COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00168-CR

JACAB AUSTIN BRITT APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

TRIAL COURT NO. CR16-00091

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MEMORANDUM OPINION1

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Appellant Jacab Austin Britt appeals from his conviction for aggravated 

sexual assault of a child younger than six years of age and from the resulting 

forty-year sentence. In a single issue, he asserts that the trial court abused its 

discretion by admitting cumulative outcry testimony. Because either the trial 

 

1See Tex. R. App. P. 47.4.
2

court did not abuse its discretion or any error was harmless based on the 

admission of similar evidence elsewhere, we affirm the trial court’s judgment.

In mid-December 2015, four-year-old Megan Smith2told her stepmother 

that “her tee tee was hurting” and was red, making an unspecified outcry 

statement and naming her mother’s boyfriend—Britt. Megan’s stepmother called 

the police, who sent Megan to a sexual-assault nurse examiner for a physical 

exam. Megan told the nurse examiner that Britt had put his fingers between her 

legs, which the nurse examiner contemporaneously wrote down:

I was in the bathtub and I was red on my tee tee—points to between 

legs. Says and this is my butt—points to behind her on butt. [Britt] 

did this and says I was trying to put my clothes on and he wouldn’t 

let me. He did this and says he put his fingers here—points between 

legs and it really hurt. I told him to stop but he wouldn’t listen. He 

kept doing it. He asked me if he could touch my tee tee—I said no & 

he didn’t listen. It was his fingers—I had no clothes on. 

During the nurse examiner’s physical exam, she noted that Megan had “bright 

red irritated skin on [her] labia majora[] bilaterally.” The nurse examiner later 

explained that the bright redness was on the inside portion of Megan’s labia 

majora, which could have been caused by sexual abuse, “rubbing of panties, 

detergent changes, bubble bath, . . . a number of things.” After the sexualassault exam was completed, the police sent Megan to speak with a forensic 

interviewer. Megan told the forensic interviewer that Britt “put his finger inside 

her tee tee, and tapped it inside her tee tee” in the bathtub at her mother’s house. 

 

2We use fictitious names to refer to the complainant and her family 

members to protect her identity. See Tex. R. App. P. 9.8 & cmt., 9.10.
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Megan stated that “it felt bad and that it hurt her tee tee on the inside.” The 

forensic interviewer determined that Megan was referring to her vagina by using 

the words “tee tee.” 

A grand jury indicted Britt with the first-degree felony offense of

intentionally or knowingly causing the penetration of Megan’s vagina with his 

finger. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B), (e), (f)(1) (West 

Supp. 2017). At trial, the nurse examiner read her written report to the jury, but 

incorrectly read “he put his fingers in here” instead of “he put his fingers here” as 

written in the report. The nurse examiner’s contemporaneous, written report was 

admitted into evidence. The forensic interviewer later testified (over Britt’s 

hearsay objection that the interviewer was not the proper outcry witness) that 

Megan stated Britt put his finger inside her “tee tee.” Megan, who was almost six 

at the time of the trial, briefly testified and “nod[ded] affirmatively” when asked if 

she had told her therapist “about some things that . . . people have done to you.” 

But she nodded her head “negatively” when asked if she had “ever told people 

about somebody touching you in a bad place” or if she knew Britt. The jury found 

Britt guilty of aggravated sexual assault of a child younger than six and assessed 

his punishment at forty years’ confinement. 

On appeal, Britt asserts that the trial court abused its discretion by allowing 

the forensic interviewer to testify to Megan’s interview statements because the 

nurse examiner had already testified to the same facts and had been the 

appropriate outcry witness. See generally Tex. Code Crim. Proc. Ann. art. 
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38.072, § 2 (West Supp. 2017) (allowing admission of hearsay, outcry statement 

under specific guidelines). Britt is correct that we review the trial court’s 

admission of Megan’s outcry statements to the forensic interviewer for an abuse 

of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990);

Schuster v. State, 852 S.W.2d 766, 768 (Tex. App.—Fort Worth 1993, pet. ref’d). 

But we conclude that the trial court did not abuse its broad discretion.

The forensic interviewer was the initial person to whom Megan described 

the indicted offense of aggravated sexual assault by penetration; therefore, the 

interviewer’s testimony was admissible under article 38.072. See Tex. Code 

Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A). Megan’s earlier statement to the 

nurse examiner revealed only sexual contact and did not clearly allege

penetration. We recognize that the nurse examiner incorrectly read the word “in” 

into her report; but, this merely reinforces that Megan’s statements to the nurse 

examiner were, at best, unclear on the issue of penetration, which was the 

alleged offense. Cf. Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.—Houston 

[14th Dist.] 2010, pet. ref’d) (recognizing statement that raised inference of 

penetration did not clearly describe alleged offense of sexual assault by 

penetration under article 38.072, section 2(a)(1)(A)). In admitting the forensic 

interviewer’s testimony under article 38.072, the trial court recognized that the 

nurse examiner did not include penetration in her written report, while Megan 

consistently told the forensic interviewer that Britt penetrated her vagina with his 

finger. Accordingly, the trial court did not abuse its discretion by allowing the 
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forensic interviewer to testify because Megan’s first clear outcry regarding 

penetration was to the forensic interviewer. See Garcia, 792 S.W.2d at 91; 

Ruedas v. State, No. 11-13-00049-CR, 2015 WL 9584002, at *4 (Tex. App.—

Eastland Dec. 31, 2015, pet. ref’d) (mem. op., not designated for publication); 

Josey v. State, 97 S.W.3d 687, 693 (Tex. App.—Texarkana 2003, no pet.).

But even if the forensic interviewer was not the proper outcry witness 

under article 38.072, rendering her testimony inadmissible hearsay, the

admission of her testimony did not affect Britt’s substantial rights and must be 

disregarded. See Tex. R. App. P. 44.2(b). Megan’s counselor testified that 

Megan reported that Britt “touched her tee tee and that it hurt.” Britt did not 

object to the counselor’s testimony. And Britt does not argue that the nurse 

examiner’s similar testimony was erroneously admitted. Because similar 

evidence to the forensic examiner’s testimony either was not objected to or was 

not erroneously admitted, we would be compelled to conclude that any error in 

the admission of the forensic interviewer’s cumulative testimony was harmless. 

See Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986); Couchman 

v. State, 3 S.W.3d 155, 160–61 (Tex. App.—Fort Worth 1999, pet. ref’d). 

Accordingly, we overrule Britt’s issue and affirm the trial court’s judgment. 

See Tex. R. App. P. 43.2(a).
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/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: GABRIEL, KERR, and PITTMAN, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: May 24, 2018