### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00641
- CR

Christopher Scott Koury, Appellant

v. The State of Texas , Appellee

FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 20-0724-K26, THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDING

O P I N I O N
Appellant Christopher Scott Koury w as convicted by a jury of aggravated sexual
assault of a child and sentenced b y the trial court to thirty years ’ confinement. See Tex. Penal Code § 22.021 (a) (1) , (2 )( B)

. On appeal , K oury contends t hat the trial court abused it s discretion by admitting : (1) testimony from an unlicensed sexual assault nurse examiner ( SANE) , (2) testimony from an unreliable outcry witness , and ( 3) “backdoor hearsay ” statemen ts. We affirm the trial co urt ’s judgment of conviction.

BACKGROUND
Kou ry was indicted for the aggravated sexual assault of his adopted daughter,
Carol Williams. 1 He and his wif e, Rainchild Singingwol f (R ain) , a re the adoptive parents of four

1 Beca u se Williams was a minor at the tim e of the off ense, we will refer to her by a pseudonym in the in terest of p rivacy. See Tex. R. App. P. 9.10(a)(3).2 children , including Williams , whose biological parents left her with the couple when Williams
was app roximately eight years old. At trial, Van Car away , Williams ’ h alf

- brother and Rain ’ s b iological son , tes tifie d that while visiting him in March 2020, Williams , then sixteen, conf ided
i n him that Koury had “ be en touch ing [ her ] in [ h er ] slee p
. ” Car away testified that Williams first disclosed the alleged abuse to him on the night of March 28, 2020. He testified that t he y spoke again at le ngth the followin g day and that she told him that the abuse had beg un when she was twelve year s old, that Koury had touched and licked her vagina while she slept , and that there
had been “ many differ ent instances

. ”
Car away also testified that a fter hearing the allegatio ns , he made th ree phone
calls

— to the William son County Sheri ff ’ s Office (WCSO) ; to Child Pro tecti ve Services ( CPS ) ; and to Rai n
. He further testified that he arranged for Williams to undergo a f orensic interview
and se xual assault forensic examination (S AFE)

. SANE Allison DuBose testified that she performed the SAFE on March 30 , 2020 , and rela y ed statements made by Wil liams during the patient

- history portion of the exam
. DuBose testified t hat her nursing licens e had expired on February 2 8, 2 020 ; that she learned of
the lapse in July 2020 ; and that she was unlic e nsed at the time of Williams ’ S AFE. DuBose explained that on learning that her license had expired, she stopped working and sub mit ted the
necessary pape rwork to the Board of Nursing , which “ retroactively a ctivated [her] license back
wi th no penal ties. ” Eduardo Corona, a f ormer forensic interviewer with the William son County Chi ld Advocacy Center (CAC) , testifie d about Williams ’ i nterview, which was co n ducted the same day

a s the SAFE. C orona de fined the semi

- structured narrative process and testified t ha t Willia ms made an outcry ; that she w as abl e to provide specific details ; and that she described the “ position3 of bodies, ” “ movem ent, ” and “ sensory det ails. ” On cross

- examination, he testified that her demeanor during the intervi ew was calm and that she w as s oft

- spoken , matter

- of

- fact, and did not cry. The State ’ s remaining witnesses included William s ; WCSO Detective Johnny
Guer ra ; and Juli an Hernand ez, a former WC SO forensics detective

. The defense presented testimony from Koury ; Rain; Dr. Benjamin Con forti, a therapi st who saw both Will iams and Rain; Nicole Harris, Rain ’ s friend; Rain and Ko ury ’ s children; Leslie S m ith , a n ado ption work er; and seve ral character witnesses. The jury found Koury guilty of ag gravated sexual assault of a child. Follo wing a hearing on punishment, he was sentenced to thirty years ’ confinement . This appeal foll owed.

DISCUSSION
I. Standard of Re view
We review a trial cour t ’ s decision to admit evidence for an a buse of discretion. Henley v. State , 493 S.W.3d 77, 82

– 83 (Tex. Cri m. App. 2016); see also Dabney v. State , 492 S.W.3d 309, 316 (Tex. Crim. App. 2016). An abuse of discretion does not occur unl ess the
trial court ac ts “arbitrarily or unreasonably” or “with out reference to any guiding rules and principles.” State v. Hill , 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery

v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). In oth er words, we may not r everse the
trial court ’ s ruling unless the “decision falls outside the zone of reasonable disagreement. ”
J

ohnson v. State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see also Henley , 493 S.W.3d at
83. An evidentiary ruling will be upheld if it is correc t on any theory of law applicable to the4 case
. Henley , 493 S.W.3d at 93 (citing De La Paz v. State , 27 9 S. W.3d 336, 344 (Tex. Crim. App. 2009)).

II. SANE Testimony
In his first iss ue, Koury contends that the trial court abused its discre tion by admitting DuBo se ’ s testi mony because she was unlicensed at the time of Williams ’ SAFE

. Citi ng the Tex as Occupations Code , he notes that a person “ may not practice or offer to practice professional nursi ng or vocational nursing in this state unless the person is license d ” and that “ [a] registered nurse who practices professional nursing or a vocational nurse who practice s

vo cational nursing after the expiration of the nurse ’ s license is an illegal practitioner whose license may be revoked or suspend ed

. ” See T ex. Occ. Co de §§ 301.251, .301(b); see also id. § 301.002(3) (definin g “ n urse ” a s “ a person required to be license d un der this chapter to engage in professional or vocational nursing ” ). He argues that because DuBose “ could not have legally
done the exam, any informa tion she obtained during the examination of [Williams] was obtained unlawfully and [was] therefore inad miss ible a s evidence ” under Texas ’ exclusionary rule,
cod ified in article 38.23 (a) of th e Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.

ar t. 38.23 (a)

. Ar ticle 38.23 ( a) provides :
No evidence obtained by an officer or other person in violatio n of any provisions of the Constitution or laws of the State of Texas, or of the Constitution o r laws of the United States of America, shall be admitted in evidence aga inst the accused on the trial of any criminal case.

I

d

.5 For purposes of the article , “ o bta ined ” means that “ evidence is acquired by planned action or effort, or, more specifically, by seizure

. ” Wehrenberg v. State , 41 6 S.W.3d 458,
46 8 (Tex. Crim. App. 2013) . The Cour t of Criminal Appeals has likewise interpreted the article
to mean tha t evide nce is obtained in violation of the law “ only if there is some causal connection between the illegal conduct and the acquisition of e vidence. ” I d. (citin g Roquemore v. State , 60 S.W.3d 862, 870 (Tex. Crim. App. 2001); State v. Daugherty , 931 S.W.2d 268, 2 70 (Tex

. Crim. App. 1996) )

. T hus, n ot every violation of a law will invoke the rule. Jackson v. State , 968 S.W.2d 495, 499 (Tex. App.

— Texa rka na 1998, pet. ref ’d) (citing Roy v. State , 608 S.W.2d 645 , 651 (Tex. Crim. App. [Panel Op.] 1980) )

. Artic le 38.23 ( a) ’ s un derlying purposes are “ to protect a suspect’s privacy, property, and liberty rights against overzealous law enforce ment ” and “ to de ter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecu tion

. ” W ehrenberg , 416 S.W.3d at 458

– 59 ; see Carroll v. State , 911 S.W.2d 210, 221 (Tex. App.

— Austin 1995, no pet.) ( “ The primary purpose of the e xcl usionary statute is to deter
unlawful actions which vio late the rights of criminal suspects. ”)

. The rule may not b e in voked for statutory violations unrelated to these purpos es or to “ the pre vention of the ille gal procurement of evidenc e of a crime. ” Weh renberg , 416 S.W.3d at 459

. Laws that will invoke
the rule “ are those that protect the rights and interes ts of ci t izens from infringement by the
State. ” Jackson , 968 S.W .2d at 49 9. Relatedly , the article does not give standing to raise a constitutional challenge
when another ’ s rights are v iolated, even in the context of article 38.23(a ). Neal v. S tate , 256 S.W.3d 2 6 4, 284 (Tex. Crim. App. 2008) ; Fuller v. State , 829 S.W.2d 191, 201

– 02 (Tex. Crim. App. 1992), over ruled on other grounds by Riley v. State , 889 S.W.2d 290, 301 (Tex.6 Crim. App. 199 3 ) (op . on reh ’ g ) ) ; see Chavez v. State , 9 S.W.3d 817, 819 (Tex. C rim. App

. 2000) ( h olding that appell ant lac ked standing under article 38.23(a) to compla in about seizure of
evidence because it was not obtained in violation of h er rights)

. T he State asserts that Koury failed to preserve th is issue on appeal

. To preserve a compl a int fo r appellate review, there must ordinarily be a timely, specific objection and a ruling by the trial court. Tex. R. App. P. 33.1(a). However, art icle 38 .23(a) “ is not an independent
basis f or objecting to admission of evidence at trial, but rather i s a pr ocedural result which applies after an objection to the admission of evidence has been sustained. ” Polk v. State , 738 S.W.2d 274, 276 (Tex. Crim. App. 1987) . A de fendant need not specifically state the article
in his o bjection t o the admis sibility of evi dence to preserve error under the s tat ute. Id. Rather,

“ [i] f the defendant invokes Texas law, either statutory or constitutional, as grounds for excluding evidence at trial, the provisions of Art [icle] 38.23

. . . are automatically invoked. ” Id

. At t he hea ring on the admissibility of DuBose ’ s testimony, defense counsel
informed the tri al court :
I can tell you all of our objections

. . . . First and foremost, she was not licensed at the time, and in order to use RN, you must be licensed. A r egi st ered nurse who practices nursing after the expiration of her license is an illegal practitioner. In order to be a SANE exa miner, you must have a license, which she did not at the time. She was not qualified to diagnose or treat. She did not do a ph ysi ca l ex am. T his was just simply an interview.

C ounsel ’ s explanation was s ufficient to apprise the tr ial court and State that Koury was challenging the admission of DuBos e ’ s testimony in part because she w as unlicensed
at the time of the exam. See Pena v. St ate , 285 S .W.3d 459, 464 (Tex. Crim. App. 2009)

. Indeed, following counsel ’ s argument, the trial judge clari fied that h e understood “ the argument7 regarding the license issue

. ” Thu s, we conclude that the issue was preserved for appellate
review

. See Te x. R. App. P . 33.1 ; Polk , 738 S.W.2d at 276

. Kour y a rgues that Will iams ’ state ments to DuBose wer e obtained in violation of
sections 301.251 and 301 .301(b) of the Oc cupations Code beca use Du Bose ’ s nursing license w as expired at the time of the SAFE. See T ex. Occ. C ode §§ 301.251, .301(b). He asse rts that the

statemen ts should therefore have been excluded under artic le 38.23( a ). Th is argument is unavailing for t wo r easons. First, Koury does not explain how the alleged violations of sections 301.251 and
3 01 .3 01(b) violated his rights

. He does not assert , nor does the record s how , that William s ’ treatment by an unlicensed nurse impacted his rights , and he therefore lacks standing to complain about any ev idence seized as a result

. See Cha v e z , 9 S.W.3d at 8 19

. He li kewise lacks standing
insomuch as he challe nges the admission of Williams ’ statements on the basis that they were
obtained by violation of her rights. See N eal , 2 56 S.W .3d at 284

. Second , t he l icensing statutes are unrelated to the purpos e s of art icle 3 8.23(a).
See Wilson v. State , 311 S.W.3d 452, 458

– 59 (Tex. Crim. A p p. 2010)

. As mentioned above, the
article principally serves to protect the right s of criminal suspects from the un lawful c ollection of

ev idence in anticip ation of trial. See C arro ll , 91 1 S.W.2d at 221 . By contrast , the Texas Supreme Court has characterized the “ evident purpose ” of the nursing st atute s as ensur ing “ the medical competence and training of thos e persons serv ing as nurs es i n the State. ” Dodd v. Meno , 870 S.W. 2d 4, 6 ( Tex. 1 994)

. And although the licensing requirements identified by Kour y are not specific to SANEs , the purpose of a SAF E

— contrary to his assert ions

— is medical treatment
and diagnosis , not the pr ocurement o f ev idence. See Murray v. State , 597 S.W .3d 9 64, 975 (T ex. App.

— Austin 2020, pet. ref’d) ( expl aining that despi te SANE ’ s certi fication, SAFE “ was for the8 primary purpose of medical treatment ” ); see also United States v. Barker , 820 F.3d 167, 172 (5th
Ci r. 2016) ( sta ti ng that “ SANE [ ’ s] certificat ion d id n ot con vert the essential purpose of her
conversation with [ alleged victim ] fro m medical evaluation and treatment to evidence

- collection, though it may have tended to lead to [defendan t] ’ s prosecution ” bec a use “ [l] ike al l good nurses, [SANE] would hav e acte d with the principal purpose to provide [alleged victim] with medical

care

— whether or not she possessed the SANE certification ”)

. Thus, because sections 301.251 and 301 .30 1(b) are unconc erned with sec uring a criminal suspect ’ s rights against the g ath er ing of evi dence by law enforcement , vi olation s o f th e
statutes do not constitute violation s of the law under article 38.23( a). See Wilson , 311 S.W.3d at
458

– 59 ; see also Pannell v. State , 666 S.W.2d 96, 98 (Tex. Crim. App. 1984) ( determ in ing that
vio lat io ns o f Cod e of Professional Conduct are no t laws contemplated by a rticle 38.23); Roy v.
State , 608 S.W.2d 645, 651

– 52 (Tex. Crim. App. 1980) ( holding that assumed

- name statute had no bearing on undercover police operation an d that officer ’ s failure to com pl y wi th sta tute did
not inv oke article 38. 23 ); Andrews v. State , 29 6 S.W.2d 275, 276 ( Tex. Crim. App. 1956) (finding that fact that physician who conducted vaginal examination of rape complainant was not licensed to practice in Texas did not invoke art icl e 38.2 3(a) a nd render his te stimony concern ing

exam ’ s results inadmissible ); Stockton v. State , 756 S.W.2d 873, 874 (Tex. App.

— Austin 1988, no pet.) ( concluding that articl e 38.23 did not apply to alleged violation of school

- enrollment statute by under c ove r offi cer po sing as high

- sch ool student bec ause purposes served by statute

were “ whol ly unrelated to the purposes of the exclu s ionary ru le ” )

. For these reasons, we overrule his first issue.9 III. Reliability of Outcry Statements
In his second issue, Ko ury con ten d s tha t the trial court abused its discretion by allowing Ca raway to testify as an outcry witness 2 because Williams ’ statements to Cara way were not reliable

. See T ex. Code Cri m. P r oc. a rt. 38 .072 , § 2 (b)( 2).
Article 38.072 of the C o d e of Criminal Pr oce dur e , als o know n as the outcry statute, creates a hearsay exception in the prosecu tion of certain sexual offenses committed against children for the admission of an alleged victim ’ s fir st outcry of sexual abuse to an adult.
Gibson v. S tate , 595 S.W.3d 321 , 3 26 (Te x. App

. — Austin 2020 , no pet

. ) (citing Bays v. State , 396 S.W.3d 580, 581 n.1 (Tex. Crim. App. 2013) ). For a statement to be admissible under

a rticle 38.072 , the trial court must find , in a hearing conducted outside the jury ’ s presence , that
the s tat em ent is rel iable based on its time, content, and circumstances

. Te x. Code Cri m. P r oc. art. 38.072, § 2 (b)( 2)

. “The phrase ‘time, content, and circumstances’ refers to ‘the time the
child’s statement was made to the ou tcry witness, the content of the chi ld ’s s tateme nt, and the circumstances surrounding the making of that statement. ’ ” Broderick v. State , 89 S.W.3d 696, 699 (Tex. App.

— Houston [1st Dist.] 2002, pet. ref’d) (quoting MacGilfrey v. State , 52 S.W.3d 918 , 921 (Tex. App.

— Be aumont 2001, no pet. )). A tr ial co urt has “bro ad discretion ” in admitting outcry

- witness testimony, G arcia v. State , 792 S.W.2d 88, 92 (Tex. Crim. App. 1990) , and

“ [n] either corroboration nor physical evidence is required for an outcry to be determined

re liable , ” Buentello v . S ta te , 512 S. W.3d 508, 51 9 (Tex. App.

— Houston [1st Dist.] 2016, pet. ref’d) (cit ing Gonzales v. State , 477 S.W.3d 475, 479 (Tex. App.

— Fort Worth 2015, pet. ref’d))

.

2 “ [ A] n outcry witness, under Code of Criminal Procedure art. 38.072, is the firs t adult t o whom a child or disabled individual describes being the victim of certain crimes, includi ng many sexual crimes. ” Sanchez v. State , 354 S.W.3d 476, 479 n.1 (Tex. Crim. App. 2011).10 In reviewing reliability determinations, s ome cou rts of appeals have adopted
el even “ indi cia o f re l iabil ity ” initially formulated by our sister court in Buckley v. State : 3
( 1) whether the victim testifies at the trial and admits making the out

- of

- court statement; (2) whether the child is of a level of maturity to understand the need to tell th e t ru th a nd to have the ability to observe, recollect, and narrate; (3) whether th e child’s out

- of

- court statement is corroborated by other evidence; (4) whether the child’s out

- of

- court statement was spontaneously made in the child’s o wn terminology or wh eth er the re is evid ence of prior prompting or manipulation by adults; (5) whether the child’s out

- of

- court statement is clear and unambiguous and rises to the needed level of certainty; (6) whether the statement is consistent; (7) wheth er the statement des cri be s an event tha t a child of his or her age could not be expected to fabricate; (8) whether there is abnormal behavior by the child after the contact; (9) whether there is a motive for the child to fabricate the out

- of

court statemen t; (10) whether the sta te ment is ag ains t the interest of the child, e.g., the child expects punishment because of reporting the conduct; and (11) whether there was an opportunity under the evidence for the alleged act to have been committed by the defendan t.

See 758 S.W.2d 339, 34 3

– 44 (Te x. App.

— Texark ana 1988), aff’d , 786 S.W.2d 357 (Te x. Crim. App. 1990) ; see also Torres v. State , 424 S.W.3d 245, 257 (Tex. App.

— Houston [14th Dist.] 2014, pet. ref’d); In re M.R. , 243 S.W.3d 807, 813 (Tex . App.

— Fort Worth 2007, no pet.);
Nor ris v

. Stat e , 7 88 S.W.2d 65, 71 (Tex. App.

— Dallas 1990, pet. ref’ d)

. B ut see Broderick , 89 S.W.3d at 699 (stating that “[a]lthough courts have enumerated factors that may assist in ascertaining the reliability of an out cry statement, the focus of the inqu iry m us t re ma in upon the outcry statement, not the abuse itself ” ); Carty v. State , 178 S.W.3d 297, 306

– 07 (Tex. App.

— Houston [1st Dist.] 2 005, pet. ref’d) ( finding that outcry statement was reliab le without reference

to Buckley in dicia ); Jones v. State , No . 10

- 13

- 001 06

- C R, 2014 WL 3556520, at *3

– 4 (Tex. App.

— Waco July 3, 2014, pet. ref’d) (mem. op., not designated for publication) ( specifically declining to use Buckley indicia ).

3 B oth sides in the present case ut ilize the indicia as an an aly ti cal fr a me work in their briefs.11 T his Court ha s never applied the indicia in a published op inion . Moreover, bec ause th ey s eemi ngly require inqui r ies into the circumst a nces of the abuse allegations
themselves , the bias es or credibility of an outcry witness, or evidence admitted following the trial

court ’ s ruling, they e xceed the “ exceptionally narrow ” focus of an ar ticle 3 8. 07 2 he aring and the
reach of our appe llate rev iew. See Sanchez v. State , 354 S.W.3d 476, 4 87

– 88 (Tex. Crim. App. 2011) ; Broderick , 89 S.W.3d at 699 (finding that question s “focused on the cir cumstanc es of the
abuse itself ” were “outside the narro w sco pe of the inquiry into the time, circumstances, or content of the outcry statement ” ) ; Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (noting that “ appell ate court must review the trial cou rt ’ s ruling in light of what was before
the tri al co ur t at the time the ruling was made ” ). We ther efore c onfine our analysis t o the

statut ory considerations listed in article 38.072

. See Te x. Code Cri m. P r oc. art. 38.072, § 2 (b)( 2)

. Caraway testified abo ut the time , con tent, and circumstances of William s ’
sta te ments d uring th e hearing on the admissibility of his outcry testimony

. On Marc h 28, 2020, Caraway, Williams, and two of their siblings spent the day barbecuing, fishing, and “ all that
go od stuff. ” The children were s taying with Caraw a y , an d that ni ght, a fter the ir siblings fell asleep, Williams “ decided to just open up and tell [him ] a l ot of different things , ” incl uding that Koury “ had bee n t ouching her in her sleep along with taking vi deos of her while she ’ s awake and sleeping

. ” C araway was “ pr et ty s h o cked , ” and it “ had been a very long day, ” so he asked her if they “ could just go to s leep an d talk about it in the morning. ” When she wo ke up the next d ay, they went to a bo athou se o n th e property and talked “ pr obabl y 16 hours straight. ”
William s told him about “ many instan ces [of abuse ] over about four years ” beginning when she was t welve and ending approximately “ a couple of mon ths before she came12 to [his] house

. ” D uring the first instance, Koury touched her on her vagina with his fin ger. O n
ot her occasions, he put his f inger in to and licked her “ sexual org an
. ” 4 She indi cated that Caraway was the first adult she had told. Following Caraway ’ s testimony , defense counsel objec ted to the reliability of
Williams ’ outcry

. Specifica lly

— referring t o the eleven Buckley indicia

— counsel argue d th at the statement was not spontaneous be cause it occurred over two days , t hat it was possible that Caraway had asked leadin g questions, t hat C a raway “ may have motive to have man ipulated the
situat ion , ” that a 1 6 year old “ is ce rtainly quite

. . . capable of fabricating ” a story, and that
Wi lliam s “ might have had an inc entive to fabricate

. ” In rebuttal, the S tat e asserted that: (1) Williams was expected to te stify and “ will admit making the stat em ent ” ; (2) t he e vidence would show that sh e u nderstood the need to be

t ruth ful and ha d the a bi lity to observe , recollect, and narrate; (3) her outcry was corroborated by
her st atements to DuBose and Coro na, the f orensic interview er ; (4) her outcry was spont aneous be caus e Caraway testified th at “ it came out of nowhere an d he was surprised ” ; (5) her outcry was clear and unambiguous; (6) no evi dence had been presented that her outcry was fabricated; ( 7) she behaved abnormally after the outcry by running away; a nd ( 8 ) Koury ha d the oppo rtunity to commit the alleged off ense because Wil liams “ stayed with him since she w as in 3 r d grade up to the p oint that she ma[d e] the outcry. ” The State acknowledged that Williams had no expectation of punishment.
The evidence admitted at t h e article 38.072 hearing supports the trial court ’ s finding that Williams ’ statements were r eliable. Defen se counse l ’ s argument s were largely

4 The term “ sexual organ ” was employed by the State. Although Ca raway testified that Williams told him that K our y had touched her “ [o]n her vagina , ” it is unclear whether the latte r phrasing was Ca raway ’ s or W ill iams ’

.13 speculative and inquired impermissibly in to Caraway ’ s biases and credibilit y. See Bays v. State , 396 S.W.3d 580 , 590 (Tex. Crim. App. 2013) ( “ [T]he outcry statute merely requires that the statements be reliable and does not requ ire that the outcry witness be neutral. ” ); Sanchez , 354 S.W.3d at 488 ( “ [T]he credibility of the outcr y witness is not a rele vant issue at a hearing to determine admissibility of an outcry

. . . . The outcry witness’s biases may be such that a
fact

- finde r would not believe the outcry statement as relayed by the witness, but that is not a
matter that the legislature has given to the trial cour t ’ s discret ion. ” )

. While counsel a lso argued that the outcry ’ s having been made o ve r t wo days precluded its being spontaneous, we are unpersuaded. Additionally, t o the e xtent that counsel was cor rect that a 16

- year - old child is capable of f abricating sex u a l abuse alle gations, we are un willing to conclude that an all eged
victim ’ s age and capacity to lie

— without more

— is s ufficient to re nder a statement unreliable.
As the State recognize d, although defe nse counsel argued that , “ if need be , ” th e defense c oul d

“ put on evidence to show the reasons why [Williams] mig ht have had an incentive to fabricate , ”

n o such evidence was presented at the hearing. To the argument s made by defense counsel at the hearing , Ko u ry on appeal adds
that Williams test ified that she c ould not remember what she had told Cara way , that her

s tateme nt was not corrobo rated by trial evidence following the hearing, that evidence admitted after the hearing showed that she had motive to fa bricate the statement, and that Williams
testified that s he did not behav e abnormally after making the statement

. These arguments, however, require us to consider evidence that was no t before the trial court at th e time of its ruling. See Weathe rred , 15 S.W.3d at 542

. Moreover, a s noted above, a statem ent n e e d not be

corr oborated to be reliable , and any inconsistency between a child ’ s outcry and later t rial testimony “ ‘ is a matter of credibility and goes to the weight of the evidence, ’ not the r eliabili ty of14 the s ta tement or its admi ssibi lity. ” Buentello , 5 1 2 S.W.3d at 519 ( quoting Marquez v. State , 165 S.W.3d 741, 747 (Tex. App.

— San Antonio 2005, pet. ref’d))

. For these reasons, the trial court did not abuse its di scretion by allowing Caraway to testify about the outcry statements that Willi ams made to hi m
. W e overrule Koury ’ s second issue.

IV. “ Backdoor Hearsay ” In his third issue, Koury contends that the trial court abused its discre tion b y admitting “back door hearsay ” stat emen ts during the t estimony of Corona, the forensic
interviewe r who in terviewed Willi am s
. Hearsay is a statement, other tha n one made by the declarant while testifying at a trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is generally inadmissible except as provided by the rules of evide nc e o r statute. Id. R. 802.
T he hearsay prohibition cannot be circumvented by eliciting the substance of the statement in
indirect form. Schaffer v. State , 777 S.W.2d 111, 113 (Tex. Crim. App. 1989). Such
h ea rsay - b y - infere nce, or “ backdo or hear say, ” vi ol ates the prohibition against hearsay because it

“ presents the content o r substa nce, indire ctly, of the out

- of

- court statement. ” Cortes

- Puga

v. State , No. 03

- 17

- 00713

- CR, 20 19 WL 3680135, at *8 (Tex. App.

— Austin Aug. 7, 2019, pet. ref’d) ( mem. op., not d es ignated for publication)

. “ B ackdoor hearsay” is subject to the same rules and limitations as the more common form of hearsay. See Sch affer , 777 S.W.2d at 113.
The test for “ back do or hea rsay ” is wh ether the eliciting party ’ s “ ‘ sole intent in pursuing [a ] li ne of questioning was to convey to the jury’ the contents of out

- of

- court
statements.” Head v. S tate , 4 S.W.3d 25 8 , 262 (Tex. Crim. A p p. 1999) (quoting Schaffer ,15 777 S.W.2d at 114)

. In other words, “ bac kdoor hearsay ” e xists where a rev iewing court

c o nf ronts the “ inescapable conclusion that a piece of evidence is being offered to prove
statements made outside the courtroom

. ” S chaffe r , 777 S.W .2 d at 114

. “An analysis of whether the impermissible inference is so overriding as to fall wit hin the hearsay p rohibition will necessarily turn on the specific factual circumstan ces of a given case.” Head , 4 S.W.3d at
262 n.4. During Corona ’ s testimony, a bench confere nce was held at which defense counsel expressed concern that the State was attem pting to elicit “ backdoor h earsay ” and argued
that “ [s]aying that [William s] made an outcry would be hearsay. ” The State responded that it only intended to ask w hether Corona interviewe d Williams and “ what he obse rved as far as her
demeanor ” but did not “ plan to ask him d irectly what she said

. ” When the parties continued to disag ree, th e trial court directed defense counsel to make her objection “ [w]hen [ the S tat e] gets to that po int. ” T he following exchange then occurred:
Q. [ ( B y the State ) ] Did she rev eal specifics t o you

– and I don ’ t want you to say what she said, but did she reveal specifics to you that you felt needed to be investigated? DEFENSE COUNSEL : Ob jection, Your Ho nor, hearsay. THE COURT: Overruled. Q. (By [the State] ) All right. You can an swer. A. What s he mentioned during the forensic interview

– Q. Yeah. Let me

– I don ’ t want you to say it. A. Uh

- huh. Q. Okay. I know that

. . . this is difficul t, right? Did she make an outcry during the interview?16 DEFENSE COUNSEL : Objection, Your Honor , hearsay.
THE CO URT: It ’ s overruled. A. She did make an outcry. Q. (By [the State] ) Okay. And, again, I ’ m not going to ask you to say anything she specifically told you. Did you suggest to her any of the answers during that outcry? A. No. Q. In your tra ining as a fore ns ic interviewer, are you trained to look for certain red flags when a child is describing things? A. Yes. Q. Describe

– I think you and I know wha t I ’ m talki ng about. Would you tell the jury what I ’ m talking about when I say red flags? A. Can I explain t he semi

- structured

– Q. Please do.

. . . . Q. Okay. And so as the co nversation is flowing, is this the same type of process you used for the inter view with [ Williams] ? A. Yes. Q. Again, I do not want you to say anything she said. Was she a ble to give you s pecific details? A. She was. Q. Was she able to describe the position of bodies? A. She was. Q. Was she able to describe movement? A. She w as. DEFENSE COUNSEL : I ’ m objecting again, Your Honor. If she was able to describe, that is hearsay. He is referri ng to statements that she made. That is substantive. That is hearsay. It ’ s an out

- of

- court statement.17 STATE : I ’ m going to the capabilities of what she was able to describe without any specifics of what was actually described. So it is no t hearsay, Your H onor. THE COURT: Objection is overruled. You may answer. Q. (By [ t he State] ) Go ahead. Was she able to describe the movement of people? A

. She was. Q. Was she able to give sensory details? A. She was. Q. And when we say sensory details, what is a senso ry

– just stepping aside for a moment, a sensory detail? What is a sensory detail? A. A sensory detail involves the five senses, feeling or touch, taste, hearing, smell. Those are sensory details.
On appeal, Koury appears to chall enge mu ch of this test i m ony, arguing that the State inquired into the presence of red flags to “ show that [Will iams ’] statements elicited a valid
concern in Corona that [she] was telling the truth and that the alleged sexual assault did happen , ”
wh ich was “ done t o prove the tru th of the matter asserted by [Williams]. ” He also argues that the questions addressing “specific details, ” “the position of bodies, ” and “mo vement ” w ere

“ designed to pa int a picture of what [Williams ] said without actually saying it. ” Last ly, he

asserts th at th e State , by asking Corona whether Williams was ab le to describe th e “movement of people ” and to give “sensory details , ” was trying bot h to “paint a picture ” and “to remind the jury of earlier testimony from Van Caraway

. ” First, we n ote that much o f the challenged testimony was not objected to at trial
and tha t with respect to this unobjected

- to testimony , Koury has failed to preser v e his issue for
appe llat e review. See Tex. R. A p p. P. 33.1; Williams v. Sta te , 662 S.W.3d 452, 460 (Te x. Crim. App. 2 02 1 ). Re quiring a timely, specific objection “ informs the judge of the basis of the18 objection and affords him an opportunity to rule on it ” and “ affords opposi ng counsel an opportunity to respond to the complaint. ” Williams , 662 S.W.3d at 460.
Defense co unsel objected only to the State ’ s asking Corona whether Willi ams

“ reveal [ed] specifics to [him] that [h e] felt needed to be investigated , ” whether she made an outcry, and whether she w as able to d escribe movemen t. The trial court overrul ed counsel ’ s ob je ctions, thereby prese rving Koury ’ s argument s with respect to thes e questions on appeal. To
the extent that he chal lenge s the admission of other testimony, his argument is unpreser ved. Id

. Corona ’ s affirmative responses t o the objected

- to question s di d not impliedly convey the content o f Williams ’ intervie w statements. Indeed, the first, because it was not offered for the truth of the matter asserted, was not hearsay. See Dinkins v. State , 894 S.W.2d 330 , 347 (Tex. Crim. App. 1995) ( “ A n extrajudicial s tatement . . . which is offered fo r the purpose of
sho wing what was said rather than for the truth of the matter stated therein does not constitute hearsay.” ) ; see also Schaffer , 777 S.W.2d at 114

– 15 (holding that it was permissible for po lice
officer to t estify that officer was acting in respo nse to “information received , ” but officer was not permitted to relate historical aspects of case )

. Corona’s testi mony that W illiams described movement failed to convey any specific details of her all egation s. T he si mpl e fact that the all eged sexual abuse involved

movement is as devoid of inferable content as his tes timony that she made an outcry or re v ealed specifics meriting further invest igation. Be cause t he testimon y in no way conve yed Williams ’
descri ption of th e ac ts of sexual ab use p erp etr ated against her , we are unable to conclude that the
State ’ s sole intent in offer ing it was to convey the content of her out

- o f

- court statements

. S ee Head , 4 S.W.3d at 262

. Moreover , the fact that the State anticipated tha t Williams would test ify
at tri al suggest ed that provin g the contents of her statements to Corona wa s not its sole intent in19 offering his testimony. See G urka v. State , 82 S.W.3d 416, 42 2 (Tex. App.

— Austin 2002, pet.
ref ’ d) ( “ [T] he fa ct tha t the jury had al ready heard C.B. ’ s testimony weakens Gurka ’ s contention
that the State ’ s sole intent in questioning the cousin and the friend was to prove the contents of
C.B. ’ s statements. ” ). Alternatively, e ven had the trial court abused its discreti on by admitti ng C o rona ’ s testimo ny , the error is not re versible. See Cook v. State , 665 S.W.3d 595, 600 (Tex. Crim. App

. 2023) ( “ The erroneous admission of evidence ‘will not result in reversal when other such
evidence was received without objection, eith er before or af t er the complained

- of ruling. ’ ” (quoting Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)) ). Following Corona ’ s testimony, Williams herself testified without objection that Koury sexually abused her over a period of approximately four years ; tha t s he made an outcry to Caraway ; and that she
remember ed going to the CAC , talking to someone , and partici pating in a forensic interview

. See G urka , 82 S.W.3d at 421 ( “ Even if Gurka had preserved error as to either Reanell or Brittany’s tes timony, thei r t e st imony did not convey any new facts to the jury. C.B. had already testified that she told Reanell and Brittany that Gurka had molested her

. ” ). Thu s, to the extent
that the tr ial court abused its discretion by admitting Corona ’ s testimony , the error was ha rmless.
For these reasons, w e overrule Ko ury ’ s third issue.

CONCL USION Having ov erruled each of Kou ry ’ s issues, we affirm the trial court ’ s judgment
of conviction

.20 __________________________________________ Rosa Lopez Theofanis , Justice
Before Chief Justice Byrne, Justices Kelly and Theofanis
Affirm ed
Filed: January 30, 202 4
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