                                        NO. 07-08-0264-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL C

                                        OCTOBER 26, 2009

                              ______________________________


                                JUAN C. GUEVARA, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                            _________________________________

              FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2007-418,012; HONORABLE JIM BOB DARNELL, JUDGE

                              _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                    MEMORANDUM OPINION


      Following a plea of not guilty, Appellant, Juan C. Guevara, was convicted by a jury

of two counts of aggravated sexual assault.1 Punishment was assessed by the jury at

ninety-nine years confinement as to each count. The court ordered the sentences to run


      1
          Tex. Penal Code Ann. § 22.021(a)(1)(B)(v) and (a)(2)(B) (Vernon Supp. 2008).
concurrently. Presenting three issues, Appellant maintains (1) the trial court abused its

discretion in overruling his objections and admitting outcry witness testimony contrary to

the requirements of article 38.072 of the Texas Code of Criminal Procedure; (2) the trial

court abused its discretion in overruling his objections and admitting inadmissible hearsay

evidence as a prior inconsistent statement contrary to the requirements of Rule 613(a) of

the Texas Rules of Evidence; and (3) he was harmed by the trial court’s errors in admitting

inadmissible hearsay. As presented by the State, the sole issue is whether the trial court

abused its discretion by admitting a portion of the Children’s Advocacy Center (CAC)

videotape and the testimony of Andrea Chamberlain, the forensic interviewer. We affirm.


                                         Background Facts


        The indictment in this case alleged that on two separate dates in 2005, Appellant did

intentionally and knowingly cause the mouth of Julian, a child who was then and there

younger than 14 years of age, and not the spouse of Appellant, to contact the sexual organ

of Appellant. Julian is the son of Appellant’s half-sister, Griselda. At the time of the

offense, Appellant was seventeen years old and Julian was four years old.


        In 2005, Griselda and Julian lived in Plainview and they frequently visited her

mother, Natividad, in Lubbock. Natividad was Appellant’s step-mother and in 2005, he

lived with her, his half-brother, Flavio, and his half-sister’s child, Cesar.2

        2
          Appellant is Cesar’s “bruncle (brother/uncle).” Cesar was conceived as the result of an incestuous
relationship between Appellant’s father and his half-sister, Griselda. Because Griselda was 14 when Cesar
was born, he was raised by Natividad. According to trial testimony, Julian was also sexually assaulted by

                                                     2
        In the summer of 2007, while Griselda was at a conference in Dallas, Julian and his

younger sister, Leslie, were visiting their paternal grandmother, Manuella, in Petersburg.

Julian was caught by his grandmother performing inappropriate sexual acts with one of his

young cousins. Julian explained to his grandmother that Appellant and Cesar had been

doing the same things to him. Manuella called Griselda to inform her of the abuse.

Griselda drove to Petersburg to pick up her children and then drove to Lubbock to confront

Appellant and Cesar about the allegations. Thereafter, she, Julian, and Leslie returned to

their home in Midland, where she reported the abuse to the Midland Police Department.


        The Midland Police Department arranged for Julian to be examined by a sexual

assault nurse examiner and for a forensic interview with the CAC. Chamberlain questioned

Julian about the abuse. The interview was videotaped. Nancy Compton, an investigator

with the Midland Police Department, advised the Lubbock Police Department that a sexual

assault involving a child, which had occurred in Lubbock County, had been reported. The

case was assigned to Lahoma Moran, a Juvenile Division Detective with the Lubbock

Police Department, for an investigation.


        Julian made allegations that Appellant first molested him during the summer of 2005,

when he was only four years old. He also reported that the molestation occurred in the

summers of 2006 and 2007.                According to Detective Moran’s testimony, after she

attempted to contact Appellant through a relative, he came to the police station to



Cesar, who was fourteen at the time of trial.

                                                  3
voluntarily give a statement.           After Miranda warnings were given and waivers were

obtained, Appellant confessed in writing that he first touched Julian in the summer of 2005.

He also admitted to multiple occurrences of his sexual organ making contact with Julian’s

and Leslie’s mouths.3 During the investigation, Detective Moran also interviewed Griselda

and Manuella. Based on the findings from the investigation, Appellant was indicted on two

counts of intentionally and knowingly causing Julian’s mouth to contact his sexual organ.


        Cori Armstead performed a sexual assault exam on Julian. The exam revealed that

Julian had healed abrasions to his anal area but Armstead was unable to determine the

cause of the injuries. During the exam, Julian claimed to have been anally penetrated

“hundreds” of times. However, there was no mention of oral contact. Armstead explained

the difficulty in obtaining evidence of oral abuse especially, as in this case, where outside

a ninety-six hour time frame there would be no fluids to collect.4


        Chamberlain testified that she interviewed Julian for approximately one hour. He

was quiet, but willing to answer her questions truthfully. After she testified that Julian had

made a full “outcry” to her, the defense urged the following objections:




        3
         Although Appellant’s written statement was redacted to remove extraneous offenses as to Julian’s
younger sister, Leslie, the statement introduced into evidence as State’s Exhibit 2 provided, “I had Leslie and
Julian put their mouth on my penis and I would come in their mouth. I guess that I had them do that about
seven times total.”

        4
          After Armstead’s testimony and outside the jury’s presence, the defense reurged its objection on
introduction of evidence of anal penetration as being prejudicial extraneous conduct and moved for mistrial.
However, the issue of admission of extraneous offenses is not raised in this appeal.

                                                      4
        [y]our Honor, I’m going to object at this time. The State appears to be asking
        for evidence or testimony of an outcry made to the CAC interviewer. This is
        not an outcry situation. There has been no notice of any outcry, or intent to
        use an outcry statement given under the rules. Also, Judge, under 38.071
        of the Code of Criminal Procedure, testimony of child who is victim of
        offense, I think they’re trying to come in under – under that, and in this case,
        it’s clearly not admissible.
        At this point in time, the Court has not made the proper determination that the
        child is unavailable, under 13, things of that nature. So I’m going to object
        on both grounds of outcry, that it’s an improper outcry, and under 38.071,
        that it’s not admissible . . . .


The trial court overruled the objections.5                Chamberlain then testified that she was

concerned that Julian suffered anal penetration and penile penetration of the mouth.

Defense counsel’s objections to questions concerning the specifics of the abuse were

sustained. After explaining CAC procedures, Chamberlain answered affirmatively and

without objection that Julian’s answers during the interview were consistent with information

she had been provided by law enforcement.6


        Following Chamberlain’s testimony, Julian was sworn in outside the jury’s presence.

He was also questioned by the trial court about telling the truth. After the jury returned, the

State commenced its questioning. The gist of Julian’s direct testimony was that Appellant

put his sexual organ into Julian’s mouth “lots of times,” while he would visit his maternal



        5
        Article 38.071, entitled “Testimony of Child Who is Victim of Offense,” applies only in a hearing or
proceeding in which the court determines that a child younger than thirteen is unavailable to testify in the
presence of the defendant.

        6
           Although the defense urged a hearsay objection to a later question, “Your information was consistent
with the investigation of law enforcement; is that correct”?, Chamberlain’s answer had already come in without
objection several questions earlier. See Reyes v. State, 84 S.W .3d 633, 638 (Tex.Crim.App. 2002).

                                                      5
grandmother in Lubbock. Julian testified that when Appellant would put his “wee-wee” in

his mouth, pee would come out and “it was gross.” The State also asked Julian what

Appellant was doing with his hands during the oral contact and Julian motioned that

Appellant was masturbating. The State followed up with “did he do that more than one

time?” After Julian responded, “[n]o,” the State admitted to asking a bad question and then

asked, “did it happen one time, two times, or more than one time, or more than that.” Julian

answered, “[m]ore than that.”


       During cross-examination, defense counsel asked the following leading question:


       This question is only about [Appellant], okay. You said that [Appellant] put
       – [Appellant] put his wee-wee in your mouth. That was only one time?


Julian answered, “[u]h-huh,” and defense counsel stated, “[y]es, that was only one time.

Thank you.”


       Several questions later, defense counsel asked specific questions about Cesar

putting his “wee-wee” in Julian’s mouth and then concluded her examination by asking

Julian, “[a]nd [Appellant] did it one time; is that right”? Again, Julian answered “[u]h-huh.”


       During redirect examination, the State expressed confusion and asked Julian for

clarification with the following question:


       [i]f we’re talking about when [Appellant] would put his wee-wee in your
       mouth, you told [defense counsel] that it just happened one time. Was it one
       time, two times, or more than that?

                                              6
Julian answered, “[i]t was one time.” He remembered testifying earlier that it was more

than once but admitted he was confused and scared.


       Immediately following Julian’s testimony, the State expressed confusion and

requested permission to review the CAC videotape for redactions and asked to recall

Chamberlain to admit the redacted portion of the videotape for clarification of Julian’s

testimony. Defense counsel objected based on article 38.071 of the Code of Criminal

Procedure and maintained that the videotape was inadmissible. After a hearing outside the

jury’s presence, the trial court decided to allow the State to play a redacted version for the

jury amounting to less than one minute to clarify Julian’s testimony on the number of

occurrences of abuse. Defense counsel vehemently objected that the videotape was

inadmissible on various grounds, including hearsay and impeachment by the State of its

own witness. Appellant’s objections were overruled and Chamberlain was recalled to

authenticate the videotape. The redacted version of the videotape was played for the jury.

The jury heard Chamberlain ask Julian how many times “that” happened and Julian’s

answer, “lots of times.” The jury also heard Chamberlain ask how many instances of anal

penetration occurred to which Julian also answered “lots of times.”


       The defense lodged several hearsay objections to Chamberlain’s testimony on the

basis that Julian’s in-court testimony was not consistent with the contested out-of-court

statement Julian made to Chamberlain during her interview. The trial court overruled those

objections.


                                              7
       During Chamberlain’s cross-examination, defense counsel suggested that Julian

may have exaggerated the number of occurrences. Chamberlain responded that children

do not tend to exaggerate about sexual abuse. During redirect examination, she testified

that she explored the different occurrences with Julian and concluded he had been abused

by Appellant “[l]ots of times.”


       After the State rested, defense counsel moved for an instructed verdict alleging the

State had failed to prove more than one instance of oral contact. The motion was denied.


       During closing arguments, defense counsel intimated that Appellant’s entire family

suffered from long-term systemic sexual abuse. He also suggested that Julian was caught

acting inappropriately with his cousin and that he wanted to shift the attention to Appellant.

Defense counsel argued that Julian was confused and lying. During its closing argument,

the State relied heavily on Appellant’s confession.


       The jury found Appellant guilty of both counts of the indictment and assessed

punishment at ninety-nine years confinement as to each count. During sentencing, the

State moved for the sentences to run consecutively, which the trial court denied.


                                  Contentions of the Parties


       The crux of Appellant’s argument stems from the trial court’s rulings admitting

Chamberlain’s testimony and the redacted videotape of Julian’s interview with her.

Appellant argues the trial court’s rulings constituted an abuse of discretion which caused

                                              8
him harm. According to Appellant, without the objected to evidence, the State could not

have proven he was guilty of both counts of the indictment alleging his sexual organ made

contact with Julian’s mouth. The State postulates there was no error in the admission of

the challenged evidence and, alternatively, that if the trial court erroneously admitted the

evidence, the error was harmless.


                                    Standard of Review


       We review a trial court’s decision to admit evidence over objection under an abuse

of discretion standard. See McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2008).

See also Winegarner v. State, 235 S.W.3d 787, 790 (Tex.Crim.App. 2007). As long as the

trial court’s decision was within the zone of reasonable disagreement and was correct

under any theory of law applicable to the case, it must be upheld. Winegarner, 235 S.W.3d

at 790 (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on

reh’g)). This is so because the trial court is usually in the best position to make the call on

whether certain evidence should be admitted. Winegarner, 235 S.W.3d at 790 (citing

Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)).


                                          Analysis


       After Chamberlain testified that Julian made a full “outcry” to her, defense counsel

strenuously objected on the ground that Chamberlain was not a proper outcry witness.

Counsel argued that the State had not given notice of an outcry witness as required by


                                              9
article 38.072 of the Texas Code of Criminal Procedure and that Chamberlain’s testimony

was not admissible.


        The State takes the position that Chamberlain’s testimony was not offered into

evidence as an outcry witness.               According to the State, Appellant had notice that

Chamberlain was designated as an expert witness about sexual abuse and child abuse.

The State argues that the challenged evidence was admissible under Rule 801(e)(1)(B) of

the Texas Rules of Evidence as a prior consistent statement offered to rebut an express

or implied charge against the declarant of recent fabrication.


        Regarding the videotape, Appellant correctly maintains it does not qualify as an

outcry statement pursuant to article 38.072. See Divine v. State, 122 S.W.3d 414, 418

(Tex.App.–Texarkana 2003, pet. ref’d). However, the State contends that it did not offer

the videotape as evidence of an outcry. Just as with Chamberlain’s testimony, the State

argues that the videotape was offered as a prior consistent statement under Rule

801(e)(1)(B) of the Texas Rules of Evidence.


        The prior statement at issue is Julian’s statement to Chamberlain during their

interview that Appellant caused his sexual organ to make contact with Julian’s mouth “lots

of times.” The State urges this statement is consistent with Julian’s testimony while

Appellant categorizes the statement as a prior inconsistent statement.7 We agree with the


        7
           As discussed earlier, Julian’s direct testimony that Appellant put his sexual organ in Julian’s mouth
“lots of times” contradicted his testimony during cross-examination that it only happened once.

                                                      10
State that Julian’s prior statement to Chamberlain is a prior consistent statement that was

admissible under Rule 801(e)(1)(B) of the Texas Rules of Evidence.


       Per Rule 801(e) of the Texas Rules of Evidence, prior consistent statements that

meet the requirements of that rule are not hearsay. Specifically, the rule provides that a

prior statement is not hearsay if the declarant testifies at trial . . . and is subject to cross-

examination concerning the statement, and the statement is:


       consistent with the declarant’s testimony and is offered to rebut an express
       or implied charge against the declarant of recent fabrication or improper
       influence or motive . . . .


       The rule was analyzed in Hammons v. State, 239 S.W.3d 798 (Tex.Crim.App. 2007).

Relying on Tome v. United States, 513 U.S. 150, 156-58, 115 S.Ct. 696, 130 L.Ed.2d 574

(1995), the Court set forth the four requirements which must be met in order for a prior

consistent statement to be admissible. Hammons, 239 S.W.3d at 804 n.12. Those

requirements are (1) the declarant must testify at trial and be subject to cross-examination;

(2) there must be an express or implied charge of recent fabrication or improper influence

or motive of the declarant’s testimony by the opponent; (3) the proponent must offer a prior

statement that is consistent with the declarant’s challenged in-court testimony; and (4) the

prior consistent statement must be made prior to the time that the supposed motive to

falsify arose. Id. at 804.




                                               11
        Regarding the first requirement, Julian, the declarant, testified at trial and was

subject to cross-examination. According to Hammons, the rule sets forth a minimal

foundation for the second requirement of an implied or express charge of fabrication or

improper motive. Id. There need only be a suggestion of fabrication to give the trial court

substantial discretion to admit a prior consistent statement under the rule. Id. at 805. In

assessing whether the cross-examination of a witness makes an implied charge of

fabrication or improper motive, the trial court considers not only the totality of the

questioning, but may also consider clues from voir dire, opening statements, and closing

statements. Id. at 808.8


        During Julian’s cross-examination, defense counsel elicited multiple occurrences of

sexual acts committed against Julian by other perpetrators and minimized Appellant’s

conduct. During closing arguments, defense counsel suggested that Julian shifted the

blame to Appellant after his grandmother caught him acting inappropriately with one of his

cousins.    The argument continued that Julian was confused and defense counsel

suggested Julian had lied. Given the minimal foundation required by Hammons, the

second requirement is satisfied.


        The State, as proponent of the prior statement, was charged with establishing that

the statement was consistent with Julian’s challenged in-court testimony. Defense counsel


        8
         The force of cross-examination depends upon the tone and tenor of the questioning combined with
the cross-examiner’s demeanor, facial expressions, pregnant pauses, and other nonverbal cues. Hammons,
239 S.W .3d at 808. These factors are not discernable from a cold record.

                                                  12
sought to challenge Julian’s testimony that Appellant caused his sexual organ to contact

his mouth “lots of times.” Both Chamberlain’s testimony and the redacted videotape

confirm Julian’s prior in-court statement that Appellant engaged in the charged conduct

“lots of times.” Thus, the prior statement was consistent with Julian’s challenged in-court

testimony and the third requirement is satisfied.


       Finally, the prior statement must have been made at a time prior to the time the

supposed motive to falsify arose. A reading of the record does not disclose a clear motive

by Julian to falsify or fabricate the allegations against Appellant. Rather, during his

testimony about events that had occurred three years earlier when he was only four years

old, Julian expressed confusion recollecting the abuse.          A challenge to a witness’s

credibility or memory may be sufficient to satisfy the requirements for admissibility of a prior

consistent statement. Id. at 805. Although there is no bright line rule between a general

challenge to memory or credibility and a suggestion of fabrication, the trial court determines

whether the tenor of cross-examination would lead a witness to fabricate. Id. Because the

statements made by Julian to Chamberlain and recorded on the videotape were made prior

to trial where Julian expressed confusion and difficulty recalling facts, the fourth

requirement for admission of a prior consistent statement has been met.


       We conclude that Chamberlain’s testimony and the redacted videotape were

admissible under Rule 801(e)(1)(B) of the Texas Rules of Evidence and that the trial court

did not abuse its discretion in admitting the evidence. A trial court’s ruling on the admission


                                              13
of evidence will be upheld if it is reasonably supported by the record and is correct under

any theory of law applicable to the case. See Amador v. State, 275 S.W.3d 878, 878-79

(Tex.Crim.App. 2009). Once the evidence was properly before the jury, it was in the unique

position of evaluating credibility and demeanor of the witnesses and the weight to give

contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8-9 (Tex.Crim.App. 2000).

Consequently, Appellant’s three issues are overruled.


                                     Harm Analysis


       Assuming, arguendo, that the challenged evidence was improperly admitted, the

erroneous admission of evidence can be rendered harmless if other evidence at trial is

admitted without objection and it establishes the same facts the inadmissible evidence

sought to establish. Stoker v. State, 788 S.W.2d 1, 14 (Tex.Crim.App. 1989), cert. denied,

498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Crocker v. State, 573 S.W.2d 190,

201 (Tex.Crim.App. 1990). Appellant’s confession clearly stated that he caused Leslie and

Julian to put their mouths on his penis “about seven times total.” Even though the

confession was not specific as to whether that was seven times for each child, or one time

for one child and six times for the other, the jury was free to conclude from that statement

that he caused Julian’s mouth to contact his penis on more than one occasion. Therefore,

regardless of the trial court’s ruling, Appellant occasioned no reversible harm.




                                            14
                                   Conclusion


      Having concluded there was no error in the trial court’s decision to admit the

challenged evidence, we overrule Appellant’s issues.     Accordingly, the trial court’s

judgment is affirmed.


                                             Patrick A. Pirtle
                                                 Justice

Do not publish.




                                        15
