Opinion filed June 12, 2014




                                        In The


        Eleventh Court of Appeals
                                     _____________

                                 No. 11-12-00153-CR
                                     _____________

                MIGUEL ZUNIGA DELGADO, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                                  Taylor County, Texas
                              Trial Court Cause No. 24067A


                      MEMORANDUM OPINION
      The jury convicted Miguel Zuniga Delgado of the offense of continuous
sexual abuse of a child under fourteen. The trial court assessed punishment at
confinement for twenty-five years and sentenced him accordingly. On appeal,
Appellant contends that the trial court erred when it did not allow him, during a
hearing outside the presence of the jury, to question the child, V.M., about prior
outcry statements. He also challenges the trial court’s ruling as it pertains to the
admissibility of testimony related to the outcry statement. We affirm.
      The evidence in the record reveals that V.M. was three years old when
Appellant began to sexually abuse her. The possibility of abuse came to light
when V.M.’s paternal grandmother, Maria, gave V.M. a bath. V.M. would not let
Maria wash her private parts. After using the restroom the following day, V.M.
again would not allow Maria to clean her private parts because it was painful.
When Maria asked V.M. what happened, V.M. told Maria that Appellant, her
mother’s boyfriend, touched her “sepeto” with his hand and his face. Maria said
that V.M. calls a vagina a “sepeto.” Maria phoned V.M.’s father and took her for a
sexual assault examination. Debra McCracken, a sexual assault nurse examiner
(SANE), interviewed V.M. before conducting a physical exam. V.M. would not
describe the assault, and McCracken had to get the history from Maria. Maria told
McCracken that V.M. told her “that [Appellant], mom’s boyfriend, put his finger
in her and put his mouth down there.”
      About eight months later, V.M.’s father asked her to help him clean the van.
V.M. said that she did not want to because she was in pain. V.M. told her father
that Appellant was still touching her. V.M. underwent another sexual assault
examination, and she told a SANE that Appellant was “touching” her “down there”
and that “it was hurting.” V.M. said, “He took all my clothes off. He hurt me
down there.” V.M. pointed to her genitals. Neither exam revealed injuries, but
both nurses testified that a lack of injuries is consistent with the type of assault that
V.M. described.
      In his first issue, Appellant argues that the trial court erred when it prevented
him from calling V.M. as a witness during a hearing under Article 38.072 of the
Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.072
(West Supp. 2013). He wanted to ask V.M. whom she first told about the abuse.

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The State counters that the purpose of the hearing is to determine the reliability of
the statement and not the other requirements of the statute.
      Article 38.072, section 2(a), as relevant here, provides for the admission of
hearsay statements in certain types of cases if the statements (1) describe the
alleged offense; (2) were made by the child against whom the charged offense was
allegedly committed; and (3) were made to the first person eighteen years of age or
older, other than the defendant, to whom the child made a statement about the
offense. Article 38.072, section 2(b)(2) provides that statements that meet those
requirements are not inadmissible because of the hearsay rule if “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.
      The trial court conducted the reliability hearing required by Article 38.072,
section 2(b)(2). Maria testified at the hearing. After the State questioned Maria
outside the presence of the jury, Appellant attempted to call V.M. as a witness.
Appellant argued that Maria’s testimony did not and could not establish that Maria
was the first adult that V.M. told about the abuse and that “[t]he only one who’s
going to know who the first person is is [V.M.] herself.” The trial court denied this
request. At trial, V.M. was the State’s final witness. On cross-examination,
Appellant questioned her about how far back she could remember certain events
and tried to establish through V.M. that Maria was biased against Appellant. V.M.
testified that she had told her mother, father, and grandmother about the abuse, but
Appellant did not attempt to establish a time frame for each statement. Although
Appellant argued earlier that V.M. was the only person who could testify as to the
first adult that she told about the abuse, when V.M. was testifying, Appellant chose
not to ask her whom she first told.
      A review of the record in this case yields no evidence that V.M. described
the offense to any other adult prior to her statement to Maria, and Appellant does

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not argue that a different witness was the proper outcry witness.     Based on the
record, Maria was the first adult to whom an outcry statement was made who could
remember V.M.’s statement and relate it at trial. See Foreman v. State, 995
S.W.2d 854, 859 (Tex. App.—Austin 1999, pet. ref’d) (holding Article 38.072
allows “the first adult who can remember and relate at trial the child’s statement”
to be the proper outcry witness (emphasis added)).
      Even if we were to assume that it was error to deny Appellant’s request to
question V.M. during the hearing, any such error would be harmless.             The
admission of inadmissible hearsay is nonconstitutional error, and we consider it
harmless and disregard the error unless it affected a substantial right of the
accused. See TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). Because Appellant failed to question and elicit testimony from
V.M. at trial about prior outcry statements, we cannot conclude that being deprived
of the opportunity to question V.M. during the hearing affected a substantial right.
Appellant’s first issue is overruled.
      In his second issue, Appellant challenges the trial court’s decision to allow
McCracken, a SANE, to testify concerning V.M.’s outcry statement to Maria.
Appellant argues that the statement is not admissible as a statement to a medical
professional under TEX. R. EVID. 803(4) (an exception to the hearsay rule) because
V.M. did not make the statement to Maria for the purpose of medical diagnosis or
treatment. We have already determined that the outcry statement was admissible
through Maria as the outcry witness. Furthermore, Appellant offered, and the trial
court admitted, V.M.’s medical records into evidence. The medical history of
which Appellant complains is contained in those medical records. Therefore, if
there was any error, and we do not hold that there was, in allowing McCracken to
testify to the same medical history statements that Maria related to her and that
were contained in the medical records, the error was rendered harmless “in light of

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other properly admitted evidence proving the same fact[s].” Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999). Accordingly, Appellant’s second issue
is overruled.
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


June 12, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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