COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

RUBIN SANCHEZ, Appellant,

v. THE STATE OF TEXAS,

Appellee. §

§ § § § § No. 08

- 16

- 00117

- CR

Appeal from 11th District Court of Pecos County, Texas (TC # P

- 3493112

- CR )

O P I N I O N The State indicted A ppellant Ruben Sanchez on six counts of aggravated sexual assault of a child, and two counts of indecency with a child. The child made an outcry of these events to three persons. Outcry statements are classically hearsay, but Texas sidesteps that objection when the proponent satisf

ies several predicates set out in T EX .C ODE C RIM
. P RO C
. A NN . art. 38.072 ( West Supp. 2017 )

. In this case, t he trial court permitted all three persons to testify to the outcry statements, but att empted to limit the testimony such that each “ outcry ” witness testified to different incidents raised by the eight

- count indictment

. Following his convictio n on multiple
counts, Appellant complains that the trial court erred in permitt ing overlapping hearsay testimony from two of the outcry witnesses . We conclude that the trial court did not abuse its discretion in allowing the testimony , and we affirm the c onviction below.2 B ACKGROUND From age two until she was almost eight years old, B.W. lived in Fort Stockton with her mother

. 1 B.W. ’ s mother struggled with drug addiction. Consequently , B.W. spent some amount of time at her grandmother ’ s house in Fort Stockton. And f or a time, Appellant was living with
B.W. ’ s grandmother ; some in fact thought them married . Two of B.W. ’ s aunts also lived in the grandmother ’ s house, but between work and school schedules, B.W. spent some time alone in the house with Appellant. E ven after Appellant broke

- up with B.W. ’ s grandmother in June of 2010 , he continued to see B.W. from time to time, buying her toys , and taking her to his parent ’ s and his new girlfriend ’ s residence. When the mother ’ s drug addiction worsened, Child Protective Services arranged for B.W. to live with her father in Mississippi . That arrangement did not work out, and B.W. found herself living with her A unt Melinda in Florida. While there, B.W. informed Melinda of two inappropriate sexual incidents involving Appellant. After the authorities were notified, a forensic intervi ew e r, Victoria Smith , elicited the details of seve ral additional encounters. Sometime later, B.W. lived with her A unt Jennifer , who learned of several more incid ents. Florida authorities alerted their Texas counterparts, and a Pecos County grand jury issued an eight

- count indictment charging Appellant with these crimes against B.W. , all on or about the
state d date : 1. May 15, 2008, penetrat ing the anus of a chi ld younger than six with his sexual organ ; 2. May 15, 200 9 , penetrating the anus of a child younger than six with his sexual organ ; 3. May 15, 2010, penetrating the anus of a child younger than fourteen with a dog ’ s

1 To protect the anonymity of the child in this case, we use an alias to refer to her, and provide only the given names, or generic references to other family members

. See T EX .R.A PP .P. 9.10(a)(3); McClendon v. State , 643 S.W.2d 936, 936 n.1 (Tex.Crim.App. [Panel Op.] 1982)

.3

sexual organ ; 4. July 15, 2011, penetrat ing the anus of a child younger than fourteen with his sexual organ ; 5. August 15, 2011 , with intent to arouse or gratify sexual desire , expos ing his genitals to child younger than seventeen; 6. August 15, 2011 , penetrati ng the mouth of a child younger than seventeen with his sexual organ ; 7. September 15, 2011, penetrat ing the anus of a child younger than fourteen with his sexual organ ; 8. June 12, 2012, with the intent to arouse or gratify sexual desire , touch ing the genitals of child y ounger than seventeen. B.W. testified at trial ; s he was eleven at the time. She related that w hile living with her grandmother in Fort Stockton, Appellant lived in the house for a time . S he referred to Appellant

as Grandpa . She described to the jury a time when Appellant pulled down her pants, bent her over a bed, pulled down his pants, and penetrated her “ butt ” with his penis. The incident occurred behind the closed and locked door to the master bedroom of her grandmother ’ s house. Her Aunt Sarah was in the house at the time and came to the door when she cried out. Appellant then turned on the TV and ran to the bathroom

. Sarah testified at trial . She recalled a time when she heard B.W. cry out and when she went to investigate, B.W. ran out of the master bedroom. Appellant was lying on the bed watching TV. Sarah believed that B

. W

. was about 4 years old at the time

. B.W. testified that Appellant did t his to her a total of nine times . These events occurred between the time she was five and seven years old. Of the nine times, B.W. described only three of the
pen ile

- anal penetration s with any detail. As ide from the time Sarah was in the house, B.W.
tes tified to a similar incident at her grandmother ’ s house. She recalled the type and color of clothing she was wearing, as well as some of the clothing that Appellant had on. And B.W. testified to a third anal penetration when she went to Norma ’ s house , wh o was Appellant ’ s new4

girlfriend and fiancé after he br oke up with B.W. ’ s grandmother

. B.W. w ent there to help make Easter eggs. While there, Appellant took her to a room to watch TV . He locked door and told her to pull down her pants . When she refused, he pulled them down and anally penetrated her.
B.W. testified to three other specific events involving other sex acts , or attempted sex acts.
Once , Appellant took her to a shed behind her g randmother ’ s house, pulled down her shorts, and had her get on her hands and knees. He then tried to make a dog penetrate her anus. She felt the belly of the dog pressing up against her, but t he dog would not cooperate, and Appellant stopped when he thought he heard someone outside. A nother time, and a l so while at the grandmother ’ s house, she went to the refrigerator to look for a popsicle. She found none, but soon saw Appellant lying on the bed with his pants undone

. He asked her to use his exposed penis as a popsicle, but she refused. While also in the master bedroom a t the grandmother ’ s house, Appellant once closed and locked the door , and then pulled out a sex toy shaped like a fake penis and told her to use it

. She again refused. Finally, without describing any circumstances other than it was in her grandmother ’ s bedroom , she testified that Appellant put his tongue on her vagina

. The State presented s ome details of the several indicted crimes through three outcry witnesses

-- B.W. ’ s A unt s Melinda and Jennifer , and the foren s ic interviewer , Vic t oria Smith

. As to each, the trial court held a hearing outside the presence of the jury to determine whether the testimony qualified as an admissible outcry statement under T EX .C ODE C RIM .P RO C .A NN
. art. 38.072

. Because Appellant ’ s sole issue on appeal inv olves their testimony, we set it out more detail. A unt Melinda
Melinda testified as the State ’ s first called outcry witness. B.W. lived with Melinda in Florida in May of 2013 . At that time, B.W. initiated a conversation about where babies come5

from. B y the end of the conversation, B.W. had described to Melinda an event when Appellant

was watching her one day , took her underwear down , and anally penetrated her. B.W. a lso told Melinda of the time when Appellant took her to shed and ha d the dog do same thing

. Upon hearing this , Melinda quickly contacted Florida authorities who set up a foren s ic interview of B.W. The trial court allowed Melinda to testify to B.W. ’ s hearsay statements about these two specific events. Appellant does not challenge that ru ling, but rather claims Melinda was the first to hear the outcry and the other outcry witnesses in part duplicated her testimony. Victoria Smith Ms. Smith works as a foren sic interviewer for the Kimberly Center for Child Protection in Florida

. She in ter viewed B

. W

. on June 12, 2013 , when B.W. was nine years old. B.W. described three instances of penile

- anal penetration in the interview. Ms. Smith had asked B.W. to describe the “ last ” time it happened. In response, B.W. then explained that her mother ha d asked Appellant to watch her. She was at Norma ’ s ho use . She indicated that they had dyed Easter eggs, and stated that while in his room and on his bed, he anally penetrated her with his penis , moving back and forth. Ms. Smith asked B.W. to describe the time she that she “ remembered the most. ” In response, B.W. disclosed an anal penetration incident at her grandmother ’ s house while watching T.V. B.W. said that he “ used too much force ” and it had hurt her. She told Appellant to stop and he wouldn ’ t and she began to cry . B.W. also described to Ms. Smith the event with the dog , and provided much more detail th a n B.W. shared with Aunt Melinda

. Over Appellant ’ s objection that Veronica Smith would testify to the same events as Aunt Melin da , the trial court allowed Victoria Smith to testify to only two events: the “ Easter e gg ”6

incident and the t ime B.W. “ remembered the most. ” Victoria Smith testified to B.W. ’ s descriptions of only those two events at trial. Aunt Jennifer B.W. began living with her Aunt Jennifer in June 3013 . After developing some rapport with the child, B.W. in October 2014 opened

- up to Jennifer in a two

- hour conversation where she disclosed additional events. B.W. told Jennifer of six specific events, a ll occurring when she was between the ages of four and seven : 1. The “ first ” incident occurred when B.W. was four years old . While at her grandmother ’ s house, Appellant told her that if “ she would do this for him that he would buy her anything that she wanted [.] ” He then took her into the bedroom, removed her pants and underwear, bent her over the bed facedown and penetrated her anus with his penis. After the incident he took her to Walmart and bought her Play

- Doh , a Play

- Doh molder , and ice cream

. 2

. In another incident, Appellant while in the grandmother ’ s bedroom , asked B.W. to use several sex toys, shaped like a penis.
3. B.W. described the time she was looking for a p opsicle and Appellant asked B.W. to use his exposed penis as a p opsicle.
4. Next, B.W. described a time when Appellant took B.W. to his parent ’ s home and took her up to his childhood bedroom. B.W. described the unique furnishings in the room. Appellant then pulled her pants and underwear down , bent her over the bed , and pene trated her anally with his penis.
5. O n another occasion, B.W. said that her mom had picked her up on a half

- day at school, and dropped her off at Appellant ’ s new girlfriend ’ s house. Other than Appellant, no one else was home, and while watching TV , he stated that “ TV time was over

. ” A gain, he removed her pants7

and underwear and penetrated her anally wi th his penis.
6. Finally, she told her great aunt Jennifer about the time Appellant used his tongue on
B.W. ’ s vagina.
T he trial court ruled it would permit all the statements, except the one concerning the sex toys

. Aunt Jennifer then testified before the jury to the ( 1) “ first ” event when Appellant rewar d ed B.W. with Play

- Doh , ( 2) the p opsicle incident , ( 3) the penile

- anal penetration in Appellant ’ s childhood bedroom, ( 4) the penile

- anal penetration following the half

- day from school at Appellant ’ s new girlfriends house , and ( 5) the time Appellant used his tongue on B.W. ’ s vagina

. The jury found Appellant guilty on four counts of aggravated sexual ass a ult by penile

- anal penetration , guilty of two counts of attempted aggravated sexual assault of a child , and guilty on two counts of indecency with a child (one by contact and one by exposure). Following the punishment phase of the trial , and based on the jury ’ s punishment verdicts , the trial court sentenced Appellant to four concurrent 99

- year sentences on each of the aggravated sexual assault s of a child; 20 years on each of the two attempted aggravated sexual assault s of a child; and 10 and 20 years respectively on the indecency charges , along with a $5,000 fine

. Appellant brings a single issue on appeal claiming that both events recounted by Victoria Smith are the same events that Aunt Melinda testified about. He also claims that two of th e events described by Aunt Jennifer are duplicative of the other outcry testimony. He claims that absent the duplicative testimony, a reasonable jury could have found that the State failed to meet its burden of proof on the charged offenses. Appellant pu nctuates this point, claiming that B.W. herself only testified to three aggravated sexual assaults, yet the jury convicted him on four counts of aggravated sexual assault.8 APPLICABLE LAW AND STANDARD OF REVIEW Article 38.072 of the Texas Code of Crimin al Procedure creates a statutory exception to the hearsay rule . It allows the first adult to whom a child makes a statement describing a sexual assault to testify to the child ’ s outcry, if the statute ’ s provisions are met. See T EX .C ODE C RIM .P ROC .A NN
. art. 38.072. 2 A proper outcry witness , however, is not the firs t adult to whom the child made any outcry, but instead the first adult to whom the child described the abuse in some discernible way. Garcia v. State , 792 S.W.2d 88, 9 1 (Tex.Crim.App. 1990) ; In re C.E.S. , 400 S.W.3d 187, 192 (Tex.App.

-- El Paso 2013 , no pet. ) ; s ee Reyes v. State , 274 S.W.3d 724, 727 (Tex.App.

- - San Antonio 2008, pet. ref ’ d )( stating that the proper outcry witness is the first adult to whom the child shares the “ how, when, and whe re ” of the assault). Outcry testimony is event

specific and not person

- specific , meaning that multiple outcry witnesses may testify when the outcry statements are about different events. Lopez v. State , 343 S.W.3d 137, 140 (Tex.Crim.App. 2011) ; In re C.E.S. , 400 S.W.3d at 192

. Nonetheless, t he statute does not permit repetitious testimony about the same event

-- t here may be only one outcry witness per event. Lopez , 343 S.W.3d at 140

. A trial court has “ broad discretion ” in admitting outcry witness testimony. Garcia , 792 S.W.2d at 92; Buentello v. State , 512 S.W.3d 508, 516 (Tex.App.

-- Houston [1 st Dist.] 2016, pet. ref ’ d). Accordingly, w e review a trial court ’ s designation of an outcry witness under an abuse

of

- discretion standard, and we will not disturb the exercise of that discretion unless the record establishes a clear abuse of discretion. Garcia, 792 S.W.2d at 92; In re C.E.S. , 400 S.W.3d at 191.

2 Article 38.072 applies to out

- of

- court statements that: (1) describe the alleged offense; (2) are made by the child; and (3) are made to the first person, eighteen years of age or older, other than th e defendant, to whom the child made a statement about the offense. Id. A rticle 38.072 further requires that: (1) on or before the fourteenth day before proceedings begin, the adverse party is (a) notified of the State ’ s intent to offer the outcry stateme nt, (b) provide d the name of the outcry witness the State intends to offer, and (c) provide d a written summary of the statement; (2) the trial court holds a hearing to determine whether the statement is reliable; and (3) the child testifies or is available to testify. Id.9

A tria l court abuses its discretion when its ruling is outside the zone of reasonable disagreement.
See Garcia , 792 S.W.2d at 91

- 92 ; In re C.E.S. , 400 S.W.3d at 191. As the Texas Court of Criminal Appeals has reminded us , d iff erent trial judges may “ reach different conclusions in different trials

on substantially similar facts without abus e of discretion. ” Winegarner v. State , 235 S.W.3d 787, 791 (Tex.Crim.App. 2007 )( stated in the context of a trial court ’ s discretion in deciding Rule 403 objection)

. DISCUSSION Appellant contends that the statement to Aunt Melinda and to Veronica Smith “ likely describe the same incident. ” He draws this conclusion because ( 1) both involve instances when Appellant was babysitting, ( 2) both involve penile

- anal penetration, and ( 3) in both instances Appellant asked B.W. to keep it a secret. Next, Appellant contends that two of the events described
to Aunt Jennifer are repetitious of events already testified to by Aunt Melinda and Veronica Sm ith.
W e disagree

. No Abuse of Discretion Aunt Melinda described an aggravated sexual assault in the grandmother ’ s bedroom and the attempted aggravated sexual assault with the dog. Veronica Smith testified to two events

-- one at Appellant ’ s girlfriend ’ s ho use when B.W. was dying Easter eggs, and the one time that B.W.

“ recalled the most. ” The Easter egg event was at a different location than that described to Aunt Melinda, and was clearly different. The time that B.W. “ recalled the most ” could conceivably be the same penile

- anal penetration event that Aunt Melinda testified about, but it could also be a different event. B.W. testified that there were nine such incidents. They shared the common characteristics of Appellant babysitting th e child, how he positioned the child on a bed , and later his request that she keep it a secret. The time B.W. recalled the most had the added characteristic10

of how Appellant was moving back and forth, and the degree of pain he inflicted. The trial court

w as in the zone of reasonable disagreement as to whether this was a distinct event. For much the same reason, the trial court did not err in allowing Aunt Jennifer ’ s testimony. Appellant only challenges her recitation of two events

-- the description of the “ first ” time it happened and one time at the girlfriend ’ s home when Appellant said, “ TV time is over. ” Th is lat t er event is clearly different from that described by Aunt Melinda in that it was a t a different location. The lat t er event shares the same lo cation as one Veronica Smith described with the Easter eggs, but it also has a significant difference. On this occasion, B.W. said no one else was home. When decorating the Easter eggs, both Norma and her son were present at the house. The “ first ”
event also contained unique identifiers which might set it aside in the mind of a child as a distinct event (the subsequent trip to Wal

- Mart and the description of the toy he purchased for her ). The trial court ’ s decision thus falls squarely within the zone of reasonable disagreement , and it did not abuse its discretion in allowing testimony of these events. Not Harmful Error And while it is theoretically possible that one of these events could have overlapped with another, Appellant has failed to show that any error would be reversible. As non

- constitutional

error, we must disregard any error that does not affect Appellant ’ s substantial rights. See
T EX .R .A PP .P. 44.2(b); Garcia v. State , 126 S.W.3d 921, 927 (Tex.Crim.App. 2004). An error is harmless if we are reasonably assured that the error did not influence the verdict or had only a slight effect. Id. Likewise, the improper admission of evidence is n ot reversible error if the same or similar evidence is admitted without objection at another point in the trial. See Mayes v. State , 816 S.W.2d 79, 88 (Tex.Crim.App. 1991)

. In making a harm analysis , we consider the entire record, including : (1) the cha racter of the alleged error and how it might be considered with other11

evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of

e vidence

. Motilla v. State , 78 S.W.3d 352, 355 (Tex.Crim.App. 2002)

. On our record, B.W. testified that Appellant penetrated her anus nine times. She described three of the events with some detail. Two were at B.W. ’ s grandmother ’ s house, and one at
Norma ’ s residence

. She described graphic anatomical details that we need not repeat here, but which are consistent with the alleged aggravated sexual assault. Appellant never presented any compelling reason why B.W. would lie about these events. At trial, he questioned whether B.W. ’ s grandmother was angry at Appellant because of their break

- up. Yet, h e never show ed that anger was communicated to, or affected B.W. At the time of the outcry, B.W. had been living away from the grandmother for about a year , and by the time of trial the grandmother had not seen B.W.
in several years . Appellant ’ s other defense theme challenged whether anything happened outside the grandmother ’ s house. He prese nted some evidence from Norma who claimed B.W. was not at the house often, and when Norma was present, nothing could have happened . By the same token, a jury might have also concluded that Norma was not always present and could not exclude that something did occur . On appeal, Appellant does not challenge the a dmissibility of Aunt Jennifer ’ s recitation of a fourth event that occurred at a different location ( Appellant ’ s childhood home )

. For that matter, we doubt whether Appellant preserved an objection to any of the events Aunt Jennifer recounted. After the tr ial court indicated which of the events it would allow Aunt Jennifer to testify about, the trial court and defense counsel had the following exchange: DEFENSE COUNSEL: No. I have a problem with the whole thing. She ’ s the third witness. She ’ s the third o utcry on this. THE COURT: I understand, Counsel; but this is on something totally different. And I ’ ve already made my ruling. Go ahead and state your objection.12

DEFENSE COUNSEL: Well, my objection, again, your Honor, is this is going beyond

-- I don ’ t be lieve that the evidence will outweigh any probative factor as far as being prejudicial to my client. In general, to preserve a complaint for appellate review, a defendant must make a timely and specific objection to the trial court. T EX .R .A PP .P . 33.1(a) ; Lovill v. State , 319 S.W.3d 687, 691

- 92 (Tex.Crim.App. 2009) . An objection stating one legal basis cannot support a different legal theory on appeal. See Heidelberg v. State , 144 S.W.3d 535, 537 (Tex.Crim.App. 2004)

. And regarding challenges to outcry testimony, “ [m] aking specific objections to each act or event is particularly important [for] numerous separate and discrete acts of sexual assault, each of which could have a separate outcry witness. ” Eldred v. State , 431 S.W.3d 177, 185 (Tex.App.

-- Texarkana 2014 , pet. ref ’ d )( holding defendant failed to preserve error by objecting to all incidents testified to by outcry witness, when some were proper ); see also Sonnier v. State , 913 S.W.2d 511, 518 (Tex.Crim.App. 1995 )(“ When an exhibit contains both admissible and inadmissible evidence, the objection must specifically refer to the challenged material to apprise the trial court of the exact objection. ” ). Appellant ’ s objection to Aunt Jennifer ’ s testimony stumbles on these principles. He objected to all her testimony, when some was clearly proper. He never explained which of the specific events overlapped with the others, or why. Even at that, his trial objection is stated more

as a T EX .R.E VID
. 403 complaint, rather than as a hearsay objection. Failing a proper objection to Aunt Jennifer ’ s testimony, the record contains B.W. ’ s three specifically described accounts of an aggravated sexual assault, and three others from Aunt Jennifer. A jury had sufficient evidence, even aside from the other challenged outcry statements, to conclude that Appellant committed the four acts of sexual ass a ult of a child that he was charge d with. And f o r each of the four aggravated sexual assaults that Appellant was convicted on, he was sentenced to identical terms that all ran concurrently.13

On appeal, Appellant also does not challenge the admissibility of the evidence that supported the two attempted sexual assaults, and two indecency counts. That evidence included the outcry witnesses ’ description of an attempted sexual assault utilizing a canine, an d an attempt to have B.W. perform oral sex on Appellant . The evidence also included Appellant exposin g him s elf to B.W. and pe r forming oral sex on her. In addition, the jury heard evidence that Appellant created a peephole into a bathroom so that he could observe two other teenage females bath ing , and placed sex toys in the bathtub hoping that they would use them. While these events do not directly evidence any of the four aggravated sexual assaults at issue, they lend substantial credence
to B.W. ’ s account of those assaults. Nor did the State ’ s attorney s emphasize the outcry witnesses evidence in closing

. In fact, they never mentioned it at all. A fair reading of the closing argument shows the State referred to
B.W. ’ s own testimony, and not that of the outcry witnesses. In summary, B.W. testified without objection about three of the incidents in the same manner as the outcry witnesses

. See In re C.E.S. , 400 S.W.3d at 192; Nino v. State , 223 S.W.3d 749, 754 (Tex. App.

-- Hous ton [14th Dist.] 2007 , no pet. )( when substantially same evidence admitted through victim and proper outcry witness, imprope r outcry witness ’ s testimony was harmless); Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.

- - Houston [1st Dist.] 2002, pet. ref ’ d )( trial court ’ s admission of outcry witness ’ s testimony was harmless where the same facts were admitted into evidence without obj ection). Aunt Jennifer testified about a fourth aggravated sexual assault without any objection. She testified to two additional aggravated sexual assaults over a deficient objection. Jennifer Smith testified to at least one additional unique aggravated sexual assault. Considering the entire record, e ven if we assume that error occurred in this case, we have a reasonable assurance that any error was harmless

.14 CONCLUSION We overrule Appellant ’ s single issue on appeal and affirm t he judgment of conviction below.
September 26, 2018 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)