                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-18-00199-CR
                                        No. 07-18-00200-CR
                                        No. 07-18-00201-CR


                                DOUGLAS STAPP, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 364th District Court
                                     Lubbock County, Texas
            Trial Court No. 2018-414,603; Honorable William R. Eichman II, Presiding

                                        November 25, 2019

                                MEMORANDUM OPINION
                       Before QUINN, C.J. and PIRTLE and PARKER, JJ.


      Appellant, Douglas Stapp, appeals from his convictions by jury of one count of

aggravated sexual assault of a child1 and two counts of indecency with a child by

contact2 and the resulting concurrent sentences of life imprisonment for the aggravated




      1   TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West 2019).

      2   TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019).
sexual assault offense and twenty years for each offense of indecency with a child.

Appellant challenges his convictions through two issues. We will affirm.


      BACKGROUND

      Appellant was charged via indictment with the offense of continuous sexual

abuse of a child.3 The indictment specified several acts of sexual abuse of a child

including allegations that Appellant: (1) intentionally or knowingly caused the sexual

organ of Y.M., a child younger than fourteen years of age, to contact Appellant’s mouth;

(2) with the intent to arouse or gratify the sexual desire of Appellant, intentionally or

knowingly engaged in sexual contact with Y.M., a child younger than seventeen years of

age and not Appellant’s spouse, by causing Y.M. to touch Appellant’s sexual organ; (3)

with the intent to arouse or gratify the sexual desire of Appellant, intentionally or

knowingly engaged in sexual contact with Y.M., a child younger than seventeen years

and not Appellant’s spouse, by causing Y.M. to touch Appellant’s sexual organ; and (4)

intentionally or knowingly caused the sexual organ of Y.M., a child younger than

fourteen years of age, to contact Appellant’s sexual organ.


      Y.M. is the child victim in this case. She was five years old at the time of the

incidents with Appellant and nine when she testified at trial. Y.M.’s mother testified she

began dating Appellant in May 2013. In September 2013, Y.M. and her mother moved

in with Appellant. Appellant stopped working a couple of months later and cared for

Y.M. after school.




      3   TEX. PENAL CODE ANN. § 21.02(b) (West 2019).

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       Y.M. and her mother moved out of Appellant’s home in July 2014. Y.M.’s mother

noticed Y.M. was “acting funny” and asked Y.M. if “someone had touched her.” After

being initially reluctant, Y.M. told her mother Appellant had “touched her . . . [i]n her

private.” Y.M. told her mother it happened “three times.” Y.M.’s mother testified she did

not ask any further questions and contacted the police.        A week later, Y.M. was

interviewed at the Children’s Advocacy Center of the South Plains by John Wuerflein, a

forensic interviewer.


       At trial, Y.M. testified Appellant stayed with her while her mother worked. She

told the jury of several incidents that occurred with Appellant, beginning when she was

about five years old.   She told the jury that while she lay on the couch, Appellant

watched videos with a “boy and a girl being naked” on his computer.              She said

Appellant “would take his middle part and this white stuff camed [sic] out.” During

cross-examination, she said Appellant “sometimes” made her watch those videos.


       Y.M. also told the jury of several instances in which Appellant inappropriately

touched her. She testified that once, when she was sleeping, Appellant “pulled my

shorts down and he put his middle part close to my middle part.” She also described an

instance in which she was asleep on the couch. Appellant pulled her panties down and

“licked [her] middle part.” She told the jury Appellant told her, “Don’t tell your mom, or

I’ll kill you.” She also told the jury Appellant would “massage” her “middle part” and

Appellant’s “middle part” with a “round thing” that “massages” and “vibrates.”


       Y.M. also testified Appellant touched her “middle part” when she had her clothes

on and rubbed her bottom after he pulled her pants and panties down. Y.M. told the


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jury that on one occasion, Appellant forced her to put coconut lotion on his “middle part,”

causing Appellant to “squirt.”


       Wuerflein testified at trial that during his forensic interview with Y.M., she

described several acts of sexual assault by Appellant. She told Wuerflein Appellant

touched her “coochie,” referring to her female sexual organ, with Appellant’s mouth.

She said Appellant “would lick her coochie.” She told Wuerflein Appellant touched her

“on the inside of her bottom” and said Appellant “would have her rub his bottom.” She

also described Appellant as watching “bad stuff on the computer” and that he would “put

lotion on his thingy.” She used a motion to show how he would have her hand move on

his “thingy” until he “squirted.” According to Y.M.’s testimony, these incidents happened

more than once.


       ANALYSIS

       ISSUE ONE—OUTCRY TESTIMONY

       By his first issue, Appellant argues the trial court erred in permitting two outcry

witnesses—mom as to two of underlying offenses and forensic interviewer as to three

other offenses. He further argues the trial court should not have permitted the second

outcry witness to testify to unindicted acts. By the trial court’s allowing such testimony,

Appellant contends, he was harmed. The State responds that the trial court properly

designated the outcry witnesses and Appellant failed to preserve his complaint as to the

scope of their testimony.


       Article 38.072 of the Texas Code of Criminal Procedure creates a statutory

exception to the general rule excluding hearsay testimony. See TEX. CODE CRIM. PROC.


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ANN. art. 38.072 (West 2018). The statute applies to statements made by the child

against whom the offense was allegedly committed and to the first person, eighteen

years of age or older, other than the defendant, to whom the child made a statement

about the offense. See id. at § 2(a). “[O]utcry testimony admitted in compliance with

article 38.072 is . . . admissible for the truth of the matter asserted in the testimony.”

Duran v. State, 163 S.W.3d 253, 257 (Tex. App.—Fort Worth 2005, no pet.) (citations

omitted); Sosa v. State, No. 01-14-00157-CR, 2015 Tex. App. LEXIS 6504, at *10 (Tex.

App.—Houston [1st Dist.] June 25, 2015, no pet.) (mem. op., not designated for

publication) (citation omitted).


       Outcry witness testimony is event-specific, not person-specific. Canfield v. State,

No. 07-13-00161-CR, 2015 Tex. App. LEXIS 1694, at *9 (Tex. App.—Amarillo Feb. 19,

2015, no pet.) (mem. op., not designated for publication) (citation omitted). “That is,

where more than one offense is being prosecuted, there may be more than one outcry

statement and more than one outcry witness.” Id. (citing Robinett v. State, 383 S.W.3d

758, 761-62 (Tex. App.—Amarillo 2012, no pet.)). In those situations, “each outcry

statement must meet the requirements of article 38.072, and because designation of the

proper outcry witness is event-specific, the outcry statements related by different

witnesses must concern different events and not simply be the repetition of the same

event told by the victim at different times to different individuals.” Id. (citations omitted).


       We review the admission of outcry testimony under an abuse of discretion

standard. Robinett, 383 S.W.3d at 761 (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex.

Crim. App. 1990); Martinez v. State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005)). We

will uphold the trial court’s ruling if it is within the zone of reasonable disagreement. Id.

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(citations omitted).     To satisfy the requirements of the outcry witness statute, the

statement must describe the alleged offense in some discernible way and amount to

“more than words which give a general allusion that something in the area of child

abuse was going on.” Garcia, 792 S.W.2d at 91. See also Lopez v. State, 343 S.W.3d

137, 140 (Tex. Crim. App. 2011).


          A violation of article 38.072 is non-constitutional error subject to harmless error

analysis. Sosa, 2015 Tex. App. LEXIS 6504, at *11-12 (citing TEX. R. APP. P. 44.2(b);

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).               In that regard,

pursuant to Texas Rule of Appellate Procedure 44.2(b), “non-constitutional error must

be disregarded unless it affected the defendant's substantial rights, i.e., the error had a

substantial and injurious effect or influence in determining the jury's verdict.” Id. (citing

TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011)).

Accordingly, we will not overturn a criminal conviction for non-constitutional error if “we,

after examining the record as a whole, have fair assurance that the error did not

influence the jury, or influenced the jury only slightly.” Id. (citing Barshaw, 342 S.W.3d

at 93).


          In evaluating the likelihood that the jury’s decision was affected by the error, we

consider “everything in the record, including factors such as the nature of the evidence

supporting the verdict, the character of the alleged error and how it might be considered

in connection with other evidence in the case, whether the State emphasized the error,

and whether overwhelming evidence of guilt was present.”             Sosa, 2015 Tex. App.

LEXIS 6504, at *11-12 (citing Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App.

2003)). Any such error is also harmless if the same or similar evidence is admitted

                                               6
without objection at another point in the trial. Id. (citing Nino v. State, 223 S.W.3d 749,

754 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding error in designation of

outcry witness under article 38.072 was harmless because similar testimony was

admitted through child complainant and the mother); Duncan v. State, 95 S.W.3d 669,

672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding improper admission of

outcry testimony was harmless because similar testimony was admitted through

complainant, pediatrician, and medical records).


      In this case, Y.M.’s mother testified that Y.M. told her Appellant had “touched

her . . . [i]n her private” and said it happened “three times.” Y.M.’s mother testified she

did not ask any further questions and contacted the police. This is very similar to what

occurred in Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref’d).

There, the mother testified the complainant told her the defendant “had touched her

private parts.” Id. The record did not show that the child “described any specific details

of the alleged abuse.” Id. The mother said she did not question the child about the

allegation but later relayed the statement to another person. When that person spoke

with the child, the child provided to her very specific details about the offense. Id.

There, the appellate court found the trial court could have reasonably determined that

the complainant’s statements to her mother were nothing more than a general allusion

to something in the nature of sexual abuse having occurred and not a clear description

of the offense charged. The court of appeals went on to decide that the trial court did

not, therefore, abuse its discretion in finding the forensic interviewer to be the proper

outcry witness.




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       Several other courts have found similar statements to be insufficient to satisfy the

requirements of article 38.072. See, e.g., Reyes v. State, 274 S.W.3d 724, 727-29

(Tex. App.—San Antonio 2008, pet. ref’d) (citation omitted) (finding victim’s statement to

a CPS caseworker was not detailed enough to satisfy the statute); Hanson v. State, 180

S.W.3d 726, 730 (Tex. App.—Waco 2005, no pet.) (finding parents and others to whom

the child victim made statements were not proper outcry witnesses because the child

said only that the defendant had touched his “private parts” and did not provide any

additional details); Solis v. State, No. 02-12-00529-CR, 2014 Tex. App. LEXIS 4493, at

*10 (Tex. App.—Fort Worth Apr. 24, 2014, no pet.) (mem. op., not designated for

publication) (citations omitted) (finding complainant’s statement to her mother that the

defendant had “‘raped’ and ‘molested’ her, as well as her statement that he touched her

‘private areas’” failed to describe the offense of indecency or aggravated assault as

indicted and thus, the mother was not the proper outcry witness for those offenses);

Herrera v. State, No. 10-05-00026-CR, 2005 Tex. App. LEXIS 9092, at *3-4 (Tex.

App.—Waco Nov. 2, 2005, no pet.) (mem. op., not designated for publication) (citations

omitted) (finding trial court did not abuse its discretion when it found the mother was not

the proper outcry witness because the child told her only that the defendant “touched

her” and did not tell her mother “any details about the ‘how, when, and where’” of the

assault).


       In contrast, in this case, Wuerflein testified that during his interview of Y.M., she

described several acts of sexual assault by Appellant. She told Wuerflein Appellant

touched her “coochie,” referring to her female sexual organ, with Appellant’s mouth.

Y.M. also said Appellant “would lick her coochie” and he touched her “on the inside of


                                             8
her bottom.” Y.M. also told Wuerflein Appellant “would have her rub his bottom.” She

also described Appellant as watching “bad stuff on the computer” and that he would “put

lotion on his thingy.” She used a motion to show how he would have her hand move on

his “thingy” until he “squirted” and she said the incidents happened more than once.


       The trial court could have reasonably concluded Y.M.’s statement to her mother

failed to “describe any specific details” of the other alleged offenses and instead found

that Wuerflein was the proper outcry witness as to the described underlying offenses.

Accordingly, we find the trial court did not abuse its discretion in determining the proper

outcry witnesses.


       As part of Appellant’s complaint concerning the outcry witnesses, he contends

Wuerflein’s testimony harmed him because Wuerflein was permitted to testify about

incidents that were not included in the indictment. The State argues Appellant failed to

preserve this issue for our review because he did not raise it with the trial court. We

agree. To preserve error, an Appellant must have raised the complaints asserted on

appeal in the trial court by a timely request, objection, or motion.        TEX. R. APP. P.

33.1(a); Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004). Appellant failed to

do so here and thus, presents nothing for our review on this point.


       Even if the trial court erred in determining the proper outcry witness, or it erred in

deciding the scope of the outcry witness’s testimony, any such error would have been

harmless because the same or similar evidence was properly admitted without objection

at another point in the trial. Accordingly, we overrule Appellant’s first issue.




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      ISSUE TWO—DOUBLE JEOPARDY

      By his second issue, Appellant opposes the “twin judgments” for the offenses of

aggravated sexual assault and indecency with a child, arguing the same facts support

the elements of each offense. Appellant was found guilty of aggravated sexual assault

of a child by causing his sexual organ to touch the complainant’s sexual organ and also

found guilty of indecency with a child by contacting her sexual organ, with both offenses

allegedly occurring on or about the period between May 1, 2013 and October 1, 2014.

While both offenses are lesser-included offenses of the charged offense of continuous

sexual abuse of a child, Appellant asserts, indecency with a child by contact is also a

lesser-included offense of sexual assault of a child. Accordingly, Appellant argues he is

being subjected to multiple punishments for the same conduct. The State disagrees,

arguing the instances of contact were separate and distinct from the instance

comprising the offense of aggravated sexual assault and therefore, Appellant has not

received multiple punishments for the same conduct in violation of the Double Jeopardy

Clause. We agree with the State’s position.


      The Double Jeopardy Clause of the Fifth Amendment, applicable to the states

through the Fourteenth Amendment, protects an accused from being punished more

than once for the same criminal conduct based on a single continuous act. See U.S.

CONST. amends V, XIV. See also Maldonado v. State, 461 S.W.3d 144, 148-50 (Tex.

Crim. App. 2015) (discussing application of the “subsumption theory” from Patterson v.

State, 152 S.W.3d 88 (Tex. Crim. App. 2004)). An offense may be “subsumed” by

another offense when there is a single act that cannot physically occur in the absence of

another act. For instance, the offense of sexual assault by penetration can subsume


                                           10
the offense of indecency by contact because it is physically impossible to cause

penetration without contact. The “subsumption theory” does not, however, apply in

situations where a jury could reasonably find separate acts based on the facts of that

particular case. Maldonado, 461 S.W.3d at 149. Thus, subsumption does not apply in

this case because there are many separate acts of contact alleged.


         As was true in Maldonado, the contact offenses here are not factually subsumed

because there was evidence that separate and distinct indecency by contact offenses

occurred at other times, entirely separate from the contact associated with the acts

comprising the aggravated sexual assault offense. The jury heard testimony that, on

occasions not involving Appellant’s sexual organ touching Y.M.’s sexual organ,

Appellant touched Y.M.’s female sexual organ both outside and inside her clothing and

that he “licked” Y.M.’s “middle part.” Each of these are distinct instances of indecent

contact that happened at times separate and apart from one another and from the

instance in which Appellant’s sexual organ contacted Y.M.’s sexual organ. See Vick v.

State, 991 S.W.2d 830, 833-34 (Tex. Crim. App. 1999) (finding the defendant’s conduct

“constituted a separate and distinct statutory offense” from the other indicted offense,

even when both were violations of a single statute). Thus, subsumption is inapplicable

here. As the court explained in Maldonado, “because the focus of sex offenses is the

prohibited conduct and the legislature intended to allow separate punishments for each

prohibited act, the multiple convictions do not violate the Double Jeopardy Clause.” See

Loving v. State, 401 S.W.3d 642, 648-49 (Tex. Crim. App. 2013) (discussing double

jeopardy in child sexual abuse context). Accordingly, we overrule Appellant’s second

issue.


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       CONCLUSION

       Having resolved each of Appellant’s issues against him, we affirm the judgments

of the trial court.




                                                     Patrick A. Pirtle
                                                          Justice


Do not publish.




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