Full Opinion

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-25-00163-CR ________________ EPIFANIO ADOLFO JIMENEZ, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________________________________ On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 22-03-03310-CR ________________________________________________________________________ MEMORANDUM OPINION A jury convicted Epifanio Adolfo Jimenez (“Jimenez”) of aggravated sexual assault of a child younger than fourteen and assessed punishment at ninety-nine years of confinement. See Tex. Penal Code Ann. § 22.021(a)(2)(B).1 In his sole issue, Jimenez claims that the trial court abused its discretion by allowing a forensic interviewer to testify as an outcry witness and permitting two outcry witnesses to 1 We cite the current version of the statute, as any amendments do not impact the outcome of this appeal. 1 testify regarding the same offense. As discussed more fully below, we affirm the trial court’s judgment. Pertinent Background Before trial, the State filed a notice of intent to use hearsay statements of a child sexual abuse victim under article 38.072 of the Texas Code of Criminal Procedure, identifying high school counselor Robert Hon and forensic interviewer Veronica Olivarez as proposed outcry witnesses. According to the notice, the child victim, Cathy, 2 told Hon on February 25, 2022, that when she was thirteen-years old her father raped her after coming home intoxicated, arguing with her, and pushing her down. The notice added that Cathy later told Olivarez during a March 1, 2022 forensic interview that Jimenez returned home with beer, yelled at her, pushed her onto the bed, and raped her. In response, Jimenez filed a motion to determine the admissibility of the hearsay statements under article 38.072, arguing that because the State identified two outcry witnesses, the trial court should conduct a hearing outside the jury’s presence to determine the proper outcry witness and the reliability of the statements. 2 We refer to the victim and her family members by pseudonyms or familial relationships to conceal their identities. See Tex. Const. art. I, § 30 (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”). 2 Before trial, the trial court held a hearing to determine the admissibility of Cathy’s outcry statements under article 38.072. Olivarez testified that she was a forensic interviewer at the Children’s Advocacy Center of the Coastal Bend when she interviewed Cathy in 2022. Cathy described sexual abuse by her biological father, Jimenez, while visiting his home for her thirteenth birthday. Cathy explained that Jimenez came home drunk, entered her room, and began yelling at her that she made him feel worthless before pushing her onto the bed and pinning her down. According to Olivarez, Cathy described Jimenez removing her clothing and putting his “private in her private,” stating that it hurt and that she screamed and yelled. She explained that Jimenez had stopped when they heard someone coming and that she was crying when he left the room. Olivarez confirmed that Cathy’s description allowed her to clarify the manner and means of the sexual assault. When describing where Jimenez “put his private inside of her private,” Cathy pointed to her vagina. Olivarez explained that Cathy first approached Hon about an issue involving a friend, but disclosed what happened to her because she could no longer keep it to herself. Olivarez acknowledged that she did not know precisely what Cathy told him. Hon, a high school counselor in Ingleside, testified that Cathy disclosed sexual abuse by Jimenez, while visiting him. Cathy told Hon that she and Jimenez argued after he came home with approximately a six-pack of beer and that he pushed her 3 down and raped her. Hon acknowledged that he neither asked Cathy what she meant by “rape” nor obtained further details about the manner and means of the alleged sexual abuse. Hon explained that Cathy approached him after a school assembly and asked him to speak with her in his office, but he stopped the conversation once she began disclosing the incident so that he could involve the appropriate personnel. Afterward, the State argued that Olivarez was the proper outcry witness because she was the first person to whom Cathy disclosed the details of sexual abuse, whereas Hon received only a general statement that she had been raped. Defense counsel maintained that Hon was the proper outcry witness because he was the first adult to whom Cathy described the offense in a discernible manner, regardless of whether he received the most detailed statement. The State responded that Cathy did not provide details about how and where the assault occurred until she spoke with Olivarez, emphasizing the potential jurisdictional issue concerning the location of the offense. The trial court determined that Olivarez was the proper outcry witness based on the discernible facts Cathy disclosed to her, including the location of the offense, which raised a jurisdictional issue, and the greater detail she provided concerning what she meant by “rape.” The court reasoned that without those details, Hon could not describe the manner and means of the offense, its location, and other matters required under article 38.072. 4 At trial, Cathy, who was twenty years old, identified Jimenez as her biological father. She testified that she visited Jimenez and his then-girlfriend, Sherry Sonier, at their trailer in Willis, Texas, to celebrate her thirteenth birthday. After the celebration, Cathy went to bed, and Jimenez returned home with a six-pack of beer, and began yelling at her. As Jimenez continued yelling and moved closer, Cathy became afraid that he would hit her or do something to her. She testified that Jimenez shoved her onto the bed, pinned her hands down, and prevented her from moving. Jimenez then pulled down her shorts and underwear, despite Cathy telling him to pull her shorts back up because she was uncomfortable. Cathy testified that Jimenez put “his private area right into mine,” referring to the area she used to urinate. She stated that his “private was in [her] area” for approximately ten minutes and that it hurt. Cathy recalled crying and screaming while Jimenez told her to remain quiet. She described Jimenez as “moaning and groaning.” She recalled hearing Sonier’s daughter return from work and testified that the other children were asleep. After Jimenez left the room, Cathy remained on the bed, terrified and crying. The next day, Sonier’s daughter took Cathy to meet her Mother, and Cathy said she did not disclose what happened to Sonier, her daughter, or her Mother because she feared they would not believe her. Approximately four years later, during her junior year of high school, Cathy attended an assembly that prompted her to disclose the incident. Cathy stated that 5 she told Hon that Jimenez entered her room on the night of her thirteenth birthday and did “stuff that a father shouldn’t have done to his own child.” She also told Hon that Jimenez raped her. Cathy denied telling Hon that she was having problems with friends at school and maintained that she spoke with him only about what Jimenez had done to her. She later attended counseling to address the incident and other traumatic experiences. She denied fabricating the allegation to retaliate against Jimenez and testified that she loved him. Although Cathy acknowledged learning of Jimenez’s arrest for online solicitation of a minor when she was around fifteen years old, she testified that she still did not believe Mother would believe her allegations. Cathy explained that she did not remember every detail of the incident because she did not want to relive the trauma. Hon testified that Cathy approached him after a school assembly and asked him to speak with her in his office. When the State asked Hon what Cathy told him, defense counsel objected on hearsay grounds. The State responded that Hon’s testimony was admissible as an “initial outcry,” and the trial court overruled the objection. Hon then testified that Cathy told him that Jimenez consumed approximately a six-pack of beer, argued with her, pushed her onto her bed, and raped her. 3 Although Hon acknowledged telling law enforcement that there were 3 inconsistencies in Cathy’s statement, he clarified that his concern involved the timeline, rather than her account of what Jimenez had done to her. 6 Olivarez, who conducted Cathy’s forensic interview, testified that Cathy described Jimenez entering her bedroom after drinking, pushing her onto the bed, and removing her clothing. Olivarez relayed that Cathy said that Jimenez took her to his home in Willis, Texas, where they were celebrating her birthday. Olivarez explained that Cathy initially reported being raped but clarified, in response to follow-up questions, that Jimenez put his “private inside her private,” which hurt and caused her to scream and yell. Cathy described to her the movement as “back and forth” and pointed to her vagina when clarifying what she meant by her “private.” Julie Denney, a registered nurse and former pediatric sexual assault nurse examiner (“SANE”), testified concerning Cathy’s March 4, 2022 medical forensic assessment. Denney testified that Cathy reported Jimenez put his “private” in hers and pointed to her genitalia area.4 During the examination, Denney found no physical injuries but explained that she would not expect to observe injuries around four years after the reported assault. Cathy’s Mother testified that Cathy was her only child, born on July 12, 2004, and that Jimenez was Cathy’s father. She permitted Cathy to visit Jimenez and his then-girlfriend around Cathy’s thirteenth birthday in 2017. Mother explained that 4 Denney also testified that Cathy reported “penetration of a female sexual organ” and that “penetration was with a penis.” 7 Jimenez’s friend later contacted her to arrange Cathy’s pickup because Jimenez had been arrested for online solicitation of a minor. When Mother picked Cathy up, Cathy appeared sad but said she was tired. Mother first learned of Cathy’s allegation of sexual assault in February 2022, when Hon contacted her, and she later arranged counseling for Cathy. Mother testified that Cathy had denied that anything had happened despite her repeated inquiries. Sonier, Jimenez’s former girlfriend, testified that Cathy visited their residence around her birthday in 2017. She stated that Jimenez regularly consumed between six and nine drinks daily and that she wore earphones and used a fan at night because he stayed up late watching television. She observed that Jimenez drank more and became angrier after Cathy’s visit. After determining the alleged offense occurred in Montgomery County, Lieutenant Casey Gilliam of the Ingleside Police Department forwarded the case information to the Montgomery County Sheriff’s Office. Detective Riley Zapf of that office interviewed Jimenez, who acknowledged that Cathy visited him around her thirteenth birthday in 2017. Jimenez stated that he had been drinking that night, believed he was intoxicated, and had brought home a six-pack of beer. However, he denied pushing Cathy onto the bed or raping her and told Zapf that he argued with his then-girlfriend before leaving for Galveston that night. Jimenez suggested that 8 Cathy’s allegations were due to his lack of involvement in her life and that Cathy’s mother was making up the allegations. Abigail Jordan later began counseling Cathy in 2023. Cathy told Jordan that her biological father had “kind of raped” her and expressed a desire to work through childhood trauma. Cathy also told Jordan that she disclosed the incident to her school counselor after a high school assembly and felt her father needed to learn his lesson for what he had done. Jordan testified that Cathy expressed guilt concerning the incident. After considering the evidence presented at trial, the jury found Jimenez guilty of aggravated sexual assault of a child younger than fourteen. Analysis In his sole issue, Jimenez argues that the trial court abused its discretion by designating forensic interviewer Olivarez, rather than counselor Hon, as the proper outcry witness under article 38.072 of the Texas Code of Criminal Procedure. He also contends that the trial court erred by permitting both witnesses to testify regarding the same event. “We review a trial court’s designation of an outcry witness under an abuse of discretion standard.” Cordero v. State, 444 S.W.3d 812, 815 (Tex. App.—Beaumont 2014, pet. ref’d) (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990)). The designation will be upheld when supported by the evidence. Id. A trial court 9 abuses its discretion only if its ruling is outside the zone of reasonable disagreement, and we will not disturb the trial court’s ruling unless a clear abuse of discretion is shown. Id. Under Rule 802 of the Texas Rules of Evidence, hearsay is inadmissible unless it falls within an exception to the hearsay rule. Tex. R. Evid. 802; see Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Article 38.072 of the Code of Criminal Procedure specifies that an outcry statement is not inadmissible on hearsay grounds in cases involving certain sexual offenses against children if the statement “describe[s] ... the alleged offense,” is “made by the child,” and is “made to the first person, 18 years of age or older, other than the defendant, to whom the child ... made a statement about the offense,” and if 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[.]” Tex. Code Crim. Proc. Ann. art. 38.072 §§ 1, 2. When interpreting article 38.072, the Court of Criminal Appeals has explained that the provision refers to the first adult “to whom the child makes a statement that in some discernible manner describes the alleged offense.” Garcia, 792 S.W.2d at 91. In other words, “the statement must be more than words that give a general allusion that something in the area of sexual abuse was going on.” Id. In general, the proper outcry witness is the first adult to whom the alleged victim relates “how, 10 when, and where” the abuse occurred. See Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008, pet. ref’d) (quoting Hanson v. State, 180 S.W.3d 726, 730 (Tex. App.—Waco 2005, no pet.)). More than one outcry witness may testify at trial about different events and offenses because outcry testimony is event specific. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). A trial court does not abuse its discretion by admitting testimony from an outcry witness that concerns a different act or offense stemming from the same event. See Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see also Divine v. State, 122 S.W.3d 414, 419–20 (Tex. App.—Texarkana 2003, pet. ref’d) (involving a child’s outcry to multiple people about different acts that occurred during the same event). Here, the State charged Jimenez with aggravated sexual assault of a child, alleging that he “intentionally or knowingly caused the Defendant’s sexual organ to contact or penetrate the sexual organ of [Cathy], a child who was then and there younger than 14 years of age.” Cathy first disclosed the incident to school counselor Hon, telling him that Jimenez had argued with her, pushed her onto the bed, and raped her. Hon acknowledged that he did not ask Cathy what she meant by “rape” or obtain further details about the manner and means of the alleged offense. During her subsequent forensic interview with Olivarez, Cathy described Jimenez putting his “private” inside her “private” and pointed to her vagina when clarifying what she 11 meant. Thus, the record supports the trial court’s determination that Cathy did not describe the sexual organ contact or penetration alleged in the indictment until she spoke with Olivarez. See Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref’d) (determining that forensic interviewer was proper outcry witness when child’s allegations during interview made it clear that the alleged offense occurred); see also Williams v. State, No. 09-19-00276-CR, 2021 WL 358403 (Tex. App.—Beaumont Feb. 3, 2021, no pet.) (mem. op., not designated for publication). We cannot conclude that the trial court’s decision to designate Olivarez as the proper outcry witness and admit her testimony fell outside the zone of reasonable disagreement. See Cordero, 444 S.W.3d at 815. Accordingly, we conclude that the trial court did not abuse its discretion by allowing Olivarez to testify as an outcry witness. See Garcia, 792 S.W.2d at 92; Cordero, 444 S.W.3d at 815. Jimenez also argues that the trial court erred by permitting both Hon and Olivarez to testify regarding the same alleged offense. While the trial court designated Olivarez as the proper outcry witness following the article 38.072 hearing, it also permitted Hon to testify concerning Cathy’s disclosure over Jimenez’s hearsay objection. Even if the trial court erred by admitting Hon’s or Olivarez’s testimony, or both, as outcry witnesses, we conclude that any error was harmless. The erroneous admission of hearsay testimony under article 38.072 is non-constitutional error. 12 Rosales v. State, 548 S.W.3d 796, 808 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). Accordingly, the error must be disregarded unless it affects a defendant’s substantial rights. See Tex. R. App. P. 44.2(b). “The admission of inadmissible hearsay is non-constitutional error, and it will be considered harmless if, after examining the record as a whole, we are reasonably assured that the error did not influence the jury’s verdict or had but a slight effect.” Linney v. State, 401 S.W.3d 764, 780 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); see also Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). Moreover, cases have consistently held that any error from the admission of an outcry witness’s testimony is harmless if the same evidence is admitted into evidence through other testimony without objection. See Moody v. State, 543 S.W.3d 309, 314 (Tex. App.—Eastland 2017, pet. ref’d) (mem. op.) (concluding that the defendant was not harmed because the “victim testified before the jury without objection to the same facts”); Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.—Fort Worth 2015, pet. ref’d) (determining that any error was harmless where the victim provided testimony corroborating outcry witness’s testimony). In this case, the jury heard the same or substantially similar evidence through other witnesses. Denney, the SANE nurse, testified that Cathy reported that Jimenez put his “private” in hers and identified her genitalia area. Jordan also testified that Cathy disclosed to her that her father “kind of raped” her. Additionally, Cathy 13 testified in detail about the offense, including that Jimenez pushed her onto the bed, removed her shorts and underwear, and put his “private area” into hers. Jimenez argues that the admission of both witnesses’ testimony improperly bolstered Cathy’s credibility, and he points to the State’s closing argument emphasizing that the jury heard testimony from multiple witnesses concerning the offense. However, the jury heard directly from Cathy and was in the best position to assess her credibility. The jury also heard substantially similar testimony from Denney and Jordan apart from the outcry testimony. Considering the record as a whole, we are reasonably assured that any error in admitting the outcry testimony did not influence the jury’s verdict or had but a slight effect and therefore would be harmless. See Taylor, 268 S.W.3d at 592; Rosales, 548 S.W.3d at 809 (concluding that any error was harmless where the complainant testified in detail about the offense and a physician testified to the complainant’s statements regarding the abuse). Conclusion Having overruled Jimenez’s sole issue, we affirm the trial court’s judgment. AFFIRMED. W. SCOTT GOLEMON Chief Justice Submitted on September 11, 2026 Opinion Delivered October 28, 2026 Do Not Publish Before Golemon, C.J., Johnson and Wright, JJ. 14