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John Desmond Crawford v. the State of Texas ( 2024 )


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  • Opinion issued June 20, 2024
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-22-00706-CR
    ———————————
    JOHN DESMOND CRAWFORD, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 12th District Court
    Grimes County, Texas
    Trial Court Case No. 18624
    MEMORANDUM OPINION
    A jury convicted John Desmond Crawford of two counts of aggravated sexual
    assault of a child and one count of indecency with a child.1 He was sentenced to 20
    1
    See TEX. PENAL CODE §§ 21.11(a)(1), 22.021(a)(1)(B)(i).
    years’ imprisonment.2 On appeal, Crawford contends that the trial court erred by
    admitting his confessions and the testimony of multiple outcry witnesses; the
    inadmissible outcry testimony improperly bolstered the complainant’s testimony;
    and the cumulative effect of these errors was harmful.
    We affirm.
    Background
    In July 2018, Crawford picked up Haley, the complainant, and her sister,
    Mary, to hang out.3 At the time, Crawford was 19 years old, Mary was 15 years old,
    and Haley was 13 years old. They drove to a gas station, a Wal-Mart, a park, and,
    finally, an area near train tracks and a “climbing tower.”
    At the park, Crawford told Haley to earn a dollar by walking ten times around
    a pond. According to Mary, while Haley walked around the pond, she and Crawford
    had sex in the vehicle. And they had sex again when they parked near the train tracks.
    During the second encounter, Haley was asleep in the vehicle’s front seat but
    woke up and saw Crawford having sex with Mary. Crawford tried to entice Haley to
    join, put his hand under her clothing, and pinched her breasts. Haley exited the
    2
    The jury assessed 10 years’ confinement for each aggravated-sexual-assault count
    and four years’ confinement for the indecency count. The aggravated-sexual-assault
    punishments run consecutively, and the indecency punishment runs concurrently.
    3
    We use pseudonyms to refer to the child complainant and her family members. See
    TEX. CONST. art. 1, § 30(a)(1) (granting crime victims “the right to be treated with
    fairness and with respect for the victim’s dignity and privacy throughout the
    criminal justice process”); TEX. R. APP. P. 9.10(3).
    2
    vehicle and sat by the train tracks until Mary came to tell her that Crawford wanted
    to talk. Haley returned to the vehicle, and Mary went to climb the nearby tower.
    Haley got into the vehicle’s backseat, where Crawford was sitting and wearing
    boxer shorts. Crawford asked if Haley was a virgin, and she said she was. He told
    her that he wanted to show her what teenagers do. He began kissing her neck,
    touching her breasts, and removing her shirt. Then, he laid her down in the backseat,
    pulled her pants down to her knees, and penetrated her vagina with his fingers. Haley
    told Crawford to stop, but he did not. He performed oral sex on her, penetrating her
    with his tongue and biting her. Haley testified that Crawford also touched her body
    and penetrated her vagina with his penis. She said that she experienced pain and,
    after, had a white liquid on her. Haley did not tell Mary what had happened.
    Eventually, a Grimes County deputy arrived looking for the girls because they
    had run away from home. Haley did not tell the deputy that she had been sexually
    assaulted. Haley recalled Mary telling her not to say anything; otherwise, Mary
    would hate Haley, never forgive Haley, and kill herself.
    Haley later told her mom, Jane, about the abuse, and the police investigated.
    Crawford was charged with two counts of aggravated sexual assault against Haley—
    one for digital penetration and one for oral penetration—and one count of indecency
    with a child by contact against Haley. He pleaded not guilty and proceeded to trial.4
    4
    Before trial, the State abandoned a charge of sexual assault against Mary.
    3
    A.    The Outcries
    Three outcry witnesses testified. Jane, the first outcry witness, testified that,
    in December 2018, Haley revealed that something had happened with Crawford.
    Haley initially did not say what it was, and Jane did not suspect anything sexual. But
    later, in early April 2019, Haley told Jane that Crawford took her shirt off, penetrated
    her vagina with his fingers, performed oral sex on her, and fondled her breasts. Haley
    later shared in a letter to Jane that Crawford had also forced Haley to have sex.
    The second outcry witness was J. Conrad, who taught classes at Haley’s
    church. On April 28, 2019, during a class on abstinence, Haley asked, “What do you
    do if they have a gun?” After class, Conrad asked Haley if she was okay. Haley told
    Conrad that she had been raped, the man had a gun, and she felt guilty because she
    snuck out of the house to meet him and should not have been there.
    The final outcry witness was M. Martinez, a forensic interviewer at Scotty’s
    House Children’s Advocacy Center. She interviewed Haley in May 2019. Haley told
    Martinez that Crawford picked her and her sister up, drove them to an area near train
    tracks, and sexually assaulted her. Haley told Martinez that Crawford showed her a
    firearm, kissed her neck, undressed her from the waist down, performed oral sex on
    her, and squeezed her breasts, even though she told him to stop several times.
    4
    B.    The Interviews
    The police interviewed Crawford twice. The first interview occurred in May
    2019 with Lieutenant J. Ellis and Investigator N. Malmstrom. Lieutenant Ellis
    testified that after the forensic interviews with Mary and Haley, he conducted a
    noncustodial interview with Crawford at the Hearne Police Department. According
    to Ellis, Crawford was not in custody or under arrest and was free to leave. Ellis did
    not advise Crawford of his Miranda rights.5
    During the interview, Crawford explained that he met Haley and Mary a few
    years earlier as a youth advisor at a church camp. He picked them up from their
    home to watch fireworks but did not know they had run away. He first drove them
    to a gas station and then to a Wal-Mart. After, they went to a park and then to another
    gas station so the girls could use the bathroom. At the park, Crawford asked Haley
    if she wanted to walk around the pond while he and Mary stayed in his vehicle.
    Finally, they drove to an area near train tracks to eat and talk.
    Lieutenant Ellis confronted Crawford with the sexual assault allegations,
    which Crawford initially denied. But Crawford later admitted to having sex with
    Mary three times that night—once in the car while Haley walked around the pond
    and twice while the vehicle was parked near the train tracks. They stopped when
    Haley, who was outside the vehicle, saw them having sex. Crawford remembered
    5
    See Miranda v. Arizona, 
    384 U.S. 436
    , 441 (1966).
    5
    Mary getting out of the vehicle and talking to Haley about what she saw before both
    girls returned to the vehicle.
    Lieutenant Ellis also confronted Crawford about whether he asked Haley to
    come back into the vehicle so he could “show her some things . . . because she was
    a virgin” and engage in sexual activity with her. Crawford denied doing anything
    with Haley. He suggested that Haley made up a story because Mary had been “hurt”
    in the past. Crawford said, if anything had happened, it was accidental. Ellis told
    Crawford that Ellis did not expect “a good outcome” for Crawford “in front of 12
    jurors, potentially.” Crawford then admitted to “playing around” with Mary and
    Haley. But he claimed that any touching was accidental and there was no penetration.
    Lieutenant Ellis testified that Crawford did not maintain eye contact during
    the interview, so he accused Crawford of lying and told him to be truthful. At that
    time, Crawford said he had consensual sexual intercourse with Mary multiple times
    that night and did not wear a condom. Asked about Haley, Crawford denied any
    contact and said she was too young.
    After the interview, Lieutenant Ellis asked Crawford for permission to
    photograph and search his vehicle. Crawford agreed. Ellis also gave Crawford his
    contact information. Crawford reached out to set up a second interview.
    Crawford’s second interview took place two days later with Lieutenant R.
    Salazar. Salazar is based in Austin, Texas, and specializes in assisting local
    6
    authorities with suspect interviews. She did not advise Crawford of his Miranda
    rights and instead had him sign a consent form. The interview took place in an
    investigation room at the Grimes County Jail.
    At the beginning of the nearly five-hour interview, Lieutenant Salazar
    explained to Crawford that law enforcement was investigating the sexual assault of
    a child, Haley. Crawford stated that he did not remember doing anything to her.
    Salazar testified that this usually means the interviewee does not want to tell the
    truth. When Salazar asked about Crawford’s relationship with Mary, Crawford
    denied being in one but admitted that they had sex two or three times on the night in
    question.
    Lieutenant Salazar accused Crawford of lying about what happened with
    Haley. Shortly after, Crawford admitted pinching Haley’s nipples through her
    clothes but denied penetrating her. Salazar traced an outline of Crawford’s hand on
    paper and told him to say how many fingers he used to penetrate Haley and how
    deep they went. Crawford relented and admitted to touching Haley’s vagina. But he
    still denied penetration. Salazar told Crawford that Haley had shared the details with
    law enforcement. Crawford maintained that he did not have sex with Haley but
    agreed with Salazar’s statement that he went “down on her.” After being told that
    “going down” was slang for oral sex, Crawford said that he misunderstood and had
    not done that. Eventually, Crawford admitted to vaginally penetrating Haley with
    7
    his middle finger. But he continued to deny doing any more than that. When asked
    about firearms, Crawford said that he owned a BB gun and had shown it to Mary
    and Haley when they were in his vehicle.
    Lieutenant Salazar then provided a short break, and Crawford went to the
    bathroom. About four hours into the interview, on Salazar’s recommendation,
    Crawford wrote a statement admitting that he reached over, “[grazed Haley’s]
    breast,” and forced himself on her, even when she told him to stop. After reading the
    statement, Salazar told Crawford to write a letter accepting responsibility and
    apologizing to Haley, which he did. Salazar left shortly after Crawford wrote the
    letter, and Lieutenant Ellis ended the interview by explaining what the next steps in
    the investigation would be.
    Motion to Suppress: Inadmissible Statements
    Crawford contends that his confession was inadmissible because he did not
    receive his Miranda or statutory warnings while in custody. See Miranda v. Arizona,
    
    384 U.S. 436
    , 441 (1966); TEX. CODE CRIM. PROC. art. 38.22.
    A.    Standard of Review
    We review the denial of a motion to suppress for abuse of discretion under a
    bifurcated standard. See Wexler v. State, 
    625 S.W.3d 162
    , 167 (Tex. Crim. App.
    2021). We give almost total deference to the trial court’s factual assessment of the
    8
    circumstances surrounding the questioning and review de novo the legal
    determination of whether the person was in custody under those circumstances. 
    Id.
    When the trial court denies a motion to suppress without any findings of fact,
    we view the evidence in the light most favorable to the ruling and assume the trial
    court made implicit fact findings that support its ruling if those findings are
    supported by the record. 
    Id.
     We will uphold the trial court’s ruling if it is supported
    by the record and correct under any theory of law applicable to the case. State v.
    Iduarte, 
    268 S.W.3d 544
    , 548 (Tex. Crim. App. 2008).
    B.    Applicable Law
    Under Miranda and article 38.22 of the Texas Code of Criminal Procedure,
    statements produced by custodial interrogation are inadmissible unless the accused
    is first warned that he has the right to remain silent, his statement may be used against
    him, and he has the right to hire a lawyer or have a lawyer appointed. See Miranda,
    384 U.S. at 441; TEX. CODE CRIM. PROC. art. 38.22, § 2(a). Under article 38.22, the
    accused must also be warned that he may terminate the interview at any time. TEX.
    CODE CRIM. PROC. art. 38.22, § 2(a)(5). “Custody” for purposes of article 38.22 is
    consistent with the meaning of “custody” for purposes of Miranda. Herrera v. State,
    
    241 S.W.3d 520
    , 526 (Tex. Crim. App. 2007).
    Custody is determined from (1) the circumstances surrounding the
    interrogation and (2) whether a reasonable person in such circumstances would have
    9
    felt that he was not free to leave. Wexler, 625 S.W.3d at 167. The court must apply
    an objective test to determine whether there was restraint on freedom of movement
    to a degree associated with arrest. Id. The “reasonable person” standard presupposes
    an innocent person. Id.
    The Court of Criminal Appeals outlined four general situations that may
    constitute custody. Dowthitt v. State, 
    931 S.W.2d 244
    , 255 (Tex. Crim. App. 1996).
    The first three situations are when (1) the suspect is physically deprived of his
    freedom in any significant way; (2) law enforcement tells the suspect not to leave;
    or (3) law enforcement creates a situation that would lead a reasonable person to
    believe that his freedom of movement has been significantly restricted. Wexler, 625
    S.W.3d at 167–68 (citing Dowthitt, 931 S.W.2d at 255). In these three situations, a
    suspect’s freedom must be restricted “to the degree associated with an arrest,” not
    just that of an investigative detention. Id. The fourth situation is when probable cause
    has been manifested to the suspect, law enforcement did not tell the suspect he can
    leave, and, considering the surrounding circumstances, a reasonable person would
    believe he is restricted to a degree associated with arrest. Id.
    C.    First Interview
    Several facts tend to show that Crawford’s first interview with Lieutenant
    Ellis and Investigator Malmstrom in May 2019 was noncustodial: Crawford
    voluntarily drove himself to the interview at the Hearne Police Department; he was
    10
    not handcuffed; he was told he was not “in custody” and would not be “in custody”
    at the end of interview; the door to the interview room was unlocked; he was told
    that he was free to leave at any time and was not required to talk to law enforcement;
    the interview was less than an hour long; and he drove himself home after the
    interview. But other facts tend to show it was custodial, including that probable
    cause manifested when Ellis and Malmstrom repeatedly confronted Crawford about
    sexually assaulting Mary and Haley; Crawford admitted having sex with Mary, a
    minor; and the door to the interview room was closed.
    As to the first three Dowthitt situations, viewing the evidence in the light most
    favorable to the trial court’s ruling and examining the totality of the circumstances,
    we conclude that Crawford’s freedom of movement was not restrained to the degree
    associated with a formal arrest. See id. at 167; Dowthitt, 931 S.W.2d at 255. As to
    the fourth Dowthitt situation, probable cause to arrest Crawford manifested when
    (1) Lieutenant Ellis told Crawford of the report that he had sexually assaulted two
    minors and (2) Crawford admitted to having sex with Mary. See Dowthitt, 931
    S.W.2d at 255–56. That probable cause existed to arrest Crawford, however, does
    not alone make the interview custodial. See id. at 257. Considered alongside the
    other facts, the circumstances support the trial court’s determination that Crawford
    was not in custody when he gave the statement from his first interview. See, e.g.,
    Garcia v. State, 
    106 S.W.3d 854
    , 858–59 (Tex. App.—Houston [1st Dist.] 2003, pet.
    11
    ref’d) (noncustodial when suspect voluntarily went to police station and, after being
    told he could leave, voluntarily gave videotaped statement); Garza v. State, 
    34 S.W.3d 591
    , 596–98 (Tex. App.—San Antonio 2000, pet. ref’d) (discussing
    significance of telling suspect he is free to leave).
    D.    Second Interview
    A few hours after the initial interview, Crawford emailed Lieutenant Ellis to
    speak again. And two days later, he was interviewed by Lieutenant Salazar.
    Crawford does not dispute that he attended voluntarily, only that the manifestation
    of probable cause along with other circumstances turned a noncustodial interview
    into a custodial one.
    In considering the totality of the circumstances surrounding the interrogation,
    several facts tend to show that it was noncustodial: Crawford again drove himself to
    the interview, this time located at the Grimes County Sheriff’s Office, which was in
    the same building as the county jail; he was not handcuffed; he signed a consent
    form which admonished him of his “right to stop at any time”;6 the door to the
    interview room was unlocked; he took a bathroom break; and he drove himself home
    6
    Above Crawford’s signature, the form states that Crawford was “fully advised, and
    with full knowledge and understanding,” “voluntarily agree[ed] to allow a Texas
    Department of Public Safety [sic] to [him] regarding [s]exual assault of a [c]hild.”
    Additionally, the form recites that Crawford consented of his “own free will” and
    not because of “duress, threats, [] coercion,” or promises of “anything of value,
    reward, or immunity,” and that he had a “right to stop [illegible] at any time [he]
    desire[d].”
    12
    after the interview was complete. But there are also facts that tend to show the
    interview was custodial such as the manifestation of probable cause when Lieutenant
    Salazar repeatedly confronted Crawford about sexually assaulting Mary and Haley;
    that Crawford admitted to sexually assaulting a minor, Haley; that the door to the
    interview room was closed; that he was not told he was free to leave before or during
    the interview; and the interview lasted about five hours.
    Again, when considering the first three Dowthitt situations, viewing the
    evidence in the light most favorable to the ruling and examining the totality of the
    circumstances, we conclude that Crawford’s freedom of movement was not
    restrained to the degree associated with a formal arrest. Wexler, 625 S.W.3d at 167;
    Dowthitt, 931 S.W.2d at 255.
    But the fourth Dowthitt situation requires further consideration. Lieutenant
    Salazar manifested probable cause to arrest Crawford multiple times when she told
    Crawford that he was under investigation for sexual assault of two minors, and
    Crawford admitted to sexually assaulting Haley. But, as discussed, probable cause
    alone does not make an interrogation custodial, it is just one consideration when
    examining the totality of the circumstances. See Dowthitt, 931 S.W.2d at 257. The
    facts show that Crawford initiated contact after the first interview, asking for another
    opportunity to speak to law enforcement. Additionally, the consent form he signed
    at the beginning of this interview informed him that he had “a right to stop at any
    13
    time.” Considering these facts, along with the rest of the circumstances surrounding
    the second interview, there was support for the trial court’s determination that
    Crawford was not in custody when he confessed during the second interview. See,
    e.g., Smith v. State, 
    779 S.W.2d 417
    , 428 (Tex. Crim. App. 1989) (eight hours of
    questioning without food did make confession involuntary); Bell v. State, 
    169 S.W.3d 384
    , 391–92 (Tex. App.—Fort Worth 2005, pet. ref’d) (eight hours of
    questioning in handcuffs and leg shackles did not make confession involuntary when
    accused never stated he wanted to stop questioning or speak to attorney and never
    requested food, water, or bathroom breaks).
    Accordingly, we overrule Crawford’s first issue.
    Multiple Outcry Witnesses
    Crawford contends that the trial court abused its discretion by allowing outcry
    testimony from multiple witnesses about the same event.
    A.    Standard of Review
    A trial court has broad discretion to admit outcry witness testimony. Garcia
    v. State, 
    792 S.W.2d 88
    , 92 (Tex. Crim. App. 1990); Buentello v. State, 
    512 S.W.3d 508
    , 516 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). We will not reverse the
    trial court’s decision to admit outcry witness testimony unless it falls outside the
    zone of reasonable disagreement. Buentello, 512 S.W.3d at 516–17.
    14
    B.    Applicable Law
    Hearsay statements, while generally inadmissible, may be admitted if public
    policy supports their use and the circumstances surrounding the making of those
    statements indicate their reliability. See, e.g., Garcia, 792 S.W.2d at 91 (by enacting
    “child outcry” hearsay exception in TEX. CODE CRIM. PROC. art. 38.072, Legislature
    “was obviously striking a balance between the general prohibition against hearsay
    and the specific societal desire to curb the sexual abuse of children”). Article 38.072
    of the Texas Code of Criminal Procedure governs the admissibility of outcry
    statements in the prosecution of aggravated sexual assault of a child. TEX. CODE
    CRIM. PROC. art. 38.072, § 1 (2022).7 This statute applies to “statements that describe
    the alleged offense” and that were made (1) by the child against whom the offense
    was allegedly committed and (2) to the first person, 18 years old or older, other than
    the defendant, to whom the child made a statement about the offense. See id. art.
    38.072, § 2(a)(1)–(3); Bays v. State, 
    396 S.W.3d 580
    , 585 (Tex. Crim. App. 2013).
    Such statements are not inadmissible hearsay if certain requirements, which are not
    at issue here, are satisfied. TEX. CODE CRIM. PROC. art. 38.072.
    7
    We apply and reference the version of the statute that was in effect at the time of
    trial in 2022. See Acts 2023, 88th Leg., ch. 93 (S.B. 1527), § 3.01, eff. Sept. 1, 2023
    (evidence admitted in criminal proceedings that commence before Sept. 1, 2023, is
    governed by the former law in effect at that time).
    15
    The statement must describe the alleged offense “in some discernible manner”
    and must be more than “a general allusion that something in the area of child abuse
    was going on.” Garcia, 792 S.W.2d at 91. In general, the proper outcry witness is
    the first adult to whom the child abuse victim describes “how, when, and where” the
    abuse occurred. Reyes v. State, 
    274 S.W.3d 724
    , 727 (Tex. App.—San Antonio
    2008, pet. ref’d). If the child makes only a general allusion to the first adult and gives
    a more detailed account to a second adult, the second adult may be the proper outcry
    witness. See Garcia, 792 S.W.2d at 91.
    The admissibility of outcry witness testimony is not person-specific, but
    event-specific. Polk v. State, 
    367 S.W.3d 449
    , 453 (Tex. App.—Houston [14th Dist.]
    2012, pet. ref’d). Hearsay testimony from more than one outcry witness may be
    admissible under article 38.072 if the witnesses testify about different events. Lopez
    v. State, 
    343 S.W.3d 137
    , 140 (Tex. Crim. App. 2011); Hernandez v. State, 
    973 S.W.2d 787
    , 789 (Tex. App.—Austin 1998, pet. ref'd) (if child described one type
    of abuse to one witness and different type of abuse to second witness, second witness
    may testify as outcry witness about distinct offense). However, “[t]here may be only
    one outcry witness per event.” Lopez, 
    343 S.W.3d at 140
    .
    The erroneous admission of outcry testimony is non-constitutional error. See
    Johnson v. State, 
    967 S.W.2d 410
    , 417 (Tex. Crim. App. 1998). Under Texas Rule
    of Appellate Procedure 44.2(b), non-constitutional error must be disregarded unless
    16
    it affected the defendant’s substantial rights. TEX. R. APP. P. 44.2(b). This means we
    will not overturn a criminal conviction for non-constitutional error if, after
    examining the record as a whole, we have “fair assurance that the error did not
    influence the jury[] or influenced the jury only slightly.” Barshaw v. State, 
    342 S.W.3d 91
    , 93 (Tex. Crim. App. 2011). Our “focus is not on whether the outcome
    of the trial was proper despite the error, but whether the error had a substantial or
    injurious effect or influence on the jury’s verdict.” 
    Id.
     at 93–94.
    C.    Error
    To determine whether the trial court should not have allowed any of the three
    outcry witnesses to testify, we must consider whether the witnesses testified about
    distinct events. See Polk, 
    367 S.W.3d at 453
    ; Berg v. State, No. 01-22-00248-CR,
    
    2023 WL 5616200
    , at *21 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, pet.
    ref’d) (mem. op., not designated for publication) (multiple outcry witness may be
    designated when child is victim of more than one sexual offense and outcry
    witnesses are not testifying about same event). The State points to case law defining
    a distinct event as the “offense as alleged in the indictment.” Turner v. State, 
    924 S.W.2d 180
    , 183 (Tex. App.—Eastland 1996, pet. ref’d). The offenses as alleged in
    the indictment include (1) aggravated sexual assault by digital penetration of Haley’s
    vagina; (2) aggravated sexual assault by oral penetration of Haley’s vagina; and
    (3) indecency by touching Haley’s breasts.
    17
    The first adult Haley told about the abuse was Jane. Jane testified that Haley
    told her about digital penetration, oral penetration, and touching of her breasts. The
    second outcry witness was Conrad. Haley told Conrad that she had been raped and
    that the assailant had a gun. The third outcry witness, Martinez, testified that Haley
    told her about digital penetration, oral penetration, and touching of her breasts. When
    telling each of these witnesses about the sexual assault, Haley never alleged that it
    occurred multiple times or on separate occasions. Instead, the incident occurred in
    the same location and the acts were by the same person in the same course of
    conduct.
    Because Haley first described the alleged offenses to Jane, Jane was the
    appropriate outcry witness. See TEX. CODE CRIM. PROC. art. 38.072, § 2(a)(3)
    (limiting outcry testimony to first person to whom child made a statement); Lopez,
    
    343 S.W.3d at 140
    ; see also Nino v. State, 
    223 S.W.3d 749
    , 752 (Tex. App.—
    Houston [14th Dist.] 2007, no pet.) (trial court abused its discretion by designating
    someone other than first adult to whom child made statement about alleged sexual
    abuse as outcry witness); but see Reynolds v. State, 
    227 S.W.3d 355
    , 369 (Tex.
    App.—Texarkana 2007, no pet.) (trial court did not abuse its discretion by allowing
    one outcry witness to testify about child’s report involving breasts and another
    outcry witness to testify about child’s report involving genital area).
    18
    As to Conrad, the record shows that Haley did not describe any of the alleged
    offenses beyond making a general allusion to abuse. See Bargas v. State, 
    252 S.W.3d 876
    , 894–95 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (complainant telling
    person that defendant touched her “private parts” did not describe the alleged offense
    in discernible manner); see also Garcia, 792 S.W.2d at 91. Because Conrad was not
    the first adult that Haley disclosed the abuse to in a discernable manner, Conrad’s
    outcry testimony was inadmissible. See TEX. CODE CRIM. PROC. art. 38.072,
    § 2(a)(3); Bargas, 252 S.W.3d at 894–95.
    Lastly, because Martinez testified to the same events as Jane, whom Haley
    previously told about Crawford’s offenses, Martinez’s testimony was also
    inadmissible. See Reynolds, 
    227 S.W.3d at 369
    ; Berg, 
    2023 WL 5616200
    , at *21
    (multiple people may not testify to same event just because it was told to them); see
    also Bays, 396 S.W.3d at 585 (allowing child complainant’s hearsay describing
    alleged offense so long as statement is made to first adult person to whom child
    disclosed). Because Jane was the only proper outcry witness, we must review the
    erroneous admission of the other outcry testimony.
    D.    Harm
    Error in admitting hearsay under article 38.072 is non-constitutional error. See
    Johnson, 
    967 S.W.2d at 417
    ; see also TEX. R. APP. P. 44.2(b). Both this Court and
    our sibling court in Houston have held that such error is harmless if the same or
    19
    similar evidence is admitted without objection at another point in the trial.8
    Lamerand v. State, 
    540 S.W.3d 252
    , 259 (Tex. App.—Houston [1st Dist.] 2018, pet.
    ref’d) (any error in admitting outcry testimony was harmless because complainant
    gave similar testimony); Nino, 
    223 S.W.3d at 754
     (improperly admitted outcry
    testimony was harmless because complainant gave “substantially the same account
    of the offense” in her testimony); Duncan v. State, 
    95 S.W.3d 669
    , 672 (Tex. App.—
    Houston [1st Dist.] 2002, pet ref’d) (error in admitting outcry testimony was cured
    when other similar testimony was given without objection, including from
    complainant).
    The jury received evidence about the sexual assaults from two sources other
    than the three outcry witnesses. First, Crawford confessed to vaginally penetrating
    Haley with his fingers, touching and pinching Haley’s breasts, and “going down” on
    Haley before he recanted. Second, Haley testified to the same details as the three
    outcry witnesses. She stated that Crawford touched and pinched her breasts,
    8
    Other Texas courts have concluded that erroneously admitted outcry testimony is
    not harmless when a child complainant gave substantially the same testimony
    without objection. See Sandoval v. State, 
    409 S.W.3d 259
    , 289 (Tex. App.—Austin
    2013, no pet.) (defendant did not waive complaint about outcry testimony by failing
    to object to complainant’s testimony because complainant’s testimony was not
    objectionable); but see Koury v. State, 
    684 S.W.3d 537
    , 551 (Tex. App.—Austin
    2024, pet. ref’d) (applying, in dicta, harmless error doctrine to “backdoor hearsay”
    of interviewer). Absent contrary direction from a higher court, we follow our own
    precedent. See Ex parte Thomas, 
    623 S.W.3d 370
    , 381–82 (Tex. Crim. App.
    2021) (discussing stare decisis).
    20
    vaginally penetrated her with his fingers, performed oral sex on her and penetrated
    her with his tongue, and showed her a gun. Because the same or similar evidence
    about which Crawford complains was admitted without objection through
    Crawford’s confessions, in part, and during Haley’s testimony, the error was
    harmless. See Lamerand, 540 S.W.3d at 259–60; Duncan, 
    95 S.W.3d at 672
    .
    We overrule Crawford’s issue on multiple outcry witnesses.
    Bolstering
    Crawford also contends that Conrad’s and Martinez’s testimony was
    inadmissible bolstering.
    A.    Standard of Review
    The abuse-of-discretion standard applies to evidentiary complaints. See
    Winegarner v. State, 
    235 S.W.3d 787
    , 790 (Tex. Crim. App. 2007).
    B.    Applicable Law
    Bolstering generally refers to evidence that improperly supports the testimony
    of an unimpeached witness or adds credence or weight to prior evidence introduced
    by the same party. See Rivas v. State, 
    275 S.W.3d 880
    , 886 (Tex. Crim. App.
    2009) (explaining that while the term bolstering is not in the Texas Rules of
    Evidence and is “slowly dying,” “it has not yet expired”). Bolstering occurs when
    the testimony’s sole purpose is to enhance the credibility of a witness or source of
    evidence, without substantively contributing “to make the existence of [a] fact that
    21
    is of consequence to the determination of the action more or less probable than it
    would be without the evidence.” Cohn v. State, 
    849 S.W.2d 817
    , 819–20 (Tex. Crim.
    App. 1993). Bolstering does not occur when the evidence or source of evidence
    “corroborates” other evidence and is also relevant. 
    Id.
    C.    Error
    Here, there was no biological evidence recovered from a sexual assault, so the
    identity of the perpetrator was a core issue along with Haley’s credibility. There was
    a partial confession by Crawford to one aggravated sexual assault charge and the
    indecency charge. But on the remaining charge, aggravated sexual assault by oral
    penetration of the complainant’s vagina, Haley’s credibility was central for the jury.
    Martinez’s outcry testimony, which was inadmissible under article 38.072 because
    it repeated Jane’s testimony about the same events, does not make the existence of
    a consequential fact more or less probable than it would be without the testimony.
    See Rivas, 
    275 S.W.3d at 886
    ; Cohn, 849 S.W.2d at 819–20. Instead, in the context
    of article 38.072’s limitations on hearsay, this cumulative testimony only added
    credence or weight to Haley’s testimony. See TEX. CODE CRIM. PROC. art. 38.072;
    see also Sandoval v. State, 
    409 S.W.3d 259
    , 289 & n.21 (Tex. App.—Austin 2013,
    no pet.) (child complainant’s testimony improperly bolstered by repetition of
    inadmissible hearsay because “listener becomes more confident that the [repeated]
    statement is true, whether or not it actually is”); Lopez v. State, 
    315 S.W.3d 90
    , 98–
    22
    99 (Tex. App.—Houston [1st. Dist.] 2010) (repetitive outcry testimony bolstered
    complainant’s testimony without making existence of facts at issue more or less
    probable), rev’d on other grounds, 
    343 S.W.3d 137
     (Tex. Crim. App. 2011); but see
    Cantu v. State, 
    830 S.W.2d 166
    , 170–71 (Tex. App.––Dallas 1992, no writ) (outcry
    testimony that satisfies article 38.072 is not bolstering).
    Similarly, Conrad’s testimony was inadmissible under article 38.072 because
    it did not describe any of the alleged offenses beyond making a general allusion to
    abuse. See Bargas, 252 S.W.3d at 894–95. Because Conrad’s testimony did not
    make the existence of a fact at issue more or less probable than it would be without
    the evidence, it served only to bolster Haley’s testimony. See Lopez, 315 S.W.3d at
    98–99; Guerra v. State, 
    771 S.W.2d 453
    , 474 (Tex. Crim. App. 1988) (bolstering
    occurs when evidence used to add credence or weight to unimpeached evidence).
    Therefore, it was error to admit Conrad’s and Martinez’s outcry testimony.
    D.    Harm
    Because Conrad’s and Martinez’s outcry testimony was impermissible
    bolstering, we evaluate harm under the rule for non-constitutional error. See TEX. R.
    APP. P. 44.2(b); Rousseau v. State, 
    855 S.W.2d 666
    , 681 (Tex. Crim. App.
    1993) (bolstering evidence is subject to harmless error analysis). And we reach the
    same conclusion as our earlier harm analysis. Because Haley testified to the same
    information as Conrad and Martinez, the error in admitting their testimony is
    23
    harmless. See Anderson v. State, 
    717 S.W.2d 622
    , 628 (Tex. Crim. App.
    1986) (“Inadmissible evidence can be rendered harmless if other evidence at trial is
    admitted without objection and it proves the same fact that the inadmissible evidence
    sought to prove.”); Lamerand, 
    540 S.W.3d at 259
    .
    We overrule Crawford’s bolstering issue.
    Cumulative Error
    Crawford asserts in his final issue that the cumulative effect of the outcry and
    bolstering errors was harmful.
    A.    Applicable Law
    “The doctrine of cumulative error provides that the cumulative effect of
    several errors can, in the aggregate, constitute reversible error, even though no single
    instance of error would.” Schmidt v. State, 
    612 S.W.3d 359
    , 372 (Tex. App.—
    Houston [1st Dist.] 2019, pet. ref’d) (internal quotation omitted). We do not simply
    count the number of separate errors to find harm. See Linney v. State, 
    413 S.W.3d 766
    , 767 (Tex. Crim. App. 2013) (Cochran, J., concurring); Estrada v. State, 
    313 S.W.3d 274
    , 311 (Tex. Crim. App. 2010) (existence of multiple errors does not alone
    warrant reversal). An appellant must show that the errors “synergistically achieve
    the critical mass necessary to cast a shadow upon the integrity of the verdict.” See
    Linney, 
    413 S.W.3d at 767
     (Cochran, J. concurring); Lumsden v. State, 
    564 S.W.3d 24
    858, 899 (Tex. App.—Fort Worth 2018, pet. ref’d) (considering non-constitutional
    errors in the aggregate).
    Where cumulative error was based only on non-constitutional errors, our sister
    courts have conducted an analysis under Rule 44.2(b).9 See Temple v. State, 
    342 S.W.3d 572
    , 612 (Tex. App.—Houston [14th Dist.] 2010), aff’d on other grounds,
    
    390 S.W.3d 341
     (Tex. Crim. App. 2013); Warr v. State, 
    418 S.W.3d 617
    , 621, 623
    (Tex. App.—Texarkana 2009, no pet.) (applying non-constitutional harm analysis);
    TEX. R. APP. P. 44.2(b); see also Stahl v. State, 
    749 S.W.2d 826
    , 832 (Tex. Crim.
    App. 1988) (considering whether harm in the aggregate was reversible under former
    9
    In an unpublished opinion that did not apply the cumulative error doctrine because
    the issues raised by the appellant were either not error or not preserved, this Court
    cited Estrada as holding that the cumulative error doctrine provides relief only when
    constitutional errors violate the trial’s fundamental fairness. See Tenas v. State, No.
    01-22-00309-CR, 
    2023 WL 4003071
    , at *13 (Tex. App.—Houston [1st Dist.] June
    15, 2023, no pet.) (mem. op., not designated for publication); see also Arevalo v.
    State, 
    675 S.W.3d 833
    , 861 n.5 (Tex. App.—Eastland 2023, no pet.) (citing Estrada
    for the same principle). We note the quoted language from Estrada is not the Court
    of Criminal Appeals’ own but instead is found in a parenthetical citing federal
    authority. See Estrada, 
    313 S.W.3d at 311
     (quoting United States v. Bell, 
    367 F.3d 452
    , 471 (5th Cir. 2004)). Other courts have applied Estrada without limiting
    cumulative error to constitutional errors. See, e.g., Linney v. State, 
    401 S.W.3d 764
    ,
    782 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (discussing non-
    constitutional errors in cumulative error analysis); Cabello v. State, No.
    13-19-00341-CR, 
    2022 WL 3451368
    , at *23 (Tex. App.—Corpus Christi-Edinburg,
    Aug. 18, 2022, no pet.) (mem. op., not designated for publication) (same); Screws
    v. State, 
    630 S.W.3d 158
    , 169 (Tex. App.—Eastland 2020, no pet.) (same). Because
    Estrada only states “we cannot say that ‘two or more errors’ . . . rendered this phase
    of appellant’s trial fundamentally unfair,” we do not find that it limits the cumulative
    error doctrine from providing relief for cumulative non-constitutional errors. See
    Estrada, 
    313 S.W.3d at 311
    .
    25
    rules). We find this consistent with the Texas Court of Criminal Appeals’
    requirement that reversible cumulative error must render the applicable phase of trial
    fundamentally unfair. See Jacobson v. State, 
    398 S.W.3d 195
    , 204 (Tex. Crim. App.
    2013); Estrada, 
    313 S.W.3d at 311
    .
    When determining non-constitutional harm, we must examine the entire
    record and have a fair assurance that the error did not influence the jury or had only
    a slight effect. Solomon v. State, 
    49 S.W.3d 356
    , 365 (Tex. Crim. App. 2001). We
    consider the following nonexclusive factors: the character of the alleged error and
    how it might be considered in connection with other evidence; the nature of the
    evidence supporting the verdict; the existence and degree of additional evidence
    indicating guilt; whether the State emphasized the complained-of error; the trial
    court’s instructions; the theory of the case; and relevant voir dire. Cook v. State, 
    665 S.W.3d 595
    , 599 (Tex. Crim. App. 2023). We will not overturn a conviction if, after
    examining the entire record, we have fair assurance that the error did not influence
    the jury or did so only slightly. See Motilla v. State, 
    78 S.W.3d 352
    , 355 (Tex. Crim.
    App. 2002).
    B.    Analysis
    We identify two non-constitutional errors here, improper admission of outcry
    testimony and bolstering, which we found harmless. Crawford also asserts that the
    alleged motion to suppress error should be considered in a cumulative error analysis,
    26
    but because we found no error on that issue, we will not consider it here. See Buntion
    v. State, 
    482 S.W.3d 58
    , 79 (Tex. Crim. App. 2016) (appellant must first prove error
    before any error can be considered in the aggregate).
    First, the jury heard from Conrad and Martinez separately. Conrad told the
    jury that after she talked to Haley and other youth about abstinence, Haley revealed
    that she had been raped and the assailant had a gun. The jury then heard from
    Martinez, who, as a former forensic interviewer, is trained to interview children
    about allegations of abuse. Martinez repeated the same information that Jane had
    already testified to. All three outcry witnesses testified on the same day and in
    immediate succession of each other.
    Second, the State did not emphasize or mention Conrad’s or Martinez’s
    testimony during closing arguments. Instead, it focused on the testimony of the
    investigators who interviewed Crawford, Crawford’s confession, Haley’s testimony,
    and Mary’s testimony.
    Third, the jury charge instructed the jurors that they “review the evidence,”
    “determine the facts and what they prove,” and “judge the believability of the
    witnesses and what weight to give their testimony.”
    Fourth, considering the nature and strength of the other evidence supporting
    the verdict, we note that Crawford confessed to digitally penetrating Haley’s vagina
    and touching her breasts; Lieutenant Salazar testified that Crawford initially
    27
    confessed to also “going down” on Haley but he later recanted; Haley testified in
    detail about the abuse; Haley’s outcry statement to Jane supported her testimony;
    Jane testified that Haley knew the difference between a truth and a lie; and Mary’s
    testimony corroborated the locations and timeline as recounted by Haley.
    We must also consider the substantially similar testimony that was admitted.
    We have not previously extended the “harmless error doctrine” to a cumulative error
    harm analysis under Rule 44.2(b).10 We find Sandoval’s reasoning on cumulative
    error persuasive. Where a defendant has consistently objected to inadmissible
    evidence except the child complainant’s testimony, in this context where the
    repetition and synergy of inadmissible evidence is potentially harmful, the harmless
    error doctrine is not determinative. See Sandoval, 409 S.W.3d at 289–90 & n.21
    (“Repetition is an effective method of persuasion. . . . [A]fter hearing a plausible
    statement repeated, the listener becomes more confident that the statement is true,
    whether or not it actually is.”); see also Coble v. State, 
    330 S.W.3d 253
    , 286–87
    (Tex. Crim. App. 2010) (treating harmless error doctrine as a non-determinative
    factor in analyzing harm under Rule 44.2(b)); Linney, 
    401 S.W.3d at 767
     (looking
    10
    We recognize that Leday instructs that “overruling an objection to evidence will not
    result in reversal when other such evidence was received without objection,” but
    this did not consider the application of the harmless error doctrine in the context of
    cumulative error. Leday v. State, 
    983 S.W.2d 713
    , 718 (Tex. Crim. App. 1998); see
    also Sandoval, 
    409 S.W.3d at 289
     (applying, in dicta, cumulative error without
    harmless error doctrine).
    28
    for multiple errors that synergistically achieve critical mass necessary to cast shadow
    on verdict); Anderson, 
    717 S.W.2d at 628
     (“Inadmissible evidence can be rendered
    harmless if other evidence at trial is admitted without objection and it proves the
    same fact that the inadmissible evidence sought to prove.” (emphasis added)). As
    stated in our earlier harm analyses, Haley testified to the same information as Conrad
    and Martinez.
    Even though the jury heard from Conrad and Martinez in short succession of
    Jane and were followed by Haley, the State did not emphasize Conrad’s or
    Martinez’s testimony in closing, the jurors were instructed that they could determine
    the weight of each witness’s testimony, Crawford had confessed to some of the
    offenses, Haley testified in detail about the same facts, and Mary corroborated parts
    of Haley’s testimony. Given these circumstances, after conducting our own review
    of the entire record, including all the testimony and evidence, we cannot conclude
    these errors considered together affected Crawford’s substantial rights. See Temple,
    
    342 S.W.3d at 612
    ; Haley, 173 S.W.3d at 518.
    We overrule Crawford’s final issue.
    29
    Conclusion
    Accordingly, we affirm the trial court’s judgment.
    Sarah Beth Landau
    Justice
    Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.
    Do not publish. TEX. R. APP. P. 47.2(b).
    30
    

Document Info

Docket Number: 01-22-00706-CR

Filed Date: 6/20/2024

Precedential Status: Precedential

Modified Date: 6/24/2024