Opinion issued October 30, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-13-00723-CR
                          ———————————
            WILLIAM HAYWARD FREEMAN, SR., Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 182nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1322259



                        MEMORANDUM OPINION

      A jury found appellant, William Hayward Freeman, Sr., guilty of aggravated

sexual assault of a child under the age of fourteen, and, after finding one

enhancement paragraph true, the trial court assessed punishment at seventy-five
years’ confinement. In his sole point of error, appellant contends the trial court

abused its discretion by allowing an outcry witness to testify at trial to a

“substantially different version of events” than that provided in the State’s pretrial

notice. We affirm.

                                 BACKGROUND

      On September 5, 2011, Deshaundra Gbadamosi left her three children at her

mother’s home with appellant while Gbadamosi and her mother, Mary Knighton,

went to the grocery store. Seven-year old S.M. was watching television with her

brother and her cousin in their grandmother’s room. Appellant was in the room

with them. S.M. went into the hallway bathroom. Appellant left the room around

this time as well.

      While S.M. was still in the bathroom, her older sister, D.F., asked the other

children where S.M. had gone. The children indicated toward the bathroom, so

D.F. went to the door of the hallway bathroom, but could not open it because the

door was locked. After trying to open the door, appellant walked out of the

bathroom; S.M. was still inside. D.F. testified S.M. looked “shaken up a little bit”

and “had a funny look on her face.” D.F. also noticed a screwdriver was on the

bathroom sink. D.F. asked S.M. what happened, but she did not respond.

      Knighton received several calls indicating that something had happened, so

Knighton and Gbadamosi left the grocery store and drove back to Knighton’s

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home. When they both arrived, Gbadamosi testified at trial that appellant looked

nervous and left the house immediately thereafter. S.M. was crying and would not

tell her mother what was wrong. After Gbadamosi assured S.M. that she loved her

and that whatever had happened was not S.M.’s fault, S.M. told Gbadamosi what

had transpired.

      Pursuant to article 38.072 of the Texas Code of Criminal Procedure, the

State provided appellant with pretrial notice of their intent to offer an outcry

witness and a pretrial summary of the hearsay statement being offered through the

witness. See TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(b) (Vernon Supp. 2014.)

(providing that outcry statement is not hearsay if, on or before 14th day before trial

begins, the State notifies defendant of intention to offer outcry statement and provides

defendant with name of outcry witness and written summary of the statement) The

summary in this case stated:

      Complainant [S.M.] told Deshaundra Gbadamosi on or about
      September 5, 2011 that she was in the restroom and that William
      Freeman opened the door with a screw driver and pulled his pants
      down and told her to keep her pants down and then picked her up
      from the toilet and placed her on the sink counter top. William
      Freeman then penetrated her from the front (vagina) while holding
      onto her back and moving her body back and forth and kissing her on
      the mouth. William Freeman rubbed her bottom (butt) and tried to
      penetrate her from behind.




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      Outside the presence of the jury, the judge conducted a hearing to determine

if the statement was admissible. The relevant part of the hearing proceeded as

follows on direct examination:

      Q: When you asked her what was wrong, what did she tell you?

      A: First she say[sic], nothing.

      Q: Okay.

      A: And then she was like, he touched me.

      Q: At first she said nothing, then she says he touched her. Is this still
      all within the same conversation?

      A: Yes, same conversation.

      Q: So her first comment to you of nothing was just the first thing she
      said?

      A: Yes.

      Q: Okay. And she said the words, he touched me?

      A: Yes.

      Q: What else did she say?

      A: That she was scared to tell me because he told her she better not
      tell.

      Q: Okay. Did you keep asking her?

      A: Yes. I also examined her.

      Q: We’ll get to that in a moment. When you keep asking her, what
      does she say?

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A: She told me that she was using the restroom and he came in the
restroom behind her and he locked [sic] the door with a screwdriver.
He sat her on the sink, told her to be quiet, and pulled down her pants
more, because she was using the restroom. And he told her not to say
anything; if she did, he would do something to her.

Q: Okay. Now, just want to be clear for the record. You said that
[S.M.] —the part about the screwdriver, you said he unlocked it or
locked it?

A: The door was locked. He came in the door and unlocked it with a
screwdriver.

Q: Now, after she tells you this part, she was in the bathroom, he
comes in, tells her to be quiet, what happens?

A: She was trying to get out. He put his hand over her mouth so she
couldn’t make any noise.

Q. And what did she say happened next?

A: My daughter came to the door and that’s when he let her out.

Q: Now, did [S.M.] tell you about any sexual contact between herself
and this person?

A: Yes.

Q: What did she tell you?

A: That he tried to put his private area in hers.

Q: Now, she—you just said he tried to?

A: Yes.

Q: Are those the exact words that she used or are you recalling what
she said?

A: I’m recalling it. It may not be the exact words.
                                    5
      The defendant objected to the admissibility of these statements on the

ground that various details of Gbadamosi’s testimony were not provided in the

State’s summary. The trial court allowed Gbadamosi to testify at trial, finding her

testimony to be “reasonably reliable as to time, content, and circumstance.” At

trial, Gbadamosi provided similar outcry testimony.

                          OUTCRY STATEMENT

A. Admissibility of the outcry statement

      In his only point of error, appellant contends “the trial court erred in

admitting outcry witness testimony that was substantially different form the State’s

38.072 notice.”

   1. Standard of Review and Applicable Law

      “Our standard of review for evidentiary decisions by the trial judge is the

abuse of discretion standard.” Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim.

App. 1999) (en banc). “In other words, the appellate court must uphold the trial

court’s ruling if it was within the zone of reasonable disagreement.” Weatherred v.

State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). “In addition, the appellate

court must review the trial court's ruling in light of what was before the trial court

at the time the ruling was made.” Id.

      Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the

                                           6
matter asserted.” TEX. R. EVID. 801(d). The general rule for the admissibility of

hearsay evidence is it “is not admissible except as provided by statute or [the Texas

Rules of Evidence] or by other rules prescribed pursuant to statutory authority.”

TEX. R. EVID. 802. Article 38.072 of the Texas Code Criminal Procedure provides

an exception to the general hearsay rule. TEX. CODE CRIM. PROC. ANN. art. 38.072

(Vernon 2005 & Supp. 2014).

      The provision “allows the State to introduce outcry statements made by a

child abuse victim, which would otherwise be inadmissible as hearsay.” Biggs v.

State, 921 S.W.2d 282, 284 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).

Outcry statements are “the victim’s statements made to the first person, other than

the defendant, 18 years of age or older, which describes the alleged offence.”

Moore v. State, 233 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(citing TEX. CODE CRIM. PROC. ANN. art. 38.072, § (2)(a)). The State is allowed to

introduce those statements if it follows the mandatory requirements of the statute.

TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b); Long v. State, 800 S.W.2d 545,

547 (Tex. Crim. App. 1990) (“[T]he provisions of the statute, including the notice

and hearsay requirements, are mandatory.”). “The purpose of the notice

requirement is to prevent the defendant from being surprised by the introduction of

the outcry-hearsay testimony.” Gay v. State, 981 S.W.2d 864, 866 (Tex. App.—

Houston [1st Dist.] 1998, pet. ref’d).

                                         7
       First, to comply with article 38.072 the State on at least fourteen days before

trial must provide the defendant with (1) written notice they intend to offer the

hearsay statement; (2) provide the defendant “with the name of the witness through

whom it intends to offer the statement”; and (3) provide the defendant with a

written summary of the statement. TEX. CODE CRIM. PROC. ANN. art. 38.072

§ 2(b)(1)(A)–(C). The summary “must give the defendant adequate notice of the

content and scope of the outcry testimony.” Gay, 981 S.W.2d at 866. A trial court

does not commit error in admitting statements describing the circumstances

leading up to the outcry statement even if those statements were not included in the

pretrial summary. Gottlich v. State, 822 S.W.2d 734, 737 (Tex. App.—Fort Worth

1992, pet. ref’d). However, the summary does have to provide more information

than what was contained in the indictment. Biggs, 921 S.W.2d at 285.

       Second, the trial court must conduct a hearing outside of the presence of the

jury. TEX. CODE CRIM. PROC. ANN. art. 38.072 §2(b)(2). Upon listening to the

statement, the trial judge must find it to be “reliable based on the time, content, and

circumstances of the statement.” Id. Last, the alleged victim must testify or be

available to testify at trial. Id. § 2(b)(3).

   2. Analysis

       Appellant asserts the State’s summary was insufficient because Gbadamosi’s

testimony exceeded the scope of the summary. Appellant asserts the statement

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“was not adequate to apprise him of the essential facts of the hearsay statements.”

Specifically, appellant argues the following statements by Gbadamosi at trial

exceed the scope of the summary:

      1.    that the complainant initially said “nothing happened” in
      response to Gbadamosi’s questions;

      2.    that appellant touched S.M.;

      3.     that appellant told S.M. “you better not tell” and that if she did
      tell “something would happen to her;”

      4.    that S.M. was trying to get out of the bathroom;

      5.   that appellant put his hand over S.M.’s mouth so she could not
      make any noise;

      6.    that S.M.’s older sister came to the door and that is when
      appellant let S.M. out of the bathroom;

      7.    and that appellant tried, but did not penetrate S.M.

      We review each statement in the outcry testimony to which appellant has

objected, and begin by noting that the State’s summary was more than a broad

summary containing little more information than the indictment.

      Regarding statement 1—S.M.’s telling Gbadamosi “nothing happened” in

response to being questioned about the incident—the information was merely a

detail leading up to the outcry statement. See Gottlich, 822 S.W.2d at 737 (holding

admissible testimony outside of statement notice that merely describes

circumstances peripheral to alleged abuse and leading up to outcry statement); see

                                           9
also Weeks v. State, nos. 14-08-00137-CR, 14-08-00138-CR, 2009 WL 1325461,

at *2 (Tex. App—Houston [14th Dist.] May 14, 2009, pet. ref’d) (mem. op., not

designated for publication) (holding same). Thus, the trial court did not err in

allowing Gbadamosi to testify to this statement.

      Statements 2 and 7—that appellant touched and tried to penetrate S.M.—are

actually included in the summary. The notice provided that appellant picked S.M.

up and set her on the sink, necessarily touching her in the process. The notice also

provides that appellant “rubbed her bottom (butt) and tried to penetrate her from

behind.” Thus, the trial did not commit error in admitting statements 2 and 7.

      Regarding statement 6—that appellant released S.M. only after S.M.’s sister

came to the bathroom door—Gbadamosi did not testify to this evidence before the

jury. Therefore the provisions of article 38.072 do not apply. See TEX. CODE

CRIM. PROC. ANN. art. 38.072 § 2(b) (requiring an actual statement before

procedures of the hearsay exception apply).

      Regarding statements 3, 4, and 5—that S.M. was trying to get out of the

bathroom, that appellant put his hand over S.M.’s mouth told her she had “better

not tell,” and that if she did tell “something would happen to her”—we agree that

those statements are outside the scope of the State’s notice.

      A summary containing certain details but omitting others may not meet the

notice requirements of article 38.072. See Gay, 981 S.W.2d at 866. In Gay, the

                                         10
pertinent part of the summary read, “On June 14, 1995, [the complainant] told [the

outcry witness] that Mike, a man who lives with her family had kissed her and

touched her.” Id. However, “[a]t trial, the outcry witness testified the complainant

said appellant bothered her, made her touch him, threatened her, touched her

everywhere, and kissed her.” Id. at 865. Because the summary included only that

the appellant had “kissed and touched” the complainant, and did not include

anything about any threats the appellant made, the appellant forcing the

complainant to touch him, or the appellant having “bothered” the complainant, this

Court held that the summary was insufficient. Id.

      Similar to the summary at issue in Gay, the summary here provided no

indication of any threats made by appellant or he had covered S.M’s mouth to keep

her from making noise. See Gay, 981 S.W.2d at 866. Therefore, it was error for the

trial court to admit these statements because they were not in the summary. See

Wheeler v. State, 79 S.W.3d 78, 84 (Tex. App.—Beaumont 2002, no pet.) (holding

the trial court committed error in admitting statements that included appellant

watching his daughter and the victim dance in their underwear when the summary

lacked those details).

B. Harmless Error

       “The Court of Criminal Appeals has instructed the appellate courts that

when the State fails to comply with article 38.072, we must engage in a harm

                                        11
analysis to ‘quantify the effect of the error.’” Gay, 981 S.W.2d at 867 (quoting

Dorado v. State, 843, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992)). Pursuant

to Texas Rule of Appellate Procedure 44.2(b), a non-constitutional error must be

disregarded unless it affects the defendant’s substantial rights. Barshaw v.

State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); TEX. R. APP. P. 44.2(b). A

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

influence in determining the jury’s verdict. See Motilla v. State, 78 S.W.3d 352,

355 (Tex. Crim. App. 2002); Wilson v. State, 90 S.W.3d 391, 393 (Tex. App.—

Dallas 2002, no pet.). This Court will not overturn a criminal conviction for non-

constitutional error if the appellate court, after examining the record as a whole,

has fair assurance that the error did not influence the jury, or influenced the jury

only slightly. Barshaw, 342 S.W.3d at 93. Important factors that are considered

include the nature of the evidence supporting the verdict, the character of the

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

the case, and may include whether the State emphasized the error and whether

overwhelming evidence of guilt was present. Bagheri v. State, 119 S.W.3d 755,

763 (Tex. Crim. App. 2003).

      Here, the error was improper admission of hearsay evidence. “When hearsay

evidence is admitted, the defendant is deprived of the opportunity to cross-examine

the declarant.” Biggs, 921 S.W.2d at 285. However, S.M. testified at trial, granting

                                         12
appellant the opportunity to cross-examine her about the outcry statements she

made to Gbadamosi. In closing argument, the State did mention the testimony by

Gbadamosi. However, the State referred to Gbadamosi’s testimony in general and

the State did not emphasize the nonadmissible statements. Instead, the State

specifically emphasized certain aspects of the testimony given by S.M., her sister,

D.F., and other witnesses. Furthermore, the State also placed more emphasis on the

testimony of S.M. by making her testimony the very last thing it mentioned before

the jury deliberated.

      In analyzing for harmless error, courts have also considered whether the

appellant had the opportunity to cross-examine the outcry witness and whether the

appellant had actual notice of the testimony. Biggs, 921 S.W.2d at 286. Here,

appellant had an opportunity to cross-examine the outcry witness both at the

hearing and during the trial. In addition, he was able to cross-examine S.M., who

also testified at trial. Although appellant claims he was surprised by the testimony,

he does not suggest how, had he possessed the information before trial, the

preparation of his defense would have been any different.

      Further, it is unlikely the jury placed much weight on the inadmissible

statements Gbadamosi made because other evidence of appellant’s guilt was

overwhelming. S.M. herself testified at trial about the incident. Furthermore, D.F.,

who was present at Knighton’s house at the time of the incident, also testified as to

                                         13
what she witnessed, including the facts that appellant was discovered in a locked

bathroom with S.M., that a screwdriver that he had apparently used to obtain

access to the bathroom was sitting on the sink, and that appellant released S.M.

after D.F. knocked on the bathroom door. When confronted by S.M.’s mother,

appellant stated, “I’m sorry. If I did anything, I apologize, just don’t send me to

jail.” Perhaps most importantly, there is evidence in the record that appellant’s

DNA was recovered in S.N.’s vagina and from her panties. It is highly unlikely a

juror would have placed more emphasis on the inadmissible statements as

compared to the testimonies of S.M. and D.F. and the DNA evidence.

      After viewing the record as a whole, we hold that error in admitting

statements through Gbadamosi’s testimony about appellant holding his hand over

S.M.’s mouth and threatening her during the assault, was harmless.

      Accordingly, we overrule point of error one.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).
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