AFFIRMED as MODIFIED and Opinion Filed March 27, 2020




                                    S   In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-19-00076-CR

                         RONNIE BUSH, Appellant
                                   V.
                       THE STATE OF TEXAS, Appellee

               On Appeal from the 265th Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. F-1875228-R

                         MEMORANDUM OPINION
                Before Justices Partida-Kipness, Nowell, and Evans
                             Opinion by Justice Evans

      Ronnie Bush appeals from the trial court’s judgment convicting him of

indecency with a child. In four issues, appellant contends that the trial court abused

its discretion by overruling his objections to the State’s expert witness testimony. In

two additional issues, appellant argues that the judgment should be reformed to

reflect the correct offense name and applicable statute. We agree, and the State does

not dispute, that the judgment should be reformed. We affirm the judgment as

modified.
                                  BACKGROUND
      The grand jury indicted appellant for continuous sexual abuse of a child under

fourteen years of age. During the trial, the State called Karen Esposito, a therapist

at Dallas Children’s Advocacy Center with ten years’ experience, to testify. The

trial court designated Esposito as an expert in child abuse without objection.

Esposito testified that she had no actual involvement with the parties at issue in this

case. During Esposito’s testimony, the following exchange took place:

      [State’s attorney]: How are you, why did I call you today?

      [Esposito]: I think usually to discuss the dynamics of child abuse and
      what contributes to that and how children react.

      [State’s attorney]: Start at the beginning. Who can be a perpetrator – ?

      [Defense attorney]: Your Honor, I agree she’s an expert in this
      particular field. I don’t feel as if she can offer anything relevant to this
      case being that she would only be testifying kind of more generally
      instead of specifically.

      I think there’s a high propensity for any testimony that she can offer to
      be more prejudicial than probative. And in that case confuse the jury
      because she’s not had the occasion to being the therapist seeing the
      children.

      If the state wants to produce someone who actually saw the children
      that would be different.

      [Court]: I’ll overrule the objection.

      [State’s attorney]: So who are the perpetrators of child abuse?

      [Esposito]: They tend to be someone the child knows and trusts, so 9
      out of 10 cases that’s the case. They can be men, women, young, old.

      You cannot tell by looking at them obviously whether they’re a
      perpetrator, which is how they’re able to do what they do.

                                         –2–
Esposito went on to testify that most children do not immediately report the abuse,

often because they worry they will not be believed, the subject matter is

embarrassing, or they do not want to get themselves or the abuser into trouble. The

following exchange then took place:

      [State’s attorney]: Would it make a difference if a child did tell once
      and wasn’t believed?

      [Esposito]: If a child told and wasn’t believed I imagine they would
      hold that secret in and not tell again.

      [State’s attorney]: If a sibling or close family member saw that the
      original child wasn’t believed would that child be affected as well?

      [Defense attorney]: Your Honor, I object. It seems as if now all we’re
      doing is speculating what could happen and once again I believe this is
      more prejudicial than probative.

      I would ask if the Court plans to overrule that I do have a running
      objection for the entire line of questioning.

      [Court]: All right. I’ll overrule the objection. I’ll give you a running
      bill, counsel. Go ahead.

                                        ***

      [State’s attorney]: How might one child seeing another not being
      believed affect the second child?

      [Esposito]: Are you saying the second child believed the abuse
      happened? Is the child aware that it happened? It varies.

      [State’s attorney]: Tell me how it varies first.

      [Esposito]: Sometimes when the abuse happens most often it’s done in
      secret. The perpetrator does that. They want to do what they want to
      do. Other people in the house don’t know what is going on. Therefore
      if there was another child in the home and the sibling outcried there’s
      gonna be a lot of confusion and questions.


                                         –3–
      [State’s attorney]: If the child didn’t see the abuse but did see the other
      abused child outcry that weren’t believed [sic] how might it affect the
      one who saw these things?

      [Esposito]: Are you saying a case where the sibling witnessed the
      abuse?

      [State’s attorney]: Didn’t witness but witnessed the outcry and not
      being believed.

      [Esposito]: Child’s gonna have a lot of questions. Be confused.

      The jury returned a guilty verdict for the lesser included charge of indecency

with a child by contact.     The trial court sentenced appellant to eight years’

imprisonment in the Texas Department of Criminal Justice.

                                    ANALYSIS

      A.     Expert Witness Testimony

      In four issues, appellant contends the trial court abused its discretion in

overruling objections to the State’s expert witness. In issues one and two, appellant

contends the trial court erred in allowing Esposito’s testimony about who can be a

perpetrator because the testimony was (1) irrelevant and (2) more prejudicial than

probative. In issues three and four, appellant contends the trial court erred in

admitting Esposito’s testimony about the effect of a child’s outcry after observing

that a sibling’s prior outcry was not believed because the testimony was (1)

speculative and/or (2) more prejudicial than probative.




                                         –4–
             i)     Standard of Review

      The admission of expert testimony is reviewed on appeal for an abuse of

discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). Absent a

clear abuse of that discretion, the trial court’s decision to admit or exclude testimony

will not be disturbed. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006).

             ii)    Perpetrator testimony

      In his first two issues, appellant argues that Esposito’s testimony regarding

who can be a perpetrator was irrelevant and more prejudicial than probative. Even

assuming, without deciding, that the testimony was inadmissible and was

erroneously admitted, such a breach of the evidentiary rules does not raise

constitutional concerns and must be disregarded unless the erroneously admitted

testimony affected appellant’s substantial rights. See TEX. R. APP. P. 44.2; Sandoval

v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no pet.) (Erroneous

admission of evidence is non-constitutional error and non-constitutional error

requires reversal only if it affects the substantial rights of the accused). A substantial

right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. Brown v. State, 580 S.W.3d 755, 765 (Tex. App.—

Houston [14th Dist.] 2019, pet ref’d). If the improperly admitted evidence did not

influence the jury or had but a slight effect on its deliberations, such error is

harmless. Id.



                                          –5–
      In determining the likelihood that the jury’s decision was improperly

influenced, we may consider, among other things: (1) the strength of the evidence

of the defendant’s guilt; (2) whether the jury heard the same or substantially similar

admissible evidence through another source; (3) the strength or weakness of an

expert’s conclusions, including whether the expert’s opinion was effectively refuted;

and (4) whether the State directed the jury’s attention to the expert’s

testimony during arguments. Id. at 765–66. Applying the different factors to the

evidence in this case, we conclude that the admission of Esposito’s testimony was

harmless.

      Regarding the first factor, we observe that both the complainant and her sister

testified in detail how appellant sexually abused each of them. Complainant’s sister

testified that she was afraid to say anything about the abuse because appellant was

abusive toward her mother.       Complainant’s sister also saw appellant sexually

assaulting her sister. The girls’ mother testified that both sisters told her about the

abuse and when she confronted appellant, he kept saying “I’m sorry, sorry, we can

work this out.” Bernadette Yupit-Martinez, the forensic interviewer at the Dallas

Children’s Advocacy Center, testified that she interviewed complainant and she was

able to provide sensory details. Kim Skidmore, the director of forensic services at

the Dallas Children’s Advocacy Center, also interviewed complainant and testified

that complainant provided sensory and peripheral details as well as a consistent



                                         –6–
outcry of abuse.     Accordingly, there was sufficient evidence for appellant’s

conviction.

      With regard to the second issue, there was no additional testimony about who

potential perpetrators could be in this case so the jury did not hear the same or

substantially similar admissible evidence through another source. Accordingly, this

factor weights in favor of appellant.

      In the third factor, we look to the strength or weakness of an expert’s

conclusions. Id. at 765. Here, Esposito testified that perpetrators “tend to be

someone the child knows and trusts, so 9 out of 10 cases that’s the case. They can

be men, women, young, old. You cannot tell by looking at them obviously whether

they’re a perpetrator, which is how they’re able to do what they do.” In arguing

about the relevance of such testimony, appellant notes that “this general testimony

made it no more or less likely that Appellant, as opposed to anyone else, was the

perpetrator in this case.” Appellant also argues that Esposito’s testimony “did not

describe any characteristics of who a perpetrator can be that link Appellant to being

a perpetrator of child abuse.” Thus, appellant’s own statements tend to support the

conclusion that Esposito’s generalized statements do not support a finding of harm.

      The last factor—whether the State directed the jury’s attention to

the expert’s testimony during arguments—also weighs in the State’s favor since the

State did not reference Esposito’s testimony in its closing argument. In fact,



                                        –7–
Esposito’s testimony came at the end of the trial and the State did not reference it

again.

         Examining the relevant factors, we conclude that, in the context of the entire

record, the trial court’s admission of Esposito’s testimony regarding who can be a

perpetrator did not have a substantial and injurious effect or influence in determining

the jury’s verdict. Id. at 765. Accordingly, we overrule appellant’s first and second

issues.

               iii)   Outcry testimony

         In his third and fourth issues, appellant asserts that Esposito’s testimony

regarding a child’s outcry was speculative and more prejudicial than probative.

Once again, assuming, without deciding, that the testimony was inadmissible and

was erroneously admitted, appellant cannot demonstrate harm.

         During the trial, there was testimony that complainant’s sister made an outcry

of abuse about appellant but was not believed. The complainant testified that she

was confused about what had happened with her sister and appellant and did not

know if her sister was lying or telling the truth. Complainant also testified that after

appellant began abusing her, she then suspected that her sister had been telling the

truth. When asked why she did not tell her mother about the abuse, complainant

testified that “[a]fter the situation with my sister I was just you know afraid to tell

her.” Later in the trial, Esposito was asked what effect it would have on a sibling if

a child was not believed after making an outcry of abuse.             After overruling
                                          –8–
appellant’s objections, Esposito testified that the child would “be confused” and

“have a lot of questions” after witnessing her sibling make an outcry and not being

believed.

      As set forth above, we again apply the four factors to determine whether

appellant suffered harm. Sandoval, 409 S.W.3d at 293–94. For the reasons stated

above, the first factor weighs in favor of the State because there was sufficient

evidence for appellant’s conviction. With regard to the second issue, the jury did

not hear the same or substantially similar admissible evidence through another

source. The third factor we look to is the strength or weakness of an expert’s

conclusions. Brown, 580 S.W.3d at 765. Here, Esposito’s conclusions were general

and not particularly powerful. As summarized above, Esposito simply concluded

that a child would “be confused” and “have a lot of questions” after witnessing her

sibling make an outcry and not being believed. It is unclear how this general

conclusion could have caused appellant any harm. Finally, the last factor—whether

the State directed the jury’s attention to the expert’s testimony during arguments—

again weighs in the State’s favor since the State did not reference Esposito’s

testimony again or in its closing argument. After a review of the relevant factors,

we conclude that, in the context of the entire record, the trial court’s admission of

Esposito’s testimony regarding the effect of a sibling’s prior outcry did not have a

substantial and injurious effect or influence in determining the jury’s verdict. Id.

Accordingly, we overrule appellant’s third and fourth issues.
                                        –9–
      B.      Reformation of Judgment

      In issues five and six, appellant requests that this Court reform the judgment

because it incorrectly states the offense name and statute. The judgment reflects a

conviction for continuous sexual abuse of a child but the jury returned a guilty

verdict for the lesser-included offense of indecency with a child by contact. In

addition, the judgment reflects the statutory provision for the offense as section

21.02 of the penal code but the correct statute is section 21.11 of the penal code. In

cases such as these, where the necessary data and information is available, we have

the authority to modify the incorrect judgment. See TEX. R. APP. P. 43.2(b); Estrada

v. State, 334 S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet.) (“This Court has the

power to modify an incorrect judgment to make the record speak the truth when we

have the necessary information to do so.”); Bigley v. State, 865 S.W.2d 26, 27–28

(Tex. Crim. App. 1993). Accordingly, we sustain appellant’s fifth and sixth issues

and modify the judgment to reflect that appellant was convicted of indecency with a

child by contact and that the statute for the offense is section 21.11 of the Texas

Penal Code.




                                        –10–
                                 CONCLUSION

      Based on the foregoing, we reform the trial court’s judgment to reflect that

appellant was convicted of indecency with a child by contact and that the statute for

the offense is section 21.11 of the Texas Penal Code. As modified, we affirm the

trial court’s judgment.




                                           /David Evans/
                                           DAVID EVANS
                                           JUSTICE


Do Not Publish
TEX. R. APP. P. 47
190076F.U05




                                       –11–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

RONNIE BUSH, Appellant                        On Appeal from the 265th Judicial
                                              District Court, Dallas County, Texas
No. 05-19-00076-CR           V.               Trial Court Cause No. F18-75228-R.
                                              Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                  Justices Partida-Kipness and Nowell
                                              participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED to reflect that appellant Ronnie Bush was convicted of indecency with
a child by contact and that the statute for the offense is section 21.11 of the Texas
Penal Code.

      As REFORMED, the judgment is AFFIRMED

Judgment entered March 27, 2020.




                                       –12–
