                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-16-00246-CR
                                      No. 07-16-00247-CR
                                      No. 07-16-00248-CR
                                      No. 07-16-00249-CR
                                      No. 07-16-00250-CR
                                 ________________________


                           ALLEN ODONALD NASH, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



               On Appeal from the 9th District Court; Montgomery County, Texas
                  Trial Court No. 14-12-13270-CR (Counts I, II, III, IV, & V);
                             Honorable Suzanne Stovall, Presiding


                                         November 16, 2018

                                MEMORANDUM OPINION
                       Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       Following pleas of not guilty, Appellant, Allen ODonald Nash, was convicted by a

jury of five sexually-related offenses proscribed by the Texas Penal Code.1                       The


       1   TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West Supp. 2018). An offense under this section is a
first degree felony.
convictions were enhanced by two prior felonies.2 As depicted below, the jury assessed

life sentences for each offense and the trial court entered five separate judgments.


 Count I        Agg. Sexual Assault       § 22.021(a)(1)(B)                        Confinement for life

                                          (digital penetration of the sexual
                                          organ of Z.B., a child younger than 14
                                          years of age, on October 29, 2009)

 Count II       Agg. Sexual Assault       § 22.021(a)(1)(B)                        Confinement for life

                                          (digital penetration of the sexual
                                          organ of Z.B., a child younger than 14
                                          years of age, on November 5, 2009)

 Count III      Agg. Sexual Assault       § 22.021(a)(1)(B)                        Confinement for life

                                          (penetration of the mouth of Z.B., a
                                          child younger than 14 years of age,
                                          by Appellant inserting his sexual
                                          organ on November 5, 2009)

 Count IV       Agg. Sexual Assault       § 22.021(a)(1)(B)                        Confinement for life

                                          (digital penetration of the sexual
                                          organ of Z.B., a child younger than 14
                                          years of age, on November 12, 2009)

 Count V        Agg. Sexual Assault       § 22.021(a)(1)(B)                        Confinement for life

                                          (penetration of the mouth of Z.B., a
                                          child younger than 14 years of age,
                                          by Appellant inserting his sexual
                                          organ on November 12, 2009)




Appellant’s sentences were ordered to run concurrently. Appellant gave timely notice of

appeal.3 By a sole issue, he contends the trial court abused its discretion in allowing Myra



        2TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2018). As enhanced, each offense was punishable
by imprisonment for life, or for any term of not more than 99 years or less than 25 years.

        3 Originally appealed to the Ninth Court of Appeals, this appeal was transferred to this court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Ninth Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.

                                                     2
Domingue, the forensic interviewer and an outcry witness, to testify about sexual conduct

testified to by the complainant’s mother, another outcry witness. We affirm.


       BACKGROUND

       Lisa Nash, a single parent of two children, married Appellant in 2005 while they

were living in Seattle, Washington.4 Her daughter, Z.B., was approximately six years old

at the time. In August 2008, all parties moved to Texas where they resided with Mrs.

Nash’s parents until May 2009, when they found a home of their own.


       When Z.B. was nine years old, the mother awoke one night to find that Appellant

had moved Z.B. from her bedroom and brought her into their bed. Appellant told Mrs.

Nash that Z.B. had complained of a stomach ache. Around the time of the stomach ache

incident, Z.B. told her mother that Appellant had been coming into her room and rubbing

her stomach which made her feel uncomfortable. Mrs. Nash confronted Appellant and

his explanation was that Z.B. was having stomach aches.


       Of his own volition, Appellant moved out of the home that night. Months later, he

moved back in with Z.B. and her mother. He was sleeping in the guest bedroom, which

was located across from Z.B.’s bedroom. Some months later, Mrs. Nash and Appellant

permanently separated for reasons unrelated to the charges pending against him.


       Several years later, in 2013, Mrs. Nash and Z.B. had a disagreement and Mrs.

Nash took Z.B.’s cell phone away as punishment. According to Mrs. Nash, the argument




       4   According to Mrs. Nash, when she later sought a divorce, she found out her marriage was not
legally binding.


                                                  3
escalated into a physical confrontation that resulted in an injury to Z.B.’s arm. The next

day at school, Z.B.’s coach sent her to the school nurse to ice her arm. The nurse

contacted Child Protective Services about possible physical abuse by Mrs. Nash against

Z.B.


       Child Protective Services opened an investigation of the incident.5 As part of that

investigation, the caseworker held a family meeting with Z.B., Mrs. Nash, Mrs. Nash’s

sister, and Z.B.’s maternal grandparents, who were her caregivers while her mother was

at work. The meeting was held at the home of the grandparents. During the meeting, the

discussion shifted from the incident between Mrs. Nash and her daughter to allegations

of sexual abuse by Appellant against Z.B.6 At that point in the discussion, Z.B. became

very upset and tried to leave the meeting. Mrs. Nash’s sister convinced her to stay.


       After the meeting, while Z.B. and her mother were driving home, Mrs. Nash was

very upset and apologized to Z.B. for not protecting her. She began asking Z.B. specific

questions about the allegations against Appellant. The discussion continued after they

arrived home and it was then that Z.B. revealed Appellant had sexually assaulted her on

several occasions. The next day, Mrs. Nash notified the police.


       Mrs. Nash gave the responding officer a voluntary statement in which she declared

that Z.B. told her Appellant had penetrated Z.B.’s vagina with his finger and had also put

her mouth on his penis.           Z.B. was later questioned by Myra Domingue, a forensic




       5   Mrs. Nash was eventually cleared of any abuse allegations.
       6 Apparently, the case worker had become aware of allegations of sexual assault made by Z.B.
against Appellant.

                                                    4
interviewer, who learned that Appellant had also touched Z.B.’s breasts during one of the

sexual assault encounters.


       Z.B. was taken to the emergency room for a medical examination. However, due

to the length of time between the alleged assaults and Z.B.’s outcry, no visible injuries

were detected, and no biological evidence was collected.


       Based on Z.B.’s accusations, Appellant was indicted on five counts of aggravated

sexual assault and one count of indecency with a child. During trial, a hearing was held

outside the jury’s presence for the trial court to determine the proper outcry witnesses for

Z.B.’s accusations. The trial court ruled that Mrs. Nash was the proper outcry witness for

the five counts of aggravated sexual assault and that Domingue was the proper outcry

witness for the breast-touching incident.


       In the jury’s presence, during Domingue’s testimony, in addition to testifying that

Appellant rubbed and pulled Z.B.’s breasts, she also testified that Appellant “was using

his fingers on [Z.B.’s] lower part.” Defense counsel objected that Domingue’s testimony

on digital penetration was inadmissible hearsay as she was not the proper outcry witness

for the sexual assault allegations. Initially, the trial court sustained the objection but then

immediately announced, “I’m sorry. I’m overruling. I remember now.”


       After the case was presented, the jury acquitted Appellant of indecency with a child

but convicted him of five counts of aggravated sexual assault. By his sole issue on

appeal, he maintains the trial court abused its discretion in allowing Domingue, who was

designated as the outcry witness only for the breast-touching incident, to testify regarding

digital penetration of Z.B., an act first described to Mrs. Nash, who was the designated

                                              5
outcry witness on all charges of digital penetration. Appellant argues the trial court’s error

caused him harm.


       In its brief, the State tacitly concedes that under article 38.072 of the Texas Code

of Criminal Procedure, the trial court may have erred in admitting that testimony.

However, the State contends the improper admission of that testimony was harmless.

We agree with the State.


       APPLICABLE LAW

       Hearsay is inadmissible at trial except as provided by statute or by the Texas Rules

of Evidence. Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). When a

defendant is charged with sexual offenses committed against a child under age fourteen,

article 38.072 allows into evidence the complainant’s out-of-court statement if that

statement is a description of the offense and is offered into evidence by the first person

eighteen years of age or older that the complainant told of the offense. TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(a)(3) (West Supp. 2018). The victim’s out-of-court statement

is referred to as an “outcry” and the person the victim made the statement to is known as

an “outcry witness.” Sanchez, 354 S.W.3d at 484.


       Hearsay testimony from more than one outcry witness may be admissible under

article 38.072 only if the witnesses testify about different events. Lopez v. State, 343

S.W.3d 137, 140 (Tex. Crim. App. 2011). There may be only one outcry witness per

event. Id.


       In the underlying case, the trial court abused its discretion in allowing Domingue

to testify that Appellant had digitally penetrated the complainant simultaneously on the

                                              6
occasion when he touched Z.B.’s breasts. Given that Appellant has preserved this error

by objecting at trial, such error is reversible if this court determines that Appellant was

harmed.


       HARMLESS ERROR ANALYSIS

       The erroneous admission of hearsay testimony under article 38.072 is non-

constitutional error. See Wheeler v. State, 79 S.W.3d 78, 84 (Tex. App.—Beaumont

2002, no pet.). See also TEX. R. APP. P. 44.2(b) (directing that an error that does not

affect substantial rights must be disregarded).     A defendant’s substantial rights are

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). Such an

error is harmless if this court is reasonably assured that the error did not influence the

verdict or had but a slight effect. Id. Where the same or similar evidence is admitted

without objection at another point in the trial, the error is harmless. See Lane v. State,

151 S.W.3d 188, 192-93 (Tex. Crim. App. 2004); Mayes v. State, 816 S.W.2d 79, 88 (Tex.

Crim. App. 1991). See also Rancher v. State, Nos. 09-13-00355-CR, 09-13-00356-CR,

2015 Tex. App. LEXIS 739, at *14-15 (Tex. App.—Beaumont Jan. 28, 2015, pet. ref’d)

(mem. op.) (holding that admission of testimony was harmless as cumulative of other

evidence admitted without objection).


       ANALYSIS

       Appellant’s counsel vehemently objected to Domingue’s testimony regarding

digital penetration as being inadmissible hearsay.        However, testimony of digital

penetration was offered without objection in several instances. First, Mrs. Nash, who had

been designated as the proper outcry witness for the instances of digital penetration,

                                             7
testified to Appellant’s conduct as reported by Z.B. Z.B. also testified that Appellant had

penetrated her vagina with his fingers on several occasions.           Finally, during the

investigating detective’s cross-examination, State’s Exhibit Number 6 was admitted

without objection. That exhibit is Mrs. Nash’s voluntary statement in which she recited

that Z.B. told her Appellant “had fingered her vagina and made her put her mouth on his

penis.”   Z.B.’s out-of-court statements, which were admitted into evidence without

objection, were cumulative of Domingue’s objected-to-testimony.            Therefore, we

disregard the erroneous admission of Domingue’s testimony as harmless. Appellant’s

sole issue is overruled.


       CONCLUSION

       The trial court’s judgments are affirmed.



                                                   Patrick A. Pirtle
                                                       Justice

Do not publish.




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