                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00168-CR


JACAB AUSTIN BRITT                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                    TRIAL COURT NO. CR16-00091

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                        MEMORANDUM OPINION1

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      Appellant Jacab Austin Britt appeals from his conviction for aggravated

sexual assault of a child younger than six years of age and from the resulting

forty-year sentence. In a single issue, he asserts that the trial court abused its

discretion by admitting cumulative outcry testimony.     Because either the trial




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       See Tex. R. App. P. 47.4.
court did not abuse its discretion or any error was harmless based on the

admission of similar evidence elsewhere, we affirm the trial court’s judgment.

      In mid-December 2015, four-year-old Megan Smith2 told her stepmother

that “her tee tee was hurting” and was red, making an unspecified outcry

statement and naming her mother’s boyfriend—Britt. Megan’s stepmother called

the police, who sent Megan to a sexual-assault nurse examiner for a physical

exam. Megan told the nurse examiner that Britt had put his fingers between her

legs, which the nurse examiner contemporaneously wrote down:

      I was in the bathtub and I was red on my tee tee—points to between
      legs. Says and this is my butt—points to behind her on butt. [Britt]
      did this and says I was trying to put my clothes on and he wouldn’t
      let me. He did this and says he put his fingers here—points between
      legs and it really hurt. I told him to stop but he wouldn’t listen. He
      kept doing it. He asked me if he could touch my tee tee—I said no &
      he didn’t listen. It was his fingers—I had no clothes on.

During the nurse examiner’s physical exam, she noted that Megan had “bright

red irritated skin on [her] labia majora[] bilaterally.” The nurse examiner later

explained that the bright redness was on the inside portion of Megan’s labia

majora, which could have been caused by sexual abuse, “rubbing of panties,

detergent changes, bubble bath, . . . a number of things.”        After the sexual-

assault exam was completed, the police sent Megan to speak with a forensic

interviewer. Megan told the forensic interviewer that Britt “put his finger inside

her tee tee, and tapped it inside her tee tee” in the bathtub at her mother’s house.

      2
     We use fictitious names to refer to the complainant and her family
members to protect her identity. See Tex. R. App. P. 9.8 & cmt., 9.10.


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Megan stated that “it felt bad and that it hurt her tee tee on the inside.” The

forensic interviewer determined that Megan was referring to her vagina by using

the words “tee tee.”

      A grand jury indicted Britt with the first-degree felony offense of

intentionally or knowingly causing the penetration of Megan’s vagina with his

finger. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B), (e), (f)(1) (West

Supp. 2017). At trial, the nurse examiner read her written report to the jury, but

incorrectly read “he put his fingers in here” instead of “he put his fingers here” as

written in the report. The nurse examiner’s contemporaneous, written report was

admitted into evidence.     The forensic interviewer later testified (over Britt’s

hearsay objection that the interviewer was not the proper outcry witness) that

Megan stated Britt put his finger inside her “tee tee.” Megan, who was almost six

at the time of the trial, briefly testified and “nod[ded] affirmatively” when asked if

she had told her therapist “about some things that . . . people have done to you.”

But she nodded her head “negatively” when asked if she had “ever told people

about somebody touching you in a bad place” or if she knew Britt. The jury found

Britt guilty of aggravated sexual assault of a child younger than six and assessed

his punishment at forty years’ confinement.

      On appeal, Britt asserts that the trial court abused its discretion by allowing

the forensic interviewer to testify to Megan’s interview statements because the

nurse examiner had already testified to the same facts and had been the

appropriate outcry witness.     See generally Tex. Code Crim. Proc. Ann. art.


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38.072, § 2 (West Supp. 2017) (allowing admission of hearsay, outcry statement

under specific guidelines).    Britt is correct that we review the trial court’s

admission of Megan’s outcry statements to the forensic interviewer for an abuse

of discretion.   Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990);

Schuster v. State, 852 S.W.2d 766, 768 (Tex. App.—Fort Worth 1993, pet. ref’d).

But we conclude that the trial court did not abuse its broad discretion.

      The forensic interviewer was the initial person to whom Megan described

the indicted offense of aggravated sexual assault by penetration; therefore, the

interviewer’s testimony was admissible under article 38.072. See Tex. Code

Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A).     Megan’s earlier statement to the

nurse examiner revealed only sexual contact and did not clearly allege

penetration. We recognize that the nurse examiner incorrectly read the word “in”

into her report; but, this merely reinforces that Megan’s statements to the nurse

examiner were, at best, unclear on the issue of penetration, which was the

alleged offense. Cf. Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d) (recognizing statement that raised inference of

penetration did not clearly describe alleged offense of sexual assault by

penetration under article 38.072, section 2(a)(1)(A)). In admitting the forensic

interviewer’s testimony under article 38.072, the trial court recognized that the

nurse examiner did not include penetration in her written report, while Megan

consistently told the forensic interviewer that Britt penetrated her vagina with his

finger. Accordingly, the trial court did not abuse its discretion by allowing the


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forensic interviewer to testify because Megan’s first clear outcry regarding

penetration was to the forensic interviewer.    See Garcia, 792 S.W.2d at 91;

Ruedas v. State, No. 11-13-00049-CR, 2015 WL 9584002, at *4 (Tex. App.—

Eastland Dec. 31, 2015, pet. ref’d) (mem. op., not designated for publication);

Josey v. State, 97 S.W.3d 687, 693 (Tex. App.—Texarkana 2003, no pet.).

      But even if the forensic interviewer was not the proper outcry witness

under article 38.072, rendering her testimony inadmissible hearsay, the

admission of her testimony did not affect Britt’s substantial rights and must be

disregarded.   See Tex. R. App. P. 44.2(b).     Megan’s counselor testified that

Megan reported that Britt “touched her tee tee and that it hurt.” Britt did not

object to the counselor’s testimony. And Britt does not argue that the nurse

examiner’s similar testimony was erroneously admitted.           Because similar

evidence to the forensic examiner’s testimony either was not objected to or was

not erroneously admitted, we would be compelled to conclude that any error in

the admission of the forensic interviewer’s cumulative testimony was harmless.

See Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986); Couchman

v. State, 3 S.W.3d 155, 160–61 (Tex. App.—Fort Worth 1999, pet. ref’d).

      Accordingly, we overrule Britt’s issue and affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).




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                                         /s/ Lee Gabriel

                                         LEE GABRIEL
                                         JUSTICE

PANEL: GABRIEL, KERR, and PITTMAN, JJ.

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

DELIVERED: May 24, 2018




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