Luna, Eleazar

PD-1255&1256&1257-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/2/2015 3:50:51 PM
Accepted 11/3/2015 1:41:11 PM
ABEL ACOSTA
Nos. PD-1255-15, PD-1256-15, and PD-1257-15 CLERK
_______________________________________________________________
IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
_______________________________________________________________
ELEAZAR LUNA, Appellant
v.
THE STATE OF TEXAS
_______________________________________________________________
APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW FROM
THE DECISIONS BY THE THIRTEENTH COURT OF APPEALS IN
CAUSE NUMBERS 13-14-00367-CR, 13-14-00368-CR, and 13-14-00369-CR
_______________________________________________________________
Richard E. Wetzel
Bar No. 21236300
1411 West Avenue, Suite 100
Austin, Texas 78701
(512) 469-7943
(512) 474-5594 – fax
November 3, 2015
wetzel_law@1411west.com
Attorney for Appellant
Eleazar Luna
Identity of Parties and Counsel
Appellant: Eleazar Luna
Counsel for Appellant at Trial: Brent Dornburg
Attorney at Law
120 North Main St.
Victoria, TX
77901
Counsel for Appellant on Appeal: Richard E. Wetzel
Attorney at Law
1411 West Ave., Ste. 100
Austin, TX
78701
Appellee: State of Texas
Counsel for Appellee at Trial: Terry Breen
Assistant District Attorney
307 North Gonzales St.
Cuero, TX
77963
Counsel for Appellee on Appeal: Robert Lassmann
Assistant District Attorney
307 North Gonzales St.
Cuero, TX
77963
Trial Judge: Hon. Stephen Williams
24th District Court
Goliad County
ii
Table of Contents
Page
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . .3
Questions for Review . . . . . . . . . . . . . . . . . . . . . . . . .4
Argument in Support of First Question for Review . . . . . . . . . . . . . . . . . . . . . . . . .5
Is it permissible for a prosecutor to define the term “reasonable doubt” during voir
dire examination of the prospective jurors? (2 RR 67-68)
Argument in Support of Second Question for Review . . . . . . . . . . . . . . . . . . . . . . .9
Is the failure of a search warrant affidavit to contain facts supporting an alleged
offense meaningless when the affidavit otherwise contains facts of an offense not
alleged in the affidavit or found by the magistrate? (3 RR 19)
Argument in Support of Third Question for Review . . . . . . . . . . . . . . . . . . . . . . . 12
Did the Court of Appeals erroneously find error in the improper admission of
hearsay outcry testimony harmless after mischaracterizing the record and finding
the evidence sufficient to support the conviction? (3 RR 52-53)
Prayer . . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . 19
Appendix . . . . . . . . . . . . . . . . . . . . . . . 19
iii
Index of Authorities
Page
Borsari v. State, 919 S.W.2d 913
(Tex. App. – Houston [14th Dist.] 1996, pet. ref’d) . . . . . . . . . . . . . . . . . . .11
Fuller v. State, 363 S.W.3d 583
(Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . .7
Gonzalez Soto v. State, 267 S.W.3d 327
(Tex. App. – Corpus Christi 2008, no pet.) . . . . . . . . . . . . . . . . . . .14
Haley v. State, 173 S.W.3d 510
(Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . .15
Johnson v. State, 43 S.W.3d 1
(Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . .14
Luna v. State, 2015 WL 4381353
(Tex. App. – Corpus Christi 2015, pet. filed) . . . . . . . . . . . . . . . passim
Motilla v. State, 78 S.W.3d 352
(Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . .14
Paulson v. State, 28 S.W.3d 570
(Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . .8
Samaripas v. State, 454 S.W.3d 1
(Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . .9
Woolridge v. State, 827 S.W.2d 900
(Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . .7
Statutes
TEX. CRIM. PROC. CODE art. 18.01(b) . . . . . . . . . . . . . . . . . . .10
TEX. CRIM. PROC. CODE art. 18.01(c) . . . . . . . . . . . . . . . . . . .10
TEX. CRIM. PROC. CODE art. 18.02(10) . . . . . . . . . . . . . . . . . . .10
iv
TEX. CRIM. PROC. CODE art. 38.072 § 2(a)(2) . . . . . . . . . . . . . . . . . . .13
TEX. PEN. CODE § 21.11(a)(2)(A) . . . . . . . . . . . . . . . .2, 3, 9
TEX. PEN. CODE § 21.11(a)(2)(B) . . . . . . . . . . . . . . . . . . . .1
TEX. PEN. CODE §§ 21.02(c)(1)-(7) . . . . . . . . . . . . . . . . . . . .9
Rules
TEX. R. APP. P. 9.4 . . . . . . . . . . . . . . . . . . .19
TEX. R. APP. P. 44.2(b)14, 16, 18
TEX. R. APP. P. 47.1 . . . . . . . . . . . . . . . . .7, 11
TEX. R. APP. P. 66.3(c) . . . . . . . . . . . . . . . . .8, 15
TEX. R. APP. P. 66.3(f) . . . . . . . .8, 11, 15, 17, 18
v
Statement Regarding Oral Argument
Argument is requested in the event his petition for discretionary review is
granted. The questions presented on discretionary review are both legally complex
and factually intensive. Argument would be of assistance to the court in the
decisional process.
Statement of the Case 13-14-00367-CR1 and PD-1255-15
Eleazar Luna was indicted by a Goliad County grand jury for the offense of
indecency with a child by exposure (CR 6). The cause was assigned cause number
13-04-4700-CR in the 24th Judicial District of Goliad County. The indictment
alleges that on or about January 25, 2013, Luna caused E.S., a child younger than
17 years of age, to expose her genitals to Luna (CR 6). See TEX. PEN. CODE §
21.11(a)(2)(B). A jury was selected and sworn (2 RR 176, 3 RR 20). Luna
entered a plea of not guilty (3 RR 24-26). The jury found him guilty as charged in
the indictment (4 RR 41). Punishment was tried to the court (5 RR). The court
assessed punishment at five years and a fine of $1000 (5 RR 66). The trial court
certified Luna’s right to appeal (CR 40). Notice of appeal was timely filed (CR
41).
1
In an order dated September 19, 2014, the Court of Appeals directed that
the three appeals be consolidated for briefing, issuing orders, and issuing an
opinion.
Statement of the Case 13-14-00368-CR and PD-1256-15
Eleazar Luna was indicted by a Goliad County grand jury for the offense of
indecency with a child by exposure (CR 6). The cause was assigned cause number
13-04-4701-CR in the 24th Judicial District of Goliad County. The indictment
alleges that on or about January 25, 2013, Luna exposed, for the first time, his
genitals to E.S., a child younger than 17 years of age (CR 6). See TEX. PEN. CODE
§ 21.11(a)(2)(A). A jury was selected and sworn (2 RR 176, 3 RR 20). Luna
entered a plea of not guilty (3 RR 24-26). The jury found him guilty as charged in
the indictment (4 RR 41). Punishment was tried to the court (5 RR). The court
assessed punishment at five years and a fine of $1000 (5 RR 66). The court
suspended the imposition of sentence and placed Luna on community supervision
for a period of five years (5 RR 66). The trial court certified Luna’s right to appeal
(CR 40). Notice of appeal was timely filed (CR 41).
Statement of the Case 13-14-00369-CR and PD-1257-15
Eleazar Luna was indicted by a Goliad County grand jury for the offense of
indecency with a child by exposure (CR 6). The cause was assigned cause number
13-04-4702-CR in the 24th Judicial District of Goliad County. The indictment
alleges that on or about January 25, 2013, Luna exposed, for the last time, his
genitals to E.S., a child younger than 17 years of age (CR 6). See TEX. PEN. CODE
2
§ 21.11(a)(2)(A). A jury was selected and sworn (2 RR 176, 3 RR 20). Luna
entered a plea of not guilty (3 RR 24-26). The jury found him guilty as charged in
the indictment (4 RR 41). Punishment was tried to the court (5 RR). The court
assessed punishment at five years (5 RR 66). The court suspended the imposition
of sentence and placed Luna on community supervision for a period of five years
(5 RR 66). The trial court certified Luna’s right to appeal (CR 40). Notice of
appeal was timely filed (CR 41).
Statement of Procedural History
Five points of error were presented on direct appeal. The Court of Appeals
affirmed Luna’s convictions and sentences in an unpublished opinion. Luna v.
State, 2015 WL 4381353 (Tex. App. – Corpus Christi 2015, pet. filed). Motions
for rehearing were timely filed and denied by the Court of Appeals.2 Following an
extension of time, these petitions are due on or before November 4, 2015.
2
The arguments presented in these petitions concerning the opinion by the
Court of Appeals were first presented to the Court of Appeals in Luna’s motions
for rehearing. Without calling for a response from the State, the motions for
rehearing were denied by the Court of Appeals three days after they were filed.
3
Questions for Review
First Question for Review
Is it permissible for a prosecutor to define the term “reasonable doubt” during voir
dire examination of the prospective jurors? (2 RR 67-68)
Second Question for Review
Is the failure of a search warrant affidavit to contain facts supporting an alleged
offense meaningless when the affidavit otherwise contains facts of an offense not
alleged in the affidavit or found by the magistrate? (3 RR 19)
Third Question for Review
Did the Court of Appeals erroneously find error in the improper admission of
hearsay outcry testimony harmless after mischaracterizing the record and finding
the evidence sufficient to support the conviction? (3 RR 52-53)
4
Argument in Support of First Question for Review
Is it permissible for a prosecutor to define the term “reasonable doubt”
during voir dire examination of the prospective jurors? (2 RR 67-68)
By his second point of error on direct appeal, Luna complained of erroneous
statements of law provided by the prosecutor during voir dire to the prospective
jurors. Those misguided statements provided the jurors with a definition of the
term beyond a reasonable doubt. By overruling Luna’s objections, the trial
sanctioned the prosecutor’s misstatement of the law (2 RR 68).
Specifically, the record reflects:
MR. BREEN (prosecutor): Now, the definition in the instructions you
get will be left undefined as to what beyond a reasonable doubt
means. A definition that I know, a judge that I knew used to say in his
mind, and this is his opinion, it's that certainty that you would bring to
any important –
MR. DORNBURG (defense counsel): Objection, Your Honor. There's
not a definition to reasonable doubt.
THE COURT: Overruled. Go ahead.
MR. BREEN: And the example he usually used was when to cross a
busy street. We do that all the time, but think about it. If you misjudge
you're run over and you get killed. It's a serious decision, right? You
don't cross the street until you're certain beyond a reasonable doubt
that you can get from one side to the other without getting squished
like a bug, so it's a serious question. All right.
5
Now, as I say, one thing that we do know is beyond a reasonable
doubt is not created simply because there's conflicting testimony.
That's what a trial is supposed to be about is to resolve conflict; right?
Who here feels like, well, you know what, if there's conflicting
testimony I couldn't in good conscience vote to convict no matter
what? Okay.
Reasonable doubt is not created because there are questions that you
have that are never cleared up. You know, if the State proves its case
beyond a reasonable doubt even though you wonder about this or
wonder about that -- almost certainly there will be such questions that
won't be answered by the end of the trial, but that by itself doesn't
create reasonable doubt. Does anybody have a problem with that? (2
RR 67-68).
The Court of Appeals found no error in the trial court overruling Luna’s trial
objection for a variety of reasons. Luna, slip op. at 6-9. Initially, the Court
mischaracterized Luna’s point of error by including portions of the voir dire of
which Luna did not complain on appeal. Luna, slip op. at 7-8. Namely:
Another way of saying beyond a reasonable doubt is beyond a shadow
of a doubt. It's called the Perry Mason standard. It doesn't exist, but
sometimes people say that it has to be beyond a shadow of a doubt or
beyond any possibility no matter how remote or absurd. It has to be
proved beyond any possibility no matter how remote or absurd. If
there's any possibility, no matter how remote or absurd, then I would
have to vote not guilty.
Who feels that way? Before you can convict, the State would have to
prove its case beyond any possibility, no matter how remote or how
absurd? Okay. That's just another way of saying beyond a reasonable
doubt really. Is there anybody here that feels they could not convict a
6
man unless we established guilt beyond all doubt? Who's going to
hold us to that standard?
A review of both Luna’s opening brief and reply brief reveals he did not
challenge the two above quoted paragraphs as being improper (Appellant’s
opening brief at 31-34 and reply brief at 3-5). Indeed, he concedes they were
permissible absent the complained of definitions erroneously provided by the
prosecutor.
Rather than address the claim as presented on appeal, the Court of Appeals
reshaped Luna’s claim with a strawman argument including permissible statements
in voir dire which were not challenged by Luna. The Court of Appeals should
have addressed the claim as presented rather than soften or obfuscate the error by
including matters not challenged on appeal. The failure of the Court of Appeals to
address the claim presented by Luna is contrary to its duty to address the issues he
raised on appeal. See TEX. R. APP. P. 47.1. Review is warranted because the
Court of Appeals, by recrafting Luna’s complaint, so far departed from the
accepted and usual course of judicial proceedings as to call for an exercise of this
Court’s power of supervision. See TEX. R. APP. P. 66.3(f).
The Court of Appeals further found no error in the challenged voir dire
under Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012) and Woolridge v.
7
State, 827 S.W.2d 900 (Tex. Crim. App. 1992). Luna, slip op at 8. However,
careful examination of those opinions reflects neither is applicable to the claim
now presented. Both opinions concern improper limitation on voir dire in the
questioning of prospective jurors on their understanding of the term reasonable
doubt. Fuller, 363 S.W.3d at 586 and Woolridge, 827 S.W.2d at 906. Luna did
not complain of questioning the prospective jurors on their understanding of the
term “reasonable doubt.” Neither Fuller nor Woolridge sanction the State being
allowed to define the term “reasonable doubt” during voir dire examination.
Review is warranted because the Court of Appeals, by misstating the holdings of
two relatively straightforward opinions by this Court, so far departed from the
accepted and usual course of judicial proceedings as to call for an exercise of this
Court’s power of supervision. See TEX. R. APP. P. 66.3(f).
Luna argues the prosecutor’s statements plainly ran afoul of the prohibition
imposed by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)
(prohibiting juries from being instructed on a definition of the term reasonable
doubt). The failure of the Court of Appeals to recognize and acknowledge the
impropriety of the voir dire examination concerns an important question of state
law on which the Court of Appeals decided the matter in conflict with this Court’s
opinion in Paulson. Review is warranted under TEX. R. APP. P. 66.3(c). This
Court should grant discretionary review, recognize the error, and remand the
8
causes to the Court of Appeals for a harm analysis of the error. See Samaripas v.
State, 454 S.W.3d 1, 6 (Tex. Crim. App. 2014) (remanding for a harm analysis
after Court of Appeals failed to recognize error during voir dire process).
Argument in Support of Second Question for Review
Is the failure of a search warrant affidavit to contain facts supporting an
alleged offense meaningless when the affidavit otherwise contains facts of an
offense not alleged in the affidavit or found by the magistrate? (3 RR 19)
In his third point of error, Luna argued the “mere evidence” search warrant
affidavit failed to allege sufficient facts to establish probable cause that he
committed the specific offense of continuous sexual abuse of a young child as
alleged in the affidavit and found by the magistrate. The underlying offense of
indecency with a child by exposure is not a predicate offense of continuous sexual
abuse of a young child. See TEX. PEN. CODE §§ 21.02(c)(1)-(7), 21.11(a)(2)(A)
and (B). Absent facts alleging the predicate offense, the magistrate was not
presented with facts supporting probable cause to believe Luna committed the
offense of continuous sexual abuse of a young child. Consequently, it was urged
by Luna the trial court abused its discretion by denying Luna’s motion to suppress
evidence recovered upon execution of the search warrant.
9
A search warrant cannot issue unless supported by an affidavit stating
probable cause for the issuance of the warrant. TEX. CRIM. PROC. CODE art.
18.01(b). In the case of a “mere evidence” search warrant under art. 18.02(10), the
affidavit must set forth sufficient facts to establish probable cause that a specific
offense has been committed. TEX. CRIM. PROC. CODE art. 18.01(c).
The Court of Appeals rejected Luna’s point of error because it was unwilling
to find the affiant’s erroneous conclusion of law as to what offense Luna
committed was sufficient to invalidate the search warrant. Luna, slip op. at 11.
Luna has no strong disagreement with such a determination provided the affidavit
contains sufficient information for the magistrate to find probable cause for the
charged offense.
However, the determination made by the Court of Appeals does not address
the complaint Luna presented on appeal. Luna has clearly and consistently argued
the search warrant affidavit is insufficient to support the magistrate’s determination
Luna committed the offense of continuous sexual abuse of a young child
(Appellant’s opening brief at 40-44 and reply brief at 7-9). Indeed, even the State
conceded the facts alleged were not sufficient to allege Luna committed the
offense of continuous sexual abuse of a young child (State’s brief at 21).
10
Rather than address a claim not presented, Luna sought for the Court of
Appeals to address his point of error urging probable cause for the offense of
continuous sexual abuse of a young child was not alleged in the search warrant
affidavit presented to the magistrate. The failure of the Court of Appeals to
address the claim presented by Luna is contrary to its duty to address the issues he
raised on appeal. See TEX. R. APP. P. 47.1. Review is warranted because the
Court of Appeals, by ignoring Luna’s plainly stated complaint on appeal, so far
departed from the accepted and usual course of judicial proceedings as to call for
an exercise of this Court’s power of supervision. See TEX. R. APP. P. 66.3(f).
The Court of Appeals cited Borsari v. State, 919 S.W.2d 913 (Tex. App. –
Houston [14th Dist.] 1996, pet. ref’d), as supporting its disposition of the Luna’s
third point of error. Upon close examination, Bosari provides no such support.
There, the defendant challenged a warrant on the basis the underlying affidavit
failed to allege facts showing probable cause to believe he committed the alleged
offense of attempted capital murder. Borsari, 919 S.W.2d at 917. Upon rejecting
the challenge, the Court observed that the affiant alleged facts sufficient to support
a reasonable inference that Borsari committed an inchoate offense, of either an
attempt or a solicitation, in anticipation of committing capital murder. Bosari, 919
S.W.2d at 918. In contrast to Bosari, Luna’s affidavit provides no facts supporting
the allegation of continuous sexual abuse of a young child.
11
The thrust of Luna’s claim is that the magistrate was not provided with
sufficient facts to support the magistrate’s probable cause determination that Luna
committed the offense of continuous sexual abuse of a young child. This Court
should grant discretionary review, find the search warrant affidavit deficient, and
remand the causes to the Court of Appeals to conduct a harm analysis of the error.
Argument in Support of Third Question for Review
Did the Court of Appeals erroneously find error in the improper admission of
hearsay outcry testimony harmless after mischaracterizing the record and
finding the evidence sufficient to support the conviction? (3 RR 52-53)
On January 25, 2013, E.S.’s mother received a telephone call from the
principal at her daughter’s school (3 RR 40). She went to school, picked up E.S.,
and took her home (3 RR 42).
Outside the presence of the jury, E.S.’s mother said that E.S. told her that
Luna had shown her pornographic movies and exposed himself to her (3 RR 44).
E.S. was taken by her mother to speak with a deputy sheriff (3 RR 45). At the
Sheriff’s Office, E.S. further described the movies and a sex toy (3 RR 45). E.S.
told the deputy that Luna exposed himself to her twice and she exposed herself to
Luna once (3 RR 46). She told the deputy that Luna had offered her the use of a
12
sex toy and some lotion if she was so inclined (3 RR 50). E.S. was making the
statements to the deputy and her mother while her mother was present (3 RR 51).
Luna objected to the admissibility of any statements made to the deputy at
the Sheriff’s Office because those statements were not the first statements made to
an individual over the age of 18 (3 RR 52). The first such statements had been
made at home by E.S. to her mother (3 RR 52). The trial court disagreed and
admitted the evidence over objection (3 RR 52).
Back in the presence of the jury, E.S.’s mother testified that upon arriving
home from school, E.S. told her that Luna had shown her inappropriate videos and
exposed himself to her on two occasions (3 RR 54). E.S.’s mother drove her
daughter to the Sheriff’s Office and E.S. was interviewed by an officer (3 RR 55).
Before the officer, E.S. repeated that Luna had shown her his privates and shown
her inappropriate videos (3 RR 55). She also said Luna had shown her a sex toy
and some lotion she could use (3 RR 55). She told the officer the sex toy looked
like a boys privates (3 RR 56). She claimed Luna told her he had some
pornographic videos in his camper that she could watch (3 RR 56).
In his fifth point of error, Luna maintained the outcry testimony from E.S.’s
mother as to the statements made by E.S. to the deputy was inadmissible under
TEX. CRIM. PROC. CODE art. 38.072 § 2(a)(2). Having previously described the
13
incident to her mother, further outcry to the deputy was inadmissible and the trial
court should not have allowed the jury to hear such harmful and inadmissible
evidence.
The Court of Appeals assumed the admission of the outcry to the deputy to
be an abuse of discretion, but found the error harmless. Luna, slip op. at 14.
Initially, the Court of Appeals found the error harmless because the testimony of
E.S. alone was sufficient to support Luna’s convictions. Luna, slip op. at 14. The
Court cited Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App. – Corpus
Christi 2008, no pet.) for the proposition the testimony of a child complainant is
sufficient to support a conviction for indecency with a child. However, Luna’s
claim is not one of sufficiency of the evidence, but rather his complaint goes to
error in the improper admission of hearsay evidence.
Luna acknowledges that evidence of guilt is a factor in conducting a TEX. R.
APP. P. 44.2(b) harm analysis. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim.
App. 2002). However, it is not the only factor. The admission of inadmissible
hearsay constitutes non-constitutional error subject to the harm analysis rule under
TEX. R. APP. P. 44.2(b) which requires the reviewing court to disregard non-
constitutional error that does not affect a criminal defendant's substantial rights.
Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
14
In assessing the likelihood that the jury's decision was adversely affected by
an error, an appellate court should consider everything in the record, including: (1)
any testimony or physical evidence admitted for the jury's consideration; (2) the
nature of the evidence supporting the verdict; (3) the character of the error; (4) how
it might be considered in connection with other evidence in the case; (5) the jury
instructions; (6) the State's theory; (7) any defensive theories; (8) closing
arguments; (9) voir dire; and (10) whether the State emphasized the error. Haley v.
State, 173 S.W.3d 510, 518-519 (Tex. Crim. App. 2005).
Here, the Court of Appeals failed to consider the above mentioned harm
factors upon simply observing E.S.’s testimony alone is sufficient to support the
convictions. While that is a consideration of the harm attendant to the error, it is
not enough standing alone to render the error harmless. Other factors, as
mentioned above have a direct bearing on the harmfulness of the error. The failure
by the Court of Appeals to consider the relevant harm factors was contrary to a
multitude of opinions by the Court of Criminal Appeals including Haley as cited
above. That failure warrants the granting of review under both TEX. R. APP. P.
66.3(c) and 66.3(f).
Luna submits that after examining the record of his trial as a whole, the
Court of Appeals, had it properly addressed the claim, could not have fair
15
assurance that the error in question did not have a substantial and injurious effect
or influence in determining the jury's verdict that Luna was guilty of the charges
involving E.S. In making its evaluation of the harmfulness of the error, the Court
of Appeals should have followed this Court’s construct for a proper TEX. R. APP.
P. 44.2(b) review have been mindful of the following: (1) Luna’s defensive theory
at trial was that E.S. had fabricated the accusations (4 RR 15); (2) the State made
reference to the improperly admitted outcry evidence in its opening statement (3
RR 28); (3) E.S.’s credibility was a contested factor at trial (3 RR 160, 189-197);
(4) the State presented no physical evidence to support the allegations of indecent
exposure by Luna or E.S.; (5) the trial court instructed the jury it was the exclusive
judge of the facts proven, credibility of the witnesses, and weight to be given the
testimony (CR 34); and (6) the State made reference to the improperly admitted
outcry testimony during closing argument in urging the jury to return three guilty
verdicts (4 RR 34).
The Court of Appeals further found the error harmless because Luna was
afforded a full opportunity to cross-examine E.S. Luna, slip op. at 14. Luna
disputes that assessment of record.
The record reflects that after making an outcry to her mother, E.S.’s mother
took her to the sheriff’s office where she told a deputy some more of what
16
happened (3 RR 84-85). At trial on cross-examination, E.S. testified that she could
not remember what she told the deputy (3 RR 93). She repeated that she could not
remember any of what she said at the sheriff’s office (3 RR 96).
In view of E.S.’s inability to remember what she told the deputy, Luna was
not afforded a full and fair opportunity to cross-examine E.S. concerning her
alleged outcry to the deputy. The Court of Appeals mischaracterization of the
record warrants the grant of discretionary review under TEX. R. APP. P. 66.3(f).
Finally, the Court of Appeals found the error harmless because E.S. testified
to the same facts contained within the erroneously admitted outcry testimony.
Luna, slip op. at 14. Once again, Luna disputes that assessment of record.
The record reflects that after making an outcry to her mother, E.S.’s mother
took her to the sheriff’s office where she told a deputy some more of what
happened (3 RR 84-85). At trial on cross-examination, E.S. testified that she could
not remember what she told the deputy (3 RR 93). She repeated that she could not
remember any of what she said at the sheriff’s office (3 RR 96).
In view of E.S.’s inability to remember what she told the deputy, it is
difficult to understand how the Court of Appeals could determine E.S. testified to
the content of her outcry to the deputy. E.S. did not testify to the same facts
17
contained within the erroneously admitted outcry statement and was merely able to
confirm she spoke with the deputy.
The Court of Appeals mischaracterization of the record warrants the grant of
discretionary review under TEX. R. APP. P. 66.3(f). This Court should grant
discretionary review and remand to the Court of Appeals for a proper and full harm
review under TEX. R. APP. P. 44.2(b) while being true to the record.
Prayer
Luna prays the Court will grant his petition for discretionary review and
reverse his convictions, remand to the Court of Appeals, or enter any other relief
appropriate under the law and the facts.
Respectfully submitted,
s/Richard E. Wetzel
Richard E. Wetzel
Bar No. 21236300
1411 West Avenue, Suite 100
Austin, Texas 78701
(512) 469-7943
(512) 474-5594 – fax
wetzel_law@1411west.com
Attorney for Appellant
Eleazar Luna
18
Certificate of Compliance
This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, it contains
3,287 words excluding the items not to be included within the word count limit.
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
Certificate of Service
This is to certify a true and correct copy of this pleading was mailed to
counsel for the State of Texas, Robert Lassmann, Assistant District Attorney,
DeWitt County Courthouse, 307 N. Gonzales St., Cuero, Texas, 77954, and Lisa
McMinn, State Prosecuting Attorney, at her email address of
information@spa.texas.gov on this the 2nd day of November, 2015.
/s/Richard E. Wetzel
Richard E. Wetzel
Bar No. 21236300
Appendix
19
NUMBER 13-14-00367-CR
NUMBER 13-14-00368-CR
NUMBER 13-14-00369-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ELEAZAR LUNA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Goliad County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Benavides
In this consolidated appeal, appellant Eleazar Luna challenges his convictions on
three separate indictments for indecency with a child, each third-degree felonies.1 See
1 The following appellate cause numbers are at issue in this case: 13-14-00367-CR; 13-14-
TEX. PENAL CODE ANN. 21.11(a)(2) (West, Westlaw through Chapter 46 2015 R.S.). By
five issues, which we address as three, Luna asserts that: (1) the trial court abused its
discretion by overruling his objections to the State’s arguments during jury voir dire; (2)
the trial court erred by denying his pre-trial motion to suppress; and (3) the trial court erred
by admitting an outcry statement. We affirm.
I. BACKGROUND
The State alleged that Luna committed indecency with his next door neighbor’s
daughter, E.S. (“Child E”), 2 on three separate occasions, in Goliad, Texas. Luna
pleaded not guilty and was tried before a jury on the issue of guilt-innocence.
T.B. (“Mother”), Child E’s mother, testified that she lived next door to Luna in
Goliad. According to Mother, Child E’s school principal called her into her office one
afternoon while Child E was in third grade. Mother testified that the reason for the
meeting was because the principal learned that Child E had made an inappropriate,
sexually-related comment to a fellow classmate. Mother testified that after this particular
meeting with the principal, Child E told her that Luna had shown her pornography at his
house, exposed his genitals to her, and asked her to expose her genitals to him. Mother
stated that she then alerted the Goliad County Sheriff’s Department.
Child E, who was ten years old at the time of trial, testified that Luna was her next
door neighbor and described him as a “really nice person.” Child E told jurors that she
frequently visited Luna’s home and spent time with his granddaughters who would visit
00368-CR; and 13-14-00369-CR.
2 We will use aliases in order to protect the minor’s identity.
2
him occasionally. Child E stated, however, that the summer going into third grade, Luna
first spoke to her about sex. Subsequently, Luna began showing pornography to Child
E on his television, iPad, or iPhone whenever the two were at Luna’s home alone.
According to Child E, Luna also possessed a “sex toy that was a boy’s private” that would
vibrate. Child E said that he never used the toy, but showed it to her and told her that it
was available for her use whenever she was ready. Luna also showed Child E some
“lotion” that accompanied the sex toy. Child E testified that while Luna showed her
pornography, “[h]e would pull his private out of his pants and start touching himself.”
During this testimony, Child E demonstrated Luna’s actions with her hands for the jurors.
Child E recalled that on one occasion at Luna’s home, Luna asked her to pull her pants
down, and she complied by pulling her pants and underwear down, thereby exposing her
genitals to him. Child E testified that Luna advised her that if she told anyone about what
had happened, they would “both be in a lot of trouble.” Child E admitted that the reason
she made the inappropriate comment to her classmate was so that the classmate would
tell the principal, and give Child E an opportunity to tell someone about Luna’s actions.
Luna testified in his defense and denied ever exposing himself to Child E, or asking
Child E to expose herself to him. Luna testified that about “four or five [times]” he caught
Child E watching pornography on his television. Luna stated that he scolded Child E for
watching it, but did not tell Mother because he did not want to get Child E in trouble.
The jury found Luna guilty as charged on each indictment. After the punishment
phase of trial, the trial court assessed Luna’s punishment on appellate cause number 13-
14-00367-CR at five years’ imprisonment with the Texas Department of Criminal
Justice—Institutional Division (TDCJ-ID), fined him $1,000, and assessed court costs.
3
On the remaining two charges (appellate cause numbers 13-14-00368-CR and 13-14-
00369-CR), the trial court also assessed five years imprisonment with TDCJ-ID for each
charge, fined him $1,000 for each charge, and assessed court costs. The trial court
further suspended the sentences on cause numbers 13-14-00368-CR and 13-14-00369-
CR and placed Luna on community supervision, to be served concurrently with his
sentence in appellate cause number 13-14-00367-CR. This appeal followed.
II. JURY VOIR DIRE
By his first two issues, which we treat as one issue, Luna asserts that the trial court
abused its discretion by allowing the State to make certain arguments during jury voir
dire.
A. Standard of Review
The trial court has broad discretion over the process of selecting a jury. Fuller v.
State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012). We leave to the trial court’s
discretion the propriety of a particular question and will not disturb the trial court’s decision
absent an abuse of discretion. Id. A trial court abuses its discretion when it prohibits a
proper question about a proper area of inquiry. Id. A question is proper if it seeks to
discover a juror's views on an issue applicable to the case. Id. However, a voir dire
question or hypothetical that misstates the law is improper. Thompson v. State, 95
S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A prosecutor’s
statements during voir dire will not constitute error, so long as they do not going beyond
the court’s charge. See Wilder v. State, 111 S.W.3d 249, 253 (Tex. App.—Texarkana
2003, pet. ref’d). Finally, any erroneous ruling on issues related to questions during jury
voir dire are non-constitutional error and subject to a harm analysis. See TEX. R. APP.
4
P. 44.2(b); Fuller, 363 S.W.3d at 589; Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim.
App. 2005).
B. Discussion
Luna first argues that the trial court improperly overruled his objection to the State’s
argument to prospective jurors that the date of commission of the offenses as alleged in
the indictments were meaningless. The relevant exchange took place during voir dire:
[Prosecutor]: We also -- now, one indictment says that this was the
first time he did this. Another indictment says it was the
last time he did this. In order to differentiate different
events, all of these indictments read that it happened
on or about the 25th of January, 2013, but on or about
is a term of art. It doesn't mean what it means normally.
Normally if you say on or about the 25th of January,
most of you would probably say within a week, I'm
supposing, of the 25th of January, but in the law, it
means any time within the statutory, statute of
limitations, which doesn't run for many years now, so
this really is any time – [Child E] I think is now 10, on
up until before the indictment. In other words, at any
time.
The date effectively doesn't mean anything in this
indictment. So my first question is who here has a
problem with that that they feel like the State should
have to—
[Defense Counsel]: I'm going to object. He says the date doesn't effectively
mean anything.
[Prosecutor]: In this case, it doesn't mean anything because the
statute of limitations has not run and would therefore
go from the day of her birth on up to before the
indictment.
THE COURT: Overruled, go ahead.
....
5
[Defense Counsel]: Additionally up to the point date of indictment is to --
that makes it pertinent as well, so it is important. You
can't say it's not effective. That is a misstatement of
law. It has no effect.
THE COURT: All right. Overruled. Go ahead.
We do not read the State’s objected-to arguments as expansively or liberally as
Luna asserts. Article 21.02(7) of the code of criminal procedure mandates that the time
mentioned in the indictment “must be some date anterior to the presentment of the
indictment, and not so remote that the prosecution of the offense is barred by limitation.
TEX. CODE CRIM. PROC. ANN. art. 21.02 (West, Westlaw through Chapter 46 2015 R.S.).
The State qualified its “date” argument by arguing that under the law, the date in the
indictment must be within the statutory limitations period, and in this case, the date was
within the limitations period and not so remote that prosecution of the indecency with a
child offense would be barred by limitations.” See id. art. 12.01(1)(E) (providing that no
time limitation exists for the prosecution of the offense of indecency with a child pursuant
to section 21.11 of the penal code). Accordingly, we conclude that this was not an
improper statement of the law, and the trial court did not abuse its discretion in overruling
Luna’s objection.
Next, Luna argues that the trial court abused its discretion by allowing the
prosecutor to give prospective jurors a definition of the term “proof beyond a reasonable
doubt.” The following exchange during voir dire is at issue:
[Prosecutor]: Now, the definition in the instructions you get will
be left undefined as to what beyond a
reasonable doubt means. A definition that I
know, a judge that I knew used to say in his
mind, and this is his opinion, it's that certainty
that you would bring to any important –
6
[Defense Counsel]: Objection, Your Honor. There's not a definition
to reasonable doubt.
THE COURT: Overruled. Go ahead.
[Prosecutor]: And the example he usually used was when to
cross a busy street. We do that all the time, but
think about it. If you misjudge you're run over
and you get killed. It's a serious decision, right?
You don't cross the street until you're certain
beyond a reasonable doubt that you can get
from one side to the other without getting
squished like a bug, so it's a serious question.
All right.
Now, as I say, one thing that we do know is
beyond a reasonable doubt is not created
simply because there's conflicting testimony.
That's what a trial is supposed to be about is to
resolve conflict; right? Who here feels like, well,
you know what, if there's conflicting testimony I
couldn't in good conscience vote to convict no
matter what? Okay.
Reasonable doubt is not created because there
are questions that you have that are never
cleared up. You know, if the State proves its
case beyond a reasonable doubt even though
you wonder about this or wonder about that --
almost certainly there will be such questions that
won't be answered by the end of the trial, but
that by itself doesn't create reasonable doubt.
Does anybody have a problem with that?
Another way of saying beyond a reasonable
doubt is beyond a shadow of a doubt. It's called
the Perry Mason standard. It doesn't exist, but
sometimes people say that it has to be beyond
a shadow of a doubt or beyond any possibility
no matter how remote or absurd. It has to be
proved beyond any possibility no matter how
remote or absurd. If there's any possibility, no
matter how remote or absurd, then I would have
to vote not guilty.
7
Who feels that way? Before you can convict, the
State would have to prove its case beyond any
possibility, no matter how remote or how
absurd? Okay. That's just another way of saying
beyond a reasonable doubt really. Is there
anybody here that feels they could not convict a
man unless we established guilt beyond all
doubt? Who's going to hold us to that standard?
Luna argues that the State prosecutor’s statements regarding reasonable doubt were
misstatements of the law, and “interfered with the juror’s ability to determine for
themselves the meaning of proof beyond a reasonable doubt.” We disagree.
The court of criminal appeals has held that while “the better practice is to give no
definition of reasonable doubt at all to jury,” Paulson v. State, 28 S.W.3d 570, 573 (Tex.
Crim. App. 2000),
the fact that no definition will be provided for a term does not render a
prospective juror's understanding of that term irrelevant. To the contrary,
that understanding becomes more crucial to the intelligent exercise of either
the State's or the defendant's peremptory challenges because there is no
definition to guide what could be a juror's skewed perception of the term.
Fuller, 363 S.W.3d at 586 (quoting Woolridge v. State, 827 S.W.2d 900, 906 (Tex. Crim.
App. 1992)).
In this case, the State’s prosecutor prefaced his statements by noting that “beyond
a reasonable doubt” was undefined. The State’s prosecutor then led into his ultimate
questions regarding how the prospective jurors would apply the State’s burden of proof
by offering examples of what reasonable doubt does not mean or require of the State.
We hold that this line of questioning was relevant, not a misstatement of the law, not
repetitious, and not improper. See Woolridge, 827 S.W.2d at 906. As a result, the trial
court did not abuse its discretion in overruling Luna’s objection. Luna’s first and second
8
issues are overruled.
III. MOTION TO SUPPRESS
By his third and fourth issues, which we will address together, Luna asserts that
the trial court erred by denying his motion to suppress.
A. Standard of Review and Applicable Law
In reviewing a trial court’s ruling on a motion to suppress, we must view the
evidence in the light most favorable to the trial court’s ruling. Johnson v. State, 414
S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008). When the trial court does not make explicit findings of fact, we
infer the necessary factual findings that support the trial court’s ruling if the record
evidence (viewed in light most favorable to the ruling) supports these implied facts.
Johnson, 414 S.W.3d at 192.
Motions to suppress are reviewed pursuant to a bifurcated standard under which
the trial judge’s determinations of historical facts and mixed questions of law and fact that
rely on credibility are granted almost total deference when supported by the record. Id.
But when mixed questions of law and fact do not depend on the evaluation of credibility
and demeanor, we review the trial judge’s ruling de novo. Id. (citing State v. Kerwick,
393 S.W.3d 270, 273 (Tex. 2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997)).
To suppress evidence on an alleged Fourth Amendment violation, the defendant
bears the initial burden of producing evidence that rebuts the presumption of proper police
conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant
satisfies this burden by establishing that a search or seizure occurred without a warrant.
9
Id. Once the defendant has made this showing, the burden of proof shifts to the State
where it is required to show that the search or seizure was conducted pursuant to a
warrant or was reasonable. Id. If the State produces evidence of a warrant, the burden
of proof shifts back to the defendant to show the invalidity of the warrant. Russell v.
State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). In this case, the State showed that the
search in this case was conducted pursuant to a warrant; thus, the burden rests with Luna
to show that the warrant is invalid. See id.
B. Discussion
1. Incorrect Offense
Luna first argues that the probable cause affidavit used to obtain the search
warrant of Luna’s home is invalid because it fails to state facts showing probable cause
to believe that Luna committed the offense of continuous sexual abuse of a young child,
as alleged in the State’s probable cause affidavit.
The probable cause affidavit, prepared by Goliad County Sheriff’s Investigator
James Garner, stated the following:
On Friday, January 25, 2013, female victim, age 9 years of age made an
outcry at the Goliad Elementary School to School Counselors, of
Continuous Sexual Abuse of a Child. School personnel contacted the
victim’s mother, who in Turn brought victim to the Goliad County Sheriff’s
office where an initial statement was taken and a C.A.C. Forensic Interview
was scheduled with The Harbor Children’s Alliance and Advocacy in Port
Lavaca, Texas for Tuesday January 29, 2013. During the Forensic
interview, conducted by Maria Flores and recorded on DVD, victim stated
that sometime between her 2nd Grade year and 3rd Grade year of school,
in the summer time while visiting suspect Eleazar Luna . . . at his home
residence . . . in Goliad County, Texas, through sometime in November
2012, before Thanksgiving, suspected repeatedly showed her pornographic
movies, and exposed his penis to her, masturbating in front of her, and on
at least one occasion, had the victim remove her shorts and panties,
exposing her anus and sexual organs to the suspect. Suspect Luna also
10
exhibited a sex toy (vibrator) and lotion to the victim stating that she could
use these if she would like. Because of the initial outcry and subsequent
C.A.C. interview it is requested that a search and arrest warrant for suspect
Eleazar Luna be issued.
Garner’s affidavit also opined—and the magistrate agreed—that probable cause existed
that Luna committed the offense of continuous sexual abuse of a child, see TEX. PENAL
CODE ANN. § 21.02 (West, Westlaw through Chapter 46 2015 R.S.), instead of indecency
with a child, the crime for which he was ultimately charged. See id. § 21.11(a)(2).
Luna fails to demonstrate how Investigator Garner’s purported incorrect conclusion
of law as to which offense Luna committed operates to invalidate an otherwise valid
warrant containing probable cause. See Borsari v. State, 919 S.W.2d 913, 917 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that appellant did not meet his
burden to invalidate a warrant in which the affiant believed appellant had committed
attempted capital murder rather than solicitation of capital murder); see also 40 GEORGE
E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE §
9:39 (3d ed. 2011) (“Technical details of the conclusions drawn by the affiant do not
control.” (referencing the Borsari case)). Accordingly, we overrule Luna’s third issue.
2. Staleness
Luna next argues that “stale information” within the probable cause affidavit
rendered the affidavit deficient to state facts showing probable cause to believe Luna
committed the offense alleged.
A request for a search warrant must contain facts presented to a magistrate that
probable cause does in fact exist for its issuance. See TEX. CODE CRIM. PROC. ANN. art.
18.01(b) (West, Westlaw through Chapter 46 2015 R.S.). Among other requirements,
11
the affidavit must set forth facts that the property or items constituting evidence to be
searched for or seized are located at or on the particular person, place, or thing to be
searched. Id. § 18.01(c)(3). These allegations are sufficient if they would justify a
conclusion that the object of the search is probably on the premises. Ramos v. State,
934 S.W.2d 358, 363 (Tex. Crim. App. 1996). Moreover, the facts relied on must not
have become “stale” by the time the warrant issued. Burke v. State, 27 S.W.3d 651, 653
(Tex. App.—Waco 2000, pet. ref’d). This means that the affidavit must show that the act
or event upon which probable cause is based occurred within a reasonable time prior to
the making of the affidavit. Id. The amount of delay that will make information stale for
search warrant purposes depends upon the particular facts of a case, including the nature
of criminal activity and the type of evidence sought. Ellis v. State, 722 S.W.2d 192, 196
(Tex. App.—Dallas 1986, pet. ref’d). Mechanically counting days is of little assistance
in this determination, but, rather, common sense and reasonableness must prevail, with
considerable deference to be given to the magistrate's judgment based on the facts
before him, absent arbitrariness. Id. at 196–97.
Here, Investigator Garner’s probable cause affidavit states that Luna committed
the alleged acts sometime during the summer of Child E’s transition from second grade
to third grade through “sometime in November 2012.” The search warrant then issued
some two months later on January 30, 2013. Garner alleged that Luna’s conduct toward
Child E occurred over a period of time and involved items that are likely stored privately
in Luna’s home, and not typically disposed of after use, such as the pornography, a
vibrating sex toy, and lotion. Based upon the facts of this case, we conclude that such
allegations in Investigator Garner’s affidavit are not stale so as to render it deficient or
12
invalid. See id. As a result, we overrule Luna’s fourth issue.
IV. OUTCRY STATEMENT
By his final issue, Luna contends that the trial court abused its discretion by
admitting evidence of Child E’s outcry statement given to a law enforcement officer, after
she had already made an outcry statement to Mother.
A. Applicable Law and Standard of Review
In a prosecution for indecency with a child younger than fourteen years of age or
a person with a disability, an outcry statement made to the first person, age eighteen or
older, other than the defendant, to whom the child or person with a disability made a
statement about the offense, is not inadmissible because of the hearsay rule, see TEX. R.
EVID. 802, if statutory notice requirements are given to the adverse party, 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 the child or person
with a disability testifies or is available to testify at the proceeding in court or in any other
manner provided by law. See TEX. CODE CRIM. PROC. art. 38.072 (West, Westlaw
through Chapter 46 2015 R.S.).
We review a trial court’s decision to admit an outcry statement for abuse of
discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). Thus, we
will uphold the trial court’s ruling if it is within the zone of reasonable disagreement. See
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Any finding of an
abuse of discretion for admitting inadmissible hearsay constitutes non-constitutional
error, and will be reviewed to determine whether the error affected the appellant’s
substantial rights. See TEX. R. APP. P. 44.2(b); see also Johnson v. State, 967 S.W.2d
13
410, 417 (Tex. Crim. App. 1998) (“A criminal conviction should not be overturned for non-
constitutional error if the appellate court, after examining the record as whole, has fair
assurance that the error did not influence the jury, or had but a slight effect.”).
B. Discussion
Luna argues that the trial court abused its discretion by admitting inadmissible
hearsay outcry testimony from Mother related to statements made by Child E to the Goliad
County Sheriff’s Department because those statements were not the first statements
made to an individual over the age of eighteen, in order to be admissible under article
38.072.
Assuming without deciding that the trial court abused its discretion by admitting
this outcry testimony, we nevertheless conclude that any error related to this testimony
was harmless. Child E testified at trial, without objection, and outlined the same
allegations against Luna that were testified to in the outcry statement to the Goliad County
Sheriff’s Department. Additionally, Child E was subject to detailed cross-examination
about her allegations against Luna. Moreover, the law is clear that the testimony of a
child sexual abuse victim is sufficient to support a conviction for indecency with a child.
Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.)
(internal citations omitted).
After reviewing this record as a whole, we have fair assurance that any error on
admitting Mother’s outcry testimony did not influence the jury, or had but a slight effect to
make it harmless. See, e.g., Allen v. State, 436 S.W.3d 815, 822 (Tex. App.—
Texarkana 2014, pet. ref’d) (finding harmless error in admitting improper outcry witness
testimony when the child complainant testified to the same facts contained in the outcry
14
statement and was subject to cross examination). Accordingly, we overrule Luna’s final
issue.
V. CONCLUSION
We affirm the trial court’s judgments.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
16th day of July, 2015.
15