In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00090-CR
___________________________
CARLOS CHAVEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 462nd District Court
Denton County, Texas
Trial Court No. F22-717-462
Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
Dissenting Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Appellant Carlos Chavez appeals his conviction for continuous sexual abuse of
a young child and indecency with a child. See Tex. Penal Code Ann. §§ 21.02, 21.11. In
two issues, Chavez argues that the trial court reversibly erred by (1) violating his Sixth
Amendment right to confrontation in refusing to admit evidence that the
complainants’ mother1 applied for a U-Visa 2 “shortly after” the complainants’ outcries
and (2) admitting hearsay that did not fall under the outcry statute’s exception.
Because we conclude that the trial court did not violate Chavez’s Sixth Amendment
right and that the trial court did not err by allowing the complained-of testimony, we
affirm the trial court’s judgment of conviction.
1
The complainants are Chavez and Mother’s daughters, Shelly and Tonya. To
protect the identity of the complainants, we refer to Shelly and Tonya by an alias and
to their mother as Mother. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); McClendon v. State,
643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2
A U-Visa is “an immigrant permit for victims of violent crime.” Aguilar v. State,
No. 02-14-00119-CR, 2015 WL 1775634, at *1 (Tex. App.—Fort Worth Apr. 16,
2015, no pet.) (mem. op., not designated for publication). It authorizes the granting of
nonimmigrant status to certain aliens or noncitizens who are not otherwise legally in
the United States, allowing them to remain if they are the victims of crimes such as
sexual assault, sexual abuse, and sexual exploitation, or the qualifying family members
of such victims. See 8 U.S.C. §§ 1101(a)(15)(U)(ii), (iii), 1184(p).
2
I. Background3
On September 7, 2020, fourteen-year-old Shelly told Mother that Chavez had
sexually abused her by touching her vagina with both his penis and his hands. Mother
and Shelly reported the abuse to the police that day. During a forensic interview,
Shelly described additional acts of sexual abuse, including Chavez’s inserting his
fingers into her vagina, licking her vagina, touching her breasts, forcing her to touch
his penis, and touching her vagina with his penis. Following the forensic interview,
Shelly was examined by a sexual assault nurse examiner (SANE), to whom Shelly
described a similar pattern of sexual abuse that had occurred over a period of years.
As part of the investigation into the allegations that Chavez had sexually
assaulted Shelly, the forensic interviewer also spoke with seventeen-year-old Tonya,
who did not initially disclose that she had been sexually abused by Chavez. However,
sometime in October 2020, Tonya told Mother that Chavez had once touched
Tonya’s vagina, but she kicked him away. After this disclosure, Tonya was examined
by a forensic interviewer and by a SANE. During both her second forensic interview
and the SANE exam, Tonya described additional acts of sexual abuse and detailed
where the acts had occurred, what she had been wearing, and how Chavez had
touched her.
3
Because Chavez does not challenge the sufficiency of the evidence to support
his convictions, we omit a more detailed factual background and will set forth
additional facts as necessary in our discussion of his issues.
3
Chavez was indicted on one count of continuous sexual abuse of a child,
namely Shelly, and one count of indecency with a child, namely Tonya. At Chavez’s
jury trial, Shelly, Tonya, Mother, the forensic interviewer, and the SANEs testified
about Chavez’s acts of sexual abuse. The jury found him guilty of both counts and set
his punishment at forty-five years’ confinement on Shelly’s case and ten years’
confinement on Tonya’s case. The trial court entered judgment on the jury’s verdict
and ordered the sentences to run consecutively. This appeal followed.
II. Sixth Amendment Right to Confrontation
In his first issue, Chavez contends that, by refusing to admit evidence that
Mother had applied for a U-Visa shortly after the complainants’ outcries, the trial
court violated Chavez’s Sixth Amendment right to confrontation. In response, the
State argues that the trial court was within its discretion to limit cross-examination and
exclude the testimony because the excluded testimony was not relevant, but even if
the trial court did err by excluding the testimony, the error was harmless beyond a
reasonable doubt.
A. Standard of Review
We review a trial court’s exclusion of topics from cross-examination for an
abuse of discretion, recognizing that a trial judge retains wide latitude to impose
reasonable limits on cross-examination. Arnold v. State, No. 02-18-00022-CR, 2019 WL
165995, at *4 (Tex. App.—Fort Worth Jan. 10, 2019, pet. ref’d) (mem. op., not
4
designated for publication) (citing Johnson v. State (Thaxton D. Johnson), 433 S.W.3d 546,
555 (Tex. Crim. App. 2014)).
A trial court abuses its discretion when its decision “falls outside the zone of
reasonable disagreement.” Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016).
We will not reverse the trial court’s decision to exclude evidence unless the ruling
“was so clearly wrong as to lie outside the zone within which reasonable people might
disagree.” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)).
Nor will we reverse a ruling that is “correct under any applicable theory of law.”
Johnson v. State (Joe Dale Johnson), 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
B. Applicable Law
The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. The main purpose of the Confrontation Clause
is to secure for the opposing party the opportunity to cross-examine witnesses, as that
is “the principal means by which the believability of a witness and the truth of his
testimony are tested.” Joe Dale Johnson, 490 S.W.3d at 909 (quoting Davis v. Alaska, 415
U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974)).
As relevant in this case, a defendant’s right to cross-examine a prosecution
witness allows the defendant to attack the credibility of that witness or to establish the
witness’s bias or motive. See Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App.
2009) (citing Davis, 415 U.S. at 316, 94 S. Ct. at 1110). Indeed, “it is not within a trial
5
court’s discretion to prohibit a defendant from engaging in otherwise appropriate
cross-examination” to show bias or motive on the part of that witness. Thaxton D.
Johnson, 433 S.W.3d at 551 (internal quotation marks omitted) (quoting Hurd v. State,
725 S.W.2d 249, 252 (Tex. Crim. App. 1987)). However, “the right to cross-examine is
not unqualified.” Joe Dale Johnson, 490 S.W.3d at 909. A trial court may limit the scope
and extent of cross-examination as long as such limitations do not infringe upon the
Confrontation Clause’s guarantee of “an opportunity for effective cross-examination.”
Id. (quoting Thaxton D. Johnson, 433 S.W.3d at 552). For example, the trial court may
reasonably limit cross-examination “based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’[s] safety, or interrogation
that is repetitive or only marginally relevant.” Irby v. State, 327 S.W.3d 138, 145 (Tex.
Crim. App. 2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431,
1435 (1986)).
A trial court violates the Confrontation Clause when it “cut[s] off all
questioning about an event that the State conceded had taken place and that a jury
might reasonably have found furnished the witness a motive for favoring the
prosecution in his testimony.” Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435. But
even in the context of the Confrontation Clause,
an appellant’s ability to conceive a hypothetical justification for the
questions that he wants to ask on cross-examination does not deprive
the trial court of the discretion to restrict cross-examination. The trial
court has many justifications that it can rely on to restrict cross-
6
examination, and an appellant has no grounds to complain if he can still
present a vital defense even with the restrictions in place.
Austin v. State, No. 02-18-00484-CR, 2019 WL 6205247, at *6 (Tex. App.—Fort
Worth Nov. 21, 2019, pet. ref’d) (mem. op., not designated for publication). Indeed,
“the scope of cross-examination is not unilaterally controlled by the defendant, and
the trial court has the discretion to determine what level of examination will permit a
defendant to muster the evidence needed to make a defensive argument.” Id. at *9
(citing Faglie v. State, No. 03-17-00281-CR, 2019 WL 847812, at *4 (Tex. App.—
Austin Feb. 22, 2019, pet. ref’d) (mem. op., not designated for publication)); see Van
Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435 (holding a defendant is entitled to only “an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish”).
To be admissible—even in the face of a Confrontation Clause objection—the
proffered testimony must still have some “causal” or “logical” connection to the
alleged bias or motive. Thaxton D. Johnson, 433 S.W.3d at 552–53. The Court of
Criminal Appeals has explained that the “causal connection” requirement “is
ultimately rooted in the concept of relevance.” Id. at 552. Thus, whether the proffered
evidence is relevant is the first step in a trial court’s decision to either admit or exclude
the evidence:
Even though our rules “favor the admission of all logically relevant
evidence for the jury’s consideration,” the trial court judge is still in
charge of making the threshold decision as to whether evidence is
7
relevant or not, and her decision will not be disturbed on appeal unless it
is “clearly wrong.”
Henley, 493 S.W.3d at 83 (footnotes omitted). The evidence must be both material and
probative. Id.
In the context of a witness’s credibility, relevance does not depend on whether
the proffered evidence definitively proves the alleged bias. Thaxton D. Johnson, 433
S.W.3d at 552. Rather, “it need only ‘make the existence’ of bias ‘more probable or
less probable than it would be without the evidence.’” Id. (quoting Tex. R. Evid. 401).
But “a defendant who cannot persuasively establish [some causal] connection has
essentially failed to demonstrate that the evidence he seeks to introduce . . . is relevant
to prove the allegation of bias.” Id. (citing Carpenter v. State, 979 S.W.2d 633, 635 (Tex.
Crim. App. 1998)). For example, a witness who may “be on probation, have pending
charges, be in the country illegally, or have some other ‘vulnerable status’ [is not]
automatically subject to cross-examination with that status.” Irby, 327 S.W.3d at 152.
The cross-examiner is still required to show the relevance of the “vulnerable status”
or any other alleged bias of that witness. Id. at 151–52; see Henley, 493 S.W.3d at 83 (“A
defendant does not have an unfettered right to present evidence that has no
relevance.”).
8
C. The Excluded Evidence
Before trial, the State moved in limine to preclude any testimony about
Mother’s immigration status. The trial court ordered defense counsel to “approach on
anything dealing with immigration.”
During a hearing outside the presence of the jury, Chavez attempted to ask
Mother about her immigration status and her U-Visa application, arguing that she was
requesting citizenship status “[b]ecause of this case.” 4 According to Chavez, Mother,
Shelly, and Tonya had fabricated the allegations against him so that Mother could
apply for a U-Visa and stay in the United States. The trial court did not allow the
testimony before the jury because of the “timing” or lack of dates that would render
the testimony relevant.
The trial court then allowed Chavez to cross-examine Mother about her U-Visa
application outside the presence of the jury. Mother testified that she learned that a U-
Visa “existed” at some unspecified time before Shelly’s outcry on September 7, 2020,
when a colleague had applied for a U-Visa. It is unclear from the record exactly when
4
“One requirement for obtaining a U-Visa is that a complainant ‘must assist law
enforcement in the investigation or prosecution of the crime.’” Pabon v. State, No. 02-
18-00517-CR, 2019 WL 4122611, at *2 n.2 (Tex. App.—Fort Worth Aug. 29, 2019,
no pet.) (mem. op., not designated for publication) (quoting Diane Mickelson,
Comment, When the Problem is the Solution: Evaluating the Intersection Between the U[-]Visa
“Helpfulness” Requirement and No-Drop Prosecution Policies, 53 U. Rich. L. Rev. 1455, 1465
(2019)). Given the nonimmigrant status that a U-Visa grants to the victims of crime in
support of the investigation or prosecution of the crime, evidence of a complainant’s
efforts to obtain a U-Visa may be admissible to show bias or prejudice. See id.
9
Mother first heard about a U-Visa or how long before the outcries that may have
been.
In November 2020—after Shelly’s and Tonya’s outcries—someone from the
Children’s Advocacy Center (CAC) spoke to Mother about applying for a U-Visa.
Then in December 2020, Mother began applying for a U-Visa. The application was
“based on the sexual misconduct that [Shelly and Tonya] ha[d] alleged.” Mother did
not hire an attorney to assist with the application, and at the time of Chavez’s trial in
May 2022, the status of Mother’s U-Visa application was unknown.
When asked to explain what a U-Visa was, Mother testified that it was
“something with domestic violence” and that it could be used to “get some sort of
legal status” in the United States. She further testified that she did not have “any
interest in staying” in the United States but that she did not want to leave Shelly and
Tonya alone. She denied that she had fabricated the allegations against Chavez to
obtain citizenship status.
Chavez argued that the evidence was “part of” the Confrontation Clause
because it went to show motive for fabricating the allegations against him. The State
responded that Chavez could not link the evidence to any motive and argued that the
evidence was substantially more prejudicial than probative. See Tex. R. Evid. 403.
The trial court did not allow the testimony before the jury. It concluded that,
based on the “timing” of the outcries and the fact that the CAC “is the one” that told
Mother she could file a U-Visa application—after Shelly’s and Tonya’s outcries and
10
after they reported the sexual abuse—the evidence of Mother’s immigration status
and U-Visa application was not relevant.
D. Analysis
To be admissible, the evidence of Mother’s immigration status and U-Visa
application would have had to be relevant. See Tex. R. Evid. 401, 402; Henley, 493
S.W.3d at 83. To establish relevance, Chavez was required to show that Mother’s
immigration status and U-Visa application were logically connected to her alleged bias
or motive to lie. See Henley, 493 S.W.3d at 95; Thaxton D. Johnson, 433 S.W.3d at 552;
Irby, 327 S.W.3d at 145; Pabon, 2019 WL 4122611, at *4; Garcia v. State, No. 13-17-
00218-CR, 2019 WL 1388532, at *6 (Tex. App.—Corpus Christi–Edinburg, Mar. 28,
2019, pet. ref’d) (mem. op., not designated for publication) (“The witness’s
immigration status is relevant if it is logically connected to a motive to lie.”); Sansom v.
State, 292 S.W.3d 112, 121 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (mem.
op.). In other words, Chavez needed to show the trial court enough evidence of an
alleged bias to make the excluded evidence relevant.
We conclude that the evidence of Mother’s U-Visa application cannot meet the
“causal connection” requirement. The timing of the outcries, in part, controls the
admissibility of the evidence. See Pabon, 2019 WL 4122611, at *4. Specifically, the
record does not support Chavez’s assertion that at the time of Shelly’s and Tonya’s
outcries, Mother had a bias or motive to falsely accuse Chavez of sexually abusing
Shelly and Tonya.
11
In Joe Dale Johnson, which Chavez cites as support in his appellate brief, the trial
court excluded evidence that the complainant in an aggravated sexual assault case was
in counseling at the time of his outcry due to having been accused of sexually abusing
his sister. 490 S.W.3d at 903. The defendant sought to introduce the evidence to
demonstrate the complainant’s mental state at the time of his outcry and to show his
motive for fabricating the allegations against the defendant. Id. at 903–04. Although
the trial court excluded the evidence, it still allowed the State to present extraneous
offense evidence that the defendant had “committed a similar sexual assault several
years earlier . . . to rebut the defensive theory of fabrication and retaliation.” Id. at 915.
The Court of Criminal Appeals held that the trial court abused its discretion in
excluding the evidence because, among other reasons, it related to the complainant’s
motive to fabricate the accusation and was constitutionally required to be admitted
under the Confrontation Clause. Id. at 913. The court specifically noted that the
testimony related to the complainant’s motive to accuse “at the time of his outcry,”
referring to the fact that, at the time of his outcry, he was in counseling for sexually
abusing his sister. Id. at 912.
Here, the evidence does not support Chavez’s assertion that Mother knew
enough about U-Visas at the time of Shelly’s and Tonya’s outcries to develop a bias or
motive to lie. Rather, the record indicates that Mother did not know what a U-Visa
was or how it could potentially benefit her until after the outcries and her subsequent
conversation with the CAC. At trial, Mother testified outside the presence of the jury
12
that at some undeterminable time before Shelly’s outcry, she had heard about U-Visas
from a colleague. But the trial court had no way of knowing the circumstances
surrounding the colleague’s U-Visa application or whether they were similar to
Mother’s situation. Specifically, there is no indication that Mother had known, before
the outcries, that a U-Visa application was an option in child sexual abuse cases. Nor
was there any indication that she had known it was available for both the victims of
sexual abuse and the victims’ families.
When asked to explain what a U-Visa was, Mother testified that it was
“something with domestic violence” and that it could be used to “get some sort of
legal status.” While Mother knew at the time of trial that a U-Visa had “something [to
do] with domestic violence,” there is no evidence that, before Shelly’s and Tonya’s
outcries, she knew anything about a U-Visa beyond its existence. Without more, the
evidence does not show that Mother knew what a U-Visa was or that it was applicable
to her under the circumstances at any time before her conversation with the CAC—
months after the outcries.
We agree with the State’s observation that, for Chavez’s assertion to be
plausible, Shelly and Tonya would have had to be “in on” the alleged plot against
Chavez. Mother is not the complainant in this case—a fact that Chavez appears to
overlook. Cf. id. at 910 (“In a case such as this, where the believability of the
complainant forms the foundation of the State’s case, Texas law favors the admissibility
of evidence that is relevant to the complainant’s bias, motive, or interest to testify in a
13
particular fashion.” (emphasis added)). Consequently, to establish a causal connection
between the U-Visa-application testimony and Mother’s alleged bias or motive to lie,
the evidence would have to show that Shelly and Tonya—the complainants—had the
same bias or motive, as Mother obviously could not have fabricated the sexual-abuse
allegations against Chavez without Shelly’s and Tonya’s help. In other words,
Chavez’s theory of admissibility is based on the following hypothetical assertion:
• Mother was apparently at risk for deportation and wanted to stay in the
United States;
• Prior to Shelly’s and Tonya’s outcries, Mother knew that a U-Visa
offered legal protection from deportation to family members of child-sexual-abuse
victims;
• Mother concocted a plan to obtain a U-Visa by falsely accusing Chavez
of sexually abusing Shelly and Tonya;
• Mother then went to Shelly and Tonya and told them her plan to falsely
accuse Chavez of sexual abuse;
• Both Shelly and Tonya either voluntarily agreed to participate or were
coerced by Mother into participating in the plan—despite the fact that it could send
their father to prison;
14
• Mother, Shelly, and/or Tonya then created false, detailed accusations of
sexual abuse against Chavez, including where, when, and how specific sexual acts had
occurred over a period of several years;
• Mother, Shelly, and Tonya then reported the false accusations to the
police as if they were legitimate acts of sexual abuse committed by Chavez;
• Shelly and Tonya later repeated the same false, detailed accusations of
sexual abuse—with no irregularities—to the SANEs and to the forensic interviewer;
• Mother then sufficiently assisted in the investigation or prosecution of
Chavez to qualify for a U-Visa, see 8 C.F.R. § 214.14(a)(12), (b)(3), (h)(2)(i)(A); and
• Mother, Shelly, and Tonya were all able to testify about the false
accusations of sexual abuse—in detail—almost two years later at Chavez’s trial.
The record does not support Chavez’s hypothetical assertion.
There is no indication that Mother had been at risk for deportation. Mother
had been living in the United States for at least twelve years prior to Shelly’s and
Tonya’s outcries, and there is no evidence in the record that Mother was ever at risk
for deportation at any other time that she had been living in the United States. See
Garcia, 2019 WL 1388532, at *6; cf. Sansom, 292 S.W.3d at 119, 120 (concluding there
was evidence that the complainants’ mother, who had been married to and testified
against the appellant, would be deported if the appellant divorced her and that the
complainants’ mother fabricated the allegations in retaliation).
15
Additionally, the record does not indicate that Shelly and Tonya had been
coached—by Mother or anyone else—to lie about being sexually abused. On the
contrary, the evidence showed that Shelly was hesitant to come forward about the
sexual abuse because she did not want her father to go to jail, that Tonya waited to
report the sexual abuse even after Shelly’s outcry, and that Mother was not the first
person to whom either Shelly or Tonya had disclosed the sexual abuse.5 Tonya
testified that Mother had not pressured her into making up a story, and Shelly testified
that Mother had never told her to say something that she knew was wrong, that no
one had told her what to say, that she was not making up the accusations, and that she
was telling the truth.
During the hearing outside the presence of the jury, Chavez’s counsel did not
question Mother or otherwise demonstrate that Shelly and Tonya knew anything
about Mother’s alleged risk for deportation, about U-Visas, or about Mother’s U-Visa
application. There is no evidence in the record that Shelly or Tonya knew, either at
the time of their outcries or at the time of trial, what a U-Visa was, that U-Visas even
existed, that Mother could apply for a U-Visa, that a U-Visa could affect Mother’s
immigration status, or that Mother eventually applied for a U-Visa. The evidence
Shelly testified that at least a month before she told Mother about the sexual
5
abuse, she had told her adult cousin in Mexico. Tonya testified that when she was
approximately sixteen years old, she told her boyfriend—also a minor—about what
had happened with Chavez when she was younger.
16
simply does not show that Mother, Shelly, and Tonya had conspired or otherwise
fabricated sexual-abuse accusations against Chavez.
We conclude that Chavez failed to establish a causal connection or logical
relationship between the evidence of Mother’s U-Visa application and her alleged bias
or motive to lie. See Pabon, 2019 WL 4122611, at *4 (citing Thaxton D. Johnson, 433
S.W.3d at 552); Garcia, 2019 WL 1388532, at *6 (“[Defendant’s] assertion that the
family plotted against him so that [the complainant’s] father could obtain a U[-V]isa is
not supported by any evidence and only supported by his hypothetical assertion.”).
Indeed, he failed to show the trial court enough evidence of an alleged bias that would
make the excluded testimony relevant. See Pabon, 2019 WL 4122611, at *4 (holding the
trial court did not abuse its discretion by excluding evidence of the complainant’s U-
Visa status because the defendant presented no evidence of a “logical connection”
between her receipt of the U-Visa and her cooperation in his prosecution, since her
cooperation occurred many years after she received her U-Visa). Accordingly,
although the trial court “entirely foreclose[d]” the defense from cross-examining
Mother about her U-Visa application, see Thaxton D. Johnson, 433 S.W.3d at 555–56, we
hold that the evidence was not admissible—not even by a Confrontation Clause
standard, see Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435—and it was within the
trial court’s discretion to exclude the evidence.
We overrule Chavez’s first issue.
17
III. Outcry Witness Testimony
In his second issue, Chavez contends that the trial court erroneously admitted
hearsay that did not fall under the outcry statute’s exception and that the error
affected his substantial rights. Specifically, Chavez argues that Mother was the proper
outcry witness and that the forensic interviewer’s testimony was inadmissible because
she was not the first adult to whom Shelly and Tonya specifically outcried.
In response, the State asserts that both Mother and the forensic interviewer
were proper outcry witnesses because the outcry statute is event specific, and here,
there were clearly separated incidents of sexual abuse that Shelly and Tonya had
disclosed only to the forensic interviewer. To the extent that there was any overlap in
the testimonies, the State contends that any resulting error is harmless.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). Trial courts have
“broad discretion” when determining what witnesses qualify as outcry witnesses.
Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); see Venancio v. State, Nos. 02-
21-00147-CR, 02-21-00148-CR, 2022 WL 17687436, at *3 (Tex. App.—Fort Worth
Dec. 15, 2022, no pet.) (mem. op., not designated for publication); Rodgers v. State, 442
S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref’d); Foreman v. State, 995 S.W.2d
854, 859 (Tex. App.—Austin 1999, pet. ref’d) (noting that prior cases “establish the
18
difficulty that can arise in identifying the proper outcry witness, and the broad
discretion of district courts in making this determination”). We will not reverse a trial
court’s decision to admit or exclude the evidence unless the record shows a clear
abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only
when the trial court’s decision was so clearly wrong as to lie outside that zone within
which reasonable persons might disagree. Id.
Any error in admitting the evidence is nonconstitutional error. See Holley v. State,
No. 02-20-00051-CR, 2021 WL 1918769, at *2 (Tex. App.—Fort Worth May 13,
2021, no pet.) (mem. op., not designated for publication) (citing Tex. R. App. P.
44.2(b)). We must disregard any nonconstitutional errors that do not affect the
appellant’s substantial rights. See Tex. R. App. P. 44.2(b). An error that has a
“substantial and injurious effect or influence in determining the jury’s verdict” affects
a substantial right. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328
U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a
substantial right if we have “fair assurance that the error did not influence the jury, or
had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In determining the
likelihood that a nonconstitutional error adversely affected the jury’s decision, we
review the record as a whole, including any testimony or physical evidence admitted
for the jury’s consideration, the nature of the evidence supporting the verdict, and the
19
character of the alleged error and how it might be considered in connection with
other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
B. Applicable Law
Article 38.072 of the Texas Code of Criminal Procedure creates a statutory
exception to the general rule excluding hearsay. Tex. Code Crim. Proc. Ann. art.
38.072, § 2(b). As the Court of Criminal Appeals has explained,
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. This witness may recite the
child’s out-of-court statements concerning the offense, and that
testimony is substantive evidence of the crime.
Martinez v. State, 178 S.W.3d 806, 810–11 (Tex. Crim. App. 2005) (footnote omitted).
The proper outcry witness is the “first person, 18 years of age or older, other than the
defendant, to whom the child . . . made a statement about the offense or extraneous
crime, wrong, or act.” Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(3). The Court of
Criminal Appeals has construed the phrase “about the offense” to mean a statement
that “in some discernible manner describes the alleged offense.” Garcia, 792 S.W.2d at
91. “[T]he statement must be more than . . . a general allusion” of sexual abuse. Id.
Thus, the proper outcry witness is not necessarily the first adult to whom the child
revealed the abuse but, rather, the first adult to whom the child revealed specific
details concerning the offense. Id.; Thomas v. State, 309 S.W.3d 576, 579 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d) (affirming trial court’s determination that
20
stepmother was proper outcry witness despite victim’s prior report of abuse to
mother because initial report to mother lacked specificity).
As the statute is event specific, there may be more than one outcry witness,
provided that each testifies about different events. See Campos v. State, No. 02-19-
00122-CR, 2020 WL 3455901, at *3 (Tex. App.—Fort Worth June 25, 2020, pet.
ref’d) (mem. op., not designated for publication); Brown v. State, 381 S.W.3d 565, 571
(Tex. App.—Eastland 2012, no pet.); Hernandez v. State, No. 02-08-00478-CR, 2010
WL 1854150, at *3 (Tex. App.—Fort Worth May 6, 2010, no pet.) (mem. op., not
designated for publication). For example, in Josey v. State, our sister court in Texarkana
held that the trial court did not abuse its discretion by admitting the testimony of a
second outcry witness. 97 S.W.3d 687, 693 (Tex. App.—Texarkana 2003, no pet.).
The victim first told his mother about being forced to have oral contact with the
defendant’s genitals and about being “fingered.” Id. While the victim went into
explicit detail with his mother about the act of oral contact, he gave no details about
being “fingered.” Id. Two days later, however, the victim provided, for the first time,
details about being “fingered” during an interview with a forensic interviewer. Id. The
court of appeals concluded the victim’s first outcry regarding digital penetration did
not occur until the interview. Id.; cf. Schuster v. State, 852 S.W.2d 766, 768 (Tex. App.—
Fort Worth 1993, pet. ref’d) (holding psychologist was proper outcry witness even
though complainant told mother first because no details were provided to mother).
21
C. The Outcry Testimony 6
Before Mother’s and the forensic interviewer’s respective testimonies, the trial
court conducted a hearing outside the presence of the jury. Over Chavez’s
objections,7 the trial court allowed both Mother and the forensic interviewer to testify
about Shelly’s and Tonya’s prior disclosures of sexual abuse.
1. Shelly’s Outcries
As to Shelly’s outcries, Mother testified (1) that Chavez touched Shelly’s private
parts, indicating her vagina, with his hands, (2) that Chavez touched Shelly’s vagina
with his penis and put his penis in her vagina several times, which started as only part
of his penis and increased “little by little,” and (3) that at the first Lewisville
apartment,8 Chavez “laid [Shelly] down in the living room and abused her,” though
6
To provide context, the trial court’s determination in this case was more
complicated than most because Mother testified through an interpreter, which led to a
situation in which questions had to be repeated and Mother’s responses required
clarification. In such circumstances, the trial court’s determination of this issue is
generally not one that falls outside the zone of reasonable disagreement. See Campos,
2020 WL 3455901, at *3.
7
At trial, Chavez argued that neither Mother nor the forensic interviewer was
the proper outcry witness as to Shelly because the first adult to whom she outcried
was her cousin in Mexico. On appeal, Chavez concedes that Mother was the proper
outcry witness as to both Shelly and Tonya and argues that only the forensic
interviewer’s outcry testimony was inadmissible hearsay.
8
Mother, Shelly, and Tonya had lived in three different apartments in
Lewisville. They lived at the first Lewisville apartment for approximately twelve years,
then the second Lewisville apartment for approximately one year, and then the third
Lewisville apartment for approximately one year until they moved to Garland at the
time of Shelly’s outcry.
22
Shelly did not tell Mother how he had abused her. Mother testified that Shelly did not
describe all the times that Chavez had touched her. The forensic interviewer testified
to the following incidents:
(1) Chavez locked himself and Shelly in her bedroom at the second Lewisville
apartment and put his fingers inside of her vagina;
(2) Chavez locked himself and Shelly in her bedroom at the second Lewisville
apartment and licked her vagina;
(3) Chavez grabbed Shelly’s breasts;
(4) Chavez made Shelly stroke his penis eight to ten times, and sperm would
come out of his penis onto her leg;
(5) When Shelly was twelve years old, Chavez touched her vagina with his penis
when she was sleeping in Mother’s room. Mother was showering at the time, and
Shelly pushed Chavez away with her feet;
(6) When Shelly was thirteen years old, she was lying on the living room floor
at the second Lewisville apartment when Chavez tried to put his penis inside of her.
Shelly described this incident as the “worst time”; and
(7) When Shelly was in seventh grade, Chavez put his penis in her vagina and
sperm came out. During this incident, Shelly was on the bottom bunk bed in the
bedroom she shared with her sister at the second Lewisville apartment.
Only the forensic interviewer testified about some acts. For example, only the
forensic interviewer testified that Shelly had disclosed Chavez’s acts of licking Shelly’s
vagina, touching Shelly’s breasts, and making Shelly touch his penis eight to ten times,
and only the forensic interviewer referenced events in which Shelly described
Chavez’s semen. Mother did not testify about these events. The trial court therefore
did not abuse its discretion by permitting the forensic interviewer to testify to these
23
acts. See Tex. Code Crim. Proc. Ann. art. 38.072; Campos, 2020 WL 3455901, at *7;
Brown, 381 S.W.3d at 571; Hernandez, 2010 WL 1854150, at *3; Josey, 97 S.W.3d at 693.
To the extent that Mother’s and the forensic interviewer’s testimonies
described sexual abuse involving similar acts, we agree with the State that the record
indicates that these acts are separate and distinguishable. For example, both Mother
and the forensic interviewer testified that Chavez had touched Shelly’s vagina with his
hands. During Shelly’s testimony, she described times when Chavez would use his
hands to touch her vagina both over her clothes and under her clothes, and she
testified that when she was in seventh grade, he put his fingers in her vagina when she
was in her bedroom. It reasonably follows from the record as a whole that the acts
described by Mother and the forensic interviewer can reasonably be linked to separate
events, which are distinguishable acts and offenses under the Penal Code. See Tex.
Penal Code Ann. §§ 21.11(a)(1) (indecency with a child), 22.021(a)(1)(B)(i) (aggravated
sexual assault).
Similarly, both Mother and the forensic interviewer described acts involving
penis-to-vagina contact and penetration. However, Mother testified that Shelly did not
describe each time Chavez’s penis touched her vagina. The SANE’s testimony
revealed that Shelly had disclosed that Chavez would put his penis in her vagina when
she was twelve or thirteen years old, that he would “put it in halfway” and she would
push it out, and that he did this several times over about four years. These acts are
similar to the specific penis-to-vagina acts described by Mother, but the forensic
24
interviewer did not testify to these acts. Rather, the forensic interviewer testified to an
incident in which Chavez touched Shelly’s vagina with his penis in Mother’s bedroom
while Shelly was sleeping and Mother was in the shower. Additionally, Shelly’s
testimony described the penis-to-vagina contact that occurred on the bottom bunk of
the room she shared with her sister, which had not been described by Mother. The
trial court was within the zone of reasonable disagreement to find that Mother’s and
the forensic interviewer’s testimonies describing penis-to-vagina contact and
penetration related to separate distinct events.
To the extent that Mother’s and the forensic interviewer’s testimonies did
overlap, the overlap would be minimal, and we do not think that the error, if any, had
more than a slight effect on the jury, particularly when the same evidence came in
through other testimony without any objection from Chavez. See Petty v. State, No. 02-
21-00130-CR, 2022 WL 4545532, at *7 (Tex. App.—Fort Worth Sept. 29, 2022, pet.
ref’d) (mem. op., not designated for publication) (“[C]umulative testimony from an
outcry witness is harmless when the child victim also testifies about the abuse.”);
Holley, 2021 WL 1918769, at *7 (finding outcry witnesses’ testimonies about the same
occurrence had no more than a slight effect on the jury and overruling appellant’s
issue); McLemore v. State, No. 02-15-00229-CR, 2016 WL 4395778, at *9 (Tex. App.—
Fort Worth Aug. 18, 2016, pet. ref’d) (mem. op., not designated for publication)
(“Texas courts have repeatedly held that testimony about a child’s statements
25
concerning a sexual crime is harmless when other, unobjected-to evidence proves the
same facts.”). We overrule Chavez’s second issue at to Shelly’s outcries.
2. Tonya’s Outcries
As to Tonya’s outcries, Mother testified that Tonya had disclosed to her that
one day when Mother was in the bathroom showering and Tonya was sleeping,
Chavez pulled Tonya’s underwear down and touched her private parts, indicating her
vagina, with his hands. Tonya then became angry and kicked Chavez. The forensic
interviewer testified to the following incidents:
(1) Tonya and Chavez were lying on the bed watching the FIFA World Cup
when Chavez put his hand underneath her underwear and on her vagina;
(2) Tonya was lying on a twin bunk bed in a black bra and black underwear
when Chavez came in, and she woke up feeling someone touching her vagina and
tugging on her underwear; and
(3) Tonya was lying down asleep on the edge of the bed in the master bedroom
and woke up when she felt someone touching her vagina. Chavez was standing to the
side of the bed holding a flashlight, pulling her panties to the side, and touching the
lips of her vagina with his hand. She could not remember what happened afterwards,
but she remembered that Mother was still in the shower.
Mother’s and the forensic interviewer’s testimonies described separate events.
For example, only the forensic interviewer testified that Tonya had disclosed Chavez’s
acts of putting his hand on her vagina while they were watching the FIFA World Cup
and touching her vagina when she was lying on a twin bed wearing a black bra and
underwear. Mother did not testify about these events but did testify to Tonya’s
disclosure that Chavez had pulled her underwear down and touched her vagina when
26
she was sleeping and Mother was in the shower. The trial court therefore did not
abuse its discretion by permitting the forensic interviewer to testify to these acts. See
Tex. Code Crim. Proc. Ann. art. 38.072, § 1(1); Campos, 2020 WL 3455901, at *7;
Brown, 381 S.W.3d at 571; Hernandez, 2010 WL 1854150, at *3; Josey, 97 S.W.3d at 693.
To the extent that Mother’s and the forensic interviewer’s testimonies
described separate incidents of sexual abuse involving similar acts, we agree with the
State that the record indicates that these acts are distinguishable. For example, both
Mother and the forensic interviewer testified that Chavez had touched Tonya’s vagina
when she was sleeping and Mother was in the shower. The State provided the SANE
report as evidence in which Tonya disclosed that Chavez had touched her vagina with
his hands but did not put his fingers inside. Tonya stated that he had done this
“maybe five times, sometimes under a blanket when [Mother] was showering or
sleeping.” It reasonably follows from the record as a whole that Chavez touched
Tonya’s vagina while she was sleeping and Mother was showering on more than one
occasion, particularly when Tonya provided different details for each disclosure, i.e.,
she told Mother that she had been angry and kicked Chavez, and she told the forensic
interviewer that Chavez had used a flashlight to look at her vagina. Thus, the acts
described by Mother and the forensic interviewer can reasonably be linked to separate
events, and the trial court was within the zone of reasonable disagreement to allow the
forensic interviewer to testify.
27
To the extent that Mother’s and the forensic interviewer’s testimonies did
overlap, the overlap would be minimal, and we do not think that the error, if any, had
more than a slight effect on the jury, particularly when the same facts came in through
other evidence without any objection from Chavez. See Petty, 2022 WL 4545532, at *7;
Holley, 2021 WL 1918769, at *7; McLemore, 2016 WL 4395778, at *9. We overrule
Chavez’s second issue as to Tonya’s outcries.
IV. Conclusion
Having overruled both of Chavez’s issues, we affirm the trial court’s judgment
of conviction.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 9, 2023
28