                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00175-CR



         DENNIS EUGENE ALLEN, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
               Red River County, Texas
               Trial Court No. CR01915




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                     MEMORANDUM OPINION
         A jury convicted Dennis Eugene Allen of aggravated sexual assault of his minor

daughter, K.A. After entering a plea of true to the State’s enhancement allegation, Allen was

sentenced to fifteen years’ imprisonment. 1 On appeal, Allen argues (1) that the evidence was

legally insufficient to support his conviction, (2) that the trial court erred in concluding Rebecca

Peavy, the Executive Director of The Children’s Advocacy Center of Paris (CAC), was the

proper outcry witness, and (3) that the trial court erred in allowing Peavy to remain in the

courtroom during the testimony of the State’s key witnesses. 2

         We find that the evidence was legally sufficient to support Allen’s conviction and that

Peavy was the proper outcry witness in this case. We find, however, that the trial court erred in

allowing Peavy to remain in the courtroom to hear the testimony of the State’s other witnesses,

but conclude that error was harmless. Therefore, we affirm the trial court’s judgment.

I.       The Evidence Was Legally Sufficient to Support the Jury’s Verdict

         In evaluating legal sufficiency in this case, we must review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found,

beyond a reasonable doubt, that Allen committed the offense of aggravated sexual assault. See


1
 In this case, the State alleged that Allen intentionally or knowingly penetrated K.A.’s sexual organ with his finger
on or about October 8, 2008. Allen also appeals three other convictions of aggravated sexual assault against K.A.
In cause number 06-13-00173-CR, Allen was convicted of intentionally or knowingly penetrating K.A.’s sexual
organ with his finger on or about May 13, 2012. In cause number 06-13-00174-CR, Allen was convicted of
intentionally or knowingly causing K.A.’s sexual organ to contact his mouth on or about May 13, 2012. In cause
number 06-13-00176-CR, Allen was convicted of intentionally or knowingly causing K.A.’s sexual organ to contact
his mouth on or about October 8, 2008.
2
 Allen also argued that the trial court improperly allowed irrelevant testimony regarding a case study involving
pregnant teenagers. We resolved this issue in our opinion in cause number 06-13-00173-CR.

                                                         2
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,

pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous

legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at

917–18 (Cochran, J, concurring). We examine legal sufficiency under the direction of the

Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318–19).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

        Here, the indictment alleged that on or about October 8, 2008, Allen penetrated K.A.’s

sexual organ with his finger. A defendant commits aggravated sexual assault of a child if he

intentionally or knowingly causes the penetration of the sexual organ of a child younger than

fourteen years of age by any means. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B)

(West Supp. 2013).




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            Twelve-year-old K.A. testified that Allen had sexually abused her many times, beginning

in the second grade. K.A. testified that she lived in an apartment complex with Allen in Bogota,

Texas, when she was in the second grade. After describing a 2012 incident of sexual abuse

involving Allen’s digital penetration of K.A.’s vagina, the State engaged K.A. in the following

line of questioning:

                     Q.       [K.A.], is that the first time he’s ever done anything like that?

                     A.       No ma’am. . . .

                     Q.     Was that the first time that he’s ever done anything like that, the
            first time he’s ever messed with you?

                     A.       He has done it more.

                     ....

                   Q.       Did it happen when you were living in those red-looking
            apartments? . . . . Did things like this happen when you were living in those red
            apartments . . . ?

                     A.       Yes.

K.A. described the incident, testifying, “I got scared and I went over to my dad. I went to my

dad and I told him I had a dream. So that’s when he said get in the bed so I got in the bed. I got

up under the covers . . . and he put his left hand in my pants.” K.A. stated that this behavior

happened more than one time while she lived in the Bogota apartments.

            On May 20, 2012, K.A. made an outcry of sexual abuse to her aunt, Valerie Williams.3

At trial, K.A. testified that on that date, “I told my Aunt Valerie that my dad had been doing

nasty stuff to me . . . [and] messes with me with his fingers.” After Williams reported K.A.’s

3
    At trial, K.A. also testified about instances of sexual abuse occurring on May 13, 2012.
                                                             4
allegations, K.A. was taken to the CAC, to undergo a forensic interview conducted by Peavy.

During this interview, K.A. reported this incident as well as several other instances of abuse to

Peavy.

         Peavy testified:

         [K.A.] told me that there was an apartment that was in Bogota and she was scared
         to sleep by herself so she would sleep with her dad and would wake up to his
         fingers -- and she would kind of make this wiggling-finger motion when she said
         that. And he once did it with his tongue. . . . She talked about how he had his
         fingers on her and he was telling her how he could use his tongue on her.

Peavy also testified that K.A.’s testimony at trial was, at times, consistent with the information

she provided during her CAC interview. Peavy further testified that K.A. discussed additional

instances of abuse during her trial testimony that were not mentioned during the CAC interview

and that there were inconsistencies in K.A.’s recollection of details, such as the type of clothing

that she was wearing during the incidents.

         Dr. Matthew Cox, a pediatrician at the University of Texas Southwestern Medical School

in Dallas examined K.A. on May 31, 2012, but found no trauma or physical evidence of sexual

abuse. Cox testified at trial that a lack of physical trauma was not uncommon among the victims

of sexual abuse that he examined. Cox explained that penetration could occur without tearing of

vaginal tissues and that any bruising or physical signs of sexual abuse might have already healed.

         Allen took the stand in his own defense and testified that he was never alone with K.A.

and that he never sexually assaulted her. Allen claimed that, after he put a new roof on the

apartments and completed other odd jobs, the owner of the apartment complex offered him an

apartment. Allen stated that he was the only person on the lease and testified that he did not live

                                                5
in the apartment. Allen’s wife, Jeanette Allen, testified that no one really lived at the apartment

because it had never been fully furnished and that Allen stayed with her in her house. Although

Jeanette testified that Allen might have spent one or two nights at the apartment, she did not

recall whether K.A. spent any nights there.

         Cathy Williams, the owner of the apartment complex, testified that she rented the

apartment to Allen on October 8, 2008, and that Allen rented the apartment for himself and for

K.A. Cathy testified, “[K.A.] was in and out of the apartment continuously.”

         Pointing to (1) inconsistencies in the record, (2) Cox’s testimony that he found no

physical evidence of sexual abuse, and (3) the testimony of his wife, Allen argues that the

evidence was legally insufficient to support his conviction. However, the testimony Allen

highlights merely created fact and credibility issues which the jury resolved prior to entering its

verdict. 4

         Child complainants are “not expected to testify with the same clarity and ability as is

expected of a mature and capable adult.” Hiatt v. State, 319 S.W.3d 115, 121 (Tex. App.—San

Antonio 2010, pet. ref’d) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)).

The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual

assault. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2013); Scott v. State, 202 S.W.3d

405, 408 (Tex. App.—Texarkana 2006, pet. ref’d). Here, K.A.’s testimony established that

Allen intentionally or knowingly penetrated K.A.’s sexual organ with his finger, on or about

October 8, 2008, as alleged in the indictment. Viewing the evidence in the light most favorable

4
 The trier of fact may believe all, some, or none of a witness’ testimony because the fact-finder is the sole judge of
the weight and credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
                                                          6
to the verdict, we find the evidence legally sufficient to support Allen’s conviction for

aggravated sexual assault. We overrule Allen’s first point of error.

II.    Peavy Was the Proper Outcry Witness In This Case

        Hearsay is not admissible at trial except as provided by statute or by the Texas Rules of

Evidence. See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (per curiam). Article

38.072 of the Texas Code of Criminal Procedure establishes an exception to the hearsay rule,

applicable in proceedings for prosecution of sexual offenses, for a child-victim’s statements

describing the offense made “to the first person, 18 years of age or older, other than the

defendant.” TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3) (West Supp. 2013).

       During a pretrial hearing, Allen challenged the State’s designation of Peavy as the outcry

witness. At the hearing, Peavy testified that K.A. discussed Allen’s digital penetration of her

vagina during the forensic interview. K.A. testified that she first told Williams that Allen had

been “doing nasty things” including “put[ting] his fingers where I pee.” Williams’ affidavit,

drafted on the day of Peavy’s forensic interview with K.A., documented K.A.’s outcry. Williams

averred (1) that K.A. “said [Allen] puts his fingers down where I pee,” (2) that K.A.

demonstrated Allen’s movements with her hand, (3) that K.A. said this type of contact happened

“all the time,” and (4) that the last time the contact happened was on May 13, 2012. After

agreeing with the State’s assertion that Peavy’s testimony was reliable, the trial court overruled

Allen’s objection to the designation and utilization of Peavy as the outcry witness.

       We review a trial court’s decision to admit an outcry statement under an abuse of

discretion standard. Owens v. State, 381 S.W.3d 696, 703 (Tex. App.—Texarkana 2012, no pet.)

                                                 7
(citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)). We will uphold the

trial court’s ruling if it is within the zone of reasonable disagreement. Id. (citing Divine v. State,

122 S.W.3d 414, 420 (Tex. App.—Texarkana 2003, pet. ref’d)). Because there is no discretion

in determining the applicable law, the trial court abuses its discretion when it fails to analyze the

law correctly and apply it to the facts of the case. State v. Ballard, 987 S.W.2d 889, 891 (Tex.

Crim. App. 1999).

           To be admissible under Article 38.072 of the Texas Code of Criminal Procedure, outcry

testimony must be elicited from the first adult to whom the outcry is made. Lopez v. State, 343

S.W.3d 137, 140 (Tex. Crim. App. 2011); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—

Texarkana 2000, pet. ref’d). Admissible outcry testimony is not person-specific, but event-

specific. Broderick, 35 S.W.3d at 73. To be a proper outcry, the child’s statement to the witness

must describe the alleged offense, or an element of the offense, in some discernible manner and

must be more than a general allusion to sexual abuse. Lopez, 343 S.W.3d at 140; Broderick, 35

S.W.3d at 73 (citing Thomas v. State, 1 S.W.3d 138, 140–41 (Tex. App.—Texarkana 1999, pet.

ref’d)).

           On appeal, the State argues that K.A.’s statements to Williams were not an outcry

because they amounted to nothing more than a general allusion to sexual abuse. K.A. told

Williams that Allen digitally penetrated her vagina by “put[ting] his fingers down where I pee,”

described and mimicked the abuse using her hands, and claimed Allen had sexually assaulted her

more than once. However, K.A. testified that she was sexually assaulted by Allen over a long

period of time in many different places.

                                                  8
       In cases where a child has been victim to more than one instance of sexual assault, it is

possible to have more than one proper outcry witness. Broderick, 35 S.W.3d at 73. But before

more than one outcry witness may testify, it must be determined that each outcry concerned

different events or offenses and was not simply a repetition of the same event told to different

individuals. Id. According to Williams’ affidavit, K.A. only told Williams that she had been

sexually assaulted in Allen’s wife’s home, in Allen’s truck, and at her great-grandmother’s

house. K.A. did not tell Williams that she had been sexually assaulted in the Bogota apartments.

K.A. testified, “I told [Peavy] more than I told my aunt.”

       Because the record established that K.A. told Peavy, not her aunt, about the sexual acts

that occurred while K.A. was in the Bogota apartments, we cannot say that the trial court abused

its discretion in concluding that Peavy was the proper outcry witness in this case. Allen’s second

point of error is overruled.

III.   The Trial Court’s Error in Allowing Peavy to Remain in the Courtroom Was
       Harmless

       In our opinion in one of Allen’s companion cases, cause number 06-13-00173-CR, we

determined that the trial court’s decision to allow Peavy to remain in the courtroom was

erroneous.    Adopting the reasoning and holding from that opinion, we reach that same

conclusion here and now determine whether the trial court’s error was harmful.

       A ‘“violation of an evidentiary rule . . . is non-constitutional [error] and will be

disregarded unless it affected the appellant’s substantial rights.’” Bryant v. State, 282 S.W.3d

156, 161 (Tex. App.—Texarkana 2009, pet. ref’d) (quoting Russell v. State, 155 S.W.3d 176,

181 (Tex. Crim. App. 2005)). Thus, “we need not reverse if, after examining the record as a
                                                 9
whole, we have fair assurance that the error did not influence the jury’s deliberations to

appellant’s detriment or had but a slight effect.” Ladd v. State, 3 S.W.3d 547, 566 (Tex. Crim.

App. 1999); see TEX. R. APP. P. 44.2(b).

       Prior to cross-examining K.A., Allen’s counsel attempted to explain the harm in allowing

Peavy to remain in the courtroom in the following colloquy:

       [N]ow the Court has heard testimony from the child on direct. The child, quite,
       [sic] obviously has brought up different events, other events, changed some things
       and so forth. That’s for me to take up on my cross-examination; I understand
       that. My problem is -- this goes back to Rebecca Peavy, who is now, you know,
       going to be our outcry witness. The Court has heard -- and also has been allowed
       to sit in the courtroom, over my objection to be excluded from the rule. . . .

              Considering the fact that the child’s testimony now is drastically different
       -- and what the outcry has been, I’m . . . about to cross her and explore facts and
       circumstances of why that story has changed.

              I think I’m greatly disadvantaged by Mrs. Peavy, who heard the initial
       outcry and is prepared to testify under one certain way, but now she’s benefitting
       from this additional information and is going to be preparing herself for my cross-
       examination of her.

       Rule 614 of the Texas Rules of Evidence, the witness sequestration rule “prevents

corroboration, contradiction, and the influencing of witnesses.” White v. State, 958 S.W.2d 460,

462 (Tex. App.—Waco 1997, no pet.). In deciding whether the error of allowing Peavy to

remain in the courtroom was harmful, we consider (1) whether Peavy actually heard the

testimony of other witnesses, and (2) whether her testimony either contradicted the testimony of

a witness from the opposing side or corroborated testimony of a witness she heard. See Bryant,

282 S.W.3d at 161–62 (citing Webb v. State, 766 S.W.2d 236, 239–40 (Tex. Crim. App. 1989);

Wilson v. State, 179 S.W.3d 240, 249 (Tex. App.—Texarkana 2005, no pet.)); Cooks v. State,

                                               10
844 S.W.2d 697, 733 (Tex. Crim. App. 1992), superseded on other grounds as stated in Bell v.

State, 415 S.W.3d 278, 281 (Tex. Crim. App. 2013); White, 958 S.W.2d at 465. The appellant

has the burden to demonstrate that the record supports a finding under both prongs. Bryant, 282

S.W.3d at 162. If both of these criteria are met, the court’s decision to exempt Peavy from the

Rule most likely resulted in harm. See Ladd, 3 S.W.3d at 566; Cooks, 844 S.W.3d at 733;

Chisum v. State, 988 S.W.2d 244, 251 (Tex. App.—Texarkana 1998, pet. ref’d); Loven v. State,

831 S.W.2d 387, 399 (Tex. App.—Amarillo 1992, no pet.). However, the main “question in

assessing the harm of allowing [Peavy] to remain in the courtroom is whether [s]he was

influenced in h[er] testimony by the testimony [s]he heard.” See Russell v. State, 155 S.W.3d

176, 181 (Tex. Crim. App. 2005).

       Peavy testified after hearing K.A. and Cox testify. Although Peavy was finally excused

at the conclusion of her testimony and did not hear the testimony of the defense witnesses prior

to taking the stand, Peavy’s testimony corroborated K.A.’s allegation that Allen digitally

penetrated K.A. in the Bogata apartments on or about October 8, 2008. Peavy also stated that

there were inconsistencies in K.A.’s testimony related to other sexual offenses that could have

been the result of the late hour and length of the CAC interview. Peavy clarified that K.A.’s trial

testimony was largely consistent with the CAC interview in that it matched K.A.’s descriptions

of where and what type of sexual abuse occurred at Allen’s hands. It is true that Peavy’s

testimony did not relate merely to incidental matters and that it spoke to each of the elements the

State was required to prove to establish Allen’s guilt on the charged offense.




                                                11
       However, after reviewing the entire record, we have fair assurance that the error either

had no influence on the jury’s deliberations or had such a slight effect that it was imperceptible.

First, Peavy’s testimony added nothing to the child’s trial testimony with respect to the sexual act

that formed the basis of the State’s indictment. Second, the State provided Allen with pretrial

notice that Peavy would testify that K.A. told her (1) “‘[Allen] messed with me with his fingers

and did other stuff’” and (2) that she had been suffering Allen’s sexual abuse since she was five

or six years old. Third, K.A. was twelve at the time of trial, and her clearly articulated testimony

establishing the elements of the offense was consistent, strong, and unwavering, even in the face

of cross-examination. Fourth, testifying favorably to Allen, Peavy admitted that it was possible

that K.A. was lying due to the inconsistencies between her CAC interview and her trial

testimony. Allen’s counsel emphasized this point during closing argument, leaving the jury to

struggle with the issue of K.A.’s credibility.       Fifth, Allen’s counsel, who was previously

provided with and had reviewed a copy of the CAC interview, failed to even suggest that

Peavy’s testimony was inconsistent with the child’s CAC interview.

       Peavy merely recalled the statements that K.A. made during the CAC interview.

Therefore, we cannot say that “[s]he was influenced in h[er] testimony by the testimony [s]he

heard.” See id. In light of the entire record, we find the trial court’s error in exempting Peavy

from the witness sequestration rule harmless. Allen’s last point of error is overruled.




                                                12
IV.   Conclusion

      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      May 5, 2014
Date Decided:        June 13, 2014

Do Not Publish




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