Opinion issued August 13, 2026
In The
Court of Appeals
For The
First District of Texas
argues that the trial court erred in admitting outcry witness testimony and video excerpts of the complainant’s forensic interviews. We affirm.
Background
J.M. was seven or eight years old when her mother and Perry moved in together. J.M. was the oldest of four children living in the house. In 2002, when J.M. was about 10 years old, she told her mother that Perry had been touching her inappropriately and that he had tried to penetrate her vagina with his penis. J.M.’s mother immediately called the police, and she never saw Perry again.
J.M. was taken to the Children’s Assessment Center (“CAC”) for forensic interviews. During the interviews, J.M. recalled that starting when she was about 8 years old, Perry touched her inappropriately over her clothing while play-fighting with her and her brothers. Eventually, Perry began taking her to her mother’s bedroom and sending her brothers to their bedrooms. In the mother’s bedroom, Perry touched J.M. inappropriately and attempted to penetrate her vagina with his penis. J.M. recalled that on one occasion, she was on her mother’s bed and did not have bottoms on. Perry did not have on pants or underwear, and he put his penis in her vagina. She remembered that it hurt. Another time, he inserted a vibrator into her vagina. Finally, when she was about 8 years old, Perry made her perform oral sex on him while he showed her pornography. No criminal charges were brought against Perry at the time of J.M.’s disclosure.
3
After attending therapy as an adult, J.M. reached out to law enforcement in 2020 or 2021 about the case, and Perry was charged with aggravated sexual assault of a child. After trial, the jury convicted Perry, and the court sentenced him to 30 years’ imprisonment. He appealed.
Outcry Witness Testimony
On appeal, Perry argues that the trial court abused its discretion by erroneously permitting an outcry witness to testify to uncharged acts of abuse. Perry was indicted for “intentionally and knowingly caus[ing] the mouth of J.M. . . . to contact [his] sexual organ.” The trial court permitted two outcry witnesses to testify. J.M.’s mother testified that in 2002 J.M. told her that Perry touched her vagina and attempted to penetrate it with his penis. A forensic interviewer testified that J.M. said that Perry made her perform oral sex five or six times. Perry argues that because he was indicted for oral sex acts, the trial court erroneously permitted the jury to hear about unindicted acts of abuse by allowing J.M.’s mother to testify as an outcry witness. J.M.’s outcry to her mother did not include oral sex. The State responds that the details of abuse mentioned in both statements should be considered part of the outcry. But the State also argues that we need not opine on the scope of the outcry statute because even assuming error, it was harmless.
4
A. Article 38.072 Under Texas’s evidentiary laws, hearsay is inadmissible unless it falls into one of the exceptions in Rules of Evidence 803 or 804, or it is allowed “by other rules prescribed pursuant to statutory authority.” TEX. R. EVID. 802. One of those “other rules” is Article 38.072 of the Code of Criminal Procedure. When a defendant is charged with certain offenses against a child under the age of 14 or a disabled individual, Article 38.072 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.” TEX. CODE CRIM. PROC. art. 38.072 § 2(a)(3); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).
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) (quoting MacGilfrey v. State, 52 S.W.3d 918, 921 (Tex. App.—Beaumont 2001, no pet.)).
5
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, 792 S.W.2d at 92. We will not reverse the trial court’s decision to admit outcry-witness testimony unless it falls outside the zone of reasonable disagreement. Id. B. Analysis Assuming without deciding that the trial court abused its discretion in admitting J.M.’s mother’s outcry testimony, 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
6
in admitting hearsay under article 38.072 is harmless if the same or similar evidence is admitted without objection at another point in trial. See Cedillo v. State, No. 01-24-00960-CR, 2026 WL 1290736 at *3, (Tex. App.—Houston [1st Dist.] May 12, 2026, pet. filed) (mem. op., not designated for publication) (holding no error in outcry testimony from three witnesses when same information came in without objection through complainants’ testimony and medical records); 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).
Even assuming the trial court erred in admitting the hearsay statement from J.M.’s mother that J.M. told her Perry touched her vagina and attempted to penetrate it with his penis, the error was harmless because J.M. testified without objection to the same facts. At trial, J.M. said that when she was about eight years old, Perry touched her breasts and vagina, put his penis in her vagina, and inserted a vibrator into her vagina. Accordingly, after examining the record, we hold that any improper admission of J.M.’s mother’s outcry testimony did not influence the jury verdict, or had but a slight effect, because the same or similar evidence was
7
admitted without objection elsewhere at trial. See Lamerand, 540 S.W.3d at 259– 60; see also Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
We overrule Perry’s first issue.
Admission of Forensic Interviews In his second issue, Perry claims that the trial court improperly admitted hearsay statements in excerpts from J.M.’s forensic interviews. The State responds that the trial court properly admitted the evidence as both a prior consistent statement and under the rule of optional completeness to correct the defense’s inaccurate references to the interviews in opening statement. A. Relevant Facts During opening statement, the defense attorney said:
Now, you will hear the term “disclosure.” Disclosure means that the alleged victim has told something that requires investigation, that something happened. On June 28th, J.M. did not disclose.
Almost two weeks later, on July 11, 2002, M.M. takes J.M. back to the CAC and insists on another interview. Another interview was given. An officer, an HPD officer, watches the interview as it goes on. Again, he feels there is no disclosure. So he tells M.M. take her to therapy and when she does disclose come back to us.
Perry’s counsel’s opening statement also reiterated that between 2002 and 2020 nothing new occurred in the case and in the intervening years, Perry moved on. The defense counsel said, “At the time [Perry] thought that any allegations that
8
[J.M.] had made, the police realized were false allegations until January of 2022 when he is finally arrested.” Defense counsel continued, “[Perry] has to defend himself by proving a negative, by proving that it didn’t happen. Passage of time, there are no witnesses. There has been this reconstructed story of what happened.” He concluded that the defense would show that the allegations against Perry were false.
In response to the defense’s opening statement telling the jury that no disclosures occurred during the forensic interviews, the State sought admission of video excerpts of J.M.’s forensic interviews showing that she did disclose abuse. The State argued that portions of the interviews should be admitted so as not to leave a false impression with the jury and as J.M.’s prior consistent statement. Perry’s counsel argued that the interview clips were unnecessary because they were cumulative of other witnesses’ testimony.
The court stated that “clearly an impression was left with the jury that no disclosure was made in either of the first two [interviews].” The court held that portions of the interviews were admissible, and the court would review each clip for context. The clips of the interviews were admitted into evidence during the forensic interviewer’s testimony and published to the jury. In the first interview, J.M. disclosed that Perry fondled her vagina and penetrated it with his penis, and in the second interview, she disclosed oral sex that occurred five or six times.
9
B. Standard of Review We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). We may reverse the trial court’s decision only if its ruling lies outside the zone of reasonable disagreement. Id. at 83. C. Applicable Law The prior statement of a witness that tracks her trial testimony is not hearsay if it is offered to rebut an express or implied charge that the witness recently fabricated it or acted from a recent improper motive. TEX. R. EVID. 801(e)(1)(B). To qualify for admission as a prior consistent statement, there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony by the opponent. Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007) (citing Tome v. United States, 513 U.S. 150, 156–58 (1995)). “The rule sets forth a minimal foundation requirement of an implied or express charge of fabrication or improper motive.” Id. “It is minimal . . . . [E]ven an attack upon the accuracy of the witness’s memory might suffice to permit the introduction of a prior consistent statement.” Id. (internal citation removed). “The fact that there need be only a suggestion of conscious alteration or fabrication gives the trial court substantial discretion to admit prior consistent statements under the rule.” Id. at 804–05 (internal citation and quotation removed).
10
“However, the rule cannot be construed to permit the admission of what would otherwise be hearsay any time a witness’s credibility or memory is challenged.” Id. at 805. “There is no bright line between a general challenge to memory or credibility and a suggestion of conscious fabrication, but the trial court should determine whether the cross-examiner’s questions or the tenor of that questioning would reasonably imply an intent by the witness to fabricate.” Id. A trial court makes that determination by considering “the content, tone, and tenor of defense cross examination. It either does or does not ‘open the door’ to the admissibility of a prior consistent statement by an express or implied suggestion that the witness is fabricating her testimony in some relevant aspect.” Id. at 808. “In deciding that question, the trial court must consider the totality of the cross- examination, not isolated portions or selected questions and answers.” Id.; see also Klein v. State, 273 S.W.3d 297, 315–17 (Tex. Crim. App. 2008) (considering entire record when determining whether trial court abused its discretion in admitting prior consistent statements). Based on the totality of circumstances in the record and “giving deference to the trial judge’s assessment of tone, tenor and demeanor,” the reviewing court should ask whether “a reasonable trial judge” could conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive.” Hammons, 239 S.W.3d at 808–09. “If so, the trial judge does not abuse his
11
discretion in admitting a prior consistent statement that was made before any such motive to fabricate arose.” Id. at 809. D. Analysis The record here meets the minimum foundational requirement of an implied or express charge of recent fabrication or improper motive. Defense counsel’s opening statement, cross-examination of the forensic interviewer and detective, and closing arguments all called into question the veracity and timing of J.M.’s disclosures.
In opening statement, defense counsel incorrectly told the jury that J.M. had been forensically interviewed twice in 2002 and no disclosure occurred in either interview. In doing so, the defense opened the door to admitting the prior consistent statement to show that J.M. in fact disclosed abuse during her forensic interviews. Hammons, 239 S.W.3d at 808.
While cross-examining the forensic interviewer, defense counsel implied that J.M. could have fabricated the details of abuse. His initial cross-examination included asking how many children undergoing forensic interviews lie, and whether a child who discloses abuse could be lying. The interviewer responded that anyone could lie, and a disclosure is that child’s truth. Defense counsel also asked if the disclosures J.M. made were vague, and the forensic interviewer
12
explained that when a disclosure is made, sometimes there are more details that later come to light, but that does not make the disclosure vague.
During cross-examination of the detective, defense counsel highlighted the lack of full disclosure in the first forensic interview and that the original investigating officer was not satisfied with subsequent disclosures because no charges were filed.
Closing argument continued with the theme that the disclosures were insufficient and J.M. had lied or had motive to lie. The defense attorney suggested that J.M. “has gone so deep in this” that she had to stick to her story 20 years later. While defense counsel told the jury in closing that he had made incorrect statements about the interview in his opening, he also said, “So the first interview, no disclosure. I’m sorry. Vague disclosure or something like that.”
Under the circumstances of this case, the trial court did not abuse its discretion in admitting portions of the forensic videos to clear up the misconception that J.M. did not disclose abuse during two forensic interviews. The State introduced the forensic interview clips as rebuttal evidence after the defense counsel both theorized that J.M. had fabricated the allegations against Perry or had a motive to lie and said directly to the jury that the interviews did not contain disclosures of sexual abuse. Samsel v. State, No. 01-20-00415-CR, 2021 WL 16184868, at *5 (Tex. App.—Houston [1st Dist.] Apr. 27, 2021, no pet.) (mem.
13
op., not designated for publication) (holding trial court did not abuse its discretion in admitting forensic interview as prior consistent statement).
The trial court assessed the tone, tenor, and demeanor during trial and the impact of the erroneous opening statement on the jury. We defer to that determination. See Hammons, 239 S.W.3d at 809; Samsel, 2021 WL 1618468, at *5. Counsel’s statements about the interviews raised issues about their content. We conclude that the portions of the forensic interviews were admissible as J.M.’s prior consistent statement. Graves. v. State, 176 S.W.3d 422, 429 (Tex. App.— Houston [1st Dist.] 2004, no pet.) (holding that videotape of child complainant was admissible as prior consistent statement and because appellant had “opened the door” by introducing specifics of videotape on cross-examination).2 Finally, as we noted in Perry’s first issue, any error in admitting evidence is nonconstitutional and must be disregarded unless it affects the defendant’s substantial rights. TEX. R. APP. P. 44.2(b). Even assuming error, any error in admitting the forensic interview clips would be harmless because the videotape was cumulative of J.M.’s live testimony to the same facts.
We overrule Perry’s issue.
2 Given our conclusion, we need not address the State’s alternative argument that the videos were admissible under the rule of optional completeness. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002) (stating we must uphold trial court’s evidentiary ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case).
14
Conclusion
We affirm the trial court’s judgment.
Susanna Dokupil
Justice
Panel consists of Justices Caughey, Johnson, and Dokupil. Do not publish. TEX. R. APP. P. 47.2(b).