Affirmed and Memorandum Opinion filed June 27, 2019. 

In The

Fourteenth Court of Appeals

NO. 14-18-00176-CR

NO. 14-18-00177-CR

EMILIO ANGEL CERVANTES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause Nos. 1424889 & 1534476

MEMORANDUM OPINION

In this appeal from two convictions for super aggravated sexual assault of a 

child, appellant complains that (1) the evidence is insufficient to support one of the 

convictions, (2) the trial court abused its discretion by admitting two exhibits that 

were inadequately redacted, and (3) the trial court abused its discretion by admitting 

hearsay testimony from two witnesses who were not outcry witnesses. We overrule 

all of these complaints and affirm the trial court’s judgments.
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BACKGROUND

The Indictments. Appellant was charged in two separate indictments with 

sexually assaulting the complainant, a five-year-old girl. The first indictment alleged 

that appellant caused his penis to contact the complainant’s mouth, and the second 

indictment alleged that he digitally penetrated her vagina. Appellant pleaded not 

guilty to both charges, and his case proceeded to a trial by jury, where two versions 

of events were presented.

The State’s Version. The complainant’s mother testified that she lived in a 

crowded home with her family and several extended relatives, including appellant, 

who was her husband’s brother. On the night of the offense, the mother said that she 

went downstairs to the kitchen after leaving the complainant upstairs in a room next 

to appellant. When she returned, the mother said that the complainant was trembling, 

but the complainant would not say why. The next morning, the complainant told her 

mother that she needed to wash her hands because appellant had touched her vagina 

and had forced her to kiss his penis.

The mother testified that she confronted appellant and that his face turned very 

red. He knelt down on the ground and repeated “Forgive me, forgive me, forgive 

me.” The mother then hit appellant, left the home with the complainant, and reported 

the abuse to 911.

Police tried to contact appellant on the day of the mother’s report, but 

appellant fled the city and deactivated his cellphone. He was apprehended two years 

later by the border patrol.

The complainant was ten years old when she testified. She said that appellant 

put his penis in her mouth and that he touched the inside of her vagina. She also said

that appellant had touched her inappropriately on prior occasions. 
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The Defense’s Version. The complainant’s stepfather (appellant’s brother) 

testified that he was at home when his wife confronted appellant. The stepfather said 

that he asked appellant for an explanation, and appellant responded that the 

complainant had merely walked in on him masturbating.

The stepfather also provided an alibi defense. He said that he and appellant 

were working a job together on the night of the alleged offense, and that they did not 

return home until very early the next day. On cross-examination, however, the 

stepfather admitted that he had not mentioned this alibi to authorities at any time 

before the trial, even though the stepfather knew about an ongoing investigation. 

Appellant testified in his own defense. He said that he was masturbating in his 

room because he thought that he was alone in the house. He said that the complainant 

walked in on him, and that he pushed her out of the room. He denied ever touching 

the complainant inappropriately or putting his penis in her mouth. He also explained 

that he left town because he was facing false accusations.

The Judgment. The jury rejected appellant’s defense and convicted him as 

charged. The trial court assessed his punishment at two concurrent terms of seventy 

years’ imprisonment.

SUFFICIENCY OF THE EVIDENCE

Though convicted of two offenses, appellant challenges the evidence in 

support of just his first conviction, which involved the oral sexual contact.

To obtain that conviction, the State was required to prove the following 

essential elements: (1) that appellant intentionally or knowingly caused the 

complainant’s mouth to contact his penis, and (2) that the complainant was younger 

than six years of age at the time of the offense. See Tex. Penal Code 

§ 22.021(a)(1)(B)(v), (a)(2)(B), (f)(1). We examine all of the evidence in the light 
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most favorable to the verdict when deciding whether these essential elements were 

proven beyond a reasonable doubt. See Robinson v. State, 466 S.W.3d 166, 172 (Tex. 

Crim. App. 2015).

There is legally sufficient evidence to support the first element of the offense, 

based on the following line of testimony from the complainant: 

Q. Okay. What’s a pene?

A. The thing that men use to go to the restroom.

Q. And do they use it to go pee or poop?

A. Pee-pee.

Q. And you said you do remember talking to your mom about 

[appellant] touching you with his pene?

A. Yes.

Q. And where did [appellant] touch you with his pene?

A. In the mouth.

And there is legally sufficient evidence to support the second essential 

element, based on the testimony from multiple witnesses that the complainant made 

her outcry roughly two months before her sixth birthday.

Appellant responds that the evidence is insufficient because the complainant 

testified that she remembered more about when appellant touched her “with his 

hands” as opposed to “with his pene.” This point relates to the weight and credibility 

of the complainant’s testimony, which we do not reevaluate in a sufficiency analysis. 

See Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018).

Appellant also argues that the evidence is insufficient because the mother’s 

testimony failed to establish when appellant’s penis contacted the complainant’s 

mouth. This argument misrepresents the mother’s testimony, and it fails in any event 
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because the date of commission is not an essential element of the offense. See Owens 

v. State, 96 S.W.3d 668, 672 (Tex. Crim. App. 2003).

Appellant argues next that the evidence is insufficient because a forensic 

clinician who interviewed the complainant did not establish that appellant’s penis 

actually contacted the complainant’s mouth. This point fails because the 

complainant established that element through her own testimony, which is sufficient 

by itself to support the conviction. See Tex. Code Crim. Proc. art. 38.07.

And in one final point, appellant argues that the evidence is insufficient 

because the complainant told a prosecutor before the trial began that appellant did 

not put his penis in her mouth. This testimony merely highlights a conflict in the 

evidence, which we presume the jury resolved in favor of the verdict. See Whatley 

v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014).

Viewing the record in the light most favorable to the verdict, we conclude that 

the evidence is legally sufficient to support every essential element of the offense 

beyond a reasonable doubt.

INADEQUATE REDACTIONS

The prosecutor offered into evidence a report from a sexual assault nurse 

examiner. During a bench conference, the prosecutor stated that he had redacted 

certain portions of the report because they indicated that appellant had sexually 

assaulted a victim other than the complainant. The trial court admitted the report 

with the prosecutor’s redactions.

The prosecutor later offered a second report into evidence, this time from a 

forensic clinician. The trial court remarked sua sponte that the report contained 

redactions, but there was no inquiry or discussion regarding the substance of those 

redactions. The trial court admitted the redacted report.
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Appellant now complains that the redactions in both reports were inadequate 

because the underlying text was still legible through the blackouts. He claims that 

the nurse’s report shows statements from the complainant’s mother about how he 

had sexually assaulted another child. And he claims that the clinician’s report 

“appears” to state that “he touched another girl.”

Appellant did not object to the inadequate redactions at the time the reports

were offered into evidence. Absent a specific objection, we conclude that no error 

was preserved. See Tex. R. App. P. 33.1; Matchett v. State, 941 S.W.2d 922, 931 

(Tex. Crim. App. 1996).

Even if error had been preserved, we could not conclude on this record that 

appellant suffered any harm. No witness was ever called to read the redacted portions 

of the reports. Though the reports were published to the jury during the trial 

(presumably on an overhead projection), no one ever made any comment that the 

underlying text was still legible through the blackouts. And though the jury returned 

a note during deliberations requesting to see certain documents and to have certain 

testimony repeated, the record does not reflect that the jury ever requested to see the 

challenged reports. See Tex. Code Crim. Proc. art. 36.25 (providing that written 

exhibits must be furnished to the jury “upon its request”).

HEARSAY TESTIMONY

The prosecutor gave pretrial notice that he intended to offer the hearsay 

statements of the complainant through three outcry witnesses: (1) the complainant’s 

mother, (2) a forensic interviewer, and (3) the forensic clinician. But on the morning 

of trial, the prosecutor advised the trial court that the mother would be his only outcry 

witness, and she was the only witness who appeared at the pretrial hearing on outcry 

witnesses. See Tex. Code Crim. Proc. art. 38.072(b)(2); Sanchez v. State, 354 S.W.3d 

476, 484–85 (Tex. Crim. App. 2011).
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During the trial itself, however, the prosecutor called the forensic interviewer 

and the forensic clinician as witnesses, and the prosecutor elicited testimony from 

those witnesses regarding the complainant’s hearsay statements. Appellant objected 

on the basis of hearsay, but the trial court overruled him. According to both 

witnesses, the complainant said that appellant had touched her inappropriately and 

that he had tried to put his penis in her mouth.

Appellant now complains of the trial court’s rulings on his hearsay objections. 

For purposes of argument, we can assume without deciding that the trial court erred 

by overruling appellant’s objections and by admitting the challenged testimony. The 

question then becomes whether appellant suffered harm under the standard for 

nonconstitutional error. See Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—

Houston [14th Dist.] 2004, pet. ref’d).

Nonconstitutional error must be disregarded unless it affects a defendant’s 

substantial rights. See Tex. R. App. P. 44.2(b). An error affects a defendant’s 

substantial rights when the error has a substantial and injurious effect or influence 

on the jury’s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). 

If the error had no influence or only a slight effect on the verdict, the error is 

harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

The erroneous admission of evidence is generally not reversible if the same 

or similar evidence is admitted without objection at another point in the trial. See 

Linney v. State, 401 S.W.3d 764, 780 (Tex. App.—Houston [14th Dist.] 2013), pet. 

ref’d, 413 S.W.3d 766 (Tex. Crim. App. 2013). And here, the testimony from the 

forensic interviewer and the forensic clinician was largely cumulative of the 

testimony from the complainant’s mother and the complainant herself. All of these 

witnesses established that appellant touched the complainant’s vagina and that he 

tried to put or actually put his penis in her mouth. Because the mother’s testimony 
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and the complainant’s testimony were properly admitted, any improper admission 

of testimony from the forensic interviewer and forensic clinician was not harmful. 

See Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no 

pet.) (the improper admission of testimony from a forensic interviewer was harmless 

because the same or similar testimony was properly admitted by the child 

complainant’s mother).

Appellant points out that the forensic clinician provided more descriptive 

testimony of the sexual assault than the other witnesses. For example, according to 

the forensic clinician, the complainant said that appellant “was pushing [her] head 

so hard so [she] can suck his [penis]”; that his penis was “red and big” and “smelled 

like fart and poop”; and that when appellant touched her vagina, “he started slowly, 

and then he did it harder.” This level of detail may have been absent from the 

complainant’s live testimony, but the complainant still testified about the same 

instances of sexual abuse, and the jury was able to determine for itself whether her 

accusations were credible. Had the jury disbelieved the complainant, there is no 

reasonable likelihood that the jury would have convicted appellant because the 

forensic clinician repeated the complainant’s statements with these other sorts of 

details. See Anzaldua v. State, 502 S.W.2d 19, 22 (Tex. Crim. App. 1973) (holding 

that “the vice of hearsay is not present” when “the party making the statement out of 

court repeated the statement in open court under the sanctity of oath and was subject 

to cross-examination” and “the jury had the opportunity to observe the demeanor of 

the witness while [she] was testifying”).

We conclude that the challenged testimony had no influence on the jury’s 

verdict, or at most a slight effect, and thus, any improper admission of that testimony 

was harmless.
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CONCLUSION

The trial court’s judgments are affirmed.

 

 /s/ Tracy Christopher

 Justice

Panel consists of Justices Christopher, Hassan, and Poissant. 

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