Opinion
NUMBER 13-16-00294-CR
02-22-2018
FLORENCIO VALERIO, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court of Gonzales County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Benavides, and Longoria
Memorandum Opinion by Justice Contreras
A Gonzales County jury convicted appellant Florencio Valerio of continuous sexual abuse of a young child, a first-degree felony, and the trial court sentenced him to thirty-five years' imprisonment. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2017 1st C.S.). On appeal, appellant contends that the trial court erred by admitting the outcry testimony of two witnesses. We affirm.
I. BACKGROUND
Appellant was charged by indictment with having committed, from on or about March 1, 2013 through on or about March 30, 2015, two or more acts of sexual abuse against S.V., his daughter, who was then a child younger than fourteen years of age. See id. At the beginning of trial, the trial court held a hearing outside the presence of the jury to determine the admissibility of the testimony of two State witnesses—Kimberly Holmes, a special needs teacher at S.V.'s school, and Lucy Ann Alexander, a forensic interviewer with Gonzales Regional Children's Advocacy Center.
Holmes testified that she was S.V.'s teacher in April of 2015. During a class discussion about physical abuse, S.V. started crying uncontrollably. Holmes asked S.V. if she wanted to discuss anything outside of the classroom, and S.V. said yes. S.V. then told Holmes that her father "puts his face into" her genital area and that she thought this had been going on since the third grade. According to Holmes, S.V. "said that [appellant] would come into her room at night, when she was changing clothes, or when she was asleep, and he would start touching her. . . . She said that her father would say it was a game, and she kept telling me that she didn't want to play the game anymore." On cross-examination, Holmes testified that she reported the outcry to the Department of Family and Protective Services, but she did not mention in her report that S.V. indicated the abuse had been going on since the third grade.
Alexander testified that she performed a forensic interview of S.V. on April 1, 2015. During the interview, S.V. reported "[t]hat her father had been touching her in her vaginal area" and that "he would touch her vagina with his wiener." S.V. told Alexander that "[w]ith her laying down in bed, [appellant] would lie down in bed facing her, and put h[is] arms around her shoulders, and pull her toward him." S.V. stated that "he would unzip his zipper" and "put her . . . underwear and her pants down to her thighs." According to Alexander, S.V. stated that she was in the fifth grade at the time of the interview and the abuse started "last year," it happened again during the summer, and it is still ongoing. When Alexander asked how many times this happened, S.V. "said a lot." S.V. said that appellant asked her not to tell and that "she was afraid that if she told, [appellant] would either go to jail or back to Mexico, and they would never see him."
After hearing argument, the trial court overruled defense counsel's objections and admitted Holmes's and Alexander's outcry testimony. Those witnesses then gave substantially similar testimony before the jury at trial.
Other trial witnesses included a Gonzales County deputy constable who testified that he interviewed appellant with the assistance of an interpreter. A translated transcript of the interview was entered into evidence. In the interview, appellant stated that he touched S.V.'s private parts on two occasions—once to examine her chest after she was hit by a ball, and once to apply cream when she had a rash in her vaginal area—but he denied ever having sex with her. Later in the interview, after the officer informed appellant that a nurse had found evidence of sexual abuse on S.V., appellant conceded that he "molested" S.V. and that he once told her to "watch out for yourself . . . this is semen . . . it was mine and that she could get pregnant by it." He agreed with the interpreter that he "put [his] cock" in her. When the officer asked if the last time he had sex with her was "Sunday," appellant replied, "No. No. Saturday." He stated "I started to play with her and that's what happened. I made a mistake. I—I arouse a lot."
S.V. testified that "[t]he first time I remember is when I was taking a bath, and I finished. My dad—like my mom, my brother, they left. And then my—and I was asleep because I was tired, and then he take my pajamas and my undies off. . . . [A]nd then he unzipped his zipper, and then he like put his wiener to my vagina." S.V. stated that appellant was moving "[l]ike doing pushups" and that his "weiner" went "[i]nside my vagina." She stated this happened "[l]ike more than 30" times. She also stated that appellant would put his mouth inside her vagina, would put his hand in her vagina, and would put his "weiner" "inside my butt." She testified that "white stuff" would come out of his "weiner" and go inside her vagina and on the bed. S.V. reported that this first happened when she was in the fourth grade and that it continued until she was in Holmes's fifth grade class.
A sexual assault nurse examiner (SANE) testified that she examined S.V., and her report from the examination was entered into evidence over defense counsel's objection. The report contains a patient history describing S.V.'s reports that appellant put his penis, hand, and tongue in her vagina, and that it started when she was nine years old. S.V. also reported that she had blood in her stool and her "bottom hurts." The SANE nurse testified that she observed a three-centimeter tear or laceration to the vestibule area of S.V.'s vagina, and that this injury could not have been caused by anything other than penetration of some sort. On cross-examination, the nurse conceded that the "majority" of her report was based on the history that S.V. provided.
A forensic scientist testified that he examined evidence obtained from the SANE examination. There was no semen detected in the samples but there was a presumptive positive for the presence of blood on some underwear.
Appellant testified through an interpreter that he did not sexually abuse S.V., and he denied making the statements attributed to him in the translated police interview transcript. He conceded on cross-examination that he had asked his wife to forgive him.
The jury convicted appellant and this appeal followed.
II. DISCUSSION
By his sole issue on appeal, appellant contends that the trial court erred in allowing the outcry testimony of Holmes and Alexander. We review the admission of evidence for abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006).
Article 38.072 of the Texas Code of Criminal Procedure provides that, under certain circumstances, a third party's testimony of a statement made by a child reporting a sex crime against the child is not inadmissible because of the hearsay rule. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b) (West, Westlaw through 2017 1st C.S.). The statute applies only in prosecutions for certain offenses, including the offense charged here. Id. art. 38.072, § 1(1). At the guilt-innocence stage, the statute applies only to statements that "describe" "the alleged offense." Id. art. 38.072, § 2(a)(1)(A).
Appellant cites Garcia v. State, in which the Texas Court of Criminal Appeals held that, to qualify for the hearsay exception under article 38.072, the outcry statement must describe the alleged offense "in some discernable manner" and "must be more than words which give a general allusion that something in the area of child abuse was going on." 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). Appellant contends that the testimony of both Holmes and Alexander "constituted little more than 'a general allusion that something in the area of child abuse was going on' and did not rise to the level of admissible outcry testimony as required under the law." See id. He asserts more specifically that the outcries, as relayed by the witnesses, "did not provide sufficient detail to determine whether any of the alleged assaults occurred outside of a 30 day window, which is one of the primary elements under the law."
We disagree. The outcries, as testified to by both Holmes and Alexander at the admissibility hearing and during trial, were more than just general allusions to abuse. S.V. told Alexander that appellant was "touching her in her vaginal area" and "would touch her vagina with his wiener," that the abuse happened "a lot," and that it had been going on for over a year. S.V. told Holmes that appellant would "put his face into" her genital area and "touched her" when she was changing her clothes or when she was asleep, and that S.V. thought this had been going on since the third grade. These statements were sufficient to describe the alleged offense. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(1)(A).
Appellant argues that the outcries were inadmissible because, taken individually, they do not support a finding that the acts of sexual abuse took place during a period of thirty days or more, which is an element of the charged offense. See TEX. PENAL CODE ANN. § 21.02. But S.V. told both Holmes and Alexander that the abuse had been going on over a substantial period of time. In any event, individual acts of sexual abuse are considered "manners and means" of committing the offense of continuous sexual abuse of a young child, see Reckart v. State, 323 S.W.3d 588, 601 (Tex. App.—Corpus Christi 2010, pet. ref'd), and appellant cites no authority—nor do we find any—establishing that an outcry must describe the particular manner and means by which the charged offense was committed in order to qualify for the hearsay exception under article 38.072. We conclude that the trial court did not abuse its discretion by admitting this testimony.
Moreover, even if the trial court erred by admitting the testimony of Holmes or Alexander, appellant has not shown that the error would be reversible. The erroneous admission of outcry testimony under article 38.072 is non-constitutional error, which we must disregard unless it affected appellant's substantial rights. TEX. R. APP. P. 44.2(b); Merrit v. State, 529 S.W.3d 549, 556 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (citing Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004)). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Simpson v. State, 119 S.W.3d 262, 266 (Tex. Crim. App. 2003). We will not reverse a conviction for non-constitutional error if, after examining the record as a whole, we have "fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
It is well-settled that the erroneous admission of evidence is generally harmless when the same evidence is admitted elsewhere without objection. Gardner v. State, 306 S.W.3d 274, 293 n.39 (Tex. Crim. App. 2009); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ("[O]verruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.") (citing Wagner v. State, 109 S.W. 169, 169 (Tex. Crim. App. 1908)). This principle has been applied in the context of erroneously-admitted sexual abuse outcry testimony. See, e.g., Padilla v. State, 278 S.W.3d 98, 107 (Tex. App.—Texarkana 2009, pet. ref'd) (finding error in admitting outcry testimony to be harmless where, "for the most part[,] the outcry testimony was a reiteration of evidence already otherwise properly admitted"); Zarco v. State, 210 S.W.3d 816, 833 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding no harm in admitting officer's outcry testimony because the complainant gave "the same testimony [as the officer] gave regarding the abuse"); West v. State, 121 S.W.3d 95, 105 (Tex. App.—Fort Worth 2003, pet. ref'd) (finding no harm in admitting outcry testimony by complainant's mother where complainant previously provided "detailed, factually specific testimony concerning the assault"); see also Dickey v. State, No. 13-15-00303-CR, 2016 WL 3962688, at *3 (Tex. App.—Corpus Christi July 21, 2016, no pet.) (mem. op., not designated for publication) (holding that there would be no harm in erroneously admitting outcry testimony that "was consistent with [complainant's] testimony" and testimony of pediatrician).
Here, S.V. gave specific, detailed testimony at trial regarding the acts of sexual abuse committed by appellant. The evidence at trial also included the SANE nurse's report, which also contained detailed descriptions of abuse, and appellant's own incriminating statements made to police through an interpreter. On appeal, appellant does not contest the admissibility of any of these pieces of evidence. Under these circumstances, we have "fair assurance" that the admission of Holmes's and Alexander's outcry testimony had, at most, "a slight effect" on the jury's verdict. See Johnson, 967 S.W.2d at 417. Therefore, any error in admitting that testimony did not affect appellant's substantial rights and was harmless. See TEX. R. APP. P. 44.2(b).
III. CONCLUSION
We overrule appellant's issue and affirm the trial court's judgment.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 22nd day of February, 2018.