Affirmed and Memorandum Opinion filed August 29, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00443-CR

                        JOE DANIEL HULL, Appellant
                                           V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1505624

                          MEMORANDUM OPINION

      A jury found appellant guilty of indecency with a child and assessed
punishment at forty-five years’ imprisonment. In a single issue, appellant contends
that the trial court erred by designating the incorrect outcry witness. We affirm
because the error, if any, was harmless.

      The “outcry” statute excludes from hearsay a child’s statements describing
the alleged sexual offense that the child made to the first adult other than the
defendant. See Tex. Code Crim. Proc. art. 38.072, § 2; Sanchez v. State, 354
S.W.3d 476, 484 (Tex. Crim. App. 2011). There can be only one outcry witness
per event of sexual abuse. See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim.
App. 2011).

      In this case, the trial court allowed a forensic interviewer from the
Children’s Assessment Center to testify as the outcry witness. Appellant contends
that the child’s mother was the first adult to whom the child described the offense,
and thus, the trial court erred by admitting the child’s statements to the interviewer
as the outcry witness. Assuming without deciding that the trial court erred, we hold
that appellant was not harmed.

      Generally, the erroneous admission of hearsay under the outcry–witness
statute is non-constitutional error. See Rosales v. State, 548 S.W.3d 796, 808 (Tex.
App.—Houston [14th Dist.] 2018, pet. ref’d); Chapman v. State, 150 S.W.3d 809,
814 & n.8 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Non-constitutional
error regarding the admission of evidence requires reversal, i.e., is harmful, only if
the error affects the defendant’s substantial rights. Gonzalez v. State, 544 S.W.3d
363, 373 (Tex. Crim. App. 2018); see also Tex. R. App. P. 44.2(b); Tex. R. Evid.
103(a). Error affects substantial rights if the error had a substantial and injurious
effect or influence in determining the jury’s verdict. Gonzalez, 544 S.W.3d at 373.
If we have a fair assurance from examining the record as a whole that the error did
not influence the jury, or had but a slight effect, we will not overturn the
conviction. Id. Generally, error is harmless if very similar evidence is admitted
without objection. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim.
App. 2010); see also Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)
(“It is well established that the improper admission of evidence does not constitute
reversible error if the same facts are shown by other evidence which is not
challenged.” (quotation omitted)).

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      In Chapman, for example, this court held that the admission of hearsay
statements through the incorrect outcry witness was harmless because the witness’s
testimony was cumulative of other evidence—namely, the complainant’s
testimony, testimony from a doctor, and the doctor’s report. See 150 S.W.3d at
814–15; see also, e.g., Rosales, 548 S.W.3d at 808–09 (harmless error from
admission of testimony of two outcry witnesses because the same or similar
evidence was admitted through testimony of a doctor and the complainant); Nino v.
State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] no pet. 2007)
(harmless error from improper designation of forensic interviewer as outcry
witness because the child and mother provided substantially the same account of
the offense); West v. State, 121 S.W.3d 95, 105 (Tex. App.—Fort Worth 2003, pet.
ref’d) (harmless error to admit hearsay from mother who was not designated as
outcry witness because the child gave detailed testimony about the assault); Poole
v. State, 974 S.W.2d 892, 899 (Tex. App.—Austin 1998, pet. ref’d) (harmless error
to admit hearsay from mother who was not properly designated as outcry witness
because the children gave substantially the same testimony).

      Here, the interviewer relayed the complainant’s statements:

       The complainant said that appellant sexually abused her three
        times.
       One event was in a living room. The complainant had been
        watching “SpongeBob” on television when appellant came over to
        her, undid her pants, and touched her vagina. The complainant had
        been standing up at the time. She screamed, and appellant went
        back to washing dishes and pretended like nothing had happened.
       One event was in the parents’ room. The complainant had been
        watching “Animal Planet,” and appellant touched her genitals
        under her clothes.

       The touching hurt. Appellant’s hand was “hard” because he
        worked on cars.
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      The complainant testified similarly:

       The touching happened three times.
       One event was in the living room. The complainant had been
        watching “SpongeBob” on television while her mother was taking
        a shower. Appellant told the complainant to pull down her pants
        and underwear. He touched her private part for a few minutes.
        When the shower turned off, appellant told her to pull up her pants,
        and he went and acted like he was washing dishes. When the
        mother asked the complainant what happened, the complainant
        told her “nothing.” The living room incident was the most recent.
       The complainant thought another event occurred in a bedroom, but
        she was not sure. The complainant was watching an “animal show”
        when appellant started touching the complainant’s private part.
        The bedroom incident happened before the living room incident.
       The complainant could not remember details about the third
        incident because she was younger. She just remembered appellant
        touching her.
       Appellant’s hands felt rough.

      A doctor at the Children’s Assessment Center performed an examination on
the complainant and testified about some statements the complainant made:

       Appellant touched the complainant’s vaginal area and buttocks
        three times.
       The complainant described appellant reaching into the
        complainant’s pants while the complainant’s clothes were on. The
        complainant also described appellant removing the complainant’s
        pants and underwear and putting them on the floor. The physician
        did not know if the complainant was describing the same event or
        different events.
       The touching hurt the complainant because “his hands are real
        hard.”

      The analysis in Chapman is controlling under the facts of this case. The
complainant’s hearsay statements admitted through the interviewer’s testimony


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were similar to the complainant’s testimony and, to a lesser degree, the doctor’s
testimony. See, e.g., Chapman, 150 S.W.3d at 814–15

      Appellant contends that the interviewer’s testimony nonetheless influenced
the jury’s assessment of the complainant’s credibility because the interviewer (1)
testified that she had interviewed over 800 children in her career; (2) testified that
memory lapses were very common; and (3) emphasized her training in her
assessment of the complainant’s truthfulness. However, the trial court’s alleged
error of designating the interviewer as an outcry witness merely authorized the
admission of the complainant’s statements as substantive evidence of guilt. See
Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005). The interviewer’s
testimony regarding her experience, memory lapses in children, and an assessment
of the complainant’s truthfulness were not statements of the complainant. Thus, the
trial court’s alleged error of designating the interviewer as an outcry witness did
not cause the admission of testimony other than the statements of the complainant.
Cf. Shaw v. State, 329 S.W.3d 650–52 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d) (holding that a police officer who was not designated as an outcry witness
could testify that the child’s actions of disclosing abuse to multiple adults was
“appropriate”).

      Having reviewed the record, we have a fair assurance that the alleged
error—admission of the complainant’s hearsay statements to the interviewer—did
not influence the jury, or had but a slight effect, because very similar evidence was
admitted elsewhere. See, e.g., Chapman,150 S.W.3d at 814–15.

      Appellant’s sole issue is overruled. The trial court’s judgment is affirmed.



                                       /s/       Ken Wise
                                                 Justice
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Panel consists of Justices Wise, Jewell, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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