                                  NOS. 12-12-00413-CR
                                       12-12-00414-CR
                                       12-12-00415-CR
                                       12-12-00416-CR
                                       12-12-00417-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

DAVID BURNETT WILLIAMS,                           §      APPEALS FROM THE 114TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       David Burnett Williams appeals his convictions for aggravated sexual assault of a child
under the age of fourteen. In three issues, he contends that the trial court abused its discretion in
admitting hearsay testimony from persons other than the ―outcry witness,‖ the error harmed him,
and the evidence is insufficient to support the award of court costs in each case. We modify the
trial court’s judgment, and affirm as modified.


                                          BACKGROUND
       Appellant was arrested and indicted in five separate cases in which the grand jury alleged
that he committed separate offenses of aggravated sexual assault of a child under the age of
fourteen. Appellant pleaded ―not guilty.‖ At a pretrial ―outcry witness‖ hearing, three witnesses
testified as to statements that the victim, Appellant’s stepdaughter, made to them concerning the
abuse. The three witnesses were the child’s mother, the child’s paternal aunt, and Jackie
Carvajal, a forensic interviewer at the Children’s Advocacy Center (CAC). Over Appellant’s
objection, the trial court determined that Carvajal was the first witness to whom the child relayed
the events of the abuse in sufficient detail, and therefore designated her as the proper outcry
witness at trial.
        At the trial, the victim’s mother testified that the victim told her Appellant ―put his finger
in her pants and played with her middle part.‖ The mother also testified that when asked to
elaborate, the victim did not want to speak about the incidents in further detail. Because the
victim and her aunt had a close relationship, the mother asked the aunt to speak with the victim
in order to obtain more details about the incidents. The mother testified that after the aunt spoke
with the victim, she told the mother that the victim said Appellant ―put his mouth on her middle
part, put his tongue inside of her[,] . . . [and] that she saw his penis.‖ The aunt testified at trial,
but did not discuss in specific detail what the victim told her.
        Defense counsel objected to all of this testimony as inadmissible hearsay, arguing that
Carvajal was the outcry witness based on her designation as such during the pretrial hearing, and
that the hearsay testimony could be admissible only as outcry testimony.              The trial court
overruled the objections. Carvajal testified that during the interview, the victim made the
allegations she mentioned to her mother and her aunt, and also alleged that Appellant had oral
and anal sex with her, using his penis and fingers. Appellant objected to this testimony as well,
arguing that Carvajal was not the proper outcry witness. The trial court overruled the objection.
However, the victim testified at the trial, and repeated all of the allegations against Appellant that
she made during her interview with Carvajal. Defense counsel did not object to any of her
testimony.
        The jury ultimately found Appellant guilty in all five cases. Appellant elected that the
trial court assess his punishment in each case.         After a hearing, the trial court assessed
Appellant’s punishment in each case at life imprisonment and a $10,000.00 fine. This appeal
followed.


                                       HEARSAY TESTIMONY
        In his first issue, Appellant contends that, because Carvajal was determined to be the
proper outcry witness, the trial court erred when it admitted hearsay testimony from the victim’s
mother and aunt concerning statements the victim made to them about the abuse. In his second
issue, Appellant argues that the error in admitting this testimony harmed him, warranting a




                                                  2
reversal of the trial court’s judgment.     Because these issues are related, we address them
together.
Standard of Review and Applicable Law
       We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will uphold
the trial court’s ruling if it was within the zone of reasonable disagreement. Id. In addition, we
must review the trial court’s ruling in light of the evidence before the trial court at the time the
ruling was made. Id.
       Hearsay is a statement, other than one made by the declarant while testifying at trial, that
a party offers to prove the truth of the matter asserted. TEX. R. EVID. 801(d); Baldree v. State,
248 S.W.3d 224, 230–31 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Hearsay statements
are inadmissible, except as provided by statute or other rule. TEX. R. EVID. 802. The code of
criminal procedure provides a statutory exception to this general rule when a defendant is
charged with certain offenses against a child under fourteen, including aggravated sexual assault
of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2013). In such cases,
Article 38.072 permits the first person over the age of eighteen to whom the child makes a
statement describing the offense to testify as to the child’s statement. See id. § 2(a), (b); Sanchez
v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).
       In sexual abuse cases involving a child, the testimony of the victim alone is sufficient to
support a conviction. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2013); Martinez
v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005); Garcia v. State, 563 S.W.2d 925, 928
(Tex. Crim. App. 1978). Further, the jury is the sole judge of the credibility of witnesses and is
free to accept or reject some, all, or none of the evidence presented by either side. Lancon v.
State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
       The erroneous admission of hearsay statements by non-outcry witnesses is reviewed
under the nonconstitutional error standard. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998).      As part of this review, we determine whether the error affected the
defendant’s substantial rights. See TEX. R. APP. P. 44.2(b). An error affects a substantial right
―when the error had a substantial and injurious effect or influence in determining the jury's
verdict.‖ King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Improper admission of
evidence is not reversible error if the same or similar evidence is admitted without objection at



                                                 3
another point in the trial. See Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim. App. 1998)
(concluding that party who objects to some evidence but fails to object to other substantially
similar evidence waives any error in admission of objected-to evidence); Mayes v. State, 816
S.W.2d 79, 88 (Tex. Crim. App. 1991).
Discussion
       Appellant objected to the trial court’s designation of Carvajal as the outcry witness, but
he does not maintain on appeal that her designation was error. Rather, he contends that the
statements made at trial by the victim’s mother and aunt concerning what the victim told them
about the abuse is hearsay, and that the evidence would be admissible only as outcry testimony.
Furthermore, his argument continues, these statements were not admissible as outcry testimony
because Carvajal was designated as the outcry witness, and thus, the trial court should have
excluded the statements.
       Even if the complained-of evidence violated the outcry witness hearsay exception, a
question we do not reach, Appellant allowed the victim to testify to the same evidence without
objection.   Consequently, Appellant was not harmed by the statements’ admission.              See
Broderick v. State, 35 S.W.3d 67, 74-75 (Tex. App.—Texarkana 2000, pet. ref’d) (holding that
admission of inadmissible outcry testimony was harmless error because the same evidence was
introduced through testimony of the complainant without objection); Thomas v. State, 1 S.W.3d
138, 142 (Tex. App.—Texarkana 1999, pet. ref’d) (same); Poole v. State, 974 S.W.2d 892, 899
(Tex. App.—Austin 1998, pet. ref’d) (same).
       Appellant nevertheless points out that during jury deliberations, the jurors sent the trial
court a note requesting that the victim’s testimony be read back to them, because at least some of
them did not believe her testimony. The trial court responded that it could not grant the request
because the jury did not specifically identify a particular dispute about her testimony. In a
second note sent to the court, the jury asked for other testimony on an unrelated matter to be read
back. The trial court allowed the court reporter to read this testimony to the jury, because the
jury’s request was more specific. However, the jury did not refine the request the trial court had
denied and make another request to have the victim’s testimony read back. Instead, after further
deliberation, the jury returned a unanimous verdict of Appellant’s guilt.
       Appellant essentially asks this court to speculate that the jury must have relied on the
inadmissible testimony of the victim’s mother and aunt to bolster the victim’s credibility since



                                                 4
the note stated that some of the panel members disbelieved the victim’s testimony. 1 However, if
the jury disbelieved the victim’s testimony, then they necessarily would have disbelieved the
testimony of the other witnesses, because the complained-of testimony was solely derived from
the victim’s statements to them. Stated another way, if the jury disbelieved the victim, it would
necessarily disbelieve these witnesses, because they relayed only what the victim told them.
         Moreover, we will not speculate as to matters that occurred during deliberations. See
TEX. R. EVID. 606(b); Allen v. State, No. 05-95-01117-CR, 1999 WL 323281, at *2 (Tex.
App.—Dallas May 24, 1999, no pet.) (not designated for publication) (―We decline appellant’s
invitation to speculate on what the [jury] notes [and questions] reveal about the jury’s
deliberations[, because it] was the jury’s role, as fact finder, to weigh the credibility of the
witnesses and to determine the weight to give their testimony[, and to] reach their verdict, the
jury obviously resolved these issues against appellant.‖); see also Williams v. State, 975 S.W.2d
375, 378 (Tex. App.—Waco 1998, pet. ref’d). The trial court followed the procedures for
responding to juror questions, and neither party argues on appeal that the trial court acted
improperly in this regard. See TEX. CODE CRIM. PROC. ANN. arts. 36.27-.28 (West 2006).
         Even though the jury could have refined its question regarding the disagreement
concerning the victim’s testimony, so that the trial court could have subsequently allowed the
testimony to be reread to them, the jury declined to do so. Instead, the jury deliberated further
and unanimously found Appellant guilty. The jury must have resolved its disagreements in the
victim’s favor, as was its prerogative as factfinder and judge of the witnesses’ credibility.
Without any objection to the child victim’s testimony, Appellant could not have been harmed by
the admission of the complained-of testimony that was substantially similar to hers.                               See
Broderick, 35 S.W.3d at 74-75; Thomas, 1 S.W.3d at 142; Poole, 974 S.W.2d at 899. Thus,
after examining the record as a whole, we conclude that the trial court’s admission of the
testimony did not have a substantial and injurious effect or influence in determining the jury’s
verdict. See Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no
pet.).
         Appellant’s first and second issues are overruled.



   1
     As we have stated, the victim’s aunt did not specifically relate what the victim told her during the trial. Rather,
it was the victim’s mother who testified to what the victim told her aunt concerning the abuse.


                                                           5
                                         COURT COSTS
       In his third issue, Appellant argues that the evidence is insufficient to support the
assessment of court costs against him in each case.
Standard of Review and Applicable Law
       A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).
       A cost is payable only on the issuance of a certified bill of costs, and it does not need to
be orally pronounced with or incorporated into the written judgment to be effective. See TEX.
CODE CRIM. PROC. ANN. art. 103.001 (West 2006); Armstrong, 340 S.W.3d at 766–67; Weir v.
State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). When the trial court’s written judgment
assesses court costs in an amount different from the bill of costs, then the amount of costs
assessed in the bill of costs controls, so long as the costs identified in the bill of costs are
authorized by law and the evidence is sufficient to support them. See Lanz v. State, No. 13-12-
00664-CR, 2013 WL 4715044, at *7 (Tex. App.—Corpus Christi Aug. 30, 2013, no pet.) (mem.
op., not designated for publication); Ballinger v. State, 405 S.W.3d 346, 350 (Tex. App.—Tyler
2013, no pet.).
Discussion
       The trial court assessed court costs at the hearing, without specifying the amount of costs.
In its written judgment, the trial court ordered that Appellant pay court costs in the amount of
$469.00 in each case. After the written judgment was signed, the clerk compiled the bill of costs
in four of the five cases. The record does not include a bill of costs for appellate court cause
number 12-12-00414-CR (trial court cause number 114-0989-12). The bill of costs in appellate
court cause number 12-12-00413-CR (trial court cause number 114-0988-12) shows $369.00 in
total court costs. The bill of costs in appellate court cause numbers 12-12-00415-CR, 12-12-
00416-CR, 12-12-00417-CR (trial court cause numbers 114-0990-12, 114-0991-12, and 114-
0992-12 respectively) shows total costs in the amount of $389.00.
       The costs assessed in each bill of costs are authorized by law, and the evidence is
sufficient to support $369.00 in costs in appellate court cause number 12-12-00413-CR (trial
court cause number 114-0988-12), and $389.00 for appellate court cause numbers 12-12-00415-



                                                6
CR, 12-12-00416-CR, 12-12-00417-CR (trial court cause numbers 114-0990-12, 114-0991-12,
and 114-0992-12 respectively). But the evidence is insufficient to support the amounts in excess
of these amounts assessed by the trial court, and for the assessment of any costs in appellate
court cause number 12-12-00414-CR (trial court cause number 114-0989-12), because there is
no bill of costs in the record for that case. See Lanz, 2013 WL 4715044, at *7 (modifying the
judgment to reflect the figure assessed in the bill of costs when the two figures differed). The
State concedes that the amount of costs awarded by the trial court in excess of the amount
identified in the bill of costs in each case was improperly assessed, and that the evidence is
insufficient to support those amounts. Consequently, Appellant’s third issue is sustained.


                                                    DISPOSITION
         Having overruled Appellant’s first and second issues, and having sustained Appellant’s
third issue, we modify the trial court’s judgment to reflect that the amount of court costs is $0.00
for appellate court cause number 12-12-00414-CR (trial court cause number 114-0989-12),
$369.00 for appellate court cause number 12-12-00413-CR (trial court cause number 114-0988-
12), and $389.00 for appellate court cause numbers 12-12-00415-CR, 12-12-00416-CR, 12-12-
00417-CR (trial court cause numbers 114-0990-12, 114-0991-12, and 114-0992-12 respectively).
See TEX. R. APP. P. 43.2(b); Reyes v. State, 324 S.W.3d 865, 868 (Tex. App.—Amarillo 2010,
no pet.). We affirm the judgment of the trial court as modified. See TEX. R. APP. P. 43.2(b).
                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered January 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           7
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         JANUARY 31, 2014


                                         NO. 12-12-00413-CR

                                 DAVID BURNETT WILLIAMS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 114th District Court
                        of Smith County, Texas (Tr.Ct.No. 114-0988-12)

                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $369.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         JANUARY 31, 2014


                                         NO. 12-12-00414-CR

                                 DAVID BURNETT WILLIAMS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 114th District Court
                        of Smith County, Texas (Tr.Ct.No. 114-0989-12)

                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $0.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         JANUARY 31, 2014


                                         NO. 12-12-00415-CR

                                 DAVID BURNETT WILLIAMS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 114th District Court
                        of Smith County, Texas (Tr.Ct.No. 114-0990-12)

                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $389.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         JANUARY 31, 2014


                                         NO. 12-12-00416-CR

                                 DAVID BURNETT WILLIAMS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 114th District Court
                        of Smith County, Texas (Tr.Ct.No. 114-0991-12)

                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $389.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         JANUARY 31, 2014


                                         NO. 12-12-00417-CR

                                 DAVID BURNETT WILLIAMS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 114th District Court
                        of Smith County, Texas (Tr.Ct.No. 114-0992-12)

                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $389.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
