                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00174-CR



         DENNIS EUGENE ALLEN, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
               Red River County, Texas
               Trial Court No. CR01914




       Before Morriss, C.J., Carter and Moseley, JJ.
            Opinion by Chief Justice Morriss
                                                 OPINION
         A jury convicted Dennis Eugene Allen of the aggravated sexual assault of his minor

daughter, K.A. After entering a plea of true to the State’s enhancement allegation, Allen was

sentenced to fifteen years’ imprisonment. 1 On appeal, Allen argues (1) that the evidence was

legally insufficient to support his conviction, (2) that the trial court erred in concluding that

Rebecca Peavy, the Executive Director of the Children’s Advocacy Center of Paris (CAC), was

the proper outcry witness, and (3) that the trial court erred in allowing Peavy to remain in the

courtroom during the testimony of the State’s key witnesses. 2

         We agree with Allen that the trial court erred both in determining that Peavy was the

proper outcry witness and in exempting Peavy from the witness exclusion rule; however, we also

conclude that the trial court’s errors with respect to Peavy were harmless. We further find that

the evidence was legally sufficient to support Allen’s conviction. Therefore, we affirm the trial

court’s judgment.

I.       The Evidence Was Legally Sufficient to Support the Jury’s Verdict

         In evaluating legal sufficiency in this case, we must review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found,


1
 In this case, the State alleged that Allen was convicted of intentionally or knowingly causing K.A.’s sexual organ to
contact his mouth on or about May 13, 2012. Allen also appeals three other convictions of aggravated sexual assault
against K.A. In cause number 06-13-00173-CR, Allen was convicted of intentionally or knowingly penetrating
K.A.’s sexual organ with his finger on or about May 13, 2012. In cause number 06-13-00175-CR, Allen was
convicted of intentionally or knowingly penetrating K.A.’s sexual organ with his finger on or about October 8, 2008.
In cause number 06-13-00176-CR, Allen was convicted of intentionally or knowingly causing K.A.’s sexual organ
to contact his mouth on or about October 8, 2008.
2
 Allen also argued that the trial court improperly allowed irrelevant testimony regarding a case study involving
pregnant teenagers. We resolved this issue in our opinion in cause number 06-13-00173-CR.

                                                          2
beyond a reasonable doubt, that Allen committed the offense of aggravated sexual assault. See

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,

pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine

legal sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

        Here, the indictment alleged that, on or about May 13, 2012, Allen intentionally or

knowingly caused K.A.’s sexual organ to contact his mouth. A defendant commits aggravated

sexual assault of a child if he intentionally or knowingly causes the sexual organ of a child to

contact or penetrate his mouth. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B) (West

Supp. 2013).

        Twelve-year-old K.A. testified that Allen had sexually abused her many times, beginning

in the second grade. She told the jury that Allen’s job required him to remain away from home

                                                3
during the week, but that Allen “would normally mess with [her] on Saturdays or Sundays” when

he returned home.

       On May 13, 2012, the date of the incident for which Allen was prosecuted, K.A., who

then lived with her father, Allen, her stepmother, Jeanette Allen, her brother, Tristan, and her

stepbrother, Austin, was sitting on the couch in the living room playing a handheld video game

after a day of swimming and playing in the backyard. According to K.A., Allen woke her up at

10:00 p.m., picked her up and carried her to the laundry room, placed her on top of the washer

and dryer, and proceeded to sexually assault her. K.A. testified, “[Allen] pulled my pants down.

He was putting his tongue where I pee.”

       K.A. made an outcry shortly after this May 13 incident. At trial, K.A. testified, “I told

my Aunt Valerie [Williams] that my dad had been doing nasty stuff to me . . . [and] I also said he

puts his tongue where I pee.” After Williams reported K.A.’s allegations, K.A. was taken to

CAC to undergo a forensic interview conducted by Peavy. During this interview, K.A. reported

this May 13 incident as well as several other instances of abuse to Peavy.

       According to Peavy, K.A. reported during her CAC interview that Allen had “put her on

top of the washer and dryer . . . [and] put his tongue down there where she peed” on or about

May 13, 2012. However, Peavy testified that K.A.’s testimony was, at times, inconsistent with

the information she provided during her CAC interview. At trial, K.A. had also testified about

another incident that occurred when she was riding in Allen’s truck, but she could not remember

the date of this incident. According to K.A., she and Allen were on the way to the store to pick

up lettuce, tomatoes, and cigarettes, when Allen offered to purchase gum for K.A. if she allowed

                                                4
him to digitally penetrate her. K.A. testified, “[Allen] put his right hand in my shorts and started

messing with his middle finger where I pee.” During the CAC interview, K.A. told Peavy that

the incident in the truck had also occurred May 13, 2012. Peavy also testified that K.A.

discussed additional instances of abuse during her trial testimony that were not mentioned during

the CAC interview and that there were inconsistencies in K.A.’s recollection of details, such as

the type of clothing that she was wearing during the incidents.

         Dr. Matthew Cox, a pediatrician at the University of Texas Southwestern Medical School

in Dallas examined K.A. on May 31, 2012, but found no trauma or physical evidence of sexual

abuse. Cox testified at trial that a lack of physical trauma was not uncommon among the victims

of sexual abuse that he examined. Cox explained that penetration could occur without tearing of

vaginal tissues and that any bruising or physical signs of sexual abuse might have already healed.

         Allen took the stand in his own defense and testified that he was never alone with K.A.

and that he never sexually assaulted her. Jeanette claimed (1) that no one had been swimming in

the pool May 13, (2) that Allen went to the store by himself on that day, 3 (3) that Allen did not

go to the store for lettuce or tomatoes because she served hotdogs that day, and (4) that she did

not witness any sexual abuse of K.A.

         Pointing to (1) inconsistencies in the record, (2) Cox’s testimony that he found no

physical evidence of sexual abuse, and (3) the testimony of Jeanette and her family members,

Allen argues that the evidence was legally insufficient to support his conviction.                              Child


3
 Jeanette’s father, Jerry Lester, testified that Allen drove by him in the truck May 13, 2012, and that no one else was
in the truck with him.

                                                          5
complainants are “not expected to testify with the same clarity and ability as is expected of a

mature and capable adult.” Hiatt v. State, 319 S.W.3d 115, 121 (Tex. App.—San Antonio 2010,

pet. ref’d) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)). However, the

testimony of a child victim alone is sufficient to support a conviction for aggravated sexual

assault. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014); Scott v. State, 202 S.W.3d

405, 408 (Tex. App.—Texarkana 2006, pet. ref’d).

         Here, K.A.’s testimony established that Allen intentionally or knowingly caused K.A.’s

sexual organ to contact his mouth on or about May 13, 2012, as alleged in the indictment. The

inconsistencies between the testimony of K.A., on the one hand, that of Allen, his wife, and her

family members, on the other, as well as Cox’s failure to find physical evidence of sexual abuse,

merely created fact and credibility issues which the jury resolved before entering its verdict. 4

Viewing the evidence in the light most favorable to the verdict, we find the evidence legally

sufficient to support Allen’s conviction for aggravated sexual assault. We overrule Allen’s first

point of error.

II.      The Trial Court’s Erroneous Conclusion that Peavy Was the Proper Outcry
         Witness Was Harmless

         Hearsay is not admissible at trial except as provided by statute or by the Texas Rules of

Evidence. See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (per curiam). Article

38.072 of the Texas Code of Criminal Procedure establishes an exception to the hearsay rule,

applicable in proceedings for prosecution of sexual offenses, for statements describing the

4
 The trier of fact may believe all, some, or none of a witness’ testimony because the fact-finder is the sole judge of
the weight and credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

                                                          6
offense made by a child “to the first person, 18 years of age or older, other than the defendant, to

whom the child . . . made a statement about the offense.” TEX. CODE CRIM. PROC. ANN. art.

38.072, § 2(a)(3) (West Supp. 2013).

            During a pretrial hearing, Allen challenged the State’s designation of Peavy as the proper

outcry witness. 5 At the hearing, Peavy testified that K.A. indicated “that she was the victim of

oral sexual abuse” during the forensic interview. K.A. testified that she first told Williams that

Allen had been “doing nasty things” including “put[ting] his tongue where I pee.” Williams’

affidavit, which was drafted on the day of Peavy’s forensic interview with K.A., documented

K.A.’s outcry. Williams averred that K.A. said Allen sexually abused her “all the time” and that

the last time she was sexually assaulted by Allen was May 13, 2012, in her house. After simply

agreeing with the State’s assertion that Peavy’s testimony was reliable, the trial court overruled

Allen’s objection to the designation and utilization of Peavy as the outcry witness.

            We review a trial court’s decision to admit an outcry statement under an abuse of

discretion standard. Owens v. State, 381 S.W.3d 696, 703 (Tex. App.—Texarkana 2012, no pet.)

(citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)). We will uphold the

trial court’s ruling if it is within the zone of reasonable disagreement. Id. (citing Divine v. State,

122 S.W.3d 414, 420 (Tex. App.—Texarkana 2003, pet. ref’d)). Because there is no discretion

in determining the applicable law, the trial court abuses its discretion when it fails to analyze the

law correctly and apply it to the facts of the case. State v. Ballard, 987 S.W.2d 889, 891 (Tex.

Crim. App. 1999).


5
    Allen also obtained a running objection to Peavy’s characterization and her testimony as the outcry witness.
                                                            7
        To be admissible under Article 38.072 of the Texas Code of Criminal Procedure, outcry

testimony must be elicited from the first adult to whom the outcry is made. Lopez v. State, 343

S.W.3d 137, 140 (Tex. Crim. App. 2011); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—

Texarkana 2000, pet. ref’d). Admissible outcry witness testimony is not person-specific, but

event-specific. Broderick, 35 S.W.3d at 73. To be a proper outcry statement, the child’s

statement to the witness must describe the alleged offense, or an element of the offense, in some

discernible manner and must be more than a general allusion to sexual abuse. Lopez, 343

S.W.3d at 140; Broderick, 35 S.W.3d at 73 (citing Thomas v. State, 1 S.W.3d 138, 140–41 (Tex.

App.—Texarkana 1999, pet. ref’d)).

        On appeal, the State argues that K.A.’s statements to Williams were not an outcry

because they amounted to nothing more than a general allusion to sexual abuse. 6 We disagree.

K.A. testified that she first told Williams that Allen “put[s] his tongue where I pee.” K.A. also

stated that the incident happened in her house on the Sunday before her outcry.                           K.A.’s

statements to Williams establishing how, when, and where the offense alleged in the State’s

indictment occurred constituted an outcry for purposes of Article 38.072 of the Texas Code of

Criminal Procedure, and the fact that they were made to Williams made her the proper outcry

witness in this case.

        Because we find that the trial court erred in failing to sustain Allen’s objection to Peavy’s

designation as the outcry witness, we must next determine whether the error was harmful. See


6
 The State also argued that, because Williams did not testify at trial, she must have been unavailable to testify.
There is nothing in the record suggesting that Williams, with whom K.A. was residing at the time of trial, was
unavailable.
                                                        8
TEX. R. APP. P. 44.2. “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 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, K.A. testified, without objection, to the same facts that were contained in her

outcry to Williams and in Peavy’s trial testimony.        As we previously determined, K.A.’s

testimony alone was sufficient to convict Allen. Therefore, we are reasonably certain that the

admission of Peavy’s testimony did not influence the jury verdict or had but a slight effect.

Accordingly, we find that the trial court’s error in allowing Peavy to testify as the outcry witness

in this case was harmless. Allen’s second point of error is overruled.

III.    The Trial Court’s Error in Allowing Peavy to Remain in the Courtroom Was
        Harmless

        In our opinion in Allen’s companion case, cause number 06-13-00173-CR, we

determined that the trial court’s decision to allow Peavy to remain in the courtroom was

erroneous. We incorporate the reasoning and holding in that case and now determine whether

the trial court’s error was harmful.

        A ‘“violation of an evidentiary rule, . . . is non-constitutional [error] . . . and will be

disregarded unless it affected the appellant’s substantial rights.”’ Bryant v. State, 282 S.W.3d

156, 161 (Tex. App.—Texarkana 2009, pet. ref’d) (quoting Russell v. State, 155 S.W.3d 176,
                                                 9
181 (Tex. Crim. App. 2005)). Thus “we need not reverse if, after examining the record as a

whole, we have fair assurance that the error did not influence the jury’s deliberations to

appellant’s detriment or had but a slight effect.” Ladd v. State, 3 S.W.3d 547, 566 (Tex. Crim.

App. 1999); see TEX. R. APP. P. 44.2(b).

       Prior to cross-examining K.A., Allen’s counsel attempted to explain the harm in allowing

Peavy to remain in the courtroom in the following colloquy:

       [N]ow the Court has heard testimony from the child on direct. The child, quite
       [sic], obviously has brought up different events, other events, changed some
       things and so forth. That’s for me to take up on my cross-examination; I
       understand that. My -- problem is—this goes back to Rebecca Peavy, who is
       now, you know, going to be our outcry witness. The Court has heard -- and also
       has been allowed to sit in the courtroom, over my objection to be excluded from
       the rule. . . .

              Considering the fact that the child’s testimony now is drastically different
       -- and what the outcry has been, I’m about to cross her and explore the facts and
       circumstances of why that story has changed.

              I think I’m greatly disadvantaged by Mrs. Peavy, who heard the initial
       outcry and is prepared to testify under one certain way, but now she’s benefitting
       from this additional information and is going to be preparing herself for my cross-
       examination of her.

       Rule 614 of the Texas Rules of Evidence “prevents corroboration, contradiction, and the

influencing of witnesses.” White v. State, 958 S.W.2d 460, 462 (Tex. App.—Waco 1997, no

pet.). In deciding whether the error of allowing Peavy to remain in the courtroom was harmful,

we consider (1) whether Peavy actually heard the testimony of other witnesses, and (2) whether

her testimony either contradicted the testimony of a witness from the opposing side or

corroborated testimony of a witness she heard. See Bryant, 282 S.W.3d at 161–62 (citing Webb

v. State, 766 S.W.2d 236, 239–40 (Tex. Crim. App. 1989); Wilson v. State, 179 S.W.3d 240, 248
                                               10
(Tex. App.—Texarkana 2005, no pet.)); Cooks v. State, 844 S.W.2d 697, 733 (Tex. Crim. App.

1992), superseded on other grounds as stated in Bell v. State, 415 S.W.3d 278, 281 (Tex. Crim.

App. 2013); White v. State, 958 S.W.2d 460, 465 (Tex. App.—Waco 1997, no pet.). The

appellant has the burden to demonstrate that the record supports a finding under both prongs.

Bryant, 282 S.W.3d at 162. If both of these criteria are met, the court’s decision to exempt

Peavy from the Rule most likely resulted in harm. See Ladd, 3 S.W.3d at 566; Cooks, 844

S.W.3d at 733; Chisum v. State, 988 S.W.2d 244, 251 (Tex. App.—Texarkana 1998, pet. ref’d);

Loven v. State, 831 S.W.2d 387, 399 (Tex. App.—Amarillo 1992, no pet.). However, the main

“question in assessing the harm of allowing [Peavy] to remain in the courtroom is whether [s]he

was influenced in h[er] testimony by the testimony [s]he heard.” See Russell v. State, 155

S.W.3d 176, 181 (Tex. Crim. App. 2005).

       Peavy testified after hearing K.A. and Cox testify. Although Peavy was finally excused

at the conclusion of her testimony and did not hear the testimony of the defense witnesses before

taking the stand, Peavy’s testimony corroborated K.A.’s allegation that Allen caused K.A.’s

sexual organ to contact his mouth on or about May 13, 2012. Initially, Peavy testified during her

direct testimony that the act occurred after Allen took the child to the laundry room. During

cross-examination, Peavy stated that K.A. told Peavy that the act occurred in her bedroom.

Peavy stated that there were inconsistencies in K.A.’s testimony that could have been the result

of the late hour and length of the CAC interview. Peavy clarified that K.A.’s trial testimony was

largely consistent with the CAC interview in that it matched K.A.’s descriptions of where and

what type of sexual abuse occurred at Allen’s hands. It is true that Peavy’s testimony did not

                                               11
relate merely to incidental matters and that it spoke to each of the elements the State was

required to prove to establish Allen’s guilt on the charged offense.

          After reviewing the entire record, however, we have fair assurance that the error either

had no influence on the jury’s deliberations or had such a slight effect that it was imperceptible.

First, Peavy’s testimony added nothing to K.A.’s trial testimony with respect to the sexual act

that formed the basis of the State’s indictment. Second, the State provided Allen with pretrial

notice that Peavy would testify that K.A. told her that Allen “messed with me with his fingers

and did other stuff” on May 13, 2012, that one of the sexual acts happened on the washer and

dryer.”    Third, K.A. was twelve years old at the time of trial, and her clearly articulated

testimony establishing the elements of the offense was consistent, strong, and unwavering, even

in the face of cross-examination. Fourth, testifying favorably to Allen, Peavy admitted that it

was possible that K.A. was lying due to the inconsistencies between her CAC interview and her

trial testimony. Allen’s counsel emphasized this point during closing argument, leaving the jury

to struggle with the issue of K.A.’s credibility. Fifth, Allen’s counsel, who was previously

provided with and had reviewed a copy of the CAC interview, failed to suggest that Peavy’s

testimony was inconsistent with the child’s CAC interview.

          Peavy merely recalled the statements that K.A. made during the CAC interview, even if

they were inconsistent with the statements by K.A. during trial. Therefore, because Peavy’s

testimony was limited to the statements by K.A. in the CAC interview, we cannot say that “[s]he

was influenced in h[er] testimony by the testimony [s]he heard.” See id. at 181. In light of the




                                                 12
entire record, we find the trial court’s error in exempting Peavy from the witness sequestration

rule harmless. Allen’s last point of error is overruled.

       We affirm the trial court’s judgment.



                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        May 5, 2014
Date Decided:          June 13, 2014

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