                                 NO. 12-07-00388-CR

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS
JUAN HERNANDEZ AGUIRRE,                          §    APPEAL FROM THE 7TH
APPELLANT

V.                                               §    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                         §    SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Juan Hernandez Aguirre appeals his conviction for aggravated sexual assault of a child. In
two issues, Appellant argues that the evidence was legally insufficient to support his conviction and
that the trial court erroneously allowed the State to introduce hearsay statements made by the child
victim. We affirm.

                                          BACKGROUND
       Appellant was charged by indictment with aggravated sexual assault of a child. The victim
was Appellant’s granddaughter, who was four or five years of age at the time of the assault made the
basis of the indictment. Appellant pleaded not guilty, but waived his right to a trial by jury.
Following a bench trial, the trial court found Appellant guilty as charged and assessed his
punishment at twenty years of imprisonment. This appeal followed.

                                       OUTCRY TESTIMONY
       In his second issue, Appellant asserts that the trial court erroneously admitted the testimony
of Kimberly Waites, a child abuse investigator with Child Protective Services, as outcry testimony
under article 38.072 of the Texas Code of Criminal Procedure. See TEX . CODE CRIM . PROC. art.
38.072 (Vernon 2005).
       Ms. Waites interviewed the child victim at the Children’s Advocacy Center of Smith County
after the victim and her mother were sent there by the Tyler Police Department. By the time of the
interview in question, the child had described some form of sexual assault to at least three other adult
persons: her mother, a hospital nurse, and a hospital Spanish translator. According to Appellant,
because the child victim made the other statements to these three persons, Ms. Waites did not qualify
as the “outcry” witness under article 38.072 of the Texas Code of Criminal Procedure. See id. We
will assume, without deciding, that the trial court erred by admitting this testimony.
        Ms. Waites testified that, during the interview, the child told her that Appellant lured her into
his bedroom. Once there, Appellant removed the child’s shoes, pants, and panties. Appellant
undressed himself completely, laid the child on the bed, and climbed on top of her. Appellant then
kissed the child on the mouth and placed his erect penis on the child’s vagina and “butt.”
        Similarly inculpatory evidence was admitted through Conchita Mendez, a Child Protective
Services translator who translated for Ms. Waites during the interview in question. Ms. Mendez
testified that, during the interview, the child told Ms. Waites that Appellant touched his penis to her
vagina and “bottom” while they were in his bedroom. In addition, the child’s mother testified that
the child told her that Appellant lured her to his bedroom, removed her pants, laid her on the bed,
climbed on top of her, and kissed her on the mouth. Appellant has not appealed the admission of
any testimony given by Ms. Mendez or the child’s mother.
        The erroneous admission of hearsay evidence is nonconstitutional error. See Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional error that does not affect
the substantial rights of the defendant must be disregarded. TEX . R. APP. P. 44.2(b). Therefore, even
if the trial court erred in overruling Appellant’s hearsay objection, the error would not warrant
reversal unless it had a substantial and injurious effect or influence in determining the jury’s verdict.
See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Generally, the improper admission
of evidence does not constitute reversible error if the same facts are shown by other unchallenged
evidence. See Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978).
        Here, the testimony of Ms. Waites is substantially duplicated by the combined testimony of
Ms. Mendez and the child’s mother, which is not challenged on appeal. Because the combined
testimony of Ms. Mendez and the mother is essentially the same as the testimony of Ms. Waites, we
cannot determine that a substantial right of Appellant was affected by the admission of Ms. Waites’s
testimony. See Chapman v. State, 150 S.W.3d 809, 814-15 (Tex. App.–Houston [14th Dist.] 2004,

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pet. ref’d) (reaching a similar holding). Therefore, we overrule Appellant’s second issue. See TEX .
R. APP. P. 44.2(b).

                                       LEGAL SUFFICIENCY
       In his first issue, Appellant argues that the evidence was legally insufficient to support a
conviction based on the allegation that he touched the child victim’s vagina with his penis. See TEX .
PENAL CODE ANN . § 22.021 (Vernon Supp. 2008).
Standard of Review
       The Due Process Clause of the Fourteenth Amendment requires that evidence be legally
sufficient to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct.
2781, 2786-87, 61 L. Ed. 2d 560 (1979). Evidence is legally sufficient when an appellate court,
viewing the evidence in the light most favorable to the judgment, determines that a rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at
2789). We must bear in mind that the factfinder is the exclusive judge of the credibility of witnesses
and of the weight to be given their testimony. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim.
App. 1994). The factfinder is entitled to draw reasonable inferences from the evidence. See Dudley
v. State, 205 S.W.3d 82, 86-87 (Tex. App.–Tyler 2006, no pet.). Likewise, the reconciliation of
conflicts in the evidence is within the exclusive province of the factfinder. See Losada v. State, 721
S.W.2d 305, 309 (Tex. Crim. App. 1986). A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.
Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
Discussion
       According to Appellant, the statements made by the victim to Ms. Waites “stand[] as the only
evidence before the Trial Court that the Appellant committed any of the acts alleged.” Appellant
points out that the victim testified at trial and denied any recollection that Appellant ever touched
her vagina with his penis. She recalled, however, that Appellant took her to his bedroom, removed
his pants, climbed on top of her in bed, and kissed her on the mouth. Appellant also points out that
other witnesses to whom the child victim described an alleged incident (the child’s mother, a hospital
nurse, and a hospital translator) all testified that the child did not tell them that Appellant touched
her vagina with his penis. We further note that the child’s aunt was believed by the child’s mother

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to have observed an incident of inappropriate kissing between Appellant and the child. This aunt
testified and denied ever witnessing Appellant acting inappropriately with the child. Appellant did
not testify at trial or present any witnesses on his behalf. Therefore, the testimony of Ms. Waites and
Ms. Mendez about the child’s statements during the interview provided the only evidence that
Appellant touched the child’s vagina with his penis.
         Outcry testimony alone can be legally sufficient evidence to support a conviction. See
Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). In our discussion of Appellant’s
second issue, we assumed, without deciding, that the trial court erroneously admitted the testimony
of Ms. Waites as outcry testimony. However, outcry testimony proffered and admitted as
substantive evidence under article 38.072, even where improperly admitted, must be considered as
having probative value in determining the sufficiency of the evidence. Id. There is no requirement
that outcry testimony, when admitted under article 38.072 as substantive evidence, be corroborated
or substantiated by the victim or independent evidence. See id. at 874. Even so, Ms. Waites’s
testimony was corroborated by Ms. Mendez. Therefore, viewing the evidence in the light most
favorable to the judgment, and giving due deference to the factfinder, we hold that a rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. See id.
at 873-74 (reaching a similar conclusion regarding the evidentiary sufficiency of outcry testimony).
We overrule Appellant’s first issue.


                                                   DISPOSITION
         We affirm the judgment of the trial court.
                                                                  JAMES T. WORTHEN
                                                                      Chief Justice

Opinion delivered February 25, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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