Opinion
NO. 02-15-00171-CR
08-11-2016
BRYAN GARNER APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2013-1344-E MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
A jury convicted Appellant Bryan Garner of the offenses of indecency with a child and continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02(b), (h) (West Supp. 2016), § 21.11(a)(1), (d) (West 2011). The jury assessed Garner's punishment at life for each offense, with the sentences to run consecutively, and the trial court sentenced him accordingly. In three issues, Garner argues that the evidence is insufficient to support his conviction, that the trial court erred by overruling his objections to his wife's testimony, and that the trial court erred by overruling his objections to certain outcry testimony. We will affirm.
II. FACTUAL BACKGROUND
Garner is Rachel's father. Garner and Michelle—Rachel's mother and Garner's wife—had their parental rights terminated when Rachel was a "very young child." After their rights were terminated, Susan—Michelle's mother and Rachel's grandmother—took custody of Rachel.
To protect the anonymity of the victim in this case, we will use aliases to refer to some of the individuals named herein. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
Rachel testified that the first time she was sexually abused by Garner she was three years old and living at Susan's house. Rachel stated that she was alone in the house with Garner when he took her clothes off and touched her "part to pee" with his "part to pee." Rachel testified that she and Garner were standing up when the abuse started but that eventually she was lying on the floor with Garner on top of her going "back and forth" with "his part to pee on [her] part to pee." Garner told Rachel not to tell anyone what had happened "or else." Rachel testified that on another occasion at Susan's house she was lying on her stomach and Garner touched her "bottom" with "his part to pee." Rachel testified that Garner's body was moving "up and down" and that it "hurt." She also stated that on that occasion Garner touched her "bikini top" with his hands.
Rachel was eleven years old at the time of trial.
Rachel testified that she did not know the proper names of the male and female anatomy.
In 2009, Rachel moved out of Susan's house and began living with her grandfather, Gus, at his house. Also living at Gus's house were his girlfriend, Betty, and Betty's daughter, Angie. A "couple of months" after Rachel moved into Gus's house, Garner, Michelle, and Rachel's two younger sisters—Heather and Hailey—also moved into Gus's house. Rachel testified that while at Gus's house, Garner came into her room while she was lying on the bed and touched her "part to pee" with his "part to pee." She testified that her clothes were off when this contact occurred and that Garner's pants were off. She stated that Garner "moved around" while lying on top of her and that he later turned her around and touched her "butt" with his "part to pee." Garner again told Rachel not to tell anyone "or else."
Gus is Michelle's father and Susan's ex-husband.
Rachel testified that contact occurred with both her "part to poop and . . . [her] bottom cheeks."
Rachel also recalled being sexually abused by Garner in the master bedroom of Gus's house, although she did not remember the details of the abuse.
After living together for approximately eight to nine months at Gus's house, Garner, Michelle, Heather, and Hailey moved to another house—referred to throughout the trial record as the "green-roof house" or the "green house"—that was located approximately a mile away from Gus's house. Rachel continued living at Gus's house but would often visit her parents and younger sisters at the green-roof house.
Rachel testified that the reason she went to visit the green-roof house was to "protect [her] little sisters."
Rachel stated that Garner sexually abused her on more than ten occasions at the green-roof house. She testified that on one occasion, she was playing with her younger sisters and a friend in a bedroom of the green-roof house when Garner came into the room. Rachel and the other girls hid under a bed when Garner walked in, but Garner pulled Rachel from under the bed and took her into a bathroom and closed the door. Garner then took off his pants, laid Rachel down on a bath mat, got on top of her, and "[h]is part to pee touched [Rachel's] part to pee." Rachel testified that Garner's "part to pee" went "inside" her and it hurt. She testified that on this occasion Garner also touched her "bikini top" with his hands.
Rachel testified that her clothes were off while this abuse took place.
Rachel testified that on another occasion at the green-roof house, she was alone with Garner in the kitchen when he touched her "bikini top" underneath her clothes. He then laid her down on the floor and touched her "bottom" with his hands and her "part to pee" with his "part to pee." Rachel testified that Garner also sexually abused her in the "red bedroom" of the green-roof house. She stated that Garner touched her "part to pee," "bikini top," and "bottom." Rachel testified that another time she was inside a shed connected to the green-roof house when Garner touched her "bottom" with his hands and touched her "part where the poop comes out" with his "part to pee." Rachel testified that on another occasion she and Garner had just finished riding horses when he pulled down her pants and began touching her by a tree near the shed. Rachel stated that Garner touched her "bottom" with his hands and touched her "part to pee" with "his part to pee."
It is unclear from Rachel's testimony what part or parts of Garner's body were used to make contact with the parts of her body in the "red bedroom" of the green-roof house.
Rachel also stated that Garner abused her "more than ten times" in his truck. She testified that Garner would often take her to and from the green-roof house and Susan's house and that he would use "back roads" when making the trip. Rachel described one occasion where she was in the truck with Garner and he touched her "part to pee" and "bottom" with his "part to pee." She testified that while that contact was occurring, a red truck drove by and Garner quickly put his clothes back on. She also testified that Garner kept rags in his truck and that he would wipe "white . . . liquid" from his "part to pee" and that "multiple times" he wiped the "white stuff" from her "bottom" and "part to pee."
On February 20, 2013, Garner picked Rachel up from school in his truck. Rachel testified that Garner stopped the truck on a back road and touched her "bikini top" with his hands, her "part to pee" with his "part to pee," and her "bottom" with his "part to pee." Rachel stated that they then went to pick up Angie from school and that she cried in front of Angie. Angie testified that she saw Rachel crying when she got in Garner's truck, and she asked Rachel what was wrong, but Rachel would not tell her. Angie then asked Garner why Rachel was upset, and Garner said he "didn't know." Rachel went to Garner's home afterward—the green-roof house—and Michelle noticed that Rachel was "bawling." Michelle and Angie repeatedly asked Rachel what was wrong, but Rachel would not tell them. Rachel never visited the green-roof house again.
Normally, Betty picked Rachel up from school. Betty asked Garner to pick Rachel up on this occasion, however, because Betty was recuperating from a surgery performed the previous day.
On May 2, 2013, Rachel and Betty traveled together to visit Betty's mother. During their car ride, Betty asked Rachel why she would not ride with Garner in his truck alone. Rachel at first did not respond, but when pressed, she indicated that Garner pulled her pants down. Betty then took Rachel back to Gus's house, and Rachel indicated to Betty and Gus that Garner had pulled her pants down. Betty then handed Rachel a doll so that she could show what Garner did to her. Rachel positioned her fingers over the doll's genital area in a "V" motion, and she said that Garner had straddled her. Gus and Betty then contacted law enforcement.
Four days later, Rachel went to the Children's Advocacy Center for a forensic interview and a sexual assault nurse examination. Lori Nelson, the program director for the Children's Advocacy Center, performed the forensic interview on Rachel. During the interview, Rachel detailed the abuse that occurred in Garner's truck, as well as the abuse that occurred at Susan's house, Gus's house, and the green-roof house. Nelson testified that Rachel gave "lots of sensory details" during the interview and that "sensory details lend credibility and reliability to [a] child's statement." Deborah Ridge conducted the sexual assault nurse examination on Rachel. Ridge noted that there was no injury to Rachel's genitalia; she testified, however, that it is normal for sexual-assault victims not to show any signs of injury to their genitalia.
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Garner argues that the evidence is insufficient to support his convictions for indecency with a child and continuous sexual abuse of a young child.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49.
B. The Evidence is Sufficient to Support a Conviction
for Indecency with a Child
A person commits the offense of indecency with a child by engaging in sexual contact with a child younger than seventeen. Tex. Penal Code Ann. § 21.11(a)(1). "Sexual contact" includes "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" with the intent to arouse or gratify the sexual desire of any person. Tex. Penal Code Ann. § 21.11(c)(1). The defendant's specific intent to arouse or gratify his sexual desire may be inferred from his conduct, his remarks, and all of the surrounding circumstances. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet. ref'd). Intent can be inferred from conduct alone, and no oral expression of intent or visible evidence of sexual arousal is necessary. Tienda v. State, 479 S.W.3d 863, 873 (Tex. App.—Eastland 2015, no pet.); Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd). Further, the testimony of a child victim alone is sufficient to support a conviction for indecency with a child. Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2015); Bazanes, 310 S.W.3d at 40.
Here, the State elected to proceed with its count of indecency with a child on the contact that occurred in the bathroom of the green-roof house where Garner touched Rachel's breasts. Rachel testified that she had been playing with her younger sisters and a friend in a bedroom of the green-roof house when Garner came into the room and pulled Rachel from under the bed where she and the other girls had been hiding. Rachel testified that Garner then took her into a bathroom, closed the door, took off his pants, took off her clothes, and laid her down on a bath mat. According to Rachel, Garner then, amongst other things, proceeded to touch her "bikini top" with his hands. Specifically, Rachel testified that Garner's hand "mov[ed] around" on her "bikini top."
Rachel testified that during this encounter Garner's "part to pee [also] touched [her] part to pee." The State, however, proceeded only on the contact where Garner touched Rachel's breasts.
Garner argues that this evidence is insufficient because "[c]hildren are impressionable." Garner points to evidence elicited at trial that Gus did not like Garner, that Michelle had herself lied about being sexually assaulted by her own father, and that Michelle was under intense family pressure to testify against Garner. According to Garner, "since the allegations came from an impressionable child being raised by a mother who lies about sexual assaults and a grandfather who dislikes [Garner], the allegations are questionable and certainly not enough to support a conviction." Those concerns call into question Rachel's credibility. The trier of fact, however, is the sole judge of the weight and credibility of the evidence, and we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Tex. Code Crim. Proc. Ann. art. 38.04; Dobbs, 434 S.W.3d at 170; Montgomery, 369 S.W.3d at 192.
Viewing the evidence in the light most favorable to the verdict, a rational juror could have found beyond a reasonable doubt that Garner engaged in sexual contact with Rachel, a child younger than seventeen. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray, 457 S.W.3d at 448. Thus, the evidence is sufficient to support Garner's conviction for indecency with a child. See Tex. Penal Code Ann. § 21.11(a)(1).
C. The Evidence is Sufficient to Support a Conviction for
Continuous Sexual Abuse of a Young Child
A person commits continuous sexual abuse of a young child if, during a period that is thirty days or more in duration, a person commits two or more acts of sexual abuse against a child younger than fourteen years of age. Tex. Penal Code Ann. § 21.02(b). An "act of sexual abuse" includes indecency with a child other than by touching the breast of a child, sexual assault, aggravated sexual assault, and sexual performance with a child. Id. § 21.02(c)(2)-(4), (6).
Here, evidence was presented that Garner's "part to pee" touched Rachel's "part to pee" at Susan's house, at Gus's house, in the bathroom of the green-roof house, in the kitchen of the green-roof house, by a tree near the shed of the green-roof house, and inside Garner's truck. Viewing this evidence—and the other evidence detailed in the factual background section above—in the light most favorable to the verdict, a rational juror could have found beyond a reasonable doubt that Garner, during a period that is thirty days or more in duration, committed two or more acts of sexual abuse against Rachel, a child younger than fourteen years of age. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray, 457 S.W.3d at 448. Thus, the evidence is sufficient to support Garner's conviction for continuous sexual abuse of a young child.See Tex. Penal Code Ann. § 21.02(b). We overrule Garner's first issue.
Again, Garner contends that the "allegations are questionable" because "[c]hildren are impressionable." But as discussed above, this complaint calls into question Rachel's credibility, and we will not substitute our judgment for that of the factfinder, the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04; Dobbs, 434 S.W.3d at 170; Montgomery, 369 S.W.3d at 192.
IV. GARNER'S OBJECTIONS TO MICHELLE'S TESTIMONY
In his second issue, Garner contends that the trial court erred when it overruled certain objections he made to Michelle's testimony.
A. The Alleged Error
When Garner cross-examined Michelle, he elicited that Gus did not like Garner. In the middle of that cross-examination, the jury was removed from the courtroom so that the trial court could make certain rulings with regard to what Garner could ask Michelle during the rest of cross-examination and what the State could ask her on redirect. The State indicated that on redirect it would explore the reasons that Gus did not like Garner and that these reasons included that Garner had been to the penitentiary and that he had committed acts of family violence against Michelle. Garner objected to the State delving into the reasons Gus disliked Garner, arguing that it was irrelevant and that even if it was relevant, the probative value of the testimony was far outweighed by the prejudice to Garner. See Tex. R. Evid. 403. The trial court overruled Garner's objection. The following exchange then occurred:
[Garner's Counsel]: Will you allow me just to have that objection without having to make the objection in front of the jury when they put that in? I understand that my objection has been overruled.
[The Court]: Yes. It is preserved.
The jury was then brought back into the courtroom, and Michelle's cross-examination resumed. On redirect, the State asked Michelle if the reason Gus did not like Garner was because Garner had previously been to the penitentiary; Michelle responded affirmatively. The State also asked Michelle if another reason Gus disliked Garner was because Gus had previously had to intervene in a domestic situation between Michelle and Garner; Michelle again responded affirmatively.
The State later recalled Gus to testify. Gus was asked whether he was concerned that Garner had been to the penitentiary. Garner did not object to this question, and Gus answered it affirmatively. Gus was also asked whether he had concern with Garner because there was a time when Gus had to intervene in a domestic disturbance between Michelle and Garner. Again, Garner did not object to this question, and Gus answered it affirmatively.
B. Garner's Complaint Regarding Michelle's Testimony is Waived
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Preservation of error is a systemic requirement that this court should review on its own motion. Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014); Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App. 2012).
To preserve error, a party must continue to object each time the objectionable evidence is offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012, no pet.). A trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)), cert. denied, 562 U.S. 1142 (2011); Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). This rule applies whether the other evidence was introduced by the defendant or the State. Leday, 983 S.W.2d at 718.
Here, a hearing took place during Michelle's cross-examination where counsel for both Garner and the State obtained rulings from the trial court about what could be asked of Michelle on cross-examination and redirect. While Garner objected to the State eliciting testimony from Michelle that Gus disliked Garner because Garner had been to the penitentiary and because Gus had intervened in a domestic situation between Michelle and Garner, there was nothing about that objection that indicated that it would apply to any witness other than Michelle. To the contrary, the objection was raised after the State indicated that it should be able to explore the reasons Gus disliked Garner "on redirect," and it was Michelle—not any other witness—who was taken up on voir dire during the hearing to explore why Gus disliked Garner.
While Garner preserved his objection to the State's later questioning of Michelle by obtaining a ruling outside of the jury's presence, he did not preserve—or even raise—any objection to the State's later questioning of Gus. See Tex. R. Evid. 103(b) (providing that a party need not renew an objection when it is made outside the presence of the jury); Gillum v. State, 888 S.W.2d 281, 285 (Tex. App.—El Paso 1994, pet. ref'd) (holding appellant did not preserve objection when it was made during hearing outside the presence of the jury as to one witness but was not raised when similar testimony was elicited from another witness); see also Stafford v. State, 248 S.W.3d 400, 410 (Tex. App.—Beaumont 2008, pet. ref'd) ("While Stafford requested, and was granted, a running objection to Totino's testimony, the record does not indicate he requested that his running objection be applied to all witnesses. . . . Therefore, Stafford has failed to preserve for appellate review any alleged error."); Warner v. State, No. 02-07-00464-CR, 2009 WL 2356861, at *3 (Tex. App.—Fort Worth July 30, 2009, pet. ref'd) (mem. op., not designated for publication) ("Appellant did not ask for his running objection to Officer Gonzales's testimony to apply to all witnesses. . . . And Appellant failed to object when Daniel Rhodes testified about Appellant's statements in the home. Thus, he failed to preserve his complaint as to that testimony.").
As Garner did not object to Gus's testimony, Garner did not preserve his complaints regarding the same testimony by Michelle. See Geuder, 115 S.W.3d at 13; Martinez, 98 S.W.3d at 193; Clay v. State, 361 S.W.3d at 766. We overrule Garner's second issue.
V. GARNER'S OBJECTIONS TO OUTCRY TESTIMONY
In his third issue, Garner complains that the trial court abused its discretion when it allowed Betty and Gus to testify to outcry statements made by Rachel. Garner contends that this testimony was hearsay and did not qualify under the outcry exception to the hearsay rule.
A. The Law
We review a trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011); De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009). As long as the trial court's ruling falls within the zone of reasonable disagreement, we will affirm the trial court's decision. Martinez, 327 S.W.3d at 736; Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Article 38.072 of the code of criminal procedure creates a statutory exception to the hearsay rule and allows the first adult, other than the defendant, to whom a child makes a statement describing a sexual assault to testify to the child's outcry. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2015). To fall within the exception, the child's statement to the witness must describe the alleged offense, or an element of the offense, in some discernible manner and must be more than a general allusion to sexual abuse. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Allen v. State, 436 S.W.3d 815, 821 (Tex. App.—Texarkana 2014, pet. ref'd). If the initial statement to an adult conveyed nothing more than a general allusion to sexual abuse, then the recipient of a subsequent, detailed statement should be designated as the outcry witness, even though that person technically was not the first adult to whom the child revealed the offense. Mims v. State, No. 03-13-00266-CR, 2015 WL 7166026, at *3 (Tex. App.—Austin Nov. 10, 2015, pet. ref'd) (mem. op., not designated for publication) (discussing cases concluding that child's initial outcry to witness was a general allusion of abuse and insufficient to designate first witness as outcry witness). Generally, the proper outcry witness is the first adult to whom the complainant describes "how, when, and where" the abuse occurred. Id.; Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008, pet. ref'd).
The proper outcry witness is not to be determined, however, by comparing statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense. Robinett v. State, 383 S.W.3d 758, 761-62 (Tex. App.—Amarillo 2012, no pet.); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref'd). Outcry testimony is event-specific and not person-specific and, as such, multiple outcry witnesses can testify when the outcry statements are about different events and not merely a repetition of the same events. Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd); Broderick, 35 S.W.3d at 73.
B. Application of the Law to the Facts
The trial court held a hearing to determine which witnesses were proper outcry witnesses. The State offered Betty and Nelson as outcry witnesses. At the hearing, Betty testified that she and Rachel were traveling to Denton when she asked Rachel why Rachel did not like to ride in Garner's truck. Rachel did not initially want to answer, but she eventually stated, and motioned with her hand, that Garner pulled her pants down. Betty did not ask for any more details during their car ride, and Rachel did not give any more details. Betty testified that when they arrived back at Gus's house, Rachel repeated in front of both Betty and Gus that Garner pulled her pants down and again made a motion with her hands indicating that Garner had pulled her pants down. Betty testified that she then gave Rachel a doll, and Rachel made a "downward V" with her fingers so that her fingers were straddling the middle of the doll. Rachel did not give any more details, and Betty and Gus contacted the authorities.
Nelson, the person who performed the forensic interview on Rachel, also testified at the hearing. Nelson testified that during the interview Rachel gave "a lot of details" including many "sensory" details of Garner's abuse. Nelson testified that Rachel described to her specific incidents of abuse that occurred in Garner's truck, the green-roof house, Gus's house, and Susan's house. The trial court ruled that both Betty and Nelson could testify as outcry witnesses, and at trial, both Betty and Nelson testified as to Rachel's outcry statement.
Garner does not dispute that Nelson was a proper outcry witness. Instead, he argues that Betty and Gus were not proper outcry witnesses and that their testimony regarding Rachel's outcry statement should have been excluded as hearsay. As pointed out by the State, however, Gus did not testify about Rachel's outcry statement, and he was not designated as an outcry witness at the hearing. As Gus did not testify about Rachel's outcry statement, the trial court could not have abused its discretion with regard to Gus's testimony.
In his brief, Garner contends that Gus testified as to Rachel's outcry statement at trial. Garner, however, does not cite any record reference to support that proposition. We have thoroughly reviewed Gus's testimony at trial and have not found any instance where he testified to Rachel's outcry statement.
As to Betty's testimony, Garner argues that Betty's statements regarding Rachel's outcry "were too vague to be considered outcry statements and that the only true outcry witness in this case was [Nelson]." Even assuming, without deciding, that the trial court abused its discretion in admitting Betty's testimony regarding Rachel's outcry statement, a review of the record demonstrates that Garner did not suffer harm from such admission.
When error is present, as Garner alleges here, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. If the error is constitutional, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. Tex. R. App. P. 44.2(a). Otherwise, we apply rule 44.2(b) and disregard the error if it did not affect appellant's substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999).
The erroneous admission of outcry testimony is non-constitutional error. Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd); Broderick, 35 S.W.3d at 73. Because we determine that the trial court's alleged error is not constitutional, rule 44.2(b) is applicable. Tex. R. App. P. 44.2(b). 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) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
Here, Rachel testified in great detail about Garner's various acts of sexual abuse that occurred at Susan's house, Gus's house, the green-roof house, and in Garner's truck. A video of the forensic interview between Rachel and Nelson was also admitted at trial without objection and played for the jury. In that video, Rachel again details Garner's various acts of sexual abuse that occurred at Susan's house, Gus's house, the green-roof house, and in Garner's truck, and Rachel also discusses her outcry to Betty. In light of Rachel's factually specific testimony, and in light of the admission of the forensic interview that contained additional details of Garner's abuse as well as a description of, at least in part, Rachel's outcry to Betty, we conclude that if the trial court abused its discretion by admitting Betty's testimony of Rachel's outcry statement, such error did not have a substantial or injurious effect on the jury's verdict and did not affect Garner's substantial rights. See King, 953 S.W.2d at 271. Thus, we disregard the alleged error. See Tex. R. App. P. 44.2(b). We overrule Garner's third issue.
In the video, Rachel discusses a trip she took with Betty and how during the car ride she told Betty that Garner made her pull her pants down. Rachel does not discuss the further outcry made at Gus's house. --------
VI. CONCLUSION
Having overruled Garner's three issues, we affirm the trial court's judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: August 11, 2016