                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NOS. 02-10-00350-CR
                                  02-10-00351-CR


JOHNNY PATTERSON                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


                                    ------------

          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                       MEMORANDUM OPINION1
                                    ------------

                               I.    Introduction

      In seven points, Appellant Johnny Patterson appeals his convictions for

one count of improper photography, one count of indecency with a child, and two

counts of aggravated sexual assault of a child. We affirm.




      1
       See Tex. R. App. P. 47.4.
                   II.   Factual and Procedural Background

      The State charged Patterson with one count of indecency with a child and

two counts of aggravated sexual assault of a child in cause number F-2007-

1144-B and two counts of improper photography and three counts of possession

of child pornography in cause number F-2008-0517-B. On July 19, 2010, the day

the jury was impaneled and sworn, Patterson filed a motion to quash the two

counts of improper photography, arguing that the State omitted an essential

element—lack of consent—and that this violated his due process rights. The trial

court overruled this motion.

      The jury found Patterson guilty on all counts in cause number F-2007-

1144-B and assessed ten years‘ imprisonment for the indecency count, life

imprisonment for each count of aggravated sexual assault, and an additional

$10,000 fine for each count.2 The jury also found him guilty of one count of

improper photography, sentenced him to two years‘ imprisonment, and assessed

a $10,000 fine.3




      2
        Count one (aggravated sexual assault of a child by penetration) alleged,
in pertinent part, that Patterson intentionally or knowingly caused the penetration
of J.P.‘s sexual organ by his finger on or about August 1, 2004. Count two
(aggravated sexual assault of a child by contact) alleged, in pertinent part, that
Patterson intentionally or knowingly caused his sexual organ to contact J.P.‘s
sexual organ on or about July 20, 2005.
      3
       This count alleged, in pertinent part, that improper photography occurred
on or about October 10, 2006.

                                        2
                                  III.   Indictment

      In his third point, Patterson complains of error in the improper photography

indictment, arguing that the State failed to include the ―without consent‖ element.

However, if a defendant fails to object to an alleged error in an indictment before

the date on which the trial on the merits commences, he forfeits the right to

object to the error and may not raise the objection on appeal. See Tex. Code

Crim. Proc. Ann. art. 1.14(b) (West 2005); Sanchez v. State, 138 S.W.3d 324,

330 (Tex. Crim. App. 2004); Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim.

App. 1998) (―Now a defect of substance in a charging instrument does not

automatically render a judgment void.‖). Therefore, by failing to file his motion to

quash before trial began on July 19, 2010, Patterson has waived this complaint.

See Sanchez, 138 S.W.3d at 329–30 (recognizing that trial on the merits begins

when the jury is impaneled and sworn); State v. Lohse, 881 S.W.2d 171, 171

(Tex. App.—Houston [1st Dist.] 1994, no pet.) (―A motion to quash filed on the

day of trial is too late.‖). Accordingly, we overrule Patterson‘s third point.

                                 IV.     Jury Charge

      In his fourth and fifth points, Patterson claims that the trial court denied him

due process by instructing the jury on lack of consent when the State failed to

include that element of improper photography in the indictment.

      In contrast to the indictment, which serves a notice function to the

defendant, the purpose of the jury charge is to ―inform the jur[ors] of the

applicable law and guide them in its application to the case.‖ Delgado v. State,

                                           3
235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Dinkins v. State, 894 S.W.2d 330,

339 (Tex. Crim. App.), cert. denied, 516 U.S. 832 (1995). Therefore, the trial

court ―must ensure that all of the law applicable to the criminal offense that is set

out in the indictment or information is incorporated into the jury charge.‖

Delgado, 235 S.W.3d at 249.

      The jury instructions may not expand the indictment. Reed v. State, 117

S.W.3d 260, 265 (Tex. Crim. App. 2003) (holding that the trial court improperly

broadened the indictment by including ―recklessly‖ in the jury instructions when

the indictment alleged ―intentionally‖ and ―knowingly‖). Instead, the instructions

must distinctly set forth the law applicable to the case and set out all of the

essential elements of the offense. Martin v. State, 200 S.W.3d 635, 639 (Tex.

Crim. App. 2006). Indeed, ―[a] jury charge is fundamentally defective if it omits

an essential element of the offense or authorizes conviction on a set of facts that

do not constitute an offense.‖     Green v. State, 233 S.W.3d 72, 79–80 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref‘d) (citing Zuckerman v. State, 591

S.W.2d 495, 496 (Tex. Crim. App. [Panel Op.] 1979)). In our review of a jury

charge, we first determine whether error occurred; if error did not occur, our

analysis ends. See Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App.

1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).

      The version of section 21.15 of the penal code in effect on the date of the

offense included the following:



                                         4
      A person commits [improper photography] if the person:
      (1) photographs or by videotape or other electronic means visually
      records another: (A) without the other person‘s consent; and
      (B) with intent to arouse or gratify the sexual desire of any
      person . . . .

Act of June 20, 2003, 78th Leg., R.S., ch. 500, § 1, sec. 21.15(b)(1), 2003 Tex.

Gen. Laws 1771, 1771 (amended 2007) (current version at Tex. Penal Code

Ann. § 21.15(b) (West 2011)). Therefore, to properly set out all of the essential

elements of improper photography, the jury charge had to include the ―without

consent‖ provision. See id.; Green, 233 S.W.3d at 81 (noting that the defective

instruction failed to include the elements required to constitute the offense).

Rather than broadening the theory set forth in the indictment, the inclusion of the

―without consent‖ provision properly narrowed the offense because, absent this

provision, the photography could not have been ―improper.‖ See Act of June 20,

2003, 78th Leg., R.S., ch. 500, § 1, sec. 21.15(b), 2003 Tex. Gen. Laws 1771,

1771 (amended 2007); Curry v. State, 30 S.W.3d 394, 402 (Tex. Crim. App.

2000) (noting that ―[r]estraint is not restraint unless it is without consent‖ and

stating that, because there are no alternatives to ―without consent‖ in a restraint

charge, there would be no need for the State to make this allegation in a restraint

indictment in order to provide notice).     Because we determine that the jury

instruction was not erroneous, see Abdnor, 871 S.W.2d at 731–32, we overrule

Patterson‘s fourth and fifth points.




                                        5
                                V.     Outcry Witness

         In his second and seventh points, Patterson complains that the trial court

abused its discretion by allowing the forensic interviewer to be the outcry witness

for both counts of aggravated sexual assault of a child.

A. Trial Testimony

         1. J.P.

         J.P. is Patterson‘s daughter, who was fourteen years old at the time of trial.

She testified that when she was in the third grade, she awoke on her back to find

her father lying on his side next to her in her bed. She testified that he had his

hand underneath the top waistband of her pants and was touching her

inappropriately. She testified that he was touching her ―private parts‖ 4 but that at

no point did his finger ever go inside of her private parts. J.P. stated that she

moved his hand away, got out of bed, and told her mother what had happened.

         J.P. testified that on another occasion, she was in the bathtub when

Patterson entered the bathroom, undressed, and got into the bathtub with her.

He asked J.P. to sit with him, and she did so, facing him. She testified that she

felt his private part touch hers but that it did not appear that he was trying to

penetrate her. She recalled that she did not tell her mother about this incident

because Patterson told her not to, and she was scared.



         4
         She clarified that by ―private parts,‖ she meant the ―front part that you pee
from.‖

                                            6
       J.P. testified that in March 2007, she spoke with a Child Protective

Services (CPS) worker about the sexual abuse and discussed the abuse in great

detail with Julianne McKamie,5 a forensic interviewer at the Children‘s Advocacy

Center. J.P. stated that other than McKamie, J.P. had not spoken in detail about

the abuse with any other adult, except that she told her mother about the

bedroom incident.

       2. J.P.’s Mother

       Jasmine,6 Patterson‘s ex-wife and J.P.‘s mother, testified that in August

2004, she went into J.P.‘s bedroom to find J.P. lying in bed between the wall and

Patterson. J.P. told her that she wanted to get up, so Jasmine helped her out of

bed and asked her if anything was wrong. Jasmine testified as follows:

       Q. What did she say happened?

       A. She told me that Daddy had put his hands under her panties and
       was touching her privates.

       Q. Did she say how he was touching her privates?

       A. At first she just told me, you know, that she was -- you know, that
       he had touched her. And so then I asked her, well, you know, how
       did he touch you? And she just kind of kept telling me that, you
       know, he was touching her.

       So, you know, I asked her, I was like, well, did he put his fingers on
       you or in you? And she just, well, he tried to put them in me. I

       5
     By the date of trial, Julianne Khan had changed her last name to
McKamie.
       6
         J.P.‘s mother‘s initials are also J.P., so for clarity, we will refer to her using
the fictitious name ―Jasmine.‖

                                            7
      asked her, did he put them all the way in you? No, he didn‘t get
      them all the way in me but he was trying.

      3. McKamie

      During J.P.‘s forensic interview7 with McKamie on March 28, 2007, J.P.

told McKamie that on the occasion in her bed, she woke up that morning to find

Patterson lying next to her and touching her ―front private.‖ 8 She said that his

hand would touch her skin, that he would stop, and that his hand would go back

underneath her clothes. She also said that Patterson‘s finger pushed on her

front private and went ―inside and out.‖ She clarified that his finger ―would just go

in and out and then it would hurt really bad.‖ She said that ―it really hurt‖ and that

later it felt ―like something was stinging.‖

      Additionally, J.P. told McKamie that, on the occasion in the bathtub,

Patterson‘s ―private touched her private.‖ She elaborated that he was trying to

put his private part ―inside,‖ specifically ―the middle . . . in between the front and

the back,‖ the same way that his finger did on the occasion in her bed. She also

said that his finger did the same thing that it did on the occasion in her bed. She

stated that Patterson told her not to tell Jasmine about the bathtub incident but

that she told Jasmine about it later. J.P. said that other than talking to McKamie

      7
       The State offered into evidence a segment of the DVD recording of J.P.‘s
forensic interview with McKamie. Patterson objected to admission of the DVD,
arguing that J.P. made her outcry statement to her mother rather than to
McKamie and that, therefore, the DVD was hearsay. The trial court admitted,
and the State published before the jury, a thirteen-minute segment of the DVD.
      8
       J.P. identified the ―front private‖ as the part that a person uses to ―go pee.‖

                                               8
and to Jasmine, she had not talked to anyone else about Patterson touching her

inappropriately.

      4. Lindsey Green

      Green testified that she was the CPS worker assigned to J.P.‘s case. She

arrived unannounced at the Patterson home and spoke with J.P. for twenty or

thirty minutes before notifying law enforcement of the allegation and setting up a

forensic interview with a member of the advocacy center. Green explained that

CPS found, by a preponderance of the evidence, ―reason to believe‖ that the

allegations were true, but she clarified that this was not a judicial determination

and was not a reasonable doubt standard.

      5. Denton County Sheriff’s Office Investigator Toby Crow

      Investigator Crow testified that he read the CPS referral when he was

assigned to investigate the allegations against Patterson. Next, he observed the

forensic interview at the advocacy center, he interviewed Jasmine, he obtained a

warrant, and Patterson was arrested.

B. Applicable Law

      The trial court has broad discretion in determining the admissibility of

evidence. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). We

review the trial court‘s decision to admit an outcry witness‘s testimony for an

abuse of discretion and will not reverse the trial court‘s ruling if it is within the

zone of reasonable disagreement.         Id. (recognizing that a clear abuse of



                                         9
discretion must be established by the record); see Tear v. State, 74 S.W.3d 555,

558 (Tex. App.—Dallas 2002, pet. ref‘d), cert. denied, 538 U.S. 963 (2003).

      Article 38.072 creates a statutory exception to the general rule excluding

hearsay evidence for a child abuse victim‘s initial outcry statement.       Klein v.

State, 191 S.W.3d 766, 779 (Tex. App.—Fort Worth 2006), rev’d on other

grounds, 273 S.W.3d 297 (Tex. Crim. App. 2008); see Tex. Code Crim. Proc.

Ann. art. 38.072 (West Supp. 2011). The outcry statute applies only to the child

victim‘s statements that, in pertinent part, (1) describe the alleged offense and (2)

were made to the first person, eighteen 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)(1)(A), (3). A statement about the offense is a

statement that ―in some discernible manner describes the alleged offense‖ and

gives ―more than a general allusion of sexual abuse.‖ Garcia, 792 S.W.2d at 91.

      The outcry exception is only available for one witness ―unless the child

revealed discrete occurrences of the same offense, or revealed different

offenses, to separate adults.‖ Reynolds v. State, 227 S.W.3d 355, 369 (Tex.

App.—Texarkana 2007, no pet.); see Quinones v. State, Nos. 13-10-00140-CR,

13-10-00141-CR, 13-10-00142-CR, 2011 WL 3841586, at *9 (Tex. App.—Corpus

Christi Aug. 25, 2011, no pet.) (mem. op., not designated for publication) (“[S]o

long as separate outcry witnesses testify about separate offenses, the testimony

of each is admissible.‖) (citing Broderick v. State, 35 S.W.3d 67, 73–74 (Tex.

App.—Texarkana 2000, pet. ref‘d) (―[A]n outcry witness is not person-specific,

                                         10
but event-specific.‖)). For instance, ―[i]f the child victim first described one type of

abuse to one outcry witness, and first described a different type of abuse to a

second outcry witness, the second witness could testify about the different

instance of abuse.‖ Tear, 74 S.W.3d at 559.

      However, the outcry statement must actually describe different events and

―not simply [be] a repetition of the same event as related by the victim to different

individuals.‖ Broderick, 35 S.W.3d at 73. Indeed, ―the proper outcry witness is

not to be determined by comparing the statements the child gave to different

individuals and then deciding which person received the most detailed statement

about the offense.‖ Brown v. State, 189 S.W.3d 382, 386 (Tex. App.—Texarkana

2006, pet. ref‘d).

      Further, the child victim‘s statement to the outcry witness must describe

the alleged offense, not just any offense.        Tex. Code Crim. Proc. Ann. art.

38.072, § 2(a)(1)(A); Brown, 189 S.W.3d at 386 (reviewing victim‘s description of

the offense and noting that it tracked the language of the statute defining the

offense for which appellant was convicted); see Pierce v. State, No. 10-09-

00320-CR, 2010 WL 2683052, at *1–2 (Tex. App.—Waco July 7, 2010, no pet.)

(mem. op., not designated for publication) (holding that trial court did not abuse

its discretion by permitting forensic interviewer‘s outcry testimony that appellant

had inserted his tongue into victim‘s vagina when other witness‘s testimony that

appellant had touched victim‘s vagina did not describe charged offense—

appellant penetrating victim‘s sex organ with his tongue—in any discernible way);

                                          11
Sledge v. State, No. 03-03-00092-CR, 2004 WL 438958, at *1–3 (Tex. App.—

Austin Mar. 11, 2004, no pet.) (mem. op., not designated for publication) (holding

that when both allegations arose out of the same act, allowing testimony of both

outcry witnesses was not an abuse of discretion when one witness‘s testimony

went to the indecency with a child allegation and other witness‘s testimony went

to the penetration element of the aggravated sexual assault allegation); Turner v.

State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref‘d) (holding that

officer was the appropriate outcry witness because, even though victim told

counselor that appellant penetrated her vagina with his finger, she told officer,

not counselor, that appellant penetrated her with his penis, as alleged in the

indictment).

C. Analysis

      1. Count One—Penetration

      In his second point, Patterson contends that Jasmine was the proper

outcry witness for count one.

               a. Proper Outcry Witness

      First, Patterson argues that Jasmine was the first person to whom J.P.

made a statement that was more than a general allusion of sexual abuse, even

though J.P. did not tell her that Patterson penetrated her sexual organ.




                                        12
                   i. Error

      Because Jasmine testified as an outcry witness,9 the question is whether

McKamie was also a proper outcry witness. See Fuller v. State, No. 06-00-

00032-CR, 2001 WL 691249, at *1–2 (Tex. App.—Texarkana June 21, 2001, pet.

ref‘d) (not designated for publication) (permitting mother to testify as the first

person to whom the victim related the offense in a discernible manner—by

stating that appellant pushed victim on the bed and laid on top of her—and also

permitting detective to testify about the particular act—that appellant fondled her

breasts—as alleged in the indictment) (citing Broderick, 35 S.W.3d at 73–74, and

Turner, 924 S.W.2d at 183). Our analysis considers whether J.P.‘s statement to

McKamie (1) described the alleged offense in a discernible manner, see Tex.

Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A); Garcia, 792 S.W.2d at 91;

Brown, 189 S.W.3d at 386, and (2) described different events such that the

statement was ―not simply a repetition of the same event as related by the victim

to different individuals.‖ See Broderick, 35 S.W.3d at 73.

      A person commits aggravated sexual assault of a child by penetration

when he, in pertinent part, intentionally or knowingly causes the penetration of a

child‘s sexual organ by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i)

(West Supp. 2011).      As Patterson implicitly concedes, J.P.‘s statement to

      9
       Patterson does not complain that Jasmine was not a proper outcry
witness but, rather, contends that she was the only proper outcry witness.
Therefore, we do not address the trial court‘s decision to let Jasmine testify as an
outcry witness. See Tex. R. App. P. 47.1.

                                        13
McKamie sufficiently described this offense as alleged in count one of the

indictment when she explained to McKamie that she awoke that morning in her

bed to find Patterson‘s finger pushing on her front private part and going ―inside

and out.‖ See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A), (3); Garcia,

792 S.W.2d at 91; Sledge, 2004 WL 438958, at *3. Because J.P. described the

alleged offense to McKamie in a discernible manner, McKamie was a proper

outcry witness as long as the published portion of J.P.‘s statement to McKamie

did not repeat the same events about which Jasmine testified. See Garcia, 792

S.W.2d at 91; Brown, 189 S.W.3d at 386; Broderick, 35 S.W.3d at 73 (holding

that officer was not a proper outcry witness for the ―touching‖ allegation because

victim had previously told mother the same story in a discernible manner but that

officer was the proper outcry witness for the allegation that appellant licked

victim‘s genitals because officer was the first person to whom victim told that

portion of the story).

      McKamie was the first person to whom J.P. described the act of

penetration in a discernible manner when J.P. said that Patterson‘s finger went

―in and out‖ of her front private part. See Garcia, 792 S.W.2d at 91. While J.P.

had previously told Jasmine that Patterson did not get his fingers ―all the way in,‖

it was within the zone of reasonable disagreement for the trial court to treat this

ambiguous statement as a denial of penetration and, thus, not an outcry

statement. See Divine v. State, 122 S.W.3d 414, 419 (Tex. App.—Texarkana

2003, pet. ref‘d) (―[T]he child did not make an outcry about penetration to the

                                        14
grandmother, but did make such an outcry to the interviewer. The fact the child

denied penetration had occurred in her statement to the grandmother does not

make the later outcry inadmissible, or change its nature.‖); Tear, 74 S.W.3d at

558. Therefore, it was not an abuse of discretion for the trial court to permit

McKamie to be the outcry witness for the specific act of penetration. See Tear,

74 S.W.3d at 558; Fuller, 2001 WL 691249, at *1–2 (holding that trial court did

not abuse its discretion by permitting detective to testify in ―a limited fashion‖

about only the particular act not covered by mother‘s testimony).

      However, when J.P. told McKamie that she woke up to find Patterson lying

next to her, putting his hand underneath her clothing, and touching the skin on

the outer portion of her front private part, J.P. had already made similar

statements regarding this touching to Jasmine. Therefore, these statements to

McKamie constituted ―a repetition of the same event as related by the victim to

different individuals.‖ See Broderick, 35 S.W.3d at 73.

      Instead of comparing these statements and deciding which person

received the most detailed statement about the offense, see Brown, 189 S.W.3d

at 386, we hold that Jasmine, not McKamie, was the proper outcry witness for

these statements that, for the first time, described the touching in a discernible

manner. See Garcia, 792 S.W.2d at 91. Therefore, the trial court abused its

discretion by allowing the State to play a longer segment of the video than

necessary—J.P.‘s entire statement to McKamie regarding the August 1

incident—and not limiting the published portion of the video regarding this count

                                       15
to the segment relating only to penetration.     See Tear, 74 S.W.3d at 558;

Broderick, 35 S.W.3d at 74 (holding that trial court abused its discretion by not

limiting second outcry witness‘s testimony to only the additional act about which

victim told him).

                    ii. Harm

      Having found error, we must conduct a harm analysis to determine

whether the error calls for reversal. Tex. R. App. P. 44.2. The admission of

inadmissible hearsay constitutes nonconstitutional error, Broderick, 35 S.W.3d at

74, and it will be considered harmless if we, on examination of the entire record,

are reasonably assured that the error did not influence the jury verdict or had no

more than a slight effect, such as when ―substantially the same evidence‖ is

admitted elsewhere without objection. Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App.

1991).

      Here, J.P. testified without objection about the alleged touching.     This

evidence was substantially similar to the portion of McKamie‘s interview with J.P.

that was improperly admitted. See Mayes, 816 S.W.2d at 88; Fuller, 2001 WL

691249, at *3 (holding that error in permitting two witnesses to testify to some

degree about the same hearsay statement was harmless because the victim

testified about the same events in detail); Broderick, 35 S.W.3d at 74 (holding

that the trial court‘s error in admitting improper outcry witness testimony was

harmless in part because the victim testified at trial about the same details).

                                       16
Therefore, based on the record as a whole, we are reasonably assured that

allowing the improper outcry testimony did not influence the jury verdict or had

but a slight effect, and we find this error to be harmless. See Johnson, 967

S.W.2d at 417. Accordingly, we overrule this portion of Patterson‘s second point.

            b. Notice

      Next, Patterson argues that the State failed to give sufficient notice of its

intent to call McKamie as the outcry witness for count one because it had

designated Jasmine, not McKamie, as the outcry witness for that count.10

                   i. Error

      Article 38.072 requires that the party intending to offer the outcry statement

must timely provide the adverse party with notice of its intent to offer the

statement, the name of the witness through whom it intends to offer the

statement, and a written summary of the statement. Tex. Code Crim. Proc. Ann.

art. 38.072, § 2(b)(1); Long, 800 S.W.2d at 547 (recognizing that these provisions

are mandatory).

      The State‘s timely motion to admit J.P.‘s hearsay statements specified that

it would seek to admit statements ―made by [J.P.] to the witnesses [Jasmine]

Patterson (Count I) and Julie [McKamie] (Count II & III).‖         Also, the State

attached a written summary detailing J.P.‘s statement to McKamie, which

      10
       Patterson‘s hearsay objection at trial preserved his notice complaint.
See Long v. State, 800 S.W.2d 545, 547–48 (Tex. Crim. App. 1990) (holding that
a defendant‘s hearsay objection is sufficient to preserve error for any failure to
comply with article 38.072).

                                        17
included the statements that we set out above describing penetration. Therefore,

the State complied with the statute insofar as the State notified Patterson of its

intent to offer J.P.‘s statement to McKamie and provided Patterson with a written

summary of the statement.      See Tex. Code Crim. Proc. Ann. art. 38.072, §

2(b)(1). However, a ―statement‖ under article 38.072 is one that describes the

alleged offense, not just any offense, and an outcry witness is offense-specific.

See id. § 2(a)(1)(A); Broderick, 35 S.W.3d at 73. Therefore, we conclude that

because the State indicated that Jasmine, rather than McKamie, would be the

witness through whom it intended to offer J.P.‘s statement regarding count one,

the State did not strictly comply with article 38.072‘s requirement to identify ―the

name of the witness through whom it intends to offer the statement.‖ See Tex.

Code Crim. Proc. Ann. art. 38.072, § 2(b)(1)(B).

                   ii. Harm

      Because the State failed to comply with this mandatory notice requirement,

we must again conduct a harm analysis pursuant to rule 44.2(b) and disregard

the error if it did not affect Patterson‘s substantial rights. See Tex. R. App. P.

44.2(b); Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992); Wheeler v.

State, 79 S.W.3d 78, 84 (Tex. App.—Beaumont 2002, no pet.). The purpose of

article 38.072‘s notice requirement is to prevent a defendant from being surprised

at trial by the outcry testimony. Gabriel v. State, 973 S.W.2d 715, 719 (Tex.

App.—Waco 1998, no pet.). Therefore, in deciding if a failure to comply with this

requirement is harmless error, we review the record to determine whether

                                        18
Patterson was actually surprised by the outcry evidence and was prejudiced by a

lack of notice. See Zarco v. State, 210 S.W.3d 816, 832 (Tex. App.—Houston

[14th Dist.] 2006, no pet.); Upton v. State, 894 S.W.2d 426, 429 (Tex. App.—

Amarillo 1995, pet. ref‘d).

      Patterson did not argue actual surprise either at trial or in his brief, nor

does the record reflect that he was surprised by the outcry witness evidence.

See Padilla v. State, 278 S.W.3d 98, 107 (Tex. App.—Texarkana 2009, pet.

ref‘d) (stating that appellant failed to identify any harm and that, even if he had, it

would not have been supported by the record); Zarco, 210 S.W.3d at 832–33

(holding that appellant was not harmed because he did not argue actual surprise

at trial or on appeal and because he could not reasonably have done so based

on the record). Instead, the record shows that Patterson received timely notice

of the statement itself; the State only failed to specify that it would offer this

statement to prove count one. See Zarco, 210 S.W.3d at 832–33 (―In actuality,

appellant did receive sufficient notice of the statement itself; only the identity of

the witness information was tardy.‖). Therefore, Patterson had actual notice of

the State‘s intent to use the outcry testimony and was not harmed by the notice

error. See Berotte v. State, 992 S.W.2d 13, 19 (Tex. App.—Houston [1st Dist.]

1997, pet. ref‘d) (―[A]ny error was harmless because appellant had actual notice

of the State‘s intent to use the outcry testimony.‖); Gottlich v. State, 822 S.W.2d

734, 737 (Tex. App.—Fort Worth 1992, pet. ref‘d) (―[W]e hold that [appellant] had

adequate notice of the actual content of the outcry statement and could not have

                                          19
suffered any surprise or harm from the outcry testimony.‖), overruled on other

grounds by Curry v. State, 861 S.W.2d 479 (Tex. App.—Fort Worth 1993, pet.

ref‘d). Accordingly, we overrule Patterson‘s second point.

      2. Count Two—Contact

      In his seventh point, Patterson argues that Green, rather than McKamie,

was the appropriate outcry witness for count two. Specifically, Patterson claims

that it is clear that J.P. described aggravated sexual assault of a child by contact

to Green because Green spoke with J.P. for twenty minutes, Green had reason

to believe that the allegations were true, and J.P.‘s statement to Green led to

Patterson‘s arrest.

      A person commits aggravated sexual assault of a child by contact when

he, in pertinent part, intentionally or knowingly causes his sexual organ to contact

the sexual organ of a child. Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (West

Supp. 2011). We may only find an abuse of discretion if it is established by the

record, see Garcia, 792 S.W.2d at 92, and the record reflects that J.P. told

McKamie that Patterson caused his sexual organ to contact her sexual organ

during the bathtub incident. Therefore, J.P. described the alleged offense in a

discernible manner such that McKamie was the appropriate outcry witness as

long as she was the first adult to whom J.P. made this statement. See Tex.

Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A), (3); Garcia, 792 S.W.2d at 91.

The record is devoid of any indication that J.P. made a statement to Green that

related to this allegation. Because we cannot determine from the record what

                                        20
J.P. said to Green, we conclude that the trial court did not abuse its discretion by

ruling, on the evidence before it, that McKamie was the proper outcry witness for

count two. See Garcia, 792 S.W.2d at 91–92 (holding that, in the absence of

evidence in the record regarding what victim told ―witness A,‖ trial court did not

abuse its discretion by ruling that ―witness B‖ was the proper outcry witness).

Accordingly, we overrule Patterson‘s seventh point.

                                VI.    Sufficiency

      In his first and sixth points, Patterson complains that the evidence at trial

was insufficient to support his convictions on one count of aggravated sexual

assault of a child and on improper photography.

A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

                                         21
(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).           Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether

the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Isassi, 330 S.W.3d at 638.

B. Count One—Penetration

      In his first point, Patterson argues that the evidence of penetration was

insufficient because J.P.‘s statement to McKamie did not prove penetration

beyond a reasonable doubt.

      1. Additional Trial Testimony

      Paula Fornara, a sexual assault nurse examiner, testified that the hymen is

―a collar around the opening to the vagina.‖ She further testified that before a

female goes through puberty, the hymen is very sensitive and that if someone

tried to touch or penetrate it, it would be excruciatingly painful.11

      11
      The State recalled Jasmine, who testified that J.P. began puberty in the
summer of 2008 at the end of her sixth-grade year.

                                          22
      2. Analysis

      ―[A] child victim‘s outcry statement alone can be sufficient to support a

conviction for aggravated sexual assault.‖      Tear, 74 S.W.3d at 560.        While

certainly not uncontroverted, J.P.‘s statement to McKamie that Patterson‘s finger

pushed on her private part, went ―inside and out,‖ and caused her pain supports

the jury‘s finding that Patterson intentionally caused his finger to penetrate J.P.‘s

sexual organ. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i); Vernon v. State,

841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (holding that evidence was

sufficient to prove penetration when victim testified that appellant touched the

outside of her vagina and that she felt pain and discomfort when he pressed on

it). Furthermore, the pain that J.P. described as hurting ―really bad‖ and later

feeling ―like something was stinging‖ is consistent with the excruciating pain that

Fornara testified is typical if someone were to touch or penetrate the hymen

surrounding the opening of the vagina of a prepubescent female, which J.P. was

at the time.   Based on J.P.‘s outcry alone, there was sufficient evidence to

support the jury‘s finding of guilt on count one of digital penetration. See Tear,

74 S.W.3d at 561.

      It was the jury‘s responsibility to draw inferences from J.P.‘s statement to

Jasmine that Patterson tried to get his fingers inside of her but did not get them in

all of the way. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330

S.W.3d at 638. And we do not substitute our judgment for that of the jury, see

Williams, 235 S.W.3d at 750, but instead presume that the jury resolved any

                                         23
conflicting inferences in favor of a finding of digital penetration and defer to that

resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d

at 638. In doing so, we conclude that it was reasonable for the jury to infer that,

based on the cumulative force of J.P.‘s statements to McKamie, J.P.‘s

ambiguous statement to Jasmine supported the jury‘s finding that Patterson‘s

finger penetrated J.P.‘s sexual organ. See Steadman v. State, 280 S.W.3d 242,

247–48 (Tex. Crim. App. 2009) (―[T]actile contact beneath the fold of

complainant[‘]s external genitalia amounts to penetration within the meaning of

the Aggravated Sexual Assault statute, since vaginal penetration is not required,

but only penetration of the ‗female sexual organ.‘‖ (quoting Vernon, 841 S.W.2d

at 409–10)); Hooper, 214 S.W.3d at 16–17.

      It was also the jury‘s responsibility to weigh this evidence with J.P.‘s

conflicting testimony that Patterson‘s finger did not penetrate her at any point.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.

Again, we may not re-evaluate the weight and credibility of this evidence and

substitute our judgment for that of the jury. See Williams, 235 S.W.3d at 750.

We only conclude that it is reasonable, based upon the combined and cumulative

force of all the evidence when viewed in the light most favorable to the verdict,

for the jurors, who were able to observe J.P.‘s demeanor both on the stand and

in her forensic interview, to have given little weight to or discredited J.P.‘s

recantation testimony that occurred almost six years after the August 2004

incident. See Hooper, 214 S.W.3d at 16–17; Chambers v. State, 805 S.W.2d

                                         24
459, 461 (Tex. Crim. App. 1991) (―The jury observed the complainant‘s

demeanor and was entitled not only to reconcile any such conflicts [in her

testimony], but even to disbelieve her recantation.‖). We defer to that resolution

and conclude that a rational trier of fact could have found the element of

penetration beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 326, 99

S. Ct. at 2793; Isassi, 330 S.W.3d at 638. Accordingly, we overrule Patterson‘s

first point.

C. Count Five—Improper Photography

       In his sixth point, Patterson argues that the evidence at trial was

insufficient to prove improper photography.

       1. Evidence at Trial

       Jasmine testified that she believed pictures had been taken of her while

she slept one night because she awoke to flashes.           She later found on

Patterson‘s computer many nude photographs of herself, four of which the trial

court admitted as State‘s exhibits two through five and the State published to the

jury. Jasmine testified that she does not like being photographed and that she

did not consent to have nude photographs of her taken.         She believed that

Patterson took the photographs because nobody else had access to their master

bathroom or bedroom where the photographs were taken and because she found

the photographs on Patterson‘s computer, to which nobody else had access.

She also stated that she believed she was the individual depicted in the



                                       25
photographs because she recognized her body, the clothes next to her, and her

bed, but she admitted on cross-examination that the individual could be anybody.

      2. Analysis

      In assessing the sufficiency of the evidence of improper photography, we

consider whether any rational trier of fact could have found the essential

elements of this offense—specifically, the alleged actor, the prohibited conduct,

the victim, the requisite intent, and the lack of consent—beyond a reasonable

doubt. See Act of June 20, 2003, 78th Leg., R.S., ch. 500, § 1, sec. 21.15(b),

2003 Tex. Gen. Laws 1771, 1771 (amended 2007); Jackson, 443 U.S. at 319, 99

S. Ct. at 2789; Isassi, 330 S.W.3d at 638.

      Jasmine‘s testimony that she believed that Patterson was the one who

took the nude photographs because nobody else had access to their bedroom,

their bathroom, or Patterson‘s computer supports the jury‘s finding that Patterson

was the actor who engaged in the prohibited conduct of taking photographs. See

Act of June 20, 2003, 78th Leg., R.S., ch. 500, § 1, sec. 21.15(b), 2003 Tex.

Gen. Laws 1771, 1771 (amended 2007); Cooper v. State, 326 S.W.3d 757, 762–

63 (Tex. App.—Texarkana 2011, pet. granted) (concluding that the evidence was

insufficient to prove that appellant recorded the videos because there was

evidence that, rather than appellant having sole possession of the location from

which the videos were taken, several other people had access to the location

over a period of time).



                                       26
      Moreover, her testimony that she never gave Patterson permission to take

those photographs because she does not like being photographed and that he

took them while she was asleep supports the jury‘s finding of the ―without

consent‖ element. See Act of June 20, 2003, 78th Leg., R.S., ch. 500, § 1, sec.

21.15(b), 2003 Tex. Gen. Laws 1771, 1771 (amended 2007).               Further, the

content of the photographs supports the reasonable inference that Patterson took

the photographs with the intent to arouse or gratify his or another person‘s sexual

desires because the depicted individual was naked.          See id.    Additionally,

Jasmine‘s testimony that she was the woman depicted in the photographs

supports the jury‘s finding of this final element of improper photography. While

she also conceded on cross-examination that she supposed the person could be

anybody, the jurors are the sole judge of the weight and credibility of the

evidence, see Brown, 270 S.W.3d at 568, and we may not re-evaluate this and

substitute our judgment for theirs. See Williams, 235 S.W.3d at 750. Instead, we

presume that the jurors resolved this conflicting testimony in favor of the verdict,

and we defer to their resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Isassi, 330 S.W.3d at 638.

      Therefore, viewing the evidence in the light most favorable to the verdict,

we conclude that a rational jury could have found the above elements of

improper photography beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. Accordingly, we overrule

Patterson‘s sixth point.

                                        27
                              VII.   Conclusion

      Having overruled each of Patterson‘s points, we affirm the trial court‘s

judgments.




                                                  PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

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

DELIVERED: January 19, 2012




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