Opinion filed August 18, 2016




                                      In The


        Eleventh Court of Appeals
                                    __________

                  Nos. 11-14-00235-CR & 11-14-00236-CR
                                    __________

JESUS FELIPE LOPEZ A/K/A JESSE FELIPE LOPEZ, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 35th District Court
                              Brown County, Texas
                  Trial Court Cause Nos. CR18774 & CR22354


                      MEMORANDUM OPINION
      In a single proceeding, the trial court convicted Jesus Felipe Lopez a/k/a Jesse
Felipe Lopez of continuous sexual abuse of a child and revoked his community
supervision for state jail felony theft. With respect to the conviction for continuous
sexual abuse, the trial court assessed Appellant’s punishment at confinement for life
in the Institutional Division of the Texas Department of Criminal Justice without the
possibility of parole. The trial court also sentenced Appellant to confinement in the
State Jail Division of the Texas Department of Criminal Justice for a term of two
years after revoking his community supervision on the theft conviction. Appellant
challenges both judgments in a single issue. He asserts that the trial court erred by
permitting a police officer to testify as an outcry witness. We affirm.
                                 Background Facts
      Appellant was charged with continuous sexual abuse of a child in trial court
cause no. CR22354. He appeals his conviction for this offense in our cause no. 11-
14-00236-CR. The Texas Penal Code provides, in relevant part, that a person
seventeen years of age or older commits an offense if, during a period that is thirty
or more days in duration, the person commits two or more acts of sexual abuse
against a child or children younger than fourteen years of age. TEX. PENAL CODE
ANN. § 21.02(b) (West Supp. 2016). An “act of sexual abuse” includes indecency
with a child, other than touching the breast, as provided by Section 21.11(a)(1);
sexual assault under Section 22.011; and aggravated sexual assault under Section
22.021. PENAL § 21.02(c)(2)–(4).
      S.M.L. is Appellant’s stepdaughter. She was under the age of fourteen at the
times relevant to the offense. The indictment charged Appellant with committing
the following acts during a period that was thirty or more days in duration:
      [I]ntentionally or knowingly causing the penetration of the sexual organ of
      S.M.L. by Appellant’s sexual organ or finger;

      intentionally or knowingly engaging in sexual contact with S.M.L. by
      touching her genitals with the intent to arouse or gratify Appellant’s sexual
      desire;

      intentionally or knowingly causing the penetration of the anus of S.M.L. by
      Appellant’s sexual organ or finger; and

      intentionally or knowingly engaging in sexual contact with S.M.L.by touching
      her anus with the intent to arouse or gratify Appellant’s sexual desire.


                                          2
        In trial court cause no. CR18774, Appellant pleaded guilty in 2007 to the
offense of theft over $1,500 and under $20,000. Pursuant to a plea agreement, the
trial court sentenced Appellant to confinement for a term of two years in the
Institutional Division of the Texas Department of Criminal Justice and assessed a
fine of $750. However, the trial court suspended the imposition of the confinement
portion of Appellant’s punishment by placing him on community supervision for a
term of five years. The State filed a motion to revoke Appellant’s community
supervision in December 2012. The State alleged that Appellant violated the terms
and conditions of his community supervision by committing the offense of
aggravated sexual assault of a child on or about December 27, 2012. The facts
serving as the basis for that allegation are part of the allegations that served as the
basis for the continuous sexual abuse charge. The trial court considered the motion
to revoke at the same time that it conducted a bench trial on guilt/innocence on the
continuous sexual abuse charge.1 The trial court found the allegation to be true, and
it revoked Appellant’s community supervision based upon this finding. Appellant
challenges the judgment revoking his community supervision in our cause no. 11-
14-00235-CR.
        S.M.L. testified at length concerning Appellant’s acts of sexual assault and
sexual contact with her that spanned over two years. She was almost fifteen years
old at the time of trial. S.M.L. was nine or ten when Appellant started the conduct.
The initial incidents involved Appellant touching her in a manner that made her feel
uncomfortable. S.M.L. testified that, when she was ten and in the fourth grade,
Appellant gave her a horse but that she “had to do sexual things” with him in return


        1
         Appellant was also charged with additional offenses in trial court cause no. CR22508. Appellant
was tried for the additional offenses at the same time that he was tried for the matters that are the subject of
these appeals. The trial court acquitted Appellant of the additional offenses.


                                                       3
for it. Specifically, she testified that, a few days after Appellant gave her the horse,
he removed her pants and underwear at the stalls where they kept the horse, that he
digitally penetrated her “vaginal area,” and that he penetrated her “anal” with his
penis. S.M.L. went on to testify in graphic detail about more than fifteen episodes
of Appellant committing various acts of digital and penile penetration of her vagina
and anus. Additionally, Appellant required S.M.L. to perform oral sex on him during
some of these episodes, and he used various sex toys to penetrate her.
      The last incident that S.M.L. described occurred on December 27, 2012.
S.M.L.’s mother essentially caught Appellant in the act of sexually assaulting S.M.L.
on this occasion. S.M.L. had been finger painting at their apartment that day. When
she could not wash the paint off her hands, Appellant took her to his nearby shop to
use some type of cleaner for her hands. After S.M.L. washed her hands, Appellant
told her to take off her pants and lie down on the floor of his office. After spitting
on S.M.L.’s “vaginal area,” he rubbed it with his penis. He then told S.M.L. to go
to a car is his shop, whereupon he had anal intercourse with her. While this was
occurring, S.M.L.’s mother arrived to find Appellant’s shop locked. L.E., S.M.L.’s
mother, testified that she felt like Appellant and S.M.L. had been gone too long to
wash her hands, so L.E. went to his nearby shop to check on them. L.E. thought it
was odd that the door was locked, and she thought it took Appellant an unusually
long time to open the door. L.E. found S.M.L. on the toilet crying and trembling.
      After initially denying that anything had happened between her and Appellant,
S.M.L. told L.E. that Appellant had assaulted her. L.E. immediately called the police
to report the incident. Brownwood police officers arrived within a matter of minutes
because Appellant’s shop was located a very short distance from the police
department.    Officer Sky Self accompanied S.M.L. and L.E. to Brownwood
Regional Medical Center for the purpose of a “SANE” examination to be performed


                                           4
on S.M.L. He interviewed S.M.L. at the hospital in Brownwood about what had
transpired between her and Appellant. Subsequently, S.M.L. was transported to
Hendrick Medical Center in Abilene where a SANE examination was performed.2
A vaginal specimen taken from S.M.L. at the hospital revealed the presence of
semen. A DPS laboratory technician testified that DNA testing of this specimen
revealed a “sperm cell fraction” that was consistent with a mixture from the DNA
profiles of Appellant and S.M.L. Additionally, DNA testing of a specimen taken
from a swab of Appellant’s penis revealed a mixture of DNA from which Appellant
and S.M.L. could not be excluded as the contributors.
                                           Analysis
      In his sole issue, Appellant contends that the trial court erred in permitting
Officer Self to testify as an outcry witness. He asserts that L.E. was the proper outcry
witness because she was the first adult that S.M.L. told about Appellant’s abuse.
The State called Officer Self as its first witness. The prosecutor asked him to testify
about the allegations that S.M.L. reported to him at the hospital. Appellant objected
to Officer Self’s testimony on hearsay grounds. The trial court then received
arguments from counsel concerning whether Officer Self qualified as an outcry
witness. Appellant asserted that L.E. was the proper outcry witness because she was
the first adult that S.M.L. told. The prosecutor responded by asserting that S.M.L.
only told L.E. about the incident that occurred immediately prior to the police being
called. The prosecutor read an excerpt of a statement from L.E. detailing that the
only report that S.M.L. made to L.E. was that Appellant “tried to put his finger in
my butt.” The prosecutor argued that Officer Self was the first adult that S.M.L. told
about the details of Appellant’s conduct over the course of two years. The trial court
overruled Appellant’s objection and permitted Officer Self to testify about the details

      2
       A SANE was not available at the hospital in Brownwood to examine S.M.L.


                                               5
that S.M.L. reported to him. In making this ruling, the trial court determined that
the report that L.E. received from S.M.L. only pertained to one of the acts of sexual
abuse alleged in the indictment.
       Officer Self testified that S.M.L. told him that Appellant had sexually
assaulted her over the course of two years. She told him that it usually happened in
her parents’ bedroom when her mother was not home. He also testified as follows:
       [S.M.L.] told me [Appellant] had bought her a horse, that he often uses
       this as leverage to convince her that she needs to do the sexual acts that
       he describes so that she can keep the horse. She said bluntly that it is
       the same type of scenario every time. He will use his fingers to open
       her vaginal area up and her anus up and then he will proceed to have
       unprotected sex with her.

       We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh’g). We will uphold the trial court’s ruling if it is within the zone of
reasonable disagreement. Id. at 391. A trial court has “broad discretion” to
determine the admissibility of outcry evidence, and we will not disturb its
determination as to the proper outcry witness absent a showing in the record that the
trial court clearly abused its discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex.
Crim. App. 1990); Smith v. State, 131 S.W.3d 928, 931 (Tex. App.—Eastland 2004,
pet. ref’d).
       Article 38.072 of the Texas Code of Criminal Procedure creates a hearsay
exception for a child complainant’s out-of-court “statements” that “describe . . . the
alleged offense,” so long as those statements “were made to the first [adult] person
. . . to whom the child . . . made a statement about the offense.” TEX. CODE CRIM.
PROC. ANN. art. 38.072, § 2(a) (West Supp. 2016); see Bays v. State, 396 S.W.3d
580, 585 (Tex. Crim. App. 2013). Hearsay testimony from more than one outcry



                                           6
witness may be admissible under Article 38.072 if the witnesses testify about
different events. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (citing
Broderick v. State, 35 S.W.3d 67, 73–74 (Tex. App.—Texarkana 2000, pet. ref’d)).
Thus, admissible outcry witness testimony is event-specific, not person-specific.
Eldred v. State, 431 S.W.3d 177, 181–82 (Tex. App.—Texarkana 2014, pet. filed);
Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d). Because designation of the proper outcry witness is event-specific, when a
child is victim to more than one instance of sexual assault, it is possible to have more
than one proper outcry witness—so long as the outcries concerned different events
and not simply repetition of the same event told to different individuals. Robinett v.
State, 383 S.W.3d 758, 762 (Tex. App.—Amarillo 2012, no pet.); Brown v. State,
189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref’d).
      In cases where a child has been a victim to more than one instance of sexual
assault, multiple outcry witnesses may testify about separate acts of abuse committed
by the defendant against the child. See Lopez, 343 S.W.3d at 140. By its nature, the
offense of continuous sexual abuse of a child involves more than one act of sexual
abuse. The trial court determined that the initial report that S.M.L. gave to her
mother only concerned the event that happened immediately preceding the report
and that it only addressed one of the four acts of sexual abuse alleged in the
indictment. Accordingly, we conclude that the trial court did not abuse its discretion
in concluding that Officer Self was a proper outcry witness.
      Moreover, improper outcry-witness testimony is harmless when other
properly admitted witness testimony sets forth the same facts. See Allen v. State,
436 S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref’d) (error in admitting
improper outcry-witness testimony was harmless where the child complainant
testified to the same facts contained in the outcry statement and was subject to cross-


                                           7
examination). Even if we were to assume that Officer Self’s outcry testimony was
erroneously admitted, it was harmless in light of the graphic, detailed testimony
provided by S.M.L. We overrule Appellant’s sole issue.
                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


August 18, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                            8
