Opinion filed September 30, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-13-00297-CR
                                    __________

                   WILLIAM LEN RAINEY, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 91st District Court
                              Eastland County, Texas
                           Trial Court Cause No. 22962



                     MEMORANDUM OPINION
      The jury convicted Appellant of the second-degree felony offense of
indecency with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1),
(d) (West 2011). After it found the enhancement paragraph to be true, the trial court
assessed   Appellant’s    punishment    at    confinement   for   life.   See   PENAL
§ 12.42(c)(2)(A)(i), (c)(2)(B)(ii) (West Supp. 2014) (providing that a defendant shall
be punished by imprisonment for life if convicted of an offense under
Section 21.11(a)(1) and if previously convicted of an offense under Section 21.11).
We affirm.
      Appellant presents two issues on appeal. In both issues, Appellant challenges
the trial court’s rulings with respect to the outcry witness. Appellant asserts in his
first issue that the trial court improperly designated the witness as an outcry witness
and, as a result, allowed inadmissible hearsay testimony. Specifically, Appellant
contends that the outcry witness was not the first person to whom the complainant
made an outcry statement. In his second issue, Appellant argues that the trial court
abused its discretion when it determined that the outcry statement was reliable.
      We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is outside the
“zone of reasonable disagreement.” Id. Hearsay is an out-of-court statement offered
in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Hearsay
is not admissible except as provided by statute, the Rules of Evidence, or other rules
prescribed under statutory authority. TEX. R. EVID. 802. One such exception to the
hearsay rule is embodied in Article 38.072 of the Texas Code of Criminal Procedure.
Article 38.072 provides that a child victim’s “outcry” statement is not inadmissible
because of the hearsay rule if (1) the State gives the defendant proper notice; (2) 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 (3) the child testifies. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b) (West
Supp. 2014). An “outcry” statement is defined as a victim’s statement that describes
the alleged offense and that is made to the first person, eighteen years of age or older,
to whom the victim tells about the offense. Id. § 2(a).
      The record shows that the State provided Appellant with notice that it intended
to introduce the complainant’s outcry statement through Officer Nickie Gonzales.
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The trial court held a hearing outside the presence of the jury regarding the outcry
witness. At the hearing, the prosecutor and Officer Gonzales represented that the
complainant, Appellant’s daughter, was present and available to testify. Officer
Gonzales testified that the complainant made statements to her on December 31,
2011, at the Snyder Police Department regarding being sexually abused by
Appellant. To her knowledge, she was the first person that the complainant told
about the abuse in serious detail. The complainant told Officer Gonzales that she
and Appellant were in the kitchen, that Appellant pulled down her shirt, and that
Appellant rubbed her left breast in a circular motion.         The complainant told
Appellant to stop, and he complied. Appellant then put his hand on the button area
of her pants, and she pushed his hand away and told him to leave her alone.
Appellant told her not to say anything because he would be in serious trouble. The
incident occurred in Gorman. Officer Gonzales testified that the complainant was
“[v]ery upset, crying, hurt.” She was also very angry when she talked about
Appellant touching her breast.
      At the hearing, Appellant argued that the statement was not reliable because
the officer was not told when the offense allegedly occurred. The trial court found
that the statement met the requirements of Article 38.072, and it ruled that the outcry
testimony was admissible. On appeal, Appellant contends that Officer Gonzales was
not the first person to whom the complainant made an outcry statement. Instead,
Appellant alleges that the complainant first told her aunt about the incident; that, as
a result, her aunt called the police; and that the complainant then told Officer
Gonzales what happened. However, there was no mention of the complainant’s aunt
during the admissibility hearing. Therefore, when the trial court made its ruling,
there was no evidence before the court to suggest that Officer Gonzales was not the
first person to whom the complainant described the sexual abuse in detail.


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Furthermore, the record at trial shows that the complainant did not tell her aunt about
the abuse in great detail but, instead, just told her “[a] little bit.”
       Appellant also argues that the trial court abused its discretion when it
determined that the outcry statement was reliable because the State failed to offer
sufficient evidence at the hearing to show that the statement was reliable under the
factors listed in Norris v. State, 788 S.W.2d 65, 71 (Tex. App.—Dallas 1990, pet.
ref’d). In Norris, the court suggested eleven factors that “the trial court may
consider” when it determines whether an outcry statement is reliable. 788 S.W.2d
at 71 (citing Buckley v. State, 758 S.W.2d 339, 343–44 (Tex. App.—Texarkana
1988), aff’d, 786 S.W.2d 357 (Tex. Crim. App. 1990)). While the factors might be
useful, they are not mandatory. See, e.g., Kennedy v. State, No. 11-13-00164-CR,
2014 WL 4071647, at *3 (Tex. App.—Eastland Aug. 14, 2014, pet. ref’d) (mem.
op., not designated for publication) (stating that “the Buckley indicia of reliability
merely provide guidance”). Therefore, the trial court was not required to consider
each and every factor before it found the complainant’s statement to be reliable. See
id. (holding that the trial court was not required to consider every indicia of reliability
in Buckley before it found the statement to be reliable).
       The Court of Criminal Appeals has explained that Article 38.072 “charges the
trial court with determining the reliability based on ‘the time, content, and
circumstances of the statement;’ it does not charge the trial court with determining
the reliability of the statement based on the credibility of the outcry witness.”
Sanchez v. State, 354 S.W.3d 476, 487–88 (Tex. Crim. App. 2011) (footnote
omitted). The time of the statement refers to the time that the child makes the
statement to the proffered outcry witness. Broderick v. State, 89 S.W.3d 696, 699
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing MacGilfrey v. State, 52
S.W.3d 918, 921 (Tex. App.—Beaumont 2001, no pet.)). Here, the complainant
made a statement to Officer Gonzales on December 31, 2011. Although Officer
                                             4
Gonzales did not know when the abuse occurred, the indictment alleged that the
abuse occurred on or about August 30, 2011. Thus, the timing of the outcry was
approximately four months from when the abuse occurred. As to the content of the
statement, the record shows that the complainant described the incident in detail.
The circumstances of the statement refers to the circumstances surrounding the
making of the statement. See id. This factor was not developed at the hearing. The
record shows that the complainant made the statement at the Snyder Police Station,
but it does not indicate why the complainant went to the police station, who took her
there, or any other information about the circumstances of her statement. It was not
until trial, after the outcry witness testified on direct examination, that the outcry
witness and the complainant explained the circumstances surrounding the making of
the statement.
      Although the record was scant as to the time, content, and circumstances of
the statement, we cannot say that the trial court acted outside the “zone of reasonable
disagreement” when it found that the statement was reliable. Montgomery, 810
S.W.2d at 391. Moreover, even if the trial court erred when it found that the outcry
statement was reliable and when it allowed Officer Gonzales to testify as the outcry
witness, any error was harmless and, therefore, is not reversible. See TEX. R.
APP. P. 44.2(b).
      The improper admission of evidence is harmless when the same facts are
proven by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287
(Tex. Crim. App. 1999). Here, the complainant testified to the details of the incident.
She said that, sometime around August 2011, she played in a softball game and that,
when she came home that night, she showered. After she showered, she went to the
kitchen to eat. Appellant told her that she looked beautiful and called her over to
him. He pulled down her shirt and rubbed her breast with his fingers in a slow
circular motion. The complainant slapped his hand away and tried to bite him. Her
                                          5
mom came in the kitchen for a brief period of time to see what was going on but then
left. After her mom left, Appellant grabbed the complainant’s arm and tried to put
his hand on the button of her pajama pants. She again slapped his hand away and
also tried to kick him in “the bad spot.” He told her not tell anyone because he did
not want to get in trouble. She ran to her sister’s room. Several months later, she
told her aunt about the incident, and then she made a statement to Officer Gonzales.
Because the complainant’s testimony proved the same facts that were admitted
through Officer Gonzales’s hearsay testimony, any error in the admission of Officer
Gonzales’s testimony was harmless. See Brooks, 990 S.W.2d at 287. We overrule
Appellant’s first and second issues.
        We affirm the judgment of the trial court.




                                                               JIM R. WRIGHT
                                                               CHIEF JUSTICE


September 30, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and McCall.1

Bailey, J., not participating.




       1
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.

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