Opinion issued August 13, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00857-CR
JONATHAN D. PERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1700365
MEMORANDUM OPINION
Johnathan D. Perry was convicted of aggravated sexual assault of a child
under 14.1 The trial court sentenced him to 30 years’ imprisonment. On appeal, he
1
The jury found that Perry intentionally and knowingly caused his girlfriend’s
daughter’s mouth to contact his penis.
argues that the trial court erred in admitting outcry witness testimony and video
excerpts of the complainant’s forensic interviews. We affirm.
Background
J.M. was seven or eight years old when her mother and Perry moved in
together. J.M. was the oldest of four children living in the house. In 2002, when
J.M. was about 10 years old, she told her mother that Perry had been touching her
inappropriately and that he had tried to penetrate her vagina with his penis. J.M.’s
mother immediately called the police, and she never saw Perry again.
J.M. was taken to the Children’s Assessment Center (“CAC”) for forensic
interviews. During the interviews, J.M. recalled that starting when she was about 8
years old, Perry touched her inappropriately over her clothing while play-fighting
with her and her brothers. Eventually, Perry began taking her to her mother’s
bedroom and sending her brothers to their bedrooms. In the mother’s bedroom,
Perry touched J.M. inappropriately and attempted to penetrate her vagina with his
penis. J.M. recalled that on one occasion, she was on her mother’s bed and did not
have bottoms on. Perry did not have on pants or underwear, and he put his penis in
her vagina. She remembered that it hurt. Another time, he inserted a vibrator into
her vagina. Finally, when she was about 8 years old, Perry made her perform oral
sex on him while he showed her pornography. No criminal charges were brought
against Perry at the time of J.M.’s disclosure.
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After attending therapy as an adult, J.M. reached out to law enforcement in
2020 or 2021 about the case, and Perry was charged with aggravated sexual assault
of a child. After trial, the jury convicted Perry, and the court sentenced him to 30
years’ imprisonment. He appealed.
Outcry Witness Testimony
On appeal, Perry argues that the trial court abused its discretion by
erroneously permitting an outcry witness to testify to uncharged acts of abuse.
Perry was indicted for “intentionally and knowingly caus[ing] the mouth of
J.M. . . . to contact [his] sexual organ.” The trial court permitted two outcry
witnesses to testify. J.M.’s mother testified that in 2002 J.M. told her that Perry
touched her vagina and attempted to penetrate it with his penis. A forensic
interviewer testified that J.M. said that Perry made her perform oral sex five or six
times. Perry argues that because he was indicted for oral sex acts, the trial court
erroneously permitted the jury to hear about unindicted acts of abuse by allowing
J.M.’s mother to testify as an outcry witness. J.M.’s outcry to her mother did not
include oral sex. The State responds that the details of abuse mentioned in both
statements should be considered part of the outcry. But the State also argues that
we need not opine on the scope of the outcry statute because even assuming error,
it was harmless.
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A. Article 38.072
Under Texas’s evidentiary laws, hearsay is inadmissible unless it falls into
one of the exceptions in Rules of Evidence 803 or 804, or it is allowed “by other
rules prescribed pursuant to statutory authority.” TEX. R. EVID. 802. One of those
“other rules” is Article 38.072 of the Code of Criminal Procedure. When a
defendant is charged with certain offenses against a child under the age of 14 or a
disabled individual, Article 38.072 allows the designation of an outcry witness to
testify about a child’s disclosure of abuse but requires that the outcry witness be
the “first person, 18 years of age or older other than the defendant, to whom the
child . . . made a statement about the offense.” TEX. CODE CRIM. PROC. art.
38.072 § 2(a)(3); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).
Before a designated outcry witness may testify about the child’s disclosure,
the trial court must find, “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. art. 38.072 § 2(b)(2). “The phrase ‘time,
content and circumstances’ refers to ‘the time the child’s statement was made to
the outcry witness, the content of the child’s statement, and the circumstances
surrounding the making of that statement.’” Broderick v. State, 89 S.W.3d 696,
699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (quoting MacGilfrey v.
State, 52 S.W.3d 918, 921 (Tex. App.—Beaumont 2001, no pet.)).
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In such a hearing, the trial court’s focus is whether the child’s outcry
statement is reliable, not whether the outcry witness is credible. Sanchez v. State,
354 S.W.3d 476, 487–88 (Tex. Crim. App. 2011); see TEX. CODE CRIM. PROC. art.
38.072 § 2(b)(2). The trial court considers the circumstances of the outcry, not the
abuse itself. Sanchez, 354 S.W.3d at 487.
A trial court has “broad discretion” in admitting outcry-witness testimony.
Garcia, 792 S.W.2d at 92. We will not reverse the trial court’s decision to admit
outcry-witness testimony unless it falls outside the zone of reasonable
disagreement. Id.
B. Analysis
Assuming without deciding that the trial court abused its discretion in
admitting J.M.’s mother’s outcry testimony, any such error was harmless.
The admission of inadmissible hearsay constitutes nonconstitutional 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 verdict or had but a
slight effect. See TEX. R. APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927
(Tex. Crim. App. 2004). Likewise, improper admission of evidence is not
reversible error if the same or similar evidence is admitted without objection at
another point in the trial. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App.
1991). And both this Court and our sister court in Houston have held that any error
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in admitting hearsay under article 38.072 is harmless if the same or similar
evidence is admitted without objection at another point in trial. See Cedillo v.
State, No. 01-24-00960-CR, 2026 WL 1290736 at *3, (Tex. App.—Houston [1st
Dist.] May 12, 2026, pet. filed) (mem. op., not designated for publication) (holding
no error in outcry testimony from three witnesses when same information came in
without objection through complainants’ testimony and medical records);
Lamerand v. State, 540 S.W.3d 252, 259–60 (Tex. App.—Houston [1st Dist.]
2018, pet. ref’d) (any error in admitting outcry testimony was harmless because
complainant gave similar testimony); Nino v. State, 223 S.W.3d 749, 754 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (improperly admitted outcry testimony
was harmless because complainant gave “substantially the same account of the
offense” in her testimony).
Even assuming the trial court erred in admitting the hearsay statement from
J.M.’s mother that J.M. told her Perry touched her vagina and attempted to
penetrate it with his penis, the error was harmless because J.M. testified without
objection to the same facts. At trial, J.M. said that when she was about eight years
old, Perry touched her breasts and vagina, put his penis in her vagina, and inserted
a vibrator into her vagina. Accordingly, after examining the record, we hold that
any improper admission of J.M.’s mother’s outcry testimony did not influence the
jury verdict, or had but a slight effect, because the same or similar evidence was
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admitted without objection elsewhere at trial. See Lamerand, 540 S.W.3d at 259–
60; see also Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d).
We overrule Perry’s first issue.
Admission of Forensic Interviews
In his second issue, Perry claims that the trial court improperly admitted
hearsay statements in excerpts from J.M.’s forensic interviews. The State responds
that the trial court properly admitted the evidence as both a prior consistent
statement and under the rule of optional completeness to correct the defense’s
inaccurate references to the interviews in opening statement.
A. Relevant Facts
During opening statement, the defense attorney said:
Now, you will hear the term “disclosure.” Disclosure means that the
alleged victim has told something that requires investigation, that
something happened. On June 28th, J.M. did not disclose.
Almost two weeks later, on July 11, 2002, M.M. takes J.M. back to
the CAC and insists on another interview. Another interview was
given. An officer, an HPD officer, watches the interview as it goes
on. Again, he feels there is no disclosure. So he tells M.M. take her to
therapy and when she does disclose come back to us.
Perry’s counsel’s opening statement also reiterated that between 2002 and
2020 nothing new occurred in the case and in the intervening years, Perry moved
on. The defense counsel said, “At the time [Perry] thought that any allegations that
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[J.M.] had made, the police realized were false allegations until January of 2022
when he is finally arrested.” Defense counsel continued, “[Perry] has to defend
himself by proving a negative, by proving that it didn’t happen. Passage of time,
there are no witnesses. There has been this reconstructed story of what happened.”
He concluded that the defense would show that the allegations against Perry were
false.
In response to the defense’s opening statement telling the jury that no
disclosures occurred during the forensic interviews, the State sought admission of
video excerpts of J.M.’s forensic interviews showing that she did disclose abuse.
The State argued that portions of the interviews should be admitted so as not to
leave a false impression with the jury and as J.M.’s prior consistent statement.
Perry’s counsel argued that the interview clips were unnecessary because they
were cumulative of other witnesses’ testimony.
The court stated that “clearly an impression was left with the jury that no
disclosure was made in either of the first two [interviews].” The court held that
portions of the interviews were admissible, and the court would review each clip
for context. The clips of the interviews were admitted into evidence during the
forensic interviewer’s testimony and published to the jury. In the first interview,
J.M. disclosed that Perry fondled her vagina and penetrated it with his penis, and in
the second interview, she disclosed oral sex that occurred five or six times.
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B. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). We
may reverse the trial court’s decision only if its ruling lies outside the zone of
reasonable disagreement. Id. at 83.
C. Applicable Law
The prior statement of a witness that tracks her trial testimony is not hearsay
if it is offered to rebut an express or implied charge that the witness recently
fabricated it or acted from a recent improper motive. TEX. R. EVID. 801(e)(1)(B).
To qualify for admission as a prior consistent statement, there must be an express
or implied charge of recent fabrication or improper influence or motive of the
declarant’s testimony by the opponent. Hammons v. State, 239 S.W.3d 798, 804
(Tex. Crim. App. 2007) (citing Tome v. United States, 513 U.S. 150, 156–58
(1995)). “The rule sets forth a minimal foundation requirement of an implied or
express charge of fabrication or improper motive.” Id. “It is minimal . . . . [E]ven
an attack upon the accuracy of the witness’s memory might suffice to permit the
introduction of a prior consistent statement.” Id. (internal citation removed). “The
fact that there need be only a suggestion of conscious alteration or fabrication gives
the trial court substantial discretion to admit prior consistent statements under the
rule.” Id. at 804–05 (internal citation and quotation removed).
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“However, the rule cannot be construed to permit the admission of what
would otherwise be hearsay any time a witness’s credibility or memory is
challenged.” Id. at 805. “There is no bright line between a general challenge to
memory or credibility and a suggestion of conscious fabrication, but the trial court
should determine whether the cross-examiner’s questions or the tenor of that
questioning would reasonably imply an intent by the witness to fabricate.” Id. A
trial court makes that determination by considering “the content, tone, and tenor of
defense cross examination. It either does or does not ‘open the door’ to the
admissibility of a prior consistent statement by an express or implied suggestion
that the witness is fabricating her testimony in some relevant aspect.” Id. at 808.
“In deciding that question, the trial court must consider the totality of the crossexamination, not isolated portions or selected questions and answers.” Id.; see also
Klein v. State, 273 S.W.3d 297, 315–17 (Tex. Crim. App. 2008) (considering entire
record when determining whether trial court abused its discretion in admitting prior
consistent statements). Based on the totality of circumstances in the record and
“giving deference to the trial judge’s assessment of tone, tenor and demeanor,” the
reviewing court should ask whether “a reasonable trial judge” could conclude that
the cross-examiner is mounting a charge of recent fabrication or improper motive.”
Hammons, 239 S.W.3d at 808–09. “If so, the trial judge does not abuse his
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discretion in admitting a prior consistent statement that was made before any such
motive to fabricate arose.” Id. at 809.
D. Analysis
The record here meets the minimum foundational requirement of an implied
or express charge of recent fabrication or improper motive. Defense counsel’s
opening statement, cross-examination of the forensic interviewer and detective,
and closing arguments all called into question the veracity and timing of J.M.’s
disclosures.
In opening statement, defense counsel incorrectly told the jury that J.M. had
been forensically interviewed twice in 2002 and no disclosure occurred in either
interview. In doing so, the defense opened the door to admitting the prior
consistent statement to show that J.M. in fact disclosed abuse during her forensic
interviews. Hammons, 239 S.W.3d at 808.
While cross-examining the forensic interviewer, defense counsel implied
that J.M. could have fabricated the details of abuse. His initial cross-examination
included asking how many children undergoing forensic interviews lie, and
whether a child who discloses abuse could be lying. The interviewer responded
that anyone could lie, and a disclosure is that child’s truth. Defense counsel also
asked if the disclosures J.M. made were vague, and the forensic interviewer
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explained that when a disclosure is made, sometimes there are more details that
later come to light, but that does not make the disclosure vague.
During cross-examination of the detective, defense counsel highlighted the
lack of full disclosure in the first forensic interview and that the original
investigating officer was not satisfied with subsequent disclosures because no
charges were filed.
Closing argument continued with the theme that the disclosures were
insufficient and J.M. had lied or had motive to lie. The defense attorney suggested
that J.M. “has gone so deep in this” that she had to stick to her story 20 years later.
While defense counsel told the jury in closing that he had made incorrect
statements about the interview in his opening, he also said, “So the first interview,
no disclosure. I’m sorry. Vague disclosure or something like that.”
Under the circumstances of this case, the trial court did not abuse its
discretion in admitting portions of the forensic videos to clear up the
misconception that J.M. did not disclose abuse during two forensic interviews. The
State introduced the forensic interview clips as rebuttal evidence after the defense
counsel both theorized that J.M. had fabricated the allegations against Perry or had
a motive to lie and said directly to the jury that the interviews did not contain
disclosures of sexual abuse. Samsel v. State, No. 01-20-00415-CR, 2021 WL
16184868, at *5 (Tex. App.—Houston [1st Dist.] Apr. 27, 2021, no pet.) (mem.
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op., not designated for publication) (holding trial court did not abuse its discretion
in admitting forensic interview as prior consistent statement).
The trial court assessed the tone, tenor, and demeanor during trial and the
impact of the erroneous opening statement on the jury. We defer to that
determination. See Hammons, 239 S.W.3d at 809; Samsel, 2021 WL 1618468, at
*5. Counsel’s statements about the interviews raised issues about their content. We
conclude that the portions of the forensic interviews were admissible as J.M.’s
prior consistent statement. Graves. v. State, 176 S.W.3d 422, 429 (Tex. App.—
Houston [1st Dist.] 2004, no pet.) (holding that videotape of child complainant was
admissible as prior consistent statement and because appellant had “opened the
door” by introducing specifics of videotape on cross-examination).2
Finally, as we noted in Perry’s first issue, any error in admitting evidence is
nonconstitutional and must be disregarded unless it affects the defendant’s
substantial rights. TEX. R. APP. P. 44.2(b). Even assuming error, any error in
admitting the forensic interview clips would be harmless because the videotape
was cumulative of J.M.’s live testimony to the same facts.
We overrule Perry’s issue.
2
Given our conclusion, we need not address the State’s alternative argument that
the videos were admissible under the rule of optional completeness. See Willover
v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002) (stating we must uphold trial
court’s evidentiary ruling if it is reasonably supported by the record and correct
under any theory of law applicable to the case).
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Conclusion
We affirm the trial court’s judgment.
Susanna Dokupil
Justice
Panel consists of Justices Caughey, Johnson, and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).
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