                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00064-CR


KEVIN D. TALKINGTON                                               APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1269829D

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                       MEMORANDUM OPINION1

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                              I.    Introduction

      Appellant Kevin D. Talkington appeals his conviction for indecency with a

child and aggravated sexual assault of a child. In a single issue, Talkington

argues that the trial court abused its discretion by allowing two witnesses to




      1
      See Tex. R. App. P. 47.4.
testify as to what Jane,2 the complainant, told them about Talkington’s alleged

inappropriate conduct toward her. We affirm.

                    II.   Facts and Procedural Background

      In January 2011, Jane, Talkington’s eleven-year-old stepdaughter, made

an outcry of sexual abuse to CPS investigator Jennifer Abbott. Jane told Abbott

that Talkington had “touched her privacy spot with his tongue, . . . licked her

chest, . . . put her on top of the washer and . . . laid on top of her and kissed her

and that one time in the shower that he pulled the curtain back [and] told her to

bend over and shake her tushy.” Following this interview, Abbott took Jane to

Alliance for Children, where Jane told forensic interviewer Joy Hallum that

Talkingtion had “put[] his mouth onto her vagina, touch[ed] her vagina with his

hands, put[] his penis to her anus, put[] his penis to her vagina, and then [had]

her put her mouth onto his penis.”

      At trial, Talkington objected to the “outcry” testimony of both Hallum and

Abbott. Specifically, Talkington argued that Abbott’s testimony was unreliable

and Hallum’s testimony should be limited to discussing the specific acts that

Abbott did not describe. The trial court held an outcry hearing and, after listening

to the testimony, overruled the objection.

      In addition to hearing Hallum’s and Abbott’s testimony, the jury also viewed

the video of Hallum’s forensic interview with Jane and heard testimony from Jane


      2
       To protect the privacy of the child, we refer to the child by a pseudonym.


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herself. Jane testified at length, describing several instances in which Talkington

had touched her inappropriately. Jane told the jury that Talkington placed his

hands and mouth on her breast and then moved his hands to her vagina. She

testified that another time Talkington had put his mouth on her vagina. Jane also

described another instance in which Talkington placed his mouth and hands on

her vagina and then engaged in anal sex with her. Lastly, Jane told the jury that

Talkington made her put her mouth on his penis. She testified that while the anal

sex only happened once, the touching with his hands and mouth happened often.

      The jury found Talkington guilty of two counts of indecency with a child by

contact and three counts of aggravated sexual assault. The court sentenced

Talkington to forty years’ confinement for aggravated sexual assault and fifteen

years’ confinement for indecency.

                             III.   Applicable Law

      Hearsay is not admissible except as provided by statute or by the rules of

evidence. See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).

Article 38.072 establishes a hearsay exception for statements made by a child “to

the first person, 18 years of age or older, other than the defendant, to whom the

[victim] . . . made a statement about the offense.” Tex. Code Crim. Proc. Ann.

art. 38.072 § 2(a)(3) (West 2005 & Supp. 2014); see also Lopez v. State, 343

S.W.3d 137, 140 (Tex. Crim. App. 2011). Admissible outcry witness testimony is

not person-specific but event-specific. Id.; West v. State, 121 S.W.3d 95, 104

(Tex. App.—Fort Worth 2003, pet. ref’d). In cases where a child has been victim


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to more than one instance of sexual assault, it is possible to have more than one

proper outcry witness. Solis v. State, No. 02-12-00529-CR, 2014 WL 1663405 at

*4 (Tex. App.—Fort Worth Apr. 24, 2014, no pet.) (mem. op., not designated for

publication); see also Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—

Texarkana 2000, pet. ref’d).

                         IV.   Argument and Analysis

      Talkington asserts on appeal that the trial court abused its discretion “in

permitting and not limiting the testimony of outcry witness Joy Hallum to the

matters not already disclosed to Jennifer Abbott.” Specifically, the trial court

allowed both outcry witnesses to testify to essentially the same act of aggravated

sexual assault. Abbott testified that Jane told her that Talkington had touched

her vagina with his tongue, and Hallum testified that Jane told her that Talkington

put his mouth on her vagina. Jane also testified, without objection, to the same

facts that were contained in her outcry statements to both Abbott and Hallum.

Jane described two specific and distinct instances in which Talkington had

placed his mouth on her vagina.

      Assuming, without deciding, that the trial court abused its discretion by

admitting Hallum’s testimony, we must determine whether the error was harmful.

“The admission of inadmissible hearsay constitutes nonconstitutional error, and it

will be considered harmless if the appellate court, after examining the record as a

whole, is reasonably assured that the error did not influence the jury verdict or

had but a slight effect.” Broderick, 35 S.W.3d at 74 (citing Johnson v. State, 967


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S.W.2d 410, 417 (Tex. Crim. App. 1998)). Likewise, admission of inadmissible

evidence is harmless error if other evidence that proves the same fact that the

inadmissible evidence sought to prove is admitted without objection at trial. Id.

      Here, Jane’s testimony as to the facts mirrored the contents of the outcry

statement testified to by Hallum. As Jane’s testimony alone was sufficient to

convict Talkington, we are reasonably certain that if the testimony given by

Hallum concerning the oral sex performed on Jane by Talkington influenced the

jury verdict at all, it had but a slight effect.    Tex. Crim. Proc. Code Ann.

art. 38.07(b)(1) (West 2005 & Supp. 2014); Bargas v. State, 252 S.W.3d 876,

888 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that a child victim’s

testimony was sufficient to support appellant’s conviction for aggravated sexual

assault despite her unsophisticated terminology and rough time-frame of events).

Therefore, assuming, without deciding, that the trial court erred in admitting part

of Hallum’s testimony, we hold that the error was harmless and overrule

Talkington’s sole issue.

                                V.    Conclusion

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

judgment.


                                                   /s/ Bonnie Sudderth
                                                   BONNIE SUDDERTH
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.



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

DELIVERED: April 30, 2015




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