Opinion
No. 05-08-01271-CR
Opinion issued November 30, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-82254-07.
Before Chief Justice WRIGHT and Justices RICHTER and LANG.
MEMORANDUM OPINION
Samuel Gasca Duran appeals his conviction for aggravated sexual assault of a child. After the jury found appellant guilty, the court assessed punishment at confinement for life. In two issues, appellant contends the trial court (1) improperly admitted certain outcry evidence, and (2) failed to conduct an inquiry regarding the reliability of the outcry testimony. We overrule appellant's issues and affirm the trial court's judgment. Amanda Ward, M.G.'s counselor, testified that she first began working with M.G. when her mother brought her in for help with depression. As M.G. became comfortable with Ward, M.G. told her that she had been sexually abused by appellant. According to Ward, M.G. was very timid and depressed. As a result, it was difficult for M.G. to talk to Ward about what had happened and she communicated with Ward through her journal. M.G. would bring her journal pages to therapy and Ward and M.G. "would process those during her sessions." The trial court allowed Ward to read certain journal entries to the jury over appellant's hearsay objection. Appellant did not object to the trial court's failure to conduct an inquiry into the reliability of the journal entries. In his first and second issues, appellant contends the trial court erred by allowing Ward to read certain journal entries to the jury and that the trial court failed to conduct an inquiry into the reliability of the journal entries. Appellant does not challenge that Ward was properly identified as the outcry witness, rather his complaint is that the trial court allowed Ward to read from the journal. After reviewing the record, we conclude we need not determine if the trial court erred by allowing Ward to read M.G.'s journal entries because after reviewing the record we cannot conclude appellant was harmed. Because the alleged error is non-constitutional, we apply the harm analysis provided in rule 44.2(b). See Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); see also Tex. R. App. P. 44.2(b). Non-constitutional error must be disregarded unless it affects the substantial rights of the defendant. Johnson v. State, 43 S.W.3d 1, 4 (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); Duncan, 95 S.W.3d at 672. A conviction should not be overturned for such error if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury or had but a slight effect. Duncan, 95 S.W.3d at 672 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). Similarly, improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also Duncan, 95 S.W.3d at 672 (improper admission of outcry testimony harmless error because similar testimony admitted through complainant, pediatrician, and medical records). At trial, M.G. testified in detail about the abuse. She testified without objection that appellant came into her bedroom at her grandmother's house and began massaging her legs, eventually inserting his finger into her vagina. M.G.'s trial testimony was as detailed as the journal entries Ward read to the jury regarding the specifics of the sexual assault and the events surrounding the contact. During closing arguments, the State did not emphasize the journal entries, instead focusing on M.G's live testimony at trial. In addition, nothing in the record suggests appellant was surprised by the complained-of testimony. After examining the record as a whole, we conclude that appellant's substantial rights were not affected by the trial court's error, if any, in allowing Ward to read from the journal or by failing to conduct an article 38.072 hearing to determine the reliability of the journal entries. See Tex. R. App. P. 44.2(b). We overrule appellant's first and second issues. Accordingly, we affirm the trial court's judgments.