                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00206-CR


RICHARD D. DONALDSON                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1293976D

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Richard D. Donaldson appeals his conviction for continuous

sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02(b), (h) (West

Supp. 2016). In two issues, Donaldson argues that the evidence is insufficient to




      1
       See Tex. R. App. P. 47.4.
support his conviction and that the trial court reversibly erred by admitting

statements the victim made to her mother’s friend. We will affirm.

                                II. FACTUAL BACKGROUND

       Because Donaldson challenges the sufficiency of the evidence to support

the timing element of the offense as well as the State’s designation of the outcry

witness, we summarize the testimony from each of the witnesses who testified at

trial. The State’s witnesses included the victim, Ann;2 Mother; Mother’s friend

Audrey; the nurse who examined Ann; and the forensic interviewer who

interviewed Ann.

       Ann, who was thirteen years old at the time of the trial, 3 testified that

Donaldson and his son Armani moved in with her and Mother when they lived in

a duplex on Hulen Park Circle in Fort Worth in 2011. The first sexual abuse

occurred at the duplex after spring break but before school concluded for the

summer in 2011. Ann said that Donaldson came into her room; woke up both

her and Armani, who was sleeping on a pallet under her raised bed; told them a

story; and then left her room. Donaldson came back, walked up the steps to

Ann’s bed, lay next to her, started rubbing her thighs, and told her to promise not

to tell.    Ann asked what she was not supposed to tell, and Donaldson said,


       2
       To protect the anonymity of the child victim, we use a pseudonym. See
Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex.
Crim. App. [Panel Op.] 1982).
       3
           The trial took place approximately four years after the events at issue.


                                             2
“[N]ever mind.” Donaldson walked out of Ann’s room and then came back. He

walked up the stairs to her bed, put his knees on her bed, pulled down her jeans

and underwear, and started licking her private area where she “pee[d] out of.”

Donaldson left Ann’s room to check to see if Mother was still asleep on the couch

in the living room and then returned to Ann’s bedroom. Donaldson licked Ann’s

private area again and tried to put “his thing”4 inside of her private area. Ann

testified that it hurt. Donaldson left Ann’s room, then returned to her room, and

put “his thing” in her mouth. Ann testified that “white stuff” came out of “his thing”

and that the “white stuff” got on her face. Donaldson went to go get something

and wiped the “white stuff” off of Ann’s face.       Donaldson told Ann to “pinky

promise” not to tell anyone and then left her room for the rest of the night. Ann

testified that she did not tell anyone right after the event because she was

scared.

      A second event occurred in Wichita Falls when Donaldson, Mother,

Armani, and Ann went to visit Donaldson’s grandmother for Easter.5 They stayed

at Donaldson’s grandmother’s house.           While Mother was taking a shower,

Donaldson came into the den where Ann was, pulled down her pants, started



      4
       Ann stated his “thing” was “[w]here he pees out of.”
      5
         The trial court took judicial notice that Easter fell on April 24 in 2011. Ann
initially testified that this was the third event but clarified on cross-examination
that this was the second event; she was positive that the duplex was the first
event.


                                          3
licking her private area, and then walked out without saying anything to Ann.

Ann did not tell anyone right after this happened because she was still scared.

        A third event occurred around May 2011 when they lived in a house on

Carolina Drive.6 Donaldson, Armani, and Ann were sitting in Armani’s room; Ann

was watching Armani play a basketball game on his PlayStation. Ann left to go

to her bedroom to lie down. Donaldson came in Ann’s room, pulled down her

pants, licked her private area, and then tried to stick “his thing” inside of her

private area. Ann told Donaldson to stop because he was hurting her. He said

that he was trying to teach her a lesson so that she would know when to tell a

guy to stop in case a guy ever tried to do that to her. He then left Ann’s room.

During this incident, Mother was in her room, and Armani was in his room. Ann

did not tell anyone right after this happened because she was still scared.

        After Donaldson moved out, Ann decided to tell Mother, Audrey, and

Mother’s sister about the sexual abuse. Ann testified at trial that she told Mother

that Donaldson had touched her private area and had licked her private area but

that she did not tell Mother about Donaldson putting “his thing” in her private

area.

        Mother testified that she had noticed during April through June of 2011 that

Ann had “started getting attitudes a lot” and had started wanting to “stay to


        6
       Although this address is also referred to in the record as Caroline Street,
Carolina Drive appears to be the correct description and is what we use
throughout the opinion.


                                          4
herself.” After Ann told Mother what had happened, Mother walked out of the

room because she did not want to show too much emotion. Mother testified that

she did not tell Ann to make up a story about what Donaldson had done to her.

      Audrey, who acted as an aunt figure to Ann, testified that she was at

Mother’s house one evening in July 2011 watching television with Mother, Ann,

and Mother’s sister. Ann wanted to tell Mother something, and Mother and Ann

went to the master bedroom and talked for fifteen to twenty minutes. When

Audrey heard Mother crying, she went back to the bedroom; before Audrey went

in, Mother’s sister told Audrey that Donaldson had touched Ann.

      Audrey asked and received Mother’s permission to talk to Ann. Audrey

reassured Ann that they all loved her and then said that this was something

serious and that she needed to tell the truth.       Ann told Audrey that they

(Donaldson, Armani, and Ann) were in Ann’s bedroom at the duplex watching

movies until they dozed off. Ann was in her bed, and Armani was on the floor.

Donaldson woke up Ann and said that he had something to tell her; Ann asked

what it was; and Donaldson said, “[N]ever mind.” Ann fell back asleep. When

Ann woke up, Donaldson was on top of her trying to insert his penis inside of her.

Ann told Donaldson that he was hurting her and asked him to stop. Donaldson

told Ann that she could not tell anybody because no one would believe her and

because Donaldson would go to jail and not be able to see Armani. Afterwards,

Ann heard the shower running. Ann told Audrey that Mother was asleep in the

living room during this incident.


                                        5
      Brenda Crawford, formerly a nurse with Cook Children’s Medical Center,

testified that she examined Ann on July 26, 2011. Ann told Crawford that the

events at issue occurred from May to June 2011.           Crawford testified without

objection to the following statement that Ann gave Crawford:

            She said, Ricky Demon Donaldson, has been molesting me.
      One time when we lived in the duplex, my brother and I were each in
      our beds. He, Ricky, came in and was tickling us, then he told us
      scary stories. My brother fell asleep. Ricky got in my bed under the
      covers. He started rubbing my privacies with his finger, . . . both
      over and under the clothes. Then he started licking my privacy.

                   ....

              . . . He told me not to tell nobody. We did a pinky promise. I
      told my mommy because I didn’t cross my heart. Other times he
      would touch me over my clothes, then take them off and lick me in
      my privacy. Then he laid me down and . . . took his thing out and
      put it in my privacy, then he started to put it in my butt hole, [7] but I
      started saying ouch, and he stopped. It happened once in the
      duplex, once at my grandma’s house, and twice at the new house.

Ann also told Crawford that Donaldson had gotten “white stuff” on her shirt and

bed and that Donaldson had cleaned it up with a towel.

      Crawford testified that Ann’s physical exam was normal.               Crawford

explained that she had not expected to find any injuries on Ann because the

female sexual organ heals very quickly. Because the incidents had concluded

more than ninety-six hours prior to the exam, Crawford did not attempt to collect

DNA from Ann.


      7
       Ann testified at trial that Donaldson had never tried to put “his thing” into
her butt hole.


                                          6
      Carrie Paschall performed a forensic interview on Ann on July 26, 2011,

prior to Crawford’s examination of Ann. The DVD of the forensic interview was

admitted without objection and was played for the jury.       During the forensic

interview, Ann gave detailed descriptions of each incident of sexual abuse and

said that the act in Wichita Falls occurred at Easter; that the act at the duplex

occurred in May before her sister’s birthday, which was on May 5; and that the

act at the house on Carolina Drive occurred a couple of days before June 30,

2011. Ann also said that Donaldson had made her suck “his thing” one time, that

he had tried to put “his thing” in her butt hole one time, and that white stuff had

come out of “his thing” one time and had gotten on her bed and on her shirt.

Paschall testified that it is not uncommon for some of the peripheral details to

fade away over time and that it is not uncommon for children to minimize things

that seem more embarrassing to them once they are older. Paschall said that it

is not always concerning when the story changes during adolescence if the victim

previously told the story when she was younger.

      The defense presented testimony from Donaldson’s grandmother, Armani,

and Donaldson. Donaldson’s eighty-four-year-old grandmother Myrtle testified

that Donaldson was approximately thirty-six years old in 2011. Myrtle testified

that during Easter 2011, Mother and Ann stayed at Myrtle’s granddaughter’s

house and that Donaldson stayed out all night partying with friends; he did not

stay at her house.




                                        7
      Armani, who was eighteen years old at the time of the trial, testified that

when he slept in Ann’s bedroom at the duplex on Hulen Park Circle, it would not

have been possible for someone to climb on Ann’s noisy bed and not wake him

up because he is a light sleeper.       Armani did not remember a time when

Donaldson came into the room that Armani shared with Ann at the duplex and

woke him up to tell him a story. Armani testified that Ann would not lie about

something serious.

      Donaldson testified that Mother’s one condition for allowing him to live with

her was that he not get back together with his ex-wife.          Donaldson then

described the confrontation he had with Mother on June 28, 2015, when he

moved out of her house because he was getting back together with his ex-wife.

Donaldson testified that he was never alone with Ann during the weekend of

Easter 2011 and that he had left the Saturday evening before Easter before it got

dark and had spent all night with his friends at a strip club. Donaldson said that

none of the things that Ann testified about ever took place.

      After hearing the above evidence, the jury found Donaldson guilty of

continuous sexual abuse of a child as charged in count 1 of the indictment and

assessed his punishment at twenty-five years’ confinement, and the trial court

sentenced Donaldson accordingly. Donaldson perfected this appeal.

                 III. SUFFICIENT EVIDENCE SUPPORTS CONVICTION

      In his first issue, Donaldson argues that the evidence is insufficient to

support his conviction for continuous sexual abuse of a young child. Donaldson


                                         8
attacks Ann’s chronology of the events, contends that Ann’s account of the

events are “patently inconsistent and wholly implausible,” and argues that Ann’s

testimony required corroboration.

                              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).         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.

Id., 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.),

cert. denied, 136 S. Ct. 198 (2015).

      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 (West 1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). 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.           See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

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

verdict.   Murray, 457 S.W.3d at 448.         We must presume that the factfinder


                                          9
resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Id. at 448–49.

                             B. Elements of the Offense

      A person commits the offense of continuous sexual abuse of a young child

if, during a period that is thirty days or more in duration, a person who is

seventeen years of age or older commits two or more acts of sexual abuse

against a child younger than fourteen years of age.       Tex. Penal Code Ann.

§ 21.02(b). An “act of sexual abuse” includes indecency with a child, sexual

assault, aggravated sexual assault, and sexual performance with a child. Id.

§ 21.02(c)(2)–(4), (6).

        C. Sufficient Evidence Exists on All Elements of the Offense

      Here, the jury heard testimony that Donaldson, who was over the age of

seventeen, committed two or more acts of sexual abuse against Ann when she

was nine years old by putting his mouth on her sexual organ, touching his sexual

organ to Ann’s sexual organ, and putting his sexual organ in Ann’s mouth when

they lived at the duplex on Hulen Park Circle; by putting his mouth on Ann’s

sexual organ when they visited relatives in Wichita Falls; and by putting his

mouth on Ann’s sexual organ and touching his sexual organ to Ann’s sexual

organ when they lived at the house on Carolina Drive.

      Donaldson challenges the sufficiency of the evidence to support the timing

of the three events, arguing that the State did not present evidence showing that

the events occurred over more than thirty days. During Ann’s forensic interview,


                                        10
recorded the day after she made her outcry, she described the events in a

different order than she did at trial but said that the event in Wichita Falls

occurred on Easter weekend when she was nine years old and in the fourth

grade, which the trial court judicially noticed was on or about April 24, 2011; that

the event at the duplex on Hulen Park Circle occurred in May before her sister’s

birthday on May 5, 2011; and that the event at the house on Carolina Drive

occurred a couple of days before June 30, 2011. During the trial four years later,

Ann testified that the event at the duplex occurred first—sometime after spring

break but before summer break 2011, allowing the jury to infer it occurred

sometime before Easter 2011; that the event in Wichita Falls occurred on Easter

weekend (April 24, 2011); and that there was an event at the house on Carolina

Drive. Donaldson testified that he moved out of the house on Carolina Drive on

June 28, 2011. Viewing the evidence in the light most favorable to the verdict, a

rational factfinder could have found beyond a reasonable doubt that Donaldson,

during a period that was thirty days or more in duration (either from April 24,

2011 to shortly before June 30, 2011, or from sometime before April 24, 2011 to

June 28, 2011), committed two or more acts of sexual abuse against Ann, a child

younger than fourteen years of age. See Smith v. State, 397 S.W.3d 765, 769–

70 (Tex. App.—San Antonio 2013, no pet.) (holding evidence sufficient to

establish that two acts of sexual abuse of child were committed more than thirty

days apart); Michell v. State, 381 S.W.3d 554, 564 (Tex. App.—Eastland 2012,

no pet.) (holding evidence sufficient to establish that multiple acts of sexual


                                        11
abuse of child were committed more than thirty days apart, even though child

could not give specific dates, because child provided details of where acts took

place); Brown v. State, 381 S.W.3d 565, 577 (Tex. App.—Eastland 2012, no pet.)

(same).

      Donaldson also argues that no physical evidence corroborated Ann’s

allegations of sexual abuse, but a complainant’s testimony need not be

corroborated by medical or physical evidence. See Newby v. State, 252 S.W.3d

431, 437 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d); see also Garcia v.

State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (“[Victim’s]

testimony, standing alone, is sufficient evidence of penetration.”). Donaldson’s

remaining arguments—that Ann’s bed was noisy and would have awakened

Armani, that Armani testified that Donaldson had never awakened Ann and him

in the middle of the night, that Ann’s testimony at trial differed from some of the

details she provided during her forensic interview, and that the timing of Ann’s

outcry after Donaldson broke up with Mother rendered Ann’s allegations of

sexual abuse “particularly suspicious”—challenge Ann’s credibility.      The jury,

however, was the sole judge of the weight and credibility of the evidence, and we

must presume that they resolved any conflicting inferences in favor of the verdict

and defer to that resolution. See Tex. Code Crim. Proc. Ann. art. 38.04; Murray,

457 S.W.3d at 448; Dobbs, 434 S.W.3d at 170.

      Accordingly, we hold that the evidence presented at trial, which is detailed

above, and the reasonable inferences to be drawn from the evidence—when


                                        12
viewed in the light most favorable to the verdict—are sufficient to have enabled a

rational factfinder to have found beyond a reasonable doubt all of the elements of

the offense of continuous sexual abuse of a young child. See Tex. Penal Code

Ann. § 21.02(b); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray, 457

S.W.3d at 448; Bautista v. State, 474 S.W.3d 770, 775–76 (Tex. App.—Houston

[14th Dist.] 2014, pet. ref’d) (holding evidence sufficient to support conviction for

continuous sexual abuse of young child). We overrule Donaldson’s first issue.

     IV. ADMISSION OF AUDREY’S TESTIMONY DID NOT AFFECT DONALDSON’S
                           SUBSTANTIAL RIGHTS

      In his second issue, Donaldson argues that the trial court reversibly erred

by admitting hearsay statements made by Ann to Audrey because Audrey did not

qualify as an outcry witness under article 38.072.8 Donaldson contends that

Ann’s forensic interview—during which Ann affirmed to Paschall that she had told

Mother “all the same stuff” that she had told Paschall—and the State’s outcry

notice9 demonstrate that Mother was the proper outcry witness.


      8
        See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(3) (West Supp. 2016)
(permitting outcry statements by certain victims of child abuse to be admitted
during trial despite the hearsay rule if the outcry witness was the first person,
eighteen years of age or older, “to whom the child . . . made a statement about
the offense”).
      9
        In its notice of intent to use Ann’s outcry statement to Mother, the State
set forth the following:

             [Mother], an individual over eighteen years of age, reported
      that [Ann], the victim, told her the following: “Ricky had touched her
      in areas where he wasn’t supposed to and pointed to [her] private
      area. She said he touched her both on top and under clothes. [H]e

                                         13
      Assuming without deciding that the trial court erred by concluding that

Audrey qualified as an outcry witness, we address whether such error is

harmless.10 See Tex. R. App. P. 44.2(b); Elder v. State, 132 S.W.3d 20, 27 (Tex.

App.—Fort Worth 2004, pet. ref’d) (stating that the improper admission of outcry

testimony is nonconstitutional error), cert. denied, 544 U.S. 925 (2005). Under

rule 44.2(b), we review nonconstitutional error to determine whether the error

affected the substantial rights of Donaldson. See Tex. R. App. P. 44.2(b). If it

did not, we must disregard it. See id. A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s

verdict.   King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing

Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). In

making this determination, we review the record as a whole, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of

the evidence supporting the verdict, and the character of the alleged error and



      came into her room one time and laid on her bed. He asked her if
      she would tell. Then he started feeling on her and moved panties to
      [the] side and stuck his thing in her. She told him it was hurting her
      and told him to stop. When he was finished[,] he got up and got to
      the shower.”
      10
         An error analysis is not required when a harm analysis is dispositive.
See State v. Ambrose, 487 S.W.3d 587, 590, 599 (Tex. Crim. App. 2016)
(affirming court of appeals’s decision that assumed without deciding that jury
instructions were erroneous and that then performed harm analysis); see also
Wooten v. State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) (“Finding our harm
analysis thus dispositive, we need not address whether the trial court did, in fact,
err not to include the instruction.”).


                                        14
how it might be considered in connection with other evidence in the case. Motilla

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). “Inadmissible evidence

can be rendered harmless if other evidence at trial is admitted without objection

and it proves the same fact that the inadmissible evidence sought to prove.”

Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).

      Donaldson contends that he was harmed by Audrey’s testimony because

she was a more neutral witness than Mother, she bolstered Ann’s credibility, and

she made it appear less likely that Mother had coached Ann to make the

allegations against him. Audrey’s testimony, however, was not harmful because

the same evidence was admitted without objection through the video of Ann’s

forensic interview with Paschall, in which she gave detailed descriptions of the

sexual abuse that occurred at all three locations. Ann and Crawford also testified

at trial without objection as to the details of the sexual abuse that occurred at all

three locations.

      We conclude that, in the context of the entire case against Donaldson, the

trial court’s error in admitting Audrey’s testimony under article 38.072, if any, did

not have a substantial or injurious effect on the jury’s verdict and did not affect

Donaldson’s substantial rights. See King, 953 S.W.2d at 271; Broderick v. State,

35 S.W.3d 67, 75 (Tex. App.—Texarkana 2000, pet. ref’d) (holding trial court’s

error in admitting officer’s testimony as outcry witness for touching incident was

harmless because the same evidence was introduced through other testimony

without objection). Thus, we disregard any error. See Tex. R. App. P. 44.2(b);


                                         15
Garcia v. State, 228 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2005, pet.

ref’d) (holding appellant’s argument of harm arising from allowing improper outcry

witness to testify “fails because [improper outcry witness’s] testimony did not

present the jury with any new information”); Elder, 132 S.W.3d at 27

(disregarding trial court’s error in admitting witness’s testimony under outcry

exception because evidence the same as or similar to virtually all of the witness’s

testimony was admitted through several other witnesses without objection). We

overrule Donaldson’s second issue.

                                 V. CONCLUSION

      Having overruled Donaldson’s two issues, we affirm the trial court’s

judgment.


                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: September 29, 2016




                                        16
