JOSE FERNANDO LUNA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed January 30, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00205-CR
............................
JOSE FERNANDO LUNA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-81957-04
.............................................................
MEMORANDUM OPINION
Before Justices Morris, Lang, and Lang-Miers
Opinion By Justice Lang-Miers
        A jury convicted Jose Fernando Luna of one count of aggravated sexual assault of a child, one count of sexual assault of a child, and five counts of indecency with a child by contact. See Tex. Pen. Code Ann. §§ 21.11(a)(1), 22.011(a)(2)(A)(C), 22.021(a)(1)(B)(i) (Vernon 2003 & Supp. 2006). The jury assessed appellant's punishment at fifteen years' confinement for the aggravated sexual assault count, ten years' confinement for the sexual assault of a child count, five years' confinement for three of the indecency with a child counts, and two years' confinement for two of the indecency with a child counts. Upon the jury's recommendation, the trial court suspended the imposition of punishment for the indecency with a child counts for which appellant received two years' confinement and placed appellant on community supervision for ten years for those counts. The sentences run concurrently.
        In five issues, appellant argues the trial court erred by admitting certain evidence. Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. We issue this memorandum opinion because all dispositive issues are settled in law. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgments.
 
Background
 
        E.F. testified that when she was about four or five years old, her mother moved in with appellant. The first time she remembered appellant abusing her sexually was when she was thirteen. Later, when E.F. was in her junior year of high school, her brother thought he saw appellant watching E.F. through the bathroom window as she showered. When he told E.F. what he saw, she told him appellant had been abusing her, but she did not give him details. E.F. testified she felt a sense of relief that she could finally tell someone about the abuse. That same night, she started to tell her mother, but her mother stopped her, told her to “shut up,” and to go to her room. The next day, on the way home from school with her best friend, Priscilla Riojas, E.F. said she burst into tears and told Riojas about the abuse. E.F. did not tell Riojas who was abusing her until later, but Riojas testified she knew who E.F. was talking about. E.F. lived with Riojas for a couple of months until she was placed in foster care. Riojas's father reported the abuse to child protective services, which reported the offenses and referred E.F. to the Collin County Children's Advocacy Center. The subsequent investigation led to appellant's indictment and conviction.
 
Standard of Review
 
        We review a trial court's ruling on evidentiary matters for an abuse of discretion. See Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). We will uphold the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. A trial court abuses its discretion if its evidentiary ruling lies outside the zone of reasonable disagreement. See Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).
 
Riojas's Testimony About E.F.'s Outcry
 
        In his first issue, appellant argues the trial court erred by overruling his objection to Riojas's testimony about E.F.'s outcry to her. The trial court sustained appellant's hearsay objection when the prosecutor first questioned Riojas about what E.F. said to her. Then the State offered Riojas's testimony, not for the truth, but to show why she took certain actions. The trial court again sustained appellant's hearsay objection. Thereafter, the State questioned Riojas about E.F.'s mental state when she told her what happened. Riojas testified E.F. was crying, very upset, distraught, did not want to be touched, and was very emotionally unstable. When the prosecutor again asked Riojas what E.F. told her, appellant's counsel stated, “I know there's going to be an exception argument on this, but I'm going to continue to object. The State's complainant has already testified. This is simply bolstering. I'd make that as one of the objections as bolstering. It's hearsay. Although a predicate has been laid for a[n] exception, I still argue that this is simply bolstering the State's case by repetitive -.” The trial court overruled the objection. Riojas then testified that E.F. told her “that he touches me,” and that E.F.'s brother “saw him looking at me last night in the shower.” E.F. told Riojas “he knows he's guilty, he knows that he's wrong.” Riojas said E.F. did not tell her it was appellant she was referring to until later, but she said she knew who E.F. was talking about.
        On appeal, appellant first contends Riojas's testimony was not admissible as a prior consistent statement of a witness under rule 613. See Tex. R. Evid. 613(c) (“A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in rule 801(e)(1)(B)). Appellant's specific objection at trial was that the question called for hearsay and that the offered testimony was “bolstering.” Rule 613(c)   See Footnote 1  has been referred to as a “bolstering” rule to the extent it prevents the use of prior consistent statements of a witness for the sole purpose of enhancing the witness's credibility. See Tex. R. Evid. 613(c); see also Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993) (discussing “bolstering” under former rule 612(c)).   See Footnote 2  But evidence that corroborates another witness's story or enhances inferences to be drawn from other evidence, in the sense that it has a further tendency to establish a fact of consequence, is not “bolstering.” Cohn, 849 S.W.2d at 820.
        Additionally, the State did not offer the testimony as a prior consistent statement. In fact, the State contends the testimony was not hearsay at all because it was not offered to prove the truth of the matter asserted. The State contends the testimony showed why the witness took the actions she did in contacting other people about the complainant's statements to her. See Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992), overruled on other grounds by Maxwell v. State, 48 S.W.3d 196, 198-200 (Tex. Crim. App. 2001). We conclude the trial court did not err by overruling appellant's bolstering objection.
        Appellant next argues that Riojas's testimony does not qualify as an excited utterance exception to the hearsay rule.   See Footnote 3  Conversely, the State contends the testimony was admissible for all purposes because it qualifies as an excited utterance.
        An excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.” Tex. R. Evid. 803(2); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The basis for the exception is psychological-“'when a man is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the “truth will come out.”'” Zuliani, 97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim. App. 1972) (emphasis added)). The statement is trustworthy because it represents the startling event or condition speaking through the person rather than the person speaking about the startling event or condition. Zuliani, 97 S.W.3d at 595. In determining whether a statement falls within the excited utterance exception to hearsay, a trial court may consider whether the statement was made in response to a question, and the amount of time that elapsed between the event and the statement. Id. at 595-96. But the “critical determination is 'whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event' or condition at the time of the statement.” Id. at 596 (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). In other words, we “must determine whether the statement was made 'under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.'” Id. (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex. Crim. App. 1964)).
        Here, the evidence showed E.F. suffered abuse by appellant for several years, but did not believe she could tell anyone. When E.F.'s brother saw appellant watching her take a shower and told her about it, E.F. felt that now she could tell. But when she started to tell her mother, she was rebuffed. The next day, E.F. burst into tears as she rode home from school with her best friend, Riojas. Riojas testified E.F. was crying, upset, distraught, and very emotionally unstable as she told Riojas about the abuse and that her brother saw appellant watching her take a shower the night before. The evidence showed E.F. was still dominated by the emotions of learning that appellant watched her take a shower the night before at the time she made the statement to Riojas. See id.
        Where the trial court's ruling falls within the “zone of reasonable disagreement,” the appellate court should not intercede. See Salazar, 38 S.W.3d at 153-54. We conclude the court's admission of the testimony does not fall outside of the zone of reasonable disagreement.
        Additionally, regardless of whether the testimony was admissible, any error was harmless because the same evidence came in elsewhere in the trial. Michelle Shuback, a community resource director and forensic interviewer with the Collin County Children's Advocacy Center, testified, without objection, that E.F. told her appellant touched her genitals and breasts on numerous occasions and her brother saw appellant watching her as she showered. Any error in the admission of evidence is rendered harmless when the same evidence comes in without objection. Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986).
        We overrule appellant's first issue.
 
Testimony of Special Advocate That E.F's Mother Abandoned Her
 
        In his second issue, appellant argues the trial court erred by admitting into evidence testimony about the contents of e-mails between E.F. and Vickie Nettleton, her court-appointed special advocate. Appellant contends the e-mails stated E.F.'s mother had abandoned her.
        We reviewed the record of Nettleton's testimony and did not find any testimony in which Nettleton stated E.F. told her in an e-mail that she was upset because her mother abandoned her. Although Nettleton testified she and E.F. exchanged e-mails, Nettleton did not testify about the contents of those e-mails other than to say they concerned E.F.'s mother. And the e-mails were not admitted into evidence.
        We overrule appellant's second issue.
 
Therapist's Testimony That E.F.'s Referral Based on Outcry to Riojas
 
        In his third issue, appellant argues the trial court erroneously overruled an objection to the testimony of E.F.'s therapist, Michael Maloney. Appellant specifically complains about the following testimony on cross-examination:
 
Q. All right. And at the Advocacy Center, the - the young people that you work with there are all referred by some agency. Is that correct? Or is it self-referral?
 
 
 
A. They can be referred by the police department; social workers can make the referral; parents can make the referral. Um, sometimes I - and I - I'm not astute in Texas child laws - maybe I should be - but I think after 16 they can make self- referrals.
 
        Q. And was this a self-referral?
 
        A. Um, this referral came through based on an outcry that she made to Priscilla -
 
                [DEFENSE COUNSEL]: Objection; nonresponsive.
                THE COURT: You're going to need to restate the question. I thought -
                [DEFENSE COUNSEL]: It was, Was this a self-referral.
                THE COURT: Okay. I-
 
        A. Question again, please?
 
        Q. Was this a self-referral?
 
        A. No, sir.
 
                THE COURT: Okay.
 
        Q. Was it a referral from CPS?
 
        A. No, sir.
 
                [DEFENSE COUNSEL]: I'll pass the witness.
 
        Appellant appears to argue the trial court erred by asking defense counsel to restate the question instead of immediately sustaining his objection. Appellant argues he was harmed by the court's failure to sustain his objection because it reminded the jury that E.F. had made an outcry statement to Riojas and implied that she had to seek therapy as a result of the abuse. He further argues the cumulative effect of this and the preceding errors is not harmless.
        But defense counsel did not get a ruling on his objection. Instead, counsel asked the question again and the witness answered “no.” And appellant did not seek further relief from the court. Effectively, appellant received all the relief he requested when he asked the same question again and got a “no” answer. See Logan v. State, 482 S.W.2d 229, 232 (Tex. Crim. App. 1972).
        We overrule appellant's third issue.
 
Trial Court's Failure to Sua Sponte Stop Testimony
 
        In his fourth issue, appellant complains about the testimony of Michelle Shuback concerning whether E.F. was exaggerating or had been coached when she told Shuback about the details of appellant's abuse. Appellant acknowledges he did not object to this testimony. But he argues the trial court nevertheless had a duty to sua sponte halt Shuback's testimony about the credibility of a child complainant in a sexual abuse case. Appellant does not cite any cases stating the trial court had an obligation to sua sponte stop the testimony. See Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992) (trial judge's role in admission and exclusion of evidence not called into play unless dispute between parties). And the cases appellant cites do not support his argument because, in each one, the appellant objected to the testimony. Because appellant did not object to this testimony, we conclude appellant did not preserve error on this issue. See Tex. R. App. P. 33.1(a)(1).
        We overrule appellant's fourth issue.
 
Police Officer's Testimony About Investigation
 
        In his fifth issue, appellant argues the trial court erred by admitting police detective Jeff Rich's testimony about his investigative techniques and motive for charging appellant. Appellant argues an imprecise objection is not fatal if the ground for the objection or complaint is obvious to the trial court and opposing counsel. And we generally agree with appellant's statement. See Tex. R. App. P. 33.1(a)(1)(A). However, in this case, appellant did not make any objection to Rich's testimony. Without an objection, even an imprecise one, no error is preserved for our review. See id.
        We overrule appellant's fifth issue.
 
Conclusion
 
        Having overruled appellant's five issues, we affirm the judgments of the trial court.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060205f.u05
 
 
Footnote 1 Rule 613(c) is former Texas Rule of Criminal Evidence 612(c).
Footnote 2 Appellant does not address Cohn or explain why the offered testimony does not satisfy the Cohn definition.
Footnote 3 Appellant's trial counsel conceded that a predicate had been laid for admission of the testimony as an exception to the hearsay rule.