                                                                PD-1255&1256&1257-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 11/2/2015 3:50:51 PM
                                                             Accepted 11/3/2015 1:41:11 PM
                                                                             ABEL ACOSTA
            Nos. PD-1255-15, PD-1256-15, and PD-1257-15                              CLERK

 _______________________________________________________________


         IN THE TEXAS COURT OF CRIMINAL APPEALS
                     AT AUSTIN, TEXAS

 _______________________________________________________________


                        ELEAZAR LUNA, Appellant

                                  v.

                         THE STATE OF TEXAS

 _______________________________________________________________


 APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW FROM
  THE DECISIONS BY THE THIRTEENTH COURT OF APPEALS IN
CAUSE NUMBERS 13-14-00367-CR, 13-14-00368-CR, and 13-14-00369-CR

 _______________________________________________________________



                                       Richard E. Wetzel
                                       Bar No. 21236300

                                       1411 West Avenue, Suite 100
                                       Austin, Texas 78701

                                       (512) 469-7943
                                       (512) 474-5594 – fax
     November 3, 2015
                                       wetzel_law@1411west.com

                                       Attorney for Appellant
                                       Eleazar Luna
                         Identity of Parties and Counsel

Appellant:                                       Eleazar Luna

Counsel for Appellant at Trial:                  Brent Dornburg
                                                 Attorney at Law
                                                 120 North Main St.
                                                 Victoria, TX
                                                 77901

Counsel for Appellant on Appeal:                 Richard E. Wetzel
                                                 Attorney at Law
                                                 1411 West Ave., Ste. 100
                                                 Austin, TX
                                                 78701

Appellee:                                        State of Texas

Counsel for Appellee at Trial:                   Terry Breen
                                                 Assistant District Attorney
                                                 307 North Gonzales St.
                                                 Cuero, TX
                                                 77963

Counsel for Appellee on Appeal:                  Robert Lassmann
                                                 Assistant District Attorney
                                                 307 North Gonzales St.
                                                 Cuero, TX
                                                 77963

Trial Judge:                                     Hon. Stephen Williams
                                                 24th District Court
                                                 Goliad County




                                       ii
                                      Table of Contents
                                                                                                       Page

Identity of Parties and Counsel                              . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents                                            . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities                                         . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument                            . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of the Case                                        . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of Procedural History                              . . . . . . . . . . . . . . . . . . . . . . . . .3

Questions for Review                                         . . . . . . . . . . . . . . . . . . . . . . . . .4
Argument in Support of First Question for Review . . . . . . . . . . . . . . . . . . . . . . . . .5

Is it permissible for a prosecutor to define the term “reasonable doubt” during voir
dire examination of the prospective jurors? (2 RR 67-68)

Argument in Support of Second Question for Review . . . . . . . . . . . . . . . . . . . . . . .9

Is the failure of a search warrant affidavit to contain facts supporting an alleged
offense meaningless when the affidavit otherwise contains facts of an offense not
alleged in the affidavit or found by the magistrate? (3 RR 19)

Argument in Support of Third Question for Review . . . . . . . . . . . . . . . . . . . . . . . 12
Did the Court of Appeals erroneously find error in the improper admission of
hearsay outcry testimony harmless after mischaracterizing the record and finding
the evidence sufficient to support the conviction? (3 RR 52-53)

Prayer                                                       . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Compliance                                    . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Service                                       . . . . . . . . . . . . . . . . . . . . . . . 19

Appendix                                                     . . . . . . . . . . . . . . . . . . . . . . . 19

                                                iii
                                Index of Authorities
                                                                                       Page

Borsari v. State, 919 S.W.2d 913
(Tex. App. – Houston [14th Dist.] 1996, pet. ref’d)    . . . . . . . . . . . . . . . . . . .11

Fuller v. State, 363 S.W.3d 583
(Tex. Crim. App. 2012)                                 . . . . . . . . . . . . . . . . . . . .7

Gonzalez Soto v. State, 267 S.W.3d 327
(Tex. App. – Corpus Christi 2008, no pet.)             . . . . . . . . . . . . . . . . . . .14

Haley v. State, 173 S.W.3d 510
(Tex. Crim. App. 2005)                                 . . . . . . . . . . . . . . . . . . .15

Johnson v. State, 43 S.W.3d 1
(Tex. Crim. App. 2001)                                 . . . . . . . . . . . . . . . . . . .14

Luna v. State, 2015 WL 4381353
(Tex. App. – Corpus Christi 2015, pet. filed)          . . . . . . . . . . . . . . . passim

Motilla v. State, 78 S.W.3d 352
(Tex. Crim. App. 2002)                                 . . . . . . . . . . . . . . . . . . .14

Paulson v. State, 28 S.W.3d 570
(Tex. Crim. App. 2000)                                 . . . . . . . . . . . . . . . . . . . .8

Samaripas v. State, 454 S.W.3d 1
(Tex. Crim. App. 2014)                                 . . . . . . . . . . . . . . . . . . . .9

Woolridge v. State, 827 S.W.2d 900
(Tex. Crim. App. 1992)                                 . . . . . . . . . . . . . . . . . . . .7

Statutes

TEX. CRIM. PROC. CODE art. 18.01(b)                    . . . . . . . . . . . . . . . . . . .10

TEX. CRIM. PROC. CODE art. 18.01(c)                    . . . . . . . . . . . . . . . . . . .10

TEX. CRIM. PROC. CODE art. 18.02(10)                   . . . . . . . . . . . . . . . . . . .10
                                         iv
TEX. CRIM. PROC. CODE art. 38.072 § 2(a)(2)   . . . . . . . . . . . . . . . . . . .13

TEX. PEN. CODE § 21.11(a)(2)(A)               . . . . . . . . . . . . . . . .2, 3, 9

TEX. PEN. CODE § 21.11(a)(2)(B)               . . . . . . . . . . . . . . . . . . . .1

TEX. PEN. CODE §§ 21.02(c)(1)-(7)             . . . . . . . . . . . . . . . . . . . .9

Rules

TEX. R. APP. P. 9.4                           . . . . . . . . . . . . . . . . . . .19

TEX. R. APP. P. 44.2(b)14, 16, 18

TEX. R. APP. P. 47.1                          . . . . . . . . . . . . . . . . .7, 11

TEX. R. APP. P. 66.3(c)                       . . . . . . . . . . . . . . . . .8, 15

TEX. R. APP. P. 66.3(f)                       . . . . . . . .8, 11, 15, 17, 18




                                      v
                      Statement Regarding Oral Argument


       Argument is requested in the event his petition for discretionary review is

granted. The questions presented on discretionary review are both legally complex

and factually intensive. Argument would be of assistance to the court in the

decisional process.


            Statement of the Case 13-14-00367-CR1 and PD-1255-15


       Eleazar Luna was indicted by a Goliad County grand jury for the offense of

indecency with a child by exposure (CR 6). The cause was assigned cause number

13-04-4700-CR in the 24th Judicial District of Goliad County. The indictment

alleges that on or about January 25, 2013, Luna caused E.S., a child younger than

17 years of age, to expose her genitals to Luna (CR 6). See TEX. PEN. CODE §

21.11(a)(2)(B). A jury was selected and sworn (2 RR 176, 3 RR 20). Luna

entered a plea of not guilty (3 RR 24-26). The jury found him guilty as charged in

the indictment (4 RR 41). Punishment was tried to the court (5 RR). The court

assessed punishment at five years and a fine of $1000 (5 RR 66). The trial court

certified Luna’s right to appeal (CR 40). Notice of appeal was timely filed (CR

41).


       1
         In an order dated September 19, 2014, the Court of Appeals directed that
the three appeals be consolidated for briefing, issuing orders, and issuing an
opinion.
            Statement of the Case 13-14-00368-CR and PD-1256-15


      Eleazar Luna was indicted by a Goliad County grand jury for the offense of

indecency with a child by exposure (CR 6). The cause was assigned cause number

13-04-4701-CR in the 24th Judicial District of Goliad County. The indictment

alleges that on or about January 25, 2013, Luna exposed, for the first time, his

genitals to E.S., a child younger than 17 years of age (CR 6). See TEX. PEN. CODE

§ 21.11(a)(2)(A). A jury was selected and sworn (2 RR 176, 3 RR 20). Luna

entered a plea of not guilty (3 RR 24-26). The jury found him guilty as charged in

the indictment (4 RR 41). Punishment was tried to the court (5 RR). The court

assessed punishment at five years and a fine of $1000 (5 RR 66). The court

suspended the imposition of sentence and placed Luna on community supervision

for a period of five years (5 RR 66). The trial court certified Luna’s right to appeal

(CR 40). Notice of appeal was timely filed (CR 41).


            Statement of the Case 13-14-00369-CR and PD-1257-15


      Eleazar Luna was indicted by a Goliad County grand jury for the offense of

indecency with a child by exposure (CR 6). The cause was assigned cause number

13-04-4702-CR in the 24th Judicial District of Goliad County. The indictment

alleges that on or about January 25, 2013, Luna exposed, for the last time, his

genitals to E.S., a child younger than 17 years of age (CR 6). See TEX. PEN. CODE

                                          2
§ 21.11(a)(2)(A). A jury was selected and sworn (2 RR 176, 3 RR 20). Luna

entered a plea of not guilty (3 RR 24-26). The jury found him guilty as charged in

the indictment (4 RR 41). Punishment was tried to the court (5 RR). The court

assessed punishment at five years (5 RR 66). The court suspended the imposition

of sentence and placed Luna on community supervision for a period of five years

(5 RR 66). The trial court certified Luna’s right to appeal (CR 40). Notice of

appeal was timely filed (CR 41).


                        Statement of Procedural History


      Five points of error were presented on direct appeal. The Court of Appeals

affirmed Luna’s convictions and sentences in an unpublished opinion. Luna v.

State, 2015 WL 4381353 (Tex. App. – Corpus Christi 2015, pet. filed). Motions

for rehearing were timely filed and denied by the Court of Appeals.2 Following an

extension of time, these petitions are due on or before November 4, 2015.




      2
         The arguments presented in these petitions concerning the opinion by the
Court of Appeals were first presented to the Court of Appeals in Luna’s motions
for rehearing. Without calling for a response from the State, the motions for
rehearing were denied by the Court of Appeals three days after they were filed.
                                         3
                               Questions for Review


First Question for Review


Is it permissible for a prosecutor to define the term “reasonable doubt” during voir

dire examination of the prospective jurors? (2 RR 67-68)


Second Question for Review


Is the failure of a search warrant affidavit to contain facts supporting an alleged

offense meaningless when the affidavit otherwise contains facts of an offense not

alleged in the affidavit or found by the magistrate? (3 RR 19)


Third Question for Review


Did the Court of Appeals erroneously find error in the improper admission of

hearsay outcry testimony harmless after mischaracterizing the record and finding

the evidence sufficient to support the conviction? (3 RR 52-53)




                                          4
              Argument in Support of First Question for Review


Is it permissible for a prosecutor to define the term “reasonable doubt”

during voir dire examination of the prospective jurors? (2 RR 67-68)


      By his second point of error on direct appeal, Luna complained of erroneous

statements of law provided by the prosecutor during voir dire to the prospective

jurors. Those misguided statements provided the jurors with a definition of the

term beyond a reasonable doubt. By overruling Luna’s objections, the trial

sanctioned the prosecutor’s misstatement of the law (2 RR 68).


      Specifically, the record reflects:


      MR. BREEN (prosecutor): Now, the definition in the instructions you
      get will be left undefined as to what beyond a reasonable doubt
      means. A definition that I know, a judge that I knew used to say in his
      mind, and this is his opinion, it's that certainty that you would bring to
      any important –

      MR. DORNBURG (defense counsel): Objection, Your Honor. There's
      not a definition to reasonable doubt.


      THE COURT: Overruled. Go ahead.


      MR. BREEN: And the example he usually used was when to cross a
      busy street. We do that all the time, but think about it. If you misjudge
      you're run over and you get killed. It's a serious decision, right? You
      don't cross the street until you're certain beyond a reasonable doubt
      that you can get from one side to the other without getting squished
      like a bug, so it's a serious question. All right.

                                           5
      Now, as I say, one thing that we do know is beyond a reasonable
      doubt is not created simply because there's conflicting testimony.
      That's what a trial is supposed to be about is to resolve conflict; right?
      Who here feels like, well, you know what, if there's conflicting
      testimony I couldn't in good conscience vote to convict no matter
      what? Okay.


      Reasonable doubt is not created because there are questions that you
      have that are never cleared up. You know, if the State proves its case
      beyond a reasonable doubt even though you wonder about this or
      wonder about that -- almost certainly there will be such questions that
      won't be answered by the end of the trial, but that by itself doesn't
      create reasonable doubt. Does anybody have a problem with that? (2
      RR 67-68).


      The Court of Appeals found no error in the trial court overruling Luna’s trial

objection for a variety of reasons. Luna, slip op. at 6-9. Initially, the Court

mischaracterized Luna’s point of error by including portions of the voir dire of

which Luna did not complain on appeal. Luna, slip op. at 7-8. Namely:


      Another way of saying beyond a reasonable doubt is beyond a shadow
      of a doubt. It's called the Perry Mason standard. It doesn't exist, but
      sometimes people say that it has to be beyond a shadow of a doubt or
      beyond any possibility no matter how remote or absurd. It has to be
      proved beyond any possibility no matter how remote or absurd. If
      there's any possibility, no matter how remote or absurd, then I would
      have to vote not guilty.


      Who feels that way? Before you can convict, the State would have to
      prove its case beyond any possibility, no matter how remote or how
      absurd? Okay. That's just another way of saying beyond a reasonable
      doubt really. Is there anybody here that feels they could not convict a

                                           6
      man unless we established guilt beyond all doubt? Who's going to
      hold us to that standard?


      A review of both Luna’s opening brief and reply brief reveals he did not

challenge the two above quoted paragraphs as being improper (Appellant’s

opening brief at 31-34 and reply brief at 3-5). Indeed, he concedes they were

permissible absent the complained of definitions erroneously provided by the

prosecutor.


      Rather than address the claim as presented on appeal, the Court of Appeals

reshaped Luna’s claim with a strawman argument including permissible statements

in voir dire which were not challenged by Luna. The Court of Appeals should

have addressed the claim as presented rather than soften or obfuscate the error by

including matters not challenged on appeal. The failure of the Court of Appeals to

address the claim presented by Luna is contrary to its duty to address the issues he

raised on appeal. See TEX. R. APP. P. 47.1. Review is warranted because the

Court of Appeals, by recrafting Luna’s complaint, so far departed from the

accepted and usual course of judicial proceedings as to call for an exercise of this

Court’s power of supervision. See TEX. R. APP. P. 66.3(f).


      The Court of Appeals further found no error in the challenged voir dire

under Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012) and Woolridge v.


                                          7
State, 827 S.W.2d 900 (Tex. Crim. App. 1992). Luna, slip op at 8. However,

careful examination of those opinions reflects neither is applicable to the claim

now presented. Both opinions concern improper limitation on voir dire in the

questioning of prospective jurors on their understanding of the term reasonable

doubt. Fuller, 363 S.W.3d at 586 and Woolridge, 827 S.W.2d at 906. Luna did

not complain of questioning the prospective jurors on their understanding of the

term “reasonable doubt.” Neither Fuller nor Woolridge sanction the State being

allowed to define the term “reasonable doubt” during voir dire examination.

Review is warranted because the Court of Appeals, by misstating the holdings of

two relatively straightforward opinions by this Court, so far departed from the

accepted and usual course of judicial proceedings as to call for an exercise of this

Court’s power of supervision. See TEX. R. APP. P. 66.3(f).


      Luna argues the prosecutor’s statements plainly ran afoul of the prohibition

imposed by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)

(prohibiting juries from being instructed on a definition of the term reasonable

doubt). The failure of the Court of Appeals to recognize and acknowledge the

impropriety of the voir dire examination concerns an important question of state

law on which the Court of Appeals decided the matter in conflict with this Court’s

opinion in Paulson. Review is warranted under TEX. R. APP. P. 66.3(c). This

Court should grant discretionary review, recognize the error, and remand the

                                          8
causes to the Court of Appeals for a harm analysis of the error. See Samaripas v.

State, 454 S.W.3d 1, 6 (Tex. Crim. App. 2014) (remanding for a harm analysis

after Court of Appeals failed to recognize error during voir dire process).


              Argument in Support of Second Question for Review


Is the failure of a search warrant affidavit to contain facts supporting an

alleged offense meaningless when the affidavit otherwise contains facts of an

offense not alleged in the affidavit or found by the magistrate? (3 RR 19)


      In his third point of error, Luna argued the “mere evidence” search warrant

affidavit failed to allege sufficient facts to establish probable cause that he

committed the specific offense of continuous sexual abuse of a young child as

alleged in the affidavit and found by the magistrate. The underlying offense of

indecency with a child by exposure is not a predicate offense of continuous sexual

abuse of a young child. See TEX. PEN. CODE §§ 21.02(c)(1)-(7), 21.11(a)(2)(A)

and (B). Absent facts alleging the predicate offense, the magistrate was not

presented with facts supporting probable cause to believe Luna committed the

offense of continuous sexual abuse of a young child. Consequently, it was urged

by Luna the trial court abused its discretion by denying Luna’s motion to suppress

evidence recovered upon execution of the search warrant.




                                           9
      A search warrant cannot issue unless supported by an affidavit stating

probable cause for the issuance of the warrant. TEX. CRIM. PROC. CODE art.

18.01(b). In the case of a “mere evidence” search warrant under art. 18.02(10), the

affidavit must set forth sufficient facts to establish probable cause that a specific

offense has been committed. TEX. CRIM. PROC. CODE art. 18.01(c).


      The Court of Appeals rejected Luna’s point of error because it was unwilling

to find the affiant’s erroneous conclusion of law as to what offense Luna

committed was sufficient to invalidate the search warrant. Luna, slip op. at 11.

Luna has no strong disagreement with such a determination provided the affidavit

contains sufficient information for the magistrate to find probable cause for the

charged offense.


      However, the determination made by the Court of Appeals does not address

the complaint Luna presented on appeal. Luna has clearly and consistently argued

the search warrant affidavit is insufficient to support the magistrate’s determination

Luna committed the offense of continuous sexual abuse of a young child

(Appellant’s opening brief at 40-44 and reply brief at 7-9). Indeed, even the State

conceded the facts alleged were not sufficient to allege Luna committed the

offense of continuous sexual abuse of a young child (State’s brief at 21).




                                          10
      Rather than address a claim not presented, Luna sought for the Court of

Appeals to address his point of error urging probable cause for the offense of

continuous sexual abuse of a young child was not alleged in the search warrant

affidavit presented to the magistrate. The failure of the Court of Appeals to

address the claim presented by Luna is contrary to its duty to address the issues he

raised on appeal. See TEX. R. APP. P. 47.1. Review is warranted because the

Court of Appeals, by ignoring Luna’s plainly stated complaint on appeal, so far

departed from the accepted and usual course of judicial proceedings as to call for

an exercise of this Court’s power of supervision. See TEX. R. APP. P. 66.3(f).


      The Court of Appeals cited Borsari v. State, 919 S.W.2d 913 (Tex. App. –

Houston [14th Dist.] 1996, pet. ref’d), as supporting its disposition of the Luna’s

third point of error. Upon close examination, Bosari provides no such support.

There, the defendant challenged a warrant on the basis the underlying affidavit

failed to allege facts showing probable cause to believe he committed the alleged

offense of attempted capital murder. Borsari, 919 S.W.2d at 917. Upon rejecting

the challenge, the Court observed that the affiant alleged facts sufficient to support

a reasonable inference that Borsari committed an inchoate offense, of either an

attempt or a solicitation, in anticipation of committing capital murder. Bosari, 919

S.W.2d at 918. In contrast to Bosari, Luna’s affidavit provides no facts supporting

the allegation of continuous sexual abuse of a young child.

                                          11
      The thrust of Luna’s claim is that the magistrate was not provided with

sufficient facts to support the magistrate’s probable cause determination that Luna

committed the offense of continuous sexual abuse of a young child. This Court

should grant discretionary review, find the search warrant affidavit deficient, and

remand the causes to the Court of Appeals to conduct a harm analysis of the error.


              Argument in Support of Third Question for Review


Did the Court of Appeals erroneously find error in the improper admission of

hearsay outcry testimony harmless after mischaracterizing the record and

finding the evidence sufficient to support the conviction? (3 RR 52-53)


      On January 25, 2013, E.S.’s mother received a telephone call from the

principal at her daughter’s school (3 RR 40). She went to school, picked up E.S.,

and took her home (3 RR 42).


      Outside the presence of the jury, E.S.’s mother said that E.S. told her that

Luna had shown her pornographic movies and exposed himself to her (3 RR 44).

E.S. was taken by her mother to speak with a deputy sheriff (3 RR 45). At the

Sheriff’s Office, E.S. further described the movies and a sex toy (3 RR 45). E.S.

told the deputy that Luna exposed himself to her twice and she exposed herself to

Luna once (3 RR 46). She told the deputy that Luna had offered her the use of a



                                         12
sex toy and some lotion if she was so inclined (3 RR 50). E.S. was making the

statements to the deputy and her mother while her mother was present (3 RR 51).


      Luna objected to the admissibility of any statements made to the deputy at

the Sheriff’s Office because those statements were not the first statements made to

an individual over the age of 18 (3 RR 52). The first such statements had been

made at home by E.S. to her mother (3 RR 52). The trial court disagreed and

admitted the evidence over objection (3 RR 52).


      Back in the presence of the jury, E.S.’s mother testified that upon arriving

home from school, E.S. told her that Luna had shown her inappropriate videos and

exposed himself to her on two occasions (3 RR 54). E.S.’s mother drove her

daughter to the Sheriff’s Office and E.S. was interviewed by an officer (3 RR 55).

Before the officer, E.S. repeated that Luna had shown her his privates and shown

her inappropriate videos (3 RR 55). She also said Luna had shown her a sex toy

and some lotion she could use (3 RR 55). She told the officer the sex toy looked

like a boys privates (3 RR 56). She claimed Luna told her he had some

pornographic videos in his camper that she could watch (3 RR 56).


      In his fifth point of error, Luna maintained the outcry testimony from E.S.’s

mother as to the statements made by E.S. to the deputy was inadmissible under

TEX. CRIM. PROC. CODE art. 38.072 § 2(a)(2). Having previously described the

                                         13
incident to her mother, further outcry to the deputy was inadmissible and the trial

court should not have allowed the jury to hear such harmful and inadmissible

evidence.


      The Court of Appeals assumed the admission of the outcry to the deputy to

be an abuse of discretion, but found the error harmless. Luna, slip op. at 14.

Initially, the Court of Appeals found the error harmless because the testimony of

E.S. alone was sufficient to support Luna’s convictions. Luna, slip op. at 14. The

Court cited Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App. – Corpus

Christi 2008, no pet.) for the proposition the testimony of a child complainant is

sufficient to support a conviction for indecency with a child. However, Luna’s

claim is not one of sufficiency of the evidence, but rather his complaint goes to

error in the improper admission of hearsay evidence.


      Luna acknowledges that evidence of guilt is a factor in conducting a TEX. R.

APP. P. 44.2(b) harm analysis. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim.

App. 2002). However, it is not the only factor. The admission of inadmissible

hearsay constitutes non-constitutional error subject to the harm analysis rule under

TEX. R. APP. P. 44.2(b) which requires the reviewing court to disregard non-

constitutional error that does not affect a criminal defendant's substantial rights.

Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).


                                          14
      In assessing the likelihood that the jury's decision was adversely affected by

an error, an appellate court should consider everything in the record, including: (1)

any testimony or physical evidence admitted for the jury's consideration; (2) the

nature of the evidence supporting the verdict; (3) the character of the error; (4) how

it might be considered in connection with other evidence in the case; (5) the jury

instructions; (6) the State's theory; (7) any defensive theories; (8) closing

arguments; (9) voir dire; and (10) whether the State emphasized the error. Haley v.

State, 173 S.W.3d 510, 518-519 (Tex. Crim. App. 2005).


      Here, the Court of Appeals failed to consider the above mentioned harm

factors upon simply observing E.S.’s testimony alone is sufficient to support the

convictions. While that is a consideration of the harm attendant to the error, it is

not enough standing alone to render the error harmless. Other factors, as

mentioned above have a direct bearing on the harmfulness of the error. The failure

by the Court of Appeals to consider the relevant harm factors was contrary to a

multitude of opinions by the Court of Criminal Appeals including Haley as cited

above. That failure warrants the granting of review under both TEX. R. APP. P.

66.3(c) and 66.3(f).


      Luna submits that after examining the record of his trial as a whole, the

Court of Appeals, had it properly addressed the claim, could not have fair


                                          15
assurance that the error in question did not have a substantial and injurious effect

or influence in determining the jury's verdict that Luna was guilty of the charges

involving E.S. In making its evaluation of the harmfulness of the error, the Court

of Appeals should have followed this Court’s construct for a proper TEX. R. APP.

P. 44.2(b) review have been mindful of the following: (1) Luna’s defensive theory

at trial was that E.S. had fabricated the accusations (4 RR 15); (2) the State made

reference to the improperly admitted outcry evidence in its opening statement (3

RR 28); (3) E.S.’s credibility was a contested factor at trial (3 RR 160, 189-197);

(4) the State presented no physical evidence to support the allegations of indecent

exposure by Luna or E.S.; (5) the trial court instructed the jury it was the exclusive

judge of the facts proven, credibility of the witnesses, and weight to be given the

testimony (CR 34); and (6) the State made reference to the improperly admitted

outcry testimony during closing argument in urging the jury to return three guilty

verdicts (4 RR 34).


      The Court of Appeals further found the error harmless because Luna was

afforded a full opportunity to cross-examine E.S. Luna, slip op. at 14. Luna

disputes that assessment of record.


      The record reflects that after making an outcry to her mother, E.S.’s mother

took her to the sheriff’s office where she told a deputy some more of what


                                          16
happened (3 RR 84-85). At trial on cross-examination, E.S. testified that she could

not remember what she told the deputy (3 RR 93). She repeated that she could not

remember any of what she said at the sheriff’s office (3 RR 96).


      In view of E.S.’s inability to remember what she told the deputy, Luna was

not afforded a full and fair opportunity to cross-examine E.S. concerning her

alleged outcry to the deputy. The Court of Appeals mischaracterization of the

record warrants the grant of discretionary review under TEX. R. APP. P. 66.3(f).


      Finally, the Court of Appeals found the error harmless because E.S. testified

to the same facts contained within the erroneously admitted outcry testimony.

Luna, slip op. at 14. Once again, Luna disputes that assessment of record.


      The record reflects that after making an outcry to her mother, E.S.’s mother

took her to the sheriff’s office where she told a deputy some more of what

happened (3 RR 84-85). At trial on cross-examination, E.S. testified that she could

not remember what she told the deputy (3 RR 93). She repeated that she could not

remember any of what she said at the sheriff’s office (3 RR 96).


      In view of E.S.’s inability to remember what she told the deputy, it is

difficult to understand how the Court of Appeals could determine E.S. testified to

the content of her outcry to the deputy. E.S. did not testify to the same facts



                                          17
contained within the erroneously admitted outcry statement and was merely able to

confirm she spoke with the deputy.


      The Court of Appeals mischaracterization of the record warrants the grant of

discretionary review under TEX. R. APP. P. 66.3(f). This Court should grant

discretionary review and remand to the Court of Appeals for a proper and full harm

review under TEX. R. APP. P. 44.2(b) while being true to the record.


                                      Prayer

      Luna prays the Court will grant his petition for discretionary review and

reverse his convictions, remand to the Court of Appeals, or enter any other relief

appropriate under the law and the facts.

                                                Respectfully submitted,


                                                s/Richard E. Wetzel
                                                Richard E. Wetzel
                                                Bar No. 21236300

                                                1411 West Avenue, Suite 100
                                                Austin, Texas 78701

                                                (512) 469-7943
                                                (512) 474-5594 – fax
                                                wetzel_law@1411west.com

                                                Attorney for Appellant
                                                Eleazar Luna




                                           18
                           Certificate of Compliance


      This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, it contains
3,287 words excluding the items not to be included within the word count limit.


                                            /s/ Richard E. Wetzel
                                            Richard E. Wetzel
                                            State Bar No. 21236300


                             Certificate of Service


      This is to certify a true and correct copy of this pleading was mailed to
counsel for the State of Texas, Robert Lassmann, Assistant District Attorney,
DeWitt County Courthouse, 307 N. Gonzales St., Cuero, Texas, 77954, and Lisa
McMinn, State Prosecuting Attorney, at her email address of
information@spa.texas.gov on this the 2nd day of November, 2015.

                                            /s/Richard E. Wetzel
                                            Richard E. Wetzel
                                            Bar No. 21236300


                                   Appendix




                                       19
                               NUMBER 13-14-00367-CR
                               NUMBER 13-14-00368-CR
                               NUMBER 13-14-00369-CR

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG

ELEAZAR LUNA,                                                                    Appellant,

                                               v.

THE STATE OF TEXAS,                                                                Appellee.


                      On appeal from the 24th District Court
                            of Goliad County, Texas.


                           MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides
      In this consolidated appeal, appellant Eleazar Luna challenges his convictions on

three separate indictments for indecency with a child, each third-degree felonies.1 See


      1   The following appellate cause numbers are at issue in this case: 13-14-00367-CR; 13-14-
TEX. PENAL CODE ANN. 21.11(a)(2) (West, Westlaw through Chapter 46 2015 R.S.). By

five issues, which we address as three, Luna asserts that: (1) the trial court abused its

discretion by overruling his objections to the State’s arguments during jury voir dire; (2)

the trial court erred by denying his pre-trial motion to suppress; and (3) the trial court erred

by admitting an outcry statement. We affirm.

                                            I.      BACKGROUND

       The State alleged that Luna committed indecency with his next door neighbor’s

daughter, E.S. (“Child E”), 2 on three separate occasions, in Goliad, Texas.                         Luna

pleaded not guilty and was tried before a jury on the issue of guilt-innocence.

       T.B. (“Mother”), Child E’s mother, testified that she lived next door to Luna in

Goliad.     According to Mother, Child E’s school principal called her into her office one

afternoon while Child E was in third grade.                  Mother testified that the reason for the

meeting was because the principal learned that Child E had made an inappropriate,

sexually-related comment to a fellow classmate.                 Mother testified that after this particular

meeting with the principal, Child E told her that Luna had shown her pornography at his

house, exposed his genitals to her, and asked her to expose her genitals to him.                   Mother

stated that she then alerted the Goliad County Sheriff’s Department.

       Child E, who was ten years old at the time of trial, testified that Luna was her next

door neighbor and described him as a “really nice person.” Child E told jurors that she

frequently visited Luna’s home and spent time with his granddaughters who would visit




00368-CR; and 13-14-00369-CR.

       2   We will use aliases in order to protect the minor’s identity.

                                                        2
him occasionally.     Child E stated, however, that the summer going into third grade, Luna

first spoke to her about sex.    Subsequently, Luna began showing pornography to Child

E on his television, iPad, or iPhone whenever the two were at Luna’s home alone.

According to Child E, Luna also possessed a “sex toy that was a boy’s private” that would

vibrate.   Child E said that he never used the toy, but showed it to her and told her that it

was available for her use whenever she was ready.          Luna also showed Child E some

“lotion” that accompanied the sex toy.       Child E testified that while Luna showed her

pornography, “[h]e would pull his private out of his pants and start touching himself.”

During this testimony, Child E demonstrated Luna’s actions with her hands for the jurors.

Child E recalled that on one occasion at Luna’s home, Luna asked her to pull her pants

down, and she complied by pulling her pants and underwear down, thereby exposing her

genitals to him.    Child E testified that Luna advised her that if she told anyone about what

had happened, they would “both be in a lot of trouble.” Child E admitted that the reason

she made the inappropriate comment to her classmate was so that the classmate would

tell the principal, and give Child E an opportunity to tell someone about Luna’s actions.

       Luna testified in his defense and denied ever exposing himself to Child E, or asking

Child E to expose herself to him.    Luna testified that about “four or five [times]” he caught

Child E watching pornography on his television.      Luna stated that he scolded Child E for

watching it, but did not tell Mother because he did not want to get Child E in trouble.

       The jury found Luna guilty as charged on each indictment.        After the punishment

phase of trial, the trial court assessed Luna’s punishment on appellate cause number 13-

14-00367-CR at five years’ imprisonment with the Texas Department of Criminal

Justice—Institutional Division (TDCJ-ID), fined him $1,000, and assessed court costs.

                                               3
On the remaining two charges (appellate cause numbers 13-14-00368-CR and 13-14-

00369-CR), the trial court also assessed five years imprisonment with TDCJ-ID for each

charge, fined him $1,000 for each charge, and assessed court costs. The trial court

further suspended the sentences on cause numbers 13-14-00368-CR and 13-14-00369-

CR and placed Luna on community supervision, to be served concurrently with his

sentence in appellate cause number 13-14-00367-CR. This appeal followed.

                                    II.     JURY VOIR DIRE

        By his first two issues, which we treat as one issue, Luna asserts that the trial court

abused its discretion by allowing the State to make certain arguments during jury voir

dire.

        A. Standard of Review

        The trial court has broad discretion over the process of selecting a jury.      Fuller v.

State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012).              We leave to the trial court’s

discretion the propriety of a particular question and will not disturb the trial court’s decision

absent an abuse of discretion.     Id.    A trial court abuses its discretion when it prohibits a

proper question about a proper area of inquiry.        Id.   A question is proper if it seeks to

discover a juror's views on an issue applicable to the case.         Id. However, a voir dire

question or hypothetical that misstates the law is improper.           Thompson v. State, 95

S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A prosecutor’s

statements during voir dire will not constitute error, so long as they do not going beyond

the court’s charge.    See Wilder v. State, 111 S.W.3d 249, 253 (Tex. App.—Texarkana

2003, pet. ref’d). Finally, any erroneous ruling on issues related to questions during jury

voir dire are non-constitutional error and subject to a harm analysis.        See TEX. R. APP.

                                                4
P. 44.2(b); Fuller, 363 S.W.3d at 589; Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim.

App. 2005).

      B. Discussion

      Luna first argues that the trial court improperly overruled his objection to the State’s

argument to prospective jurors that the date of commission of the offenses as alleged in

the indictments were meaningless. The relevant exchange took place during voir dire:

      [Prosecutor]:         We also -- now, one indictment says that this was the
                            first time he did this. Another indictment says it was the
                            last time he did this. In order to differentiate different
                            events, all of these indictments read that it happened
                            on or about the 25th of January, 2013, but on or about
                            is a term of art. It doesn't mean what it means normally.

                            Normally if you say on or about the 25th of January,
                            most of you would probably say within a week, I'm
                            supposing, of the 25th of January, but in the law, it
                            means any time within the statutory, statute of
                            limitations, which doesn't run for many years now, so
                            this really is any time – [Child E] I think is now 10, on
                            up until before the indictment. In other words, at any
                            time.

                            The date effectively doesn't mean anything in this
                            indictment. So my first question is who here has a
                            problem with that that they feel like the State should
                            have to—

      [Defense Counsel]: I'm going to object. He says the date doesn't effectively
                         mean anything.

      [Prosecutor]:         In this case, it doesn't mean anything because the
                            statute of limitations has not run and would therefore
                            go from the day of her birth on up to before the
                            indictment.

      THE COURT:            Overruled, go ahead.

      ....


                                             5
       [Defense Counsel]: Additionally up to the point date of indictment is to --
                          that makes it pertinent as well, so it is important. You
                          can't say it's not effective. That is a misstatement of
                          law. It has no effect.

       THE COURT:           All right. Overruled. Go ahead.

       We do not read the State’s objected-to arguments as expansively or liberally as

Luna asserts. Article 21.02(7) of the code of criminal procedure mandates that the time

mentioned in the indictment “must be some date anterior to the presentment of the

indictment, and not so remote that the prosecution of the offense is barred by limitation.

TEX. CODE CRIM. PROC. ANN. art. 21.02 (West, Westlaw through Chapter 46 2015 R.S.).

The State qualified its “date” argument by arguing that under the law, the date in the

indictment must be within the statutory limitations period, and in this case, the date was

within the limitations period and not so remote that prosecution of the indecency with a

child offense would be barred by limitations.” See id. art. 12.01(1)(E) (providing that no

time limitation exists for the prosecution of the offense of indecency with a child pursuant

to section 21.11 of the penal code).      Accordingly, we conclude that this was not an

improper statement of the law, and the trial court did not abuse its discretion in overruling

Luna’s objection.

       Next, Luna argues that the trial court abused its discretion by allowing the

prosecutor to give prospective jurors a definition of the term “proof beyond a reasonable

doubt.” The following exchange during voir dire is at issue:

       [Prosecutor]:               Now, the definition in the instructions you get will
                                   be left undefined as to what beyond a
                                   reasonable doubt means. A definition that I
                                   know, a judge that I knew used to say in his
                                   mind, and this is his opinion, it's that certainty
                                   that you would bring to any important –

                                             6
[Defense Counsel]:   Objection, Your Honor. There's not a definition
                     to reasonable doubt.

THE COURT:           Overruled. Go ahead.

[Prosecutor]:        And the example he usually used was when to
                     cross a busy street. We do that all the time, but
                     think about it. If you misjudge you're run over
                     and you get killed. It's a serious decision, right?
                     You don't cross the street until you're certain
                     beyond a reasonable doubt that you can get
                     from one side to the other without getting
                     squished like a bug, so it's a serious question.
                     All right.

                     Now, as I say, one thing that we do know is
                     beyond a reasonable doubt is not created
                     simply because there's conflicting testimony.
                     That's what a trial is supposed to be about is to
                     resolve conflict; right? Who here feels like, well,
                     you know what, if there's conflicting testimony I
                     couldn't in good conscience vote to convict no
                     matter what? Okay.

                     Reasonable doubt is not created because there
                     are questions that you have that are never
                     cleared up. You know, if the State proves its
                     case beyond a reasonable doubt even though
                     you wonder about this or wonder about that --
                     almost certainly there will be such questions that
                     won't be answered by the end of the trial, but
                     that by itself doesn't create reasonable doubt.
                     Does anybody have a problem with that?

                     Another way of saying beyond a reasonable
                     doubt is beyond a shadow of a doubt. It's called
                     the Perry Mason standard. It doesn't exist, but
                     sometimes people say that it has to be beyond
                     a shadow of a doubt or beyond any possibility
                     no matter how remote or absurd. It has to be
                     proved beyond any possibility no matter how
                     remote or absurd. If there's any possibility, no
                     matter how remote or absurd, then I would have
                     to vote not guilty.

                               7
                                   Who feels that way? Before you can convict, the
                                   State would have to prove its case beyond any
                                   possibility, no matter how remote or how
                                   absurd? Okay. That's just another way of saying
                                   beyond a reasonable doubt really. Is there
                                   anybody here that feels they could not convict a
                                   man unless we established guilt beyond all
                                   doubt? Who's going to hold us to that standard?

Luna argues that the State prosecutor’s statements regarding reasonable doubt were

misstatements of the law, and “interfered with the juror’s ability to determine for

themselves the meaning of proof beyond a reasonable doubt.” We disagree.

       The court of criminal appeals has held that while “the better practice is to give no

definition of reasonable doubt at all to jury,” Paulson v. State, 28 S.W.3d 570, 573 (Tex.

Crim. App. 2000),

       the fact that no definition will be provided for a term does not render a
       prospective juror's understanding of that term irrelevant. To the contrary,
       that understanding becomes more crucial to the intelligent exercise of either
       the State's or the defendant's peremptory challenges because there is no
       definition to guide what could be a juror's skewed perception of the term.

Fuller, 363 S.W.3d at 586 (quoting Woolridge v. State, 827 S.W.2d 900, 906 (Tex. Crim.

App. 1992)).

       In this case, the State’s prosecutor prefaced his statements by noting that “beyond

a reasonable doubt” was undefined.       The State’s prosecutor then led into his ultimate

questions regarding how the prospective jurors would apply the State’s burden of proof

by offering examples of what reasonable doubt does not mean or require of the State.

We hold that this line of questioning was relevant, not a misstatement of the law, not

repetitious, and not improper.   See Woolridge, 827 S.W.2d at 906. As a result, the trial

court did not abuse its discretion in overruling Luna’s objection.   Luna’s first and second

                                             8
issues are overruled.

                               III.   MOTION TO SUPPRESS

       By his third and fourth issues, which we will address together, Luna asserts that

the trial court erred by denying his motion to suppress.

A.     Standard of Review and Applicable Law

       In reviewing a trial court’s ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court’s ruling.    Johnson v. State, 414

S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008). When the trial court does not make explicit findings of fact, we

infer the necessary factual findings that support the trial court’s ruling if the record

evidence (viewed in light most favorable to the ruling) supports these implied facts.

Johnson, 414 S.W.3d at 192.

       Motions to suppress are reviewed pursuant to a bifurcated standard under which

the trial judge’s determinations of historical facts and mixed questions of law and fact that

rely on credibility are granted almost total deference when supported by the record.      Id.

But when mixed questions of law and fact do not depend on the evaluation of credibility

and demeanor, we review the trial judge’s ruling de novo.       Id. (citing State v. Kerwick,

393 S.W.3d 270, 273 (Tex. 2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997)).

       To suppress evidence on an alleged Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper police

conduct.   Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant

satisfies this burden by establishing that a search or seizure occurred without a warrant.

                                             9
Id.   Once the defendant has made this showing, the burden of proof shifts to the State

where it is required to show that the search or seizure was conducted pursuant to a

warrant or was reasonable.    Id.   If the State produces evidence of a warrant, the burden

of proof shifts back to the defendant to show the invalidity of the warrant.    Russell v.

State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). In this case, the State showed that the

search in this case was conducted pursuant to a warrant; thus, the burden rests with Luna

to show that the warrant is invalid.   See id.

       B. Discussion

       1. Incorrect Offense

       Luna first argues that the probable cause affidavit used to obtain the search

warrant of Luna’s home is invalid because it fails to state facts showing probable cause

to believe that Luna committed the offense of continuous sexual abuse of a young child,

as alleged in the State’s probable cause affidavit.

       The probable cause affidavit, prepared by Goliad County Sheriff’s Investigator

James Garner, stated the following:

       On Friday, January 25, 2013, female victim, age 9 years of age made an
       outcry at the Goliad Elementary School to School Counselors, of
       Continuous Sexual Abuse of a Child. School personnel contacted the
       victim’s mother, who in Turn brought victim to the Goliad County Sheriff’s
       office where an initial statement was taken and a C.A.C. Forensic Interview
       was scheduled with The Harbor Children’s Alliance and Advocacy in Port
       Lavaca, Texas for Tuesday January 29, 2013. During the Forensic
       interview, conducted by Maria Flores and recorded on DVD, victim stated
       that sometime between her 2nd Grade year and 3rd Grade year of school,
       in the summer time while visiting suspect Eleazar Luna . . . at his home
       residence . . . in Goliad County, Texas, through sometime in November
       2012, before Thanksgiving, suspected repeatedly showed her pornographic
       movies, and exposed his penis to her, masturbating in front of her, and on
       at least one occasion, had the victim remove her shorts and panties,
       exposing her anus and sexual organs to the suspect. Suspect Luna also

                                             10
       exhibited a sex toy (vibrator) and lotion to the victim stating that she could
       use these if she would like. Because of the initial outcry and subsequent
       C.A.C. interview it is requested that a search and arrest warrant for suspect
       Eleazar Luna be issued.

Garner’s affidavit also opined—and the magistrate agreed—that probable cause existed

that Luna committed the offense of continuous sexual abuse of a child, see TEX. PENAL

CODE ANN. § 21.02 (West, Westlaw through Chapter 46 2015 R.S.), instead of indecency

with a child, the crime for which he was ultimately charged.    See id. § 21.11(a)(2).

       Luna fails to demonstrate how Investigator Garner’s purported incorrect conclusion

of law as to which offense Luna committed operates to invalidate an otherwise valid

warrant containing probable cause. See Borsari v. State, 919 S.W.2d 913, 917 (Tex.

App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that appellant did not meet his

burden to invalidate a warrant in which the affiant believed appellant had committed

attempted capital murder rather than solicitation of capital murder); see also 40 GEORGE

E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE          AND   PROCEDURE §

9:39 (3d ed. 2011) (“Technical details of the conclusions drawn by the affiant do not

control.” (referencing the Borsari case)).   Accordingly, we overrule Luna’s third issue.

       2. Staleness

       Luna next argues that “stale information” within the probable cause affidavit

rendered the affidavit deficient to state facts showing probable cause to believe Luna

committed the offense alleged.

       A request for a search warrant must contain facts presented to a magistrate that

probable cause does in fact exist for its issuance.   See TEX. CODE CRIM. PROC. ANN. art.

18.01(b) (West, Westlaw through Chapter 46 2015 R.S.). Among other requirements,


                                             11
the affidavit must set forth facts that the property or items constituting evidence to be

searched for or seized are located at or on the particular person, place, or thing to be

searched.    Id. § 18.01(c)(3).      These allegations are sufficient if they would justify a

conclusion that the object of the search is probably on the premises.        Ramos v. State,

934 S.W.2d 358, 363 (Tex. Crim. App. 1996). Moreover, the facts relied on must not

have become “stale” by the time the warrant issued.        Burke v. State, 27 S.W.3d 651, 653

(Tex. App.—Waco 2000, pet. ref’d). This means that the affidavit must show that the act

or event upon which probable cause is based occurred within a reasonable time prior to

the making of the affidavit.   Id.   The amount of delay that will make information stale for

search warrant purposes depends upon the particular facts of a case, including the nature

of criminal activity and the type of evidence sought.      Ellis v. State, 722 S.W.2d 192, 196

(Tex. App.—Dallas 1986, pet. ref’d).       Mechanically counting days is of little assistance

in this determination, but, rather, common sense and reasonableness must prevail, with

considerable deference to be given to the magistrate's judgment based on the facts

before him, absent arbitrariness.      Id. at 196–97.

       Here, Investigator Garner’s probable cause affidavit states that Luna committed

the alleged acts sometime during the summer of Child E’s transition from second grade

to third grade through “sometime in November 2012.” The search warrant then issued

some two months later on January 30, 2013.          Garner alleged that Luna’s conduct toward

Child E occurred over a period of time and involved items that are likely stored privately

in Luna’s home, and not typically disposed of after use, such as the pornography, a

vibrating sex toy, and lotion. Based upon the facts of this case, we conclude that such

allegations in Investigator Garner’s affidavit are not stale so as to render it deficient or

                                               12
invalid.   See id. As a result, we overrule Luna’s fourth issue.

                                 IV.     OUTCRY STATEMENT

       By his final issue, Luna contends that the trial court abused its discretion by

admitting evidence of Child E’s outcry statement given to a law enforcement officer, after

she had already made an outcry statement to Mother.

       A. Applicable Law and Standard of Review

       In a prosecution for indecency with a child younger than fourteen years of age or

a person with a disability, an outcry statement made to the first person, age eighteen or

older, other than the defendant, to whom the child or person with a disability made a

statement about the offense, is not inadmissible because of the hearsay rule, see TEX. R.

EVID. 802, if statutory notice requirements are given to the adverse party, the trial court

finds in a hearing conducted outside the presence of the jury that the statement is reliable

based on the time, content, and circumstances of the statement, and the child or person

with a disability testifies or is available to testify at the proceeding in court or in any other

manner provided by law.        See TEX. CODE CRIM. PROC. art. 38.072 (West, Westlaw

through Chapter 46 2015 R.S.).

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

discretion.   See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). Thus, we

will uphold the trial court’s ruling if it is within the zone of reasonable disagreement.   See

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).              Any finding of an

abuse of discretion for admitting inadmissible hearsay constitutes non-constitutional

error, and will be reviewed to determine whether the error affected the appellant’s

substantial rights.   See TEX. R. APP. P. 44.2(b); see also Johnson v. State, 967 S.W.2d

                                               13
410, 417 (Tex. Crim. App. 1998) (“A criminal conviction should not be overturned for non-

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

assurance that the error did not influence the jury, or had but a slight effect.”).

       B. Discussion

       Luna argues that the trial court abused its discretion by admitting inadmissible

hearsay outcry testimony from Mother related to statements made by Child E to the Goliad

County Sheriff’s Department because those statements were not the first statements

made to an individual over the age of eighteen, in order to be admissible under article

38.072.

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

this outcry testimony, we nevertheless conclude that any error related to this testimony

was harmless.      Child E testified at trial, without objection, and outlined the same

allegations against Luna that were testified to in the outcry statement to the Goliad County

Sheriff’s Department. Additionally, Child E was subject to detailed cross-examination

about her allegations against Luna.     Moreover, the law is clear that the testimony of a

child sexual abuse victim is sufficient to support a conviction for indecency with a child.

Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.)

(internal citations omitted).

       After reviewing this record as a whole, we have fair assurance that any error on

admitting Mother’s outcry testimony did not influence the jury, or had but a slight effect to

make it harmless.       See, e.g., Allen v. State, 436 S.W.3d 815, 822 (Tex. App.—

Texarkana 2014, pet. ref’d) (finding harmless error in admitting improper outcry witness

testimony when the child complainant testified to the same facts contained in the outcry

                                             14
statement and was subject to cross examination). Accordingly, we overrule Luna’s final

issue.

                                     V.     CONCLUSION

         We affirm the trial court’s judgments.



                                                         GINA M. BENAVIDES,
                                                         Justice

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


Delivered and filed the
16th day of July, 2015.




                                              15
