TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00211-CR

Christopher M. Wong, Appellant

v.

The State of Texas, Appellee

FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-15-302712, THE HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Christopher M. Wong was charged with two counts of aggravated sexual assault 

of a child. See Tex. Penal Code § 22.021.1 The jury found Wong guilty of the second count, and 

Wong was sentenced to fifteen years’ imprisonment. See id. § 12.32. In two issues on appeal, 

Wong challenges the sufficiency of the evidence supporting his conviction and argues that the

district court erred by admitting testimony from an outcry witness. We will affirm the district 

court’s judgment of conviction.

BACKGROUND

Wong was charged with alternative counts of aggravated sexual assault of a child

allegedly occurring on the same day. See Tex. Penal Code § 22.021. The first count alleged that 

1 The indictment also alleged two counts of indecency with a child by contact and two 

counts of indecency with a child by exposure. See Tex. Penal Code § 21.11. However, the State 

abandoned those counts before voir dire.
2

Wong penetrated Child’s female sexual organ with his sexual organ, and the second count 

alleged that Wong contacted Child’s female sexual organ with his sexual organ. At the time of 

the alleged misconduct, Wong was 24 years old, and Child was eleven years old. The following 

summary comes from the testimony and other evidence presented at trial.

In the months leading up to the night in question, Child was living with her 

mother, her adult sister, and her infant brother. Child’s cousin would sometimes spend the night 

with the family after finishing work. On those occasions, Cousin would either sleep downstairs 

on the couch or sleep in Child’s room. Prior to the night in question, Mother had been working 

at a laundromat where she met Wong. Mother allowed Wong, then homeless, to stay inside the 

laundromat while she worked. When her children came to her work one day, Mother introduced 

her children to Wong. After the two met, Wong and Sister began dating, and Wong would 

regularly spend the night at the family’s home.

On the night in question, Mother and Sister wanted to go out to eat, but Child 

wanted to stay home and finish playing a video game with Wong in her bedroom. Mother agreed 

to allow Child to stay with Wong while the rest of the family went out to eat. After Mother, 

Sister, and Brother left, Cousin arrived at the home after finishing her work shift. When she 

arrived, Cousin did not think anyone was home because no one was downstairs, and she headed 

upstairs toward the bedrooms and heard a female’s voice. After hearing that, Cousin peaked into 

Child’s bedroom, realized that Child was the person whose voice she heard, saw Wong’s naked 

butt moving up and down while he was on top of Child, and saw one of Child’s legs wrapped 

around Wong’s leg. At trial, Cousin testified that it appeared as though Wong was having sex 

with Child.
3

After seeing Wong and Child in the bedroom, Cousin repeatedly called Mother 

and Sister on their cell phones and told them to come home. When Mother and Sister returned

home, Cousin told Mother what she saw. Upon hearing this, Mother became upset, did not want

to believe that it happened, and asked Child and Wong what happened. Both Child and Wong 

denied that anything happened, and Mother told Wong to leave the house. After Wong left, 

Mother took Child to the hospital. Mother testified that she told the treating medical personnel

that she was worried that Child had been assaulted, but Child testified that she did not tell the 

hospital personnel what happened. At trial, Child related that a doctor examined her vagina and 

said that everything was fine, and Mother explained that the hospital personnel stated that 

Child’s vagina was irritated but that nothing had been forced inside her vagina.

Later the next day, Mother asked Child again if something happened, and Child 

stated that Wong kissed her on her neck, that he “forced his thing in” her, that she “tried to tell 

him to stop,” that he “wouldn’t stop,” and that he told her that he would hurt Mother and her if 

Child told anyone. After Child told Mother what happened, Mother called the police. When the 

police arrived, they questioned Child and then transported her and Mother to the hospital so that 

a sexual-assault-forensic exam could be performed.

During the exam, Child informed the sexual-assault-nurse examiner that Wong 

“put his thing inside of me, and it hurt. While he was inside me, he tried to kiss my lips and my 

neck.” Further, Child pointed to her genitals when asked to clarify what she meant by Wong’s 

“thing” and told the nurse examiner that it felt like she “popped [her] cherry.” In addition, the 

nurse examiner found that there was a transection or laceration to Child’s hymen and explained 

that although she could not state what caused the transection, the injury was consistent with 

Child’s description of what occurred the previous night. The nurse examiner did not see any 
4

trauma to Child’s vagina, perineum, or anus. When discussing Child’s first visit to the hospital, 

the nurse examiner testified that the records indicated that Child did not make an outcry of sexual 

abuse and instead complained about itchiness on her vagina. Additionally, the nurse examiner 

obtained swabs from Child’s neck and other body parts. Testing performed on the swab from 

Child’s neck revealed the presence of male DNA, showed the presence of a mixture of DNA 

from three people, did not exclude Wong as a potential contributor, and established that it was 

“135 trillion times more likely that the DNA came from [Child], . . . Wong, and one unknown 

individual than if the DNA came from [Child] and two unrelated unknown individuals.”

When the exam was over, Mother and Child went home, and Mother called Wong 

on the phone and placed the call on speakerphone so that Child could hear and participate in the

conversation. During the phone call, Wong repeatedly said that he was sorry and “didn’t mean 

to do it.”

At trial, Child testified that Wong touched her leg on the night in question after 

Mother and Sister left the house, that her clothes were removed, that he got on top of her, that his 

penis touched her vagina, and that he was moving while he was on top of her. Further, although 

Child explained that she was not paying attention when asked if Wong’s penis went inside her 

vagina, Child testified that Wong’s actions were physically hurting her vagina, that she had never 

experienced anything like that before, that “the sex” is what caused her to feel pain, that sex 

involves body parts from a man and a woman, and that what happened was rape.

In his case in chief, Wong called Dr. Carrie Edwards to the stand. Dr. Edwards 

testified that the sexual-assault-exam records showed that there was a complete transection of 

Child’s hymen likely caused by blunt force trauma. However, she also stated that she would 

expect to see scabs, “redness, swelling, and bleeding” if the injury occurred at the time described 
5

by Child but that her review of the medical records did not show the presence of those types of 

trauma. Moreover, she related that she observed the presence of scar tissue in the photos taken 

during the forensic exam and described the injury as old and going through the healing process. 

Further, Dr. Edwards noted that the records from the first hospital trip indicated that a full 

examination of Child’s genitals was performed but did not list any trauma other than redness, 

which a bacterial or yeast infection could have caused. Dr. Edwards opined that if a complete 

transection had occurred just before the first hospital examination, she would expect there to be 

entries in the record concerning trauma to the genitals. Finally, Dr. Edwards testified that based 

on her review of the records and the injury, it was very unlikely that the complete transection 

occurred during the alleged assault and that she was “99.99 percent confident that [the injury to 

Child’s hymen] did not occur during that time frame.”

After considering the evidence presented at trial, the jury found Wong guilty of 

the second count pertaining to contact with Child’s sexual organ. Wong appeals his conviction.

DISCUSSION

In his first issue on appeal, Wong asserts that the evidence presented at trial was 

insufficient to support his conviction. In his second issue on appeal, Wong argues that the 

district court erred by allowing Mother to testify as an outcry witness.

Sufficiency of the Evidence

Under a legal-sufficiency standard of review, appellate courts view the evidence 

in the light most favorable to the verdict and determine whether “any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 

443 U.S. 307, 319 (1979). When performing this review, an appellate court must bear in mind
6

that it is the factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to 

make “reasonable inferences from basic facts to ultimate facts.” Id.; see also Tex. Code Crim. 

Proc. art. 36.13 (explaining that “jury is the exclusive judge of the facts”). The factfinder is “free 

to apply common sense, knowledge, and experience gained in the ordinary affairs of life in 

drawing reasonable inferences from the evidence.” Eustis v. State, 191 S.W.3d 879, 884 (Tex. 

App.—Houston [14th Dist.] 2006, pet. ref’d). Appellate courts must “determine whether the 

necessary inferences are reasonable based upon the combined and cumulative force of all the 

evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9,

16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences 

were resolved in favor of the conviction and “defer to that determination.” Clayton v. State, 

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that “direct 

and circumstantial evidence are treated equally” and that “[c]ircumstantial evidence is as 

probative as direct evidence in establishing the guilt of an actor” and “can be sufficient” on its 

own “to establish guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 

2011, pet. ref’d). The evidence is legally insufficient if “the record contains no evidence, or 

merely a ‘modicum’ of evidence, probative of an element of the offense” or if “the evidence 

conclusively establishes a reasonable doubt.” Id. at 107 (quoting Jackson, 443 U.S. at 320).

Under the Penal Code, an individual commits the offense of aggravated sexual 

assault of a child if he “intentionally or knowingly . . . causes the penetration of the . . . sexual 

organ of a child by any means” or “causes the sexual organ of a child to contact . . . the . . . 

sexual organ of another person, including the actor” if “the victim is younger than 14 years of 

age, regardless of whether the person knows the age of the victim at the time of the offense.”

Tex. Penal Code § 22.021(a). Consistent with the Penal Code, the jury charge in this case 
7

specified that Wong committed the offense of aggravated sexual assault of a child if he 

intentionally or knowingly (1) penetrated Child’s sexual organ with his sexual organ or 

(2) contacted Child’s sexual organ with his sexual organ. Further, the charge explained that if 

the jury found Wong guilty of the first count, it did not need to consider the second count. At the 

end of the guilt-or-innocence phase, the jury found Wong guilty of count two.

When presenting his sufficiency challenge, Wong argues that the evidence 

presented at trial was insufficient to establish penetration of Child’s sexual organ because it was 

based on an unreliable outcry statement to Mother, because Child’s statements to the nurse 

examiner and her testimony were vague regarding what allegedly occurred, and because the 

photographs taken during the sexual-assault exam and the testimony from Dr. Edwards all 

established that no penetration occurred on the night in question. Building on that premise, 

Wong argues that there was also insufficient evidence of contact because the State presented no 

evidence to prove “any contact other than the alleged penetration.” Stated differently, Wong 

contends that the evidence must also be insufficient to establish contact because double jeopardy 

prohibits the State from pursuing “charges for sexual assault by contact where” there is no 

“evidence of a discrete and distinct contact separate from . . . penetration” and “where a 

defendant is acquitted of sexual assault by penetration.”

As support for his arguments, Wong points to Ex parte Pruitt, 233 S.W.3d 338 

(Tex. Crim. App. 2007), but we find that case to be distinguishable. In that case, Pruitt was 

charged with one count of sexual assault and one count of aggravated sexual assault involving 

the penetration of the same child victim’s vagina. Id. at 340. Although the indictment provided 

two dates for which the offenses occurred “on or about,” id., evidence was presented during the 

trial regarding multiple penetrative acts over an extended period of time, id. at 340-42. At the 
8

end of the trial, “[t]he jury acquitted appellant of both counts.” Id. at 343. Following Pruitt’s 

acquittal, the State charged him with two counts of sexual assault of the same victim with 

different “on or about” dates. Id. Each count contained a paragraph alleging that Pruitt 

committed the offense by making his sexual organ contact the victim’s sexual organ and a

separate paragraph alleging that Pruitt penetrated the victim’s sexual organ with his sexual organ. 

Id. After being charged, Pruitt filed a pretrial writ of habeas corpus alleging that the second 

prosecution “is jeopardy-barred because of the prior acquittal.” Id.

On appeal, the Court of Criminal Appeals agreed that the portions of the new 

counts alleging penetration were barred by double jeopardy because the State made no election 

regarding which incidents of penetration it was relying on for a conviction in the first trial and

because the evidence presented at the prior trial would have allowed the jury to convict Pruitt 

based on the evidence regarding multiple “incidents of penetration” over an extended period of 

time including the new “on or about” dates alleged in the new indictment. Id. at 340, 341, 347.

Regarding the new assault-by-contact allegations, the Court of Criminal Appeals explained “that 

any acts of genital-to-genital contact, which were incidental or ‘subsumed’ within the alleged

incidents of penetration for which appellant was acquitted in the prior trial . . . . would be 

jeopardy-barred” but that “the genital-to-genital contact offenses” in the new indictment would 

not be jeopardy-barred “‘provided . . . that the contact proved [is] distinct from, and not an 

incident of, any act of genital penetration committed by [appellant] against the complainant prior 

to the return of the indictment’ in the prior trial.” Id. at 348 (second alteration in original) 

(quoting Ex parte Pruitt, 187 S.W.3d 635, 640 (Tex. App.—Austin 2006), aff’d, 233 S.W.3d 338 

(Tex. Crim. App. 2007)).
9

In contrast, in this case, Wong was not subjected to a potential double-jeopardy 

violation. The “Double Jeopardy Clause protects criminal defendants from three things: 1) a 

second prosecution for the same offense after acquittal; 2) a second prosecution for the same 

offense after conviction; and 3) multiple punishments for the same offense.” Ex parte Milner, 

394 S.W.3d 502, 506 (Tex. Crim. App. 2013). Although the jury charge did list the count

pertaining to penetration first and specified the jury did not need to consider the count pertaining

to contact if it found Wong guilty of the first count, “those determinations were all made as part 

of the same trial.” See Williams v. State, No. 03-18-00267-CR, 2018 WL 3451635, at *10 (Tex. 

App.—Austin July 18, 2018, pet. ref’d) (mem. op., not designated for publication). In other 

words, the jury was asked to determine whether Wong’s alleged misconduct constituted 

aggravated sexual assault by penetration, aggravated sexual assault by contact, or neither and did 

not authorize the jury to find Wong guilty of both counts. See Crocker v. State, 573 S.W.2d 190, 

197 (Tex. Crim. App. 1978) (explaining that if jury charge contains instructions for alternative 

counts but only authorizes conviction on one count, “[n]o double jeopardy problems are extant 

. . . because the jury returns either an acquittal or a verdict of guilty on one count only”). Wong 

“has not been subjected to a second prosecution after an acquittal or after a conviction,” and he

has not been “subjected to multiple punishments for the same offense because he was only 

punished once when the district court imposed its sentence.” See Williams, 2018 WL 3451635, 

at *10; see Hernandez v. State, 556 S.W.3d 308, 330-31 (Tex. Crim. App. 2017) (on reh’g)

(observing that “there is no multiple-punishment problem” where defendant “was convicted of 

only one offense” but was charged with multiple crimes based on same conduct). Accordingly, 

we cannot agree with Wong’s suggestion that the jury’s failure to convict him of the penetrative 
10

misconduct prohibits this Court from considering the evidence that might pertain to both the 

penetrative misconduct and the inappropriate contact when conducting a sufficiency review.

Although Wong correctly points out that the jury did not find him guilty of 

aggravated sexual assault by penetration but did find him guilty of aggravated sexual assault by 

contact based on the same evidence, “the law does not bar inconsistent verdicts,” Guthrie-Nail v. 

State, 506 S.W.3d 1, 6 (Tex. Crim. App. 2015), and “[i]nconsistent verdicts in prosecutions 

based on the same evidence do not require a reversal on the ground of legal insufficiency,”

Ramirez v. State, No. 04-19-00074—00075-CR, 2020 WL 214776, at *2 (Tex. App.—San Antonio

Jan. 15, 2020, no pet. h.) (mem. op., not designated for publication) (quoting Moore v. State, 

No. 04-12-00490-CR, 2013 WL 3148650, at *1 (Tex. App.—San Antonio June 19, 2013, pet. 

ref’d) (mem. op., not designated for publication). In other words, “if a defendant is acquitted of 

one count and convicted of another based on the same evidence in a single trial, the defendant 

cannot rely on the inconsistent verdicts to attack the defendant’s conviction.” Hernandez, 

556 S.W.3d at 331. An appellate court’s inquiry “is limited solely determining whether there is 

sufficient evidence to support the charge on which a conviction is returned.” Felder v. State, 

No. 03-13-00707-CR, 2014 WL 7475237, at *4 (Tex. App.—Austin Dec. 19, 2014, no pet.) 

(mem. op., not designated for publication). “[E]ach count must stand or fall on its own, and 

when analyzing the sufficiency of the evidence of a particular conviction, we consider all of the 

evidence admitted at trial.” Hernandez, 556 S.W.3d at 331.

Regarding the evidence at trial, evidence was presented establishing that Wong 

was twenty-four years old and that Child was eleven years old at the time of the alleged offense. 

Further, Cousin testified that she observed Wong moving up and down on top of Child while he 

was naked, and Cousin also stated that it appeared that Wong was having sexual intercourse with 
11

Child. Moreover, Mother testified that Child informed her approximately 36 hours after the 

alleged assault that Wong “forced his thing” inside Child even though Child told him to stop and 

that Wong kissed Child on her neck. Additionally, Mother related that Wong told her over the 

phone after the alleged offense that he was sorry for his actions.

2

The sexual-assault-nurse examiner testified that Child stated during the exam that 

Wong put his “thing” inside her, that Child pointed to her genitals when asked to clarify what she 

meant by Wong’s “thing,” and that Wong kissed her neck. Cf. Villalon v. State, 791 S.W.2d 130, 

134 (Tex. Crim. App. 1990) (noting that courts “cannot expect the child victims of violent crimes 

to testify with the same clarity and ability as is expected of mature and capable adults” and 

explaining that record “reflected that the child used anatomically correct dolls to demonstrate 

what she meant” when she used word “this” to describe defendant’s actions); Torres v. State, 

424 S.W.3d 245, 252-53 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (determining that 

even though child victim used “unsophisticated terminology” when describing assault, “she 

offered enough details to support the conviction”).

Testing performed on swabs taken from Child’s neck revealed the presence of a 

DNA profile that was consistent with a mixture of Child’s and Wong’s DNA, and Wong could 

not be excluded as a contributor to the profile. In her testimony, Child explained that Wong got 

on top of her on the night in question, that her clothes were removed, that Wong was moving 

while he was on top of her, that his body was touching her body, that his penis touched her 

2 To the extent that Wong argues in this issue that the portion of Mother’s testimony

regarding Child’s outcry is unreliable, we note that appellate courts must consider “all the 

evidence admitted at trial before deciding whether there was sufficient evidence to prove the 

element of the offense in dispute.” Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990)

(determining that appellate court erred by failing to consider outcry testimony in sufficiency 

review after first determining that outcry was unreliable).
12

vagina, that Wong hurt her vagina, that “the sex” hurt her, that sex involves body parts from a 

man and a woman, and that Wong raped her. Cf. Tex. Code Crim. Proc. art. 38.07 (stating that 

conviction for aggravated sexual assault of child “is supportable on the uncorroborated testimony

of” child victim); Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—Houston [1st Dist.] 2013, 

pet. ref’d) (determining that child victim’s testimony “is alone sufficient to support appellant’s 

conviction for sexual assault of a child”).

Given our standard of review and in light of the record before this Court as well 

as the reasonable inferences that can be made from that record, we must conclude that a rational 

jury could have concluded that Wong intentionally or knowingly caused his sexual organ to 

contact Child’s sexual organ. See Tex. Penal Code § 22.021(a). To the extent that Wong suggests

that the evidence could also support conflicting inferences, we must conclude that the jury

resolved those inconsistencies in favor of Wong’s conviction and defer to that determination. 

Accordingly, we conclude that the evidence was legally sufficient to support Wong’s conviction 

for aggravated sexual assault and overrule his first issue on appeal.

Outcry Testimony

In his second issue on appeal, Wong contends that the district court erred by 

admitting outcry testimony from Mother. See Tex. Code Crim. Proc. art. 38.072 (setting out 

procedure for admission of outcry testimony). Although Wong acknowledges that a hearing 

was held outside the presence of the jury regarding the admissibility of the outcry testimony 

as required by the Code of Criminal Procedure, he contends that the district court erred by 

concluding that the outcry testimony was reliable. See id. art. 38.072(b)(2); see also Gonzales v.

State, 477 S.W.3d 475, 479 (Tex. App.—Fort Worth 2015, pet. ref’d) (listing nonexhaustive 
13

factors for trial courts to consider when deciding reliability of outcry statement). As support, 

Wong points to testimony given by Mother during the 38.072 hearing in which she related that 

Child repeatedly denied that anything inappropriate happened and that Child only made an 

outcry of sexual assault after Mother “kept asking” Child what happened. Further, Wong notes 

that when the district court found the outcry to be “sufficiently reliable for these purposes,” it 

also commented that “there’s some question there.” For these reasons, Wong urges that the 

“circumstances of that outcry statement . . . warrant[ed] its exclusion as unreliable.”

3

Even if the district court erred by admitting the outcry testimony, we would be 

unable to conclude that Wong was harmed by the admission of that evidence. The erroneous 

admission of evidence, including outcry testimony, is considered a non-constitutional error. See 

West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort Worth 2003, pet. ref’d). For non-constitutional 

3

In his brief, Wong also mentions that the district court made its decision regarding the 

admissibility of the outcry testimony without allowing him the opportunity to cross-examine 

Mother. But Wong did not object to the district court’s decision to make its ruling before he was 

allowed to cross-examine Mother. Cf. Lopez v. State, 200 S.W.3d 246, 256 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d) (explaining that defendant “waived appellate review” of 

issue asserting that trial court erred by limiting his cross-examination of witness). At the 38.072 

hearing, Wong did assert that admitting the outcry testimony would violate “the confrontation 

clause.” To the extent that Wong’s brief can be read as presenting a confrontation-clause 

issue, we note that Child was called to testify as a witness during the trial and that Wong 

cross-examined her about her outcry. Accordingly, even if Wong presented a confrontation 

claim on appeal, we would be unable to conclude that any confrontation violation occurred. See 

Beckham v. State, 29 S.W.3d 148, 153 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)

(finding “no violation of the confrontation clause” regarding admission of outcry testimony 

where “appellant had an opportunity to cross-examine A.B. on her outcry statement”); Fetterolf 

v. State, 782 S.W.2d 927, 931 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d) (determining 

that admission of outcry testimony under article 38.072 did not deprive defendant of right to 

confront witnesses where “the complainant . . . provided live testimony at trial on direct 

examination and she was cross-examined at length by appellant’s defense counsel”); Rodriguez v. 

State, 762 S.W.2d 727, 731 (Tex. App.—San Antonio 1988, pet. dism’d) (finding no confrontation

violation related to admission of outcry testimony where “complainant was called to testify by 

the State, and appellant, in fact, cross-examined the child”).
14

errors in criminal cases, the error must be disregarded unless it affected the defendant’s 

substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is not affected “when, after 

examining the record as a whole, the reviewing court has a fair assurance that the error did not 

influence the jury or had but a slight effect.” McDonald v. State, 179 S.W.3d 571, 578 (Tex. 

Crim. App. 2005). If the same or similar evidence is admitted during another portion of the trial 

without objection, “the improper admission of the evidence will not constitute reversible error.”

West, 121 S.W.3d at 104.

4

4 On appeal, Wong suggests that the admission of the outcry testimony in this case was 

constitutional error and subject to the harm analysis under Rule 44.2(a) of the Rules of Appellate 

Procedure because the admission of the unreliable evidence deprived him of his right to due 

process. However, during the article 38.072 hearing, Wong did not make any due-process 

objections regarding the outcry evidence and instead urged that the admission was improper 

because it was hearsay and because, as set out previously, it violated his right to confrontation. 

See Cooke v. State, Nos. 12-03-00183—00184-CR, 2004 WL 1253306, at *2 (Tex. App.—Tyler 

June 9, 2004, no pet.) (mem. op., not designated for publication) (concluding that objection on 

basis that outcry “was not reliable” due to mother’s questioning of victim “did not preserve error 

on constitutional or due process grounds”); see also Holland v. State, 802 S.W.2d 696, 699 (Tex. 

Crim. App. 1991) (observing that “it is incumbent upon the accused to object on the basis of . . . 

due process” when challenging admission of outcry testimony under article 38.072). Although 

Wong did present arguments regarding his due-process rights during the hearing on his motion 

for new trial, he did not present these arguments during the article 38.072 hearing or during the 

trial. See Tex. R. App. P. 33.1(a); see also Colone v. State, 573 S.W.3d 249, 260 (Tex. Crim. 

App. 2019) (explaining that “[a] defendant may not raise a matter for the first time in a motion 

for new trial if he had the opportunity to raise it at trial”); Alexander v. State, 137 S.W.3d 127, 

131 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (determining that presenting due-process 

claims for first time in motion for new trial “forfeited any error premised on those grounds”

because defendant did not “make a timely, specific objection, at the earliest opportunity and 

obtain an adverse ruling”); Beckham, 29 S.W.3d at 153 (noting that there may be circumstances 

in which admission of outcry statement could deprive defendant of due process but explaining 

that “a defendant must make a proper and timely objection at trial to preserve this kind of claim 

for appeal” and that failure “to object when the evidence is offered waives the complaint on 

appeal”). In any event, we have not been pointed to any authority standing for the proposition that

any alleged error in the admission of outcry evidence under article 38.072 in the circumstances 

present here “is ‘constitutional error’ subject to a more stringent harm analysis under the Texas 

Rules of Appellate Procedure.” See Citizen v. State, No. 13-14-00379-CR, 2015 WL 513367, at *9

n.12 (Tex. App.—Corpus Christi Feb. 5, 2015, no pet.) (mem. op., not designated for publication).
15

During the trial, Mother testified that Child made an outcry of sexual abuse and 

told mom that Wong “forced his thing in” her even though she told him to stop, that Wong 

kissed her on her neck, that she tried to push Wong away, that Wong forced himself on her, and 

that Wong threatened to hurt Mother and her if Child told anyone. Similarly, the sexual-assaultnurse examiner testified that Child told her that Wong kissed her on her neck and “put his thing 

inside of” her, and Child testified that Wong got on top of her while she was naked, that Wong 

moved his body while he was on top of her, that his penis touched her vagina, that “the sex” hurt 

her, that she did not want Wong to engage in that behavior, and that Wong raped her.

Because Mother’s testimony regarding Child’s outcry was similar to the 

testimony that Child and the nurse examiner provided, any potential error from the admission of 

the outcry testimony was harmless. See Moody v. State, 543 S.W.3d 309, 314 (Tex. App.—

Eastland 2017, pet. ref’d) (deciding that any error in admission of outcry testimony was harmless 

where “[t]he victim testified before the jury without objection to the same facts contained in the 

outcry”); Zarco v. State, 210 S.W.3d 816, 833 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

(determining that erroneous admission of outcry testimony was harmless where child “testified in 

detail about the abuse” and provided “the same testimony [the outcry witness] gave regarding the 

abuse”); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) 

(concluding that any error from admission of outcry testimony was harmless because victim 

testified at trial that defendant sexually abused her and because testimony regarding statements 

that victim made to nurse was also presented).

Accordingly, we overrule Wong’s second issue on appeal.
16

CONCLUSION

Having overruled both of Wong’s issues on appeal, we affirm the district court’s 

judgment of conviction.

__________________________________________

Thomas J. Baker, Justice

Before Chief Justice Rose, Justices Baker and Triana

Affirmed

Filed: March 27, 2020

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