### 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 DISTR ICT COURT OF TRAVIS COUNTY NO. D - 1 - DC - 15 - 302712 , THE HONORABLE P. D AVID WAHLBERG, JUDGE PRESIDI NG

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

Chri stopher M. W ong was charged with two counts of aggravated sexual assault of a child

. See T ex. Penal Code § 22 .021. 1 T he jury found Wong guilty of the secon d count , and Won g was sent enced to fifteen years ’ i mprison ment. S e e id. § 12.32

. In two issues on ap peal, Wong challenges the sufficiency of the evidence supporting his conviction and argues that the dist ric t court erred by admitting testimony from an out c ry wit ness. We will affirm the di strict
court ’ s jud gment of convi ction.
BACKGROUND

Wong was charged with alterna tiv e counts of aggrava ted sexual assault of a child allegedly occurring on t he same day

. See T ex. Penal Code § 22 .021

. T he first cou nt alleged that

1 The i ndict ment also alle g ed two c o un ts of indecency with a child by contact and t wo c ounts of i ndecency with a child by exposure

. See Tex. Penal Code § 21.11. However, the State ab andoned th o se counts before voir dire

.2

Wong penetrated C hil d ’ s female sex ual o rg an with his sexu al or gan , and the second count alleged tha t Wong contacted C hild ’ s female sexual organ wi th his sexual organ

. At the time of the all eged misconduct , Wong was 24 years old, and C hild was eleven years old. The following summary comes f

rom the test imony and other evidence presen ted a t trial. In the months leading up to the night in question , C hild was living with her

mo ther , her adult sister, and her infant brother . Child ’ s cousin would some times spend the night with the f amily af ter fi n ishing work

. On those occasion s , C ousin would either sleep downstairs on the couch or slee p in C hild ’ s room. Prior to the night in question, M other had been working at a laund romat where she met Wong

. M other a llowed Wong, th en homeless, to stay i nsi de t he laund romat while she worked

. When her children came to her work one day, M other introduced her children to Wong. A f ter the t wo met, Wong and S iste r began dating, and Wong would regularly spen d the night at the family ’ s home.

On the night i n qu estion , M other and S ister wanted to go out to eat, but C hild
wante d to stay home and finish p l aying a video game with Wong in her b edroom. Mother agreed
to a llow C hild to stay with Wong while the rest of the family went out to eat. After M other, S ist e r, and B r other left, C ousin arrived at the home after finishing her work shift. When she arrived, C ousin did not think anyone was home be cause no one was downsta irs, and she headed upstairs toward th e bedrooms and heard a female ’ s voi ce . Af ter hearing th at, C ousi n pe aked into C hild ’ s bedroom, realized that C hild was the person who se voice she heard , saw Wong ’ s naked butt moving up and down while he was on top of C hild, and saw one of C hild ’ s legs wrapped around Wong ’ s leg . At trial, C ousin testi fied th at it appe a red as though Wong was having sex with C hild

.3 After seeing Wong and C hild in the b edroom, C ousin repeatedly called M other and S ister on th e ir cell phones and told them to come home

. When M other and S ister returned home, C ousin told M other w ha t s he saw. Upon hearing this, M other becam e upset , did no t want to beli eve that it happened , and asked C hild and Wong what ha ppened. Both C hild and Wong denied that any thing happened, and M other told Wong to leave the house

. After Wong left, M other to ok C h ild to t he hospital. Mother testified that she told the treating medical personnel that she was worried that C hild had been assaulted, but C hild testified that she did not tel l the ho spital personnel what happened. At tria l, C hild related that a doc to r e xamined her vagina and said that everything was fine, and M other explained that the hospital personnel stated that C hild ’ s vagina was irr itated but that not hing had been forc ed inside her vagina.

Later the next day, M oth er asked C hild again if som et hin g happene d , and C hild stated that Wong kissed he r 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 h e told her that he would hurt M other and her if C hild told anyone. After C hild to ld M o ther wh a t happened, M other called the police. W hen the police arrived, they questioned C hild and then transported her and M oth er to the hospital so th at a sexual

- assault

- forensic exam could be p erformed.

During the e x am , C hild informed the sexu al

- as sa ult

- 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, C hild pointed to her gen itals when asked to clarify what she me ant by Wong ’ s

“ thing ” and told the nu rse ex ami ne r tha t it felt like she “ poppe d [her] cherry

. ” In addition, the nurse examiner found that there was a trans ection or laceration to C hild ’ s hymen and explained that although she could not state what cau sed the trans ection, the injury was consistent wi th C h ild ’ s des c ription of what occurred the previous night

. T he nurse examiner did not see any4

tra uma to C hild ’ s vagina, perineum, or anus

. W hen discussing C hild ’ s first visit to the hospital, the nurse examiner testified tha t the records indicated tha t C hi ld did not m ake an outcry of sexual abuse and instead complained about it chiness on her vagina. Additionally , the nurse examiner obtained swabs from C hild ’ s neck and other body parts. Testing performed on the swab from C hi ld ’ s neck revealed the pres en ce of male DNA , s howed the pres ence of a mix ture of DNA from th ree people, did not exclude Wong as a pot ential contributor, and established that it was

“ 135 trillion times more likely that the DNA came from [ C hild], . . . Wong, and one unknow n individual t han if the DNA came from [ C hild ] and two unrelated u nknown individuals. ”

When the exam was ove r, M other and C hild went home, and M other called Wong on the phone and placed the call on speaker phone so that C hild could hear and participate in the

con v er s at ion. During t h e phone call, Wong rep eat edly said that he was sorry and “ didn ’ t mean to do it. ” At trial, C hild testified that Wong touched he r l eg on the night in question after M other and S ister left the house, that he r clothes were removed, tha t he got on top of he r , that his penis touched her vagin a, and that he was moving while he was on top of her. Fur ther, although C hild explained tha t she was not paying attention when asked if Wong ’ s penis went inside her vagina, C hild testified that Wong ’ s act ions were physic a lly hurti ng her vagina, that she had never experienced anything like that before, that “ the sex ” is what caused her to feel pain, tha t sex involves body parts from a man an d a woman, and that what happened w as rape.

In his case in c h ie f, Wong called Dr. Carrie Edwards to the stand. Dr. Edwards testified that the sexual

- assau lt

- e xam records showed that there was a complete transection of C hild ’ s hymen likely caused by blunt forc e trauma . However, she als o s tated that she would

ex pec t t o see scabs, “ redn e s s, swelling, and bleeding ” i f the injury occurred at the time described5

by C hild b ut t hat her review of the medical records did not show the presence of those types of
trauma. Moreover, she related that she observed the prese nce of sca r tissue in the ph o tos taken during the forensic exam and describ ed th e injury as old and going through the healing process

. Furthe r, Dr. Edwards noted that the records f rom the first hospital tri p indicated that a full

exa mination of C hild ’ s gen itals wa s performed but did n ot list any trauma other than redness, which a bacterial or yeast infection could have cau sed . Dr. Edwards opined that if a complete
trans e ction had occurred just befor e the first hospital examin ation, she would expect there t o be

e ntr ies in the record c o ncerning 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 trans e cti on occurred during the alleged assault and th at she was “ 99.99 p erc ent confi dent that [ the injury to C hild ’ s hymen ] did not occur during that time fr ame . ”

After considering the evidence pre sented at trial, the jury found Wong guilty of the seco nd count pertaining to cont act with C hild ’ s sexual organ

. Wong appeals his conviction.
DISCUSS I ON In his f irst issue on appeal, Wong asserts that the evidence presented at trial was insufficient to support his conv iction . In his second issue on appeal , Wong argues that the dist ri ct court erred by allowing M other t o testif y a s an outcry witness

. Sufficiency of the Evidence

Under a legal

- sufficiency s t andard of r eview, appellate courts view the evidence in the light most favora ble t o t he verdict and dete r m ine whether “ any rational trier of fa ct c oul d have found the essentia l elements of the crime beyond a reasona ble doubt.” Jackson v. Virginia , 443 U. S . 307, 319 (1979). When performing this review, an appellate cou rt must bear in m ind6

that it is the fac t f

inder’s duty to weigh the evidence, t o re sol ve conflicts in the testi m ony, and to make “reasonable in ferences from basic f acts to ultimate facts.” I d

. ; see also Tex. Code Crim. Proc. art. 3 6.13 (explaining that “ju ry is the ex clusi ve judge of the facts” )

. T he factfinder is “ free to apply co mmon se nse, knowledge, and exper i ence gained in the ordinary a ffairs of life in drawing reasonable inferences fr o m the evidence. ” Eustis v. State , 191 S .W.3d 879, 884 (Tex. App.

— Houston [14 th Dist .] 2006, pet. ref ’ d)

. A ppellate courts must “determine whe ther th e necessary inferences ar e reasonable based up on the combined an d c umulative force of all the evidence wh e n viewed in the light most favorable to the verdict.” Hooper v. State , 214 S .W.3d 9 , 16

- 17 (Te x. Crim. App. 2007). Furthermore, appellate cou rts pre sume that conflicting inf e rences were resolved in favor of the c onv iction and “defer to that determinatio n .” Clayton v. State , 235 S.W.3d 772, 77 8 (Tex. Crim. App. 2007). In a dditio n, cour ts must bea r in mind that “direct and circumstantial eviden ce a re treated equally” and that “[c]ircumstantial ev idence is as proba tiv e as direct evidence in establishing t h e guilt of an actor” and “can be suffici ent” on its

ow n “to establish g uilt.” Kiffe v. State , 361 S.W.3 d 104, 108 (Tex. App.

— Houston [1st Dist .] 2 011 , pet. ref’d). The evide n ce is legally insuff icient if “the rec ord contains no evidence, or merely a ‘mo d icum’ of evidence, probative of an eleme nt of the offe nse” or if “the e videnc e concl usively est ablishes a reasonable doubt.” Id. at 107 ( quoti ng J ack son , 443 U.S. at 320). U nder the Penal Code, an individual commits the offense of aggravated sexual assault of a child if he “ intentionally or knowingly

. . . causes the penetrati on of the

. . . sexual orga n of a child by any mean s ” or “ causes the s exu al organ of a child to cont a ct
. . . the

. . . sexual organ of another person, including the actor ” if “ the victim is younger than 14 years of age, regardless of whether the person k nows the age of the victim at the time of the o ffense

. ” Tex. Penal Co de § 22.021(a). Consistent wit h the P enal Code, the jury charge in this case7

specified that Wong committed the offense of aggrav ated sexual assault of a chil d if he intentionally or kn o wingly (1) penetrated C hild ’ s sexual organ with his sexual organ or (2 ) c on tac t ed C hild ’ s sexual orga n with his sexual organ. F urther , the charge explained that if the jury found Wong guilt y of the f irst count, it did not need to consider the secon d coun t. At the end of the guilt

- or - innocence phase, the jury found Wong gui lt y of count two.

When presen t ing his suf ficiency challeng e, Wong argues that the evidenc e presented at trial was insufficient to establish pen etration of C hild ’ s se xual organ because it was based on an unreliable outcry statement to M o ther, because C hild ’ s s tatements to the nurse

exa m iner and her testimony were vague regarding what allege dly occurred, and because the photographs taken during the sexual

- assau lt exam and the testimony f rom Dr. Edwards all
esta blished that no penetration occurred on the night in question . Building on th a t premise, Wong argues that the re was also ins ufficient evidence of contact because the State pres ented no evidence to prove “ any contact other th an the alleged penetratio n. ” Stated differently , Wong contends that the e vid ence must also be insufficient t o e stablish contact becaus e double jeopardy pr ohibits the S tate from pursuing “ charges for sexual assault by contact where ” the re is no

“ evidence o f a dis crete and distinc t contact separate from

. . . penetration ” and “ wh ere a d efend ant is acquit ted of sex u al assault by penetration

. ”

As support for his arguments, Wong points to Ex parte Pruit t , 233 S.W.3d 338 (Tex. Crim. App. 2007), but we find that c as e to be distinguis hable. In that case , Pruitt was charged with one count of sexual assault and on e coun t of aggravate d sexual assa ult involving the penetration of the same child victi m ’ s vagina. Id. at 3 40

. Altho ugh the indictment provided two dates for which the offenses o ccurred “ on or about, ” id. , evidence was prese nted du ring the trial regarding multi p le penetrativ e acts over an extended period of time , id. at 340

- 42. At the8

end of the trial, “ [t]he jury acquitt ed appellant of both counts. ” I d. at 343. Following Pruitt ’ s acquittal , the State charged him with two counts of sexual assault of the same v ictim with di fferent “ on or about ” dates. Id. Each co unt contained a paragraph alleging that Pruitt committed t he offense by making his sexual organ contact the victim ’ s sexual organ and a separate paragraph alleging that P ruitt penetra ted the victim ’ s s exual organ w ith his sexual organ

. Id. After being cha rged, P ruitt filed a pretrial writ of habeas cor pus alleging tha t the second prosecu tion “ is je opardy

- barred beca use of the prior acquittal. ” Id.

On appeal, t h e Court of Criminal Appeals agreed that t he portions of the new

c ounts alleging penetration were barred by double jeopardy because the State mad e no election regarding which inciden ts of pe netration it was rel ying on for a conviction in the first trial and becaus e the evidence presented at the p r ior trial would have allowed the jury to convict Pruitt ba sed on the evidence regarding multiple “ incidents of penetra ti on ” over an extended period of time includ ing the new “ on or about ” dates alleged in the new in dictmen t. Id. at 340, 341, 347. R egardi n g 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 wh ich app e llant was acquitted in the prior t rial . . . . would be jeopardy

- barred ” but that “ the ge n i t al

- to

- genital contact offenses ” in the new indictment w ould

n ot be jeo pardy

- barred “ ‘ provide d . . . that the contact proved [is] dist inct f r o m, and not an i ncident of, any act of genital penetratio n committed by [appellant] against the complainant prio r to the return of the indictment ’ in the prior trial. ” Id. at 3 48 (second alteration in origin al) (quoting Ex parte Pruitt , 187 S.W.3d 635, 640 (Tex. App

. — Aus tin 200 6), aff ’ d , 233 S.W.3d 338 (Tex. Cr i m. App. 200 7) )

.9 In contra st, in this case, Wong was not subjected to a potential d ouble

- jeopardy violatio n. The “D ouble Jeopardy Clause protects criminal defendants from three things: 1) a second prosecution f

or the same offense after acquittal; 2) a s e cond prose cution for the same offense after conviction; and 3) multiple punishments for the same offense.” Ex parte Milner , 394 S.W.3d 502, 506 (Te x. Crim. App. 2013 ). Although the jury charge did list the coun t perta ining to penetrat ion first and speci f ied the jury did not need to consider the count pertaining
to contact if it found Wo ng guilt y of the first count, “ th ose determinations w ere all mad e as part of the same trial. ” See Williams v. State , No. 03

- 18

- 00267

- C R, 2018 WL 3451635, at *10 (T ex. App

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

. I n ot her words, the jury was asked to determine whether Wong ’ s alleg ed mis con duct constituted aggravated sexual assault by penetrati on, agg ravated sexual assault by contact, o r neither and did
not au thorize the jury to find Wong guilt y of both counts

. See Crocker v. State , 573 S.W.2d 190, 19 7 (T ex. Crim. App. 1978) (expla ining that if jury charge contains instructions for alternative
counts but only authorizes conviction on on e count, “ [n ] o double jeopardy problems are ext a nt

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

. Wo ng

“ has not been subjected to a second prosecution after an acqu ittal o r af ter a convi ction, ” and he has no t been “ subjected to multiple punishments for the same offense because he was o nly punished once when the di strict court i mposed it s sentence. ” See Will iams , 2018 WL 3451635, at *10 ; see Hernandez v. State , 556 S .W.3d 308 , 3 30

- 31 (T e x. Crim. Ap p. 2017) (o n reh ’g) ( observing that “ ther e is no multiple

- pu nishment problem ” where defendant “ was convicte d of only one offense ” but was charged with multiple crimes based on same co nduct)

. Accordingly, we cannot agree wit h W ong ’ s suggestion that the jury ’ s fai lure to convict him of the penetrative10

misconduct prohibits this Co urt from considering the eviden ce that might pertain to both the penetrative m isconduc t and the inappropriate contact when conducting a sufficiency re vie w.

Although Wong correctly points out t hat the jury did not find him guilty of aggravated sexual assault by penetration but did find h im guilty of a ggravated sexual assault by
contact based on t he same evidence, “ the law does not bar inconsis tent ve rdicts , ” Guthrie

- Nail v. State , 506 S.W.3d 1, 6 (Tex. Crim. App. 2015) , and “ [i]nconsistent verdicts in prosecutions based on t he same ev idence do not require a reversal on the ground of legal insufficiency, ” Ramirez v. State , No. 04

- 19

- 00074

— 00075

- CR, 202 0 WL 214776, at *2 (T ex. App.

— S a n Antonio Jan

. 15, 2020, no pet. h.) (me m. op., not designated for publication) (quoting Moore v. State , No. 04

- 12

- 00490

- CR, 2013 WL 3148650, at *1 (T ex. App.

— San Antonio June 19, 2013, pet. ref ’ d) (mem. op. , not des ign ated for publication). In other wo rds, “ if a defe n dant 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 , 55 6 S.W.3d at 331

. A n app ellate court ’ s inquir y “ is limited sole ly determi ning whether t here 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 (T ex. App.

— Austin Dec. 19, 2014, no pet.) (mem. op. , not des ignated 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 t r ial, e vidence was presente d est ablishing that Wong
was t wenty

- four years old and that C h ild was elev en years old at the tim e of the alleged offense. Furt her, C ousin testified that she ob served Wong mov ing up and down on top of C hild while he was naked , an d C ousin also s t ated that it appeared that Wong wa s having sexual intercourse with11

C hild. More over, M othe r testif ied that C hild informed her approximat el y 36 hours after the alleged assault that Wong “ for ced his thing ” i nside C hild even though C hild told h im to stop and
t hat Wong kissed C hild on her neck. Additionally, M o ther related th at Wong told her o ver the phon e after the alle ged offense that he was sorry for his actions

. 2

The sexual

- assault

- nur se examiner testi fi ed that C hild s tated during the exam t hat Wong put his “ thing ” inside her, that C hild pointed to her gen itals when aske d to cla rify what she

m eant by Wong ’ s “ thing, ” and that Wong kissed her neck

. Cf. Villalon v. St ate , 791 S.W.2d 130, 13 4 (Tex. Crim. App . 199 0) (noting that courts “ cannot e x pect the child victims of violent crimes to testify with the same clarity and abi lity as i s expected of mature and capable adults ” and explaining that record “ reflected that the child used anatomical ly correct dolls to demonstrate what she meant ” when she used word “ this ” to descri be defen dant ’ s actions ) ; Torres v. State , 424 S.W.3d 24 5, 252

- 53 (Tex . App.

— Houston [ 14th Dist.] 2014, pet. ref ’ d) (determining that even though c hild victim used “ unsophist icated termin ology ” when describing assault, “ she offere d enough details to suppor t the conviction ” ).

Testing performed on swabs taken fro m C hild ’ s neck revealed the pr esence of a DNA profile that was consistent with a mixture of C hild ’ s and Wong ’ s DNA, an d Won g could not be excluded as a contributor to the pro f ile. In her testimony, C hild exp lained 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 touch in g her body, that hi s penis touched her

2 T o the extent that Wong argues in this issue that the port ion of M o th er ’ s testimony regarding C hild ’ s outcry is unr eliable, we note that appella te courts must consider “ all the evidence admitted at trial before deciding whether there was suffici ent evidence t o prove the element of the of

fense in dispute. ” Villal on v. St a te , 791 S.W.2d 130, 133 (Tex. Crim. App. 199 0 ) (determining that appellate court erred by failing to consider outcry testi mony in sufficiency review aft er first determining that outcry was unr el iable).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 Won g ra p ed her

. Cf. Tex. Co de Crim. Proc. art. 38.07 (stating that conviction for agg ravated s exual assault of ch ild “ is suppo rtable on the uncorrobor a ted testimony

o f ” child victim) ; Johnson v. State , 419 S.W.3d 665, 671 (Tex. App.

— Houston [1st Dist.] 20 13, pet . ref ’ d) (determining that child victim ’ s testimony “ is alone sufficient to suppo r t appe llant ’ s conviction for sexual assault o f a child ” )

.

Give n our standard of review and in light of the record before this Court as well as the reasonable inf

erences that can be made from that record, we must conclude that a rational jury could have conclud ed that Wong int e nt ion ally or knowingly caused his sexual o rgan to
contact C hild ’ s sexual organ

. See Tex. Penal Code § 22.0 21 (a)

. To t he extent that Wong suggests that the evidence could also support conflicting inferences, we must conclude that the jury resolve d those inconsistenci es in favor of Wong ’ s convict i on and defer to that determination. Accordingly, we conclude that the eviden ce was legally sufficient to support Wong ’ s conviction for aggravated sexual assault and overrule his first issue on app eal.
Out cry Testimony

In his second issue on appeal, Won g contends that the district court erred b y admitting o u tcry testimony from M other

. See Tex. Code Crim . Proc. art. 38.072 ( setting out procedure for admission of outcry testimony). Although Won g ackn owledges that a heari ng
was held outside the presence o f the jury regarding the admissibility of the outcry testimony

as required by the Code of Criminal Procedure , he contends that the distr ict court er red by

con cluding that the outcry testimony w as rel iable

. S ee id. art. 38. 0 72(b)(2) ; see also Gonzale s v. S tate , 477 S.W.3d 475, 479 (Tex. App.

— For t Worth 2015, pet. re f ’ d) (listin g nonex haustive13

f ac tors for trial court s to consider when deciding reliability of outcry statement). As support, Wong p oint s to testimony given by M other during th e 3 8.0 72 hearing i n which she related that C hild repeatedly denied that anything inappropria te happened and that C hild only made an outcry of sexual assault after M other “ kept askin g ” C hild what happened. Furthe r, Wong notes that when the district court fo und the outcry t o be “ sufficiently reliable for these purposes , ” it also commented that “ t h ere ’ s some que stion there

. ” F or these reasons, Wong urges that the

“ circum stances of tha t outcry statement . . . war ran t [ed] its exclusion as unre liable. ” 3

Even if the district c o u rt erred by admitting the outcry testimony, we would be unable to conc lude that Wong was h armed by the admission of that evidence. The erroneous admission of evidence, including outcry test imony, is considered a non

- constitutional error. See West v. St a t e , 121 S.W.3d 95, 104 (Tex. App

. — Fort Worth 2003, pet. ref ’ d). For no n - constitutional

3 In his brief, Wong also mention s that the d istri ct c ou rt made its decisi on re garding the admiss ibility of the outcry testimony without allowing him the opportunity to cross

- examine M other . But Wong did not ob je ct to th e distric t court ’ s deci sion to make its ruling before he was all owed to cros s - ex amine M o t he r. Cf. Lopez v. State , 200 S.W.3d 246, 2 56 (Tex. App.

— Ho uston [14th Dist.] 2006, pet. ref ’ d) (explaining that defendant “ waived appellate review ” of issue a sserting that tri al court er red by limiting his cross

- exami nation of witness). At the 3 8.072 he a ri ng, Wong did assert that admitting the ou tcry testimony would viola te “ the confrontation clause. ” To the extent that Wong ’ s brief can be read as present ing a confrontation

- c lause issue, w e note that C hild was called to testify as a witness duri ng the t r ia l and that Wong cross - examined her about her outcry . Accor dingly, e ven if Wong pre sented a confr ontation claim on appeal, we would be unabl e to con clude that any confrontati on vio lation o ccurred. See B eckham v. State , 29 S.W.3d 148, 153 (T ex. App.

— Hou s to n [14th Dist.] 2000, pet. ref ’ d) (finding “ no v iolation of the confrontation clause” regarding adm ission of outcry testimony where “ appellant had an o pportunity to cross

- exa m ine A. B. on he r outcry statement ” ); Fetterolf v. State , 782 S.W .2d 927, 93 1 (Te x . App.

— Houston [14th Dist.] 19 89, pet. ref ’ d) (determining that admission of outcry testimony under article 38.072 did not d eprive defendant of right to confront w itness es wher e “ the complai n ant . . . provided live testimony at trial on direct exa mination an d she was cross

- examined at length by app ella nt ’ s defense counsel ” ) ; Rodriguez v. State , 762 S.W.2d 727, 731 (Tex. App.

— San Antonio 1988, pet. dism’d) (finding n o confrontati on violation r elated to admission of outcry te stimony where “complainan t was ca l le d 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 rig hts. See Tex. R. App. P. 44.2(b). A substantial right is no t affected “when, after examining the record as a whole, the reviewing co urt has a fair assurance that the error did not influence the jury or had but a slight eff ect.” McDonald v. State , 179 S.W.3 d 571, 578 (Tex. Crim. App. 2005). I f the same or similar e vidence is admitted during another porti on o f the trial without objecti on, “ the improper admission of the evidenc e will not constitute reversible error

. ” West , 121 S.W.3d at 104

. 4

4 On appeal, Wong suggests that the admission o f the outcry testim ony in this case was constit utional error and subject to the harm analysis under Rule 44.2(a) of th e Rules o f Appellate Procedure because the admission of the unr el iable evidence deprived him of his right to due process. However, during the article 38.0 72 heari ng, Wong did not make any due

- proces s objections regarding the outcry evidence and instead ur ge d that th e admission was improper because it was h earsay and because, as set out previously , it violated his right to confrontation. See Coo ke v. State , Nos. 12

- 03

- 00183

— 00184

- CR, 20 04 W L 1253306, at * 2 (Tex. App.

— Tyler J une 9, 2004, no pet.) (mem. op., not desi g na ted for publ ication) ( concluding that ob jection on basi s that outcry “ was not reliable ” d ue to mother ’ s questioning of victim “ did not p reserve error on constitutional or du e process grou nds ” ); see also Holland v. State , 802 S.W.2d 696 , 699 (Te x. Crim. A pp . 1991) (observing that “ it i s incu mbent upon the accu s ed to object on the basis of . . . due process ” when chall enging admission of outcry testimony under article 38.072). Although Wong did present arguments regarding his due

- pro cess rights d uring the he aring on his mo tion for new trial , he di d not present t hese arguments during the article 38.072 h earing or during the trial

. S ee Tex. R. Ap p. P. 33.1(a); see also Colone v. State , 573 S. W.3d 249, 260 (Tex. Crim. App. 2019) (explaining that “ [a ] defenda n t may not raise a matter for the first tim e in a motion f or new trial if he had the opportunity to raise it at trial ” ); Alexander v. State , 137 S.W. 3d 127, 13 1 (Tex. A pp.

— Hous ton [1st Dist. ] 2004, pet. r ef ’ d) (determining that presenting due

- proc ess claim s f or first time in motion for new trial “ f orfeited any er ror premis ed on those grounds ” because defendant did not “ make a timely, specific objection, at the earliest opportuni ty an d obtain an adverse ruling ” ) ; Beckham , 29 S.W.3d at 153 (noting th at there m ay b e circumstances in which admission of outc r y statemen t could deprive de fendant of due process but explaining that “ a defendant must make a proper and timely obje ct ion at t rial to pre ser ve this kind of claim for appeal ” and tha t failure “ to ob ject when th e evid ence is offered waives the com plai nt on appeal ” )

. In any event, we hav e not been pointed to any authority standing fo r the proposition that any alleged error in the a dmission of ou tcry evidence under arti cle 38.072 in the circum stances p resent he r e “ is ‘ c onstitutional error ’ subject to a more stringent harm analysis under th e Texas Rules o f Appellate Procedure

. ” See Citizen v. S tate , No. 13

- 14

- 0 0 379

- CR, 2015 WL 51 3367 , at * 9 n.12 ( Tex. App.

— Corpus Christi Feb. 5, 2015, no pet.) (mem. op. , not des i gn ated f or publication)

.15 Durin g the trial, M other testi fie d that C hild made an outcry of sexual a b u se and told mom that Wong “ force d his thing in ” her even though she told him t o stop , that Wong kissed her on her neck, that she tr ied to push Wong away, that Wong forced himself o n her , and that Wong threatened to hurt M other and her if C hild told anyon e . Similarly, the sexual

- assa ult

nurse examiner testified that C hild told her that Wong kissed her on her neck and “ put his thing inside of ” her , and C hild testified that Wong got on top of her whi le s he was naked, that Wong moved his body while he was o n t op of her, that his penis touche d her vagina, that “ the s ex ” hurt h er, that she did not wa nt Wong to engage in that behavior, and that Wong raped her.

Because M o ther ’ s testimony rega rding C hild ’ s outcry was sim ilar to the testimony that C hild a nd th e n ur se examiner provided , any potential error from the admission of
t he outcry testimony was harmless. See Moody v. State , 543 S.W.3d 309, 314 (Tex. App.

— Eastland 201 7 , pet. ref ’ d) ( decid ing that any erro r in admiss ion of outcry testimony was harmless wh er e “ [t]he victim testifie d before the jury without objecti on to the s ame facts contained in the outcry ” ); Zarco v. State , 210 S.W.3d 816, 83 3 (T ex. App.

— Houston [14th Dist.] 2006, no pet .) ( determining that er roneous a dmi ssion of outcry testimony was harm le s s where child “ testified in deta il about the abuse ” and provided “ t he same testimony [the outcry witness ] gave regarding the abuse ” ) ; Duncan v. State , 95 S.W.3d 669, 672 (Tex. App.

— Houst on [1st Dist.] 2002, pet. re f ’ d) ( concluding that any error from ad mi s si on of outcry testimony was harmless beca u se victim testified at t rial that defendant sexually abused her and because testimony regarding statements that victim mad e to nurse was also p resented ).

Accordingly, we overr ule Wong ’ s se cond issue on appe al.16 C ONCLUSION Having ov erruled both of Wong ’ s issues on appeal, we affirm the district court ’ s judgment of conviction.

______________________________________ ____ Thomas J. Baker , Justic e Before Chief Justice Rose, Justices Baker and Triana Affir med Filed: March 27, 2020 Do Not Publish