COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00168-CR
JACAB AUSTIN BRITT APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
TRIAL COURT NO. CR16-00091
----------
MEMORANDUM OPINION1
----------
Appellant Jacab Austin Britt appeals from his conviction for aggravated
sexual assault of a child younger than six years of age and from the resulting
forty-year sentence. In a single issue, he asserts that the trial court abused its
discretion by admitting cumulative outcry testimony. Because either the trial
1
See Tex. R. App. P. 47.4.
court did not abuse its discretion or any error was harmless based on the
admission of similar evidence elsewhere, we affirm the trial court’s judgment.
In mid-December 2015, four-year-old Megan Smith2 told her stepmother
that “her tee tee was hurting” and was red, making an unspecified outcry
statement and naming her mother’s boyfriend—Britt. Megan’s stepmother called
the police, who sent Megan to a sexual-assault nurse examiner for a physical
exam. Megan told the nurse examiner that Britt had put his fingers between her
legs, which the nurse examiner contemporaneously wrote down:
I was in the bathtub and I was red on my tee tee—points to between
legs. Says and this is my butt—points to behind her on butt. [Britt]
did this and says I was trying to put my clothes on and he wouldn’t
let me. He did this and says he put his fingers here—points between
legs and it really hurt. I told him to stop but he wouldn’t listen. He
kept doing it. He asked me if he could touch my tee tee—I said no &
he didn’t listen. It was his fingers—I had no clothes on.
During the nurse examiner’s physical exam, she noted that Megan had “bright
red irritated skin on [her] labia majora[] bilaterally.” The nurse examiner later
explained that the bright redness was on the inside portion of Megan’s labia
majora, which could have been caused by sexual abuse, “rubbing of panties,
detergent changes, bubble bath, . . . a number of things.” After the sexual-
assault exam was completed, the police sent Megan to speak with a forensic
interviewer. Megan told the forensic interviewer that Britt “put his finger inside
her tee tee, and tapped it inside her tee tee” in the bathtub at her mother’s house.
2
We use fictitious names to refer to the complainant and her family
members to protect her identity. See Tex. R. App. P. 9.8 & cmt., 9.10.
2
Megan stated that “it felt bad and that it hurt her tee tee on the inside.” The
forensic interviewer determined that Megan was referring to her vagina by using
the words “tee tee.”
A grand jury indicted Britt with the first-degree felony offense of
intentionally or knowingly causing the penetration of Megan’s vagina with his
finger. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B), (e), (f)(1) (West
Supp. 2017). At trial, the nurse examiner read her written report to the jury, but
incorrectly read “he put his fingers in here” instead of “he put his fingers here” as
written in the report. The nurse examiner’s contemporaneous, written report was
admitted into evidence. The forensic interviewer later testified (over Britt’s
hearsay objection that the interviewer was not the proper outcry witness) that
Megan stated Britt put his finger inside her “tee tee.” Megan, who was almost six
at the time of the trial, briefly testified and “nod[ded] affirmatively” when asked if
she had told her therapist “about some things that . . . people have done to you.”
But she nodded her head “negatively” when asked if she had “ever told people
about somebody touching you in a bad place” or if she knew Britt. The jury found
Britt guilty of aggravated sexual assault of a child younger than six and assessed
his punishment at forty years’ confinement.
On appeal, Britt asserts that the trial court abused its discretion by allowing
the forensic interviewer to testify to Megan’s interview statements because the
nurse examiner had already testified to the same facts and had been the
appropriate outcry witness. See generally Tex. Code Crim. Proc. Ann. art.
3
38.072, § 2 (West Supp. 2017) (allowing admission of hearsay, outcry statement
under specific guidelines). Britt is correct that we review the trial court’s
admission of Megan’s outcry statements to the forensic interviewer for an abuse
of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990);
Schuster v. State, 852 S.W.2d 766, 768 (Tex. App.—Fort Worth 1993, pet. ref’d).
But we conclude that the trial court did not abuse its broad discretion.
The forensic interviewer was the initial person to whom Megan described
the indicted offense of aggravated sexual assault by penetration; therefore, the
interviewer’s testimony was admissible under article 38.072. See Tex. Code
Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A). Megan’s earlier statement to the
nurse examiner revealed only sexual contact and did not clearly allege
penetration. We recognize that the nurse examiner incorrectly read the word “in”
into her report; but, this merely reinforces that Megan’s statements to the nurse
examiner were, at best, unclear on the issue of penetration, which was the
alleged offense. Cf. Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d) (recognizing statement that raised inference of
penetration did not clearly describe alleged offense of sexual assault by
penetration under article 38.072, section 2(a)(1)(A)). In admitting the forensic
interviewer’s testimony under article 38.072, the trial court recognized that the
nurse examiner did not include penetration in her written report, while Megan
consistently told the forensic interviewer that Britt penetrated her vagina with his
finger. Accordingly, the trial court did not abuse its discretion by allowing the
4
forensic interviewer to testify because Megan’s first clear outcry regarding
penetration was to the forensic interviewer. See Garcia, 792 S.W.2d at 91;
Ruedas v. State, No. 11-13-00049-CR, 2015 WL 9584002, at *4 (Tex. App.—
Eastland Dec. 31, 2015, pet. ref’d) (mem. op., not designated for publication);
Josey v. State, 97 S.W.3d 687, 693 (Tex. App.—Texarkana 2003, no pet.).
But even if the forensic interviewer was not the proper outcry witness
under article 38.072, rendering her testimony inadmissible hearsay, the
admission of her testimony did not affect Britt’s substantial rights and must be
disregarded. See Tex. R. App. P. 44.2(b). Megan’s counselor testified that
Megan reported that Britt “touched her tee tee and that it hurt.” Britt did not
object to the counselor’s testimony. And Britt does not argue that the nurse
examiner’s similar testimony was erroneously admitted. Because similar
evidence to the forensic examiner’s testimony either was not objected to or was
not erroneously admitted, we would be compelled to conclude that any error in
the admission of the forensic interviewer’s cumulative testimony was harmless.
See Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986); Couchman
v. State, 3 S.W.3d 155, 160–61 (Tex. App.—Fort Worth 1999, pet. ref’d).
Accordingly, we overrule Britt’s issue and affirm the trial court’s judgment.
See Tex. R. App. P. 43.2(a).
5
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GABRIEL, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 24, 2018
6