                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00043-CR


PAUL MCGREGOR                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Paul McGregor appeals his conviction for indecency with a child

by contact. In one issue, McGregor argues that the trial court erred by allowing

the State to introduce a video of complainant Stepdaughter’s forensic interview.

The State concedes that it was error for the trial court to allow the video in


      1
      See Tex. R. App. P. 47.4.
evidence. But because we conclude that the error did not harm McGregor, we

will affirm.

                                  II. BACKGROUND

       Disturbed by an entry in Stepdaughter’s diary, Mother confronted

Stepdaughter as to why she had written, “All I got to do is hit up [McGregor,] and

he has no choice but to do what I say. Sorry, Daddy Dear, but blackmail is a

bitch, ain’t it?” Initially, Stepdaughter claimed the entry was “nothing,” but as

Mother continued to question her, Stepdaughter eventually broke into tears and

said that McGregor had told Stepdaughter sexually explicit stories about himself

and that “[McGregor] made [her] touch him.” The next day, Mother went to the

district attorney’s office, which connected her with Denton Police Officer David

Bearden.

       Bearden   testified   at   trial   that   after   scheduling   and   observing

Stepdaughter’s forensic interview, he arranged multiple “spoof” calls wherein

both Stepdaughter and Mother would call McGregor and elicit responses from

him that might incriminate him or otherwise corroborate Stepdaughter’s outcry.

These phone conversations were recorded. Bearden averred that Stepdaughter

made the first call and that he had coached Stepdaughter to “Basically [say],

[McGregor], we’re caught.” During Stepdaughter’s first call, Bearden said that

immediately after she described to McGregor that Mother had found her diary

and that she had written “what he had been doing to her,” the first words out of

McGregor’s mouth were, “Oh, my God.” Bearden said that this response was


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significant to him because it “made it appear that [McGregor] knew exactly what

[Stepdaughter] was talking about.”    Even more significant to Bearden than

McGregor’s statement was that Stepdaughter never said exactly what she had

written in her diary.

      Bearden said that McGregor “kept telling [Stepdaughter] that he couldn’t

believe that she would write something like that in her diary.”   Furthermore,

according to Bearden, Stepdaughter told McGregor in the phone conversation

that she would attempt to appease Mother’s concerns with a “story” but that if

Mother believed Stepdaughter’s story, McGregor “can’t do this anymore to her.”

McGregor responded, “I know.”

      Bearden then had Mother call McGregor and tell him that she had just

heard from Stepdaughter that McGregor had molested her.           By Bearden’s

account, during this phone conversation, McGregor acted as if he had not

received the earlier phone call from Stepdaughter and at one point in the

conversation declared that he was “caught off guard” by Mother’s phone call and

accusations. Bearden described McGregor’s contrasting demeanor between the

phone calls: “Yeah, he was friendly with [Stepdaughter]. He was . . . agitated

with [Mother].”

      Later, during his investigation, Bearden again had Stepdaughter call

McGregor. In that call, Bearden said that McGregor told Stepdaughter to tell

Mother that she had made up what she had written in her diary and that he had

not done what she had written.       Much like the earlier calls, McGregor’s


                                      3
statements stood out to Bearden because “[McGregor] still did not know what

[Stepdaughter had written] in her diary.” McGregor also told Stepdaughter during

the call that if she did not lie to Mother, he would go to jail and their family would

be “destroyed.”

       Bearden testified that during both of Stepdaughter’s spoof calls, McGregor

sought assurance from Stepdaughter that Mother was not around while they

were talking and he requested that she delete these calls from her phone log so

that Mother “won’t know.” The audios of these phone conversations were played

for the jury.

       Bearden said that during his investigation, he acquired surveillance

footage from a self-storage facility, a place where Stepdaughter said that an act

of indecency occurred. The surveillance footage corroborated Stepdaughter’s

outcry that she and McGregor had gone to the storage facility, entered the

storage unit, and then exited within minutes. The footage showed that McGregor

did not take anything in or out of the unit, and it also showed Stepdaughter

attempting to jump and hit an exit sign with her hand.

       Bearden testified that he and a fellow officer also searched areas of the

family’s home. According to Bearden, the officers focused their search on areas

of the home where Stepdaughter alleged that McGregor had routinely molested

her. Consistent with Stepdaughter’s forensic interview in which she said that

sometimes McGregor would ejaculate onto his T-shirts and throw them in his

closet, Bearden found multiple T-shirts in McGregor’s closet that had McGregor’s


                                          4
semen on them. Pictures of the closet and the T-shirts containing visible stains

were displayed to the jury.      Also consistent with Stepdaughter’s forensic

interview, in which she averred that McGregor would sometimes use condoms

during the abuse and also watch pornography, Bearden found boxes of

condoms, opened condom wrappers, and pornographic videos in McGregor’s

closet.   Verizon Communications’ records also showed that someone in

McGregor’s home purchased X-rated movies. Some of the titles to the

pornographic movies were “Bring ‘Em Young” and “He is My Stepdad 2.”

      Registered Nurse Lucrecia DeLawter testified that she conducted a sexual

assault exam of Stepdaughter.      The State introduced the medical records

associated with the exam and had DeLawter read portions of her notes to the

jury. In her notes, DeLawter recorded that Stepdaughter said that McGregor had

touched her with his hands on her “breasts, butt, and vagina” with her clothes on

and off. She also told DeLawter that McGregor had “rubbed” Stepdaughter’s

vagina “but didn’t put his fingers in.”       According to DeLawter’s notes,

Stepdaughter said that these things happened in her room, in the family room, in

the game room, and in McGregor’s storage unit.

      The notes also revealed that Stepdaughter told DeLawter that McGregor

had put his penis in her mouth, that he had ejaculated in her mouth, and that

McGregor “made [her] swallow his” ejaculate. Stepdaughter reported that the

“next time [she] spit it out.” DeLawter’s notes also stated that McGregor would




                                       5
sometimes ejaculate on Stepdaughter’s back or face when she would refuse to

swallow his ejaculate and that at other times, McGregor would wear a condom.

      DeLawter’s notes reflected that McGregor would make Stepdaughter touch

his penis when he would drive and that on more than one occasion he had

penetrated Stepdaughter’s anus with his penis. Stepdaughter told DeLawter that

these incidents “hurt,” so she would move away, and that McGregor would

instead put his penis between her thighs.

      Mother testified that she and McGregor occasionally used condoms during

intercourse but that they were in her closet and not his. She stated that she

“found it strange [that McGregor] had almost a store full of condoms in his closet,

several boxes.”     She also testified that McGregor watched “too much”

pornography. Mother averred that McGregor would frequently give more money

to Stepdaughter than to Brother or Sister.

      Brother also testified that McGregor would give more money to

Stepdaughter than him and that McGregor would buy Stepdaughter more gifts

than him, so much so that it was noticeable.         Brother averred that when

McGregor would come talk to him, McGregor would leave Brother’s bedroom

door open. When McGregor would talk to Stepdaughter, however, McGregor

would close her bedroom door.          Brother specifically testified that when

Stepdaughter would get into “trouble,” McGregor would go to Stepdaughter’s

room, close the door, and then when he came out, Stepdaughter would no longer




                                        6
be in trouble. Brother said this scenario played out often and that he found it

odd.

       Sister testified that over time, McGregor would buy Stepdaughter more

gifts than the other siblings and that McGregor was lenient toward Stepdaughter

such that she was allowed to be “snappy” to McGregor.             Like Mother and

Brother, Sister noticed that McGregor gave Stepdaughter more money than the

siblings. By Sister’s account, the three children slept in the family game room the

night Stepdaughter had revealed the abuse to Mother. Sister said that on that

night, Mother asked her if McGregor had ever touched her inappropriately and

Sister told Mother that McGregor never had. She also testified that she believed

Stepdaughter and that on that night, she “slept with a knife under [her] pillow.”

       Stepdaughter testified that she could not remember a time when she did

not consider McGregor her “dad,” even though he was technically her stepfather.

Stepdaughter said that the first time she remembered McGregor “molesting” her

was just prior to returning to school as she entered the eighth grade—she was

thirteen years old. She said that one evening she walked by McGregor and he

“slapped [her] on [her] butt.”     She said that right after that, the two went

downstairs and were on the couch when McGregor started to rub her inner thigh.

Stepdaughter said that she shifted around some, disbelieving what was occurring

and thinking that perhaps McGregor was kidding or unaware of what he was

doing. Instead of stopping, McGregor progressed to rubbing his hand over her




                                         7
genitals. Stepdaughter said that she “kind of brushed it off and didn’t really say

anything about it.”

      Stepdaughter said that the next event she remembered entailed the family

watching a movie together. According to Stepdaughter, she fell asleep during

the movie, but she awoke to McGregor “putting his finger in [her] mouth,”

everyone else but her and McGregor had gone to bed, and McGregor was

watching a “sex scene” in a different movie than the one they had been watching.

McGregor told her to “suck” his finger. Stepdaughter said she repeatedly refused

but that McGregor insisted so she eventually did. From there, McGregor took

Stepdaughter to the nearby bathroom, instructed her to get on her knees, and

McGregor “put [her] mouth on his genitals.”        Stepdaughter said that on this

occasion, McGregor ejaculated into the toilet, instructed her not to tell Mother,

and then went to bed.

      Stepdaughter said that McGregor would routinely come to her bedroom

under the auspice that he was massaging her legs due to fatigue from volleyball,

but that he “would try to finger [her] or touch [her] inappropriately.” She testified

that on a number of occasions, McGregor would check to ensure that everyone

else in the house was “preoccupied” and then would come to her room, close the

door, make her pull her pants down as he pulled his down, “and he would put [his

penis] between [her] legs, and he then would make [her] put it in [her] mouth.”

Stepdaughter testified that when he would put his penis between her legs, his




                                         8
penis would be “[t]ouching [her] vagina but not in it,” and he usually did this after

requiring her to get “on all fours” or after bending her over “a bed or a couch.”

      Stepdaughter said that these incidents most often ended with McGregor

ejaculating either on her face, back, or stomach. Other times, McGregor would

lay out a shirt and ejaculate onto the shirt because Stepdaughter “didn’t like to

have that in [her] mouth.” Stepdaughter estimated that McGregor ejaculated into

shirts approximately twenty times during the several months the abuse occurred.

Stepdaughter said that sometimes McGregor would simply toss the used shirts

into his closet.   Stepdaughter averred that “[t]owards the end of the abuse,

McGregor actually started to” use condoms.

      Stepdaughter said that McGregor acknowledged to her that what he had

been doing was wrong and that he would often say that he would stop, “[b]ut the

next day he continued to do it.” Stepdaughter said that McGregor told her that if

she revealed the abuse to Mother, the result would be that McGregor and Mother

would get divorced. She interpreted this statement as a threat to make her

continue cooperating in the abuse.

      According to Stepdaughter, McGregor began to buy her gifts and give her

money after the abuse started. She testified that she thought of these things as

“hush money.”      Stepdaughter also described that McGregor had attempted

numerous times to have vaginal intercourse with her but that she would pull away

and threaten to tell Mother if he attempted to again.           On two occasions,

McGregor penetrated her anus with his penis. Stepdaughter said that “[i]t hurt a


                                          9
lot” when he penetrated her anus. Other times, McGregor would put his thumb in

her anus. Stepdaughter said that the abuse became almost “a daily thing.”

      Stepdaughter recalled an event when McGregor took her to his storage

unit after her volleyball practice. Stepdaughter said that McGregor took her into

the unit, pulled her shorts down, placed his penis between her legs, and “just

kind of thrusted . . . like, grinding, and then [he] was done.” Stepdaughter said

that she remembered that as they left, “there was an [e]xit sign, and [she] jumped

up and touched it.” She said that because of the event, she had red hand marks

on her legs and that McGregor “stalled” on their drive home so that the redness

would subside before they arrived.

      Stepdaughter also testified that McGregor would often take her with him

when he would go to pick Sister up from work, but before getting Sister, “[h]e

would drive around or to a dark part of the parking lot and make [her] give him

oral sex.” Stepdaughter said that McGregor would often touch her breasts, but

that “it wasn’t anything [she] focused on because [she] felt it wasn’t as extreme

as everything else going on.”    As to him touching her breasts, Stepdaughter

recalled a specific time when she, McGregor, and her brother were driving home,

she and Brother had fallen asleep, and she awoke to McGregor putting his hand

under her shirt and grabbing her breast. She said that she remembered that

specific time because his hands were cold and they were near Lake Dallas High

School.




                                       10
      Later in the trial, the State called Rebecca Truette, the forensic interviewer

who conducted Stepdaughter’s outcry interview.              Truette testified that

Stepdaughter explained in the interview how McGregor began grooming her by

complimenting her, with the abuse progressing to inappropriate touching and

sexual stories.     Truette said that Stepdaughter talked about the gifts that

McGregor would buy her and how the effect of such gifts was to make

Stepdaughter feel “almost as guilty” as McGregor about the abuse. Truette also

said that the interview revealed that the abuse became so continual and frequent

that Stepdaughter became “very desensitized” to the abuse. Over McGregor’s

objection, the trial court allowed the State to introduce the video of the forensic

interview and play it for the jury.

      McGregor testified that he loved all three of Mother’s children and that he

considered all of them to be his own, including Stepdaughter.           McGregor,

however, averred that Stepdaughter began to develop “attitude” toward the end

of elementary school. By McGregor’s account, Stepdaughter was often in trouble

at home and at school.          McGregor testified that Stepdaughter lied about

numerous things because she was bent on getting her way and that everyone in

the family knew that she lied frequently.

      McGregor said that he did not tolerate Stepdaughter’s “defiant” behavior

and that it was untrue that he lavished more gifts and money on Stepdaughter

than her siblings. McGregor averred that he did watch pornography and that he

had purchased the condoms in his closet “throughout the years,” but he said that


                                         11
they were used only between him and Mother or by himself when he would

masturbate.

      McGregor testified that he knew that Mother had told Stepdaughter not to

call him and that was the reason he told her to delete the phone calls from her

call log. He also denied all accusations that he had been inappropriate with

Stepdaughter. McGregor said that he had gone to the storage unit briefly to

check his inventory on the day the surveillance cameras captured Stepdaughter

jumping up and hitting the exit sign and that is why he did not take anything there

or bring anything out.

      McGregor testified that he “had no idea what [Stepdaughter] was talking

about” when she said in the first police-arranged phone conversation, “We can’t

do that anymore.” He also said that he did not remember responding, “I know.”

As to the second call from Stepdaughter, McGregor also could not recall the

exchange in which Stepdaughter asked if it would be alright to tell “minor stuff”

and McGregor could be heard saying, “No, don’t tell [Mother] nothing” . . . “if you

haven’t told her.”

      Of the two counts the State charged McGregor with, the jury returned a

verdict of guilty as to the charge of indecency with a child by contact by way of

touching her breast, but it returned a verdict of not guilty as to the charge of

continuous sexual abuse of a young child. The jury assessed punishment at ten

years’ imprisonment and a $10,000 fine.        The trial court entered judgment

accordingly and this appeal followed.


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                                  III. DISCUSSION

      In his sole issue, McGregor argues that the trial court abused its discretion

by allowing the State to introduce the video of Stepdaughter’s forensic interview

and that the introduction of the video was harmful. The State concedes that the

trial court abused its discretion by allowing it to introduce the video. See Bays v.

State, 396 S.W.3d 580, 592 (Tex. Crim. App. 2013) (“[W]e conclude that [the]

outcry statute does not permit admission of video-recorded statements of a

complainant.”). The State argues, however, that the video “essentially repeated

testimony” of Stepdaughter and the other witnesses and therefore was not

harmful. We agree with the State that the trial court erred by admitting the video

of Stepdaughter’s forensic interview in evidence but that McGregor was not

harmed by its admission. Id.

      McGregor spends the lion’s share of his harm analysis arguing that the

video improperly “bolstered” Stepdaughter’s testimony.        But McGregor never

objected to the video introduced at trial under the theory of bolstering.      See

Washington v. State, 771 S.W.2d 537, 544 (Tex. Crim. App.) (reasoning that

because defendant did not object to any testimony on the ground of bolstering,

no error was preserved for appellate review), cert. denied, 492 U.S. 912 (1989).

Thus, to the extent that McGregor is attempting to bring an error based on

improper bolstering, we overrule this portion of his sole issue.

      McGregor’s argument that the introduction of the video harmed him is

predicated on his erroneous position that “the only evidence implicating” him


                                         13
came from Stepdaughter’s testimony. That is simply not the case. Indeed, the

State elicited incriminating testimony from Bearden, DeLawter, Mother, Brother,

and Sister.    The State also played audio of the three “spoof” calls by

Stepdaughter or Mother and introduced other physical evidence corroborating

Stepdaughter’s testimony to specific events.

      The erroneous admission of a hearsay statement constitutes non-

constitutional error that is subject to a harm analysis.      See Tex. R. App. P.

44.2(b); see also Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998)).

      Under rule 44.2(b), we disregard the error if it did not affect McGregor’s

substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). A

substantial right is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66

S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial

right if we have “fair assurance that the error did not influence the jury, or had but

a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);

Johnson v. State, 967 S.W.2d at 417.

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the


                                         14
nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56.

      Here, the inadmissible video contained evidence that was duplicative of

Stepdaughter’s properly admitted testimony. See Dunn v. State, 125 S.W.3d

610, 615 (Tex. App.—Texarkana 2003, no pet.) (“The cases uniformly hold that

the rule is that the improper admission of evidence does not constitute reversible

error if the same facts are proved by other properly admitted evidence.”). The

contents of Stepdaughter’s testimony and the statements she made during the

forensic interview were additionally introduced without objection through the

testimony of Bearden, Mother, DeLawter, Truette, Brother, and Sister.

Stepdaughter’s testimony as well as DeLawter’s notes that were introduced

detailed almost identically the contents of the videotaped forensic interview.

Furthermore, the State introduced three incriminating audio portions of the phone

calls in which McGregor can be heard telling Stepdaughter to lie to Mother about

what had transpired, to delete the calls between himself and Stepdaughter so

that Mother would not know the calls had been made, and an acknowledgment to

Stepdaughter that he knew that he could no longer do what he had been doing to

her. These calls are all the more condemning to McGregor because he did not


                                       15
know what Stepdaughter had written in her diary, and yet he repeated exclaimed

to her “Why would you write that?” There is even a colloquy in the third phone

call where McGregor instructs Stepdaughter that she cannot even reveal the

“minor stuff.” In the second phone call, which is between Mother and McGregor,

McGregor conducts the conversation as if Stepdaughter had not previously

called him.

      The State also introduced physical evidence corroborating Stepdaughter’s

testimony.    Consistent with Stepdaughter’s testimony that McGregor would

ejaculate onto shirts and discard them in his closet, the State introduced multiple

photographs and forensic evidence of T-shirts found in McGregor’s closet that

contained semen stains consistent with McGregor’s DNA. McGregor testified

himself that it was his semen on these T-shirts.       The State also introduced

evidence that, unknown to Mother, McGregor had numerous condoms in his

closet, including opened condom packages. This evidence is consistent with

Stepdaughter’s testimony that McGregor would sometimes wear condoms when

he performed indecent acts with her.

      The State also introduced evidence by way of surveillance video placing

McGregor and Stepdaughter at the self-storage facility. The video depicts the

scene almost identically to Stepdaughter’s testimony. The State also introduced

evidence that McGregor had a fascination with pornography, part of his collection

of pornography involved sexual activities with young teenaged girls, and he




                                        16
watched pornography containing sexual activity between stepfathers and

stepdaughters.

      We conclude that in the context of the entire case against McGregor, the

trial court’s error by admitting the video of Stepdaughter’s forensic interview did

not have a substantial or injurious effect on the jury’s verdict and did not affect

McGregor’s substantial rights. See Chapman v. State, 150 S.W.3d 809, 814–15

(Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (holding improper admission of

outcry testimony was harmless where similar testimony was admitted through

complainant and pediatrician); see also Jiminez v. State, No. 07-07-0389-CR,

2009 WL 3102010, at *6 (Tex. App.—Amarillo Sept. 29, 2009, pet ref’d)

(mem. op., not designated for publication) (“In situations where an improperly

admitted videotape [essentially repeats] the victim’s properly admitted testimony

on the same issue, courts often disregard the error reasoning that it could not

have affected the appellant’s substantial rights.”). Thus, we disregard the error

and overrule McGregor’s sole issue in its entirety. See Tex. R. App. P. 44.2(b);

see also King, 953 S.W.2d at 271.




                                        17
                             IV. CONCLUSION

      Having overruled McGregor’s sole issue, we affirm the trial court’s

judgment.



                                              /s/ Bill Meier

                                              BILL MEIER
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 15, 2014




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