                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00529-CR


JAVIER SOLIS                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Javier Solis appeals his conviction for indecency with a child by

contact. In two points, Solis argues that the trial court abused its discretion by

allowing two witnesses to testify as to what Daughter, the complainant in this




      1
       See Tex. R. App. P. 47.4.
case and Solis’s biological child, told them about Solis’s alleged inappropriate

conduct toward her. We will affirm.

                                  II. BACKGROUND

      After being urged by her niece to do so, Mother questioned Daughter

about whether Solis had ever been inappropriate in a sexual manner toward her.

Daughter began to cry and told Mother that Solis had “raped” and “molested” her.

Daughter also said that Solis had touched her “private areas.” According to

Mother, Daughter generally did not want to discuss the topic outside of these

comments, other than to confirm that Daughter would need to discuss the matter

with law enforcement.

      Eventually, a child forensic interviewer for the Alliance for Children Child

Advocacy Center of Tarrant County interviewed Daughter.          In the interview,

Daughter revealed in detail how Solis had molested her over a period of years,

between the ages of nine and thirteen.        Daughter told Interviewer that Solis

would come to her bedroom and retrieve her on nights when Mother worked.

Solis would take her into his bedroom and perform varying indecent acts. By

Daughter’s account, sometimes Solis only put his hands under her nightshirt and

sometimes touched her breasts. Daughter said that at other times, Solis would

cause his penis to touch her vagina without penetrating her, but on other

occasions Solis “actually put his private part in [Daughter].”




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      The State charged Solis with aggravated sexual assault of a child under

the age of fourteen and with indecency with a child by contact.2 Specifically to

the assault charge, the indictment alleged that Solis had knowingly and

intentionally “caused the sexual organ of [Daughter], a child younger than 14

years of age . . . to contact the sexual organ of [Solis].” As to the indecency

charge, the indictment alleged that Solis had intentionally and knowingly “with the

intent to arouse or gratify [his sexual desire] . . . engage[d] in sexual contact by

touching the breast of [Daughter], a child younger than 17 years.”

      Prior to trial, the State notified Solis that it intended to introduce the

“outcry” testimonies of both Mother and Interviewer. In its notice concerning

Mother, the State informed Solis that, in summary, it intended to introduce

evidence that Daughter had told Mother that Solis had “raped her since she was

nine years old.”   The State attached Mother’s handwritten statement to the

notice, wherein Mother stated that when she inquired about the abuse, Daughter

“began to cry and yell that her father had raped her since she was 9 years old.”

The written statement states that Daughter generally did not want to talk about

the abuse but that Daughter ultimately agreed that she would have to “tell

someone” like “the police.”




      2
       The State originally charged Solis with three counts of aggravated sexual
assault and one count of indecency. For reasons not discernable from the
record, the State waived two of the aggravated sexual assault charges.


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      In the State’s notice pertaining to Interviewer, the State informed Solis that

it intended to introduce Interviewer’s testimony concerning what Daughter told

her during the interview.     The State wrote, “In summary, [Daughter] told

[Interviewer] that on several occasions [Solis] touched [her] on her female sexual

organ and breasts with his hand. In addition, [Solis] inserted both his finger and

his male sexual organ into the female sexual organ of [Daughter].”

      Prior to either Mother’s or Interviewer’s testimony at trial, the trial court

conducted hearings to determine whether either witness fell within the statutory

mandates of the outcry-witness exception to hearsay.        See Tex. Code Crim.

Proc. Ann. art. 38.072 (West Supp. 2013). At the hearing pertaining to Mother,

she testified that after being prompted by her niece, she had asked Daughter

about whether Solis had ever touched her inappropriately. Much like her written

statement, Mother testified that through tears and emotion, Daughter alleged that

Solis had “raped” her and “molested” her since she was nine. Daughter also said

that Solis “touched her in her private areas when [Mother] would go to work.”

Mother testified that Daughter did not reveal to her any details. The trial court

ruled that Mother’s testimony fell within the outcry-witness exception to hearsay

and that Mother would be allowed to testify.      In the jury’s presence, Mother

testified that when Daughter revealed to her Solis’s behavior, Daughter was very

uncomfortable and upset and not forthcoming of any specific details. Mother

averred that Daughter only revealed to Mother that Solis had “raped,” “molested,”

and “touched” her.


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      Later during the trial, the trial court again held a hearing outside the jury’s

presence to determine whether Interviewer would be allowed to testify.

Interviewer stated that Daughter revealed in detail how Solis would take

Daughter from her bedroom at night when Mother was working. In the interview,

Daughter described how Solis removed some of her clothing at times, how he

would touch both her vagina and breasts, how he would cause his penis to push

up against her “front part,” and how, on more than one occasion, he tried to put

his penis “in [her] private part.” Daughter explained to Interviewer that as she

would resist, Solis would pull her toward him, “hug[ging] her real tight.” Solis

would also pin her to his bed by getting “on top of her and hold[ing] her hands.”

      Citing hearsay and bolstering, Solis objected that Interviewer’s testimony

was a duplicate of Mother’s testimony, with the “possible exception of touching

the chest,” and that she should not be allowed to testify. The State argued that

Daughter’s statements made to both Mother and Interviewer formed a “rolling

outcry” whereby Daughter had simply revealed to Mother that she had been

raped, but revealed to Interviewer in “a lot more detail, [and with] a lot more

allegations as to what” happened. The trial court ruled that Interviewer could

testify. In the presence of the jury, Interviewer testified to the same facts she

testified to during the outcry-witness hearing.

      Daughter testified at trial as well. Daughter averred that when she was

nine, Solis began to retrieve her from a bedroom after Mother had gone to work.

Daughter said that Solis would “carry” her to her parents’ bedroom and lay her


                                         5
down next to him on his bed. He would remove some of her clothing and begin

to touch her “breast” and “vagina.” Daughter said that she was scared to tell

anyone what was occurring, even though it happened frequently, “like once or

twice a month.”      According to Daughter, as she got older, the molestation

progressed.    By Daughter’s account, Solis would routinely begin by touching

either her vagina or her breasts, but the abuse progressed to where he would

digitally penetrate her vagina, and eventually he persistently attempted to

penetrate her vagina with his penis.     Daughter testified that Solis did in fact

eventually penetrate her “once” and that she pushed him away because it “hurt.”

      Solis also took the stand at trial and testified that he believed that Daughter

made up these accusations because she did not like his current wife. He said

that he loved Daughter and that she had visited him in the hospital and had been

loving toward him.

      The jury returned a verdict of guilty as to the indecency charge but a

verdict of not guilty to the aggravated sexual assault charge. The jury assessed

punishment at ten years’ incarceration and a $3,600 fine.           The trial court

sentenced Solis accordingly and this appeal followed.

                                  III. DISCUSSION

      A.      Mother’s Testimony

      In his first point, Solis argues that the trial court abused its discretion by

allowing Mother to testify to what Daughter had told her when Mother inquired of

Daughter whether Solis had been inappropriate to her. Specifically, Solis argues


                                         6
that because Mother’s niece was over the age of eighteen at the time the niece

encouraged Mother to question Daughter, the niece was the proper outcry

witness. Alternatively, Solis argues that the information that Mother testified to

lacked the necessary specificity to satisfy the edicts of article 38.072 and that

Interviewer is “the proper outcry witness in this case.”

      The State counters that there is no evidence in the record to support that

Daughter revealed any information to the niece about Solis. The State further

argues that Mother specifically testified to the elements of the indecency charge,

that Interviewer testified specifically to the aggravated sexual assault charge, and

that thus, the trial court did not abuse its discretion by allowing both outcry

witnesses to testify. We conclude that the trial court abused its discretion by

allowing Mother to testify because by Mother’s testimony, Daughter did not

reveal to her any specificity regarding either of the State’s charges.

      We review a trial court’s decision to admit an outcry statement under an

abuse of discretion standard. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.

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

(referring to article 38.072 as “a rule of admissibility of hearsay evidence” and

describing its purpose). We will uphold the trial court’s ruling if it is within the

zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542

(Tex. Crim. App. 2000); Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.—

Houston [14th Dist.] 2004, pet. ref’d).       But because the trial court has no

discretion in determining the applicable law, the trial court abuses its discretion


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when it fails to analyze the law correctly and apply it to the facts of the case.

State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).

      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 an exception to the hearsay rule, applicable in

proceedings for prosecution of certain listed offenses, for statements made by a

child or disabled victim “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 Supp. 2013). To be

admissible under article 38.072, outcry testimony must be elicited from the first

adult to whom the outcry is made. Lopez v. State, 343 S.W.3d 137, 140 (Tex.

Crim. App. 2011). Admissible outcry witness testimony is not person-specific,

but event-specific.   Id.; West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort

Worth 2003, pet. ref’d). And article 38.072 requires more than “a general allusion

that something in the area of child abuse was going on.” Garcia, 792 S.W.2d at

91.

      To be a proper outcry statement, the child’s statement to the witness must

describe the alleged offense, or an element of the offense, in some discernible

manner and must be more than a general allusion to sexual abuse. See id. It

has been written that in order to describe the alleged offense, the statement must

contain the “how,” “when,” or “where” the offense allegedly transpired.       See

Brown v. State, 381 S.W.3d 565, 572 (Tex. App.—Eastland 2012, no pet.) (citing


                                        8
Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet ref’d)) (“On the

other hand, the child’s statements to Burkett regarding how, when, and where

appellant touched her clearly satisfied the statutory requirements.”); see also

Sledge v. State, No. 03-03-00092-CR, 2004 WL 438958, at *1, 3 (Tex. App.—

Austin Mar. 11, 2004, no pet.) (mem. op., not designated for publication)

(“[T]estimony was relevant to the element of penetration required to be proved in

a charge of aggravated sexual assault.”).

      In cases where a child has been victim to more than one instance of

sexual assault, it is possible to have more than one proper outcry witness.

Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d).

But before more than one outcry witness may testify, it must be determined that

each outcry concerned different events or offenses and was not simply a

repetition of the same event told to different individuals. Id.

      An illumination of the type of detail necessary to describe an offense in a

discernable manner can be gleaned from Brown. 381 S.W.3d at 572. In Brown,

the court held that a child’s statements made to a 9-1-1 operator that “her mom

made her put her hands up in her” and that “her dad put his middle part up in her”

were no more than general allusions to sexual abuse. Id. at 572–73. The court

also held in Brown that statements made by the same child to a police officer that

her parents “touched her in her private areas” and that her “dad puts his male

parts inside of her” were no more than general allusions to sexual abuse. The




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court reasoned that these statements lacked the proper “how, when, and where”

details necessary to describe a charged offense.3 Id.

      In this case, the State argues that Mother and Interviewer testified to

different events. Specifically, the State argues that Mother’s testimony went to

the indecency charge, whereas Interviewer’s testimony went to the aggravated

sexual assault charge. But the record belies this position. Mother’s testimony

does not contain any specific details at all that could form the “how,” “when,” or

“where” to a single element of either the indecency charge or the assault charge.

Rather, it was the statements by Daughter to Interviewer that described the

touching of Daughter’s breast, a detail necessary to describe the indictment’s

indecency charge. Daughter’s statement to Interviewer that Solis would cause

his penis to touch her vagina without his penis penetrating her was also

necessary to describe an element of the indictment’s aggravated sexual assault

charge. We hold that Daughter’s statements to Mother that Solis had “raped”

and “molested” her, as well as her statement that he touched her “private areas”

fail to describe either the offense of indecency or aggravated sexual assault, as

they are charged in the indictment, in any discernible manner, and the

statements were no more than general allusions to sexual abuse.           See id.



      3
       The Brown court went on to hold that the forensic interviewer in that case
was the proper outcry witness, but the court did not describe the testimony in its
opinion, only revealing that the complainant in that case had described the
events “in graphic detail” to the interviewer. Brown, 381 S.W.3d at 572.


                                       10
Therefore, the trial court abused its discretion by allowing Mother to testify to

what Daughter told her. We sustain Solis’s first point.

      B.    Interviewer’s Testimony

      In his second point, Solis argues that the trial court abused its discretion by

allowing Interviewer to testify to what Daughter told her in the forensic interview.

In short, Solis argues that “[Mother] was held to be the proper outcry witness and

she testified first, therefore the testimony of [Interviewer] was permitted in

violation of Article 38.072.” As discussed above, and as Solis concedes in his

first point, Interviewer, not Mother, was the proper outcry witness in this case

because Interviewer’s testimony described specific elements of each charged

offense. Sledge, No. 03-03-00092-CR, 2004 WL 438958, at *1, 3. Thus, the trial

court did not abuse its discretion by allowing Interviewer to testify. See Brown,

381 S.W.3d at 571–72 (holding that forensic interviewer who complainant

described events in detail to was proper outcry witness and not investigating

officer who complainant told that defendant had “touched her in her private

areas”). We overrule Solis’s second point.

      C.    Harmless Error

      Having held that Interviewer was the proper outcry witness but that the trial

court erred by allowing Mother to testify, we must now determine whether the

erroneous admission of Mother’s hearsay testimony harmed Solis.                 See

Davidson v. State, 80 S.W.3d 132, 138 (Tex. App.—Texarkana 2002, pet. ref’d)

(conducting harm analysis after determining that trial court both erroneously


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admitted outcry-witness testimony and also properly admitted outcry-witness

testimony).

      The erroneous admission of a hearsay statement constitutes non-

constitutional error that is subject to a harm analysis. See Tex. R. App. P.

44.2(b); see also Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998)).

      Under rule 44.2(b), we disregard the error if it did not affect Solis’s

substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). A

substantial right is affected 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) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66

S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial

right if we have “fair assurance that the error did not influence the jury, or had but

a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);

Johnson, 967 S.W.2d at 417.

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also


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consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56.

      Here, Mother’s hearsay testimony was that Daughter stated that Solis had

“raped” and “molested” her and also that Solis had touched her “private areas.”

Daughter herself, however, gave detailed testimony concerning Solis’s indecency

and alleged sexual assault. She testified that Solis had continually carried her

from her and her sibling’s room when Mother was at work, removed portions of

her clothing, and touched her “vagina” and “breast.” Daughter testified that when

she resisted, Solis would restrain her. She also described in detail how Solis had

pressed his penis against her vagina, had attempted to penetrate her vagina with

his penis, had on one occasion penetrated her, and that it hurt. This testimony

was corroborated by Interviewer’s properly admitted outcry testimony.

      We conclude that in the context of the entire case against Solis, the trial

court’s error in admitting Mother’s hearsay testimony did not have a substantial

or injurious effect on the jury’s verdict and did not affect Solis’s substantial rights.

See Chapman, 150 S.W.3d at 814–15 (holding improper admission of outcry

testimony was harmless where similar testimony was admitted through

complainant and pediatrician); see also West, 121 S.W.3d at 105 (holding that

error in admitting outcry testimony did not influence jury’s verdict or had but a

slight effect because complainant provided detailed testimony relating to

offense); Davidson, 80 S.W.3d at 138 (holding that erroneous admission of


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outcry witness testimony was harmless error where complainant’s testimony was

otherwise corroborated by properly admitted outcry testimony).      Thus, we

disregard the error. See Tex. R. App. P. 44.2(b); see also King, 953 S.W.2d at

271.

                               IV. CONCLUSION

       Having sustained Solis’s first point but found the trial court’s error

harmless, and having overruled his second point, we affirm the trial court’s

judgment.



                                                /s/ Bill Meier

                                                BILL MEIER
                                                JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

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

DELIVERED: April 24, 2014




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