Jose Antonio Hernandez v. the State of Texas ( 2022 )

AFFIRMED and Opinion Filed November 29, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00523-CR
JOSE ANTONIO HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-83306-2020
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Goldstein
Opinion by Justice Goldstein
Jose Antonio Hernandez appeals his conviction of continuous sexual assault
of a child younger than fourteen. A jury convicted Hernandez and sentenced him to
forty-seven years’ confinement. In two issues, Hernandez argues the trial court erred
in allowing one witness to testify as an outcry witness because the State failed to
provide notice of its intent to offer the testimony and allowing another witness to
testify as an outcry witness without conducting a hearing pursuant to article 38.072
of the code of criminal procedure. We affirm the trial court’s judgment.
In November 2020, Hernandez was charged by indictment with the offense of
continuous sexual assault of J.T., a child younger than fourteen, during a seven-year
period from July 2013 to July 2020.
Prior to trial, the State filed notice of its intent to use hearsay statements of
child abuse from two witnesses: H.T., J.T.’s brother, and Lisa Martinez, a forensic
interviewer at the Children’s Advocacy Center in Collin County. The notice did not
list J.T.’s Mother as an outcry witness.
At trial in June 2021, outside the presence of the jury, the trial court addressed
preliminary matters outside the presence of the jury, including what the State called
“outcry hearings.” The State first called Mother, who testified she asked J.T. if
Hernandez had touched him, and J.T. said yes and started crying. J.T. was sitting
down when he spoke to Mother, and “he simply put his hand on his butt.”
Hernandez’ counsel took Mother on voir dire and asked how many incidents of
sexual contact she discussed with J.T., and Mother said there was “only one.”
Mother testified J.T. “pointed to where he’d been touched,” and he “was crying and
he was telling this person to stop and he wouldn’t stop.”
After Mother testified, the prosecutor said the next witness, Martinez, was
“going to be our outcry, because based on mom’s testimony, I don’t believe that she
is.” Hernandez’ counsel disagreed, stating that “she was the first person over 18 that
was told about the sexual abuse.” The prosecutor said he had “one more witness for
the outcry,” and Hernandez’ counsel stated the following:
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Judge, to save time, do you want us to prove this up real quick? Judge,
we all know what the forensic interviewer is going to come up here and
say. I guess, at the end of the day she’s going to say she saw, you know,
whatever more incidents of abuse than what was discussed up there. Is
this a situation where you would allow her to testify as to hearsay
because of a continuing outcry, or is this something where you would
only let [Mother] come in, as she was the first person that was aware of
the sexual abuse over 18?
The trial court expressed its understanding that “you can have multiple outcry
witnesses who testify to various things that were told to them.” The prosecutor
responded that “Mom’s information on the facts of this case are very limited, and
they are limited to exactly what she got up there and talked about.” Hernandez’
counsel stated:
if that’s the case, you know, we would object on those grounds, you
know, that she was the first person over 18. I understand the Court is
going to let her do it. But based on the information that was provided
in the outcry, if she’s going to testify to the same, we would understand.
The trial court stated that, if the forensic interviewer was “the first person other than
the mom over the age of 18 that the child talked to, then certainly she’s an outcry
witness.” The trial court then brought in the jury.
Mother testified that J.T. is one of her three sons, and he was born in July
2007. At that time, Mother and her sons were living in an apartment in Frisco. In
2008, Mother met Hernandez, and the two started dating. After losing her job,
Mother and her sons moved in with Hernandez. From 2008 to 2012, Mother, her
sons, and Hernandez lived together in Frisco, and they moved to Denton in 2013 and
stayed until 2016. While living in Denton, Hernandez broke his foot and could no
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longer work; as a result, Hernandez “was at the house all the time” and was often
left alone with the boys. In 2016, the family moved back to an apartment in Frisco
for two years before moving back to Denton County for a year and then moving back
to Frisco in 2019.
In August 2020, one of Mother’s other sons told her that he had been abused
by Hernandez. This prompted Mother to ask J.T. if Hernandez had touched him.
J.T. said he was abused, but his statements were “more general.” When Mother
asked J.T. how Hernandez touched him, J.T. started crying and told Mother “that he
would tell him to stop and that he would hurt him.”
Forensic interviewer Martinez testified J.T., thirteen years old at the time,
made an outcry of abuse during a forensic interview and identified Hernandez as the
abuser. J.T. told Martinez that Hernandez took him into the bedroom “when no one
was around” and abused him on multiple occasions. Hernandez put his male sexual
organ in J.T.’s “butt” and in J.T.’s mouth and Hernandez also put his mouth on J.T.’s
male sexual organ and made J.T. put his male sexual organ in Hernandez’ “behind.”
J.T. said the abuse happened “over several years.”
J.T. testified that, the first time Hernandez touched him, Hernandez began
touching on J.T.’s legs and then moved up to touch J.T.’s penis over and
“sometimes” under his clothes. When the abuse began, J.T. was seven or eight years
old, and J.T. “didn’t really comprehend what was happening.” When J.T. was nine
or ten, the family had moved into “the green apartments” where they stayed for “at
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least a year.” While living at the green apartments, Hernandez had an injured leg,
he was not working, and he was “home all the time.” As a result, J.T. spent “a lot
more time” with Hernandez, and J.T.’s mother was “working a lot.” At the green
apartments, Hernandez began “touching [J.T.] more often.” When J.T. came home
from school, Hernandez “would at least say hi once” and then Hernandez would
touch J.T.’s penis. Hernandez told J.T. “to not tell anybody” and to “enjoy it.” J.T.
“didn’t know what was happening, so [he] would just ignore everything.” After
Hernandez rubbed J.T., he would take J.T. into the bedroom and tell him to remove
all his clothes. While J.T. removed his clothes, Hernandez would shower and, when
Hernandez finished showering, Hernandez would lie J.T. on the bed, sometimes on
his back and sometimes on his stomach, “put his penis in [J.T.], like, in [J.T.’s] butt.”
This “hurt” J.T., and Hernandez did it “more than one time.” Also more than once,
Hernandez “would tell [J.T.] to put [Hernandez’] penis in [J.T.’s] mouth,” and
Hernandez put his hands on J.T.’s head, moved J.T.’s head “forwards and
backwards,” and said “’It feels so good’ and ‘Keep on going.’” While J.T. lived at
the green apartments, “these types of things” were “happening quite often.”
After the family left the green apartments, they moved to “the Little Elm
trailers” where the abuse continued and “happened more times” than when the
family lived at the green apartments. Hernandez started doing “different” things like
“putting his mouth on [J.T.’s] penis” and “kissing [J.T.] and stuff.” J.T. “didn’t like
it,” and “it felt weird.” After the abuse, Hernandez told J.T. he would buy J.T.
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“legos” and “new technology.” Sometimes, Hernandez told J.T. to put his “penis
inside of [Hernandez’] butt,” and Hernandez continued to “put his penis inside of
[J.T.’s butt.”
The family next moved to “the red apartments” in Frisco where J.T. had his
own room. The abuse continued but “not frequently.” J.T. tried to avoid Hernandez
by talking to his friends on his phone and going to his room. J.T.’s door did not have
a lock, but he “tried to put a shoe under to, like, block it.” Hernandez told J.T. he
would buy J.T. “big lego sets” or a new phone to get J.T. to “do these things with
him.” J.T. was “used to it too much” and would “just try to get over with it.”
J.T. finally disclosed the abuse when his brother asked about it, and J.T. told
his brother and mother about the abuse. When J.T. told his mother and brother about
the abuse, J.T. did not see Hernandez again until trial. At the conclusion of the trial,
the jury convicted Hernandez of continuous sexual assault of a child younger than
fourteen. This appeal followed.
In his first issue, Hernandez argues the trial court erred in allowing Mother to
testify as an outcry witness because the State failed to provide notice of its intent to
offer her testimony as required by article 38.072 of the code of criminal procedure.
Article 38.072, sets forth the requirements before an outcry statement is
admissible. Specifically, the statute provides in relevant part:
Sec. 2. (a) This article applies only to statements that describe the
alleged offense that:
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(1) were made by the child against whom the offense was allegedly
committed; and
(2) were made to the first person, 18 years of age or older, other than
the defendant, to whom the child made a statement about the offense.
(b) A statement that meets the requirements of Subsection (a) of this
article is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the
party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through
whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, 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; and
(3) the child testifies or is available to testify at the proceeding in court
or in any other manner provided by law.
TEX. CODE CRIM. PROC. art. 38.072.
If the State fails to comply with the notice requirements, we will not reverse
unless that failure caused harm. Zarco v. State, 210 S.W.3d 816, 832 (Tex. App.—
Houston [14th Dist.] 2006, no pet.). Article 38.072’s notice requirement is to prevent
surprise at trial due to the outcry testimony. Gabriel v. State, 973 S.W.2d 715, 719
(Tex. App.—Waco 1998, no pet.). In our harm analysis, we determine if the failure
caused appellant to be actually surprised by the outcry evidence and whether the
failure prejudiced appellant. Zarco, 210 S.W.3d at 832. However, even if
Hernandez could show surprise and prejudice by the admission of Mother’s
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testimony, there is an ultimate hurdle he cannot overcome: when a court admits
evidence over an objection, even if error, it is not reversible when the same evidence
is subsequently admitted without objection. Leday v. State, 983 S.W.2d 713, 718
(Tex. Crim. App. 1998).
Here, mother testified J.T. said Hernandez abused him, but his statements
were “more general.” When Mother asked J.T. how Hernandez touched him, J.T.
started crying and told Mother “that he would tell him to stop and that he would hurt
him.” 1 In contrast, J.T. testified at length detailing the abuse Hernandez committed
against J.T. over a period of years. Hernandez did not object to J.T.’s testimony.
Because the same evidence to which Mother testified was admitted through J.T.’s
testimony, we conclude Hernandez cannot show harm. See id. We overrule
Hernandez’ first issue.
In his second issue, Hernandez complains that the trial court erred in allowing
the hearsay testimony of Martinez as an outcry witness without conducting a hearing
pursuant to article 38.072 of the code of criminal procedure.
A trial court is required to conduct a hearing outside the presence of the jury
to determine that the outcry statement is reliable based on the time, content, and
circumstances of the statement. TEX. CODE CRIM. PROC. art. 38.072 § 2(b)(2). Here,
1
After Mother’s testimony, the State’s attorney advised the court, for purposes of the appellate record,
that it never elicited outcry statements while Mother was on the stand. Rather, any such testimony was on
cross-examination by defense counsel. Based upon the foregoing, the State agreed Mother was not a proper
outcry witness. This acknowledgement does not affect this Court’s harm analysis.
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the trial court conducted what the State called “outcry hearings” outside the presence
of the jury. Hernandez’ counsel, to the extent he objected at all, objected on the
grounds that Mother “was the first person over 18”; counsel did not object to the fact
that Martinez was not called as a witness at the hearing. In fact, when the prosecutor
said he had “one more witness for the outcry,” Hernandez’ counsel stated, “we all
know what the forensic interviewer is going to come up here and say” and
participated in the expedited conclusion of the hearing without objecting to
Martinez’ failure to testify. Under these circumstances, we conclude Hernandez
failed to preserve error on this issue. See TEX. R. APP. P. 33.1(a). Moreover, as with
Mother’s testimony, any error in the admission of Martinez’ testimony was harmless
because of the admission of similar testimony from J.T. without objection. See
Leday, 983 S.W.2d at 718. We overrule Hernandez’ second issue.
We affirm the trial court’s judgment.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
210523F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE ANTONIO HERNANDEZ, On Appeal from the 416th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 416-83306-
No. 05-21-00523-CR V. 2020.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Goldstein. Justices Schenck and
Reichek participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered November 29, 2022
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