Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
of indecency with a child by contact.1 The trial court found the enhancement allegation true and sentenced him to life in prison.2 Benitez now asserts, in four issues on appeal, that the trial court’s judgment is fatally flawed and should be reversed. We disagree and affirm.
Background
In 2016, A.D., her mother, and her brother moved into an apartment. Shortly thereafter, Benitez, A.D.’s mother’s boyfriend, also moved in. Benitez lived in the apartment until February 2020, when he and A.D.’s mother broke up. At the time Benitez moved out in 2020, A.D. was 10.
While Benitez lived with A.D.’s family, Benitez’s son would visit on occasion. In 2018, A.D. told her mother that Benitez’s son had touched her in “places that he wasn’t supposed to touch,” including on her breasts and vagina, and that he would touch her “butt” with his penis. After A.D. reported these allegations to her mother, A.D. and Benitez’s son no longer had contact.
During this same time period as the abuse by Benitez’s son, A.D. testified that Benitez also touched her inappropriately. She testified that Benitez would touch her breasts and vagina while her brother was in the shower and her mother was at work.
1 TEX. PENAL CODE § 21.11(a)(1).
2 Id. § 12.42(c)(2).
3
A.D. also testified that Benitez would touch her vagina with his mouth.
According to A.D., Benitez would also “sit [her] on the edge of the bed and . . . he put his penis in [her] mouth.” She testified that when his penis was in her mouth sometimes “white stuff” would come out. And she testified Benitez would also give A.D. candy after he abused her.
Benitez moved out of the apartment in February 2020 when he and A.D.’s mother broke up. In July 2020, Benitez returned to the apartment for A.D.’s mother’s birthday party. After seeing Benitez again, A.D. told her brother about Benitez’s abuse. Because Benitez was spending the night at the apartment, A.D. and her brother decided to wait until the next morning to talk to their mother. After Benitez left the apartment the next morning, A.D. told her mother about Benitez’s abuse.
Prior Conviction
At a hearing conducted outside the presence of the jury, the trial court ruled that Benitez’s 2005 conviction for indecency with a child under the age of 17, for which Benitez received five years in prison, “could have bearing on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant, and was therefore admissible under Article 38.37. In his first issue, Benitez contends that the trial court abused its discretion in admitting evidence of this conviction because it should have been excluded under Rule 403.
4
A. Standard of Review We review a trial court’s decision to admit or exclude evidence for abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion only if its decision is so clearly wrong as to lie outside the zone within which reasonable people might disagree. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). B. Applicable Law Generally, “[e]vidence of extraneous offenses is not admissible at the guilt phase of a trial to prove that a defendant committed the charged offense in conformity with a bad character.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (citing TEX. R. EVID. 404(b)). But Article 38.37, entitled “Evidence of extraneous offenses or acts,” supersedes application of Rule 404(b), making admissible extraneous offense evidence that Rule 404(b) does not. Lara v. State, 513 S.W.3d 135, 141 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see TEX. CODE CRIM. PROC. art. 38.37 §§ 1(b), 2(b).3 Article 38.37 allows the jury to consider, notwithstanding rule 404,
evidence that the defendant has committed a separate offense [including indecency with a child] may be admitted in the trial of an alleged offense [including indecency with a child] for any bearing the evidence has on relevant matters, including the character of the
3 Article 38.37 is an evidentiary rule applicable to certain types of sexual abuse cases including sexual assault of a child, indecency with a child, and continuous sexual abuse of a child. See TEX. CODE CRIM. PROC. art. 38.37.
5
defendant and acts performed in conformity with the character of the defendant.
TEX. CODE CRIM. PROC. art. 38.37 § 2(b).
However, the admission of evidence under article 38.37 “is limited by Rule 403’s balancing test, which permits admission of evidence as long as its probative value is not substantially outweighed by its potential for unfair prejudice.” Bradshaw v. State, 466 S.W.3d 875, 882 (Tex. App.—Texarkana 2015, pet. ref’d); see TEX. R. EVID. 403. C. Applicable Law Benitez argues that evidence of his previous conviction should have been excluded under Rule 403 because: (1) the remoteness of the conviction destroys its probative value; (2) the absence of details about the offense amplified rather than mitigated its prejudice; and (3) the State had no need for this evidence.4 The Waco Court of Appeals recently addressed the relationship between Article 38.37 and Rule 403:
The admission of evidence pursuant to Article 38.37, Section 2(b) is limited by Rule 403’s balancing test, which permits admission of 4 Benitez also argues that the limiting instruction given to the jury magnified the harm because it explicitly told jurors they could consider the prior conviction for “the character of the defendant” and “acts performed in conformity with the character of the defendant.” But the limiting instruction provided by the trial court exactly tracks the language of Article 38.37, § 2(b), which explicitly allows the jury to consider “evidence that the defendant has committed a separate offense . . . for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” TEX. CODE CRIM.
PROC. art. 38.37 § 2(b).
6
evidence as long as its probative value is not substantially outweighed by its potential for unfair prejudice. Even so, Rule 403 “should be used sparingly to exclude relevant, otherwise admissible evidence that might bear on the credibility of either the defendant or complainant in such ‘he said, she said’ cases.” Because evidence of separate sexual offenses is “probative on the issues of intent and a defendant’s character or propensity to commit sexual assaults on children” if sufficient evidence is provided regarding the extraneous offense, the probative value of sexual offenses committed against other children is generally not substantially outweighed by the “danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”
Deggs v. State, 646 S.W.3d 916, 925 (Tex. App.—Waco 2022, pet. ref’d) (internal citations omitted).
In conducting a Rule 403 balancing test, the trial court must consider the following non-exclusive factors: (1) how probative the evidence is, (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence. Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). The factors “may well blend together in practice.” Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006). Upon our review, we find the Rule 403 factors support the admission of evidence of Benitez’s previous conviction.
With regard to the first factor, we disagree with Benitez that the remoteness of the conviction destroys its probative value. While remoteness may lessen the
7
probative value of extraneous-offense evidence,5 it “does not per se render an extraneous offense irrelevant.” See Berg v. State, No. 01-22-00248-CR, 2023 WL 5616200, at *16 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, pet. ref’d) (quoting Linder v. State, 828 S.W.2d 290, 297 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d)). “Evidence either has probative value, or it does not.” Id. (quoting Newton v. State, 301 S.W.3d 315, 318 (Tex. App.—Waco 2009, pet. ref’d)). Remoteness is simply a factor to consider. See, e.g., Bradshaw v. State, — S.W.3d —, No. 03-23- 00356-CR, 2026 WL 878911, at *7 (Tex. App.—Austin Mar. 31, 2026, no pet.); West v. State, 554 S.W.3d 234, 239–40 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
And the “evidence of a separate sexual offense against a child admitted under Article 38.37, Section 2(b) is probative of a defendant’s character or propensity to commit sexual assaults on children.” Deggs, 646 S.W.3d at 925–26.6 Thus, evidence reflecting that Benitez has a prior conviction for indecency with a child, however remote, is still probative of his character or propensity to commit sexual assaults on children. See Bradshaw, 2026 WL 878911, at *7; Berg, 2023 WL 5616200, at *17. Accordingly, this factor weighs in favor of admission.
5 See Deggs v. State, 646 S.W.3d 916, 925 (Tex. App.—Waco 2022, pet. ref’d).
6 See also Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.]
2016, pet. ref’d) (“[T]he Rule 403 balancing test normally will not favor the exclusion of evidence of the defendant’s prior sexual assaults of children.”).
8
The second factor considers whether the evidence has the potential to “irrationally impress” the jury. Benitez argues that the only evidence of his prior conviction was the conviction itself and the failure to include any details about the prior offense allowed the jury to “imagine the worst.” We disagree.
There were some limited details before the jury about the prior offense, including that Benitez committed the offense when he was 18 years old, and that the offense was second-degree indecency with a child—the exact charge for which he was convicted in this case. And the lack of detail about the prior offense tends to lessen any prejudice as there is no evidence that the extraneous offense was any more heinous than the evidence pertaining to the charged offense. Cf. Berg, 2023 WL 5616200, at *17 (acknowledging that similarities between charged offense and extraneous offense could lead to “potential that the jury may be unfairly prejudiced by the defendant’s character conformity,” but still concluding that second factor weighed in favor of admission where defendant did not demonstrate that evidence of extraneous offense was more heinous than evidence of charged offense).7 Moreover, the court of criminal appeals has acknowledged that while “sexually related bad acts and misconduct involving children are inherently inflammatory . . . the plain language of Rule 403 does not allow a trial court to
7 See also id. (holding evidence of other children defendant abused was not unfairly prejudicial because defendant did not identify any particular facts about other two sexual assault that make them uniquely or unfairly prejudicial).
9
exclude otherwise relevant evidence when that evidence is merely prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013).
Here, Article 38.37 expressly authorized the admission of evidence showing that Benitez committed separate sexual offenses against other children “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” TEX. CODE CRIM. PROC. art. 38.37, § 2(b). Nothing in the record suggests that the limited evidence of the extraneous offense influenced the jury to decide the case on an improper basis. See Bonnet v. State, No. 01-23-00086-CR, 2025 WL 554198, at *4 (Tex. App.—Houston [1st Dist.] Feb. 20, 2025, pet. ref’d) (mem. op., not designated for publication); Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). Accordingly, this factor also weighs in favor of admission.
With respect to the third factor, testimony related to Benitez’s prior conviction did not consume an inordinate amount of time or repeat evidence that had already been admitted at trial. At trial, Detective L. Littler with the Houston Police Department testified that he was involved in the investigation of this case and discovered that Benitez has a prior conviction for indecency with a child. The State introduced as an exhibit the judgment of conviction for that offense, which reflects that the offense occurred in March 2023 when Benitez was 18. On cross-
10
examination by Benitez’s counsel, Detective Littler admitted that he called Benitez a “predator” when he informed A.D.’s father about Benitez’s prior conviction. Little else was presented to the jury about this prior conviction—it was mentioned to the jury on less than 20 pages of the over 1,300-page reporter’s record of trial. See Berg, 2023 WL 5616200, at *17; Deggs, 646 S.W.3d at 927.8 Accordingly, this factor weighs in favor of admission.
The fourth factor pertains to the State’s need for the evidence. Benitez argues that the State had no need for the evidence because it had A.D.’s direct testimony and other corroborating evidence. But the Legislature has acknowledged that
because of the nature of child sex offenses, there is typically very little evidence to assist prosecutors with proving their cases. Victims, especially children, are many times so scarred by the physical and emotional trauma of the event that there are often long delays in the reporting of the crime, and these delays can lead to the destruction or deterioration of what little physical evidence exists. As a result, the primary piece of evidence in most child sexual abuse cases is a traumatized child.
Bradshaw, 466 S.W.3d at 884 (citing Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83rd Leg. R.S. (2013)). “In the absence of the extraneous- offense evidence, this becomes a ‘he said, she said’ case.” Id.
8 See also Bradshaw v. State, — S.W.3d —, No. 03-23-00356-CR, 2026 WL 878911, at *8 (Tex. App.—Austin Mar. 31, 2026, no pet.) (“Because the presentation of extraneous-offense evidence consumed a very small portion of the State’s evidence at Bradshaw’s trial, it is unlikely that the jury was distracted from consideration of the indicted offense.”).
11
Here, there was no physical evidence in support of A.D.’s allegations against Benitez and there were no eyewitnesses. See Berg, 2023 WL 5616200, at *17; Deggs, 646 S.W.3d at 926. And Benitez sought to discredit A.D. by pointing out inconsistencies or changes in her statements, her inability to recall details, and that she was angry at Benitez for making her do chores. “We are mindful that Rule 403 should be used sparingly to exclude relevant, otherwise admissible evidence that might bear on the credibility of either the defendant or complainant in such ‘he said, she said’ cases [involving sexual assault].” Deggs, 646 S.W.3d at 926 (quoting Bradshaw, 466 S.W.3d at 883–84). Accordingly, this factor likewise weighs in favor of admission.
We thus conclude that the trial court could have reasonably concluded the probative value of evidence of Benitez’s prior conviction was not substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. Based on all of the foregoing, we therefore hold that the trial court did not abuse its discretion in admitting this evidence.
We overrule Benitez’s first issue.
Statements Made for Medical Diagnosis or Treatment In his second issue, Benitez maintains that the trial court abused its discretion in admitting the testimony of Dr. Marcella Donaruma, a doctor at the Children’s Assessment Center (CAC) who conducted a sexual assault exam of A.D. in October
12
2020, under the exception to the hearsay rule for statements made for the purposes of medical diagnosis or treatment. See TEX. R. EVID. 803(4). A. Standard of Review and Applicable Law Rule 803(4) of the rules of evidence provides an exception to the hearsay rule for statements “made for—and . . . reasonably pertinent to—medical diagnosis or treatment” and “describing medical history; past or present symptoms or sensations; their inception; or their general cause.” TEX. R. EVID. 803(4). This exception is based on the assumption that the patient understands the importance of being truthful with the medical personnel involved to receive an accurate diagnosis and treatment. Burns v. State, 122 S.W.3d 434, 438 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
In determining whether a trial court erred in admitting or excluding hearsay evidence under this exception to the hearsay rule, “a reviewing court looks to see whether the trial court clearly abused its discretion; before the reviewing court may reverse the trial court’s decision, it must find the trial court’s ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Taylor, 268 S.W.3d at 579. B. Analysis At a hearing outside the presence of the jury, the trial court ruled that A.D.’s medical records from the CAC, which contained statements from A.D. describing
13
the abuse, along with Dr. Donaruma’s testimony about those records and statements were admissible under Rule 803(4).
At trial, Dr. Donaruma testified that she interviewed A.D. before conducting a physical exam and read portions of that interview to the jury. During the interview, A.D. stated that Benitez “would make her get naked and he would then put his penis in her mouth” and that he “touches [her] private part” with his hands. A.D. also stated that Benitez would make her touch his “middle part” with her hands and that sometimes “white stuff” would come out of it. A.D. stated that the white stuff would “go on [her] tummy or [Benitez] would put it in [her] mouth and tell [her] to swallow it.”
Here, Benitez argues that A.D.’s statements to Dr. Donaruma were not admissible under Rule 803(4) because the examination’s primary purpose was forensic, not for medical treatment, and served law enforcement’s investigative needs, not A.D.’s medical needs. He also argues that they are inadmissible because the State presented no evidence that A.D. understood the need to be truthful in her statements to Dr. Donaruma. And, finally, he argues that A.D.’s statements identifying Benitez as the perpetrator were not “reasonably pertinent” to any treatment. We disagree.
Instead, we conclude that the record here supports the conclusion that A.D.’s statements to Dr. Donaruma were made for the purpose of medical treatment. At
14
trial, Dr. Donaruma testified that her medical examinations of children who have possibly been sexually assaulted consist of (1) a medical history, (2) a history of the present illness, i.e., the inappropriate contact, (3) a physical exam, and (4) a “round- up,” of “what do we know, what did we learn, and what are we going to do,” which could include “testing, medications, referrals, [or] follow-up visits, if needed.”
During the history of the present illness portion of the exam, as described above, A.D. identified Benitez as her abuser and stated that he touched her private part with his hands and would put his penis in her mouth. At the hearing conducted outside the presence of the jury, Dr. Donaruma testified that the purpose of asking the child questions about the history of the present illness is to “understand the type of inappropriate contact . . . in order to formulate a treatment plan and to determine what type of assessment should follow.” She explained that she asks these questions to “understand what the risks are for transmitting infections,” as well as to understand the consequences of sexual abuse on the child’s developmental and mental health. And, in A.D.’s case because she had exposure to the “white stuff,” Dr. Donaruma conducted testing for sexually transmitted diseases, including syphilis, hepatitis, and HIV, which were all negative.
“The object of a sexual assault exam is to ascertain whether the child has been sexually abused and to determine whether further medical attention is needed.” Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d). Dr.
15
Donaruma testimony described above clearly demonstrates that this was the purpose of the “history of the present illness” portion of her examination of A.D. Thus, despite Benitez’s assertion to the contrary, we conclude that A.D.’s statements to Dr. Donaruma “describing [Benitez’s] acts of sexual abuse are pertinent to [her] medical diagnosis and treatment.” See id.
Furthermore, although Benitez argues that there was no evidence that A.D.
understood the need to be truthful in her statements to Dr. Donaruma, “there is no requirement that a witness expressly state that the hearsay declarant recognized the need to be truthful in her statements for the medical treatment exception to apply.” Id. at 188. The court of criminal appeals has observed that “it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that [a] doctor’s questions are designed to elicit accurate information and that veracity will serve their best interest.” Taylor, 268 S.W.3d at 589. Thus, the reviewing court must look to the record to determine if it supports a conclusion that the declarant understood the importance of honesty in the context of medical diagnosis and treatment. See id. (recognizing “the almost universal tendency of courts under these circumstances to assay the record, not for evidence of such an awareness, but for any evidence that would negate such an awareness”); Beheler, 3 S.W.3d at 188–89.
16
Benitez argues that A.D. “knowingly provided false information during the medical examination,” which “definitively establishes she did not understand that truthfulness was vital for medical treatment.” But we disagree with this characterization of A.D.’s testimony. A.D. testified that she has “[n]ot always” said that Benitez abused her first and that during Dr. Donaruma’s exam, she said it was his son who abused her first. A.D. did not testify that she lied during Dr. Donaruma’s exam, or that she knowingly provided false information. Rather, she testified only that she “was mistaken” and “[i]t is, in fact, [Benitez]” who abused her first. That she made a mistake in her recollection of the abuse during Dr. Donaruma’s examination does not mean she did not understand the importance of being truthful.
And a review of the record demonstrates the opposite. As we explained above, Dr. Donaruma is a medical doctor who works at the CAC, a facility that serves “children and families who are going through the process of disclosure of sexual abuse.” As part of her role at the CAC, she performs medical examinations on children who are referred to the facility. She detailed the four steps involved in these exams, as noted above. As part of the process, Dr. Donaruma first tries to get to know the child before getting into the very personal questions. And she explained that she asks open ended questions to ensure that the child does feel as if “there’s a good answer or a bad answer.”
17
When testifying about A.D.’s interview specifically, Dr. Donaruma testified that A.D. appeared cooperative and anxious during the interview, and that she made good eye contact. She testified that there were times during the interview when A.D. became tearful, after which they took a break and Dr. Donaruma “validated [A.D.’s] feelings [and] offered reassurance.” Dr. Donaruma explained that during the interview, A.D. was “very clearly” able to distinguish Benitez’s abuse from the abuse by his son.
Dr. Donaruma testified that A.D. deferred the general physical exam, which is a head-to-toe exam, but that she consented to the genital exam. Dr. Donaruma testified that A.D. tolerated the exam well and that she did not see signs of injury, infection, or other variations or conditions. And she testified that she concluded the exam by conducting testing for sexually transmitted diseases and referring A.D. to counseling. Dr. Donaruma testified that, given that A.D. had “reported painful contact,” it was “really valuable” to provide reassurance and to report to A.D. that “everything was well and healthy.”
After reviewing the record, we conclude that it demonstrates that A.D. was a child of sufficient age and apparent maturity to understand that she was at the CAC because of the sexual assault and needed to be truthful during Dr. Donaruma’s sexual-assault examination. See, e.g., State v. Sanchez, 722 S.W.3d 58, 71–72 (Tex. App.—Fort Worth 2025, pet. ref’d) (reviewing entire record of child’s examination
18
by sexual assault nurse examiner, including nurse’s description of child and details of her examination, and concluding that 11-year-old child was of sufficient age and maturity to understand she needed to be truthful during sexual assault examination and therefore child’s statements to nurse were admissible under Rule 803(4)).
Finally, we reject Benitez’s argument that A.D.’s statements identifying him as the perpetrator were not “reasonably pertinent” to any treatment. While it is true that many sexual assault exams gather evidence routinely used at trial, such as the identity of the abuser and the nature of the assault, courts have found identity to be pertinent to medical diagnosis and treatment in child sexual assault cases. See Taylor, 268 S.W.3d at 591 (recognizing that abuser’s identity can be pertinent to diagnosis or treatment “to discover the extent of the child’s ‘emotional and psychological injuries’—particularly when the perpetrator might be a family or household member and it is important to remove the child from the abusive environment”).9 In this case, A.D. told Dr. Donaruma that Benitez, her mother’s boyfriend who had lived with them for years, had abused her. Dr. Donaruma testified that in child
9 See also Hernandez v. State, No. 01-23-00037-CR, 2024 WL 3658056, at *7 (Tex.
App.—Houston [1st Dist.] Aug. 6, 2024, no pet.) (mem. op., not designated for publication) (recognizing that identity of abuser as close family member can inflict extensive psychological damage and holding that child’s statements to nurse examiner, who testified that disclosing abuser’s identity is important to ensure child’s safety when discharging them, identifying stepfather as abuser were pertinent to medical diagnosis and treatment).
19
sexual abuse cases, it is important to find out the identity of the alleged abuser for “the safety and protection of the child,” because many times the abuser may be someone who shares their home and it is important to be certain the child is not still sharing a home with that person upon release. And she testified that, following her exam, she referred A.D. to counseling because she “manifested a lot of symptoms in the evaluation,” including “trying so hard to be protective of her mother . . . and crying about the burden of this whole experience.”
As discussed in Taylor, the identity of a perpetrator as a close family member can inflict extensive psychological damage. See Taylor, 268 S.W.3d at 591. That damage and trauma, in turn, can necessitate counseling or other mental health treatment as Dr. Donaruma recommended for A.D. here. Thus, we conclude that A.D.’s statements to Dr. Donaruma identifying Benitez as her abuser were pertinent to her medical diagnosis and treatment. See id.; see also Hernandez v. State, No. 01- 23-00037-CR, 2024 WL 3658056, at *7 (Tex. App.—Houston [1st Dist.] Aug. 6, 2024, no pet.) (mem. op., not designated for publication).
For the above reasons, we conclude that A.D.’s statements to Dr. Donaruma identifying Benitez as her abuser and describing the nature of the abuse were for the purpose of medical diagnosis and treatment and, therefore, were properly admitted under Rule 803(4).
We overrule Benitez’s second issue.
20
Reliability of Outcry Statement In his third issue, Benitez argues that the trial court abused its discretion in finding A.D.’s outcry statement to her mother reliable and admitting this testimony under Article 38.072. A. Standard of Review and Applicable Law The Texas Code of Criminal Procedure allows admission of certain hearsay testimony in the prosecution of sexual offenses against minors. TEX. CODE CRIM. PROC. art. 38.072. The statute allows the designation of an outcry witness to testify about a child’s disclosure of abuse but requires that the outcry witness be the “first person, 18 years of age or older, other than the defendant, to whom the child . . . made a statement about the offense.” Id. § 2(a)(3).
Before a designated outcry witness may testify about the child’s disclosure, the trial court must find, “in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement.” TEX. CODE CRIM. PROC. art. 38.072, § 2(b)(2). “The phrase time, content, and circumstances refers to the time the child’s statement was made to the outcry witness, the content of the child’s statement, 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) (internal quotations and citations omitted).
21
In such a hearing, the trial court’s focus is whether the child’s outcry statement is reliable, not whether the outcry witness is credible. Sanchez v. State, 354 S.W.3d 476, 487–88 (Tex. Crim. App. 2011); see TEX. CODE CRIM. PROC. art. 38.072, § 2(b)(2). The trial court considers the circumstances of the outcry, not the abuse itself. Sanchez, 354 S.W.3d at 487.
A trial court has “broad discretion” in admitting outcry-witness testimony.
Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). We will not reverse the trial court’s decision to admit such testimony unless it falls outside the zone of reasonable disagreement. See id. B. Analysis Here, at the Article 38.072 hearing, A.D.’s mother testified that the morning after her birthday party in July 2020, A.D. told her that Benitez “would bring her to the restroom when I was at work and he would touch her middle part and put his penis into her mouth.” A.D. further told her that Benitez would “offer her sweets or candy and he would show himself to her.”
Benitez argues that the trial court abused its discretion in admitting this testimony because the delay in the outcry, the content of the statement, and A.D.’s inability to clearly recall the circumstances of the disclosure all call into question the outcry’s reliability.
22
But assuming without deciding that the trial court abused its discretion in admitting A.D.’s mother’s outcry testimony, we conclude that any such error was harmless.
The admission of inadmissible hearsay constitutes nonconstitutional error, and it will be considered harmless if, after examining the record as a whole, we are reasonably assured that the error did not influence the jury verdict or had but a slight effect. See TEX. R. APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). Likewise, improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991). And both this Court and our sister court in Houston have held that any error in admitting hearsay under Article 38.072 is harmless if the same or similar evidence is admitted without objection at another point in the trial. See Lamerand v. State, 540 S.W.3d 252, 259– 60 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (any error in admitting outcry testimony was harmless because complainant gave similar testimony); Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (improperly admitted outcry testimony was harmless because complainant gave “substantially the same account of the offense” in her testimony).
A.D. testified at trial in detail about Benitez’s abuse, without objection. She testified that Benitez would lead her into her mother’s room, where he would have
23
her lie on the bed and he would touch her breasts and vagina. She testified that Benitez would touch her vagina with his hands, and that sometimes her clothes were on and sometimes they were off. She testified that she felt “uncomfortable” when Benitez would touch her vagina.
A.D. also testified that Benitez would touch her vagina with his mouth. She described feeling “very uncomfortable” when Benitez touched her vagina with his mouth, because it was “very wet and wasn’t a good feeling.” She also testified that Benitez would “sit [her] on the edge of the bed and . . . he put his penis in [her] mouth.” She testified that when his penis was in her mouth sometimes “white stuff” would come out. And she testified Benitez would also give A.D. candy after he abused her.
A.D.’s testimony and her mother’s testimony both established that Benitez sexually abused A.D. by touching her vagina and by putting his penis in her mouth. Because the same evidence was admitted without objection at other points during the trial, we conclude that any error in admitting A.D.’s mother’s outcry testimony was harmless. See Lamerand, 540 S.W.3d at 259–60; Nino, 223 S.W.3d at 754.
We overrule Benitez’s third issue.
Expert Testimony
In his fourth issue, Benitez claims that the trial court improperly qualified Dr.
Crowson as an expert in substance abuse and memory effects, despite her lack of
24
expertise in toxicology, pharmacology, or addiction, which “created a credibility spillover that improperly bolstered all of her testimony” in violation of Rule 702.
We disagree. Although the trial court generally agreed that Dr. Crowson was qualified, it explicitly ruled that she “shall not testify or be asked to testify about substance abuse affecting memory since there’s no allegation that the minor in this case was using any substance.” And Benitez admits that Dr. Crowson did not testify about substance abuse or its effect on memory during trial.
Accordingly, because Dr. Crowson was not permitted to testify—and did not testify—about the complained-of subject matter, we hold that Benitez has not identified any error for our review. See TEX. R. APP. P. 33.1; Hicks v. State, 718 S.W.3d 554, 562 (Tex. App.—Houston [14th Dist.] 2025, pet. ref’d) (“The trial court must make an adverse ruling; ‘that is, it must be clear from the record the trial judge in fact overruled the defendant’s objection or otherwise error is waived.’” (quoting Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991)).
We overrule Benitez’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
Do not publish. TEX. R. APP. P. 47.2(b).
25
Terry Adams
Chief Justice
Panel consists of Chief Justice Adams and Justices Guerra and Guiney.