AFFIRM; and Opinion Filed May 2, 2017.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-00675-CR

                         FRANCISCO ARIEL VASQUEZ, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 291st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1555979-U

                              MEMORANDUM OPINION
                           Before Justices Lang, Fillmore, and Schenck
                                   Opinion by Justice Schenck
       Appellant Francisco Ariel Vasquez appeals his conviction for sexual assault of a child.

In a single issue, appellant argues the trial court abused its discretion in overruling his objection

to a hearsay statement that was not admissible under the medical diagnosis exception. We

conclude any error in the admission of the complained of statement was rendered harmless when

substantially the same evidence was introduced without objection.           We affirm appellant’s

conviction. Because all issues are settled in law, we issue this memorandum opinion. TEX. R.

APP. P. 47.4.
                                           BACKGROUND

       C.H. met appellant in May 2015 through a friend of her mother. At that time, she was

fifteen years old and appellant was twenty-four. Shortly after they met, C.H. moved into an

apartment with appellant and his mother.

       C.H.’s nineteen-year-old sister, P.H., learned in June 2015 that C.H. was living with

appellant. P.H. and C.H.’s mother had been unstable since they were both very young. She

moved from place to place and lived in different homes with different men. As a result, C.H.

often changed schools and fell a grade behind in school. P.H. felt C.H. needed to be somewhere

stable and permanent and away from men. P.H. told their mother that she wanted C.H. to live

with her and that she would take care of her. P.H. contacted Child Protective Services and

reported that C.H. was living in an unstable home.

       Two weeks after P.H. contacted CPS, C.H. called P.H. C.H. was nervous and needed

help because her menstrual period was overdue and she thought she was pregnant. P.H. went to

appellant’s apartment and drove C.H. to a pharmacy where they purchased a home pregnancy

test. Initially, C.H. refused to name the father of the anticipated child. After the test came back

negative, C.H. told P.H. that she and appellant had a sexual relationship.

       P.H. was concerned that, if the circumstances did not change, C.H. would become

pregnant and unable to work, and that C.H. would have the responsibility of taking care of a

baby when she was herself still a child. P.H. offered to allow C.H. to move into her residence.

C.H. refused to do so and went back to appellant’s apartment.

       P.H. told her mother that if she did not do something about the situation, she would.

When her mother failed to take action, P.H. called the police and reported that her fifteen-year-

old sister was having a sexual relationship with an older man and that it would continue if she

did not get out of the house. After police officers Ferdinand and Jackson spoke with P.H., they

                                               –2–
went to appellant’s apartment. When they arrived, C.H. answered the door. The officers noticed

what they described as visible “hickies” on the left side of her neck, but did not see any other

visible bruises or any signs of abuse. C.H. told the officers she lived in the apartment with her

boyfriend, her boyfriend’s mother, and another man. C.H. initially denied having sex with

appellant. After a female officer arrived at the apartment, C.H. admitted that she had engaged in

sexual activity with appellant. The officers put C.H. in one of the patrol cars to transport her to

the child exploitation unit and then to a hospital. While the officers were putting C.H. in the car,

appellant appeared. The officers asked him about C.H. After ascertaining that his age was

twenty-four and that he knew of C.H.’s age, they arrested him.

        P.H. was awarded temporary guardianship over C.H. A grand jury issued an indictment

charging appellant with sexual assault of a child. The State thereafter filed a notice of intent to

enhance the applicable punishment range with a prior felony conviction. Appellant entered a

plea of not guilty, and a jury found him guilty of the charged offense. Appellant chose to have

punishment assessed by the trial court. He pleaded true to the enhancement allegation, and the

trial court assessed punishment at eight years’ imprisonment.

                                           DISCUSSION

        Appellant argues the trial court abused its discretion by admitting, over objection, hearsay

testimony offered under the medical diagnosis exception. Appellant urges the admission of this

evidence was not harmless because this was the first evidence the jury heard regarding a sexual

relationship between C.H. and appellant.

   I.      STANDARD OF REVIEW

        An appellate court reviews the trial court’s admission of evidence for an abuse of

discretion. See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). If the trial

court’s ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Id.

                                                –3–
Erroneously admitted evidence “will not result in reversal when other such evidence was

received without objection, either before or after the complained-of ruling.” Coble v. State, 330

S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex.

Crim. App. 1998)). In other words, claimed error in the admission of evidence may be rendered

harmless when “substantially the same evidence” is admitted elsewhere without objection.

Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991), superseded by statute on other

grounds, TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2016); see also Estrada v. State,

313 S.W.3d 274, 302 n. 29 (Tex. Crim. App. 2010) (noting any error was harmless in light of

“very similar” evidence admitted without objection).

    II.       APPLICABLE LAW

           The hearsay doctrine, codified in Texas Rules of Evidence 801 and 802, is designed to

exclude out-of-court statements offered to prove the truth of the matter asserted that pose any of

the four “hearsay dangers” of faulty perception, faulty memory, accidental miscommunication,

or insincerity. TEX. R. EVID. 801, 802; Fischer v, State, 252 S.W.3d 375, 378 (Tex. Crim. App.

2008). However, Texas Rule of Evidence 803(4) provides an exception to hearsay for statements

made for the purpose of medical diagnosis or treatment. TEX. R. EVID. 803(4). The exception is

based on the rationale that a patient will generally provide accurate information when seeking

medical diagnosis or treatment. Bautista v. State, 189 S.W.3d 365, 368 (Tex. App.—Fort Worth

2006, pet. ref’d).

    III.      APPLICATION OF THE LAW TO THE FACTS

           At trial, the State called P.H., Officer Ferdinand, Officer Morganfield, C.H., and the

director of Clinical Practice and Innovation at Dallas Children’s Advocacy Center, to testify.

Appellant did not testify and did not call any witnesses. The State called P.H. as its first witness.




                                                –4–
P.H. testified that she is C.H.’s older sister and current guardian. She indicated she did not know

appellant before July 2015. The following exchange ensued:

       [STATE]: How did you find out that your sister was involved with [appellant]?

       [P.H.]: I knew they were friends. I didn’t know there was any romantical [sic]
       relationship. I found out that there was a romantical [sic] relationship when she
       called me one night saying that she thought she was pregnant, and we went to go
       buy her a pregnancy test. At that moment she didn’t tell me who the father was.
       After we took the pregnancy test and it came back negative, that when she told
       me.

       [DEFENSE COUNSEL]: Your Honor, I’m going to object to any hearsay or any
       question that elicit any hearsay answer.

       THE COURT: Response from the State?

       [STATE]: This falls under the medical diagnosis exception, Your Honor.

       THE COURT: Overruled.

       The State concedes on appeal that the medical diagnosis exception to hearsay does not

apply to the complained of statement because C.H.’s need for medical assistance ended when the

pregnancy test came back negative. The State suggests the statement might also qualify as an

outcry statement, but notes there is nothing in the record showing the prosecutor gave proper

notice of its intent to introduce the statement through P.H., as would normally be necessary to

invoke that exception. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b) (West Supp. 2016)

(requiring notice and hearing for an outcry statement to be admissible over a hearsay objection);

see also Bays v. State, 396 S.W.3d 580, 591 (Tex. Crim. App. 2013) (citing Long v. State, 800

S.W.2d 545, 547 (Tex. Crim. App. 1990) (“[T]he hearsay exception for outcry is applicable only

if the statute’s stringent procedural requirements are met.”). Moreover, the outcry statement

exception to hearsay applies if the offense is committed against a child younger than fourteen

years of age or a person with a disability. TEX. CODE CRIM. PROC. ANN. art. 38.072 § 1. Here,

the record shows C.H. was fifteen years of age at the time of the offense, and there is no

                                               –5–
evidence C.H. is a person with a disability.       Thus, the trial court abused its discretion in

overruling appellant’s objection to the statement, and it would have been error for the court to

allow the testimony as an outcry statement.

       We must now determine whether this error requires reversal. In a criminal case, the

admission of hearsay evidence in violation of the rules of evidence is generally non-

constitutional error that must be disregarded unless it affected substantial rights. TEX. R. EVID.

103 (providing that error may not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected and a timely specific objection is made); TEX. R.

APP. P. 44.2(b) (providing that any non-constitutional error that does not affect a criminal

defendant’s substantial rights must be disregarded). A substantial right is affected when the error

had a substantial and injurious effect or influence in determining the jury’s verdict.” Kirby v.

State, 208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.).

       After the court overruled appellant’s objection to P.H.’s testimony, C.H. testified without

objection that she was fifteen years old and that she and appellant had sex at his apartment

approximately ten times. Officers Ferdinand and Morganville testified without objection that

C.H. told them she and appellant had engaged in sexual activity. Appellant acknowledges that

his identity was not an issue, but claims because he was identified as the perpetrator of the

offense by the first State’s witness, the information was highly prejudicial and colored the entire

nature of the case. We disagree. The undisputed evidence established the ages of appellant and

C.H. Given C.H.’s age, and the age difference between appellant and C.H., C.H. could not

legally consent to sex with appellant. TEX. CODE CRIM. PROC. ANN. art. 22.001(a)(2) (West

2009). In addition, evidence was introduced without objection that undisputedly established

C.H. engaged in sexual activity with appellant. Appellant has failed to demonstrate that the




                                                –6–
timing of the jury’s receipt of evidence of C.H.’s age, or the fact of the sexual contact, could in

any way have changed the outcome of his case.

       Accordingly, we conclude any error in the admission of the complained of testimony was

rendered harmless when substantially the same evidence was admitted elsewhere without

objection. See Coble, 330 S.W.3d at 282. We resolve appellant’s issue against him.

                                          CONCLUSION

       We affirm the trial court’s judgment.



                                                     /David J. Schenck/
                                                     DAVID J. SCHENCK
                                                     JUSTICE



DO NOT PUBLISH
TEX. R. APP. P. 47

160675F.U05




                                               –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

FRANCISCO ARIEL VASQUEZ,                            On Appeal from the 291st Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F-1555979-U.
No. 05-16-00675-CR        V.                        Opinion delivered by Justice Schenck.
                                                    Justices Lang and Fillmore participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 2nd day of May, 2017.




                                              –8–
