Jose Nicolas-Gonzalez v. the State of Texas

Affirmed as Modified and Memorandum Opinion filed April 9, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00770-CR

JOSE NICOLAS-GONZALEZ, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the
Hays County, Texas
Trial Court Cause No. CR-19-4126-E

MEMORANDUM OPINION

A jury convicted appellant Jose Nicolas-Gonzalez of two counts of
aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(2)(B).
The jury assessed punishment at sixty years’ confinement. On appeal, Appellant
asserts (1) the trial court erred in allowing Complainant’s mother to testify as an
outcry witness, and (2) the trial court’s Judgments of Conviction contain clerical
errors that warrant modification. For the reasons below, we affirm the trial court’s
judgments as modified.
BACKGROUND
Appellant was arrested and charged with two counts of aggravated sexual
assault of a child stemming from an incident with his niece, Complainant.
Complainant was ten years old when the alleged abuse occurred.

Appellant proceeded to a jury trial in September 2022. Before trial
commenced, a hearing was held outside the jury’s presence to address whether the
State could present outcry testimony from either Complainant’s mother (“Mother”)
or forensic interviewer Maggie Ortuno. See Tex. Code Crim. Proc. Ann. art.
38.072 (permitting a witness to testify to hearsay statements made by a child
sexual abuse complainant under certain circumstances). The trial court ruled that
both Mother and Ortuno could testify as outcry witnesses.

Testifying at trial, Mother explained that she lived in a trailer adjacent to her
sister and her sister’s husband, Appellant. Mother has five children and, at the
time of the incidents forming the basis of Appellant’s charges, her second-oldest
child was frequently being hospitalized for cancer treatment. Mother said her other
children would regularly spend time at Appellant’s home, particularly when
Mother was at the hospital.

Mother then testified as follows about a conversation she had with
Complainant the evening of December 2, 2019:

Mother: So [Complainant] said — we’re getting ready for bed
and we’re laying down and we’re getting ready for
the week, and she says, Mom, I need to tell you
something. And I said, okay, well, what is it? Tell
me. We need to go to sleep. She says, well,
[Appellant] has been touching me and I said — I sat
up in bed and I said, where does he touch you?
[Complainant] pointed down to her vaginal area.
I said, like, how many times has he touched you?

2
And she didn’t know her numbers then. She’s
learning now. I said, how many times,
[Complainant]? And she says, more than this, Mom.
And I said okay.

Prosecutor: When she said that, what number did you indicate
that?

Mother: I said 10, more than 10, and she says, more than this,
Mom.

Prosecutor: And for the record, [Mother] is lifting up both of her
hands with her palms open and indicating and saying
10.
* * *
Prosecutor: Now, did [Complainant] say anything else after that?

Mother: She did.
Prosecutor: What did she say?

Mother: She said, I want you to know I didn’t know how to
tell you because I don’t want this to happen to my
little brother. He was my little one at the time. I
said, okay, I am going to take care of this for you. I
am going to — I told her what I was going to do. I
was going to call the police and you’re going to have
to tell them. I said, thank you for trusting me and
thank you for telling me and I left.

According to Mother, she called law enforcement to report the incident and took
Complainant for a forensic interview several days later.

The jury also heard testimony from Maggie Ortuno, a forensic interviewer.
As Ortuno explained, a forensic interview “is an interview of a child that is
conducted after allegations of child abuse, neglect, or exposure to a violent crime
are made to authorities.” Ortuno said she conducted a forensic interview with
Complainant on December 4, 2019.
3
Ortuno testified as follows regarding Complainant’s account of the
allegations regarding Appellant:

Prosecutor: Okay. What did [Complainant] describe occurred or
had occurred?
Ortuno: So [Complainant] stated that she had been touched
on her body. So I asked her where on her body she
had been touched and she indicated by her belly
button. I asked who she had been touched by? She
indicated that she was touched by an uncle and
proceeded to explain that she had been touched —
I’m assuming you want me to go into the details.
Prosecutor: Continue, yes. Did she elaborate on the location or
on her body where she had been touched?
Ortuno: Yes, sir. So [Complainant] indicated that she was
touched on her vagina by her uncle.
Prosecutor: Vagina, is that the word she used?

Ortuno: It was. Not initially, but, yes, it was.

Continuing on, Ortuno said she presented Complainant with an anatomical drawing
so Complainant could provide further details regarding the allegations. Ortuno
said she asked Complainant where on her body Appellant touched her and
Complainant “wanted to show me with the marker and so she put a dot with a
marker on the vaginal area of the anatomical drawing.” Ortuno then testified that:

[O]nce [Complainant] had indicated with the marker where on her
body she was referring, I asked her what do you call that part of the
body where you put the mark? And she said vagina. I asked what —
I can’t recall the exact question I asked, but what had — what part of
her — what did he use to touch her vagina? She indicated it was his
hand.
I asked what part of her uncle’s hand touched your vagina. She
indicated it was his fingers. I asked, what his hand did when it

4
touched her vagina? And she said, it went up. And then on the
anatomical drawing there’s a little line that indicates the labial plane
of the vagina on the drawing. And I asked her if his finger had stayed
on the outside of that line, went on the inside of that line, or
something else? And she indicated that his fingers had gone inside of
that line.

After hearing testimony from several other witnesses, the jury retired to deliberate
and returned a verdict finding Appellant guilty of both counts of aggravated sexual
assault of a child. The jury assessed punishment at 60 years’ confinement for each
count, which were ordered to run concurrently. Appellant timely appealed and his
appeal was transferred to this court from the Third Court of Appeals by Texas
Supreme Court Transfer Order.1

ANALYSIS
Appellant raises three issues on appeal and asserts:

1. the trial court abused its discretion by permitting Mother to testify as
an outcry witness;
2. the trial court abused its discretion by permitting inadmissible hearsay
testimony to be presented during Mother’s testimony; and
3. the trial court’s Judgments of Conviction each contain clerical errors
that need to be corrected.
We consider Appellant’s first and second issues together before turning to his third
issue.

I. Mother’s Testimony

In his first issue, Appellant asserts the trial court abused its discretion in
concluding that Mother could testify as an outcry witness as to what Complainant
told her regarding the sexual abuse allegations. In his second issue, Appellant
1
Because of the transfer, we must decide the case in accordance with the precedent of the
Third Court of Appeals if our decision otherwise would have been inconsistent with that court’s
precedent. See Tex. R. App. P. 41.3.

5
contends that Mother’s testimony about what Complainant told her was
“inadmissible hearsay without an exception that was offered to prove the matter
asserted.” Because we conclude that any error in the admission of Mother’s
testimony was harmless, we overrule Appellant’s first and second issues.

“Hearsay statements, while generally inadmissible, may be admitted under
specific conditions when public policy supports their use, and the circumstances
surrounding the making of those statements pedigree their reliability.” Martinez v.
State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005). Article 38.072 of the Texas
Code of Criminal Procedure, also known as the “outcry statute,” creates a hearsay
exception in the prosecution of certain sexual offenses against children for the
admission of a child’s first outcry of sexual abuse to an adult. See Tex. Code
Crim. Proc. Ann. art. 38.072; Bays v. State, 396 S.W.3d 580, 581 n.1 (Tex. Crim.
App. 2013). “Because it is often traumatic for children to testify in a courtroom
setting, especially about sexual offenses committed against them, the Legislature
enacted Article 38.072 to admit the testimony of the first adult a child confides in
regarding the abuse.” Martinez, 178 S.W.3d at 810-11. “This witness may recite
the child’s out-of-court statements concerning the offense, and that testimony is
substantive evidence of the crime.” Id. at 811.

To be admissible under article 38.072, “[t]he statement must be ‘more than
words which give a general allusion that something in the area of child abuse is
going on;’ it must be made in some discernible manner.” Lopez v. State, 343
S.W.3d 137, 140 (Tex. Crim. App. 2011) (quoting Garcia v. State, 792 S.W.2d 88,
91 (Tex. Crim. App. 1990) (en banc)). Accordingly, the proper outcry witness is
the first adult to whom the alleged victim relates “how, when, and where” the
abuse occurred. Garcia v. State, No. 03-14-00269-CR, 2016 WL 1691218, at *1
(Tex. App.—Austin Apr. 22, 2016, pet. ref’d) (mem. op., not designated for

6
publication).

Admissible outcry-witness testimony also is event-specific, not person-
specific. Lopez, 343 S.W.3d at 140; Gibson v. State, 595 S.W.3d 321, 326 (Tex.
App.—Austin 2020, no pet.). Thus, when a child has been a victim of more than
one instance of sexual assault, multiple outcry witnesses may testify about separate
acts of abuse committed by the defendant against the child. Lopez, 343 S.W.3d at
140; Gibson, 595 S.W.3d at 326.

We review a trial court’s admission of outcry witness testimony for an abuse
of discretion. Gibson, 595 S.W.3d at 325. The trial court has broad discretion in
determining who qualifies as a proper outcry witness and we will uphold its
determination if it is reasonably supported by the record and within the zone of
reasonable disagreement. Id.

The erroneous admission of outcry testimony is reviewed for non-
constitutional error. See Tex. R. App. P. 44.2(b); Gibson, 595 S.W.3d at 327.
Similarly, the erroneous admission of hearsay testimony also is reviewed for non-
constitutional error. See, e.g., Sandoval v. State, 409 S.W.3d 259, 287-88 (Tex.
App.—Austin 2013, no pet.). Under this standard, we disregard the error unless it
affected the defendant’s substantial rights. See Tex. R. App. P. 44.2(b). An error
affects the defendant’s substantial rights when it has a substantial and injurious
effect or influence in determining the jury’s verdict. See Barshaw v. State, 342
S.W.3d 91, 93-94 (Tex. Crim. App. 2011). We will not overturn a criminal
conviction for non-constitutional error if, after examining the record as a whole,
we have fair assurance that the error did not influence the jury or influenced the
jury only slightly. Id. at 93.

Here, we assume without deciding that the trial court erred in admitting the
challenged portions of Mother’s testimony. Because a review of the record shows
7
that Appellant did not suffer harm from the admission of this testimony, we
conclude any error in the admission of this testimony was harmless. See Tex. R.
App. 44.2(b).

The Third Court of Appeals repeatedly has held that any error in the
admission of outcry witness testimony does not warrant reversal if the same or
similar testimony was admitted during another portion of the trial without
objection. See Gibson, 595 S.W.3d at 325-27 (concluding that any error in the
admission of three outcry witnesses’ testimony was harmless because “the victim
testifie[d] in court to the same or similar statements that were improperly
admitted”); see also Wong v. State, No. 03-19-00211-CR, 2020 WL 1482457, at
*6-8 (Tex. App.—Austin Mar. 27, 2020, pet. ref’d) (mem. op., not designated for
publication) (“Because Mother’s testimony regarding Child’s outcry was similar to
the testimony that Child and the nurse examiner provided, any potential error from
the admission of the outcry testimony was harmless.”); Garcia, 2016 WL 1691218,
at *3 (any error in the admission of the outcry witnesses’ testimony was harmless
because the complainant “provided detailed testimony at trial regarding several
instances of sexual abuse” and “a sexual-assault nurse examiner who examined
[the complainant] also testified about [the complainant’s] reports of abuse”).

We set out above Mother’s testimony regarding Complainant’s statements to
her about the alleged sexual abuse. Because the jury heard similar testimony from
Complainant and a sexual assault nurse examiner, any error in the admission of
Mother’s testimony was harmless. See Gibson, 595 S.W.3d at 325-27; see also
Wong, 2020 WL 1482457, at *6-8; Garcia, 2016 WL 1691218, at *3.

Testifying at trial, Complainant said Appellant “touched” her on “[t]he
vagina” five times. Complainant said it was “weird” and made her feel
“[u]ncomfortable.” Continuing on, Complainant said Appellant would touch her

8
“[u]nder [her] underwear” and said his fingers were “[l]ike moving a little bit.”
Complainant testified as follows with respect to what she told Mother:

Prosecutor: Do you remember how long before you told your
mom it happened?
Complainant: No.

Prosecutor: Without saying what she said, how did your mom
react?

Complainant: Surprised and sad.

Prosecutor: Because what did you tell your mom? What did you
say to your mom?
Complainant: I told her what he did to me.
Prosecutor: Do you remember exactly what you said?

Complainant. That he touched me in the vagina.
The jury also heard testimony from Noella Hill, the nurse that performed
Complainant’s sexual assault examination on December 13, 2019. Relying on her
exam report, Nurse Hill read the oral history she received from Complainant at the
time of the examination:

Patient had her head down. Patient sat with her hands in her lap and
stared at the floor. Patient was asked if anyone had ever made her feel
sad, bad, or uncomfortable? Yes, my uncle. What’s your uncle’s
name? [Appellant]. Is he a child or adult? Adult.
What did he do to make you feel uncomfortable? He touched me with
his hands. Where did he touch you? In my vagina. Did he touch you
under or over the clothes? Under. Where did this happen? At my
Aunt Debbie’s house. What did he do with his hands when he
touched you? He touched me down there. Patient pointed to her
crotch area.
Did it hurt? It felt uncomfortable.
* * *

9
How many times has he touched you in your vagina? I think like 10
times. It was a lot. How did he make you feel? It made me feel
afraid. Do you remember who was there in the house when this
happened? Yes, my aunt and cousins.
* * *
Can you remember when he first started to touch you? I was 9. I was
in fourth grade. I had to stay over at my aunt’s because my mom had
to take care of my big brother and my grandpa.

Mother’s testimony at trial regarding what Complainant told her was very similar
to the testimony from Complainant and Nurse Hill. Specifically, Mother testified
that Complainant said Appellant had “been touching” her and “pointed down to her
vaginal area.” According to Mother, Complainant indicated that the touching
occurred more than 10 times. Both Complainant and Nurse Hill testified to the
same at trial — and provided significantly more detail than Mother. Therefore, we
conclude that any error in the admission of the challenged portion of Mother’s
testimony was harmless. See Tex. R. App. P. 44.2(b); see also, e.g., Gibson, 595
S.W.3d at 325-27; Wong, 2020 WL 1482457, at *6-8; Garcia, 2016 WL 1691218,
at *3.

We overrule Appellant’s first and second issues.

II. Errors in the Judgments of Conviction

After the jury returned a verdict and assessed punishment, the trial court
signed two Judgments of Conviction. Appellant asserts that there (1) is a clerical
error in the judgment for Count I, and (2) are two clerical errors in the judgment
for Count II. In its response brief, the State “concedes that these clerical errors
exist in the judgment, and that the proper remedy is for this court to modify the
judgments and affirm as modified.”

We have the power to correct and reform the judgment of the court below

10
“to make the record speak to the truth” when we have the necessary information to
do so. Munguia v. State, 636 S.W.3d 750, 756 (Tex. App.—Houston [14th Dist.]
2021, pet. ref’d) (internal quotation omitted). In a criminal case, Texas Rule of
Appellate Procedure 43.2(b) functions in part as a means for the appellate court to
render judgment nunc pro tunc when the written judgment does not reflect what
occurred in open court at trial. Tex. R. App. 43.2(b); Munguia, 636 S.W.3d at 756.

Here, we agree with Appellant and the State that the trial court’s Judgments
of Conviction contain clerical errors that, when considered in light of the record,
warrant modification. See Tex. R. App. P. 43.2(b). First, both Judgments of
Conviction state that Appellant pleaded “guilty” to the charged offenses even
though, at trial, Appellant entered a plea of “not guilty.” Second, the Judgment of
Conviction for Count II lists “03/01/2019” as the “Date of Offense,” even though
the indictment for Count II states that the offense occurred “[o]n or about the 1st
day of April, 2019.”

Therefore, we sustain Appellant’s third issue and modify the Judgments of
Conviction as stated below.

CONCLUSION
We overrule Appellant’s first and second issues. We sustain Appellant’s
third issue and modify the trial court’s Judgments of Conviction as follows:

Judgment of Conviction — Count I
We modify this Judgment of Conviction to state that Appellant
pleaded “Not Guilty” to the charged offense.
Judgment of Conviction — Count II
We modify this Judgment of Conviction to (1) state that Appellant
pleaded “Not Guilty” to the charged offense; and (2) list “04/01/2019”
as the “Date of Offense.”

We affirm the trial court’s judgments as modified.

11
/s/ Meagan Hassan
Justice

Panel consists of Justices Hassan, Poissant, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).

12