2014 hearing is missing and nine pages from August 1, 2014 hearing record are illegible, and those missing and illegible pages are necessarily material to his appeal regarding the trial court's rulings regarding the subjects of those hearings. We disagree.

An appellant is entitled to a new trial if he establishes that: (1) he timely requested a reporter's record; (2) without his fault, a significant portion of the electronic recording of the proceedings have been lost, destroyed, or are inaudible; (3) the lost, destroyed, or inaudible portion of the reporter's record is necessary to resolve the appeal; and (4) the lost, destroyed, or inaudible portion of the reporter's record cannot be replaced by agreement of the parties. See TEX. R. APP. P. 34.6 (f); Kirtley v. State, 56 S.W.3d 48, 49 n.1 (Tex. Crim. App. 2001).

Appellant must show that the missing record is "necessary to the appeal's resolution." TEX. R. APP. P. 34.6 (f). The question of whether a missing reporter's record is necessary to an appeal's resolution is essentially a harm analysis; if the missing portion of the record is not necessary to the appeal's resolution, losing that part of the record is harmless and a new trial is not required. Routier v. State, 112 S.W.3d 554, 571-72 (Tex. Crim. App. 2003); Jimenez v. State, 307 S.W.3d 325, 334 (Tex. App.—San Antonio 2009, pet. ref'd).

In a prior order, we concluded that subsections (1), (2), and (4) of rule 34.6 (f) listed above have been met. Thus, the only remaining question regarding this issue is whether the missing and illegible portions of the record are necessary to resolve this appeal.

The missing record parts concern a July 28, 2014 hearing at which several motions were presented. The trial court denied those motions by an August 1 written order. The illegible pages are from the transcript of an August 1, 2014 rule 705 hearing regarding the outcry witness.

Appellant, however, admits that, "[T]he subject matter of what occurred at the [July 28th] hearing can be partially determined from reference to other parts of the record." He also states that the issues addressed at the July 28 hearing are "included in points of error 2-13 and 15 in Appellant's brief." Although appellant contends that the missing and illegible material "relates to the issues on appeal," which is not the same as being "necessary to resolve the appeal," he does not specify how or why that is so.

To the contrary, the fact that the issues were included in several of appellant's points of error shows that appellant was not prevented from raising and briefing the issue.

Moreover, appellant does not demonstrate how the presentation of his fifteen other appellate issues was adversely impacted, or that he was foreclosed from raising some additional issue. For example, he does not identify (i) any lost or mangled exhibits from those motions and hearings or (ii) any missing testimony concerning disputed fact issues that the trial court had to resolve. He instead relies on the unsupported assumption that, because parts of the record concerning challenged trial court rulings are unavailable, his ability to challenge those rulings was necessarily harmed. But that is a non-sequitur. Without more specific indications tying the missing or illegible parts of the record to his claimed inability to present his appellate arguments, appellant has not shown grounds for reversal. See Haule v. State, No. 03-04-00802-CR, 2006 WL 191906, at *4-5 (Tex. App.—Austin Jan. 26, 2006, pet. dism'd) (mem. op.) (speculation about error being reflected in lost portions of the record does not establish that record is necessary to appeal's resolution).

Furthermore, the parties argued all of appellant's issues using citations to the available record. And, as illustrated by our discussion of the remaining issues, appellant's arguments are well developed based on the record. Thus, the record is sufficient. See, e.g., Gaston v. State, 63 S.W.3d 893, 899 (Tex. App.—Dallas 2001, no pet.) (available clerk's record sufficient to inform counsel about whether appealable issues existed).

Accordingly, for the above reasons, we conclude that appellant has not shown that any missing or material parts of the record are material to resolving appellant's appeal. We thus resolve appellant's first issue against him. B. Second, Third, Fourth, Fifth, and Sixth Issues: Did the trial court err in admitting the outcry testimony?

Jessie Gonzales testified as the outcry witness in this case. Appellant's second, third, fourth, fifth, and sixth issues complain about her testimony because: (i) Gonzales was not the proper outcry witness; (ii) the testimony was beyond the scope of the State's notice; (iii) notice was not adequate under penal code § 38.072; and (iv) the testimony was inadmissible hearsay.

1. Standard of review and applicable law

Article 38.072 of the Texas Code of Criminal Procedure concerns the admissibility of certain hearsay evidence in specified crimes against a child younger than 14 years old or a person with disabilities. See TEX. CODE CRIM. PROC. ANN. art. 38.072. Because it is often traumatic for children to testify in a courtroom setting, especially about sexual offenses committed against them, the legislature enacted article 38.072 to make admissible the testimony of the first adult in whom a child confides regarding sexual abuse. Martinez v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. App. 2005).

The child's statement to the adult is commonly known as the "outcry," and the adult who testifies about the outcry is commonly known as the "outcry witness." See Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Outcry testimony admitted pursuant article 38.072 is considered substantive evidence, admissible for the truth of the matter asserted in the testimony. Duran v. State, 163 S.W.3d 253, 257 (Tex. App.—Fort Worth 2005, no pet.).

An outcry is admissible over a hearsay objection if (i) notice of the outcry witness and a written summary of the statement is given to the adverse party at least fourteen days before the hearing; (ii) the trial court conducts a hearing outside the presence of a jury and finds the statement "is reliable based on the time, content, and circumstances of the statement"; and (iii) the child is available to testify. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b). Article 38.072's notice and hearing requirements are mandatory and must be met for an outcry statement to be admissible over a hearsay objection. See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).

Trial courts have broad discretion when deciding which witnesses qualify as outcry witnesses, and appellate courts review those determinations for an abuse of discretion. Garcia v. State, 792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990); Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref'd).

2. Did the trial court abuse its discretion in determining that Gonzales was the proper outcry witness?

In 2011, KE told McKinney (her mother) that appellant had molested her. But KE did not give her any details. .

Later that year, KE was hospitalized for anorexia. After leaving the hospital, she began seeing counselor Elizabeth Davis. On February 6, 2012, Davis made a note about a phone call she received from Ann Barr, KE's aunt. In that call, Barr told Davis that KE and her sister told her six months ago that appellant "was & has been for years fondling their breasts and vaginal areas when [mother] was not present." Davis then contacted CPS.

CPS worker Angel Raulston interviewed KE in February 2012. In that interview, KE said she told several people about the abuse, including her mother and aunt.

Jesse Gonzales later conducted a forensic interview of KE, who provided details about the abuse.

Appellant's argument that Gonzales was not the proper outcry witness is premised on the timing of KE's statements to Gonzales. In the court below, appellant argued that the proper outcry witness was either KE's aunt (Barr) or KE's mother (McKinney) because KE's statements to them preceded the statements to Gonzales. (Appellant and the State both agreed that Raulston was not the proper outcry witness).

While it is correct that KE told her mother and aunt that she was being abused before Gonzales interviewed her, she did so only in general terms. A proper outcry statement, however, requires more than the child's general allusion to sexual abuse; rather, the child's statements must describe the alleged offense in some discernable manner. See Rodgers, 442 S.W.3d at 552; see also Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref'd).

Here, KE told Gonzales that she had been abused from ages six to eleven. During that interview, KE (i) described appellant touching the inside and outside of her vagina, (ii) said that this occurred in the living room and bedroom of both houses where she lived as a child, and (iii) said that appellant had sexually abused her more than fifty but less than one hundred times. KE also described the last instance of sexual abuse that occurred when she was eleven years old: She was in bed, and woke to appellant rubbing the outside of her vagina; KE put a pillow between them and pulled up the blanket, and appellant left.

Thus, the record shows that Gonzales was the first person to whom KE described, in a discernable manner, two or more acts of sexual abuse over a period of thirty or more days. Consequently, we do not conclude that the trial court abused its discretion in determining that Gonzales was the proper outcry witness. See Ramirez v. State, No. 05-10-00139-CR, 2011 WL 1549560, at *2 (Tex. App.—Dallas April 26, 2011, pet. ref'd) (mem. op.).

3. Was it error to admit the testimony because the State did not give proper notice?

On June 30, 2014, the State provided defense counsel with two notices of outcry statements. One notice listed "Jesse Gonzalez." The other notice listed "Angel Raulston." Both notices summarized the outcry as follows:

As a continuing course of conduct, the defendant contacted the complainant's genitals with his hand.

As a continuing course of conduct, the defendant penetrated the complainant's sexual organ with his finger.

An outcry hearing was conducted on August 1, 2014, three days before trial began. At the hearing's conclusion, the trial court ruled that appellant had sufficient notice because he had been given a redacted copy of Gonzales's interview sometime before trial and had the benefit of previewing her testimony at the outcry hearing.

Appellant argues that the outcry notice was insufficient, the outcry testimony was beyond the scope of the notice, and he was not given an adequate summary of the outcry before trial. He further argues that the State did not provide him with notice of the outcry content fourteen days before trial. We agree that the State failed to comply with the statutory requirements and that the notice given was inadequate. Nonetheless, for the reasons discussed below, we disagree with appellant's argument.

"The hearsay exception for outcry is applicable only if the statute's stringent procedural requirements are met." Bays v. State, 396 S.W.3d 580, 591 (Tex. Crim. App. 2013); Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). To that end, the written outcry summary must give the defendant adequate notice of the content and scope of the outcry testimony, and must be more than a general allusion to sexual abuse. Davidson v. State, 80 S.W.3d 132, 136 (Tex. App.—Texarkana 2002, pet. ref'd). The notice is sufficient if it reasonably informs the defendant of the essential facts related in the outcry statement. See Owens v. State, 381 S.W.3d 696, 704 (Tex. App.—Texarkana 2012, no pet.)

Thus, for example, a notice with only two phrases describing the alleged abuse (i) "then we done it," and (ii) "he dug his finger up my tete hole," did not give the defendant sufficient notice as to the scope and content of the outcry testimony the State planned to introduce. See Davidson, 80 S.W.3d at 137. Likewise, a statement that the defendant "kissed and touched" the complainant, but which did not state that the defendant bothered her, made her touch him, threatened her, or told the complainant he wanted to live with her was not a sufficient summary of the testimony the State would offer. See Gay v. State, 981 S.W.2d 864, 866 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd).

In Biggs v. State, the appellate court held that the State's summary provided to the defendant was deficient because it provided little more information than was contained in the indictment and did not summarize the detailed information that the victim had related to her mother about the "games" the victim played with the defendant. Biggs v. State, 921 S.W.2d 282, 285 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd). The summary in that case read: "On June 29, 1991 the Defendant had sexual contact with [J.C.] and also exposed his genitals to her while she was at the Defendant's home visiting the Defendant's daughter." Id.

Here, however, Gonzales testified in detail about the outcry. That testimony included details about where the sexual abuse occurred, who was present, how many times the abuse occurred, KE's description of sensory details, KE's demeanor, and the last time the abuse occurred. There is no question that the State's notice failed to provide any of these details. In fact, the State's notice provided less information than the indictment. Although the notice need not be a detailed summary, it must be more than a general allusion to sexual abuse. See Thomas v. State, 1 S.W.3d 138, 140 (Tex. App. —Texarkana 1999, pet ref'd).

The State maintains that appellant had a transcript of the forensic interview, as well as a preview of Gonzales's testimony at the August 1 outcry hearing. While these may be relevant facts for a harm analysis, they are not relevant to whether the State met its mandatory statutory requirements.

When the statutory requirements are not met, the hearsay exception does not apply to the outcry testimony. Cf. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (compliance with statute necessary to make testimony admissible). Because the requirements were not met here, the trial court erred in admitting Gonzales's testimony. We must, however, consider whether the error harmed appellant.

4. Did the erroneously admitted testimony harm appellant ?

The erroneous admission of outcry testimony in violation of Article 38.072 is non-constitutional error. See TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

Pursuant to Texas Rule of Appellate Procedure 44.2(b), a non-constitutional error must be disregarded unless it affected the defendant's substantial rights. That is, the error must have had a substantial and injurious effect or influence in determining the jury's verdict. TEX. R. APP. P. 44.2(b); see Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).

We will not overturn a criminal conviction for non-constitutional error if we, after examining the record as a whole, have fair assurance that the error did not influence the jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93. When applying this test, we consider the source of the error, the extent to which the error was emphasized, potential collateral implications, the weight a juror might place on the error, and the possible repetition of the error by the State if the error is declared harmless. See Gabriel v. State, 973 S.W.2d 715, 720 (Tex. App.—Waco 1998, no pet.) (citing Harris v. State, 790 S.W.2d 6568, 587 (Tex. Crim. App. 1989)).

The notice requirement's purpose is to prevent the defendant from being surprised by the outcry testimony. Gay v. State, 981 S.W.2d 864, 866 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). Thus, when the error involves noncompliance with Article 38.072's notice requirement, we also consider whether the defendant was surprised by the outcry testimony. See Zarco v. State, 210 S.W.3d 816, 832 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Accordingly, any error in an outcry notice's substance is harmless when there is no indication the defendant was surprised. Owens, 381 S.W.3d at 704.

In addition, any such error is harmless if the same or similar evidence is admitted without objection at another point in the trial. Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).

After reviewing the entire record here, we conclude that the trial court's error in admitting the outcry evidence despite the State's deficient notice did not affect appellant's substantial rights.

For example, appellant had a transcript of the forensic interview and access to the prosecutor's file. Appellant also had the opportunity to cross-examine Gonzales at the outcry hearing. Thus, appellant had prior actual notice of the outcry testimony. As a result, appellant was not harmed by the state's deficient written notice. See Norris v. State 788 S.W.2d 65, 68 (Tex. App.—Dallas 1990, pet. ref'd); see also Davidson v. State, No. 05-99-01158-CR, 2001 WL 55927, at *1 (Tex. App.—Dallas Jan. 24, 2001, no pet.).

Furthermore, KE testified about the sexual abuse, and detailed the same testimony Gonzales gave. There was no objection to the substance of KE's testimony. It is well-established that improperly admitting evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. See Poole v. State, 974 S.W.2d 892, 899 (Tex. App.—Austin 1998, pet. ref'd).

Consequently, we conclude that Gonzales's improperly admitted testimony did not influence the jury, or had but a slight effect. See Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). In so concluding, however, we are mindful of whether holding the error harmless will encourage the State to repeat the error with impunity. We are troubled by the overly broad deficient notice. Nonetheless, we assume that the State will not repeat the error in future cases because reversal would be required if a defendant were able to demonstrate surprise from a deficient summary.

We thus resolve appellant's second, third, fourth, fifth, and sixth issues against him. C. Seventh, Eighth, and Ninth Issues: Did the trial court erred by admitting credibility testimony and by refusing another rule 705 hearing?

Appellant's seventh and ninth issues complain that Gonzales's testimony was improper bolstering and a comment on the child's credibility. He further contends that the trial court erred by refusing his request for another rule 705 hearing. Appellant's eighth issue complains that the trial court erred in allowing testimony from Detective Mayne because he offered an opinion about another witness's credibility. We disagree with all three issues.

1. Gonzales's Testimony.

The State asked Gonzales about her interview protocols, and she explained that the protocol depends on the child's age and what the child knows about why he or she is there. Appellant objected "for all the reasons [he] did in the prior hearing" and because the answer was a "comment on the credibility of the child." The court overruled those objections.

Gonzales then testified in general about the range of emotion children express when being interviewed. She said that there is no set demeanor for an abuse victim, so a child could range from "very upset, crying, to answering questions very nonchalantly without any problem." Appellant objected and requested another Rule 705 hearing. The trial court overruled the objections and denied the requested hearing.

When the prosecutor asked Gonzales what information she would generally have about the allegations of abuse before an interview, appellant asked for and was granted a running objection on his request for a rule 705 hearing. Gonzales then explained that before conducting an interview, she would have a police or CPS report, or both, and sometimes would have spoken to the responding officer.

Gonzales testified that if a child can give a sensory detail about what something looked like, felt like, or tasted like, then the child probably experienced it with her own body. She said that KE gave sensory details when she said that it hurt when appellant put his finger inside her vagina.

Appellant insists that, because of her background and training, the jury considered Gonzales an expert and her testimony about what KE said "was a comment to the jury that what the child said was true." We disagree.

Relying on Wilson v. State, 90 S.W.3d 391, 393 (Tex. App.—Dallas 2002, no pet.), Wiseman v. State, 394 S.W.3d 582, 588 (Tex. App.—Dallas 2012, pet. ref'd) and similar cases, appellant argues that "[t]he DCAC has repeatedly been the source of testimony that is a comment on the credibility of the complaining witness that this court has found to be improper." These cases are distinguishable, and appellant's reliance is misplaced.

In both Wilson and Wiseman, the State's expert testified about the details of statistical studies to prove a minimal number of child sexual abuse allegations are found to be false. Wilson, 90 S.W.3d at 393; Wiseman, 394 S.W.3d at 584. We concluded that admitting the statistical opinion concerning false allegations was error. Wiseman, 394 S.W.3d at 588; Wilson, 90 S.W.3d at 393. In so concluding, we noted that the expert testimony "did not aid, but supplanted the jury in its decision on whether the child complainant's testimony was credible." Wilson, 90 S.W.3d at 393; Wiseman, 394 S.W.3d at 587.

But Gonzales's testimony was different. Appellant complains that her testimony about her training and experience and her explanation about not asking a child suggestive questions "juxtaposed with her recitation of what the child said" equates to a comment that what the child said was true. We are not persuaded.

Gonzales's testimony explained what she does and how she does it. This explanation gave her testimony context (and concerns her credibility, not AE's). Expert testimony that provides useful information to aid the jury in evaluating the testimony of another witness is admissible. Burke v. State, 371 S.W.3d 252, 259 (Tex. App.—Houston [1st Dist.] 2011, pet. dism'd).

Conversely, expert testimony does not assist the jury if it constitutes "a direct opinion on the truthfulness" of a child complainant's allegations. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993) (holding testimony regarding an opinion of truthfulness "does more than 'assist the trier of fact to understand the evidence or to determine a fact in issue'; it decides an issue for the jury."). But, while an expert may not testify that a complainant is truthful, he may testify that a child complainant exhibited symptoms consistent with sexual abuse. Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim. App. 1993).

Here, Gonzales did not testify that KE was credible. She instead related what KE told her during the forensic interview. This testimony was properly admitted. Charley v. State, No. 05-08-01694-CR, 2011 WL 386858, at *4-5, (Tex. App.—Dallas Feb. 8, 2011, no pet.) (mem. op., not designated for publication) (expert was not asked and did not testify that the child was telling the truth; testimony was that child's ability to provide sensory details was important because she would not have been able to do so had she been coached).

Nor was Gonzales's testimony improper "bolstering." Bolstering is "any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantially contributing 'to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence."' Cohn, 849 S.W.2d at 819. But evidence that corroborates another witnesses story, "in the sense that it has an incrementally further tendency to establish a fact of consequence, should not be considered bolstering." Id. at 820. Thus, the fact that Gonzales's testimony corroborated KE's testimony does not render it inadmissible.

Moreover, nothing establishes that another hearing on Gonzales's testimony was required. Appellant had an opportunity to examine Gonzales on the underlying facts and data supporting her opinion during the first rule 705 hearing, and he has not shown what additional examination was required or how another hearing would have altered her testimony's admissibility.

For the above reasons, we resolve appellant's seventh and ninth issues against him.

2. Mayne's testimony

Detective Mayne investigated the sexual abuse allegations. On direct examination, he said that he spoke briefly with KE's mother, Teresa McKinney, but at her request they did not discuss the actual allegations.

When the State asked Mayne if he put a lot of weight on what McKinney had to say, appellant objected that the question called for an opinion about credibility. The trial court overruled the objection. Mayne then replied, "At the time, no. She was siding with the defendant, her husband." He also said that he felt like McKinney was not protective or supportive of KE. Appellant's eighth issue argues this testimony was erroneously admitted, and we agree.

But appellant does not demonstrate how, nor does the record reflect that, this testimony harmed him. See TEX. R. APP. P. 44.2(b). Moreover, Mayne's testimony did not introduce any new evidence into the case, as the mother's lack of support and protection for KE was already apparent from McKinney's and KE's testimony. Accordingly, we resolve appellant's eighth issue against him. D. Tenth, Eleventh, and Twelfth Issues: Did the indictment and notice of extraneous offenses give appellant sufficient notice of the charges and allegations against him?

Appellant argues that the trial court erred in denying his motion to quash the indictment because the indictment did not provide adequate notice of the charge against him. Specifically, he argues that the indictment was deficient because: (i) the "on or about" language applied to conduct that occurred before the statute's effective date; (ii) it does not allege that the two or more acts of sex abuse occurred 30 days or more apart; (iii) it does not identify the particular acts of sex abuse; (iv) it fails to identify the time period that was thirty or more days in duration and is therefore vague and ambiguous; (v) it charges him with being a child molester rather than with engaging in prohibited conduct; and (vi) it does not provide sufficient notice to distinguish the conduct underlying the offense from extraneous conduct. He further asserts that, because the indictment and notice of extraneous offenses are "virtually identical," it is impossible to distinguish which conduct constitutes the offense and which constitutes the extraneous conduct.

1. Standard of Review and Applicable Law

Whether an indictment is sufficient is a matter of law. Smith v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). We therefore review a trial judge's ruling on a motion to quash the indictment de novo. Id. at 13-14.

An accused is guaranteed the right to be informed of the nature and cause of the accusations against him in all criminal actions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). An indictment is sufficient if it charges the commission of the offense in ordinary and concise language in a manner that enables a person of common understanding to know what is meant and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged. TEX. CODE CRIM. PROC. ANN. art. 21.11.

Generally, a charging instrument that tracks a criminal statute's language gives a defendant sufficiently specific notice of the charged offense. State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996). But the constitutionally sufficient notice may also be met by means other than the charging instrument's language. Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009); Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003).

Furthermore, a defendant suffers no harm when a motion to quash is overruled, unless he did not, in fact, receive notice of the State's theory against which he would have to defend. See TEX. CODE CRIM. PROC. ANN. art. 21.19 ("An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.").

2. The Offense and the Indictment

Appellant was charged with continuous sexual abuse of a child under 14 pursuant to TEX. PENAL CODE ANN. § 21.02. Section 21.02(b) provides that a person commits an offense if:

(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

Section 21.02(c) defines "act of sexual abuse" as: any act that violates one or more of the certain listed sex related penal laws, including as applicable here sexual assault under § 22.011 and aggravated sexual assault under § 22.021. Id. § 21.02(c).

A § 21.02 offense is an aggravated first degree felony punishable by life imprisonment or for a term of twenty-five to ninety-nine years. Id. § 21.02(h).

The indictment in this case alleged that on or about September 1, 2007, appellant:

intentionally and knowingly, during a period that was 30 or more days in duration, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against [KE] a child younger than 14 years of age . . . namely by contact between the hand of defendant and genitals of complainant with the intent to arouse and gratify the sexual desire of defendant and by the penetration of the female sexual organ of [KE] by the finger of defendant.

3. Does the indictment fail to specify the time period?

Appellant complains that the indictment fails to limit the conduct to a time on or after the statute's effective date because the indictment states that his conduct occurred "on or about September 1, 2007," which is also the statute's effective date. He further argues that it does not allege that the predicate acts were thirty or more days apart or identify the time period. We disagree for several reasons:

One, as appellant acknowledges, the phrase "on or about" means any time before the presentment of the indictment and within the statute of limitations for the offense charged. See Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000); TEX. CODE CRIM. PROC. ANN. art. 21.02(6).

Two, within those parameters, the State is permitted to prove a date of offense other than the one alleged in the indictment. See Klein v. State, 273 S.W.3d 297, 303 n. 5 (Tex. Crim. App. 2008); State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *9 (Tex. App.—Dallas June 30, 2010, pet. ref'd) (mem. op.).

Three, an indictment need not specify the precise date or a "narrow window of time" within which the charged offense occurred. Garcia v. State, 981 S.W.2d 683, 685-86 (Tex. Crim. App. 1998). And the State need not specify an exact date on which the sexual abuse began. See Pollock v. State, 405 S.W.3d 396, 404 (Tex. App.—Fort Worth 2013, no pet.).

Four, the court of criminal appeals has cautioned that "courts cannot impose unrealistic expectations regarding proof of when an offense actually occurred" because a child often does not know the date that he or she was sexually assaulted. Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006).

Five, appellant was indicted on April 16, 2012, and there is no limitations period for aggravated sexual assault of a child. TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(B) (applying to section 22.021(a)(1)(B) of the Penal Code)..

Therefore, alleging that the conduct occurred "on or about September 1, 2007" charged appellant with conduct that occurred during a period of thirty days or more between September 1, 2007 and April 16, 2012. In addition, the indictment specified that the conduct occurred "during a period that was 30 or more days in duration," and tracks the statutory language. Under these circumstances, we conclude that the indictment was sufficient to provide notice regarding the timing of the offense. See State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996).

4. Is the indictment deficient for failing to identify specific acts of sexual abuse?

Appellant further argues that the indictment is deficient because it generally alleges two different acts of sexual abuse but does not (i) say how many times the acts occurred or (ii) give any specific facts concerning the acts relied on for conviction. He also claims that there is no distinction between conduct underlying the offense and extraneous conduct. As discussed below, we do not accept appellant's arguments.

a. Was the State required to allege details regarding specific acts of abuse?

Here, the indictment tracked the statutory language and provided notice of two sexual acts—contact between appellant's hand and KE's genitals and penetration of KE's sexual organ by appellant's finger. The State, however, is not required to prove the specific number and dates of the underlying acts of sexual abuse. Davis v. State, No. 10-12-00025-CR, 2012 WL 6674429, at *2 (Tex. App.—Waco Dec. 20, 2012, pet. ref'd); see also Garcia v. State, No. 05-10-00291-CR, 2011 WL 3199447, at *8 (Tex. App.—Dallas July 28, 2011 pet. ref'd) (state need not allege particular dates). The acts' specific dates, as well as the State's factual support for its allegations, are evidentiary in nature and the State need not plead evidentiary facts that are not essential to notice. State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *9 (Tex. App.—Dallas June 30, 2012, pet. ref'd) (mem. op.); Davis, 2012 WL 6674429 at *2. Therefore, the indictment was not deficient for failing to specify the specific dates or facts underlying the allegations.

b. Was the Sate required to distinguish the underlying and extraneous conduct?

The indictment is also not deficient for not distinguishing between the underlying and extraneous conduct. The notice of extraneous offenses included notice of contact between appellant's hand and KE's genitals and penetration of KE's sexual organ by appellant's finger, as did the indictment.

Despite his claimed confusion, appellant later argues that the abuse that occurred before the statute's effective date had to be extraneous conduct. We agree. And we find no reason why not further distinguishing between the extraneous and underlying conduct rendered the indictment itself deficient.

Significantly, appellant does not explain how the characterizing the same types of acts as extraneous or part of the underlying offense was in any way material to preparing his defense. See Hodge v. State, 756 S.W.2d 353, 355 (Tex. App.—Dallas 1988, no writ) (defendant must demonstrate how inadequate notice impaired ability to prepare a defense). The issue is whether the indictment provided sufficient notice of the charged offense, and we conclude that the notice was sufficient.

We thus resolve appellant's tenth, eleventh, and twelfth issues against him.

E. Thirteenth Issue: Did the trial court err by not requiring the State to elect the incidents of conduct that constituted the offense of continuous sexual abuse of a child?

Appellant asserts the trial court erred because it did not require the State to elect the specific incidents of conduct that comprised the offense. Stated differently, appellant argues that the State should have been required to identify the particular acts or conduct relied on for conviction. He contends that the general law requiring the State to elect between multiple incidents of conduct applies here. We disagree.

When charging multiple offenses in a single indictment, the code of criminal procedure requires that each separate offense be set out in a different count. TEX. CODE CRIM. PROC. ANN. art. 21.24(a). Within a single count, different methods of committing the particular offense may be alleged within paragraphs. TEX. CODE CRIM. PROC. ANN. art. 21.24(b); Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim. App. 2007).

If there is a timely request by a defendant, once the State has closed its evidence, a trial court must order the state to elect the occurrence upon which it intends to rely for a conviction for each alleged offense. Phillips v. State, 193 S.W.3d 904, 912 (Tex. Crim. App. 2006) (emphasis added). This is because the jury must "reach a unanimous verdict about the specific crime the defendant committed," which means that "the jury must agree on a single and discreet incident that would constitute the commission of the offense charged." Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (emphasis added). Otherwise, if the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions, "non-unanimity may occur." Id. at 772.

That is not the case here. The State did not charge multiple instances of the same offense. Instead, the indictment charged appellant with a single offense that is committed through a continuing course of repetitive conduct. Indeed, the legislature enacted the continuous sexual abuse of a child statute to hold a defendant criminally responsible, through a single conviction, for all of the sexual acts between him and his victim(s) during a designated time period. See Price v. State, 434 S.W.3d 601, 608 (Tex. Crim. App. 2014).

As applied here, the offense included all acts from September 2007 until April 16, 2012. Because the offense charged appellant with a continuing course of conduct, it included all acts during that time period Therefore, on these facts, we cannot conclude that the trial court erred in refusing to require the State to elect two specific acts out of a continuing course of conduct. We resolve appellant's thirteenth issue against him.

F. Fourteenth Issue: Did the trial court err in admitting appellant's prior criminal record?

Appellant's fourteenth issue argues that the trial court erred during the punishment phase by admitting evidence of his previous conviction for injury to a child. According to appellant, admitting that evidence was erroneous because he had no notice and was not provided with the documentary evidence regarding the conviction before trial. We overrule this issue.

We review a complaint regarding the admission or exclusion of evidence at the trial's punishment phase under an abuse of discretion standard. Peinado v. State, No. 05-14-00418-CR, 2015 WL 4931492, at *7 (Tex. App.—Dallas Aug. 18, 2015, no pet.) (mem. op.).

The trial court ordered the State to give appellant notice of extraneous offenses and produce prior conviction records before trial began. The State provided a notice of extraneous offenses prior to trial. That notice included several offenses, including continuous sexual abuse of another child, CM, and an injury to a child offense involving CM. As to the injury to a child offense, the notice stated:

On or about September 3, 2002, in Collin County, Texas Defendant forced [CM], a child then younger than fourteen years of age and not the spouse of Defendant, to perform oral sex on him (the defendant). This offense was pled down to an Injury of Child.

During the trial's punishment phase, the State offered documentary evidence concerning that injury to a child offense. Appellant objected that he had not been provided with copies of the documents as required by the court's discovery order. The trial judge observed that defense counsel was appellant's lawyer in the injury to a child case, and said that while there was a technical breach of the discovery order, it was not a substantive breach. When appellant complained that he had just gotten the documents that morning, the prosecutor replied that he had just gotten them that day too. Although he had not (recently) seen copies of the documents, defense counsel admitted that he "might have guessed they're going to use the prior."

The documents, introduced into evidence as State's exhibit 7, include a community supervision order for the injury to a child offense and a subsequent order discharging appellant from further supervision. The trial court overruled appellant's objection, and admitted exhibit 7 into evidence.

Appellant complains that his notice was inadequate because the State's notice of extraneous offense refers to a date on or about September 3, 2002, and exhibit 7 references an offense date of March 1, 2001. We are not persuaded.

The court of criminal appeals in Hernandez v. State held that a trial court errs by admitting objected-to extraneous offense evidence when the State failed to comply with Rule 404(b)'s notice provisions. 176 S.W.3d 821, 822 (Tex. Crim. App. 2005). This is so because "Rule 404(b) literally conditions the admissibility of other-crimes evidence on the State's compliance with the notice provision of Rule 404(b)." Id. at 824. And, because Rule 404(b)'s notice requirement is a rule of evidence admissibility, error of admitting extraneous offense evidence despite the State's failure to properly notify the defendant is subject to a rule 44.2(b) harm analysis. See id. at 825; see also TEX. R. APP. P. 44.2(b). Even so, that harm analysis is atypical. See Hernandez, 176 S.W.3d at 825.

In Hernandez, the court clarified that rather than conduct "the usual harm analysis applied to the improper admission of evidence," a reviewing court's harm analysis begotten by the State's non-compliance with 404(b)' notice requirements concerns whether the defendant was unable to prepare his defense. Id. That is, we consider how the lack of notice harmed the defendant's ability to prepare a defense to the wrongfully admitted evidence and not whether the admitted evidence injured the jury's verdict. Id.; Padilla v. State, 254 S.W.3d 585, 593 (Tex. App.—Eastland 2008, pet. ref'd).

Factors that reviewing courts have considered in analyzing this specific type of harm include: whether

(i) the defendant was surprised by the evidence, Hernandez, 176 S.W.3d at 822-23;

(ii) the admission of the evidence was the result of prosecutorial bad faith, Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—Austin 2002, no pet.);

(iii) the defendant was unable to prepare cross-examination or present mitigating evidence, McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005);

(iv) the defendant moved for a continuance so that he might defend against the evidence, Webb v. State, 36 S.W.3d 164, 183 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (en banc); and

(v) the defendant has demonstrated how his defensive strategy might have been different had the State explicitly notified him of its intention to introduce the evidence. Hernandez, 176 S.W.3d at 823.

Here, however, appellant had notice of the offense itself. And even if we assume that the State's failure to timely provide photocopies equates to a lack of notice, we cannot conclude appellant suffered resulting harm. Having been appellant's lawyer regarding the prior offense, and having anticipated the State's use of the prior offense in this trial, counsel (and thus appellant) could not reasonably claim to have no notice or be surprised.

Furthermore, the documents appellant received on the day of trial, while untimely, simply document the offense about which the State provided notice. And the State received those documents the same day. There is no indication that the date discrepancy caused any surprise or confusion, or inhibited appellant's cross-examination or defense. And as the trial judge observed and appellant concedes, there is no evidence of the State acting in bad faith. Under these circumstances, we conclude that appellant did not establish harm. We thus resolve appellant's fourteenth issue against him.

G. Fifteenth Issue: Did refusing appellant's requested jury instruction concerning continuous sexual abuse of a child harm appellant?

Appellant's fifteenth issue complains that the trial court erred by refusing his proposed jury instructions regarding the element of "during a period that is 30 or more days in duration." Specifically, appellant requested that the court instruct the jury that:

A person commits the offense of continuous sexual abuse of a young child, if, during a period that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the time of the commission of each of the acts of sexual abuse, he is 17 years of age or older and the complainant is a child younger than 14 years of age.

Appellant also asked the court to instruct the jury that:

(i) it should find "that at least one act of sexual abuse, if any, occurred on or before (a particular date), and one act of sexual abuse, if any, occurred on or after (a particular date at least 30 days after the prior date);"

(ii) "at least one of the foregoing acts, if any, occurred on or before (a particular date), and at least another one of the foregoing described acts took place on or after (a particular date at least 30 days after the foregoing date)."

The court denied these requested instructions.

1. Standard of Review

Appellate review of purported jury charge error involves a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether error occurred. Id. Second, if error occurred, we analyze that error for harm. Id.

If there is error in the charge, we apply separate standards depending on whether the defendant timely objected. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). When, as here, the defendant timely objected to the jury instruction, reversal is required if there was some harm to the defendant. Id.

2. Was the trial court's refusal of the requested instructions error?

Appellant contends that the charge was ambiguous because it could be interpreted to mean he "committed two acts of abuse within a period of 30 days or over a period longer than 30 days." We disagree.

A jury charge is fundamentally defective if it omits an essential element of the offense or authorizes conviction on a set of facts that do not constitute an offense. Zuckerman v. State, 591 S.W.2d 495, 496 (Tex. Crim. App. 1979). To establish continuous sexual abuse of a child, the State must prove that: (i) the defendant "commit[ed] two or more acts of sexual abuse," (ii) "during a period that is 30 or more days in duration," and (iii) "at the time of the commission of each of the acts of sexual abuse, the [defendant was] 17 years of age or older and the victim [was] a child younger than 14 years of age." TEX. PENAL CODE ANN. § 21.02(b).

The charge's abstract portion here instructed:

A person commits the offense of continuous sexual abuse of a young child if intentionally or knowingly during a period that is 30 or more days in duration, he commits two or more acts of sexual abuse and, at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

A jury is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed, but must unanimously agree that the defendant, during a period that was 30 or more days in duration, committed two or more acts of sexual abuse.

* * *

You are instructed that the State is not required to prove the exact date alleged in the indictment. The term "on or about" the 1st day of September, 2007 means any date prior to the date of the filing of the indictment, April 16, 2012 and after September 1, 2007, the date the law was enacted.

The application paragraph then instructed the jury as follows:

Now, if you find and believe from the evidence beyond a reasonable doubt that the defendant, DONALD RAY MCKINNEY, on or about September 1, 2007, in Dallas County, Texas, during a period that was 30 or more days in duration, when the defendant was 17 years of age or older, intentionally or knowingly committed two or more acts of sexual abuse against [KE], a child younger than 14 years of age, hereinafter called complainant, namely by contact between the hand of defendant and genitals of complainant with the intent to arouse or gratify the sexual desire of defendant or by the penetration of the female sexual organ of complainant by the finger of defendant, then you will find the defendant guilty of continuous sexual abuse of a young child, as charged in the indictment.

Appellant relies on Smith v. State, 340 S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, no pet.) and its progeny to support his argument that the charge allowed the jury to convict him if it found that he committed two acts of sexual abuse, regardless of the time frame. Appellant's reliance on Smith is misplaced.

In Smith, the application paragraph contained the statement, "Now, if you find from the evidence beyond a reasonable doubt that on or about the 1st day of December, 2007, through the 1st day of September, 2008, which said time period being a period that was 30 days or more in duration . . . the defendant . . . committed two or more acts of sexual abuse. . . ." Id. at 50 (emphasis added). The court concluded that the language lacked clarity because it did not accurately state the law and set out all of the elements of the offense. See id.

Rather than requiring the jury to find that the defendant committed the acts of sexual abuse during a period thirty days or more in duration, the Smith charge simply observed that the period specified in the indictment was thirty days or more. The charge at issue here is different.

Here, the charge's abstract portion tracked the language of the statute. See TEX. PENAL CODE ANN. § 21.02(b). Then, the jury was instructed that the "on or about" language in the indictment meant any date after September 1, 2007, the effective date of the statute, and before April 16, 2012, the date of the indictment. The application paragraph then instructed the jury to find appellant guilty if they found that he committed the requisite acts of sexual abuse during a period that was 30 days or more in duration. (emphasis added). Unlike Smith, this phrase refers to the commission of two or more acts of sexual abuse within the specified time period. Consequently, the charge reflects the structure of the offense set forth in the statute. See id.

Because the charge tracked the applicable statutory language and accurately described the law, we conclude the trial court did not err by refusing appellant's requested instructions. See Knowles v. State, No. 04-12-00180-CR, 2013 WL 1149063, at *5 (Tex. App.—San Antonio March 20, 2013, pet. ref'd) (mem. op.).

Accordingly, we resolve appellant's fifteenth issue against him. H. Sixteenth Issue: Is penal code § 21.02 unconstitutional because it violates the unanimous verdict requirement, due process, and due course of law?

Appellant's sixteenth issue argues that the indictment should have been dismissed because § 21.02 is unconstitutional under the United States and Texas Constitutions. Specifically, he contends that (i) § 21.02 eliminates the requirement that the jury reach a unanimous decision on the underlying acts of sexual abuse that comprise the offense, and (ii) it is fundamentally unfair because it does not charge him with particular criminal acts, but instead seeks to convict him for being a "child molester." Based on our prior opinions, we reject these arguments.

As appellant's brief acknowledges, this court has previously concluded in cases considering the same or a similar argument, that § 21.01 is not unconstitutional. See Render v. State, 316 S.W.3d 846, 858 (Tex. App.—Dallas 2010, pet. ref'd); State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *5-6 (Tex. App.—Dallas June 30, 2010, pet. ref'd) (mem. op.); Blake v. State, No. 05-11-00532-CR, 2012 WL 3089327, at * 1 (Tex. App.—Dallas July 31, 2012, no pet.) (mem. op.); see also Martin v. State, 335 S.W.3d 867, 872 (Tex. App.—Austin 2011, pet. ref'd). Appellant's brief does not advance any new arguments or legal theories in support of his contention that the statute is unconstitutional. Therefore, based on this Court's previous opinions, we conclude the trial court did not err when it denied appellant's motion to quash the indictment.

We thus resolve appellant's sixteenth issue against him.

III. Conclusion

Having resolved all of appellant's issues against him, we affirm the trial court's judgment.

/Bill Whitehill/

BILL WHITEHILL

JUSTICE Do Not Publish
TEX. R. APP. P. 47
141350F.U05

JUDGMENT

On Appeal from the Criminal District Court No. 7, Dallas County, Texas
Trial Court Cause No. F12-47067-Y.
Opinion delivered by Justice Whitehill. Justices Lang and Brown participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered July 18, 2016.