AFFIRMED and Opinion Filed May 20, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00276-CR
STEVEN JAMES MORRIS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. 072064
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Garcia A jury found appellant guilty of continuous sexual abuse of a child and
assessed punishment at life in prison. In a single issue, appellant asserts the trial
court erred by allowing testimony from multiple outcry witnesses. Concluding
appellant’s arguments are without merit, we affirm the trial court’s judgment.
I. BACKGROUND
CC outcried that appellant had abused him on numerous occasions when his
parents weren’t home. Following an investigation, appellant was charged with
sexual abuse of a child under fourteen. Detective Kenna Norris testified at trial about her interview with CC and her
investigation. During that interview, CC disclosed that appellant had used his hand,
under the clothing, to touch CC’s penis, and that this had occurred on numerous
occasions.
Dr. Purvi Patel testified, without objection, about her psychological
evaluation of CC. Her written report, detailing her evaluation, was admitted into
evidence, also without objection.
Teresa Lancaster, a licensed professional counselor and sex-offender
treatment provider, testified without objection about CC’s diagnosis, treatment, and
written statements CC made about who molested him. The records from which she
testified were admitted into evidence with no objection.
CC also testified at trial. Appellant, CC’s grandfather, would babysit for CC
when his parents were at work. During that time, appellant touched CC on his “penis
and butt” with his hands, mouth, and penis on numerous occasions. This first
occurred when CC was eleven years old and in the fourth grade. Appellant also had
CC touch appellant’s penis with CC’s mouth and hand. The abuse continued from
the time CC was “halfway into fourth grade” until he was “halfway into fifth grade.”
When the trial concluded, the jury found appellant guilty of continuous sexual
abuse of a child under fourteen and assessed punishment at life in prison. The court
entered a final judgment in accordance with the jury’s verdict. This timely appeal
followed.
–2– II. ANALYSIS
Appellant’s sole issue challenges the admission of testimony from Patel,
Lancaster, and Norris. According to appellant, the testimony was hearsay, and it was
error to allow multiple outcry witnesses because they all testified about the same
instances of abuse.
A. Patel’s and Lancaster’s Testimony
Both Patel and Lancaster testified without objection. To preserve error under
Rule 33.1(a), the record must show that: (1) the complaining party made a timely
and specific request, objection, or motion; and (2) the trial court either ruled on the
request, objection, or motion, or refused to rule and that complaining party objected
to that refusal. TEX. R. APP. P. 33.1; Clarke v. State, 270 S.W.3d 573, 582 (Tex.
Crim. App. 2008) (argument must be presented to trial court to preserve error for
appellate review). Because appellant did not object to the testimony at trial, his
complaint presents nothing for our review. See Villalobos v. State, No. 03-13-00687-
CR, 2015 WL 5118369, at *7 (Tex. App.—Austin Aug. 26, 2015, pet. ref’d) (mem.
op., not designated for publication); Ross v. State, 76 S.W.3d 771, 776–77 (Tex.
App.—Houston [1st Dist.] 2002, no pet.).
Moreover, even if appellant had preserved the alleged error, his argument
fails. Patel explained that CC’s responses to her questions in the interview were
necessary for her diagnosis of him. Likewise, the statements made in Lancaster’s
records were pertinent to CC’s diagnosis and treatment. Statements made for the
–3– purpose of medical diagnosis and treatment are an exception to the hearsay rule. See
TEX. R. EVID. 803.4; Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
In addition, the same or similar statements were admitted through other
evidence without objection. Appellant complains about the witnesses’ testimony.
But the hearsay statements forming the basis of that testimony were based on the
witnesses’ records that were admitted into evidence without objection. It is well
settled that the improper admission of evidence is rendered harmless when other
evidence proving the same fact is properly admitted elsewhere (or comes in
elsewhere without objection). See Anderson v. State, 717 S.W.2d 622, 627 (Tex.
Crim. App. 1986). And in cases involving the improper admission of outcry
testimony, the error is harmless when the victim testifies in court to the same or
similar statements that were improperly admitted or other evidence setting forth the
same facts is admitted without objection. See, e.g., Allen v. State, 436 S.W.3d 815,
822 (Tex. App.—Texarkana 2014, pet. ref’d); Zarco v. State, 210 S.W.3d 816, 833
(Tex. App.—Houston [14th Dist.] 2006, no pet.). Here, CC testified without
objection about the instances of abuse described in Patel’s and Lancaster’s testimony
and records. Therefore, even if the trial court erred in admitting the testimony, the
error was harmless.
B. Norris’s Testimony
Appellant also complains that Norris’s hearsay testimony should not have
been admitted because Norris was one of multiple outcry witnesses and “no hearing
–4– was conducted outside the jury’s presence” to determine the reliability of the hearsay
statements.
“Hearsay statements, while generally inadmissible, may be admitted under
specific conditions when public policy supports their use, and the circumstances
surrounding the making of those statements pedigree their reliability.” Martinez v.
State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005). Article 38.072 of the Texas
Code of Criminal Procedure, also known as the outcry statute, creates a hearsay
exception in the prosecution of certain sexual offenses committed against children
for the admission of a child’s first outcry concerning sexual abuse to an adult. See
TEX. CODE CRIM. PROC. ANN. art. 38.072; Bays v. State, 396 S.W.3d 580, 581 n.1
(Tex. Crim. App. 2013). “Because it is often traumatic for children to testify in a
courtroom setting, especially about sexual offenses committed against them, the
Legislature enacted Article 38.072 to admit the testimony of the first adult a child
confides in regarding the abuse.” Martinez, 178 S.W.3d at 810–11. “This witness
may recite the child’s out-of-court statements concerning the offense, and that
testimony is substantive evidence of the crime.” Id. at 811.
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AFFIRMED and Opinion Filed May 20, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00276-CR
STEVEN JAMES MORRIS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. 072064
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Garcia A jury found appellant guilty of continuous sexual abuse of a child and
assessed punishment at life in prison. In a single issue, appellant asserts the trial
court erred by allowing testimony from multiple outcry witnesses. Concluding
appellant’s arguments are without merit, we affirm the trial court’s judgment.
I. BACKGROUND
CC outcried that appellant had abused him on numerous occasions when his
parents weren’t home. Following an investigation, appellant was charged with
sexual abuse of a child under fourteen. Detective Kenna Norris testified at trial about her interview with CC and her
investigation. During that interview, CC disclosed that appellant had used his hand,
under the clothing, to touch CC’s penis, and that this had occurred on numerous
occasions.
Dr. Purvi Patel testified, without objection, about her psychological
evaluation of CC. Her written report, detailing her evaluation, was admitted into
evidence, also without objection.
Teresa Lancaster, a licensed professional counselor and sex-offender
treatment provider, testified without objection about CC’s diagnosis, treatment, and
written statements CC made about who molested him. The records from which she
testified were admitted into evidence with no objection.
CC also testified at trial. Appellant, CC’s grandfather, would babysit for CC
when his parents were at work. During that time, appellant touched CC on his “penis
and butt” with his hands, mouth, and penis on numerous occasions. This first
occurred when CC was eleven years old and in the fourth grade. Appellant also had
CC touch appellant’s penis with CC’s mouth and hand. The abuse continued from
the time CC was “halfway into fourth grade” until he was “halfway into fifth grade.”
When the trial concluded, the jury found appellant guilty of continuous sexual
abuse of a child under fourteen and assessed punishment at life in prison. The court
entered a final judgment in accordance with the jury’s verdict. This timely appeal
followed.
–2– II. ANALYSIS
Appellant’s sole issue challenges the admission of testimony from Patel,
Lancaster, and Norris. According to appellant, the testimony was hearsay, and it was
error to allow multiple outcry witnesses because they all testified about the same
instances of abuse.
A. Patel’s and Lancaster’s Testimony
Both Patel and Lancaster testified without objection. To preserve error under
Rule 33.1(a), the record must show that: (1) the complaining party made a timely
and specific request, objection, or motion; and (2) the trial court either ruled on the
request, objection, or motion, or refused to rule and that complaining party objected
to that refusal. TEX. R. APP. P. 33.1; Clarke v. State, 270 S.W.3d 573, 582 (Tex.
Crim. App. 2008) (argument must be presented to trial court to preserve error for
appellate review). Because appellant did not object to the testimony at trial, his
complaint presents nothing for our review. See Villalobos v. State, No. 03-13-00687-
CR, 2015 WL 5118369, at *7 (Tex. App.—Austin Aug. 26, 2015, pet. ref’d) (mem.
op., not designated for publication); Ross v. State, 76 S.W.3d 771, 776–77 (Tex.
App.—Houston [1st Dist.] 2002, no pet.).
Moreover, even if appellant had preserved the alleged error, his argument
fails. Patel explained that CC’s responses to her questions in the interview were
necessary for her diagnosis of him. Likewise, the statements made in Lancaster’s
records were pertinent to CC’s diagnosis and treatment. Statements made for the
–3– purpose of medical diagnosis and treatment are an exception to the hearsay rule. See
TEX. R. EVID. 803.4; Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
In addition, the same or similar statements were admitted through other
evidence without objection. Appellant complains about the witnesses’ testimony.
But the hearsay statements forming the basis of that testimony were based on the
witnesses’ records that were admitted into evidence without objection. It is well
settled that the improper admission of evidence is rendered harmless when other
evidence proving the same fact is properly admitted elsewhere (or comes in
elsewhere without objection). See Anderson v. State, 717 S.W.2d 622, 627 (Tex.
Crim. App. 1986). And in cases involving the improper admission of outcry
testimony, the error is harmless when the victim testifies in court to the same or
similar statements that were improperly admitted or other evidence setting forth the
same facts is admitted without objection. See, e.g., Allen v. State, 436 S.W.3d 815,
822 (Tex. App.—Texarkana 2014, pet. ref’d); Zarco v. State, 210 S.W.3d 816, 833
(Tex. App.—Houston [14th Dist.] 2006, no pet.). Here, CC testified without
objection about the instances of abuse described in Patel’s and Lancaster’s testimony
and records. Therefore, even if the trial court erred in admitting the testimony, the
error was harmless.
B. Norris’s Testimony
Appellant also complains that Norris’s hearsay testimony should not have
been admitted because Norris was one of multiple outcry witnesses and “no hearing
–4– was conducted outside the jury’s presence” to determine the reliability of the hearsay
statements.
“Hearsay statements, while generally inadmissible, may be admitted under
specific conditions when public policy supports their use, and the circumstances
surrounding the making of those statements pedigree their reliability.” Martinez v.
State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005). Article 38.072 of the Texas
Code of Criminal Procedure, also known as the outcry statute, creates a hearsay
exception in the prosecution of certain sexual offenses committed against children
for the admission of a child’s first outcry concerning sexual abuse to an adult. See
TEX. CODE CRIM. PROC. ANN. art. 38.072; Bays v. State, 396 S.W.3d 580, 581 n.1
(Tex. Crim. App. 2013). “Because it is often traumatic for children to testify in a
courtroom setting, especially about sexual offenses committed against them, the
Legislature enacted Article 38.072 to admit the testimony of the first adult a child
confides in regarding the abuse.” Martinez, 178 S.W.3d at 810–11. “This witness
may recite the child’s out-of-court statements concerning the offense, and that
testimony is substantive evidence of the crime.” Id. at 811.
The child’s statement to the adult is commonly known as the “outcry” and the
adult who testifies about the outcry is known as the “outcry witness.” See Sanchez
v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Outcry testimony admitted
pursuant to article 38.072 is considered substantive evidence, admissible for the truth
of the matter asserted in the testimony. See Bays, 396 S.W.3d at 581 n.1.
–5– The statute requires that: (1) on or before the fourteenth day before
proceedings begin, the adverse party is (a) notified of the State’s intent to offer
the outcry statement, (b) provides the name of the outcry witness the State intends
to offer, and (c) provides a written summary of the statement; (2) the trial court holds
a hearing to determine whether the statement is reliable; and (3) the child testifies or
is available to testify. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b); Bays, 396
S.W.3d at 581 n.1.
When Norris testified, appellant objected that Norris was not the first adult to
whom CC outcried. Contrary to appellant’s assertion, the trial court conducted a
hearing outside the jury’s presence following the objection.1
During that hearing, defense counsel argued that the forensic interview
recording showed that CC had first outcried to his mother. The trial judge reviewed
the recording and the audio recording from Norris’s body camera and noted that CC
had not made a previous outcry. Appellant could not identify any other support for
his argument that CC first outcried to his mother, and his objection was overruled.
Without identifying any specific testimony to support his argument, appellant
now argues generally that the court erroneously allowed multiple outcry witnesses
1 Appellant does not complain about the nature of or any alleged inadequacies in the hearing. He simply characterizes it as nonexistent. Courts have great discretion in how they manage their article 38.072 hearings. Sanchez, 354 S.W.3d at 488. The record reflects that such a hearing occurred here. To the extent that appellant argues that there was no hearing concerning Patel and Lancaster, appellant’s failure to raise this complaint in the court below presents nothing for our review. See Saunders v. State, No. 03-19-00191- CR, 2021 WL 1031343, at *2 (Tex. App.—Austin Mar. 18, 2021, no pet.) (mem. op., not designated for publication). –6– to testify about the same instances of abuse. Appellant did not raise this complaint
in the court below. Indeed, as we have previously noted, appellant did not object to
Patel’s or Lancaster’s testimony on any grounds. His failure to do so results in
forfeiture of the issue on appeal. See Portwood v. State, No. 14-19-00377-CR, 2020
WL 6072721, at *3 (Tex. App.—Houston [14th Dist.] Oct. 15, 2020, no pet.) (mem.
op., not designated for publication).
Appellant’s argument that the trial court did not make a reliability
determination concerning Norris’s testimony is misplaced. While Article 38.072
requires that the trial court find that an outcry statement is reliable, the Texas Court
of Criminal Appeals has held that an implied finding is sufficient to comply with
that requirement. Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim. App. 1990).
Such a finding may be implied if, after conducting a reliability hearing, the trial court
overrules the defendant’s objections to the outcry evidence and holds that the
testimony is admissible. Gabriel v. State, 973 S.W.2d 715, 718 (Tex. App.—Waco
1998, no pet.). When the trial court overruled appellant’s objection to Norris’s
testimony, it impliedly found the testimony reliable.
–7– Accordingly, we conclude that the trial court did not err by admitting any of
the complained-of testimony. We resolve appellant’s issue against him and affirm
the trial court’s judgment.
/Dennise Garcia/ DENNISE GARCIA JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 210276F.U05
–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STEVEN JAMES MORRIS, On Appeal from the 59th Judicial Appellant District Court, Grayson County, Texas No. 05-21-00276-CR V. Trial Court Cause No. 072064. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Molberg and Reichek participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 20, 2022
–9–