JOE EUGENE AARON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 17, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00596-CR
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JOE EUGENE AARON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F05-40830-H
.............................................................
OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        Joe Eugene Aaron was convicted of aggravated sexual assault of a child under the age of fourteen and sentenced to sixty years in prison. In his only issue, appellant argues the trial court abused its discretion in admitting outcry testimony. For the following reasons, we affirm the trial court's judgment.
Discussion
        In his first issue, appellant argues that outcry testimony was improperly admitted over his hearsay objection. Specifically, appellant claims the trial court abused its discretion in admitting the outcry testimony because (1) the State provided inadequate notice under article 38.072 of the code of criminal procedure and (2) the trial court failed to conduct a hearing on the reliability of the outcry statement. The State responds that (1) appellant failed to preserve these arguments for appellate review and (2) any error in admitting the outcry testimony without first holding a hearing was harmless because the same or similar evidence was admitted without objection at another point in the trial.
        Notice
        Rule 33.1 of the Texas Rules of Appellate Procedure provides that, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a); Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). Absent a running objection or a hearing outside the presence of the jury, a party must object each time any inadmissible evidence is offered in order to preserve error. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). The point of error on appeal must also comport with the objection made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review. Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).
        Article 38.072 provides a statutory exception to the hearsay rule, allowing statements from a child victim twelve years of age or younger, describing the offense to the first person eighteen years of age or older, other than the defendant, to whom the victim made a statement about the offense. See Tex. Code Crim. Proc. Ann. art. 38.072, §§ 1-2(a) (Vernon 2005). Article 38.072 also requires (1) the party intending to offer the statement to give notice at least fourteen days before trial of its intent to offer the testimony, providing the name of the outcry witness and a written summary of the statement; (2) the trial court to determine in a hearing outside the presence of the jury that the statement is reliable; and (3) the child to testify or be available to testify. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b) (Vernon 2005).
        In this case, more than fourteen days before trial, the State notified appellant that it intended to offer the testimony of three potential outcry witnesses: Joann LaFountain, the complainant's grandmother; Michelle Braswell, the complainant's teacher; and Irish Burch, the forensic interviewer for Dallas' Child Advocacy Center. At trial, the State called Braswell as the outcry witness. Defense counsel objected to Braswell's testimony on the grounds of hearsay but later stated on the record that he just wanted to make sure she was the only outcry witness:
 
 
[DEFENSE COUNSEL]: Your Honor, I'm sorry, I object to hearsay unless this is the--unless--I want to make sure this is the outcry.
 
 
 
[PROSECUTOR]: Yes, this is the outcry.
 
 
 
[DEFENSE COUNSEL]: I just wanted to make sure we don't have another witness later on testify to the same thing as the outcry. If we're clear on that, it's fine.
 
 
 
THE COURT: It's overruled then.
 
                
        On appeal, appellant argues that the State failed to give proper notice under article 38.072. He does not dispute that Braswell was the “proper outcry witness,” but he argues that the trial court abused its discretion in allowing the outcry testimony because the State provided written notice of three separate outcry witnesses. We conclude that appellant's argument on appeal does not comport with the objection made at trial, which was based upon hearsay and made no mention of improper notice under the statute. Thus, appellant has not preserved this issue for appeal.
        Furthermore, even if appellant preserved this issue for appellate review, his argument fails on the merits. A trial court has broad discretion in determining the appropriate outcry witness and this Court will not disturb the trial court's ruling on appeal if it is within the zone of reasonable disagreement. Tear v. State, 74 S.W.3d 555, 558 (Tex. App.-Dallas 2002, pet. ref'd). In this case, to the extent that appellant claims the State was not entitled to give notice of three potential outcry witnesses, we note that, although the statute provides that only one outcry witness may testify, there is no limitation on the number of witnesses that can be noticed. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2. In this case, each notice complied with article 38.072 by identifying the potential outcry witness, notifying appellant of the State's intent to offer the statement, and providing appellant with a written summary of the statement. See id. art. 38.072, § 2. There is also no question that the notices were timely. Because nothing prohibits the State from giving several notices of potential outcry witnesses, the trial court did not abuse its discretion.
        Hearing
        Appellant also argues that the trial court abused its discretion because it allowed the outcry witness to testify without first holding a hearing as required by article 38.072, section 2(b). The provisions of article 38.072 are mandatory and must be followed for the outcry statement to be admissible over a hearsay objection. See Duncan v. State , 95 S.W.3d 669, 671 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). The trial court commits error if it overrules the hearsay objection without conducting a hearing. See Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990).
        Although a general hearsay objection is sufficient to preserve such an issue for appeal, see id., the State claims appellant waived any error in this case because he withdrew the hearsay objection. Even if this issue was preserved, however, we conclude that the error, if any, was harmless. We will therefore determine whether appellant was harmed. See Duncan, 95 S.W.3d at 671.
        Because the alleged error is non-constitutional, we apply the harm analysis provided in rule 44.2(b). See Duncan , 95 S.W.3d at 672; see also Tex. R. App. P. 44.2(b). Non-constitutional error must be disregarded unless it affects the substantial rights of the defendant. Johnson v. State , 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Duncan , 95 S.W.3d at 672. A conviction should not be overturned for such error if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury or had but a slight effect. Duncan , 95 S.W.3d at 672 (citing Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). Similarly, improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also Duncan , 95 S.W.3d at 672 (improper admission of outcry testimony harmless error because similar testimony admitted through complainant, pediatrician, and medical records).
        At trial, the complainant testified in detail about the abuse. He testified without objection that appellant assaulted him on several occasions, forcing him to look at pornography, perform and receive oral sex, and to masturbate appellant. The complainant's trial testimony was more detailed than Braswell's testimony regarding the specifics of the sexual contact and the events surrounding the contact. During closing arguments, the State did not emphasize Braswell's outcry testimony, instead focusing on the complainant's live testimony at trial. In addition, nothing in the record suggests appellant was surprised by Braswell's testimony. After examining the record as a whole, we therefore conclude that appellant's substantial rights were not affected by the trial court's error, if any, in failing to conduct an article 38.072 hearing to determine Braswell's reliability. See Tex. R. App. P. 44.2(b). We overrule appellant's sole issue.         
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070596F.U05