Opinion filed October 29, 2009




                                            In The


   Eleventh Court of Appeals
                                         ____________

                                    No. 11-08-00056-CR
                                        __________

                         CHESTER LEE FINNEY, Appellant

                                               V.

                              STATE OF TEXAS, Appellee


                           On Appeal from the 244th District Court

                                      Ector County, Texas

                                 Trial Court Cause No. C-34,331


                           MEMORANDUM OPINION

       The jury convicted Chester Lee Finney of aggravated sexual assault of a child and assessed
his punishment at confinement for forty-five years. We affirm.
                                      I. Background Facts
       S.W. testified that Finney raped her during the summer of 2005 when she was six. S.W. and
her brother lived with their grandmother. Finney and the grandmother were dating. They shared a
bedroom while S.W. and her brother shared another bedroom in the house. The sexual assault
occurred two nights in a row, while the grandmother worked the night shift at Odessa College. S.W.
alleged that Finney carried her from her bed to his and the grandmother’s bed, that he dropped his
pants and pulled her pants down, and that he raped her.
                                               II. Issues
       Finney challenges his conviction with three issues. Finney argues that the trial court erred
by admitting S.W.’s videotaped statement, that the trial court erred by admitting two outcry
statements, and that the evidence was insufficient.
                                             III. Discussion
       A. S.W.’s Videotaped Statement.
       Shawndee Kennedy, program director at Harmony Home Children’s Advocacy Center,
interviewed S.W. The interview was videotaped. The State offered the videotape into evidence, and
Finney objected, contending that it was inadmissible hearsay. The State responded that it was
admissible as a prior consistent statement under TEX . R. EVID . 801(e)(1)(B). The trial court noted
that Finney’s defensive theme was that S.W.’s testimony was less than truthful. The court watched
the videotape and then admitted the videotape as a prior consistent statement.
       Finney argues that the trial court erred because the videotape contained testimony that was
inconsistent with S.W.’s trial testimony. We review the trial court’s ruling on the admissibility of
evidence under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim.
App. 2001). This standard requires that we uphold a trial court’s admissibility decision when it is
within the zone of reasonable disagreement. Id.
       Prior consistent statements are not hearsay if offered to rebut an express or implied charge
of recent fabrication or improper influence or motive. Rule 801(e)(1)(B). The Court of Criminal
Appeals has held that trial courts have substantial discretion to permit a prior consistent statement
that would otherwise be hearsay when it has been implied that the victim consciously altered or
fabricated part of her testimony. Hammons v. State, 239 S.W.3d 798, 805 (Tex. Crim. App. 2007).
Trial courts do not have the benefit of a bright-line test but must examine whether the questions
posed by the cross-examiner, or the tenor in which the questions were asked, would reasonably infer
an intent by the witness to fabricate. Id.
       The trial court’s decision to admit the videotape as a prior consistent statement was not
unreasonable. Finney does not dispute the trial court’s characterization of his trial strategy or


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otherwise deny the appropriateness of rehabilitation but, instead, complains that the videotape was
not wholly admissible. He points to a specific inconsistency between S.W.’s live testimony and her
statement. Near the end of the interview, S.W. said that her grandmother was the first adult she told
about this incident. But, in her live testimony, she testified that Tynette Patterson was the first adult.
However, S.W. also testified that, after confiding to Patterson, Patterson immediately ran with S.W.
in tow to inform her grandmother. Given S.W.’s age and maturity level, the trial court could
reasonably conclude that the two accounts were substantially the same.
        Even if the trial court erred, Finney can show no harm. The admission of inadmissible
hearsay is nonconstitutional error. Lee v. State, 21 S.W.3d 532, 538 (Tex. App.—Tyler 2000, pet.
ref’d). Nonconstitutional errors that do not affect substantial rights are disregarded. Id. An error that
influences the jury’s verdict violates a substantial right. We must, therefore, examine the entire
record and determine if the jury was improperly influenced. Id. If the error did not influence the
jury, then it is harmless and must be disregarded. Id. The videotape contained no facts that were not
testified to by others. The inconsistency between S.W.’s trial testimony and the videotaped
statement was minor; but, to the extent S.W.’s testimony was inconsistent, this provided Finney with
additional grounds to challenge her credibility – which was, as the trial court noted, the theme of his
defense. Issue One is overruled.
        B. Outcry Testimony.
        Finney also complains that the admission of Kennedy’s interview improperly introduced a
second outcry statement. Outcry statements are hearsay statements made by the child to the first
adult concerning an alleged offense of sexual assault or abuse. TEX . CODE CRIM . PROC. ANN .
art. 38.072 (Vernon Supp. 2009). The proper outcry witness is the adult to whom the complainant
first tells “how, when, and where” the assault occurred. Hanson v. State, 180 S.W.3d 726, 730 (Tex.
App.—Waco 2005, no pet.). Patterson was allowed to testify as the outcry witness.
        Finney alleges that the videotaped statement allowed a second outcry statement because it
included a statement S.W. made to her grandmother. Finney does not direct us to any point during
trial where this objection was raised. We have reviewed the record ourselves and have found no
objection raising this issue. Consequently, it has not been preserved. But even if we are in error,
the trial court did not allow two outcry witnesses to testify.


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       During Kennedy’s interview, the following exchange took place:
       Kennedy:        Who was the first adult that you told?

       S.W.:           It was my granny.

       Kennedy:        And how come you decided to tell granny?

       S.W.:           Because I kept telling – I was tired of them – I got tired of keeping it
                       in my mind.

       Kennedy:        Okay. What did granny say when you told her?

       S.W.:           She kept on telling me – she kept telling me what he did and then she
                       said, I’m going to take you to the doctor and then she took me to the
                       doctor and she said, now, I have to talk to the police and report what
                       happened. I told them and then that’s all, then I came over here.

S.W.’s vague and nonspecific response did not introduce a second outcry statement. Issue Two is
overruled.
       C. Legal and Factual Sufficiency.
       In his final issue, Finney attacks the sufficiency of the evidence. To determine if the evidence
is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and
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 (1979); Jackson v. State, 17 S.W.3d
664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, we must review
all the evidence in a neutral light and determine whether the evidence supporting the verdict is so
weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the
great weight and preponderance of the conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-
15 (Tex. Crim. App. 2006).
       The State was required to prove that Finney intentionally or knowingly caused his sexual
organ to contact S.W.’s sexual organ. S.W.’s testimony, if accepted by the jury, was both legally and
factually sufficient to satisfy this burden. See TEX . CODE CRIM . PROC. ANN . art. 38.07 (Vernon
2005). S.W. specifically testified that Finney raped her. Although she admitted that she did not
know what rape meant at the time of the assault, she knew its meaning before the outcry to


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Patterson, the forensic interview, and her trial testimony. She testified that Finney pulled down her
pants and panties, that he touched her with his “thingy,” that his “thingy” was next to her private
area, and that he then began “hunching” her by rotating up and down. She later repeated herself,
testifying that, while Finney “hunched” her, his “thingy” was in contact with her private area.
       The jury weighs the credibility of witnesses and can freely believe or reject any and all
testimony presented. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The jury
was, therefore, free to accept S.W.’s testimony and reject Finney’s testimony that he was never alone
with S.W. After examining the facts in the light most favorable to the verdict, the jury could
rationally believe beyond a reasonable doubt that Finney committed aggravated sexual assault by
contact. Additionally, under a neutral review, the evidence was neither so weak that it made the
verdict manifestly unjust and clearly wrong nor was it against the great weight and preponderance
of the evidence. Finney’s third issue is overruled.
                                           IV. Holding
         The judgment of the trial court is affirmed.




                                                              RICK STRANGE
                                                              JUSTICE


October 29, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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