                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-15-00595-CR

                                         David ARROYO,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR8109
                              Honorable Ray Olivarri, Judge Presiding

                            OPINION ON MOTION FOR REHEARING
Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: July 19, 2017

REVERSED AND RENDERED IN PART; AFFIRMED IN PART

           In an opinion and judgment dated May 24, 2017, we affirmed the trial court’s judgments

of conviction on three counts, and reversed the trial court’s judgments on three other counts and

rendered an acquittal on those counts. The State filed a motion for rehearing. To clarify our

discussion, we vacate our earlier judgment, withdraw our earlier opinion, and issue this opinion

and judgment in their place. Concluding our original analysis was correct, we overrule the State’s

motion for rehearing.
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        A jury found appellant, David Arroyo, guilty on six counts of indecency with a child by

contact. In three issues on appeal, appellant (1) challenges the sufficiency of the evidence in

support of the verdicts, (2) asserts the trial court violated his right to confront a witness, and (3)

asserts the trial court erred by admitting outcry testimony. We conclude the evidence in support

of appellant’s convictions on counts two, four, and six is insufficient; therefore, we reverse those

convictions and render an acquittal. We affirm appellant’s convictions on counts one, three, and

five.

                             SUFFICIENCY OF THE EVIDENCE

        In six counts, appellant was charged with engaging in sexual contact with a child younger

than seventeen years by touching K.E.’s breasts and genitals on three different dates. The trial

court signed six judgments of conviction, one for each count. On appeal, appellant asserts there is

no evidence he touched K.E.’s breasts or genitals.

        A person commits indecency with a child if he engages in sexual contact with a child

younger than seventeen years of age. TEX. PEN. CODE ANN. § 21.11(a)(1) (West 2011). In this

context, “sexual contact” includes touching a child’s breast or any part of a child’s genitals,

including touching through clothing, if the act is committed with the intent to arouse or gratify the

sexual desire of any person. Id. § 21.11(c)(1). When an appellant challenges the sufficiency of

the evidence supporting the jury’s verdict, we review all of the evidence in the light most favorable

to the verdict to determine whether, based on the evidence and the reasonable inferences therefrom,

any rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). The jury is the sole judge of credibility and the weight attached to the testimony

of the witnesses. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). When the record



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supports conflicting inferences, we presume the jury resolved the conflicts in favor of the verdict,

and we defer to that determination. Id. at 525-26.

       Before calling K.E. to testify, the State called G.S., who was K.E.’s cousin. G.S. was

thirty-one years old at the time of trial and she testified about appellant’s touching her on more

than one occasion almost twenty-five years earlier. G.S. testified appellant would slide his hand

up her shorts and through her underwear to touch her vagina, and he also would touch her vagina

outside of her clothing.

       When the State called K.E., the State first asked her whether appellant ever did anything

that made her uncomfortable. She said that, before her grandfather died, appellant would play

with her hair by twirling it and rub her neck and arms. After her grandfather’s death, the touching

changed. On counts one and two, K.E. testified that on the day of her grandfather’s funeral,

appellant started to play with her hair and rub her neck. She was eleven years old at the time.

       And then he got more — he started touching my chest and it kind of — I’m crying,
       so I’m not — I don’t know how to explain it. I knew it was wrong, I just didn’t say
       anything at the time.
                                             ...

       I don’t know what happened. Like I didn’t make him stop. He started rubbing on
       my leg and he kept rubbing on my leg and then he went further up my skirt . . . .

       When asked where appellant touched her when he went up her leg, K.E. responded, “My

vagina underneath my skirt.” She said appellant did not penetrate her vagina, but he “was just

moving his hand around like — it sounds weird, but like how you would pet a cat . . . .”

       On counts three and four, K.E. testified she was in the sixth grade, and she and appellant

were sitting on the couch watching television

       . . . and then it started off the same, like he started with my hair, moved down my
       neck and then go down — just down my chest and then go back to the leg and then
       it goes back to underneath what I wore, which was a skirt again because that was
       part of my [school] uniform.


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On counts five and six, K.E. testified she was at appellant’s house and they were sitting on a couch

talking about music. K.E. said, “Then it started off the same, started with my hair, to my face, to

my neck, to my chest, down my leg, and back up my skirt [and inside her underwear].” The State

asked K.E.:

       Q. Okay. Same kind of rubbing as before?
       A. Uh-huh.
       Q. Was there anything different about it this time than the other times?
                                              ...
       A. No.

The State then asked generally:

       Q. Okay, I’m sorry. Then I’ll back up to that [time after the grandfather’s funeral].
       There was the time at the funeral and there’s two times in the — after school at
       your house and then the time with him?
       A. Yes.
       Q. At his house?
       A. Uh-huh.
       Q. Okay. All very similar, though?
       A. Yes.
       Q. Okay. Was there any one of them that was different in any way? Did he do
       anything different or was it always those same things that he did?
       A. The same.

       Appellant contends the evidence is insufficient to support the jury’s verdict on counts two,

four, and six, which alleged touching of K.E.’s breasts, because K.E. only testified he touched her

“chest” and not her breasts. Appellant relies on Nelson v. State, 505 S.W.2d 551 (Tex. Crim. App.

1974), for his argument that a child’s testimony that she was touched on the “chest” is insufficient

to support an allegation that an accused touched a victim’s “breasts.” In Nelson, the question

before the Court of Criminal Appeals was whether the victim’s testimony that “he rubbed my

chest” was sufficient to sustain the allegation in the indictment that the defendant did “place his

hand against the breasts” of the victim. The complainant provided no other testimony regarding

the touching. The Court found the evidence insufficient because the definition of “chest” was

broader than the definition of “breast” and “includes a larger area of the body than that
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encompassed by the latter.” Id. at 552. The Court acknowledged other cases where the victim had

used words different from those in the indictment to describe the area of the body fondled, and

distinguished those cases because the victims’ testimony was sufficient to identify the area of the

body alleged to have been violated by the accused. Id. However, the Court concluded the same

was not true in the case before it, and held the testimony “‘He rubbed my chest’ was insufficient

proof to sustain the averment in the indictment that appellant did ‘place his hand against the

breasts’ of the prosecutrix.” Id.

       In its motion for rehearing, the State relies on this court’s opinion in Moore v. State, 397

S.W.3d 751 (Tex. App.—San Antonio 2013, no pet.). While it is true the child’s testimony in

Moore is similar to the testimony in this case, the Moore opinion states only that the defendant

was “convicted of two counts of indecency with a child and one count of sexual assault.” Id. at

753. The opinion provides no specific details about the indictment or about how the jury charge

instructed the jury on the two indecency counts. Conversely, in this case, the indictment and jury

charge were specific:

               In six counts, appellant was charged with engaging in sexual contact with a
       child younger than seventeen years by touching K.E.’s breasts and genitals on three
       different dates. The trial court signed six judgments of conviction, one for each
       count. [Emphasis added]

Therefore, we conclude Moore is distinguishable.

       In cases involving a child-complainant, the issue is not whether a child uses the specific

technical term used in the statute.     Instead, the question is whether the child sufficiently

communicates to the trier of fact that sexual contact occurred by a touching of her breasts or

genitals even though the language used by the child is different from that in the statute describing

the part of the body. See Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977); see also In

re A.B., 162 S.W.3d 598, 602 (Tex. App.—El Paso 2005, no pet.) (evidence sufficient when child


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characterized her private parts as the “front” and the “bottom” and she pointed to them; she

explained defendant touched her “front” and in the “bottom” using his fingers; she also understood

the difference between “inside” and “outside”); Guia v. State, 723 S.W.2d 763, 765 (Tex. App.—

Dallas 1986, writ ref’d) (being touched where one “uses the restroom” or “tee-teed” sufficient to

establish sexual contact with child’s genitals).

         At the time of the offenses, K.E. was eleven years old. By the time of trial, K.E. was

eighteen years old and, therefore, not an unsophisticated child-complainant. K.E. said the touching

always started the same way with appellant touching her hair and moving his hand down her neck,

chest and leg, and the touching always ended with appellant moving his hand up her skirt. We

also note the State did not attempt to have K.E. clarify what she meant by the word “chest” and

the State did not ask for more details about where appellant touched K.E. on her “chest.” On this

record and in view of the holding in Nelson, we must conclude the evidence is legally insufficient

to support a finding that appellant touched K.E.’s breasts as alleged in counts two, four, and six.

         Appellant also asserts the evidence is insufficient to support the jury’s verdict on counts

three and five, which alleged touching of K.E.’s genitals. Appellant contends the evidence is

insufficient because K.E. did not testify appellant touched either her vagina or genitals. 1 On count

one, K.E. testified appellant moved his hand up her skirt, touched her vagina, and moved his hand

“like how you would pet a cat.” On count three, she said appellant moved his hand under her skirt.

On count five, she said appellant moved his hand under her skirt and inside her underwear. K.E.

testified he touched or rubbed her in the same way each of the three times. We conclude the jury

could have reasonably inferred appellant touched K.E.’s vagina on each of the three occasions



1
 Count one also alleged contact with K.E.’s genitals; however, on appeal, appellant does not challenge the sufficiency
of the evidence in support of the verdict on that count. Appellant only asserts K.E.’s testimony was contradictory and
cursory. We defer to the jury’s assessment of credibility and weight. Merritt, 368 S.W.3d at 525-26.

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based on his pattern of moving his hands down K.E’s leg and up under her clothing and because

K.E. testified appellant always did “those same things” when he touched her under her clothing.

Therefore, we conclude the evidence is legally sufficient to support a finding that appellant touched

K.E.’s genitals as alleged in counts one, three, and five.

                         CONFRONTATION CLAUSE VIOLATION

       Appellant asserts the trial court violated his Sixth and Fourteenth Amendment rights to

confront a witness. During trial, at the State’s request, a hearing was held outside the jury’s

presence on the admissibility of G.S.’s testimony. During the hearing, G.S. testified she was

molested by appellant and two uncles. Defense counsel asked for the names of the uncles, and the

State objected on relevancy and Texas Rule of Evidence 412 grounds. Defense counsel responded

that the testimony about the two uncles was relevant to whether G.S. was confusing appellant with

one or both of her uncles. The trial court refused to allow G.S. to name her uncles, but allowed

defense counsel to question G.S., still outside the jury’s presence, about what her uncles did. When

the trial court ruled the jury could hear testimony from G.S. regarding her allegations against

appellant but not regarding allegations against her uncles, defense counsel objected on various

grounds. However, defense counsel did not object that appellant’s right to confront the witness

was violated.

       In order to preserve alleged error for appellate review, a party must make a timely objection

to the trial court or make some request or motion apprising the trial court what the party seeks by

the line of questioning, thereby giving the trial court an opportunity to remedy any purported error.

See TEX. R. APP. P. 33.1(a). An explicit objection is not necessary if “the specific grounds” of the

complaint are “apparent from the context” of the trial proceeding. TEX. R. APP. P. 33.1(a)(1).

Because appellant did not clearly articulate that the Confrontation Clause demanded admission of

the evidence about G.S.’s uncles, the trial court was not given an opportunity to rule upon a
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Confrontation Clause complaint. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).

Failure to object to a Confrontation Clause error at trial waives the complaint on appeal. Wright

v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (objection on hearsay and Rule 107 grounds

did not preserve Confrontation Clause complaint); see also Reyna, 168 S.W.3d at 179 (holding

failure to articulate “that the Confrontation Clause demanded admission of the evidence”

foreclosed trial court’s opportunity to rule on that issue and resulted in waiver of issue on appeal).

Accordingly, appellant has not preserved his Confrontation Clause complaint for appellate review.

See TEX. R. APP. P. 33.1.

                                    OUTCRY STATEMENT

       The State provided pre-trial notice of its intent to call K.E.’s mother, Felicia, as the outcry

witness. The trial court did not conduct a pre-trial admissibility hearing pursuant to Texas Code

of Criminal Procedure 38.072, section 2(b)(2). Before Felicia testified to what K.E. told her,

defense counsel raised a hearsay objection. The State responded that it had given notice of its

intent to call Felicia as the outcry witness, and the trial court allowed the testimony without

conducting any further hearing. On appeal, appellant asserts the trial court erred.

       At trial, Felicia testified K.E. told her: “[Appellant] molested me,” and “He did things to

me that he should not have done to me.” Felicia admitted K.E. never went into detail about what

appellant did, except to say appellant touched her “underneath her pants.” Felicia said K.E. told

her the first time this happened was the day of K.E.’s grandfather’s funeral.

       An outcry statement is not inadmissible because of the hearsay rule if, among other

requirements, “the trial court finds, in a hearing conducted outside the presence of the jury, that

the statement is reliable based on the time, content, and circumstances of the statement.” TEX.

CRIM. PROC. CODE ANN. art. 38.072, § 2(b)(2) (West Supp. 2016). Here, appellant did not object

to the trial court about the lack of an article 38.072 hearing. However, once appellant raised his
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hearsay objection to Felicia’s testimony, the burden shifted to the State, as the proponent of the

hearsay evidence, to establish compliance with article 38.072, which the State failed to do. Long

v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (agreeing with appellant that his objection

to hearsay sufficed to invoke article 38.072 procedures, and merely because he did not specify that

his objection was lodged pursuant to that statute did not deprive him of review on appeal); Mosley

v. State, 960 S.W.2d 200, 203 (Tex. App.—Corpus Christi 1997, no pet.) (same).

       Assuming without deciding the trial court erred by admitting Felicia’s testimony, we next

consider whether the error harmed appellant. We review this error as non-constitutional error. See

TEX. R. APP. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.”). We will not overturn a criminal conviction for non-

constitutional error if, after examining the record as a whole, we have a fair assurance 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); Broderick v. State, 35 S.W.3d 67, 74-75 (Tex. App.—Texarkana 2000, pet.

ref’d) (concluding admission of inadmissible hearsay, including erroneous designation of outcry

witness, is nonconstitutional error, and it will be considered harmless if appellate court, after

examining the record as a whole, is reasonably assured error did not influence jury verdict or had

but a slight effect). In this case, because the same or similar evidence was admitted without

objection at trial, we hold the error was harmless. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim.

App. 1991); Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

       Felicia’s outcry testimony provided no details about any of the six incidents other than that

appellant touched K.E. under her pants. However, K.E. provided specific details relating to the

six separate incidents. Thus, we cannot conclude the trial court’s error in admitting Felicia’s

testimony about the offense had a substantial and injurious effect or influence in determining the

jury’s verdict. See Nino, 223 S.W.3d at 754 (concluding party who objected to outcry evidence
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but failed to object to other substantially similar evidence waived any error in admission of

objected-to evidence); West v. State, 121 S.W.3d 95, 105 (Tex. App.—Fort Worth 2003, pet. ref’d)

(holding error in admitting outcry testimony did not influence jury’s verdict or had but a slight

effect because complainant provided detailed testimony relating to offense); Thomas v. State, 1

S.W.3d 138, 142 (Tex. App.—Texarkana 1999, pet. ref’d) (holding error in admitting child

complainant’s mother’s outcry testimony was harmless, where record was replete with testimony

from witnesses other than mother concerning complainant’s statements about offense).

                                        CONCLUSION

       For the reasons stated above, we reverse the trial court’s judgments on counts two, four,

and six, and render an acquittal on those counts. We affirm the remaining judgments.

                                                 Sandee Bryan Marion, Chief Justice

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