AFFIRMED and Opinion Filed September 28, 2020 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00768-CR GORDON ALAN KI RK, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1541871-M MEMORANDUM OPINION Before Chief Justice Burns and Justices Pedersen, III, and Evan s Opinion by Chief Justice Burns 1 Gordon Alan Kirk appeals his continuous sexual assault of a you ng child conviction. A jury convicted a ppellant and sentenced him to fo rty-five years’ confinement. In eight issues, appellant argues the evidence is legally insufficient to support his conviction; the tri al court erred in overruling his objection to the admission of an extraneous offens e, overruling his “objection t o the statement proffered by the State on an irr elevant prejudicial evidence of prior bad conduct or

1 The Honorable David Bridges, Jus tice, participated in the submi ssion of this appeal; however, he did not participate in the issuance of this opinion due to his deat h on July 25, 2020. Chief Justice Burns has reviewed the record and the briefs in this cause.–2– extraneous offense that the defendant had been to prison,” over ruling his motion for mistrial, “overruling the State’s proffered hearsay written sta tement of the complainant,” and overruling his objection to prejudicial hears ay proffered by the State to bolster the testimony of one of the complainants; pena l code section 21.02 is unconstitutional because it doe s not require jurors to be un animous; and penal code section 21.02(b) and government code section 508.145(a) ar e unconstitutional as violative of the prohibition against cruel and unusual punis hment and the guarantee of equal protection. We affirm the trial court’s jud gment. In December 2015, appellant was cha rged by indictment with cont inuous sexual assault of a young child. The indictment alleged the fo llowing: That Gordon Alan Kirk, hereinafter called Defendant, on or abou t 1 st day of November, 2012 in the Count y of Dallas, State of Texas, did then and there intentionally and knowingly, during a period tha t was 30 or more days in duration, when the defendant was 17 years of ag e or older, commit two or m ore acts of sexual abuse against [K.M.], a child younger than 14 years of age, he reinafter called complainant, n amely by: the contact and penetration of the complainant’s anus by th e Defendant’s sexual organ AND by c ontact between the mouth of th e complainant and the sexual organ of the Defendant. Prior to trial, the trial court conducted a hearing outside the presence of the jury at which M.E. testified she was bor n in December 2005 and was thir teen years old at the time of trial. M.E. testifie d appellant was her “stepdad’s best friend.” In June 2014, when M.E. was eight years old, her mother left her and he r sister at appellant’s house “right before the sun came up.” M.E. got bored and asked appellant to play a game. Appellant found a game on his computer. The game involv ed putting food–3– in a bag without opening the bag and trying “to taste the food and guess what it is.” To play the game, while blindfolded “you have to suck on the ba g but not bite it.” M.E. pulled the blindfold down, but she could still “see like t he bottom where your nose is.” When the game started, appellant “pulled down his pa nts, and he put his penis in [M.E.’s] mouth.” M.E. could see through the blindfold what looked like “the top of probably a plum or a peach,” and it felt “squishy.” Appellant told M.E. to “suck harder to open the bag” and “said don’t bite.” Appell ant left the room to get more food, came back, and the game started again. M.E. tes tified “it was his penis” that appellant put in he r mouth the second time. M.E. s aid “it tasted funny, so [appellant] went to get [her] a cup of water.” The game end ed, and appellant told M.E. “not to tell anybody about the game.” The prosecutor argued M.E. testified to the elements of an agg ravated sexual assault. Under article 38.37, the prosecutor argued M.E.’s tes timony “should be admitted for any purpose relevant to the defendant’s character and acts performed for any reason the jury might find it relevant or useful in the ir determination of the case in chief.” Defense counsel objected that M.E. did not ide ntify appellant as “the person that forced her to play thi s food game.” The prosecutor stated she had other witnesses to “shore up the connection.” The State called M.E.’ s mother, who testified appellant was her hus band’s best friend, and she took M.E. to appellant’s house early on June 16, 2014. M.E .’s mother identified appella nt in court.–4– At the conclusion of the hearing, the trial court made the fol lowing oral finding: Court finds under section (2)(a) of Code of Criminal Procedure Article 38.37 hearing outside the presence of the jury that the evidenc e that has been presented is likely – will be adequate to support a findin g by the jury that the defendant committ ed the separate offense beyond a reasonable doubt. Therefore , it will be admitted. At trial, K.M. testified she was born in August 1999 and was ni neteen years old at the time of trial. Appellant was a friend of K.M.’s par ents, and K.M. knew appellant since she was in the fourth or fifth grade. K.M. wen t to “little gettogethers” at appellant’s house with her parents and brother, a nd appellant came to K.M.’s house “on a holiday.” Prior to the time when K.M. was i n seventh grade, appellant watched K.M. and her br other for a day when K.M.’s pa rents were away at a softball tournament. K.M. did not remember another time t hat she spent time with appellant without her parents or grandparents. When K.M. was in seventh grade, she had trouble with math, and appellant offered to help K.M. with her homework. K.M. accepted appellan t’s help because she did not want to stay after school. The first time appellan t helped her with homework was the first time K.M. had ever been “one on one alon e with him.” When they got to appellant’s house, appellant “pulled out [K.M. ’s] homework and helped [her] with it” at his dining room table and then took K. M. home. The next time appellant brought K.M. to his house, they “just hung out” and played video–5– games in appellant’s living room . After playing video games, a ppellant told K.M. to go to the computer room, and he “followed [her] in and close d the door.” Appellant told K.M. in a “stern” voice to take her clothes off. K.M. initially thought, “Why?” but she took off her clothes and underwear. Ap pellant sat on the computer chair and pulled down his shorts and told K.M. “to get on her knees” and “suck.” K.M. “did as [she] was told” but she “was scared” that appellant would physically hurt her. Appellant “ had to tell [K.M.] how to do i t.” When asked to clarify what body part K.M. was talking about, she testified it was “his penis” that went in her mouth. Appellant move d, and K.M. “lifted [her] hea d off.” Appellant had [K.M.] bend over, and he “pos itioned himself and slowly eas ed his penis into [K.M.’s] butt.” The experience w as the “worst pain ever,” and “felt like that went on for a long time.” Afterward, appellant told K.M. to clean u p in the bathroom where she noticed she was “bleeding” from her “butt area,” and the bleeding “wouldn’t stop.” After getting dressed, K.M. told appellant he r “butt was bleeding and it hurt,” and appellant said “It always hurts the first tim e.” Appellant “just took [K.M.] home, told [her] not to tell anyone.” When asked if she “thought about telling anybody,” K.M. testified, “I wanted to, but I was scared. He b oasted about how he went to prison, he knew people in prison.” The first sexual assault took place on a Monday, and “the same thing” happened the next Monday and “mos t but not all Mondays” except for “the days where [K.M.] faked being sick s o [she] didn’t have to go to sch ool.” K.M. testified–6– she faked being sick because it was a “rule in the house” that, if she was sick, she had to stay in her room in bed until the next day. Sometimes w hen K.M. faked being sick, appellant came over to p ick her up, but she “wouldn’t go with him because [she] was sick.” The abuse continued from the fall of seventh grade in 2012 until the spring of eighth grade when appellant “proposed to his girl friend.” The prosecutor confirmed that K.M. was thirteen years old in the fa ll of 2012 when the abuse began and still thirteen wh en she finished seventh grade because her birthday is in August. During the time when appellant was abusing K.M., appellant was “in his 30s.” The prosecutor asked K.M. to “describe to the jury anything di fferent that [she] hadn’t already talked about .” K.M. testified appellant f ilmed her with his phone while she was performing oral sex. When K.M. asked about the filming, appellant “didn’t say much, but it turns out he was using the v ideos to sell to a dude” and “to get money to pay for things he said he would buy [K.M.] .” K.M. testified appellant filmed her “ten to 15 times.” In the fall of 2015, K.M. had “not seen or heard from” appella nt, so she thought it would be safe to tell about the abuse. A family fri end who was “kind of a second dad” to K.M. was living in K.M.’s garage, and K.M. tol d him about the abuse. K.M. also called her mother and told her about the abus e. The next night, K.M. went to the police station with family members and reporte d the abuse. After–7– reporting the abuse, K.M. learned that appellant was “on bond f or another sexual offense.” M.E., thirteen years old at the time of trial, testified she “ knew [appellant] by [her] stepdad.” M.E. was bor n in December 2005, and she was ei ght years old when she moved to Texas. M.E. often went over to the house of appel lant’s girlfriend. Appellant was also at the house, and M.E. thought appellant was “strange and kind of scary” and “looked kind of dark.” On a day in June 2014, M. E.’s parents were having a fight, and M.E.’s mother “wanted to go to a different house,” so she took M.E. and her sister to appellant’s house at six or seven in the morning. M.E. thought her mother talked to appellant before leaving. M.E. and her si ster went in appellant’s room and watched television and fell asleep. When M.E. woke up , she “went around the house and started finding something to do” before eventuall y going back into appellant’s room and lying down w ith her sister. Appellant eve ntually made M.E. a snack, and M.E. asked appellant if they could play a game. In the computer room, appellant “went to the computer and pulled up a list of games” and “chose a game.” M.E. did not know the name of t he game, but appellant “went in the kitchen and got food or started looking for a blindfold.” Appellant told M.E., “you got to try to get the food out of the bag. You can’t see the food.” M.E. testified th e rules of the game were “You can’t see what’s inside the bag, and you can’t bite. And you have to suck on the bag t o get the food out.” Appellant brought food into the room and Ziploc bags and M.E. t ied a t-shirt over–8– her eyes as a blindfold. M.E. testified she could see out of t he blindfold “down where your nose is.” The game sta rted, and M.E. “heard some ki nd of like messing with the bag.” Something went i n M.E.’s mouth, and she looked down through the blindfold and saw appellant’s penis. At the time, M.E. did not know it was appellant’s penis, and she tes tified it “looked like the top of a plum or a peach” and was “like a bright pink.” M.E. did know “it didn’t look like a bag.” Appellant told M.E. to “suck hard to taste the food,” but it “[d]idn’t really taste like anything.” Appellant stopped the game and w ent out of the room to get more food. While appellant was gone, M.E. put a bag of marshmallows in her mouth “to see if it felt the same way, and it didn’t.” M.E. “kind of got curious to kno w what it was.” Appellant came back in the room, and they started the game agai n. M.E. testified the game stopped when she asked for a cup of water. Appellant brought a cup of water, and the game stopped. A ppellant said, “don’t tell anybo dy.” M.E. left the room and “felt weird and not normal” and “felt like something b ad had just happened.” M.E.’s mother came and picked up M.E. and her sister and took t hem back home. M.E. and her sister went to a park, and M.E. said she as ked appellant to play a game and “that something went i n [her] mouth” that she descri bed as “a long manly part.” M.E.’s sister understood and said they had to “tell Mom and Dad.” M.E. was “scared” because she “felt like [she] was going to get in troub le.” The two went home, and M.E. “ran up to [her] r oom and wanted to hide” while her sister told her–9– parents what had happened. M.E. testified she thought her moth er went to the police station, and M.E. had to “go a nd talk to another person about t his.” The jury convicted appellant of continuous sexual assault of a young chi ld, and this appeal followed. In his first issue, appellant argues the evidence is legally in sufficient to support his conviction. Appellant was charged with contin uous sexual abuse of a child p ursuant to section 21.02 of the Texas Penal Code. Section 21.02 provides, in pertinent part: (b) A person commits an offense if: (1) during a period that is 30 or more days in duration, the pe rson commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are commi tted against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

.... (d) If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts we re committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse. T EX

. P ENAL C ODE A NN . § 21.02. In determining the sufficiency of the evidence, the reviewing c ourt considers the evidence in the light most favorable to the verdict to dete rmine whether any rational trier of fact could have found the essential elements of the offense beyond a–10– reasonable doubt. Acosta v. State , 429 S.W.3d 621, 624–25 (T ex. Crim. App. 2014). The jury is the sole judge of the credibility and weight to att ach to witness testimony. Jackson v. Virginia , 443 U.S. 307, 319, (1979). The testimony of a child victim al one is sufficient to support a convi ction for continuous sexual abu se of a child. See T EX

. C ODE C RIM

. P ROC

. A NN . art. 38.07(a). Here, K.M. testified appellant sexually assaulted her over a p eriod of months when she was thirteen years old and appellant was in his 30s. K.M. provided detailed testimony of the abuse, and the jury was free to believe her te stimony. We conclude the evidence was sufficient to enable the jury to find the esse ntial elements of the offense of continuous sexual assault of a young child beyond a reasonable doubt.
See Acosta , 429 S.W.3d at 624–25; Garner v. State , 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.). We overrule appellant’s first issu e. In his second issue, appellant ar gues the trial court erred in overruling his objection to the admission of an extraneous offense. Specifica lly, appellant complains of the admissi on of M.E.’s testimony. We review the trial court’s decision to admit or exclude eviden ce, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, under an abuse of discretion standard. Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. Id.–11– Under the Texas Rules of Evidenc e, evidence of other crimes, wr ongs, or acts is not admissible “to prove the character of a person in order to show action in conformity therewith.” De La Paz v. State , 279 S.W.3d 336, 342 (Tex. Crim. App. 2009). But it may be admissible for other purposes, such as pr oof of motive, opportunity, intent, preparation , plan, knowledge, identity, or absence of mistake or accident. See T EX

. R. E VID . 404(b); De La Paz , 279 S.W.3d at 342-43. Article 38.37, entitled “Eviden ce of extraneous offenses or ac ts,” is an evidentiary rule applicable to certain types of sexual abuse ca ses including sexual assault of a child, indecency with a child, and continuous sexu al abuse of a child.
See T EX

. C ODE C RIM

. P ROC

. A NN . art. 38.37. It supersedes application of Rule 404(b), making admissible extraneous offense evidence that Rule 404(b) does not.
See id. §§ 1(b), 2(b). Article 38.37 a llows the jury to consider that evidence’s bearing on “relevant matters,” i ncluding the state of mind of t he defendant and the child, the previous and subsequent relationship between the def endant and the child, and the character of the defendant and acts performed in confor mity with the character of the defendant. See id. Section 2 provides evidence that a defendant committed a separa te offense may be admitted for any bearing the evidence has on relevant ma tters, including the character of the defendant and acts performed in conformity wit h the character of the defendant. Id. §2. Section 2-a requires the trial court to determine that ev idence–12– likely to be admitted at trial will be adequate to support a fi nding by the jury that the defendant committed th e separate offense beyond a reasonable do ubt. Id. §2-a. Appellant argues, without more, that the extraneous offense evi dence “would not have met the ‘beyond a reasonable doubt’ test and did not m eet the ‘403’ balancing test. On the contrary, the record shows the State pr operly gave appellant notice of the extraneous offense against M.E., conducted a hear ing outside the presence of the jury, and determined that evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasona ble doubt. The requirements o f section 2-a were thus fulfilled, and the trial court properly admitted the extra neous offense evidence under section 2 for any bearing the evidence had on relevant ma tters, including the character of the defendant and acts performed in conformity wit h the character of the defendant. Id. §2. Further, appellant did not make a 403 objection. We conc lude the trial court did not abuse its discretion in permitting M.E. to testify. See Martinez , 327 S.W.3d at 736. We overrule appellant’s second issue. In his third issue, appellant ar gues the trial court erred in o verruling his “objection to the statement pro ffered by the State on an irrele vant prejudicial evidence of prior bad conduct or extraneous offense that the de fendant had been to prison.” The evidence that appellant had “been to prison” came in without objection during K.M.’s testimony. K.M. testified without objection that appellant “boasted about how he went to prison, he knew people in prison.” Accord ingly, any error in–13– admitting the testimony that appellant had been to prison was c ured. Lane v. State , 151 S.W.3d 188, 193 (Tex. Crim. A pp. 2004) (any error in admitt ing evidence is “cured where the same evidence c omes in elsewhere without objec tion”). We overrule appellant’s third issue. In his fourth issue, appellant ar gues the trial court erred in overruling his motion for mistrial. Specifically, appellant complains of the testimony of M.E.’s mother when she was asked if she had ever heard appellant “boas t about his toughness,” and she testified th at appellant told her he was “o ne of the biggest drug dealers in Dallas.” Defense c ounsel objected, and the trial co urt sustained the objection and instructed the jur y to disregard. Defense counse l asked for a mistrial, and the trial court denied the request. We review the denial of a mistrial motion for abuse of discreti on. Hawkins v.
State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). A mistrial is the trial court’s remedy for error that is “so pr ejudicial that expenditure of fu rther time and expense would be wasteful and futile” and is required only in extreme c ircumstances where the prejudice is incurable. Id. A prompt instruction to disregard will ordinarily cure error associated with an improper question and answer. Ovalle v. State , 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); see also Hawkins , 135 S.W.3d at 77 (“In effect, the trial court ... determin[es] w hether improper conduct is so harmful that the case must be redone. Of course, the harm analysis is conducted in li ght of the trial court’s curative instruction.”). “We generally presume the jury follow s the trial court’s–14– instructions in the manner presented.” Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Here, the record shows the jury heard K.M.’s extensive and expl icit testimony concerning appellant’s continuous sexual abuse of her when she was a thirteen-yearold child. M.E.’s reference to appellant’s boast about being a drug dealer was isolated and immediately subject to the trial court’s instructi on to disregard. On this record, we conclude the trial court did not abuse its discretio n by determining the complained-of testimony was not so extreme as to be incurable b y an instruction to disregard. See Ocon v. State , 284 S.W.3d 880, 884 (Tex. Cr im. App. 2009) (whether error requires mistrial must be determined by case’s particular facts). We overrule appellant’s fourth issue. In his fifth issue, appellant ar gues the trial court erred in “ overruling the State’s proffered hearsay written statement of the complainant, thereby bolstering her in-court testimony.” Speci fically, appellant complains of the admission of K.M.’s “trauma narrative” create d during her therapy at Dallas Children’s Advocacy Center. The single-page “trauma narrative” stated the followin g: Chapter 1 – Before the Abuse I was 13 and in middle school. I was quiet and talkative. I l ike to read books, play on the computer and hang out with my friends. My g randpa had lung cancer and passed away. My parents had gotten divorce d. Chapter 2 – The Abuser Gordon was a high school friend of my parents. He said he had known me since I was born. He played that sweet, innocent, helping c ard. He–15– did things for the family. I believed he was going to help me with homework. Chapter 3 – The Abuse He took me to his house and we ended up playing video games, Assassin’s Creed. I said how cool it would be if it was real. He said it is and the next thing I remembe r is him telling me to take off all my clothes. I thought he was crazy and weird. I had to listen to him. I had no choice. He always talked about how he was the top dog in pr ison. I was afraid he would get the bad people he knew to hurt me or my family. He took off his pants and made me do oral. And then a fter, he did anal to me. Then once it wa s over he said he was going to take me home and told me to never tell anyone. I remember the last ti me was just oral. That was when my gr andpa was really sick. Then aft er my grandpa’s funeral, Gordon stop ped coming around. I thought it was safe to tell so I di d. I’m glad I told. Chapter 4 – After the Abuse Since the abuse, I don’t like to go places alone like the park, mall or restaurants. I get nervous and my chest feels tight. I am ver y aware of my surroundings and people, especially men. Chapter 5 - Moving Forward I’m sad the abuse happened. It wasn’t my fault for trusting hi m. He abused my trust. He took advantage of me. I still feel vulner able when I am alone somewhere and I don’t like being the center of atten tion. Deep breathing, reading a book, and talking to friends helps. I’m getting better. I am respectful, caring for others, focused, smart and not easi ly influenced by others. I am so meone who helps you through hard times. I am my own person. With the jury present, Tama Walley, K.M.’s therapist at the Da llas Children’s Advocacy Center, testified one of the methods of treatment she used with child victims of sexual abuse was Trauma Focused Cognitive Behavioral Therapy. Walley testified this type of th erapy helps clients understand that “thoughts and our–16– feelings are connected to our behavior” and how “guilt like bla ming themselves” is “an obstacle towards them healing. ” Walley testified trauma fo cused therapy is “very specific to children, even specific to abuse and sexual a buse,” and it has “certain stages and steps.” Walley testified the first step i s “psycho-education” because m any children do not know “that what was happening was abuse.” After the fir st step, “there’s a component of relaxation” to “tea ch the child skills to be able to find a state of relaxation or calmness so that they can help their body and the ir brain to be connected in a way that is healthy.” At this point in the ther apy, Walley testified, “we start working with emotions and help the child identify emo tions and also have skills to work with those uncomfortable emotions.” After that, “the child has an opportunity to write their story about what happened to them in their own words as a way to kind of unpack and not feel like they have to carry th is story around on their own, know that they’re . . . s upported.” This written story is called a “trauma narrative.” Walley testified th e trauma narrative comes “kind of at the end to help provide closure for the therapy ,” and its purpose “is for the h ealing of the child.” When asked to describe the purpo se of the trauma narrative, Wal ley testified as follows: So oftentimes when we experience a traumatic event, we will, in our mind, create this negative story about ourselves, right? Like I said, “Maybe it was my fault or “I’m” – “I’m such a bad person.” “I’ m dirty.” “I’m unlovable,” many things like that. And so being able to write this story that includes like what I was like as a kid be fore all that–17– happened, you know, with these kinds of positive memories as we ll and then what this person was like that was a part of my life befor e the abuse happened, like being able to kind of work that out and talk tha t through is helpful for a child to see, Oh this – this was not just this one thing. There’s a story here. And that can be healing for a child to b e able to tell that story in their own words. And the way that they reme mber it and have someone liste n and witness that can be very [sic] heal ing experience. Defense counsel raised the follo wing objection to the “trauma n arrative”: Judge, I would object to any narrative, that that would be bols tering, just a backdoor way of getting hearsay in front of this jury an d further bolstering the complainant’s testimony without the Defense havi ng an opportunity to confront her regar ding the inconsistencies. Outside the presence of the jury, defense counsel reiterated th ese objections, and the prosecutor responded that the “trauma statement” was “for purpo ses of treatment” and “for healing of the child” and was not made for the “truth of the matter asserted.” Instead, the prosecutor argued th e statement was “going toward a medical diagnosis.” The trial court asked if the “trauma narrative” wa s “the only page [defense counsel had] objection to,” and defense counsel respon ded, “Yes.” The trial court stated, “I have to agree this is testimonial in nat ure and under Crawford would say that you have a chanc e to cross examine the person. But you do have a chance to cross examine the person because she’s here. Or was. ” Defense counsel responded that he “still argue[d] it’s cumulative” and “bolster ing” and “furthermore that the probative value of that information, since she’s alrea dy testified, is clearly outweighed by the prejudicial effect.” The trial court disagre ed with defense counsel–18– and stated, “Given for therapeu tic purposes, I’ll allow it. Ov errule your objection.” Walley subsequently read K.M.’s “trauma narrative” to the jury. Here, appellant first quotes the exchange during trial surround ing the admission of the “trauma narrati ve.” Appellant asserts that th e “trauma narrative” violates the Confrontation Clause of the United States Constitu tion and cites Crawford v. Washington , 541 U.S. 36 (2004). Appellant also asserts “the evidence was admitted under the guise of ‘t herapeutic purposes’ not for medical diagnosis and ‘immediate treatment’” and cites rule of evidence 803(4). Appe llant’s argument concludes as follows: This proffer was highly improper and prejudicial in an attempt to bolster the veracity of the in court testimony of the complaina nt. The trial court abused its discretion by erroneously allowing the e vidence stating it was given for therap eutic purposes without even weig hing its prejudicial effect greatly outwe ighed any possible probative va lue. We note appellant does not further argue these issues in suppor t of his fifth issue. Reading appellant’s argument broadly, he appears to argue the “ trauma narrative” was not admissible under an exception to the hearsay rule, viol ated the confrontation clause, was not admissible under rule of evidence 803(4), was a n attempt to bolster K.M.’s testimony, and was more p rejudicial than probative. We review a trial court’s rulings on the admissibility of evid ence under an abuse of discretion standard, and will uphold the trial court’s decision if it was within the zone of reasonable disagreement and was correct under any t heory of law applicable to the case. Winegarner v. State , 235 S.W.3d 787, 790 (Tex. Crim. App.–19– 2007). The erroneous admission of testimony is non-constitutio nal error that must be disregarded unless it affects the defendant’s substantial ri ghts. See Barshaw v.
State , 342 S.W.3d 91, 93 (Tex . Crim. App. 2011); see also T EX

. R. A PP

. P. 44.2(b). We first address appellant’s ar gument that the “trauma narrati ve” was more prejudicial than probative. Specifically, defense counsel obje cted at trial that “the probative value of that information, since [K.M.’s] already tes tified, is clearly outweighed by the prejudicial effect.” In determining whether the probative value of evidence is subs tantially outweighed by the danger of unfair prejudice under rule of evid ence 403, we consider “(1) the probative value of the evidence; (2) the pote ntial to impress the jury in some irrational, yet inde lible, way; (3) the time neede d to develop the evidence; and (4) the proponent’s need for the evidence.” T EX

. R. E VID . 403; Hernandez v. State , 390 S.W.3d 310, 324 (Te x. Crim. App. 2012). Here, the “trauma narrative” was probative of K.M.’s process o f treatment and the culmination of her efforts in therapy. K.M. had already te stified in detail about the abuse, and the narrative had little potential to impress th e jury in some irrational, yet indelible, way. The narrati ve was a short, one-page docume nt set forth fully above, and the time needed to present the narrative was short. Finally, the narrative was useful to demonstrate K.M.’s participation in therapy and t he consistency of her narrative. Under these circumstances, we conclude the trial co urt did not abuse its discretion in admitting the “traum a narrative” over appellant’s objection that its–20– probative value was outweighed by its prejudicial effect. See Hernandez , 390 S.W.3d at 324; Winegarner , 235 S.W.3d at 790. Further, even if we were to conc lude the trial court erred in a dmitting K.M.’s “trauma narrative” for the other reasons urged by appellant, an y such error was harmless because it di d not affect appellant ’s substantial righ ts. The erroneous admission of hearsay does not constitute reversib le error “if other evidence proving the same fact is properly admitted elsew here.” Lamerand v.
State , 540 S.W.3d 252, 256–57 (Tex. App. —Houston [1st Dist.] 2018, pet. ref’d) (quoting Infante v. State , 404 S.W.3d 656, 663 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (admission of inadm issible evidence becomes harm less error if other evidence proving the same fact i s properly admitted elsewhere))

. Here, K.M. testified explicitly concerning most of the details in her “trauma narrative.” To the extent K.M. did not testify concerning the aftermath of the abuse, this evidence came in elsewhere in the form of testimony from K .M.’s grandmother Helen. Helen testified K.M. was “fun-loving, had a lot of frie nds” prior to seventh grade. Helen gave the following description of K.M.’s demeanor at the time of trial: [K.M.] has become very quiet. S he stays to herself. Very angr y. She doesn’t have hardly – she has maybe two friends that she associ ates with. She’s very afraid of men. She is not the same child. S he won’t go anywhere by herself. She doe sn’t date. She stays close to her dad and her brother and me and her granny. This child is even afra id to go out to go buy groceries. Or she won’t get her driver’s license because she don’t want to drive or go anywhere by herself. This is not the child that I had or I have raised.–21– To the extent appellant argues the trial court erred in admitti ng the “trauma narrative” because it did not come within an exception to the h earsay rule, constituted “bolstering,” and was not admissible under rule 803 (4) as a statement made for purposes of medical diagnosis or treatment, we conclude any such error was harmless. See id. Under Crawford , the admission of a hearsay statement made by a nontestifying declarant violates the Sixth Amendment if the statem ent was testimonial, and the defendant lacked a prior opportunity for cross-examinat ion. Crawford , 541 U.S. at 68. Courts reviewing whether the error in admitting ou t-of-court statements in violation of Crawford is harmless beyond a reasona ble doubt should consider: (1) The importance of the hearsa y statements to the State’s cas e; (2) Whether the hearsay evidence was cumulative of other eviden ce; (3) The presence or absence of evidence corroborating or contra dicting the hearsay testimony on material points; and (4) The overall strength of the prosecution’s case. Davis v. State , 203 S.W.3d 845, 852 (Tex. Crim. App. 2006). Of course, court s may consider other factors as well, but, in the final analysis, the reviewing court must be convinced, beyond a reasonable doubt, that the admission of Crawford -barred testimony would probably not have had a significant impact on t he mind of an average juror. Id. Put another way, is there a reasonable possibility that the Crawford error, within the context of the entire trial, “moved the jury from a state of–22– non-persuasion to one of persua sion” on a particular issue? Id. at 852–53 (quoting
Wesbrook v. State , 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)). Again, assuming without deciding the “trauma narrative” consti tuted

“ Crawford -barred testimony,” we note the narrative consisted of a single page in a voluminous exhibit. The narrativ e mirrored extensive testimony by K.M. and her grandmother concerning the details of the abuse and the effects the abuse had on K.M. Because K.M.’s testimony alone was sufficient to establis h appellant’s guilt, the trauma narrative was not important to the State’s case. Si milarly, because of the clarity and specificity of K.M.’s testimony, the State’s case a gainst appellant was very strong. Under these circumstances, we are convinced the a dmission of the “trauma narrative” would probably not have had a significant im pact on the mind of an average juror. Id. We overrule appellant’s fifth point of error. In his sixth issue, appellant ar gues the trial court erred in o verruling his objection to prejudicial hearsay proffered by the State to bols ter M.E.’s testimony. Specifically, appellant complains the trial court erred in perm itting appellant’s wife to testify, over appellant’s hearsay objection, that M.E. told her appellant said “’Do you want to play a game?’ and [a ppellant] had said that it was just a game that he and her could play. And she said that he asked her if she want ed to try some food.” Again, the record shows M.E. testified in great detail to the s ame facts without objection. Accordingly, any error in admitting the testimony c oncerning these–23– general details of the “game” a ppellant played with M.E. was cu red. Lane , 151 S.W.3d at 193. We overrule a ppellant’s sixth issue. In his seventh issue, appellant argues penal code section 21.02 is unconstitutional because it does not require jurors to be unani mous as to which specific acts of child abuse were committed. In his eighth iss ue, appellant argues penal code section 21.02(b) and government code section 508.145 (a) are unconstitutional as violative of the prohibition against cruel and unusual punishment and the guarantee of equal protection. The entirety of appellant’s argument under these issues, which appellant presents together, is as follows: Appellant recognizes that this i ssue has previously been held constitutional by many courts of appeal in Texas. However, App ellant seeks to preserve this issue for any future review by the Texas Court of Criminal Appeals and or any Fe deral Court. Appellant adopts by reference Appellant’s arguments a nd authorities presented in th e case of Mele v. State , 2018 WL 650 5948 [sic] (Tex. Ct. App. Ft. Worth, 02- 18-00185-CR decided De cember 13, 2018; and Long v. State , 2018 W, 2018 L 3581008 (Tex. Ct. App. Ft. Worth, 02-17-00406-CR and 02- 17-00407-CR decided July 18, 2018. See also Love v. State , 2018 WL 400807 (Tex. Ct. App. – Corpus Christi, 13-16-00552-CR decided January 18, 2018. Appellant raises no supporting ar guments in his seventh and eig hth issues. We note appellant did not raise these issues at trial. A defendant may not raise for the first time on appeal a facial challe nge to the constitutionality of a statute. Karenev v.
State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). We overrule appe llant’s seventh and eighth issues.–24– We affirm the trial court’s judgment.

Do Not Publish T EX

. R. A PP

. P. 47.2(b)
190768F.U05 /Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE–25– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT GORDON ALAN KIRK, Appellant

No. 05-19-00768-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1541871-M. Opinion delivered by Chief Justice Burns. Justices Pedersen, III and Evans participating. Based on the Court’s opinion o f this date, the judgment of the trial court is AFFIRMED

. Judgment entered September 28, 2020