No. 05-06-00129-CR.
Opinion Filed January 22, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 366th District Court Collin County, Texas, Trial Court Cause No. 366-80776-05.
Before Justices FITZGERALD, RICHTER, and FRANCIS. Opinion By Justice RICHTER.
Justice, RICHTER.
OPINION
Manuel Adan Bersosa, Jr. appeals his jury convictions for aggravated sexual assault of a child younger than fourteen years of age and indecency with a child. In two issues, appellant complains about the admission of hearsay testimony from a sexual assault nurse examiner and the admission of expert testimony concerning child abuse victim behavior. Finding no reversible error, we affirm the judgment of the trial court. Background
JB, the complainant, was eight years old when his mother found him masturbating. His reaction was one of extreme distress, which his mother believed exceeded the embarrassment that would be expected. When JB's mother encouraged him to tell her what was wrong, JB eventually revealed that the appellant, his father, made him perform sexual acts when he stayed with him for visitation. JB's mother contacted Child Protective Services, where JB disclosed additional details of his outcry. JB described the abuse again when he was examined by a sexual assault nurse examiner (SANE). Appellant was charged in a single indictment with four counts of sexual assault of a child and one count of indecency with a child. See Tex. Pen. Code Ann. §§ 21.11, 22.021 (Vernon 2006). The state dropped one of the sexual assault counts before the case was submitted to the jury. The jury convicted the appellant on the three remaining aggravated sexual assault charges and the charge of indecency with a child. Appellant was then sentenced to thirty-seven years imprisonment and twenty years imprisonment to run consecutively. This appeal followed. Standard of Review
We review a trial judge's decision to admit evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim App. 2005); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). If the trial judge's decision is within the "bounds of reasonable disagreement," we do not disturb the ruling on the admissibility of evidence. Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). Admission of SANE Testimony
In his first issue, appellant contends that the trial court erred by admitting statements JB made to the sexual assault nurse examiner (SANE). The SANE was permitted to testify, over appellant's hearsay objection, about statements JB made to her during the course of the examination. The SANE's report, which contained statements about the abuse, was also admitted over appellant's objection. The state proffered the evidence under the exception to the hearsay rule that allows "statements for purposes of medical diagnosis or treatment." See Tex. R. Evid. 803(4). The appellant argues that the statements were not made for the purpose of medical diagnosis or treatment because the statements were made months after the alleged acts and no physical trauma was found during the examination. According to appellant, the hearsay bolstered complainant's credibility and operated as a direct comment on his truthfulness. We need not determine whether the admission of this testimony was error because, even assuming it was, we cannot conclude it was harmful. A violation of the evidentiary rules resulting in the erroneous admission of evidence is non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We are to disregard errors, defects, irregularities, or variances that do not affect the substantial rights of the accused. Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex .Crim. App. 1997). In making this determination, we should consider the entire record, including testimony, physical evidence, the state's theories and any defensive theories, closing arguments, and voir dire, if applicable. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App. 2003). If evidence similar to the complained of evidence is admitted without objection elsewhere in the trial, we will conclude any error was harmless. Josey v. State, 97 S.W.3d 687, 698 (Tex.App.-Texarkana 2003, no pet.). To convict the appellant of aggravated sexual assault, the state had to prove beyond a reasonable doubt that the appellant knowingly or intentionally: caused the penetration of the anus or mouth of JB, a child younger than fourteen years of age and not his spouse; or caused the sexual organ of JB, a child younger than fourteen years of age and not his spouse to contact his anus; or caused the anus or mouth of JB, a child younger than fourteen years of age and not his spouse to contact his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(B)(i)-(a)(B)(v) (Vernon Supp. 2006). To convict the appellant of the offense of indecency with a child, the state had to prove beyond a reasonable doubt that appellant engaged in sexual contact with JB, a child younger than seventeen years of age and not his spouse. See Tex. Pen. Code Ann. § 21.11 (Vernon 2006). The testimony of a child victim alone is sufficient to support a conviction for sexual assault of a child. Tex. Code Crim. Proc. Ann. Art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet.ref'd). The SANE testimony that appellant maintains is inadmissible hearsay consists of an entry in the SANE report that reads: "Impressions: Positive Verbal History for Sexual Assault." The SANE testified, over objection from the defense, that JB had given her a positive verbal history for sexual abuse, and she transcribed what he told her for her report. But the SANE was not the only witness offering testimony concerning the alleged abuse. JB also testified. Specifically, JB testified that he understood the difference between good touches and bad touches. JB stated that on more than one occasion, appellant touched his "middle part" and his "back part", referring to his penis and anus, respectively. Appellant touched JB's middle part and back part with his hand, and also touched JB's middle part with his mouth. Appellant also had JB touch his middle part with his hands and mouth. JB also testified that appellant sat on him, making JB penetrate appellant's anus with his penis, and also had JB do the same thing to him. Other times, appellant put " things that came out of [appellant's] penis" in JB's mouth. Thus, the complainant's testimony established the same facts that were in the SANE report. We will find no reversible error in the improper admission of evidence if the same facts are admitted elsewhere without objection. Josey v. State, 97 S.W.3d at 698; Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). In addition to JB's testimony, the jury also had the opportunity to gauge the veracity of the appellant's denial of events. Because testimony other than that of the SANE supports the jury's findings, we reject appellant's assertion that any error was harmful. Appellant also argues that he was harmed because the SANE report includes statements made by JB to the SANE that do not appear anywhere else in the record. These statements include: "my mom caught me touching my dad", "he did this lots of times", and a statement about lubricant. While JB did not testify verbatim that the appellant abused him "lots of times", he did testify that the abuses he described occurred on more than one occasion. Although there is no evidence of the other two statements in the record, we cannot conclude that appellant was harmed by these statements. JB's testimony was sufficient to obtain a conviction. The state did not emphasize these statements on direct examination of the SANE, and did not mention them in closing argument. Appellant's first issue is resolved against him. Admission of Expert Testimony
During the trial, the state offered the expert testimony of Dan Powers, Clinical Director for the Children's Advocacy Center. Powers testified concerning the general characteristics of sexual offense victims and offenders. Prior to the testimony, the court conducted a hearing outside the presence of the jury to determine whether the testimony would be allowed. Appellant did not contest Powers's qualifications. Instead, appellant objected that Powers's testimony was not relevant, and would unconstitutionally shift the burden of proof to appellant. The trial court overruled the objection. On appeal, appellant asserts that the trial court erred in admitting Powers's testimony because the testimony constituted a direct comment on the truthfulness of JB and was inadmissible character evidence. We do not address the merits of this point because appellant's complaint on appeal is different from his objection at trial. A complaint on appeal must comport with the objection made at trial. See Tex. R. App. P. 33.1(a); Guevara v. State, 97 S.W.3d 579, 582 (Tex.Crim.App. 2003). When a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review. Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999). Accordingly, we resolve appellant's second issue against him. Conclusion
Having overruled both of the appellant's issues, we affirm the judgment of the trial court.