                                                                                 PD-0658-15
                                                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                                Transmitted 7/2/2015 1:43:08 PM
                                                                  Accepted 7/2/2015 4:45:40 PM
                                                                                 ABEL ACOSTA
                           No. PD-0658-15                                                CLERK


               IN THE COURT OF CRIMINAL APPEALS

                    FOR THE STATE OF TEXAS

                               *******
                     KEVIN D. TALKINGTON

                              Appellant

                                 vs.
                      THE STATE OF TEXAS,

                             Respondent

                               *******
  APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

             On Petition For Discretionary Review from the
            Second Court of Appeals in No. 02-14-00064-CR
              Affirming Conviction in Cause No. 1269829
          213thDistrict Court Number of Tarrant County, Texas



                          WESBALL
                          State BarNo. 01643100
                          4025 Woodland Park Blvd.,
                          Suite 100
                          Arlington, Texas 7 60 13
                          Emaif: WBnotices@ballhase.com
                          Tel: 817-860-5000
                          Fax: 817-860-6645

                          ATTORNEY FOR APPELLANT
July 2, 2015
                                 No. PD-0658-15

                   IN THE COURT OF CRIMINAL APPEALS

                          FOR THE STATE OF TEXAS

                                     *******

                           KEVIN D. TALKINGTON

                                    Appellant

                                       vs.
                            THE STATE OF TEXAS,

                                   Respondent

                                     *******

         APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

                 On Petition For Discretionary Review from the
                Second Court of Appeals in No. 02-14-00064-CR
                  Affirming Conviction in Cause No. 1269829
              213th District Court Number of Tarrant County, Texas

      COMES NOW KEVIN TALKINGTON, Appellant in the above-styled and
numbered cause, by and through his attorney, WES BALL, and files this his
Petition For Discretionary Review, pursuant to TEX. R. APP. 68. In support of his
prayer for review, Appellant would respectfully show the Court as follows:
                       LIST OF INTERESTED PARTIES


      Pursuant to the Texas Rules of Appellate Procedure, Rule 68.4 (a),

Appellant lists the following persons who have an interest in the appeal for the

purpose of the Court's determining conflicts and recusals:


JUDGES:                                            APPELLANT:
Hon. Louis E. Sturns                               Kevin D. Talkington
213th District Court                               TDCJ# 01911091
401 W. Belknap St.                                 Coffield Unit
Fort Worth, Texas 76196                            2661 FM 2054
                                                   Tennessee Colony, TX 75884

TRIAL COUNSEL:
Hon. Kacey Fickes                                  Hon. Lex Johnston
Hon. Tasha Foster                                  1245 Hurstview Dr., Ste. 205
Assistant District Attorneys                       Hurst, Texas 76053
401 W. Belknap St.
Fort Worth, Texas 76102


APPELLATE COUNSEL:
Sharen Wilson, District Attorney                   Wes Ball
Appellate Division                                 Counsel for Appellant
401 W. Belknap St.                                 4025 Woodland Park Blvd.,
Fort Worth, Texas 76196                            Ste 100
                                                   Arlington, Texas 76013




                                         ii
                                            TABLE OF CONTENTS



LIST OF INTERESTED PARTIES .... ..................................................................... .ii

TABLE OF AUTHORITIES ...................................................................... ............ .. iv

STATEMENT REGARDING ORAL ARGUMENT ..... ..................... ............... .. .... 1

STATEMENT OF THE CASE .... ........................... .............. ................ ..................... I

REASONS FOR REVIEW .................... ..... .............. ........... .. ... .. ............................... 2

ARGUMENT ........ ........ .. ... ... .......... ........... ...... ..................................................... .. ... 3

PRAYER .................................................................................................................... 5

CERTIFICATE OF SERVICE ............ ...................................................................... 6

CERTIFICATE OF COMPLIANCE ........ ....... .. ........................................................ 7

APPENDIX ............................................. ............... .... ...................... ........... .............. 8




                                                               iii
                                  TABLE OF AUTHORITIES



CASES

Broderick v. State, 35 S.W.3d 67 (Tex. App.- Texarkana 2000) ........................... .4

Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) .......................................... .4

Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990) ............ .............. ................ .4

Reynolds v. State, 227 S.W.3d 355 (Tex. App.- Texarkana 2007, no pet.) .......... ..4

Talkington v. State, No. 02-14-00064-CR (Tex. App. -Fort Worth 2015) ............... 2




OTHER AUTHORITIES

Texas Rules of Appellate Procedure, Article 38.072 § 2 .... .............................. ........ 3

Texas Rules of Appellate Procedure, Rule 68.4 (a) .................................................. ii

Texas Rules of Appellate Procedure, Rule 68.2 (c )................................................... 2

Texas Rules of Appellate Procedure, Rule 68.2 (d) .................................................. 2

Texas Rules of Appellate Procedure, Rule 68 ........ ...................... .......................... .... i

Texas Rules of Appellate Procedure, Rule 66.3 (a) ................................................... 2

Texas Rules of Appellate Procedure, Rule 9.4(i)(3) ................................................ 7




                                                     iv
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant waives oral argument on his Petition.

                         STATEMENT OF THE CASE

      Appellant entered a plea of not guilty (RR.III, 21) to an indictment (CR. I, 6,

7) alleging in counts one, two and three aggravated sexual assault of a child, and

counts four and five indecency with a child by contact. Following his plea of not

guilty, the case was tried before a jury (RR. II - IV). After hearing evidence, the

jury returned a verdict of guilty on all five counts of the indictment. (CR. I, 69-

73). Following its verdict on the issue of guilt, punishment was submitted to the

trial court. Appellant entered a plea of true to an enhancement allegation setting

forth a prior felony conviction. (RR. IV, 47). Evidence was presented on the issue

of punishment. After hearing evidence, the trial court assessed punishment at forty

(40) years confinement in the Institutional Division of the Texas Department of

Criminal Justice on counts one, two and three. The trial court assessed punishment

at fifteen (15) years confinement on counts four and five . The court ordered all

sentences to run concurrently. (RR. IV, 59-60).




                                         1
                      STATEMENT OF PROCEDURAL HISTORY

      In an unpublished opinion delivered April 30, 2015 , a panel of the Second

Court of Appeals affirmed the judgment and sentence Talkington v. State, No. 02-

14-00064-CR (Tex. App. - Fort Worth 2015) (Appendix A).

      No motion for rehearing has been filed.                       Appellant's Petition For

Discretionary Review is filed pursuant to TEX. R. APP. PROC. 68.2 (c) 1•

                               REASONS FOR REVIEW

      The Court of Appeals has decided an important question of state law in a

way that conflicts with the applicable provisions of the applicable statutes, and the

decisions of other Courts of Appeals. Tex. R. App. Proc. 66.3 (a) & (d).



                                  QUESTIONS FOR REVIEW

         Is it error to permit hearsay outcry testimony from two outcry witnesses
              concerning the same sexual offense event over objection?

      Does the erroneous admission of multiple hearsay witnesses to an outcry
 become harmless simply because the outcry declarant testified to the same facts
                          contained in the hearsay?

                                            ARGUMENT

      The victim testified concerning events of sexual abuse she says were

committed upon her by Petitioner. These events of sexual abuse included hand

touching breast, mouth touching breast, hand touching vagina, mouth touching

      Petitioner's request for an extension of time to file his Petition was granted.


                                                2
vagina, mouth touching penis and penis touching anus. The State sought to offer

hearsay "outcry" testimonl from two different adult witnesses pursuant to Article

38.072 § 2 Texas Code of Criminal Procedure.                    The first of these hearsay

witnesses, Ms. Abbott a CPS supervisor testified that the victim told her that

Petitioner put his mouth to her vagina and breast or touching her privacy spot with

his tongue and licked her chest. (RR. II, 121-122; RR. III, 153-154). The second

outcry witness Ms. Hallum a forensic interviewer for CPS testified that the victim

told her that Petitioner put his mouth to her vagina, his hand to her vagina, his

penis to her anus and mouth. (RR. III,38). Ms. Hallum had interviewed the victim

after she was interviewed by Ms. Abbott. Petitioner objected to the testimony of

Ms. Hallum, arguing that it should be limited to discussing the specific acts that

were not described to Ms. Abbott. Petitioner's objections were overruled. (RR. III,

15).

       The statute provides that such statements can be admitted if they describe

the alleged offense, and were made to the first person, 18 years of age or older

other than the defendant.        More than one outcry witness may testify where there

are multiple outcry witnesses to different events. The outcry statute contemplates

allowing the first person to whom the child described the offense in some

discernable manner to testify about the statements the child made. Garcia v. State,

2
        Outcry evidence is considered substantive evidence, admissible for the truth of the matter
asserted. Rodriguez v. State, 819 S.W.2d 871,87 (Tex. Crim. App. 1991).


                                                3
792 S.W.2d 88, 91 (Tex. Crim. App. 1990). The outcry statute is not person-

specific but event-specific. As stated in Broderick v. State, 35 S.W.3d 67, 73-74

(Tex. App. - Texarkana 2000). pdr. ref d. :

      Before more than one outcry witness may testify, however, the outcry
      must be about different events, and not simply a repetition of the same
      event as related by the victim to different individuals. From a careful
      reading of the outcry witness statute, we conclude that there may be
      two proper outcry witnesses if they each testify about different events,
      but there may be only one outcry witness to the victim's statement
      about a single event. The proper outcry witness to a single event is
      the first adult person other than the defendant to whom the victim
      made a statement describing the incident.

      (See also Reynolds v. State, 227 S.W.3d 355, 369 (Tex. App. -
      Texarkana 2007, no pet.))

      The Second Court of Appeals acknowledges that "hearsay is not admissible

except as provided by statute or by the rules of evidence. See Long v. State, 800

S.W.2d 545, 547 (Tex. Crim. App. 1990). (slip opinion at 3).         The Court in its

opinion affirming the judgment of conviction decides that the inadmissible hearsay

admission was harmless.       It so holds without really addressing whether the

admission was error, "Assuming without deciding that the trial court abused its

discretion by admitting Hallum's testimony" (slip opinion at 4). The Court decides

that the admission of the inadmissible hearsay "did not influence the jury verdict or

had but a slight effect." (slip opinion at 4). The Court also used as justification to

affirm the judgment of conviction that admission of evidence is harmless if other

evidence proves the same fact that the inadmissible evidence sought to prove is


                                          4
admitted without objection at trial." (slip opinion at 5). Astonishingly, the Second

Court concludes that admission of hearsay in violation of the very statute that

permits admission is harmless error if the declarant to the hearsay also testified to

the asserted facts.   This completely ignores the harm caused by the repeated

admission of hearsay statements by a declarant to support the State's case by

showing the consistency of the declarant.       The fact that the victim's testimony

alone to the alleged facts is sufficient to support conviction is irrelevant to the issue

of admission of hearsay in violation of the statute.

      The decision of the Second Court of Appeals is in conflict with the decisions

of another Court of Appeals and the statute that pertains to the issue. This Court

should grant review to resolve the conflict and to firmly establish that adherence

with the statute permitting admission of hearsay testimony must be observed.

                                      PRAYER

      For the reasons herein alleged, Appellant prays that this Court grant this

Petition, and upon review, reverse the Court of Appeals' decision and remand

Appellant's case for a new trial where only that hearsay permitted by statute will

be admitted, and for such other and further relief to which he may be entitled.




                                           5
                                        Respectfully submitted,

                                        Is/ Wes Ball
                                        WESBALL
                                        State Bar No. 01643100
                                        4025 Woodland Park Blvd., Suite 100
                                        Arlington, Texas 76013
                                        Email: WBnotices@ballhase.com
                                        Tel: 817-860-5000
                                        Fax: 817-860-6645

                                        ATTORNEY FOR APPELLANT

                        CERTIFICATE OF SERVICE

      On this 30th day of June, 2015, I hereby certify that a true and correct copy

of the above and foregoing Appellant's Petition for Discretionary Review was

forwarded to the following:

      Tarrant County District Attorney
      Appellate Division
      401 W. Belknap
      Fort Worth, Texas 76196

      State Prosecuting Attorney
      PO Box 12405
      Austin, Texas 78711

      Kevin D. Talkington, Petitioner

                                        /s/WES BALL
                                        WESBALL




                                          6
                     CERTIFICATE OF COMPLIANCE

      In compliance with Rule 9.4(i)(3) of the Texas Rules of Appellate

Procedure, I certify that the Appellant's Brief was prepared using Microsoft Word,

and according to that program's word count function, the document contains 811

words.


                                     /s/ Wes Ball
                                     WES BALL,
                                     Attorney for Appellant




                                        7
                 No. PD-0658-15

      IN THE COURT OF CRIMINAL APPEALS

           FOR THE STATE OF TEXAS

                    *******
             KEVIN D. TALKINGTON

                   Appellant

                      vs.
             THE STATE OF TEXAS,

                  Respondent

                    *******
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




                  APPENDIX




                       8
                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                 NO. 02-14-00064-CR


KEVIN D . TALKINGTON                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE




           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO . 1269829D




                           MEMORANDUM OPINION 1



                                  I.   Introduction

      Appellant Kevin D . Talkington appeals his conviction for indecency with a

child and aggravated sexual assault of a child.       In a single issue, Talkington

argues that the trial court abused its discretion by allowing two witnesses to




      1
          See Tex . R. App. P. 47.4.
testify as to what Jane,2 the complainant, told them about Talkington's alleged

inappropriate conduct toward her. We affirm.

                      II.    Facts and Procedural Background

      In January 2011 , Jane, Talkington's eleven-year-old stepdaughter, made

an outcry of sexual abuse to CPS investigator Jennifer Abbott. Jane told Abbott

that Talkington had "touched her privacy spot with his tongue, .. . licked her

chest, ... put her on top of the washer and . .. laid on top of her and kissed her

and that one time in the shower that he pulled the curtain back [and] told her to

bend over and shake her tushy ." Following this interview, Abbott took Jane to

Alliance for Children, where Jane told forensic interviewer Joy Hallum that

Talkingtion had "put[] his mouth onto her vagina, touch[ed] her vagina with his

hands, put[] his penis to her anus, put[] his penis to her vagina, and then [had)

her put her mouth onto his penis."

      At trial , Talkington objected to the "outcry" testimony of both Hallum and

Abbott.     Specifically, Talkington argued that Abbott's testimony was unreliable

and Hallum 's testimony should be limited to discussing the specific acts that

Abbott did not describe. The trial court held an outcry hearing and , after listening

to the testimony, overruled the objection.

      In addition to hearing Hallum's and Abbott's testimony, the jury also viewed

the video of Hallum's forensic interview with Jane and heard testimony from Jane


      2
          To protect the privacy of the child, we refer to the child by a pseudonym .


                                            2
herself. Jane testified at length , describing several instances in which Talkington

had touched her inappropriately.     Jane told the jury that Talkington placed his

hands and mouth on her breast and then moved his hands to her vagina. She

testified that another time Talkington had put his mouth on her vagina. Jane also

described another instance in which Talkington placed his mouth and hands on

her vagina and then engaged in anal sex with her. Lastly, Jane told the jury that

Talkington made her put her mouth on his penis. She testified that while the anal

sex only happened once, the touching with his hands and mouth happened often .

      The jury found Talkington guilty of two counts of indecency with a child by

contact and three counts of aggravated sexual assault.        The court sentenced

Talkington to forty years' confinement for aggravated sexual assault and fifteen

years' confinement for indecency.

                              Ill.   Applicable Law

      Hearsay is not admissible except as provided by statute or by the rules of

evidence.   See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).

Article 38.072 establishes a hearsay exception for statements made by a child "to

the first person, 18 years of age or older, other than the defendant, to whom the

[victim] ... made a statement about the offense." Tex. Code Crim. Proc. Ann .

art. 38.072 § 2(a)(3) (West 2005 & Supp. 2014); see also Lopez v. State , 343

S.W .3d 137, 140 (Tex. Crim . App. 2011 ). Admissible outcry witness testimony is

not person-specific but event-specific.   /d.; West v. State, 121 S.W.3d 95, 104

(Tex. App.-Fort Worth 2003 , pet. ref'd) . In cases where a child has been victim


                                          3
to more than one instance of sexual assault, it is possible to have more than one

proper outcry witness. Solis v. State, No. 02-12-00529-CR, 2014 WL 1663405 at

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

publication); see also Broderick v. State , 35 S.W.3d 67, 73 (Tex. App.-

Texarkana 2000, pet. ref'd).

                         IV.    Argument and Analysis

      Talkington asserts on appeal that the trial court abused its discretion "in

permitting and not limiting the testimony of outcry witness Joy Hallum to the

matters not already disclosed to Jennifer Abbott."     Specifically, the trial court

allowed both outcry witnesses to testify to essentially the same act of aggravated

sexual assault. Abbott testified that Jane told her that Talkington had touched

her vagina with his tongue, and Hallum testified that Jane told her that Talkington

put his mouth on her vagina. Jane also testified , without objection , to the same

facts that were contained in her outcry statements to both Abbott and Hallum.

Jane described two specific and distinct instances in which Talkington had

placed his mouth on her vagina.

      Assuming , without deciding , that the trial court abused its discretion by

admitting Hallum's testimony, we must determine whether the error was harmful.

"The admission of inadmissible hearsay constitutes nonconstitutional error, and it

will be considered harmless if the appellate court, after examining the record as a

whole, is reasonably assured that the error did not influence the jury verdict or

had but a slight effect. " Broderick, 35 S.W.3d at 74 (citing Johnson v. State, 967


                                        4
S.W.2d 410, 417 (Tex. Crim . App. 1998)). Likewise, admission of inadmissible

evidence is harmless error if other evidence that proves the same fact that the

inadmissible evidence sought to prove is admitted without objection at trial. /d.

      Here, Jane's testimony as to the facts mirrored the contents of the outcry

statement testified to by Hallum. As Jane's testimony alone was sufficient to

convict Talkington, we are reasonably certain that if the testimony given by

Hallum concerning the oral sex performed on Jane by Talkington influenced the

jury verdict at all , it had but a slight effect.   Tex. Crim. Proc. Code Ann.

art. 38 .07(b)(1) (West 2005 & Supp. 2014); Bargas v. State, 252 S.W.3d 876,

888 (Tex. App.-Houston [14th Dist.] 2008 , no pet.) (holding that a child victim's

testimony was sufficient to support appellant's conviction for aggravated sexual

assault despite her unsophisticated terminology and rough time-frame of events).

Therefore, assuming , without deciding, that the trial court erred in admitting part

of Hallum's testimony, we hold that the error was harmless and overrule

Talkington's sole issue.

                                V.     Conclusion

      Having overruled Talkington's sole 1ssue, we affirm the trial court's

judgment.


                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: LIVINGSTON , C.J.; GABRIEL and SUDDERTH , JJ .



                                         5
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 30, 2015




                            6
