MEMORANDUM OPINION

No. 04-09-00584-CR

Rene HERNANDEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 2007-CR-7793

Honorable Sharon MacRae, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: November 24, 2010

AFFIRMED

Rene Hernandez challenges his conviction for aggravated sexual assault of a child, 

asserting the trial court erred in allowing the designated outcry witness to testify. We affirm the 

judgment of the trial court.
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BACKGROUND

The State charged Hernandez with aggravated sexual assault of a child and designated the 

parents of the victim as outcry witnesses. In a bench trial, the victim, B,1

Michael Gonzalez, B’s father, took the stand following her testimony. He stated that his 

daughter told him that “she had been raped” after he was lecturing her about her misbehavior 

with the cell phone, but she did not tell him any details. The defense objected to this testimony 

on hearsay grounds and the trial court overruled the objection. Laura Gonzalez, B’s mother, 

testified that she often left her daughters at her mother’s house during the years in question and 

that her brother, Hernandez, also lived there during that time. Laura Gonzalez testified she 

testified that her uncle, 

Hernandez, raped her at her grandmother’s house when she was about six or seven years old. B 

and her younger sister would stay at their grandmother’s house during the summer while their 

parents were at work. Hernandez was also there because he lived with his mother, B’s 

grandmother. On one of the days when B was there, Hernandez asked B to come into his room to 

get a pack of playing cards. Once inside the room, Hernandez brandished a pocket knife he kept 

in his dresser drawer and threatened to hurt her or her father unless she pulled down her shorts 

and lay on the carpet. B testified she was afraid of Hernandez. After she complied with his 

demand, Hernandez lay on top of her, “took his private part out and put it inside” of her. He had 

intercourse with her “for about two minutes” until he heard his mother walk in from outside. B 

did not tell her grandmother or anyone else about what had happened because she was afraid that 

Hernandez would find her and hurt her or her father. She did not tell her parents about the rape, 

even when Hernandez was later jailed for solicitation and indecency with her younger sister. 

When B was about twelve years old, she “just blurted it out” to her father during an argument 

about her using a cell phone in violation of the family rules.

 1 B is a pseudonym.
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noticed a change in B’s “whole persona” and her self-esteem around first grade when she 

became less outgoing than she had been. She also said that her daughter had talked with her after 

the cell phone incident about “something bad” that had happened to B. The State attempted to 

elicit the details B told her mother about the incident, but the trial court sustained the defense’s 

objection to this line of testimony. Lydia Hernandez, B’s grandmother, confirmed in her 

testimony that the girls often came to stay with her while their parents were at work. Ms. 

Hernandez did not believe that the appellant had raped B because she would not have left B or 

her sister alone with the appellant for more than ten or fifteen minutes, although she also 

admitted it was “possible.” Finally, Hernandez himself took the stand and denied that he had 

sexual contact with B, but also stated that if something like that had occurred, he would not 

remember. He said that he has had trouble remembering things since he was hit by a car and put 

into a coma sometime around 1988.

The trial court found Hernandez guilty of aggravated sexual assault and stated on the 

record that the decision was based on the victim’s testimony which the trial court found to be 

convincing. The trial court noted that Lydia Hernandez’s testimony was also very credible, but 

Ms. Hernandez said herself that she may have left B alone with Hernandez for enough time for 

the sexual assault to have occurred. 

DISCUSSION

On appeal, Hernandez argues the outcry testimony of Michael Gonzalez, the victim’s 

father, was improperly admitted and harmed his substantial rights. Specifically, Hernandez 

asserts he did not receive statutory notice that Michael Gonzalez was an outcry witness and that 

the trial court failed to conduct the requisite hearing on his outcry testimony.
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Article 38.072 of the Texas Code of Criminal Procedure provides an “outcry” exception 

to the general rule that hearsay statements are inadmissible. TEX. CODE CRIM. PROC. ANN. art. 

38.072 (West 2009). The outcry provision seeks both the fair prosecution of child abuse cases 

and the protection of children in the courtroom, but is “carefully limited” to ensure the reliability 

of the testimony. See Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005). The 

statute applies only to statements made (1) by the child against whom the offense was allegedly 

committed, and (2) to the first person, eighteen years of age or older, to whom the child made a 

statement about the offense. TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(a). The statement must 

describe the alleged offense in some discernible way and amount to “more than words which 

give a general allusion that something in the area of child abuse was going on.” Garcia v. State, 

792 S.W.2d 88, 91 (Tex. Crim. App. 1990). “Simply put, the outcry witness is the first adult to 

whom the child tells ‘how, when, and where’ of the assault.” Reyes v. State, 274 S.W.3d 724, 

727 (Tex. App.―San Antonio 2008, pet. ref’d).

Several procedural requirements demanded by the statute must be followed for the outcry 

statement to be admitted:

(1) on or before the 14th day before the date the proceeding begins, the party 

intending to offer the statement:

(A) notifies the adverse party of its intention to do so;

(B) provides the adverse party with the name of the witness through whom 

it intends to offer the statement; and

(C) provides the adverse party with a written summary of the statement;

(2) the trial court finds, in a hearing conducted outside the presence of the jury, 

that the statement is reliable based on the time, content, and circumstances of 

the statement; and

(3) the child . . . testifies or is available to testify at the proceeding in court or in 

any other manner provided by law.
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TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(b). All the provisions of article 38.072 are 

mandatory and must be followed to admit a statement over a hearsay objection. Long v. State, 

800 S.W.2d 545, 547 (Tex. Crim. App. 1990). We review the trial court’s admission of an outcry 

witness’s testimony under an abuse of discretion standard. Garcia, 792 S.W.2d at 92; Reed v. 

State, 974 S.W.2d 838, 841 (Tex. App.―San Antonio 1998, pet. ref’d). 

We disagree that the trial court erred in allowing Michael Gonzalez to testify as the 

outcry witness, and conclude that Article 38.072 was followed. First, the record unambiguously 

shows that the State provided the defense with timely notice and a written summary of the outcry 

testimony of Michael Gonzalez. The State designated both Michael Gonzalez and Laura 

Gonzalez as outcry witnesses, and provided notice and written summaries of each of their 

intended statements to Hernandez before the trial began. Although Article 38.072 requires that 

no more than one witness may testify concerning any single event, it does not limit the number 

of proposed outcry witnesses. See Broderick v. State, 35 S.W.3d 67, 73–74 (Tex. 

App.―Texarkana 2000, pet. ref’d) (outcry witnesses are designated event-specific and only one 

outcry witness can testify to any single event). The trial court only allowed Michael Gonzalez to 

testify as an outcry witness, while sustaining the objection to Laura Gonzalez’s more detailed 

testimony concerning B’s statements about the incident. Further, at trial, defense counsel 

acknowledged receiving Michael Gonzalez’s statement. Accordingly, the State complied with 

Article 38.072 by identifying Michael Gonzalez as a potential outcry witness, notifying 

Hernandez of the State’s intent to offer the statement, and providing Hernandez with a written 

summary of Michael Gonzalez’s statement. TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(b)(1).

Second, there was no need for the trial court to conduct a hearing outside the presence of 

the jury on the reliability of the outcry testimony because Michael Gonzalez’s testimony was 
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offered at a bench trial rather than at a jury trial as the statute contemplates. Cf. In re K.L., 91 

S.W.3d 1, 16–17 (Tex. App.—Fort Worth 2002, no pet.) (referring to Texas Family Code 

§ 104.006 regarding hearsay statements by child abuse victims as “the civil analog of article 

38.072” and holding that § 104.006 does not require the trial court to conduct a prior hearing on 

the admissibility of hearsay statements in a bench trial so long as the court considered the issue 

of their admissibility). In any event, the trial court heard the defense’s hearsay objection to 

Michael Gonzalez’s testimony and made a ruling on it by overruling that objection. See Long, 

800 S.W.2d at 548 (noting that a hearsay objection gives notice to the trial court of an article 

38.072 outcry issue). A trial court’s ruling on a hearsay objection is sufficient to imply a finding 

about the reliability of the testimony pursuant to section 2(b) even when the trial court does not 

make explicit findings on the matter. See Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim. 

App. 1990) (overruling an objection to testimony implied that the court made a finding under art. 

38.072 § 2(b)). In sum, because there was no need to hold a separate hearing and because the 

trial court impliedly determined that Michael Gonzalez was a reliable outcry witness, we 

conclude the trial court did not abuse its discretion in permitting Michael Gonzalez to testify as 

the outcry witness. 

Assuming arguendo that the trial court did err in admitting Michael Gonzalez’s outcry 

testimony, we conclude the error was harmless because it did not affect Hernandez’s substantial 

rights. See TEX. R. APP. P. 44.2(b). A trial court’s error affects a substantial right when it had a 

substantial and injurious effect on the outcome of the trial. King v. State, 953 S.W.2d 266, 271 

(Tex. Crim. App. 1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776 (1946)). We review errors 

regarding the admissibility of hearsay as non-constitutional errors, Johnson v. State, 967 S.W.2d 

410, 417 (Tex. Crim. App. 1998), and review the entire record to determine whether there is fair 
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assurance that non-constitutional error had “but a slight effect” on the verdict. Garcia v. State, 

126 S.W.3d 921, 927 n.9 (Tex. Crim. App. 2004).

Here, the record shows that Michael Gonzalez’s testimony had, at most, a slight effect on 

the outcome of the trial. The trial court indicated that it did not rely on Michael Gonzalez’s 

outcry testimony in finding Hernandez guilty, but on the testimony of the victim:

[L]ooking and having listened to the testimony of [B], I’m going to say I found 

her to be convincing and she has convinced me that Mr. Hernandez is guilty of 

aggravated sexual assault and I’m going to find him guilty of that.

The trial court mentioned finding Lydia Hernandez’s testimony credible as well, but made no 

mention of Michael Gonzalez’s testimony. Therefore, any error in the admission of Michael 

Gonzalez’s testimony was harmless. We overrule Hernandez’s issue on appeal and affirm the 

trial court’s judgment. 

Phylis J. Speedlin, Justice

Do Not Publish