                                  In the
                             Court of Appeals
                     Second Appellate District of Texas
                              at Fort Worth
                             ___________________________

                                  No. 02-18-00192-CR
                             ___________________________

                             RONALD STARKEY, Appellant

                                               V.

                                  THE STATE OF TEXAS


                         On Appeal from the 271st District Court
                                  Jack County, Texas
                                 Trial Court No. 4743


                        Before Kerr and Bassel, JJ.; and Wallach, J.1
                          Memorandum Opinion by Justice Kerr

       1
         The Honorable Mike Wallach, Judge of the 348th District Court of Tarrant County, sitting
by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the
Government Code. See Tex. Gov’t Code Ann. § 74.003(h).
                           MEMORANDUM OPINION

      A jury found Ronald Starkey guilty of aggravated sexual assault of a child, a

first-degree felony, and assessed his punishment at 50 years’ imprisonment and a

$10,000 fine. Tex. Penal Code Ann. § 22.021(a)(1)(B)(v), (a)(2)(B), (e). After the trial

court sentenced Starkey, he appealed, and in his brief, he asserts eight issues that fall

into four groups:

          • His first four issues attack an allegedly defective indictment and various
            ramifications that followed as a result;

          • His fifth issue attacks Starkey’s recorded interviews that the trial court
            admitted over Starkey’s objections;

          • His sixth and seventh issues assert that the trial court erroneously
            admitted outcry-witness testimony; and

          • His eighth issue argues cumulative error.

We hold that Starkey has shown error in his sixth and seventh issues but that the

errors were harmless, and in his remaining issues, we hold that Starkey has not shown

error; thus, we affirm.

                                     Background

      In 2004 when Abby 2 was four years old, she made an outcry to her babysitter in

which she identified Starkey, her adoptive father, as the perpetrator. The babysitter

then informed Abby’s mother (Mother), who discussed the matter with Starkey but


      2
        We use a fictitious name to refer to the complainant. See Tex. R. App. P. 9.8 &
cmt., 9.10.


                                           2
not with Abby. Mother then informed the babysitter that Starkey thought that the

babysitter was trying to break up the family, and within about a week after Abby’s

outcry, Starkey, Mother, Abby, and Abby’s younger sister all moved to Oklahoma.

Over the next four years, the family moved around 15 times before eventually settling

in California in 2009.

      Years later, in 2012, Mother and Starkey filed for divorce. But the proceedings

dragged on until September 2014, when the trial court finally signed a divorce decree.

      Shortly after the divorce, in early 2015 Abby began receiving counseling in San

Diego for anxiety, depression, and suicidal ideation. While in counseling, Abby made

an outcry to Mother that Mother recognized as the same outcry that the babysitter

had related to Mother back in 2004. Mother told Abby’s charge nurse, and later both

Child Protective Services and the San Diego County Sheriff’s Office contacted

Mother.

      By 2016, an Oklahoma special agent and a Texas investigator had interviewed

Starkey in Oklahoma. During those interviews, Starkey acknowledged that something

inappropriate occurred with Abby in 2004 in Texas but maintained that it was

accidental. Starkey asserted that he was masturbating in the master bathroom when

Abby came in unexpectedly, which startled him, and as he turned towards her, he

ejaculated over Abby’s face and hair. When pressed to answer whether his penis’s tip

had entered Abby’s mouth, Starkey indicated that he did not remember, later

conceded that it was possible, then appeared to agree that contact had occurred, and

                                          3
ultimately did not balk when the investigator twice summarized his statement as

including his penis penetrating Abby’s mouth.

       During trial, the testimony varied greatly regarding Abby’s 2004 outcry to her

babysitter. The babysitter testified that Abby simply stated that Starkey was touching

her in ways that made her feel uncomfortable and denied recalling that Abby had ever

said that Starkey had made Abby lick whipped cream off his genitals. In contrast,

Mother testified that the babysitter had told her that Abby’s outcry described oral sex

involving whipped cream. Finally, when Abby herself was asked what she had told the

babysitter, she responded, “I told her that he told me that it tastes like whipped

cream.” Abby did not know whether the babysitter ever told Mother.

       At trial, Abby testified that she performed oral sex on Starkey with Starkey’s

assurances that “the white stuff . . . from his penis” would taste like whipped cream.

But it had not; it had tasted sour instead.

   I. The indictment alleged aggravated sexual assault of a child, a first-degree
       felony, and Starkey waived any complaint to the contrary.

       Starkey’s first four issues focus on an allegedly defective indictment. He

contends that although the grand jury indicted him for sexual assault of a child (a

second-degree felony offense with a maximum punishment of 20 years’ imprisonment

and a fine not to exceed $10,000) and not aggravated sexual assault of a child (a first-

degree felony offense with a maximum punishment of 99 years’ or life imprisonment

and a $10,000 fine), the petit jury convicted him of the first-degree offense, aggravated



                                              4
sexual assault of a child. Tex. Penal Code Ann. §§ 12.33 (“Second Degree Felony

Punishment”), 12.32 (“First Degree Felony Punishment”), 22.011(a)(2)(E), (f)

(“Sexual Assault”), 22.021(a)(1)(B)(v), (a)(2)(B), (e) (“Aggravated Sexual Assault”).

The same error meant that the jury punished him within the expanded range of the

first-degree offense and beyond the range of the second-degree offense:

      [1] Did the trial court deprive [Starkey] of due process by submitting an
      unindicted offense of [a]ggravated [s]exual [a]ssault to the jury?

      [2] Was the indictment sufficient to support [Starkey’s] conviction of
      first-degree felony aggravated sexual assault?

      [3] Was the indictment sufficient to support the jury charge for [first-
      degree] felony aggravated sexual assault?

      [4] Did [Starkey] receive an illegal sentence when he was charged in the
      indictment with [second-degree] felony sexual assault, but sentenced for
      first-degree felony aggravated sexual assault of a child?

Determining what the indictment alleged resolves all four issues.

      As shown below, the “indictment” had two parts:

          • a caption (above the charging instrument’s horizontal divider), and

          • the formal, statutory allegations as required by article 21.02 of the code
            of criminal procedure (below the horizontal divider). See Tex. Code
            Crim. Proc. Ann. art. 21.02.

      The charging instrument provides:

      No. 4743 Court: 271st Judicial District                       Bond $100,000

      The State of Texas vs. RONALD STARKEY

      Charge: SEXUAL ASSAULT CHILD

      Second Degree Felony 22.011(a)(2) PC


                                          5
      Person ID 355992

      ________________________________________________________

      IN THE NAME AND BY AUTHORITY OF THE STATE OF
      TEXAS:

             THE GRAND JURY, for the County of Jack, State of Texas, duly
      selected, impaneled, sworn, charged, and organized as such at the
      January Term A.D. 2016 of the 271st Judicial District Court for said
      County, upon their oaths present in and to said Court at said term that
      RONALD STARKEY, hereinafter styled Defendant, on or about the
      1st day of May, 2004, and before the presentment of this indictment, in
      the County and State aforesaid, did

             then and there knowingly cause the mouth of [Abby], a
             child who was then and there younger than 14 years of age
             and not the spouse of the defendant, to contact the sexual
             organ of the defendant.

             Against the peace and dignity of the State.

                                                /S/ [Foreperson]

                                                Foreperson of the Grand Jury

The caption identifies the offense as a second-degree felony under § 22.011(a)(2)(E),

which applies to a child “younger than 17 years of age.” See Tex. Penal Code Ann.

§ 22.011(a)(2)(E), (c)(1), (f). But by including “a child who was then and there younger

than 14 years of age,” the formal, statutory allegations allege a first-degree felony. See

Tex. Penal Code Ann. § 22.021(a)(1)(B)(v), (a)(2)(B), (e).

      To determine whether Starkey committed the second-degree felony, he

contends that the allegation “a child who was then and there younger than 14 years of

age” is surplusage and should thus be ignored. We are unpersuaded.



                                            6
      The charging instrument’s formal, statutorily required portion—starting with

“In the name and by authority of the State of Texas” and concluding with “Against

the peace and dignity of the State,” along with the foreperson’s signature—shows that

the grand jury indicted Starkey for the first-degree offense of aggravated sexual assault

of a child. See Tex. Code Crim. Proc. Ann. art. 21.02. It follows that the caption

misidentified the offense as a second-degree sexual assault of a child.

      Starkey insists that we must consider the charging instrument as a whole, which

includes the caption. See Jenkins v. State, No. PD-0086-18, 2018 WL 6332219, at *4–

5 (Tex. Crim. App. Dec. 5, 2018). But to get there, Starkey must argue that the

indictment is fundamentally defective (which was what the appellant in Jenkins

argued 3), and here Starkey argues that the indictment is fundamentally defective for

lack of notice because it does not allege or identify aggravated sexual assault of a child

in the caption. True enough, the caption does not—but the formal, statutorily

required portion of the charging instrument unequivocally sets out the elements of

aggravated sexual assault of a child. Thus, lack of notice is not the problem. That

leaves us with an indictment that potentially alleges two identifiable offenses.




      3
        See Jenkins, 2018 WL 6332219, at *1 (“Appellant argued to the trial court that,
since the indictment filed by the State and read to the jury at the beginning of his trial
did not name him personally, it did not charge ‘a person,’ and thus it was fatally
defective . . . .”).


                                            7
      Assuming, without deciding, that Jenkins applies as Starkey asserts, 4 the dispute

becomes which of the two identifiable offenses within the indictment controls.

Starkey asserts that the caption controls over the portion that the grand jury

foreperson formally approved.

      Initially, we note that Starkey’s position on appeal is at odds with his position at

trial, where he did not dispute that the indictment alleged aggravated sexual assault of

a child, the first-degree felony. For example, as the trial court was making its opening

remarks during voir dire, the following occurred:

      [THE COURT:] Mr. Starkey is . . . charged with sexual assault of a child.
      It says on the indictment that that’s a second-degree felony, and—

      [PROSECUTOR]: Your Honor (gesturing), may we approach?

      THE COURT: Yes.


      4
        See Jenkins, 2018 WL 6332219, at *5 (stating that the rule set out in Stansbury v.
State that the caption is not part of the indictment proper does not control when
determining whether a charging instrument meets the constitutional definition of an
indictment (citing 82 S.W.2d 962, 964 (Tex. Crim. App. 1935)); see also State v. Beatty,
No. 09-17-00170-CR, 2018 WL 1097721, at *2, *3 (Tex. App.—Beaumont Feb. 28,
2018, no pet.) (mem. op., not designated for publication) (“In the present case, Beatty
argues that because the indictment cites one particular statutory subsection but the
body of the indictment tracks the language of another subsection within the same
statute, he cannot be adequately apprised of which law applies to his case . . . . We
find this argument unpersuasive.”) (“[T]he [incorrect statutory] citation [about] which
Beatty complains . . . is actually found in the caption. Texas courts have long held that
a caption constitutes no part of an indictment. . . . Any error contained in the caption
will be considered harmless surplusage absent a showing of prejudice.” (citing
Stansbury, 82 S.W.2d at 964; Thibadeaux v. State, 628 S.W.2d 485, 487 (Tex. App.—
Texarkana 1982, no pet.))). Because we hold that Starkey waived his complaint, we
need not decide whether Jenkins modified Stansbury in this context.


                                            8
      (At the Bench)

      [PROSECUTOR]: It’s wrong. It should be first-degree felony. It’s
      aggravated. It was . . . submitted from the Sheriff’s Department and
      didn’t get changed on the—I apologize.

      THE COURT: All right. It’s okay.

      [(To the venire)] Actually, I incorrectly stated on the indictment. It’s a
      first-degree felony, and the . . . attorneys will discuss that with you more
      in just a few minutes.

Starkey did not object to the prosecutor’s asserting that the indictment alleged a first-

degree felony.

      As another example, during the charge conference Starkey did not object to the

charge, which encompassed aggravated sexual assault of a child and the lesser-

included offenses of indecency with a child by sexual contact and indecency with a

child by exposure. Tex. Penal Code Ann. § 21.11(a)(1), (2). Conspicuously absent was

an instruction for the lesser-included offense of sexual assault of a child, presumably

because if an offense occurred at all, it occurred to a child under 14 years of age. See

Tex. Penal Code Ann. §§ 22.011(c)(1), 22.021(a)(2)(B), (b)(1); see also State v. Meru,

414 S.W.3d 159, 161 (Tex. Crim. App. 2013) (noting that whether to give an

instruction on a lesser-included offense involves a two-step analysis: (1) are the

elements of the lesser-included offense included within the proof necessary to

establish the charged offense’s elements? (2) is there evidence in the record from

which a jury could find the defendant guilty of only the lesser-included offense?).




                                           9
       When the defendant does not attack an indictment “before the date on which

the trial on the merits commences,” the code of criminal procedure provides that the

defendant “waives and forfeits” any complaint. See Tex. Code Crim. Proc. Ann. art.

1.14(b). 5 Starkey finds himself precisely in that procedural position, so we apply article

1.14(b) here. If the indictment confused Starkey about which offense it charged, he

had to complain “before the date on which the trial on the merits commence[d].” Id.;

see Jenkins, 2018 WL 6332219, at *1 (“Since Appellant did not object to the indictment

until the second day of his trial, he waived and forfeited the right to raise the

objection on appeal.” (citing Tex. Code Crim. Proc. Ann. art. 1.14(b)); Kirkpatrick v.

State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (“Appellant had adequate notice

that she was charged with a felony. If she had confusion about whether the State did,

or intended to, charge her with a felony, she could have, and should have, objected to

the defective indictment before the date of trial.”); Teal v. State, 230 S.W.3d 172,

182 (Tex. Crim. App. 2007) (“If appellant was confused about whether the State did

       Article 1.14(b) provides:
       5



       If the defendant does not object to a defect, error, or irregularity of form
       or substance in an indictment or information before the date on which
       the trial on the merits commences, he waives and forfeits the right to
       object to the defect, error, or irregularity and he may not raise the
       objection on appeal or in any other postconviction proceeding. Nothing
       in this article prohibits a trial court from requiring that an objection to
       an indictment or information be made at an earlier time in compliance
       with Article 28.01 of this code.

Tex. Code Crim. Proc. Ann. art. 1.14(b).


                                            10
or intended to charge him with a felony, he could have and should have objected to

the defective indictment before the date of trial.”). Because Starkey did not object

before the trial started, he waived and forfeited his right to complain about any

ambiguity regarding which of two offenses the indictment alleged. See Tex. Code

Crim. Proc. Ann. art. 1.14(b).

      We overrule Starkey’s first four issues.

   II. The trial court’s instructions to the jury, which the jury presumptively
       followed, precluded it from using the special agent’s and the
       investigator’s comments during their interviews with Starkey against
       him.

      Starkey’s fifth issue focuses on the two recorded interviews conducted by

Agent Troy Morris and Investigator Robert Pawley: “[5] Did the trial court err by

admitting inadmissible hearsay and other impermissible statements made by

investigators in the recorded interview of [Starkey]?” During the interviews, Agent

Morris and Investigator Pawley talked far more than Starkey did, so Starkey argues

that their comments constituted hearsay, bolstering, confrontation-clause violations,

and infringements on the province of the jury.

          A. Background

      Agent Morris interviewed Starkey on June 22, 2016. Before the State played the

recorded interview to the jury, the trial court instructed the jury that Agent Morris’s

statements were not evidence:

      THE COURT: All right. Ladies and gentlemen, you are about to listen
      to an interview. And any statements by Troy Morris as to things

                                          11
      someone else may have said, you are instructed that you should consider
      those only for the limited purpose of what they actually are, a question
      and not as actual evidence themselves. You . . . can consider the
      statements made by the Defendant in this case in response to them for
      all purposes.

             So you may proceed.

      Investigator Pawley spoke to Starkey after Agent Morris did. Before the State

played Investigator Pawley’s recording to the jury, the trial court similarly instructed

the jury not to consider Investigator Pawley’s statements as evidence:

      THE COURT: All right. Ladies and gentlemen, . . . in the event there are
      questions that bring in alleged statements made by someone else, the
      question in and . . . of itself by, in this case, Investigator Pawley would
      not be evidence in the case; however, any response made by the
      Defendant in the context within which it is made, based upon the
      question to the Defendant, can be considered as evidence for all
      purposes to the extent the jury wishes to consider it as evidence.

             Please proceed.

      The trial court followed up these admonishments with this jury-charge

instruction: “You are instructed that the statements made by Special Agent Morris and

D.A. Investigator Pawley during the recorded interviews with the Defendant are not

admitted for their truth but only to assist you, if they do, in understanding the answers

of the Defendant.”

          B. Standard of Review

      We review a trial court’s ruling to admit or exclude evidence under an abuse-of-

discretion standard. Kirk v. State, 199 S.W.3d 467, 478 (Tex. App.—Fort Worth 2006,




                                           12
pet. ref’d). A trial court abuses its discretion if its decision falls outside the “zone of

reasonable disagreement.” Id.

          C. Discussion

      Here, before the jurors heard either interview, the trial court instructed them

that what Agent Morris and Investigator Pawley said was not evidence. And in the

charge, the trial court again instructed the jury to consider their statements only if

helpful understanding Starkey’s answers. Without evidence to the contrary, we

presume that the jury follows the trial court’s instructions. Jenkins v. State, 493 S.W.3d

583, 616 (Tex. Crim. App. 2016); see Kirk, 199 S.W.3d at 479. Starkey points to no

such evidence. See Jenkins, 493 S.W.3d at 616.

       And although Agent Morris and Investigator Pawley did most of the talking,

the videos showed the jury how Starkey nonverbally responded to the accusations and

the questions and, perhaps more importantly, how he did not deny them. This

dynamic came out during Agent Morris’s testimony:

       BY [THE PROSECUTOR]:

      Q. Now, Special Agent Morris, I think there was a question that was
      asked, and your response was you were looking for the truth, and then
      you added but. . . but he has another option. Can you . . . finish—I think
      the [d]efense attorney objected. So if you could finish your . . . thought
      on that particular matter.

      A. So whenever we . . . bring out those affirmative questions I spoke
      about earlier regarding the moral behavior, we ask, obviously, about the
      . . . actual act itself. We also introduce . . . an option to save face, such as
      in this one about the masturbation, but they can also deny that



                                            13
      happened. That’s their third option. They can . . . deny. I hope I’ve
      answered your question.

      Q. Yes, sir. So that certainly was, you know, an option for the Defendant
      to say, I don’t know what you’re talking about, I’ve never done this,
      she’s lying?

      A. Yes, that’s correct.

      Q. And that never occurred, correct?

      A. No, it never did.

      Moreover, Starkey had an opportunity to cross-examine Agent Morris and

Investigator Pawley at trial about their interviewing techniques.

      Because the trial court instructed the jury not to consider Agent Morris’s and

Investigator Pawley’s statements as evidence, and because nothing rebuts the

presumption that the jury followed the trial court’s instructions, we conclude that

there was no hearsay, no bolstering, no confrontation-clause violation, and no

invading the jury’s province. See Kirk, 199 S.W.3d at 478–79.

      We overruled Starkey’s fifth issue.

   III. The trial court erroneously allowed two witnesses to testify about
        Abby’s 2004 outcry to the babysitter, but the error was harmless.

      Starkey’s sixth and seventh issues challenge the outcry witnesses’ testimony:

          [6] Did the trial court impermissibly admit hearsay testimony from
          two outcry witnesses when Texas law only permits hearsay testimony
          from the first adult to whom a child describes an alleged offense?

          [7] Did the trial court impermissibly admit hearsay outcry testimony
          when the testimony offered did not describe the alleged offense?



                                            14
          A. Standard of Review

       Code of criminal procedure article 38.072 (“Hearsay Statement of Certain

Abuse Victims”) governs when a trial court may properly admit the outcry witness’s

hearsay testimony in sex-related offenses committed against children younger than

14 years old. See Tex. Code Crim. Proc. Ann. art. 38.072. This article provides that the

trial court may admit hearsay statements if the State complies with the statutory notice

requirements and if—in a hearing outside the jury’s presence—the trial court finds

that

       (1) the statement is reliable based on its time, content, and
           circumstances;

       (2) the complainant testifies or is available to testify at the proceeding;
           and

       (3) the statement:

          • describes the alleged offense,

          • was made by the complainant against whom the charged offense or
            other extraneous crime, wrong, or act was allegedly committed, and

          • was made to the first person, 18 years of age or older, other than
            the defendant, to whom the complainant made a statement about
            the offense or extraneous crime, wrong, or act.

Id. art. 38.072, §§ 2(a)(1)(A), 2(a)(2), 2(a)(3), 2(b)(2), 2(b)(3); Espinoza v. State,

571 S.W.3d 427, 431 (Tex. App.—Fort Worth 2019, pet. ref’d).

       We review for an abuse of discretion a trial court’s ruling designating an outcry

witness. Espinoza, 571 S.W.3d at 430. The trial court has broad discretion when

determining whether to admit such evidence, and we will uphold a trial court’s

                                             15
findings when the evidence supports them. Id. at 430–31. A trial court does not abuse

its discretion unless its decision falls outside the zone of reasonable disagreement.

Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2004, pet.

ref’d) (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Tear v.

State, 74 S.W.3d 555, 558 (Tex. App.—Dallas 2002, pet. ref’d)).

      The outcry witness is the first person, 18 years or older, to whom the child

makes a statement that in some discernible manner describes the alleged offense.

Espinoza, 571 S.W.3d at 431 (quoting Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim.

App. 1990)); see West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort Worth 2003, pet.

ref’d) (“Article 38.072 allows the first person to whom the child described the offense

in some discernible manner to testify about the statements the child made.”). And the

“discernible manner” must be more than words alluding generally that “something in

the area of child abuse was going on.” Espinoza, 571 S.W.3d at 431 (quoting Garcia,

792 S.W.2d at 91).

      An outcry witness is not person-specific but is event-specific. West, 121 S.W.3d

at 104. A trial court may admit hearsay testimony from more than one outcry witness

under article 38.072 only if the witnesses testify about different events; for any one

event, there may be only one outcry witness. Lopez v. State, 343 S.W.3d 137, 140 (Tex.

Crim. App. 2011); Hernandez v. State, No. 02-14-00262-CR, 2016 WL 4903206, at

*12 (Tex. App.—Fort Worth Sept. 15, 2016, pet. ref’d) (mem. op., not designated for

publication) (citing West, 121 S.W.3d at 104). The trial court has broad discretion to

                                          16
determine which of several witnesses is an outcry witness to a particular event, and

unless it clearly abuses its discretion, we will not disturb its decision. Chapman,

150 S.W.3d at 813 (citing Garcia, 792 S.W.2d at 92; Hayden v. State, 928 S.W.2d 229,

231 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)).

          B. Background

             1. State’s Motion.

      In the State’s motion to admit a child-abuse victim’s hearsay statement, the

State sought to admit Abby’s 2015 outcry to Mother and “[i]n the alternative or in

addition to” that outcry, Abby’s “oral statements” to the babysitter over a decade

earlier. But in the motion, the State conceded that Abby’s outcry to the babysitter did

not describe the alleged offense in a discernible way:

      COMES NOW THE STATE OF TEXAS and, pursuant to Article
      38.072 of the Texas Code of Criminal Procedure, requests this Court to
      rule that the oral statements made by [Abby] on or about March or April
      2015, to [Mother], [Abby’s] mother, admissible at the trial of this case.
      Statements made by [Abby] to [Mother] provide a description as to time,
      content, and circumstances of the alleged offense that is the subject of
      the Indictment. The written summary of said oral statement is attached
      hereto and marked as State’s Outcry of [Abby] (Exhibit 1). In the
      alternative or in addition to testimony provided by [Mother] and
      pursuant to Article 38.072 of the Texas Code of Criminal Procedure, the
      State of Texas requests this Court to rule that oral statements made by
      [Abby] on or about 2004 or 2005, to [the babysitter] shall be admissible
      at the trial of this case. [Abby’s] statement to [the babysitter] is general in
      nature as to time, content, and circumstances and does not describe the
      alleged offense or she does not recall the specific details of [Abby’s]
      statement that is the subject of the Indictment in a discernable way. A
      copy of the oral statement made to [the babysitter] is attached hereto
      and marked as State’s Outcry of [Abby] (Exhibit 2).


                                            17
             ....

          WHEREFORE, PREMISES CONSIDERED, the State prays that
      this Court set this motion for hearing, if necessary, and rule that at the
      trial of this case the State may offer proof of the statements made by
      [Abby] to [Mother] on or about March or April 2015 through the
      testimony of [Mother]. In the alternative or in addition to the testimony
      of [Mother], the State prays that this Court rule that at the trial of this
      case the State may offer proof of the statements made by [Abby] to [the
      babysitter] on or about 2004 or 2005 through the testimony of [the
      babysitter].

             2. The Article 38.072 Hearing

      At the hearing on the State’s motion, the babysitter testified just as the State

alleged she would—that is, the babysitter described Abby’s outcry as not including the

alleged offense in any discernible way. Despite that, the trial court ruled that it would

allow the babysitter’s testimony.

                 a. The Babysitter

      Initially, the babysitter asserted that the outcry was that Abby was being

touched by Starkey in a way that made Abby uncomfortable:

      [THE BABYSITTER:] Well, we were sitting in the living—in the living
      room watching TV, like little kids do. She was really into Dora at the
      time. And she just—out of the blue she says, you know, people touch
      me. I said, okay. I said, I touch you. She said, yeah, but it’s different. I
      said, okay. She said, some people touch me and make me uncomfortable.
      I said, well, who? And she said, I can’t tell you. It would make things
      rough. I said, okay. So I didn’t say anything else.

             And a little while later, not too long later, she said she needed—
      she wanted to tell me who it was. And I said, okay. And she said it was
      her daddy. And at the time, the only father she had I knew of was
      [Starkey]. So I didn’t say anything else about it. I didn’t push her to tell
      me how or anything else. And I waited for [Mother] to come home.


                                           18
      Later, when asked if she told Mother that Abby had said anything about oral

sex, the babysitter responded that she did not recall:

      A. No. What I told [Mother] was that [Abby] said she was
      uncomfortable. And when she finally told me who it . . . was that
      touched her, she said it was her daddy.

      Q. And you didn’t say to [Mother] that [Abby] made any descriptive—
      gave any description like her having to lick whipped cream off of his
      genitals?

      A. Not that I recall.

      Q. You didn’t make that statement?

      A. Not that I recall.

                 b. Mother

      In contrast, Mother remembered the babysitter’s describing Abby’s outcry

differently: “[The babysitter] had mentioned touching and licking whipped cream

from his genitalia.” Despite Mother’s asserting that Abby’s outcry—as the babysitter

allegedly described it to Mother—included oral sex, Mother denied ever speaking to

Abby about it.

      Mother explained that not until 2015 did Abby make an outcry directly to her,

but she added that Abby’s 2015 outcry included oral sex, just as Mother remembered

the babysitter’s describing Abby’s 2004 outcry:

      A. It was March or April of 2015. She was in a hospital in northern San
      Diego. I had been doing what they call Kik messaging with her friend.
      Her friend told me that I needed to speak with [Abby] and that I should
      know something. And I was asking her what, and she used the word



                                           19
      “ruined.” And I asked her what does [“]ruined[”] mean, and she said you
      need to speak with [Abby].

            So I went to visitation with [Abby] that evening. And as visitation
      was ending, I sent my smaller children out of the area so I could speak
      with [Abby] by myself. And I said, [Abby], you know your friend asked
      me about this and told me I needed to speak with you, and this is what
      “ruined” meant to me. And [Abby] started crying and said that she was
      worried I was gonna think she was crazy and that I wouldn’t believe her
      and brought up a time when she was younger. She said she thought she
      was 3 or 4, that she was forced to lick whipped cream off of Mr.
      Starkey’s genitalia.

      Q. Was that consistent with the story that you had learned from [the
      babysitter] 12 years earlier?

      A. Yes, sir.

                 c. Trial-Court Arguments

      At the end of the article 38.072 hearing, Starkey argued against letting the

babysitter testify at all, which, in the context of the State’s motion, would have left

Mother as the outcry witness for Abby’s 2015 outcry:

      [DEFENSE COUNSEL]: Well, your Honor, under 38.072, Section 2(a),
      the . . . article applies only to statements that (1)(A) describe the alleged
      offense, or, of course, there’s a—our next section wouldn’t be applicable
      at this point, the statements offered during the punishment phase of the
      proceeding, a crime, wrong, or act of an alleged offense, and that is—it
      goes on for other details.

             But [the babysitter]—despite [Mother’s] claim of what was said to
      her, [the babysitter] has a statement before the Court she wrote out, . . .
      State’s Exhibit 55, that she affirmed on direct and cross-examination,
      that what she said was she was being touched—referring to [Abby], said
      she was being touched and it made her uncomfortable.

              [The babysitter], the hearsay . . . outcry witnesses, for purposes of
      this statute, leaves it at that. That’s . . . the full scope of her statement. It


                                             20
      doesn’t describe the offense . . . in the indictment[;] it does not describe
      the manner and means of the indicted offense, which is to cause the
      mouth of [Abby] to contact the sexual organ of the Defendant. So
      because it doesn’t describe the alleged offense and that word, I would
      submit to the Court, the statutory construction would require the Court
      to pay attention to the words actually placed in the . . . Code, the alleged
      offense, it must describe the alleged offense. It describes something that
      . . . may or may not be criminal[—]to touch a child. It doesn’t describe
      that . . . causing the mouth of the child to contact the sexual organ of the
      Defendant.

            And for those reasons I would object under 38.072. And that
      would be . . . the first adult or the first person over 18 that [Abby] spoke
      to about . . . an incident that would be outside the bounds of normal
      parenting between herself, [Abby], and Mr. Starkey.

      THE COURT: Okay. Are you saying that . . . none of her testimony
      should be allowed or—

      [DEFENSE COUNSEL]: Yes. . . . I’m saying that [the babysitter’s]
      testimony should not be allowed because it doesn’t describe the offense
      as . . . the Code requires under 38.072.

      In contrast, deviating from its motion, the State then pitched making the

babysitter the outcry witness based on Abby’s 2004 outcry to her:

      THE COURT: Counsel?

      [THE PROSECUTOR]: Judge, . . . in this particular matter we have a
      very, very, very young child. I mean, she was 4 at the time of the
      disclosure. Clearly, in her best ability—and, of course, the jury can put
      what weight that . . . they want, but it is the first person . . . over 18 years
      of age that had any information of something occurring of a sexual
      nature. So we think she’s the appropriate person to disclose the events
      that occurred. And, you know, unfortunately, . . . she was a very young
      child and we’re just . . . stuck with the fact that she was . . . 4 at the time
      of the . . . disclosure, so we would ask that . . . her particular statements
      to [the babysitter] be admissible.




                                            21
      THE COURT: All right. I’m going to—as far as the testimony given
      here today, I’m going to overrule the objection, and she . . . will be
      permitted to testify to what . . . she’s testified to here today.

      [THE PROSECUTOR]: And with clarification, . . . [the babysitter] will
      be able to testify?

      THE COURT: Yes.

As the later trial testimony shows, this ruling effectively made the babysitter the

outcry witness under article 38.072.

             3. At Trial

      During trial, the trial court allowed testimony about Abby’s 2004 outcry to the

babysitter but not about Abby’s 2015 outcry to Mother. Mother was, however,

allowed to testify about what the babysitter had purportedly told Mother about

Abby’s outcry to the babysitter.

                 a. Investigator Pawley

      Without disclosing the contents of the 2004 outcry, Investigator Pawley

testified that Abby had made an outcry to the babysitter in “2003, 2004.”

                 b. The Babysitter

      When the babysitter took the stand, Starkey renewed his objection from the

article 38.072 hearing, which the trial court overruled, and then requested and

received a running objection to the babysitter’s testifying. The babysitter proceeded to

describe Abby’s outcry to the jury in the same manner that she had described it to the

judge at the hearing:



                                          22
       A. One day we were watching TV, and [Abby] said that people touched
       her. I said, okay. I touch you. She said, yeah, but it’s different. I said,
       okay. And she said that sometimes the way people touched her made her
       uncomfortable, and I asked her who. She said, well, I can’t tell you
       because it would make things (inaudible)—

       THE REPORTER: I can’t tell you what?

       THE WITNESS: I can’t tell you because it would makes things rough.

       A. So I let it go. And a little while later she just kind of stopped, and she
       looked at me and she said, I’m going to tell you who it is. And I said,
       okay. I said, who? She said, my daddy. I didn’t push it any further. I
       waited for [Mother] to come home, and I told her.

       Q. Now, did you have a conversation with [Mother] when she returned
       home?

       A. Yes, I did.

       Q. And what did you tell her?

       A. I told her that [Abby] had told me that her daddy had been touching
       her. And as far as I knew, [Starkey] was . . . the only person she knew as
       her dad.

       And as with the pretrial hearing, the subject turned to the babysitter’s

conversation with Mother about Abby’s outcry, and the babysitter again denied

recalling any oral-sex outcry:

       Q. And what you told [Mother] was that [Abby] had said she was being
       touched and it was by her daddy?

       A. Yes.

       Q. So you didn’t say anything to [Mother], and you told us just a couple
       of days ago that [Starkey] had made [Abby] get whipped cream off his
       genitals with her mouth?




                                            23
       A. No, sir, that was not my testimony. What I told you was that that was
       an item I could not recall.

       Q. And . . . it’s not in your statement?

       A. No, it is not.

       Q. So in 2016, if that was in your knowledge, you would have reported
       that, right?

       A. If I had recalled it, yes.

       Q. Okay. What do you mean by if you had recalled it?

       A. As I said, it’s not something I recall, and it is not a vision that I would
       want stuck in my head.

       ....

       Q. (BY DEFENSE COUNSEL) Nowhere in Defendant’s Exhibit No. 1
       do you state anything about Mr. Starkey making [Abby] lick whipped
       cream off of his genitals?

       A. No, sir, none of it.

       Q. You said that would stick out in your mind, right?

       A. If that were to have been said and they left [Texas], I’m afraid that
       that would be a memory that I would not want to remember, because at
       that point there was nothing I could do about it.

          c. Mother

       Mother was the State’s next witness, and the prosecutor broached the subject

of what the babysitter had told her. Mother asserted—over Starkey’s objection—that

the babysitter had said that Abby’s outcry included licking whipped cream off

Starkey’s genitals:

       Q. What did she [the babysitter] tell you?


                                            24
       A. She told me that—

       [DEFENSE COUNSEL]: I don’t mean to interrupt, your Honor. Just
       renew my same objection, 38.072.

       THE COURT: I understand your objection. Overruled.

       [DEFENSE COUNSEL]: For this witness may I have a running
       objection on [38.072]?

       THE COURT: You may.

       [DEFENSE COUNSEL]: Thank you, your Honor.

       Q. (BY [THE PROSECUTOR]) What is your recollection of what [the
       babysitter] told you?

       A. She had told me that during her time of watching [Abby] that day that
       [Abby] had mentioned that Mr. Starkey had touched her inappropriately
       and had her lick whipped cream off his genitalia.

       But when the State attempted to get in Abby’s 2015 outcry to Mother, the trial

court kept it out:

       Q. Based on that, . . . did you seek treatment for her?

       A. Yes, sir.

       Q. And ultimately did she go to Chandler, New Mexico?

       A. Chandler, Arizona—

       Q. Excuse me. I’m sorry.

       A. —yes, sir.

       Q. Chandler, Arizona.




                                           25
            Now, prior to that time,6 did you have a conversation with your
      daughter [Abby] . . . about an incident that had occurred between the
      Defendant and her?

      A. Yes, sir.

      Q. All right. And what did she tell you?

      A. She told me --

      [DEFENSE COUNSEL]: Excuse me. Object to hearsay, your Honor,
      and violation of confrontation clause.

      THE COURT: At this time I’m going to sustain the objection.

      Q. (BY [THE PROSECUTOR]) Let me ask it this way: I’m not asking
      for the specific details, based on the Court’s ruling. I’m just asking in
      general, did she give you some information that caused you much
      concern?

      A. I was scared because it was information that I had been told years
      before.

      Q. The same information?

      A. Yes, sir.

          d. Abby

      Less than a month shy of her eighteenth birthday when testifying, Abby

articulated the offense as: “I performed oral sex on him,” and she then provided

details. Abby did not recall having whipped cream that night, but she asserted that




      6
       Abby’s outcry to Mother occurred in San Diego. Abby “ultimately” went to
Chandler, Arizona, for treatment, and it was there that her forensic interview
occurred.


                                         26
Starkey had told her that “the white stuff . . . from his penis” would taste like whipped

cream. She stated that it instead tasted sour.

      Regarding what she had told the babysitter, Abby said, “I told [the babysitter]

that he told me that it tastes like whipped cream.” On cross-examination, Abby

repeated that all she had told the babysitter was that Starkey had said that “it” tasted

like whipped cream:

      Q. . . .

            The . . . first time—well, of course, you testified that you
      remember [the babysitter]—did you call [the babysitter by her first
      name]?

      A. Yes, sir.

      Q. Do you remember that conversation? Do you actually remember it?

      A. Briefly.

      Q. Can you explain that, please?

      A. I remember I told her that he said it would taste like whipped cream.

      Q. Is that all you said to her?

      A. Yes, sir.

          C. Discussion

                 1. Error

      The babysitter’s testimony was that, to her recollection, Abby had complained

only about Starkey’s touching her in some way that made her feel uncomfortable, but

that testimony did not describe the alleged offense or even necessarily an offense at


                                            27
all; at best it was “a general allusion that something in the area of child abuse was

going on,” which appears to have been the babysitter’s understanding, because she

spoke to Mother about it. See Espinoza, 571 S.W.3d at 431. But this outcry did not

describe the alleged offense in a discernible way, so article 38.072 did not authorize

the babysitter’s hearsay testimony. See Tex. Code Crim. Proc. Ann. art. 38.072,

§ 2(a)(1)(A); Espinoza, 571 S.W.3d at 431.

       And Mother’s testimony—that the babysitter had asserted that Abby had made

an outcry to the babysitter that Abby had performed oral sex on Starkey—would have

made the babysitter the outcry witness. See Espinoza, 571 S.W.3d at 431. Mother was

not the outcry witness in 2004 because Abby never made an outcry to her at that time.

See id. Conversely, if the trial court disbelieved Mother’s testimony regarding the scope

of Abby’s 2004 outcry (that is, if the trial court disbelieved Mother’s assertion that

Abby made an oral-sex outcry to the babysitter in 2004), then Abby’s oral-sex outcry

to Mother in 2015 would have made Mother the first adult over 18 to whom Abby

made such an outcry. Either way, article 38.072 did not authorize Mother’s hearsay

testimony regarding the 2004 outcry. See Tex. Code Crim. Proc. Ann. art. 38.072,

§ 2(a)(3).

       Ultimately, Mother’s testimony regarding the 2004 outcry was hearsay within

hearsay. See McDowell v. State, No. 02-17-00410-CR, 2018 WL 6215906, at *4 n.6 (Tex.

App.—Fort Worth Nov. 29, 2018, no pet.) (mem. op., not designated for

publication). Mother was relying on what the babysitter had told her; the babysitter

                                             28
was relying on what Abby had told the babysitter. And as noted, neither the babysitter

nor Mother independently qualified as the 2004 outcry witness under article 38.072.

See Tex. R. Evid. 805 (“Hearsay within hearsay is not excluded by the rule against

hearsay if each part of the combined statements conforms with an exception to the

rule.”).

       We hold that the trial court erred by permitting both the babysitter and Mother

to testify about Abby’s 2004 outcry.

             2. Harm

       Improperly admitting hearsay testimony is nonconstitutional error that is

harmless unless the error affected the appellant’s substantial rights. See Tex. R. App. P.

44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Nino v. State,

223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.). An error is

harmless if we are reasonably assured that the error did not influence the verdict or

had only a slight effect. See Garcia, 126 S.W.3d at 927; Shaw v. State, 329 S.W.3d 645,

653 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Likewise, improperly

admitting evidence is not reversible error if the same or similar evidence is admitted

without objection at another point in the trial. Merrit v. State, 529 S.W.3d 549,

556 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).

       Here, allowing the babysitter and Mother to testify about the 2004 outcry was

harmless error. Our reasoning follows.



                                           29
      During Starkey’s interviews, he admitted that something had happened with

Abby in 2004 but that it was accidental. Abby herself described something quite

different. The indictment alleged that Starkey “knowingly cause[d] the mouth of

[Abby], a child who was then and there younger than 14 years of age and not the

spouse of [Starkey], to contact [Starkey’s] sexual organ.” The question for the jury was

not so much whether Abby’s mouth in fact contacted Starkey’s penis, which Starkey

seemed to grudgingly concede, as it was whether Starkey’s penis accidentally contacted

her mouth.

      The 2004 outcry testimony varied both about whether oral sex was alleged and,

assuming it was alleged, about how whipped cream fit into the outcry.

      The babysitter’s testimony harmonized more with Starkey’s story (accidental

contact) than Abby’s (oral sex)—that is, something happened that upset Abby, but

whatever it was, the babysitter did not recall Abby’s describing it in 2004 as oral sex.

      In contrast, Mother asserted that the babysitter had said that Abby’s outcry had

included oral sex. Mother’s and Abby’s respective testimony about the 2004 outcry

also did not align about whipped cream’s role in the assault.

      But for all its inconsistencies—usually a fertile area for creating reasonable

doubt—what the 2004 outcry testimony tended to do was corroborate what Starkey

himself conceded during his interviews: that something of a sexual nature had

happened between him and Abby in 2004.



                                           30
      Here, the jury heard both Starkey’s version—through his interviews—and

Abby’s version through her testimony, and so the jury did not have to rely on the

babysitter’s or Mother’s memories of what they had heard (or not heard) over a

decade earlier. And unlike the outcry witnesses, neither Starkey nor Abby had

difficulty remembering that something out of the ordinary occurred; they simply

differed on whether it had occurred accidentally or knowingly.

      Starkey’s explanations about being startled might have served to “save face”

during the interviews, as Agent Morris discussed, but for purposes of creating a

reasonable doubt at trial, jurors might have seen them as far-fetched. The jury, as the

factfinder, determines witnesses’ credibility, and for each witness, it can choose to

believe all, some, or none of that witness’s testimony. See Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim App. 1991); Chasco v. State, 568 S.W.3d 254, 258 (Tex. App.—

Amarillo 2019, pet. ref’d). With or without the outcry testimony, the jury could have

concluded that Starkey’s explanations were implausible.

      We are thus reasonably assured that the evidentiary error did not influence the

verdict or had only a slight effect. See Garcia, 126 S.W.3d at 927; Hernandez,

2016 WL 4903206, at *13; Shaw, 329 S.W.3d at 653.

      We overrule Starkey’s sixth and seventh issues.

   IV. Starkey’s cumulative-error argument fails.

      In his final issue, Starkey argues: “[8] Did the trial court err by allowing hearsay

testimony, improper witness testimony, and impermissible ‘bolstering’ statements that

                                           31
were so pervasive as to cumulatively affect the fundamental fairness of the trial?”

Having held that the trial court erred only in Starkey’s sixth and seventh issues but

also having held that those errors were harmless, and not having held that the trial

court otherwise erred in Starkey’s other issues, Starkey has no other error or harm to

cumulate. See Jenkins, 493 S.W.3d at 613.

      We overrule Starkey’s eighth issue.

                                      Conclusion

      Having held that there was no error in Starkey’s first, second, third, fourth,

fifth, and eighth issues and having held that there was harmless error in Starkey’s sixth

and seventh issues, we affirm the trial court’s judgment.




                                                      /s/ Elizabeth Kerr
                                                      Elizabeth Kerr
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 15, 2019




                                            32
