Affirmed and Memorandum Opinion filed September 25, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00476-CR
EMMANUEL VON ALLEN EVANS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1339815
MEMORANDUM OPINION
Appellant Emmanuel Von Allen Evans appeals his conviction for aggravated
sexual assault of a child. See Tex. Penal Code § 22.021(a)(B). A jury found him
guilty and the trial court assessed punishment at life imprisonment. In a single
issue on appeal, appellant contends that the trial court erred in admitting hearsay
testimony that went beyond the scope of the State’s notice of outcry testimony
under article 38.072 of the Texas Code of Criminal Procedure. We affirm.
Background
The complainant’s brother testified that he walked into the complainant’s
room and saw the complainant lying on the bed. He saw appellant masturbating
with one hand and touching the complainant with the other hand. The brother
startled appellant and the complainant. The brother requested that appellant go
with him to explain what had happened to the complainant’s mother.
The complainant’s mother testified that appellant reported he had
masturbated while fondling the complainant. Appellant claimed to be “tripping”
and claimed he had “blacked out.” The mother instructed her son to call the police.
The complainant reported to her mother that appellant was standing in her
bedroom doorway rubbing his penis. He came into her bedroom and asked to see
her vagina. She refused and he began masturbating. Appellant then moved the
complainant’s shorts to the side exposing her vagina, and touched her. The mother
could not remember when the complainant told her that appellant placed his mouth
on her vagina. She testified, however, that appellant admitted placing his mouth on
the complainant’s vagina.
After the police investigation appellant was not immediately arrested. Six
days after the incident appellant phoned the complainant’s mother who recorded
the call. The trial court admitted the audio recording over appellant’s hearsay
objection. In the audio recording appellant twice admitted to placing his mouth on
the complainant’s vagina.
The complainant testified that appellant came into her bedroom and asked to
see her vagina. When she refused he pulled her shorts to the side and touched her
vagina while masturbating. She testified appellant also placed his mouth on her
vagina. Appellant did not stop until the complainant’s brother entered the room.
2
Standard of Review
In his sole issue on appeal, appellant contends that the trial court erred in
admitting hearsay testimony that went beyond the scope of the State’s notice of
outcry testimony under article 38.072 of the Code of Criminal Procedure. Hearsay
statements are generally inadmissible unless permitted by statute or evidentiary
rule. See Tex. R. Evid. 802, 803. Article 38.072 provides a statutory exception to
the hearsay rule that allows the State to introduce outcry statements, which would
otherwise be considered inadmissible hearsay, made by a child victim of certain
offenses, including the one at issue in this case. See Tex. Code Crim. Proc. art.
38.072. It permits the statements of a child victim describing the alleged offense to
be admitted through an “outcry witness,” i.e., the first adult to whom the child
made a statement about the alleged offense. Id.
To invoke the statutory exception, the State must notify the defendant of its
intent, provide the name of the outcry witness, and provide a summary of the
statement. See id. art. 38.072 § 2(b)(1). The purpose of these requirements is to
avoid surprising the defendant with the introduction of outcry hearsay testimony.
See Gay v. State, 981 S.W.2d 864, 866 (Tex. App.—Houston [1st Dist.] 1998, pet.
ref’d). To achieve this purpose, the written summary must give the defendant
adequate notice of the content and scope of the outcry testimony. Davidson v.
State, 80 S.W.3d 132, 136 (Tex. App.—Texarkana 2002, pet. ref’d). The notice is
sufficient if it reasonably informs the defendant of the essential facts related in the
outcry statement. Id. A trial court’s determination that an outcry statement is
admissible under article 38.072 is reviewed under an abuse of discretion standard.
Nino v. State, 223 S.W.3d 749, 752 (Tex. App.—Houston [14th Dist.] 2007, no
pet.) (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990)).
3
Discussion
On December 11, 2012, the State filed its Notice of Intention to Use Child
Abuse Victim’s Hearsay Statement pursuant to article 38.072 of the Texas Code of
Criminal Procedure. The State gave notice that it intended to offer the statements
of Deputy DB Pappa, Dr. Reena Isaac, and Susan Odhiambo. The notice did not
reflect that the State intended to offer the testimony of the complainant’s mother as
an outcry witness.
At trial, the complainant’s mother testified:
Q. Did you ask her what happened?
A. Yes, I did.
Q. What did she tell you?
[Defense counsel]: I object to that as hearsay, Judge.
THE COURT: Sustained.
[The prosecutor]: Judge, this is the outcry witness.
Q. (BY [the prosecutor]) Let me ask you another question.
Were you the first adult that your daughter told —
A. Yes.
*****
Q. At any point that night, did the defendant tell you that he put his
mouth on your daughter — on [the complainant]’s female sexual
organ?
[Defense counsel]: Your Honor, I object to that as hearsay.
THE COURT: Overruled.
A. I honestly can’t say if it was that night, but he did admit it.
*****
Q. What additional details did she give you about what he did to her
that night?
[Defense counsel]: I object to hearsay, Judge.
4
THE COURT: Overruled.
Q. (BY [the prosecutor]) All we can talk about right now are the
additional details that she told you.
A. She told me that he had her to touch him, made her touch his penis
and that he put his mouth on her vagina. And he forced her, you
know, to allow him to fondle her as well as put his mouth on her
vagina.
Appellant argues that the trial court abused its discretion in admitting the
complainant’s mother’s testimony over his hearsay objections because he did not
receive proper notice that the mother would be an outcry witness under article
38.072 of the Texas Code of Criminal Procedure. Appellant further complains that
he did not receive a summary of the mother’s testimony as is required by article
38.072.
Preservation of Error
Initially, the State argues that appellant failed to preserve error because he
did not specifically object to the lack of notice. Appellant made only a general
hearsay objection. This court has held, however, that a general hearsay objection is
sufficient to preserve all appellate claims under article 38.072. See Zarco v. State,
210 S.W.3d 816, 828–29 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing
Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (“A general hearsay
objection . . . is enough to preserve all appellate claims under [article 38.072].”)).
We therefore conclude that appellant’s general hearsay objection preserved error
under article 38.072.
Notice of Outcry Witness
The State failed to satisfy the procedural requirement of notice under article
38.072. It is not disputed that the complainant’s mother was not included as a
potential outcry witness in the State’s notice.
5
However, our analysis does not end there. We may not reverse a conviction
due to erroneous admission of hearsay testimony unless we determine that it
affected appellant’s substantial rights. See Tex. R. App. P. 44.2(b); Taylor v. State,
268 S.W.3d 571, 592 (Tex. Crim. App. 2008). An error affects a substantial right
“when the error [has] 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).
Thus, we affirm a criminal conviction despite nonconstitutional error if, after
examining the record as a whole, we are left with the fair assurance that the error
did not influence the jury or influenced the jury only slightly. Schutz v. State, 63
S.W.3d 442, 443 (Tex. Crim. App. 2001). We consider the entire record in
assessing any impact that the error had on the jury’s decision, including the nature
of the evidence supporting the verdict, as well as the character of the error and its
relationship to other evidence, to determine if the error substantially affected an
appellant’s rights. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
Here, the indictment alleged that appellant “intentionally and knowingly
cause[d] the sexual organ of [the complainant], a person younger than fourteen
years of age, to contact the MOUTH of the Defendant.” Appellant specifically
complains about the mother’s testimony that the complainant reported appellant
placed his mouth on her vagina. The mother’s testimony, however, was not the
only source of evidence on this issue. The complainant testified without objection
that appellant placed his mouth on her vagina. Appellant was able to cross-examine
the complainant on her testimony. Moreover, in the recorded telephone
conversation, which was played for the jury, appellant admitted:
Naw, I ain’t eat it all. I just, like, you know, like, grazed on top of it,
like with the tip of my tongue. Like, not all the way on it, but, like,
just the tip.
*****
6
I had thought about it, and I remember, I had did it twice.
*****
I licked it like a couple times, and I had jacked-off and nutted on my
own hand.
*****
And that’s the God honest truth, like I said, I never did come on her, I
never did come in her, my come never did touch her, like I said my
hands had touched her and my tongue had touched her.
The State did not emphasize the mother’s testimony in closing argument other than
her statement on the audio tape that the complainant had reported the incident to
her.
In light of the substantial evidence against appellant from the complainant
and his own admission, we are left with the fair assurance that the trial court’s
error in admitting certain hearsay testimony either did not influence the jury or
only influenced the jury slightly. See Schutz, 63 S.W.3d at 443; see also Biggs v.
State, 921 S.W.2d 282, 287–88 (Tex. App.—Houston [1st Dist] 1995, pet. ref’d)
(holding error in admitting hearsay outcry statements was harmless at least in part
because of the nature of other evidence, including complainant’s testimony and
defendant’s own admission to certain conduct around children). Accordingly, we
find such error to be harmless and overrule appellant’s sole issue.
We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
7