Affirmed and Memorandum Opinion filed March 27, 2012.




                                        In The


                     Fourteenth Court of Appeals

                                NO. 14-10-00711-CR
                                NO. 14-10-00712-CR



                            LAURA PINEDA, Appellant


                                          V.


                         THE STATE OF TEXAS, Appellee


                      On Appeal from the 178th District Court
                               Harris County, Texas
                     Trial Court Cause Nos. 1173982 & 1173983



                       MEMORANDUM OPINION

      Appellant Laura Pineda was convicted in two separate cases of causing serious
bodily injury to a child and endangering a child. She was sentenced respectively to ten
years’ and two years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice, and her sentences were to run concurrently. On appeal, she argues
that the trial court erred in allowing J.P., a child, to testify via closed-circuit television,
and in admitting testimony about an outcry statement made by J.P. We affirm.

                                               I

       On June 9, 2007, Angel Sanchez Ponce drove from his construction jobsite in
Louisiana to Pineda’s house in Texas. He planned on picking up J.P. and S.S., two
children, for a visit. J.P. was Pineda’s eight-year-old son; S.S. was Pineda’s three-year-
old daughter. Ponce is unrelated to J.P., but he is S.S.’s father. Ponce arrived sometime
after 9 that evening. He was drunk. Pineda was sleeping when he arrived, but he woke
her up and asked to take the children. Without asking where Ponce intended to go with
the children, how she could reach him, or when he would return, Pineda allowed Ponce to
leave with the children.

       By this point, Ponce had consumed more than twenty beers. He took the children
to a hotel and ordered a pizza. When S.S. drank from one of Ponce’s beers, he punished
her by ordering her to disrobe from the waist down and lay on one of the hotel beds. He
then sodomized and raped her while J.P. sat about three feet away. S.S. screamed out in
pain; Ponce slapped her and told her to be quiet. Ponce panicked when he saw that S.S.
was bleeding heavily, and he tried to clean up the blood with the hotel’s towels.

       Ponce then put the children in his car and drunkenly drove around Houston for
hours, looking for a hospital. Eventually, Ponce was arrested and S.S. was taken to Texas
Children’s Hospital. J.P. was taken into the custody of the Texas Department of Family
Protective Services, Child Protection Services Division. Ponce admitted to raping and
sodomizing S.S., and he confessed to sodomizing J.P. in 2005.

       Because she allowed J.P. and S.S. to be in Ponce’s care, Pineda was indicted for
(1) causing serious bodily injury to S.S. intentionally and knowingly by omission, and (2)
putting J.P. in imminent danger of bodily injury. On the State’s motion, the two causes
were consolidated.




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                                               II

       We review the trial court’s admission of evidence using an abuse-of-discretion
standard. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); Nickerson
v. State, 312 S.W.3d 250, 255 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). While
a trial court has substantial discretion, it can abuse its discretion if its rulings are outside
of “that zone within which reasonable persons might disagree.” Nickerson, 312 S.W.3d at
255. A trial court’s ruling on the admissibility of evidence will be upheld if the record
reasonably supports the ruling. Id.

       Pineda first complains that the trial court’s decision to allow J.P. to testify via a
closed-circuit system violated her Sixth Amendment right to confrontation. In Maryland
v. Craig, the U.S. Supreme Court held that a defendant’s Sixth Amendment right to face-
to-face confrontation can give way to the State’s interest in protecting the welfare of
children. 497 U.S. 836, 853 (1990). If the State “makes an adequate showing of necessity,
the state interest in protecting child witnesses from the trauma of testifying . . . is
sufficiently important to justify the use of a special procedure that permits a child witness
. . . to testify at trial against the defendant in the absence of face-to-face confrontation
with the defendant.” Id. at 855.

       The Texas Court of Criminal Appeals has interpreted Craig to mean that before a
trial court is allowed to utilize a closed-circuit system of transmitting a child’s testimony
into the courtroom, the court must hear evidence and make a case-specific determination
that: (1) the procedure is necessary to protect the welfare of the child witness; (2) the
child witness would be traumatized, not by the courtroom generally, but by the presence
of the defendant; and (3) the emotional distress suffered by the child in the presence of
the defendant is more than mere nervousness, excitement, or some reluctance to testify.
Hightower v. State, 822 S.W.2d 48, 51 (Tex. Crim. App. 1991). If the trial court makes
these findings, then the Confrontation Clause does not prohibit the use of a child’s
testimony via a closed-circuit system. Id.



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       The trial court held a hearing under article 38.071 of the Texas Code of Criminal
Procedure to determine whether it would be appropriate to allow J.P. to testify via a
closed-circuit system. During that hearing, J.P.’s therapist testified that, on top of normal
nervousness related to testifying, J.P. was especially nervous about seeing Pineda. She
testified that, when she asked J.P. how he would feel if he saw Pineda, J.P. “turned white
and he just shut down.” J.P’s adoptive mother also testified at the hearing. She testified
that J.P. had not seen Pineda in nearly two years and that, though J.P. is normally happy,
he becomes “very withdrawn and introverted, upset, [and] sad” when he talks about
Pineda.

       In light of this testimony, we do not believe the trial court abused its discretion in
its implicit findings that (1) allowing J.P. to testify via a closed-circuit system was
necessary to protect his welfare; (2) J.P. would be traumatized by Pineda’s presence, not
the courtroom generally; and (3) the distress suffered by J.P. in Pineda’s presence would
be more than mere nervousness, excitement, or some reluctance to testify. See Hightower,
822 S.W.2d at 51. We overrule Pineda’s first issue.

                                             III

       Next, we turn to Pineda’s argument that the trial court erred by allowing three
witnesses to testify regarding J.P.’s alleged outcry statement regarding Ponce’s abuse of
S.S. In cases alleging aggravated sexual assault of a child, an outcry witness’s hearsay
testimony about a child’s statement is admissible if: (1) the statement describes the
alleged offense; (2) the statement was made by the child against whom the charged
offense was allegedly committed; (3) the witness is the first person, eighteen years of age
or older, other than the defendant, to whom the child made the statement; (4) the party
intending to offer the statement provides written notice of that intention—along with a
summary of the statement and the name of the witness—at least fourteen days before the
proceeding begins; (5) the trial court finds, in a hearing outside the jury’s presence, that
the statement is reliable based on the time, content, and circumstances of the statement;
and (6) the child testifies or is available to testify at the proceeding. Tex. Code Crim.

                                             4
Proc. art. 38.072 § 2; Shaw v. State, 329 S.W.3d 645, 652 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d).

       If a defendant objects based on hearsay, the State bears the burden of proving
every element of the statute. Shaw, 329 S.W.3d at 652. When a trial court overrules an
objection, the appellate court will infer that the State met its burden. Id. When reviewing
a claim challenging a trial court’s decision to admit evidence for an abuse of discretion,
we will reverse only when the decision falls outside the zone of reasonable disagreement.
Id. Whether the decision falls within the zone of reasonable disagreement depends upon
whether any ground exists which, based upon the record, supports the court’s decision.
State v. Wallett, 31 S.W.3d 329, 331 (Tex. App.—Amarillo 2000, no pet.). And, in
making that determination, we construe the record in a light most favorable to the court’s
decision. Id. When a court admits evidence over an objection, even in error, it is not
reversible when the same evidence is subsequently admitted without objection. Zarco v.
State, 210 S.W.3d 816, 833 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

       Because Texas law only permits outcry testimony concerning statements “made by
the child against whom the charged offense . . . was allegedly committed,” the trial court
committed clear error in cause number 1173982 (endangering S.S. by omission) when it
admitted outcry testimony concerning statements made by J.P. See Tex. Code Crim. Proc.
art. 38.072. Nevertheless, the error was harmless. The admission of inadmissible hearsay
constitutes non-constitutional error, and it will be considered harmless if a reviewing
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. Chapman v. State, 150 S.W.3d 809,
814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d.). In assessing the likelihood that
the jury’s decision was adversely affected by the error, the appellate court should
consider everything in the record, including any testimony or physical evidence admitted
for the jury’s consideration, 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. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).


                                            5
      Here, Ponce and J.P. both testified that appellant had multiple confrontations with
Ponce concerning the abuse. Further, J.P. testified—without objection—to the same facts
covered by the improper outcry witnesses. In light of this, we conclude that the
erroneously admitted testimony had, at most, a slight effect on the jury’s verdict, and we
overrule Pineda’s second issue. See Chapman, 150 S.W.3d at 814.

                                          ***

      For the foregoing reasons, we affirm the trial court’s judgment.




                                         /s/       Jeffrey V. Brown
                                                   Justice



Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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